CHAPTER 4

FREEDOM OF ASSOCIATION AND TRADE

UNIONS

Kahn Fruend expressed that freedom of organization involves two aspects

(1) absence of restraints and (2) presence of positive guarantees. Absence
of restraints means the state shall not impose any restrictions. Previously
there was an Act called Combinations Prohibition Act 1799, which
prohibited any organization of workers and there was no right to form
associations. With regard to second aspect, the presence of positive
guarantees mean that the state as well as employer should provide suitable
atmosphere to unions to grow in a healthy manner to work for the welfare
of the workers. In Britain after a long struggle workers achieved the right to
form organization.

It is only in the year 1824 the Britain government parliament the workers to
form organizations. But there were no civil immunity or criminal
immunity. There were several criminal cases lodged against members of
the trade unions. Huge damages have been claimed by employers against
unions as tortuous liability. The Trade Dispute Act, 1906 in England, was
2

passed as a direct result of the case known as Taffvale case , where, 20,000
pounds were claimed against Amalgamated Railway Servants
Organization for the damages sustained by Employer during the strike
period.

After acquiring the right of forming union it needs support of the government
as well as employer. Presence of positive guarantees presupposes not only
providing civil and criminal immunities to the trade unions but also providing
certain encouragements such as recognition of union, providing office within
the premises of employer etc. We can conclude the absence of restraints like
giving birth to a child and presence of positive

Kahn Fruend, Labour and the Law, Stevens and sons, London (1983)

Tafvale Railways Vs. Amalgamated society of Railway Servants (1901) AC 426.

110

guarantees like providing suitable atmosphere to the child for its growth
and development. In Britain the growth of the trade unions is developed to
such an extent that they could form a political party and also the
government.

Freedom of Association and Constitution of India

Article 19(1)(c) of the Constitution of India guarantees to all its

citizens the right to form associations and unions Under clause (4) of
Article 19, the state may by law impose reasonable restrictions on this right
in the interest of public order or morality or the sovereignty and integrity of
India. The right to form associations or unions has a very wide and varied
scope including all sorts of associations viz., political parties, clubs,
societies, companies, organizations, entrepreneurships, trade unions etc. It
3

was held in Kulkarnis case that the right of association pre-supposes

organization. It as an organization or permanent relationship between its
members in matters of common concern. It thus includes the right to form
companies, societies, partnership, and trade union.

The right to form trade unions should not lead to the conclusion that trade
unions have a guaranteed right to an effective collective bargaining or to
strike as a part of collective bargaining or otherwise. The right to strike or
to declare a lock-out may be controlled or restricted by various industrial
legislations such as Industrial Dispute Act or Trade Unions Act.

a) Right to form association does not carry the right to recognition

In Raja Kulkarni Vs State of Bombay the Supreme Court held that

the unions are classified as representative unions and qualified unions

Raja Kulkarni Vs State of Bombay (1954) SC 73

Ibid.

111

under the Bombay Industrial Relations Act, 1946 is according to the

percentage of membership. Giving the right to unions with membership of
15% alone to represent workers was a reasonable classification and there
was no infringement of the fundamental right of the workers to freedom of
speech and expression and to form association or unions under Article
19(a) and (c) of the Constitution.

In All-India Bank Employees Association v. National Industrial Tribunal

5

(Bank Disputes), Bombay ; Supreme Court of India again had occasion to

consider content and scope of the right, guaranteed under Article 19(1)(c)
of the Constitution. It was held that even a very liberal interpretation of the
said constitutional provision cannot lead to the conclusion that the
fundamental right to form unions carries with it a concomitant guarantee
that the trade unions so formed shall be enabled to carry, effective
collective bargaining or shall achieve the purpose for which they were
brought into existence. The court held:

In our opinion, the right guaranteed under sub-clause (c) of clause

(1) of Article 19 extends to the formation of an association and insofar as

the activities of the association are concerned or as regards the steps which
the union might take to achieve the purpose of its creation, they are subject
to such laws as might be framed and the validity of such laws is to be tested
by reference to the criteria to be found in clause (4) of Article 19 of the
6

Constitution .

In Raghubar Dayal Jai Prakash v. Union of India ", wherein the S.C had to
deal with a challenge raised against Section 6 of the Forward

AIR 1962 SC 17

Ibid.

