Labour law

project
MADE BY:
Shuja haider rizvi
B.A. L.L.B. (Hons.)
Vth semester

Immunity to trade
unions from
criminal and civil
LIABILITY

ACKNOWLEDGEMENT
At the outset, I would like to thank my Labour law teacher, Dr.
Nuzhat Parveen Khan, for being a guiding force throughout the
course of this submission and being instrumental in the
2

successful completion of this project report without which my

efforts would have been in vain.
I am thankful to the Librarians, Faculty of Law, Jamia Millia
Islamia for helping me in collecting the relevant material for my
project report.
I would like to extend my sincere thanks to my friends and
family for their constant review and honest remarks.

Table of cases
1. Ahmedabad Textile Research Association v. A.T.I.R.A. Employees Union and another, [(1994) II
L.L.J. 912 (Guj.)]
2. Corbett v. Canadian National Printing Trade Union, [(1943) 4 DLR 441]
3. Dr. P.H. Daniel v. Krishna Iyer, [(1982) II L.L.J. 353 (Ker.)]

4. Dlamia Cement Ltd. v. Naraindas Anandji Rechar, [AIR 1939 Sind 256]
5. Indian Bank v. Federation of Indian Bank Employees Union, [(1982) II L.L.J.123 (Mad.)
6. Indian Express Newspapers (Bombay) Pvt. Ltd. v. T.M. Nagarajan, [(1988) Lab IC 1067]
7. Jaya Engineering Works v. State of West Bengal, [AIR Cal 407]
8. Jenkinson v. Nield, [(1892) 1 TLR 540]
9. P. Mukundan and others v. Mohan Kandy Pavithran, [(1992) II L.L.J. 160 (Kerala)]
10. R.S. Ruikar v. Emperor, [AIR 1935 Nag 149]
11. Ram Chandra Tripathi v. U.P. Public Services Tribunal IV and other, [1994 SCC (L&S) 1044]
12. Ram Naresh Kumar v. State of West Bengal, [(1958) I L.L.J. 567]
13. Ram Singh and others v. M/S Ashoka Iron Foundary and others, [(1993) I L.L.J. 987 (P&H)
14. Ready Mixed Concrete (London) Ltd. v. Cox, [1972 Lab IC 229 (Ch D)]
15. Reserve bank of India v. Ashis Kusum, [(1969) 73 Cal. W.N. 388]
16. Rohtas Industries Staff Union v. State of Bihar, [AIR 1963 Pat 170]
17. Rookes v. Barnard, [1946 AC 1129]
18. Simpson and Group Companies Workers and Staff Union v. Amco Batteries Ltd., [(1992) I L.L.J.
266 (Karn.)]
19. Sorell v. Smith, [(1925) A.C. 712]
20. Sri Ram Vilas Service Ltd. and others v. Simpson and Group Companies Workers Union and
others, [(1979) II L.L.J. 284 (Mad.)
21. Standard Chartered Bank v. Hindustan Engineering and General Mazdoor Union and others,
[(2001) I L.L.J. 1009 (Del.)]
22. West India Steel Company Ltd. v. Aneez, [(1990) II L.L.J. 133 (Kerala)]
23. Western India Cine Employees v. Filmalaya Pvt.Ltd., [(1981) II L.L.J. 393]

INDEX
Topic
page no.
1. Introduction

2. Criminal Conspiracy in Trade Disputes

3. Scope of Criminal Conspiracy

15

4. Immunity from Civil Liability

21

5. Breach of Contract

31

6. Suits not barred by Section 18

33

7. Bibliography

35

Introduction
Sections 17 and 18 of the Trade Unions Act grant certain
exemption to members of a trade union. But there is no exemption against
either an agreement to commit an offence or intimidation, molestation or
violence, where they amount to an offence. Member of a trade union may

resort to a peaceful strike, that is to say, cessation to work with the

common object of enforcing their claims. A concerned movement by
workmen

by

gathering

together

either

outside

the

industrial

establishment or inside within the working hours is permissible, when it is

peaceful and does not violate the provisions of law but when such a
gathering is unlawful or commits an offence then the exemption is lost.
Thus, where it resorts to unlawful confinement of persons, criminal
trespass or where it becomes violent and indulges in criminal force or
criminal assault or mischief to person or property or molestation or
intimidation, the exemption can no longer be claimed. Neither Section 17
nor 18 of the Trade Unions Act exempts a workman, if he commits an
offence, which means an offence under the criminal laws of the country,
save and except the limited ground upon which he is exempted from
being charged with criminal conspiracy under Section 17. An agreement
to commit an offence has been expressly excluded from the purview of
Section 17.

