INTRODUCTION

A registered trade union, under the Indian Trade Union Act, is entitled to

various benefits, privileges, protections, immunities and exclusive rights,

compared to unregistered trade unions.

The immunities enjoyed by a trade union can be of two types: civil immunity

and criminal immunity. These immunities provide the members and officers of

registered trade unions relaxation against various civil and criminal liabilities.

The basic rights of trade unions rest on these immunities, without which the

proper functioning of trade unions is almost impossible.

The office bearers, members of a registered trade union and a registered trade

union itself, is immune to various civil liabilities as provided in Section 18(1)

and Section 18(2) of the Trade Union Act. As per the provisions of Section

18(2) of the Act, a registered trade union enjoys immunity from civil suits and

liability in case of tortious activity i.e. criminal or illegal wrong act done in

contemplation of a trade dispute by an agent of the trade union, without the

knowledge of the union executive of the trade union or against the rules laid

down by it.

However, the right of a trade union to be protected from civil suits and

liabilities are confined to acts done in contemplation of a trade dispute.

Nonetheless, such an act must not be illegal. If an act is executed for a reason

1|Page
other than promotion of a trade dispute, the immunity from civil suits is not

applicable. The immunity is restricted only to the breach of contract of

employment and is not applicable to any other act. If an act of promotion of

trade dispute involves violent or illegal means, the trade union or its members

cannot plead Section 18(1) to avoid civil suit against them.

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 THE DIFFERENCE BETWEEN CRIMINAL AND CIVIL

LIABILITY

CRIMINAL LIABILITY

In criminal matters, it is usually the state prosecuting the defendant before a

magistrate, or a judge and jury in the Crown Court. The basic assumption in

criminal liability is that there is both a mental element and physical element to

the offence.

For example, theft involves "dishonestly" which is a question of mental attitude,

and "appropriating" which is a physical act. The burden of proof for criminal

offences is that of "beyond reasonable doubt". It should be realised that various

offences in relation to, for example, road traffic law or environmental law have

been so structured that the "mental element" is in fact not required for a

conviction. This has been as a matter of public policy to make it possible to

obtain convictions which otherwise would be very difficult. The penalties for

criminal offences are fines and imprisonment, as well as other non-custodial

punishments.

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 CIVIL LIABILITY

Civil liability gives a person rights to obtain redress from another person e.g.

the ability to sue for damages for personal injury. There is also the right to

obtain an injunction. For there to be an award of damages, the injured party has

to have suffered an actual loss, be it personal injury, damage to property, or

financial loss.

The burden of proof is "the balance of probability" which is much lower than

for criminal matters.

If there has been a relevant criminal conviction in a particular matter, then the

burden of proof in any related civil action is reversed, so that the defendant has

to prove he is not liable. An example of this would be a conviction of a

company for breach of health and safety legislation, followed by the injured

employee suing the company for damages for personal injury.

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 CRIMINAL CONSPIRACY IN TRADE DISPUTES

17. Criminal conspiracy in trade disputes.-

No 1*[office-bearer] or member of a registered Trade Union shall be liable to

punishment under sub-section (2) of section 120B Indian Penal Code (45 of

1860), in respect of any agreement made between the members for the

purpose of furthering any such object of the Trade Union as is specified in

section 15, unless the agreement is an agreement to commit an offence.

Section 17 of the act confers immunity from liability in case of criminal

conspiracy under section 120 B of IPC committed by an officer bearer or

member of a registered trade union. The protection provided to members or

office bearers of a registered trade union is partial in the sense that the immunity

is available only in respect of agreements made between the members for the

purpose of furthering any legitimate object of the trade union as provided in

section 15 of the act. If the agreement is an agreement to do an act which is an

offence, no immunity can be claimed. The effect of section 17 of the act is that

an agreement or combination of two or more members of the registered trade

union to do or cause to be done any act in furtherance of a trade dispute shall

not be punishable as a conspiracy unless such act, if committed by an

individual, furtherance of their trade disputes, such as to declare strike and for

that purpose to persuade their members to abstain from their work.

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The offence of criminal conspiracy under section 120-A is a distinct offence

introduced for the first time in1913 in chapter V-A of the penal code. The very

agreement, concert or league is the ingredient of the offence. It is not necessary

that all the conspirators must know each and every detail of the conspiracy as

along as they are co-participators in the main object of the conspiracy. There

may be so many devices and techniques adopted to achieve the common goal of

the conspiracy and there may be division of to achieve the common goal of the

conspiracy and there may be division of performance in the chain of actions

with one object to achieve the real end of which every collaborator must be

aware and in which each one of them must be interested. There must be unity of

object or purpose but there may be plurality of means sometimes even unknown

to one another, amongst the conspirators. In achieving the goal several offences

may be committed by some of the conspirators. The only relevant factor is that

all means adopted and illegal acts done must be and purported to be in

furtherance of the object of the conspiracy even though there may be sometimes

mis-fire or over-shooting by some of the conspirators. Even if some steps are

resorted to by one or two of the conspirators without the knowledge of the

others it will not affect the culpability of those others when they are associated

with the object of the conspiracy.1

1
Yash pal mittal v state of Punjab (1977) 4 SCC 540

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Under section 120-B there must be an agreement between two or more persons

to commit an offence or where the agreement does not amount to an offence in

the doing of an act which is legal, in an illegal way there should also be

established an overt act.