AIR 1950 SC 263

112

Contracts (Regulation) Act, 1952 on the ground of alleged violation. of

Article. 19(1)(c) of the Constitution. Upholding the validity of the Section
the Supreme Court held that the freedom of association guaranteed by
Article 19(1)(c) did not carry with it a guaranteed right to recognition of
the association.

The legal position being thus well-settled that Article 19(1)(c) does not
confer on a trade union a right to claim the grant of recognition by the
employer, it is not possible to accept the petitioner's contention that the
denial of recognition to it by the Board constitutes a violation of the
petitioner's fundamental right under the said article of the Constitution.
There being no other statutory provision in force in this State which confers
on every trade union, irrespective of the state of its membership, a right to
be recognised by the employer, or imposes a corresponding obligation on
the employer to grant such recognition to all trade unions, it must be held
that the petitioner-union has no legal or enforceable right for the grant of
recognition to it by the Board.

Withdrawal of recognition of a trade union to represent workmen in certain

categories, consequent upon recognition of another union, which had a
membership of the majority of such workmen, as their sole bargaining
8

agent does not violate Article 19(1)(c) .

b) Right to form association does not carry the right to strike

In T.K.Rangarajan Vs State of Tamil Nadu, (AIR 2003 SC 3032) the

Supreme Court delivering its final verdict on August 6, 2003 made it amply
clear that Government employees have no fundamental, legal, moral or
equitable right to go on strike, thus holding the state machinery and
citizens to ransom.

A.C.Mukherjee Vs Union of India, (1972) Lab IC 929: (1972) 2 LLJ 297 (Cal)
(DB)

113

Although the Tamil Nadu Government had initially dismissed 1,70,241

employees, the government in response to the wishes of the Supreme Court
agreed to take back those employees who had not resorted to violence on
compassionate grounds, yet still 6,072 employees remain dismissed. The
Supreme Court had recommended the establishment an effective redressal
machinery to take care of the grievances and demands of employees.

c) Right to form association does not carry the right to inform rival

union

In K.R.W Union Vs. Registrar, it was held that an order under Section 8 of
the Trade Unions Act, 1926 without informing to the existing rival union
was not violative of Art 19(1)(c). The right to be recognized by government
or the right to represent workmen was not absolute. Article 19(1)(c) did not
confer on any individual or association the right to carry on trade union
activities free of competition from rivals, therefore state action which
introduced new competitors could not be challenged as contravening
Article 19(1)(c). Since an order of the Registrar under Section 8 granting
recognition to a rival union did not place any restrictions on the
fundamental rights of the existing union, that union had no locus standi to
9

file a writ petition under Article 226 .

d) The right not to join an association is not a fundamental right

10

In Tika Ramji Vs U.P the contention of the petitioner was that right to
form an association implied the right not to form or join it, he further
contented that both rights were one integral right guaranteed by Article
19(1)(c). The facts of the above case are under provisions of the U.P.
Sugarcane (Regulation of Supply and Purchase) Act, 1953, two

H.M.Seervai, Constitutional Law of India, Vol.I (2007) Universal Publications,

p.805.

Tika Ramji Vs U.P (1956) SCR 393

114

notifications issued by the U.P. Government were impuned, inter alia, as

violating Article 19(1)(c). The petitioner urged that the provision relating to
the supply of sugarcane by a co-operative society to factories
manufacturing sugar would in substance compel him to join such a society,
thus violating his fundamental right under Article 19(1)(c) not to form, or
join, an association. Bhagwati J held that assuming that the right to form an
association implies a right not to form an association, it does not follow
that the negative right must also be regarded as a fundamental right. The
citizens of India have many rights which have not been given the sanctity
of fundamental rights and there is nothing absurd or uncommon if the
positive right alone is made a fundamental right. The whole fallacy in the
argument urged on behalf of the petitioners lies in this that it ignores that
there is no compulsion at all on any cane grower to become a member of
11

the cane growers co-operative society .

Here the author H.M.Seeravai submits that the observations of Bhagwati. J

that the negative right was not a fundamental right are not correct. Besides
the contention the petitioner urged that he was compelled to join in cane
growers co-operative society failing which he could not supply sugarcane
to factories, was rejected by saying that he was not compelled.

In All-India Bank Employees Association Vs. National Industries

12

Tribunal , the Supreme Court held that freedom to form unions does not
carry with it the concomitant right that such unions should be able to
achieve the objects for which they were formed. The contention of the
appellants was that section 34-A of the Banking Companies Act, 1949
contravened the fundamental right guaranteed to trade unions by Article

H.M.Seervai, Constitutional Law of India, Volume 1, Universal Law Pub (2007)

p.806.