Criminal conspiracy in trade disputes Section 17-No[office-bearer]1

or member of a registered Trade Union shall be liable to punishment under
sub-section (2) of Section 120-B of the Indian Penal Code (45 of 1860), in
6

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.

In West India Steel Company Ltd. v. Azeez1, a Trade Union

leader obstructed work in the factory for five hours protesting against
deputation of workman to work in another section. It was held that a
worker inside the factory is bound to obey the reasonable instructions
given by his superiors and carryout the duties assigned to him. The mere
fact that such worker is a Trade Union leader does not confer on him any
immunity in that regard. A trade union leader has no right in law to share
managerial powers and he cannot dictate any worker individually or to the
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 agitations for conducting their rights but
officials of Trade Union are not entitled to order a workman to stop his
work or otherwise obstruct the work of the establishment. Where officials
of a Trade Union obstruct the work the management is justified in
proceeding against such worker and deal with him effectively.

In this interesting case of Jaya Engineering Works v. State of

West Bengal2 on the point wherein the Special Bench has held that the
word gherao is a physical blockade of target, either by encirclement
intended to blockade the egress and ingress from and to a particular
office, workshop, factory or even residence or for civil occupation and that
the blockade may be complete or partial and is invariably accompanied by
wrongful

restraint,

and/or

wrongful

confinement

and

occasionally

accompanied by assault, criminal trespass, mischief to person and

property, unlawful assembly and various other criminal offences.
____________________________

1. (1990) II LLJ 133(Kerala)

2. AIR Cal 407

Some of the offences are cruel and inhuman, like confinement in a small
space without lights or fans or for long periods without food or
communication with the outside world. The persons confined are beaten,
humiliated by abuses and not allowed even in answer to call of nature and
subjected to various other forms of torture and are completely at the
mercy of the besiegers. The object is to compel those who control industry
to submit to the demands of the workers without recourse to the
machinery provided for by law and in want or disregard of it. In short, to
achieve their object, not by peaceful means but by violence. Such a
gherao invariably involves the commission of offences.

Section 17 of the Act confers immunity from liability in case

of criminal conspiracy under section 120-B of the Indian Penal Code
committed by an office 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, constitutes an offence. Registered Trade
Unions have certain rights to do in furtherance of their trade disputes,
such as to declare strike and for that purpose to persuade their members
to abstain from their work.

In R.S. Ruikar v. Emperor3, it was contended that there was a

definite conflict between Section 7, Criminal Law Amendment Act and the
Trade Unions Act of 1926. It was contended that the valuable right given
to trade unions to declare a strike and their immunity from liability for
criminal conspiracy or to civil suits in connection with the
_________________________
3. AIR 1935 Nag 149

furtherance of a strike was taken away if Section 7, Criminal Law

Amendment Act, was held to be applicable to trade disputes.

Rejecting these contentions, the Judicial Commissioner observed:

I am unable to see any conflict. Trade unions have the right to declare
strikes and to do certain acts in furtherance of trade disputes. They are
not liable civilly for such acts or criminally for conspiracy in the
furtherance of such acts as Trade Unions Act permits, but there is nothing
in that Act which apart from immunity from criminal conspiracy allows
immunity from any criminal offences. Indeed any agreement to commit
an offence would under Section 17, Trade Unions Act, make them liable
for criminal conspiracy. Section 7, Criminal Law Amendment Act, is part of
the Criminal Law of the land and an offence committed as defined in that
section is an offence to which the concluding sentence of Section 17,
Trade Unions Act, applies as much as it would do to an agreement to
commit murder...Section 7, Criminal Law Amendment Act defines a
criminal offence of universal application without restriction and it must be
interpreted according to its plain and obvious meaning, and as it defines a
criminal offence it is not in conflict with the provisions of the Trade Unions
Act, which remains impaired by Section 7, Criminal Law Amendment Act.