There must be a meeting of minds in the doing of the illegal act or the doing of

a legal act by illegal means. If in the furtherance of the conspiracy certain

persons are induced to do an unlawful act without the knowledge of the

conspiracy or the plot they cannot held to be conspirators, though they may be

guilty of an offence pertaining to the specific unlawful act. The offence of

conspiracy is complete when two or more conspirators have agreed to do or

cause to be done an act which is itself an offence, in which case no overt act

need be established. It is also clear that an agreement to do an illegal act which

amounts to a conspiracy will continue as long as the members of the conspiracy

remain in agreement and as long as they are acting in accord and in furtherance

of the object for which they entered in to the agreement.2

The parties to an agreement contemplated in Section 120-A of I.P.C. will be

guilty of criminal conspiracy, though the illegal act agreed to be done has not

been done. So too, it is not an ingredient of the offence that all the parties

should agree to do a single illegal act. It may comprise the commission of a

member of acts. Where the accused are charged with having conspired to do

2
Lennart Schussler v Director of Enforcement, (1970) 1 SCC 152

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three categories of illegal acts, the mere fact that all of them could not be

convicted separately in respect of each of the offences has no relevancy in

considering the question whether the offence of conspiracy has been committed.

They are all guilty of the offence of conspiracy to do illegal acts though for

individual offences all of them may not be liable.3

An agreement between parties to do an illegal act is itself punishable even,

though the illegal act pursuant to the agreement was not performed.4

In West India Steel Company Ltd v. Azeez5 a trade union leader obstructed

work in the factory for five hours protesting against deputation of workman to

work another section. It was held that a worker inside a factory is bound to obey

the reasonable instruction given by his superiors and carry out the duties

assigned to him. A trade union leader has no right in law to share managerial

powers and he cannot dictate any worker individually or to workmen generally

about the manner in which they have to do their work or discharge their duties.

A trade union can espouse the cause of the workers and can resort to lawful

agitation for conducting their rights but officials of trade union are not entitled

to order an workman to stop his work or otherwise obstruct of the

establishment.

3
Major E.G. Barsay v State of Bombay, (1962) 2 SCR 195
4
Kehar Singh v State of State ( Delhi Admin ) 1988 3 SCC 609
5
(1990) II L.L.J 133 (kerela).

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 LOCKOUT

A lockout is a work stoppage in which an employer prevents employees

from working. It is declared by employers to put pressure on their workers.

This is different from a strike, in which employees refuse to work. Thus, a

lockout is employers’ weapon while a strike is raised on part of employees.

Acc to Industrial Disputes Act 1947, lock-out means the temporary closing

of a place of employment or the suspension of work or the refusal by an

employer to continue to employ any number of persons employed by him.

A lockout may happen for several reasons. When only part of a trade union

votes to strike, the purpose of a lockout is to put pressure on a union by

reducing the number of members who are able to work.

For example, if a group of the workers strike so that the work of the rest of

the workers becomes impossible or less productive, the employer may

declare a lockout until the workers end the strike. Another case in which an

employer may impose a lockout is to avoid slowdowns or intermittent work-

stoppages. Occupation of factories has been the traditional method of

response to lock-outs by the workers' movement.

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 PICKETING

When workers are dissuaded from work by stationing certain men at the

factory gates, such a step is known as picketing. If picketing does not

involve any violence, it is perfectly legal. Pickets are workers who are on

strike that stand at the entrance to their workplace. It is basically a method of

drawing public attention towards the fact that there is a dispute between the

management and employees.

The purpose of picketing is:

to stop or persuade workers not to go to work, to tell the public about the

strike and to persuade workers to take their union's side.

GHERAO

Gherao in Hindi means to surround. It denotes a collective action initiated by

a group of workers under which members of the management are prohibited

from leaving the industrial establishment premises by workers who block the

exit gates by forming human barricades. The workers may gherao the

members of the management by blocking their exits and forcing them to stay

inside their cabins. The main object of gherao is to inflict physical and

mental torture to the person being gheraoed and hence this weapon disturbs

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 the industrial peace to a great extent.

In R. S. Ruiker vs Emperor6, the court stated that although trade unions

have the right to strike and commit actions in furtherance of trade disputes

for which they cannot be held civilly or criminally liable, this exemption

does not extend to situations where they can be afforded immunity from any

criminal offence as defined under s. 40 IPC7.