All-India Bank employees association Vs. National Industries Tribunal AIR 1962 SC 171

115

19(1)(c) as it prevented them from effectively exercising the right of

collective bargaining in respect of wages, bonus etc. Before industrial
tribunals by shutting out important and relevant evidence, Section 34-A
provided that no banking company shall be compelled to produce or give
its books of account or other documents for inspection or furnish or
disclose any statement or information which the company claims to be of
confidential nature. If a dispute was pending and a question was raised
whether any amount from the reserves or other provisions should be taken
into account by a tribunal, the tribunal could refer the matter to the (RBI)
Reserve Bank of India whose certificate as to the amount which could be
taken into account, was made final and conclusive.

The Supreme Court held that 34-A was constitutionally valid and did not
offend either Article 19(1)(c) or Article 14 of the Constitution. It was held
that Article 19(1)(c) should not be read literally and that the right to form
unions carried with it the guarantee of their effective functioning.

Freedom of association and government employees

In O.K Ghosh Vs E.X.Joseph

13

the respondent, a government

servant was the secretary of the civil accounts association. The appellant
was the accountant general of Maharashtra. A memo was served on the
respondent intimating him that it was proposed to hold an enquiry against
him for having deliberately contravened the provisions of Rule 4-A of the
Central Civil Services (Conduct) Rules 1955 in so far as he participated
actively in various demonstrations organized in connection with the strike
of the central government employees and had taken active part in the
preparations made for the strike. The respondent filed a writ petition in the
High Court of Bombay with a prayer that a writ of certiorari be issued to
quash the charge sheet issued against him. He also prayed for a writ of

13

O.K Ghosh Vs E.X.Joseph AIR 1963 SC 812

116

prohibition against the appellant prohibiting him from proceeding further

with the departmental proceedings against him. The respondent Joseph also
contended that Rules 4-A and 4-B were invalid as they contravened the
fundamental right guaranteed to him under 19(1)(a)(b)(c) and (g). The High
Court held that Rule 4-A was wholly valid but Rule 4-B was invalid. Rule
4-A provided that no government servant shall participate in any
demonstration or resort to any form of strike in connection with any matter
pertaining to his conditions of service. Rule B provided that no government
servant shall join or continue to be a member of any service association
which the government did not recognize or in respect of which the
recognition had been refused or withdrawn by it. As both parties were not
satisfied with the judgement given in the High court they preferred appeal
to the Supreme Court.

The Supreme Court held that Rule 4-A in so far as it prohibited the
demonstration of employees was violative of fundamental rights
guaranteed by Article 19(1) a and (b), that the High Court was wrong in its
conclusion. The Supreme Court further held that participation in
demonstration organized for a strike and taking active part in preparations
for it cannot mean participation in the strike. The respondent could not be
said to have taken part in the strike and the proceedings against him under
Rule 4-A were invalid. The Supreme Court also held that Rule 4-B
imposed restrictions on the undoubted right of the government servants
under Article 19 which were neither reasonable in the interest of public
order under Article 19(4) in granting or withdrawing recognition, the
government might be actuated by considerations other than those of
efficiency or discipline amongst the services or public order. The
restrictions imposed by Rule 4-B infringed Article 19(1)(c) and must be
held to be invalid.

117

14

In P.Balakotaiah Vs Union of India raised the question whether Rules 3

and 7, Railway Service (Safeguarding of National Security) Rules, 1949
violated Article 19(1)(c). The appellants contended that their services were
terminated because they were communists and trade unionists and
consequently the orders terminating their services under Rule 3 amounted
in substance to denial to them of the freedom to form associations. The
appellants were informed that they had carried on agitation among the
Railway workers for a general strike with a view to paralyse
communications and the movement of essential supplies and thereby create
disorder and confusion in the country. As their services were terminated the
appellants fist moved the High Court under Article 226 of the Constitution.
Their contention was that Railway Services (Safeguarding National
Security) Rules, 1949 contravened Articles 14, 19(1)(c) and 311 of the
Constitution and as such the orders terminating their services were void.

Their petitions were dismissed by the High Court. Their appeals were also
dismissed by the Supreme Court which held that the charge shows that
action was taken against the appellants not because they were communists
or trade unionists but because they were engaged in subversive activities.
The orders terminating their services did not contravene Article 19(1)(c) as
they did not infringe any of the rights of the appellants guaranteed by that
Article which remained precisely what they were before. The appellants
had a fundamental right to form association but they had no fundamental
right to be continued in Government service. The order did not prevent
from continuing to be in the Communist Party or being trade unionists.