An agreement to do an illegal act is a criminal offence under

the criminal law. According to Indian Penal Code, when two or more
persons agree to do or cause to be done an illegal act or an act which is
not illegal by illegal means, such an agreement is known as criminal
conspiracy. S.17 gives protection to the office-bearers and members of a
registered trade union in respect of any agreement made between the
members for the purposes of furthering any such object of the trade union
on which its general funds may be spent. In such a case, no criminal
proceedings for conspiracy can be initiated against them unless the
agreement is an agreement to commit an offence. In other words, the
office-bearers or members of a registered trade union are given immunity
against criminal conspiracy in trade disputes where they agree to further
the objects of the trade union only but when they agree to commit an
offence, the immunity disappears. Such immunity is given to them under
sub-section (2) of section 120(b) of the Indian Penal Code, 1860.

The plaintiff Bank prayed for an interim injunction against the

defendants restraining them from holding any meeting or staging any
demonstration or resorting to any other similar form of irregular action
within the premises of the plaintiff Bank and within a radius of 50 metres
of the premises and obstructing any member of public or customer from
entering the premises, or officers, employees and servants of the bank to
attend to their normal duties and many other activities of the union such
as affixing posters, handbills etc. The court observed that it would not be
proper to infer that trade unions always indulge only in violent activities
and they do not hold peaceful demonstration. Trade Union activities can
be effected peacefully in an organised manner. Some limited forms of
peaceful demonstration even inside the premises of the factory or
institution are permissible. Therefore, the court held that the plaintiff
Bank would not be entitled to ask for an interim injunction pending
disposal of the suit, the plaintiff has a code of discipline and set of rules to
enforce orderly conduct. It is having necessary personnel for the purpose.
10

If they are incapable to maintain discipline in the institution and claim that
discipline among the Bank staff can be achieved only by an injunction. It
is misfortune to the public whose money was invested when Banks were
nationalised; in that its managerial personnel are not able to enforce
internal discipline and when not obeyed, they do not take stern measures
to punish the derelicts.4

In order to enforce their demands it may be necessary for the

workmen to resort to collective action against the employer. Such
collective action may take the form of strike or picketing at his shop or
factory with a view to see that his customers do not deal with him or that
some unemployed persons do not take the place of those who have joined
in the collective action and do not thereby minimise or nullify the effect of
the said collective ________________________
4.Indian Bank v. Federation of Indian Bank Employees Union, (1982) II L.L.J. 123 (Mad)

action. The nature of such collective action is such as would amount to

interference with thetrade or business of the employer or with the
employment of other workers. These acts, when done collectively, or in
combination by a number of workers would be a conspiracy at common
law. Provision has therefore, been made to give protection against
prosecutions for criminal conspiracies. An agreement to commit an
offence, like an assault on any of the officers in the employment of the
employer would not be saved though it may be in furtherance of a trade
dispute. Similarly, if threats or violence are used, no protection will be
afforded by the Act. It should also be noted that the protection does not
extend against an action for defamation.

To enforce their demands it may be necessary for the workmen to

resort to collective action against the employer. Such collective action
may take the form of strike, or picketing at his shop or factory with view to

11

see that his customers do not deal with him or that some unemployed
persons do not take the place of those who have joined in the collective
action and do not thereby minimise or nullify the effect of the said
collective action. The nature of such collective action is such as would
such amount to interference with the trade or business of the employer
or with the employment of other workers. These acts when done
collectively, or in combination by a number of workers would be a
conspiracy at common law. Provision has, therefore, been made to give
protection against prosecutions for criminal conspiracies. If a registered
union resorts to such an action in furtherance of a trade dispute, they
would be taken out of the scope of Section 120(b)(2) of the Indian Penal
Code which deals with conspiracy. An agreement to commit an offence,
like an assault on any of the officers in the employment of the employer
would not be saved, though it may be in furtherance of a trade dispute.
Similarly if threats or violence are used, no protection will be afforded by
the Act. It should also be noted that the protection does not extend
against an action for defamation.