In Jay Engineering Works Ltd vs State of West Bengal8, the Calcutta High

Court reiterated this view and stated that the exemptions granted under s. 17 of

the act do not extend to:

“Agreements to commit an offence or intimidation, molestation or violence,

where they amount to an offence. Members of a trade union may resort to

peaceful strike such as cessation of work with the object of enforcing their

claims. Such strikes must be peaceful and never violent and there is no

exemption where an offence is committed. Therefore, a movement by workmen

by gathering together either outside or inside an industrial establishment within

the working hours is permissible when it is peaceful and does not violate the

provisions of law. However, when such a gathering is unlawful or commits an

offence then such exemption is lost. Thus where the workmen resort to

6
A.I.R 1935 Nag 149
7
Section 40 of the IPC defines Offence as an act punishable by the Code. An Offence takes place in two ways,
either by commission of an act or by omission of an act.
8
AIR 1968 Cal 407

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confinement of persons, criminal trespass or where it becomes violent or

indulges in criminal force or assault or mischief to person or property, then the

exemption granted under s. 17 of the act cannot be claimed.”

In this case the court defined gherao as a “physical blockade of a target either

by encirclement or forcible occupation.” It declared that the objective of a

gherao is to force the management in power to agree to the demands of the

workers, without regard for the machinery provided for redressal of complaints

as provided for by the law, and hence it took the view is that a gherao is illegal

and the persons involved cannot be granted immunity from criminal

prosecution.

National Labour Relations Board v. Fansteel Metallurgical Corporation, the

union of the workers in the Fansteel Metallurgical Corporation, Chicago

decided upon a "sit down strike" by taking over and holding two of the

respondents' "Key" buildings. These were thereupon occupied by about 95

employees. Work stopped and the remainder of the plant also ceased operation.

The superintendent accompanied by the police went to each of the buildings and

loudly announced that the men who had seized the plant were discharged for

seizure and occupation of the buildings. The men took no heed of it and

continued to occupy the building and the respondent obtained from Court an

injunction order requiring the men to surrender the premises, but the men

refused to obey the orders and writs of attachment were issued by the court

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There was a pitched battle, and at first the men successfully resisted the Sheriff,

but ultimately were over-powered and removed. Most of them were eventually

fined and given jail sentences.9

Section 17 of the Indian Trade Union, Act 1926. is based on Section 3 of the

English Conspiracy and Protection of Property Act 1875, as amended by

Section 5(3) of the Trade Disputes Act 1906. With regard to this provision.

Lord Evershed in Rookes v. Barnard,10 says as follows-

"My Lords, I am indeed conscious of the fact that the view upon the supposed

case entertained by your Lordships appears to have the support of no less an

authority than that of Lord Lereburn. who was Lord Chancellor at the time of

the passing of the Trade Disputes Act, 1906. I have in mind the celebrated

passage in his speech in Con-way v. Wade,11 'It is clear that, if there be threats

of violence, this Section gives no protection for then there is some other ground

of action besides the ground that it induces some other person to break a

contract' and so forth. So far there is no change. If the inducement be to break a

contract without threat or violence, then this is no longer actionable, provided

always that it was done 'in contemplation or furtherance of trade dispute'

............... In this respect there is a change. If there be no threat or violence, and

no breach of contract, and yet there is an interference with the trade, business,

or employment of some other person, or with the right of some other person to
9
(1938) 306 US 240 = 83 Law Ed 627
10
1964 AC 1129 at page 1191
11
1909 AC 506

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dispose of his capital or his labour as he wills, there again there is perhaps a

change. It is not to be actionable, provided that it was done 'in contemplation of

furtherance of a trade dispute."

It will be noticed however that both Sections 17 and 18 of the Trade Union Act

1926 tall far short of the rights conferred by the English Acts. The common

characteristic however is that both inhabit violence, intimidation and

molestation.

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 SECTION 18

Immunity from civil suits in certain cases- section 18 of the Trade Unions Act

deals with the immunity from civil proceedings afforded to a registered Trade

Union, and to its members or office bearers. A person is liable in torts for

deliberately bringing about a breach of contract of employment between the

employer and the employee. But a registered Trade Union, its members or

office bearers are protected from being sued for inducing a person to break his

contract of employment or for interfering with the trade, business or

employment of some other person, provided such inducement is in

contemplation or furtherance of a trade dispute.

Section 18(1) of the Act provides that no suit or other legal proceeding shall be

maintainable in any civil court against any registered Trade Union or any office

bearer or member thereof in respect of any act done in contemplation or

furtherance of a trade dispute to which a member of the Trade Union is a party

on the ground only that such act induces some other person to break a contract

of employment, or that it is an interference with the right of some other person

to employment of some other person or with the right of some other person to

dispose of his capital or of his labour as he wills. In this sub-section emphasis is

on the word “only” which means the protection is limited only to the grounds of

actionability provided in this sub-section, and a registered union, its members or

15 | P a g e
office bearers shall be liable for any act not covered by this clause. There shall

be no immunity if threats, violence or other illegal means are employed.