14

P.Balakotaiah Vs Union AIR 1958, SC 232

118

Right of Association and Armed Forces

In O.K.A. Nair v. Union of India

15

an important question arose

whether "civilian" employees. designated as non-combatants such as cooks,

chowkidars, laskers, barbers, mechanics, boot-makers, tailors, etc., attached
to the Defence Establishments have a right to form associations or unions.
The appellants were members of the civil employees unions in the various
centres of the Defence Establishment. The Commandant declared their
unions as unlawful associations. They challenged that the impugned action
was violative of their fundamental right to form associations or unions
under Article 19(1)(c) of the Constitution. They contended that the
members of the unions, though attached to the Defence Establishments
were civilians and their service conditions were regulated by Civil Service
Rules and therefore they could not be called "members of the Armed
Forces" within the meaning of Article 33 of the Constitution. The Supreme
Court rejected the plea of appellants and held that the civilian employees of
the Defence Establishments answer the description of the members of the
Armed Forces within the meaning of Article 33 and therefore, were not
entitled to form trade unions. It is their duty to follow or accompany the
Armed Personnel on active service or in camp or on march. Although they
are non-combatants and in some matters governed by the Civil Service
Rules, yet they are integral to Armed Forces. Consequently, under Army
Act the Central Government was competent to make rules restricting or
curtailing their fundamental right under Article 19(1)(c).

16

In Delhi Police Non-Gazetted Karmchari Sangh vs Union of India , the

validity of a statutory rule which empowered the Government to revoke the
recognition granted to the appellants Delhi Police Non-Gazetted Karmchari
Sangh to form association was challenged on the ground that it

AIR 1976 SC 1179

(1987) 1 SCC 115

119

was violative of Article 19(1)(c) of the Constitution. It was argued that

recognition once granted to the Sangh could not subsequently be revoked.
Recognition carried with it the right to continue the association as such. To
derecognise the association offends against the freedom of association. The
Supreme Court, however, held the statutory rules regarding recognition and
revocation of association were not violative of Article 19(1)(c) and they
impose reasonable restriction on the right to form association under
Articles 33 and 19(4) as the Sangh and its members come within the ambit
of Article 33 and thus they stand on a different footing. It was held that the
right to form association is fundamental right but recognition 'of
association is not a fundamental right and Parliament can therefore, by law
impose restrictions on such right.

Restrictions on the Freedom of Association

The right of association like other individual freedom is not unrestricted.

Clause (4) of Article 19 empowers the State to impose reasonable
restrictions on the right of freedom of association and union in the interest
of "public order" or "morality" or "sovereignty or integrity" of India. It
saves existing laws in so far as they are not inconsistent with fundamental
right of association.

The Criminal Law (Amendment) Act, 1908, as amended by the Madras

Act, 1950, provides that if the State Government is of opinion that any
association interferes with the administration of law or with the
maintenance of law and order or that it constitutes a danger to the public
peace it may, by notification in the Official Gazette declare such
association to be unlawful. Such a notification was to be placed before an
Advisory Board. Representation against such a notification could be made.
If the Advisory Board was of opinion that the association was not unlawful
the Government was to cancel the notification.

120

The validity of the above Act was challenged in the case of State of Madras
17

v. V.G. Rao , The Supreme Court held that the restrictions imposed by
Section 16(2)(b) of the Act were unreasonable, The test under it was
subjective satisfaction of the Government and the factual existence of the
grounds was not a justiciable issue. Therefore, the vesting of power in the
Government to impose restriction on this right, without allowing the
grounds tested in a judicial enquiry, was a strong element to be taken into
consideration in judging the reasonableness of the restrictions on the right
to form association or union. The existence of an Advisory Board could not
be a substitute for judicial inquiry.

But a Government order requiring municipal teachers not to join unions

other than those officially approved was held to impose prior restraint on
the right to form association and union, which was in the nature of
18

administrative censorship, and hence invalid .