In Dr. P.H. Daniel v. Krishna Iyer5, the question was whether a

trade union leader can claim immunity for defamatory statement. In this
case a trade union leader made a statement, per se defamatory in the
annual conference of the union, against the plaintiff in which Labour
Minister was also present. This speech was later published in full in the
journal of the Union circulated only among the members. The suit was
brought for damages for defamation. It was observed that leaders of the
trade union movement have a duty and legitimate interest to champion
the cause of their members. They have also a duty towards the society to
uphold truth and justice. Their duty towards the members or their interest
in furthering their cause must not be allowed to override their
12

fundamental duty to society not to destroy truth by deliberately

propagating falsehood. Subject to any such overriding consideration or
principle of law, it is in the interest of society at large that the trade
unions should function without any undue inhibition or restriction.
Freedom of communication between members is vital to every union.
Statements on privileged occasions, however, emotional or irrational they
ay be, however rash or illogical their conclusions may be will not be
evidence of malice so long as such statements, although defamatory, are
honestly made and with full faith in the truth of what is stated and in their
relevance to the claim of privilege. It was held that some of the principle
defences to an action for defamation, are justification i.e., words are true,
fair comments, absolute privilege, qualified privilege, etc. In this appeal
the court was concerned with qualified privilege. A statement made in the
discharge of a legal, social, or moral duty or for the protection, or in
furtherance of an interest to a person who has a corresponding duty or
interest to receive, it is protected by qualified privilege. However, such
protection is defeated if the plaintiff succeeds in providing express malice
on the part of the defendant when he published the words complained of.
The court found that in this case there was no express malice and there
was no evidence to suggest that the defendant did not believe in the truth
of what he has said. On the basis of these findings the appeal was
allowed.

It may be pointed out that when two or more persons agree

to do, or cause to be
__________________________
5. (1982) II L.L.J. 353 (Ker.)

done, an illegal act, or an act which is not illegal by illegal means, such an
agreement isdesignated a criminal conspiracy. Section 120-B(1)of the
Indian Penal Code provides that whoever is a party to a criminal
conspiracy to commit an offence punishable with death, imprisonment for
13

life or rigorous imprisonment for a term of two years or upwards, shall,

where no express provision is made in this Code for the punishment of
such a conspiracy, be punished in the same manner as if he had abetted
such offence and Section 120-B(2) provides that whoever is party to a
criminal conspiracy other than a criminal conspiracy to commit an offence
punishable as aforesaid shall be punished with imprisonment of either
description for a term not exceeding 6 months, or with fine, or with both.

Thus Section 120-A of the Indian Penal Code defines the

offence of criminal conspiracy while Section 120-B provides punishment
for such an offence. The Trade Unions Act, 1926, in its Section 17,
exempts office-bearers or members of the registered Trade Union from
liability for criminal conspiracy as contemplated under Section 120-B(2) of
the Indian Penal Code.

Conspiracy in English Law may be defined as an agreement of

two or more persons to do an unlawful act or to do a lawful act by
unlawful means, and the parties to such an offence of conspiracy are
liable to indictment. The gist of the offence lies in the bare engagement
and association to do an unlawful thing, i.e., a thing contrary to or
forbidden by law, whether such thing be criminal or not, and whether any
act other than the engagement or association be done by the conspirator,
or not.
Sorrell v. Smith6
The legal principles to be derived from the famous Trilogy
were formulated by Lord Cave, as follows:
(1) A combination of two or more persons wilfully to injure a man in his
trade is unlawful, ________________________
6. (1925) A.C. at p. 712

14

and, if it results in damage to him, is actionable;

(2) If the real purpose of the combination is not to injure another, but to
forward or defend the trade of those who enter into it, then no wrong is
committed and no action will lie, although damage to another ensues.
Jenkinson v. Nield7
A useful example of Lord Caves second proposition occurred
in an earlier case, in which a branch of the Master Tailors Association had
pledged themselves not to employ members of the Amal. Section of
Journeymen Tailors unit the latter should accept terms laid down by the
employers. To effect their purpose a black list, containing the name of the
plaintiff, was circulated among the members of the branch and the
plaintiff was refused work as a consequence. In an action against the
President of the branch (apparently on behalf of the members of the
branch) for conspiracy to injure, it was held that, since thelist itself was
not actionable there was no evidence that the members of the branch
were actuated by any other motive than that of self-interest, the action
failed.