Section 18(2) of the Act provides that a registered Trade union shall not be

liable in any suit or other legal proceeding in any civil court in respect of any

tortuous act done in contemplation or furtherance of a trade dispute by an agent

of the trade union if it is proved that such person acted without the knowledge

of, or contrary to, express instructions given by the executive of the trade union.

It was held in the case of Ram Singh and othrs v. M/S Ashoka Iron Foundary

and othrs12 that a suit for personal injunction restraining the workmen from

indulging in unfair labour practice is deemed as one of civil procedure code.

Therefore, where the court has barred the workmen from holding meeting,

dharna and interfering in the rights of a company, such a restraint does not

curtail the just trade union activities of the workers. It cannot be construed as

unjust and the workmen are at liberty to carry on legitimate trade union

activities peacefully.

It was held in P.Mukundan and Othrs v. Mohan Kandy Pavithran13, that a

strike, per se would not be an actionable wrong. Further the office bearers, and

the members of a registered trade union are immune against legal proceedings

linked with the strike of the workmen by the provisions of Section 18 of the

Trade unions act.

12
(1993) I L.L.J. 987 (P&H).
13
(1992) II L.L.J. 160 (Kerala)

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Rohtas Industries Staff Union v. State of Bihar14, is the leading case on this

section. In this case the question for determination was, whether the employers

have any right to claim damages against the employee participating in an illegal

strike and thereby causing loss of production and business. Ramaswami, C.J.

observed :- “ Upon consideration of the various provisions of the act it is

manifest that the overriding purpose of the Act is the benefit of the community

and not the benefit of the employees or the employers. It is true that section 24 15

imposes a statutory duty on the employees not to commence or declare an

illegal strike. But it is manifest that if there is a breach of this statutory duty on

the part of the part of the employees, the employer has no right of civil action

against the employees in default apart from the statutory penalty provided by

section 26(1) of the Industrial Disputes Act, 1947. Similarly if the employer

declares an illegal lockout there is a breach of the statutory obligation created

by section 24 of the Industrial Disputes Act, 1947 but the employees have no

right of civil action. The exclusive remedy open to reasons I hold that the duties

imposed by sections 26(2) of the act. For these reasons I hold that the duties
14
A.I.R 1963 Pat. 170
15
Section 24 of the Industrial Disputes Act, 1947- Illegal strikes and lock- outs.-
(1)A strike or a lock- out shall be illegal if--(i) it is commenced or declared in contravention of section 22 or
section 23; or (ii) it is continued in contravention of an order made under sub- section (3) of section 10 1[ or
sub- section (4A) of section 10A].
(2) Where a strike or lock- out in pursuance of an industrial dispute has already commenced and is in existence
at the time of the reference of the dispute to a Board, 1[ an arbitrator, a] 2[ Labour Court, Tribunal or National
Tribunal], the continuance of such strike or lock- out shall not be deemed to be illegal, provided that such strike
or lock- out was not at its commencement in contravention of the provisions of this Act or the continuance
thereof was not prohibited under sub- section (3) of section 10 1[ or sub- section (4A) of section 10A].

(3) A lock- out declared in consequence of an illegal strike or a strike declared in consequence of an illegal lock-
out shall not be deemed to be illegal.

17 | P a g e
owed by sections 22,23 and 24 of the Industrial Disputes act are statutory duties

owed by the employees, not to the employers concerned but duties owed of the

public which can be solely enforced by criminal prosecution under section

26(1) of the act. It follows, therefore, that the employers have no right of civil

action, for damages against the employees participating in an illegal strike

within the meaning of section 24(1) of the Industrial Disputes Act.”16

In the above case it was further held that the striking workmen are not prevented

from taking recourse to the protection of section 18 of the Trade Unions

Act,1962 mainly because the strike is illegal under section 24(1) of the

Industrial Disputes Act, 1947.17

It is the duty of the court to see that the strike is undertaken in contemplation or

furtherance of a trade dispute. But the expression “in contemplation or

furtherance of” is not defined. For any act to be done in furtherance of a dispute,

the dispute must be present or imminent and whether a trade dispute is actual,

impending or probable is a question of fact in each case.18

16
Rohtas Industries Staff Union v. State of Bihar, A.I.R 1963 Pat. 170
17
Ibid.
18
Conway v. Wade, 1909 A.C. 506

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In Simpson& Group Companies Workers & Staff Union v. Amco Batteries

Ltd.19, it was held that physical interference or duress with free movement of

executives, contractors, staff, suppliers and other public pr physically

obstructing the free movement of cars, vehicles and lorries carrying raw

materials, intermediaries, end products into and out of the factory premises

could not be justified as a trade union right or a fundamental right under Article

1920 of the constitution of India. Immunity under section 18 of the Trade Union

Act does not extend to the above activities. Right to picket is a very intangible

one and is limited by the equal right of others to go about their lawful affairs

free from objection or intimidation. The methods of persuasion are limited to

oral and visual methods and it does not extend to physical obstruction of a

vehicle or person.

