CHAPTER 4

FREEDOM OF ASSOCIATION AND TRADE UNIONS

Kahn Fruend1 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 passed as a direct result of the case known as Taffvale case2, 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

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

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

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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.

4.1 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 was held in Kulkarnis3 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 Bombay4 the Supreme Court held that

the unions are classified as representative unions and qualified unions

3 Raja Kulkarni Vs State of Bombay (1954) SC 73

4 Ibid.

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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 (Bank Disputes), Bombay5; 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 Constitution6.

In Raghubar Dayal Jai Prakash v. Union of India7", wherein the S.C had to deal with a challenge raised against Section 6 of the Forward

5 AIR 1962 SC 17

6 Ibid.

7 AIR 1950 SC 263

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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 agent does not violate Article 19(1)(c)8.

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.

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

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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 file a writ petition under Article 2269.

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

In Tika Ramji Vs U.P10 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

9 H.M.Seervai, Constitutional Law of India, Vol.I (2007) Universal Publications, p.805.

10 Tika Ramji Vs U.P (1956) SCR 393

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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 the cane growers co-operative society11.

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 Tribunal12, 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

11 H.M.Seervai, Constitutional Law of India, Volume 1, Universal Law Pub (2007) p.806.

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

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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.

4.2 Freedom of association and government employees

In O.K Ghosh Vs E.X.Joseph13 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

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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.

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In P.Balakotaiah Vs Union of India14 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

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4.3 Right of Association and Armed Forces

In O.K.A. Nair v. Union of India15 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).

In Delhi Police Non-Gazetted Karmchari Sangh vs Union of India16, 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

15 AIR 1976 SC 1179

16 (1987) 1 SCC 115

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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.

4.4 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.

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The validity of the above Act was challenged in the case of State of Madras v. V.G. Rao17, 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 administrative censorship, and hence invalid18.

4.5 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

17 AIR (1952) SC 196

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

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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 employed as well as by the employers19".

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. An initial attempt to do this failed in 192720.

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

19 Freedom of Association and Collective bargaining, ILO Pub. Geneva (1994) p.2.

20 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.

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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

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obstacle to the exercise of trade union rights and that such acts require that severe measures be taken by the authorities21.

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 the principles of freedom of association22.

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 in full freedom and independence23.

The right to organize public meetings, including May Day processions or demonstrations in support of social and economic demands, constitutes an important aspect of trade union rights24. 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 constitute an infringement of trade union rights25. 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 disturbances26. While reasonable restrictions are acceptable, they should not result in breaches of fundamental civil liberties.

21 Digest, para. 76. CFA, 281st Report, Case No. 1273 (El Salvador), para. 279; 283rd Report. Case No. 1538 (Honduras), para. 254. 22 Digest, paras. 87-89. CFA, 279th Report, Case No. 1556 (Iraq) para.61; 281st Report Case No. 1593 (Central African Republic). Para 262.

23 283rd Report, Case No. 1590 (Lesotho), para. 346. 24 Digest, paras, 154-156. CFA, 283rd Report, Case No.1590 (Lesotho), para. 349. 25 Digest para. 163

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

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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 prejudges the question of the right of such officials to strike27. 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.

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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.

4.6 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

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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

Sidneyand 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 employee28.

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.

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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 discussions of questions relating to labour and social welfare29. 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 management and a school of communism30.

29 Soviet Labour Code. Article (5)

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

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4.7 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

(i) Any agreement between partners as to their own business

(ii) Any agreement between an employer and those employed by him as to such employment

(iii) 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

(a) workmen and employers, or

(b) workmen and workmen, or

(c) employers and employers.

Secondly, for imposing restrictive conditions on the conduct of any trade or business of its members.

The word impose connotes an agreement and not compulsion31. 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 trade or business32.

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

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

32 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 group consists of social and political objectives33.

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 industry34.

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.

4.8 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

(i) not less than one rupee per annum for rural workers,

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

(iii) 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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