To render the combination lawful within the second of Lord

Caves propositions, it is necessary that the protection or promotion of the
lawful interests of those combining should be their sole motive. If there is
more than one motive actuating them, liability must depend upon
ascertaining the predominant motive.

In Corbett v. Canadian National Printing Trade Union 8, the

union procured the dismissal of the plaintiff workmen who had renounced
their membership of the Union. It was held that, even assuming that there
was a motive of injuring the plaintiffs, the predominant motive was to
protect the Unions interests and those of its members, and its action was
therefore lawful.
15

__________________________
7. (1892) 1 TLR 540
8. (1943) 4 DLR 441

120-B. Punishment of criminal conspiracy-(1) Whoever is a party to a

criminal conspiracy to commit an offence punishable with death,
imprisonment for life or rigorous imprisonment for a term of two years or
upwards, shall, where no express provision is made in this Code for the
punishment of such a conspiracy, be punished in the same manner as if
he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal
conspiracy to commit an offence punishable as aforesaid shall be
punished with imprisonment of either description for a term not exceeding
six months, or with fine or with both.

Scope of criminal conspiracy

The offence of criminal conspiracy under Section 120-A is a
distinct offence introduced for the first time in 1913 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 long 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 a division performances 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 even
unknown to the others. 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
16

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.

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 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 a
conspiracy certain persons are induced to do an unlawful act without the
knowledge of the conspiracy or the plot they cannot be 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 into the agreement.

The parties to an agreement contemplated in Section 120-A

of I.P.C. will 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 three categories of illegal acts, the mere fact that
all of them should not be convicted separately in respect of each of the
17

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.

An agreement between parties to do an illegal act is itself

punishable even, though the illegal act pursuant to the agreement was
not performed.

The scope of criminal conspiracy is unfortunately ill-defined,

and it is in respect of the first of the classes mentioned below that it is
possible to state the law with complete certainity. Criminal conspiracy
may be divided under four heads, namely:
(1) Agreements to commit a crime;
(2) Agreements to commit certain torts;
(3) Agreements to obstruct or pervert the course of justice; and
(4) Agreements to do acts contrary to public morality or decency.

In the first class of conspiracy the agreement is to commit a

substantive crime, such as, for example, to take part in an illegal strike or
lock-out contrary to the National Arbitration Order, 1940, or to intimidate,
watch or be set or persistently follow contrary to Section 7 of the
Conspiracy and Protection of Property Act, 1875. In this class of cases the
protection from liability for criminal conspiracy afforded by Section 3 of
the 1875 Act to act done in combination in contemplation or furtherance
of a trade dispute is not, of course, available, since the act agreed upon is
itself a crime even when committed by one person.

18

In the second class of cases the statutory protection does

apply. This class comprises agreements to commit a tort, but it is unlikely
that it embraces all torts; it is probably limited to torts of a malicious or
fraudulent character involving some element of mens rea, and thus
excluding those committed in bona fide belief of right, e.g., trespass,
detenu or conversion. The class certainly includes conspiracies to cheat or
defraud, even though the act agreed upon is not criminal when done by
one person.

The third and fourth classes require no comments since these

are irrelevant in this context.

The above discussion shows that Trade Unions while taking

steps for protection of interests of their members are granted exemption
from liability for criminal conspiracies in English Law. In our country also
the immunity has been granted to them in respect of agreements made
between the members for the purpose of furthering any such object of the
Trade Union as is specified in Section 15 of the Trade Unions Act, 1926,
unless the agreement is an agreement to commit an offence.