19
(1992) I L.L.J. 266 (Karn)
20
19. Protection of certain rights regarding freedom of speech etc
(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practise any profession, or to carry on any occupation, trade or business

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It was held in Reserve Bank Of India v. Ashis Kusum21 , that in order to secure

immunity from civil liability under section 18 inducement or procurement of

breaches of contract of employment in furtherance of a trade dispute or

interference with business of another person in furtherance of a trade dispute

must be by lawful means and by means which would be illegal or wrongful by

other provisions of law. It was further held that the movement or agitation or

demonstration by the employees for the purpose of compelling employer to

withdraw certain disciplinary proceeding initiated against some of them was in

contemplation or in furtherance of trade dispute and, therefore, not acceptable.22

So also to threaten to induce breaches of contracts of employment is not

actionable. But the inducement of breaches of contract must not be by unlawful

means. Watching and besetting may in certain circumstances constitute

unlawful means of procuring or inducing breaches of contract.23

In Sri Ram Vilas Service Ltd. and othrs v. Simpson and Group Companies

Workers Union and othrs24, it was held that if cessation of work is the result of

strike, the effect of strike will be nullified if the managements either by

themselves or through their customers are permitted to remove the goods either

in the course of their trade. If the customers of the management are to be

permitted to remove the goods by themselves without the aid of the labour that

21
(1969) 73 Cal. W.N. 388.
22
Ibid.
23
Ibid.
24
(1979) II LLJ 284 (Mad.)

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would tantamount to rendering the strike ineffective and to achieve that purpose

the court should not lend its hand.

In Western India Cine Employee’s v. Filmalaya Pvt. Ltd.,25 the union made

various demands on behalf of 19 workers alleging that these workers were in

the employment of the Filmaya Pvt. Ltd. and they were shown as temporary

employees of other sister concerns. The Federation issued a letter to various

bodies and associations of Cine Artists, technicians and workers requiring them

to issue directions to their members not to report for shooting work at the studio

of the plaintiffs-the Filamaya pvt. Ltd. As a result their business came to a

standstill. The Plaintiffs, therefore, filed a suit requesting the civil court to grant

injunction restrining the Trade Union from carrying on such activities. A

number of remedies were claimed by the plaintiffs.

It was held by the High Court in appeal that a trade dispute existed and the trial

court was wrong in coming to the conclusion that there was no existing trade

dispute. Further, issuing directions to its own members not to co-operate with

the employer, no intimidation or coercion is caused which will result in denying

them freedom of choice by any unlawful and violent means. What acts of a

trade union are protected under section 18 depends on the facts of each case. It

was further held that the acts of a trade union such as using abusive language

towards the employers, their staff and visitors are subject to other laws of the

25
(1981) II LLJ 393

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land. A trade union is entitled to carry out its legitimate trade union activities

peacefully and, therefore, per se, slogan shoutings or demonstrations cannot be

termed as unlawful and a blanket injunction cannot be granted.

It was held in Ahmedabad Textile Research Association v. A.T.I.R.A.

Emplyees Union and othrs,26 that dharnas and demonstrations, though they

may cause inconvenience to the management, are permissible even inside the

industrial establishment within the working hours so long as they do not turn

out to be unlawful, tortuous or violent. Therefore they cannot be curbed by

orders of Civil Court and they would be covered by section 18 of the Act.

In Standard Chartered Bank v. Hindustan Engineering and General Mazdoor

Union and othrs,27 the High Court decreed a suit of the bank by restraining the

defendant union from holding demonstrations etc. within a radius of 100 metres

from the suit property i.e, Bank building. It further observed that the freedom of

speech and right to form association granted by the constitution did not confer a

right to hold meetings and shout slogans at premises, legally occupied by

another. As for the immunity of Trade Union under section 18 of the Trade

union Act, 1926 in respect of act done in furtherance of trade dispute is

26
(1994) II L.L.J. 912 (Guj.)
27
(2001) I L.L.J. 1009 (Del.)

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concerned, it is protected only by allowing demonstrations at a distance of 50 or

100 metres of premises.

In the case of West India Steel Co. Ltd. v. Azeez28, it was held that Immunity to

a trade union leader (such as the President) is not available when he is

discharged after holding an enquiry into his misconduct.

In the case of U.P. Rajya Setu Nigam Sanyukt Karmachari Sangh v. U.P.

State Bridge Corporation29, it was held that The Act has not provided that

period of illegal strike would be treated as period of unauthorised absence or

relationship of “employer and employee” would cease.