Freedom of Association and ILO

Workers' organizations had been demanding recognition of freedom of

association well before the establishment of the ILO. As an integral part of
basic human rights and as a cornerstone of the provisions intended to
ensure the defence of workers freedom of association is particularly
important for the ILO in view of the latter's tripartite structure. It is also of
undoubted interest to employers' organizations, which now make greater
use of the procedures which have been established for the purpose of
ensuring its application. The ILO could therefore not fail to include this
principle in its Constitution of 1919 as one of the objectives of its
programme of action. The Preamble to Part XIII" of the Treaty of

AIR (1952) SC 196

Rama Krishna Vs President, District Board, Nellore, AIR (1952) Mad 253

121

Versailles mentioned "recognition of the principle of freedom of

association" among the objectives to be promoted by the ILO, and the
general principles set forth in Article 427 of the Treaty contained a
provision concerning "the right of association for all lawful purposes by the
19

employed as well as by the employers ".

Freedom of association having thus been proclaimed from the outset as one
of the fundamental principles of the Organization, the need was rapidly felt
to adopt provisions aimed at defining this general concept more precisely
and to set forth its essential elements in a formal ILO instrument in order
that its general application could effectively be promoted and supervised.
20

An initial attempt to do this failed in 1927 .

In 1944, the Constitution of the ILO was supplemented by the inclusion of

the Declaration of Philadelphia, which reaffirmed the fundamental
principles on which the Organization is based and, in particular, that
freedom of expression and of association is essential to sustained progress".

Special procedures for the protection of freedom of association were

envisaged during the discussion of Conventions Nos. 87 and 98 by the
International Labour Conference. The fact-finding and conciliation
commission on freedom of association was set up in 1950, followed by the
committee on freedom of association in 1951.

Established in 1961 as a tripartite body comprising nine members of the

Governing Body, and chaired since 1978 by an independent personality, the
Committee on Freedom of Association examines

Freedom of Association and Collective bargaining, ILO Pub. Geneva (1994)

p.2.

The placing of this item on the agenda of the 1928 Session of the
International Labour Conference was rejected, in particular by the workers
group, mainly because of questions relating to the right not to organize and to
the legal formalities to be observed by organizations.

122

complaints containing allegations of violations of the Conventions on

freedom of association, regardless of whether or not the countries
concerned have ratified those instruments.

The committee meets three times a year and has, since its establishment,
examined nearly 1,800 cases, which are often of a very serious nature. In so
doing, it has established a series of principles.

The declaration of Philadelphia, adopted in 1944 by the International

Labour Conference and incorporated in 1946 in the ILO Constitution,
officially acknowledged the relationship between civil liberties and trade
union rights by proclaiming in article 1(b) that freedom of expression and
of association are essential to sustained progress and referring in article
II(a) to the fundamental rights which are an inseparable part of human
dignity. Since then, this relationship has been repeatedly affirmed and
highlighted, both by the ILOs supervisory bodies and in the conventions,
recommendations and resolutions adopted by the International Labour
Conference.

The information available, in particular on the nature of the complaints

submitted to the Committee on Freedom of Association, shows that the
main difficulties encountered by trade union organizations and their leaders
and members relate to basic rights, in particular to the right to security of
the person, freedom of assembly, freedom of opinion and expression, as
well as the right to protection of trade union property and premises.

In its examination of such complaints, the committee on freedom of

association had stated that a climate of violence in which the murder and
disappearance of trade union leaders go unpunished constitutes a serious

123

obstacle to the exercise of trade union rights and that such acts require that
21

severe measures be taken by the authorities .

The arrest and detention, even for short periods, of trade union leaders and
members engaged in their legitimate trade union activities, without any
charges being brought and without a warrant, constitute a grave violation of
22

the principles of freedom of association .

Participation by trade unionists in international trade union meetings is also

a fundamental trade union right; governments should refrain from any
measure, such as withholding travel documents, which prevent
representatives of occupational organizations from exercising their mandate
23

in full freedom and independence .

The right to organize public meetings, including May Day processions or

demonstrations in support of social and economic demands, constitutes an
24

important aspect of trade union rights . The prohibition of demonstrations

or processions on public streets, in particular in the busiest parts of a city,
when it is feared that disturbance might occur, does not necessarily
25

constitute an infringement of trade union rights . But the authorities

should strive to reach agreement with organizers of the meeting to enable it
to be held in some other place where there would be no fear of
26

disturbances . While reasonable restrictions are acceptable, they should

not result in breaches of fundamental civil liberties.

Digest, para. 76. CFA, 281st Report, Case No. 1273 (El Salvador), para. 279; 283rd
Report. Case No. 1538 (Honduras), para. 254.