It may be, thus, concluded that the members of the Trade

Unions may take appropriate action for conduct of any trade dispute but
they cannot agree to commit an offence for the conduct of their trade
disputes. Thus they cannot take part in illegal strikes, etc. Though they
have right to strike but the right is not absolute, it is subject to provisions
of Industrial Disputes Act, 1947, where it has been expressly provided that
a strike shall be illegal if it it commenced or declared in contravention of
Section 22 or Section 23 of the Industrial Disputes Act, or if it is continued
in contravention of an order made under Section 10(3) or sub-section(4-A)
of Section 10-A of the Industrial Disputes Act, 1947.
19

Although the restrictions are there but immunity granted under

Section 17 of the Trade Unions Act, 1926, is of significance importance for
the trade unionists, and by virtue of this provision the Trade Unions have
become lawful associations.

In Jaya Engineering Works v. State9, delivering the judgment

in a 5 judge Bench, B.N. Sinha, C.J. of the Calcutta High Court, with whom
the other judges concurred, observed:
Section 17 of the Indian Trade Unions 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
__________________________
9. AIR 1968 Cal 407(SB)

Disputes Act, 1906. With regard to this provision Lord Evershed in Rookes
v. Barnard10, says as follows:
My Lords, I am indeed conscious of the fact that the view upon the
supposed case entertained by Your Lordship appears to have the support
of no less an authority than that of Lord Loreburn 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 Conway v. Wade,
1906 AC 506. 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
20

of some other person to dispose of his capital or his labour as he wills,

there again there is perhaps a change. It is not 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 Unions Act, 1926 fall far short of the rights conferred by the English
Acts. The common characteristic however is that both inhibit violence,
intimidation and molestation.

In view of this provision no office-bearer or member of a

registered Trade Union shall be liable for criminal conspiracy in respect of
any agreement between the members for the purpose of furthering any
such object which are specifically mentioned in Section 15 of the Act on
which the general funds of the Trade Union may be lawfully spent. There is
only one restriction that the agreements to commit an offence are not
covered under the
__________________________
10. 1964 AC 1129

protection provided for in the Act. As discussed earlier, Section 15

contains objects on which general funds of the Trade Union may be spent,
for example, the conduct of trade disputes, compensation to members for
loss arising out of trade disputes, etc. The Trade Union may take
concerted action in order to accomplish these objects. The unions activity
may take different shapes in order to carry out the objects. For example,
the members of the Trade Union may assemble at one place to deliberate
or

resolve,

hold

meetings

and

conferences

and

pass

resolutions

expressing their views on matters of employment or non-employment or

terms of employment or conditions of labour, hold demonstrations and
strikes in support of their demands but they cannot indulge in violent and
illegal activities such as gherao.
21

Immunity from civil liability-Section 18-(1) 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
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
his labour as he wills.

22

(2) 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 of furtherance of a trade dispute by any 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.

Analysis of the Section

(1) This Section affords immunity from civil action to(i) registered trade union, or
(ii) any office bearer of the registered trade union, or
(iii) a member of the registered trade union
For any action done:
(i) in contemplation of a trade dispute to which a member of the
trade union is a party, or
(ii) in furtherance of a trade dispute to which a member of the
trade union is a party.
(2) The immunity is only for action made exclusively on the ground(i) that such act induces some other person to break a contract of
employment, or
(ii) that it is in interference with the(a) trade, or
(b) business, or
(c) employment of some other person, or
(d) rights of some other person to dispose of his property
as he wills, or

23

(e) right of some other person to dispose of his labour as

he wills.
(3) Further sub-section (2) of the section gives immunity to a registered
trade union in respect of any tortious act done by an agent of the trade
union in contemplation or furtherance of a trade dispute, 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.
(4) The immunity under the section is only to the registered trade union
and not to all unions.