In Dalmia Cement Ltd. v. Naraindas Anandji Bechar30, it was held that

Section 18 of the Trade Unions Act did not excuse trespass into another's

property. Lobo J. said:--

"It does not appear to me in the first instance that Section 18 of Act 16 of 1926

is any bar to the present suit. If the section is carefully read and if the object of

the Legislature is carefully considered it will be clear that whereas ordinarily a

person is liable in tort if he deliberately brings about a breach of contract of

28
1990 LLR 142 (Ker).
29
2000 LLR 151 (All).
30
AIR 1939 Sind 256

23 | P a g e
employment between employer and employee, the section provides that a

registered trade union or an officer or member thereof is protected from a suit

or a legal proceeding if he induces some person to break a contract of

employment or interferes with the trade business or employment of some other

person, in contemplation or furtherance of a trade dispute etc The important

and significant words in the section are "on the ground only"

The section does not afford immunity to a trade union or to an officer thereof

for an act of deliberate trespass" The word 'strike' has been defined in the

Industrial Disputes Act 1947 in the following manner :--

"Section 2(q) -- "Strike means a cessation of work by a body or persons

employed in any industry acting in combination, or a concerted refusal under a

common under- standing, of any number of persons who are or have been so

employed to continue to work or to accept employment".

A Strike which is lawful is a recognised instrument in the hands of labour,

which aids them in any concerted movement to improve their position vis-a-vis

the management. Mere absence from work does not amount to a strike. There

should be evidence to show that the absence was the result of some concert

between the workmen, that they would not continue to work. Strike, when it is

lawful is a legitimate weapon in the hands of worker. A gherao may or may not

amount to a strike, but when accompanied by violence or the commission of any

offence, can never be lawful.

24 | P a g e
 RECENT CASES

M/S.Avtec Limited vs The Superintendent Of Police31

In this case, the writ petitioner had moved the civil Court and after hearing both
the parties, the civil Court had come to the conclusion that prima facie the writ
petitioner is entitled for an order of injunction preventing the 4th respondent and
its members from involving in violent activities or gathering in large numbers,
preventing the workers, who are willing to work either to enter into or to come
out of the premises or preventing the writ petitioner from allowing the materials
to be taken out and taken inside the premises and such injunction has been
granted against the 4th respondent upto 100 meters and as the said order of
injunction is in force, it is not open to the 4th respondent and its members to
violate the said order in the guise of immunity under the Trade Unions
Act,1926.

In view of the above settled position of law, I do not think that the facts of this
case will be covered under Section 18 of the Trade Unions Act,1926. Section
18(1) of the Trade Unions Act,1926 certainly prohibits the employer from
breaking the contract of employment and it gives immunity to an office bearer
in respect of the act done by him. When the employer attempts to divide the
striking workers, which is lawful, it is certainly open to the 4th respondent
Union and its members to approach the Inspector of Factories or raise an
industrial dispute by treating the same as unfair labour practice, etc. and the
immunity granted under Section 18(1) of the Act cannot mean to say that the
Union must be permitted to achieve its object by resorting to the method which
are not permitted in law.

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W.P.No.36345 of 2007

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In view of the above said facts and legal position, I am of the considered view
that the writ petitioner must be granted police protection in the light of the order
of injunction granted on 09.06.2007 in I.A.No.100 of 2007 in O.S.No.54 of
2007, which was made absolute on 21.11.2007, to perform its legal obligations,
but at the same time, with liberty to the 4th respondent Union to approach the
appropriate forum for redressal of its grievance regarding the alleged
employment of trainees/apprentices on regular basis by the writ petitioner. In
view of the same, the writ petition stands ordered on the above terms.

M/S. Orchid Chemicals &Amp vs B.Ramakoteswara Rao32

the respondents assembled at the main entrance of the company and started to
obstruct the ingress and egress of the loyal workers, foreign customers and
visitors of the company. They had also warned the officials that they would
obstruct the vehicle transport and apprehending that the respondents might
resort to their unlawful attempts the petitioner company filed the suit along with
the three I.As for the interim reliefs as stated above.

3. Though the learned District Munsif, Madurantgam initially granted ex parte

interim orders in the I.As.,but vacated the same and dismissed the three I.As.,
on a consideration of the avermetns of both parties and after conducting an
enquiry on the following grounds:

(i) There is no evidence or any materials to show that an illegal strike was
conducted on 20.1.2006;

(ii) The transfer of important functionaries of the 17th Respondent-Union to the

Units not related to Drug manufacturing is an vindictive action of the petitioner-

32
CRP (PD) Nos.1036 to 1038 of 2007

26 | P a g e
company which is contravention of immunity provided under Section 18 of the
Trade Unions Act, 1926;

(iii)There is no evidence to show that the respondents had in fact prevented the
petitioner's employees or vehicles from moving in and out of the premises and
on mere apprehension the relief cannot be granted.