Digest, paras. 87-89. CFA, 279th Report, Case No. 1556 (Iraq) para.61; 281st
Report Case No. 1593 (Central African Republic). Para 262.

283rd Report, Case No. 1590 (Lesotho), para. 346.

Digest, paras, 154-156. CFA, 283rd Report, Case No.1590 (Lesotho), para. 349.
Digest para. 163

Digest para. 164. CFA, 280th Report, Case No.997, 999 and 1029 (Turkey),
para.34.

124

The committee considers that the guarantees set out in the international
labour conventions, in particular those relating to freedom of associations,
can only be effective if the civil and political rights enshrined in the
Universal Declaration of Human Rights and other international
instruments, notably the International Covenant on Civil and Political
Rights, are genuinely recognized and protected.

During the preparatory work on Convention No.87, it was emphasized that

freedom of association was to be guaranteed not only to employees and
workers in private industry, but also to public employees and workers in
public industry.

It has been considered that it would be inequitable to draw any distinction,

as regards freedom of association, between wage earners in private industry
and officials in the public services, since persons in either category should
be permitted to defend their interests by becoming organized However,
the recognition of the right of association of public servants in no way
27

prejudges the question of the right of such officials to strike . The

committee has always considered that the exclusion of public servants from
this fundamental rights is contrary to the Convention.

Given the very broad wording of Article 2 of Convention No.87, all public
servants and officials should have the right to establish occupational
organizations, irrespective of whether they are engaged in the state
administration at the central, regional or local level, or officials of bodies
which provide important public services are employed in state owned
economic undertakings. In some countries the legislation itself draws
distinctions as to the status and the rights of the various categories of

27

ILO, 30th Session, 1947, Report VII Freedom of association and industrial
relations p.109.

125

public servants. The committee considers that all workers in this category
are covered by the convention, whatever the term used.

In a number of countries, the legislation explicitly or indirectly denies

public servants the right to organize into trade unions. In some countries
the legislation although recognizing in principle the right of public servants
to organize, may deny this right to certain categories of public servants or
subject them to particular restrictions on account of their level of
responsibility (senior officials) or the nature of their functions, where these
are perceived as being incompatible with the right to organize (for instance
fire service personnel and prison staff).

The only exceptions authorized by Convention No.87 are the members of

the police and armed forces (Article 9), such exceptions being justified on
the basis of their responsibility for the external and internal security of the
state. Most countries deny the armed forces the right to organize, although
in some cases they may have the right to group together with or without
certain restrictions, to defend their occupational interests.

Although Article 9 of Convention No.87 is quite explicit, it is not always

easy in practice to determine whether workers belonging to the military
installations or in the service of the army and who should, as such have the
right to form trade unions. In view of the committee, since Article 9 of the
Convention provides only for exceptions to the general principle, workers
should be considered as civilians in case of doubt.

Definition of Trade Union

A trade union for an average man signifies an association of

workers which is engaged in securing certain economic benefits for its

members and a trade union is commonly regarded as an association to help

126

its members in getting collectively better terms of employment, wages etc.

The statutory definition of trade union, however permits even employers
organizations to get themselves registered as a trade union.

According to chambers Encyclopedia A trade union is an association of

wage earners or salary earners, formed primarily for the purpose of
collective action for the forwarding or defence of its professional interests

Sidney

and Beatrice Webbs have defined a trade union:

A continuous association of wage earners for the purpose of maintaining

or improving the conditions of their working lives. Webbs definition of
trade union does not include the association of employers and of white
collar employees which are generally regarded by English and Indian law
as trade unions. But in the popular sense of the term the definition of trade
union given by Webbs is still valid.

Trade unions, as generally, understood, are combinations of workmen of

some trade or of several allied trades for the purpose of securing by united
action, the most favourable conditions as regards wages, hours of labour
etc. for its members. The essence of trade union is found in the solidarity
among its rank and file as a security against the right of hire and fire of the
28

employee .

According to V.V.Giri the trade unions are voluntary organizations of

workers formed to promote and protect their interest by collective action.
Once the workers join trade union, they must be welded together in a
united front for the good of the whole group rather than for promotion of
any selfish individual motive or interest. In fact strength lies in the unity it

28

Dr.V.G.Goswami, Labour Industrial Laws, Central Law Agency (2008)

pp.205.

127

functions effectively on the solemn belief that united we stand divided we

fall.