In Ram Chandra Tripathi v. U.P. Public Services Tribunal IV and

others11, a non-stigmatic order of termination was passed against an
employee who was an office-bearer of a union and had allegedly raised
demands on behalf of the employees. It was held that the order of
termination cannot ipso facto be treated as punitive. The appellant had
poor service record and had suffered adverse entries. The order was
passed without any stigma and in accordance with the service rules,
therefore, it cannot be held to be illegal or invalid. However, keeping in
view his advanced age and difficulty in getting suitable employment
opportunity, while the impugned termination order is upheld the U.P. Jal
Nigam is directed to pay an ex gratia sum of Rs. 75,000/- to the appellant,
within a period of three months.

It may be pointed out that the Trade Union or member thereof

is not immune from civil liability in respect of any act which has not been
done in contemplation or furtherance of a trade dispute to which no
member of a trade union is a party if suit has been filed or other legal
proceeding is instituted on any other ground which is not
___________________________
11. 1994 SCC (L&S) 1044

24

specifically mentioned in Section 18(1) of the Act. But the grounds

mentioned in Section 18(1) are wide enough to cover union activities to a
great extent which may be done in contemplation or furtherance of a
trade dispute.

It has been further provided 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 in furtherance of a
trade dispute by an agent of the Trade Union if it is prove that such person
acted without the knowledge of, or contrary to express instructions given
by, the executive of the Trade Union.

It shows that immunity from civil liability has been afforded to

registered Trade Unions, their office-bearers and their members if the
union activities are done in contemplation or in furtherance of a trade
dispute to which a member of the Trade Union is a party. The Trade Unions
generally pressurise the members or other persons to stop their work or to
break a contract of employment or service because they want better
conditions of work which ultimately takes the shape of a trade dispute
between workmen and employers, on all these matters they resort to
strikes. They interfere with the right of other persons to dispose of their
capital or labour as they desire. Unless all the workers are stopped from
going to work, no employer can be compelled to revise the rates of wages
or provide better terms and conditions of work in industries. All these
activities may be actionable and the persons participating in these
activities may be held liable. But in all such events the Trade Unions have
been given protection under the provisions of Trade Unions Act.

The strike is the most important weapon in the armoury of

labour. The workers for the betterment of their working conditions resort
25

to strikes. These strikes are classified from the measure and degree of
withdrawal of services of work by the workmen in different categories.
Where the services are withdrawn totally but on particular times they are
known as alternate days strike, Sunday strikes, Running sore strikes.
Where services are withdrawn partially they are known as godown strikes,
tool-down strikes, folded-arms strikes, lie-down strikes, etc. Where strikes
remain on jobs but adopt irrigative methods, e.g., irrigation-strikes, pearlstrikes, etc. Sometimes, the workers go on quickie or lighting strikes. In
this strike the strikes first strike and bargain afterwards. This strike is
suddenly announced and then issues in the dispute are discussed.

It may be observed that if the workers resort to strikes in

contemplation or furtherance of a trade dispute to which a member of the
Trade Union is a party and their Trade Union is registered under the
provisions of the Trade Unions Act the protection is available. Even of the
strike is illegal under Section 24 of the Industrial Disputes Act, 1947, it is
possible for the members of a registered trade union to claim immunity
under Section 18 of the Trade Unions Act. However, it may pointed out
that in order to claim immunity under Section 18 of the Trade Unions Act,
1926, the following requirements must be fulfilled:
1. the Trade Union must be duly registered under the provisions of the
Trade Unions Act, 1926;
2. such act has been done in contemplation or furtherance of trade
dispute;
3. the member of the Trade Union is party to that trade dispute;
4. the claim of immunity must be made only on the ground which are
expressly mentioned in this section which are: (a) that such act induces
some other person to break a contract of employment, or (b) that it is
interference with the trade, business or employment of some other

26

person, or (c) that it is interference with the right of some other person to
dispose of his capital or of his labour as he wills.

It may be concluded that if above conditions are fulfilled the

immunity can be claimed and no suit or other legal proceeding shall be
maintainable in any Civil Court against any registered Trade Union as such
or any office-bearer such as President, Secretary, etc. or the members of
the Trade Union in respect of any act done in contemplation or furtherance
of trade dispute.
In Ram Singh and others v. M/s. Ashoka Iron Foundary and others 12, a suit
for perpetual injunction restraining the workmen from indulging in unfair
labour practice is deemed as one of civil nature and hence cognizable
under Section 9 of the 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.