But a perusal of the order would show that the trial court under the guise of
equity, establishment of prima facie case, and existence of balance of
convenience has gone to the extent of deciding whether there was a legal or
illegal strike, whether the activities of the respondents are immuned under
Section 18 of the Trade Union Act an thus took the role of the Presiding Officer
of an Industrial Tribunal.

The workers may resort to peaceful picketing i.e., the marching to and from
before the premises of an establishment. They may be accompanied by the
carrying and display of sign boards, placards or banners bearing statements in
connection with the dispute. They may also request politely the employees not
to assist in the running of the business and ask the customers not to patronise
that establishment. Such acts would constitute peaceful picketing and are
protected under Section 18. The demonstration may cause inconvenience and
embarrassment to the employer. It may be intended to bring pressure on the
management to concede to the workers' demands. But such demonstration is
protected so long as it is peaceful and does not turn violent.

The respondents and members of 17th respondent-Union are restrained to

assemble within 100 metres of the boundary of the factory premises of the
petitioner-company and raise slogans or obstruct the ingress and egress of the
vehicles carrying raw materials and finished products, staff bus and other
vehicles into factory premises, and obstruct the loyal workers, foreign
customers and other visitors from entering into the petitioner company and

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getting out of the same till the disposal of the suit or the conciliation
proceedings, whichever is earlier.

K.V.Mohammed Ashraf vs P.Sahadevan33

The unsuccessful plaintiff in a suit for recovery of money by way of damages is

the appellant. Plaintiff's case in brief was that he is the registered owner and
permit holder of stage carriage bus KLM 324 plying on the route Edavannapara
- Kozhikode. The defendants are some of the employees of the plaintiff's father
Sri.K.V.Alavikutty who is also a bus operator under the name and style
K.V.Brothers. On 27-8- 88 as usual the bus KLM 324 belonging to the plaintiff
was entrusted to the plaintiff's driver Beerankoya and conductor Saidalavi for
operation. Defendants unlawfully and unauthorisedly with the intention of
causing loss to the plaintiff stole the said bus from the possession of the above
driver and conductor and brought it to near the Mofussil Bus Stand, Calicut.
Knowing that the plaintiff filed petition under section 94 of the Criminal
Procedure Code before the Chief Judicial Magistrate Court, Calicut for
searching of the vehicle. As per the order in that petition issued by the Chief
Judicial Magistrate the Kasaba Police recovered the vehicle from the possession
of the defendants. The vehicle was thereafter entrusted with the plaintiff as per
the direction of the Court. Defendants have no right to take unlawful possession
of the vehicle. AS. N0. 2/95

The vehicle if operated in the said route would have fetched Rs.500/- per day
after meeting all the expenses. The bus was recovered on 4- 9-1988 and the
plaintiff made an attempt to operate the vehicle in the respective route. This was
obstructed by the defendants. So the plaintiff along with his father filed O.P.
No. 7139 of 1988 before the High Court for police protection. Plaintiff could
resume service only after the High Court's order was obtained. Under the above
circumstances plaintiff caused a lawyer notice to the defendants claiming

33
O R D E R 26/06/2008

28 | P a g e
damages since there was no favourable response to the lawyer notice the suit
has been instituted claiming recovery of Rs.37,000/- byway of damages due to
non-operation of the bus KLM. The defendants filed written statement
contending that the bus owned by the plaintiff and the bus owned by his father
Alavikutty are all managed by the plaintiff and his father jointly under the name
and style K.V.Brothers. At the alleged time of stealing of the bus there were
industrial disputes pending between his father and the defendants and also
between the plaintiff and the trade union in which the defendants are members.
Plaintiff denied employment to one A.Soman, who is the driver of bus KLM
324 by making false allegations against him. The defendants and Soman are
members of the same trade union. On 27-8-1988 the defendants did nothing to
bus No.KLM

The bus was lying idle at the Mofussil Bus Stand, Calicut following the strike
of workers. The petition before the C.J.M. Court was filed without any bona
fides. Driver Beerankoya and conductor Saidalavi mentioned in the plaint are
people who are in inimical terms with the members of the trade union to which
the defendants belong on political as well as personal grounds. The plaintiff
deliberately kept away from five conciliation meetings convened by the labour
authorities was only trying to create evidence for the industrial disputes against
the union by filing petition before the C.J.M. Court. Bus KLM 324 was never
recovered from the defendants as alleged in the plaint. Defendants have not
taken possession of bus KLM 324 from the custody of the plaintiff. The
allegations of obstruction caused by the defendants to the operation of the
service after 4-9-1988 is denied. The writ petition was disposed of 30-1-1989 by
the High Court with the direction to the authorities that police protection is to be
given to the petitioner only if they are employing their regular employees whose
names are shown in the pay rolls as pm 27-8-1988. Denial of employment to
regular employees was the grievance of the defendants and their union against
the plaintiff and his father. The suit is only to be dismissed with costs.