One can understand that trade union as commonly understood is a

voluntary organization of workers constituted for promoting, advancing
and protecting their interests by means of united action formed with a view
to secure maximum benefits, rights, privileges and welfare of the working
class.

G.D.H.Cole went further and said that the objects of trade unions are
ultimate control of industry.

In the Soviet Union, trade union was defined as association of producers,

in which citizens employed for remuneration in state, cooperative and
private undertakings, institutions and business are organized. The union
acts for its members in all negotiations with the various state institutions
and represents them at a conclusion of agreements and contracts and in all
29

discussions of questions relating to labour and social welfare . To Karl

Marx in Germany, a trade union was first and foremost an organizing
centre. It provides focus for collecting the forces of working classes. The
trade unions developed out of spontaneous attempts of the workers to do
away with this competition, or at least to restrict it for the purpose of
obtaining at least such contractual conditions as would raise them above
the status of bare slaves. Lenin characterized a trade union as an
educational organization, a school of administration, a school of economic
30

management and a school of communism .

Soviet Labour Code. Article (5)

S.N.Mehratra, Labour problem in India, S.Chand Pub. (1964) pp.226

128

Statutory definition of trade union

The statutory definition of the term trade union in India is

borrowed from the British Trade Union Acts of 1871, 1875 and 1913.

According to section 2(h) of the Indian Trade Unions Act 1926, trade union
means any combination whether temporary or permanent, formed primarily
for the purpose of regulating the relations between workmen and employers
or between workmen and workmen or between employers and employers
or for imposing restrictive conditions on the conduct of any trade or
business and includes any federation of two or more trade unions. Provided
this Act shall not affect

Any agreement between partners as to their own business

Any agreement between an employer and those employed by him as to

such employment

Any agreement in consideration of the sale of the goodwill of a business

for instruction in any profession, trade or handicraft.

The analysis of the definition of the trade union clearly shows that the
purpose of trade union is to maintain balance, harmony in the relations of
the persons involved in industrial activity such as process and production.
The purpose of the trade union is not only to secure harmony between
employers and workmen but also it is intended to improve peaceful
relations between employers and employees.

The definition indicates that it is an association of workmen or employers

based on mutual confidence, understanding and co-operation for
safeguarding common interests. It need not be permanent combination, it
can be formed for a shorter period.

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The definition further indicates that the trade union is formed primarily for
the following two purposes.

Firstly for regulating the relations between

workmen and employers, or

workmen and workmen, or

employers and employers.

Secondly, for imposing restrictive conditions on the conduct of any trade or

business of its members.

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The word impose connotes an agreement and not compulsion .

Restrictive conditions would mean to enter into a contract restricting the
manner in which one can earn a living. Any regulation of relations in
employment would amount to imposing restrictive conditions. However, it
is to be treated separately from restrictive conditions on the conduct of
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trade or business .

The Act confers civil and criminal immunities to the workers under
sections 17, 18 of Trade Unions Act. No employer can sue for damages on
the basis of conspiracy on the part of a trade union, even though damage is
caused, provided the means adopted are not unlawful. The law relating to
civil conspiracy will have no application and it will not be necessary to
prove that their acts are justified in the same manner. It was perfectly legal

for the employer to seek a monopoly and to employ such tactics as boycott
or black list etc. but the same were branded as unlawful if they were
adopted by union. After a protected struggle the interests of trade unions
have today been placed on par with those employers in trade. The courts

Britley and Distt. Cooperative Society Ltd., Vs Windy Nook and Distt. Co-operative
Society Ltd., (1959) All ER 43 and 623.

K.D.Srivastava, Law relating to Trade Unions and unfair labour practices in India,
Eastern Pub. Lucknow. pp.215

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are no more required to investigate if the trade dispute exists or is

apprehended that the acts were done in furtherance of their purpose or to
injure the other party.

The use of the word primarily in the Trade Unions Act suggests that trade
union can have secondary objectives as well. A trade union may provide for
other objectives also and it cannot be refused registration simply on this
ground. But the secondary objectives should not be inconsistent with the
primary objects. These ancillary objects must not be opposed to any law or
opposed to public policy.

We can distinguish three classes of objectives which a trade union can

have. The first may be classified as purely economic objectives i.e., those
which relate to questions concerning wages, hours of work, working and
living conditions. The second one viz. benefit purpose, which includes
dispensation of various benefits like sickness and unemployment. The third
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group consists of social and political objectives .

The words trade or business are not defined in the Trade Unions Act.
However these words can have a wide variety of meaning, indeed trade is
not only in the etymological or dictionary sense, but as legal usage, a term
of widest scope. It is connected originally with the word trade and indicates
a way of life or an occupation. Persons belonging to a number of trades or
to no trade at all may constitute a trade union whose members may not be
members of any one trade. There may be trade union which is composed
neither of workmen nor masters although it may be a combination to
regulate the relations between workmen and workmen or workmen and
employers or employers and employers. What matters is the

33

Dr.V.G.Goswami, Labour Industrial Laws, Central Law Pub. Alahabad, (2008)

p.206.

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object of the union and not its composition. A union may consist of both
workmen and employers.

In ordinary usage it may mean the occupation of small keeper equally with
that of a commercial magnate. Trade includes generally speaking, any
gainful occupation. Any one from a dustman to highly skilled professional
worker may enter into contract in restraint of trade restricting the manner in
which he can earn a living.

However wide the term trade might be, the Supreme Court approved the
dictum that those activities of the government which should be properly
described as legal or sovereign activities are outside the scope of
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industry .

In the same manner when Madras Raj Bhavan Workers Union applied for
registration under Trade Unions Act the Registrar rejected on the ground
that the members were not connected with a trade or industry or business of
the employer.

With regard to word workmen it has not been independently defined in

the Trade Unions Act. But in the definition of the term trade dispute in
section 2(g) the definition of the workmen is found which runs.

All persons employed in any trade or industry, whether or not in the

employment of the employer with whom the trade disputes arise.

Another term employer also was not defined in Trade Union Act 1926,
However section 2(g) of the Industrial Disputes Act, 1947 defines an

employer to mean (i) in relation to an industry carried on by or under the

34

State of Bombay Vs Hospital Mazdoor Sabha (1960) ILLJ 251 SC

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authority of any department of the central government or a state

government the authority prescribed in this behalf or where no authority is
prescribed the head of the department (ii) in relation to an industry carried
on by or on behalf of a local authority, the Chief Executive Officer of that
authority.

The Trade Unions Amendment Act, 2001

The Trade Union Act was amended in 2001 with a view to reducing

multiplicity of the trade unions promoting internal democracy and facilitate

in the ordinary growth and regulation of trade unions. In the principle act
under section 4 it is provided any seven members are needed for making
application for registration. Whereas under amendment act 2001, that the
seven persons applying for registration must be workmen engaged or
employed in the establishment or an industry.

Another change that has brought by the amendment act is that no trade
union shall be registered unless at least 10 per cent, or one hundred
whichever is less, of workmen engaged or employed in establishment or
industry with which it is connected are on the date of filing application for
registration and the members of such union must have minimum strength
of seven members.

With regard to subscription of membership previously it was not less than

25 paise per month per member. Now a new clause (f) in section 6 is
inserted which classified the workers into three classes for the payment of
subscription. The subscription rates are as follows

not less than one rupee per annum for rural workers,

not less than three rupees per annum for workers in the un-organized
sector,

not less than twelve rupees per annum for workers in any other case.

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Section 9-A has also been inserted to provide that a registered Trade Union
of workmen shall at all times continue to have not less than ten per cent, or
one hundred of the workmen, whichever is less, subject to a minimum of
seven, engaged or employed in an establishment or industry with which it
is concerned, as its members;

Another change that has brought by the Amendment Act 2001, that a
registered trade union except not more than one third of the total number of
office bearers or five, whichever is less, shall be persons actually engaged
or employed in the establishments or industry with which the trade union is
connected. The employees who have retired or have been retrenched shall
not be considered as outsiders for the purpose of holding an office in a
trade union. In case of unorganized sector however the present provision of
section 22 of the act would continue to be applicable. Therefore with regard
to office bearers in the principle act, half of the office bearers shall be
persons actually engaged or employed in the establishment with which the
trade union is connected. Now the amendment act substituted under section
22 that the office bearers of the registered trade unions, except not more
than one third of the total member of office bearers shall be persons
actually engaged in an industry.

It is submitted that the attempt made by the legislature to reduce the

multiplicity of the trade unions is a step towards promoting internal
democracy. But by reducing the number of outside leaders under section 22
not encouraging because it makes no much difference to permit 50 per cent
of outsiders or one third of outsiders as office bearers. Therefore the legal
ban permitting one third of office bearers further minimized so as to
promote true internal democracy.

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