On the above pleadings the learned Sub Judge formulated the following three
issues.

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1. Whether the bus KLM324 was stolen by these defendants on 27-8-88 and
whether the operation of the bus in the route was stopped from 4-9-88 onwards
due to the obstruction caused by the defendants as alleged in the plaint?

2. Whether the defendants are liable to pay an amount of Rs.37,000/- by way of

damages for non-operation of the bus to the plaintiff as prayed for?

3. What is the proper order as to costs?

Thereafter additional issue as to whether the suit is maintainable was also

raised. At trial the evidence consisted of oral evidence of PW-1, PW-2 and Exts.
A1 to A9 on the side of the plaintiff. On the side of the defendants it consisted
of oral evidence of DW-1 alone. Appreciating the evidence the learned Sub
Judge found under issued No.1 that the bus KLM 324 was not stolen by the
defendants on 27-8- 88 and the operation of the bus in the route was not stopped
from 4- 9-1988 due to the obstruction caused by the defendants as alleged in the
plaint. Issue No.2 regarding the liability of the defendants to pay damages was
not answered in view of the findings on issue No.1.

Additional issue No.4 was considered in the context of section 18(1) of the
Trade Union Act and it was found that the suit is not maintainable in view of
that provision.

Sri.T.G.Rajendran, learned counsel for the appellant and Sri.Titus Mani, learned
counsel for the respondents addressed me. It was very extensive submissions
which were addressed by Sri.T.G.Rajendran who draw my attention to Exts.A1
certified copy of the petition filed before the C.J.M. Court, Ext.A2 seizure
mahazar in respect of the bus, report submitted by the A.S.I. before the C.J.M.
Court, Ext.A3 order of the Division Bench in the police protection case and also
to oral evidence addressed before the court below by Pws.1 and 2 and DW-1. It
cannot be said that the submissions of Mr.Rajendran assailing the correctness of
the finding entered by the court below on issue Nos.1 and 2 were without any
appeal. But at the same time I am of the view that it is a correct finding which
was entered by the learned Subordinate Judge on additional issue No.4. Section
18(1) of the Trade Unions Act 1926 which is quoted by the learned Subordinate

30 | P a g e
Judge in the judgment itself is a complete bar for suits and other legal
proceedings in any civil court against any registered trade union or any office
bearer or member of the trade union in respect of any act done in contemplation
or furtherance of a trade dispute to which a member of the trade union is a party
on the ground only that such act induces some other person to break a contract
of employment or that t is in interference with the trade, business or
employment of some other person or with the right of some other person to
dispose of his capital or of his labour as he wills. It is the definite case of the
defendant that they are members of a registered trade union. The evidence will
reveal that the alleged strike arose due to the denial of employment to a regular
employee and member of the said trade union by name Soman. PW-2 himself
submitted that after purchase of the bus the plaintiff has denied employment to
some of the old employees and appointed new ones. Of course the argument of
the plaintiff was that denial of employment and labour problem was regarding
the bus operated by father of the plaintiff under the name and style
K.V.Brothers and that the plaintiff is operating his business under the name and
style K.V.Transport and that in the plaintiff's bus there was no labour problem
and that defendants obstructed plying of bus by the plaintiff so that the labour
dispute between plaintiff's father and his employees will come to an end. It is in
evidence that the plaintiff has gone over to the labour officer at least five times.
The disputes certainly involves a registered trade union and its members. I do
not find any reason for varying the learned Subordinate Judge's finding that the
suit is not maintainable. The finding of the court below on additional issue No.4
is confirmed. The appeal is dismissed on that reason without examining the
merits of the findings entered by the court below on the other issues, since the
same is unnecessary.

Appeal is dismissed, but in the circumstances without any order as to costs.

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 BIBLIOGRAPHY

K.D. Srivastava: Law relating to TRADE UNIONS and UNFAIR

LABOUR PRACTICES, 3rd edition, 1994, Eastern Book Company,

Lucknow.

S.N. Mishra: Labour and Industrial Laws, 26th edition, 2011, Central

Law Publications, Allahabad.

Avtar Singh: Introduction to Labour And Industrial Law, 2nd edition,

2008, Lexis Nexis Butterworths Publication, Nagpur.

www.indiankanoon.com

www.lawnotes.com

www.lawyersclub.com

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A PROJECT ON

Trade Unions - Criminal and Civil Liability

SUBMITTED TO

Prof (Dr) Nuzhat Parveen Khan

BY: AQUIB JAWED

POST GRADUATE DIPLOMA (LABOUR LAW)

PAPER II

33 | P a g e
 ACKNOWLEDGEMENT

I, would like to express my gratitude to our teacher, Dr.

Nuzhat Parveen Khan and Anil Kumar Kapoor for
making the subject so easy and understandable to us that
has helped me to put my best efforts to the assignment.

Thank you

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