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.13

The protection under the section is limited. It does not protect

where as a result of inducement a contract for the sale or purchase of
goods is broken, as it is obviously outside the ambit of the contracts of
employment. This section also does not save an action in Court, where
there is a threat of violence. In other words if as a result of inducement
the contract of employment is broken and there is not threat of violence, it
27

would be actionable. The Act does not, however, protect an individual

member from being sued, if he himself breaks the contract of
employment.

In section 18, immunity from civil liability is from suit or other

legal proceeding for any act on the ground only that such act induces
some other person to break a contract of employment or that it is in
interference with trade etc. A suit or legal proceeding on any other
ground is not within immunity provided in this section.

____________________________
12. (1993) I L.L.J. 987 (P & H)
13. P. Mukundan and others v. Mohan Kandy Pavithran, (1992) II L.L.J. 160 (Kerala)

The Trade Union activities not only amount to criminal

conspiracies in certain cases but they may amount to interference with
the business of the employer when the Trade Union or any office bearer or
members thereof act in a particular way in contemplation or furtherance
of trade dispute. The act done by the Trade Unionist induces some other
person to break a contract of employment, or it is 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. In
all such cases they may be held liable for damages under general law of
the land. But the immunity has been afforded to them in all such cases
under the provision of the Trade Union Act.

Rohtas Industries Staff Union v. State of Bihar14

In this case the question for demonstration 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:28

Upon consideration of the various provisions of the Act it is manifest the

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
imposes a statutory duty on the employees not to commence or declare
an illegal strike. But it is manifest that is there is a breach of this statutory
duty on 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
them is criminal prosecution under section 26(2) of the Act. For these
reasons I hold that duties imposed 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,
__________________________
14. A.I.R. 1963 Pat 170

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.

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, 1926 mainly because the strike is
illegal under section 24(1) of the Industrial Disputes Act, 1947. 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

29

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.

In Simpson & Group Companies Workers & Staff Union v.

Amco Batteries Ltd.15, it was held that physical interference or duress with
free movement of executives, contractors, staff, suppliers and other public
or 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 19 of the Constitution. Immunity under
Section 18 of the Trade Unions 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 persuation are limited to oral and visual methods and it
does not extend to physical obstruction of a vehicle or person.

The Trade Unions Act, 1926, in its section 18, 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
____________________________
15. (1992) I L.L.J. 266 (Karn.)

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

ground only that such act induces some other person to break a contract
of employment or that it is 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.

In order to secure immunity from civil liability under section 18

inducement or procurement of breaches of contract of employment in
30

furtherance of a trade dispute or interference with business of another

person in furtherance of a trade dispute must be by lawful means and not
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 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. 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.16

In Sri Ram Vilas Service Ltd. and others v. Simpson and Group
Companies Workers Union and others 17, 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 manufactured by the managements
or coming into custody of the management 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 would tantamount
to rendering the strike ineffective and to achieve that purpose the court
should not lend its hand.

___________________________
16. Reserve Bank of India v. Ashis Kusum, (1969) 73 Cal. W.N. 388
17. (1979) II L.L.J. 284 (Mad.)

In Western India Cine Employees v. Filmalaya Pvt. Ltd. 18, the

Union made various demands on behalf of 19 workers alleging that these
workers were in the employment of the Filmalaya Pvt. Ltd. and they were
shown as temporary employees of other sister concerns. The Federation
31

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 plaintiff- the
Filmalaya Pvt. Ltd. As a result their business came to a standstill. The
plaintiffs, therefore, filed a suit requesting the Civil Court to grant
injunction restraining 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, by 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. When 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 land. A
Trade Union is entitled to carry out its legitimate trade union activities
peacefully and, therefore, per se slogan shouting or demonstrations
cannot be termed as unlawful and a blanket injunction cannot be granted.

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.19
_____________________________
18. (1981) II L.L.J. 393
19. Ahmedabad Textile Research Association v. A.T.I.R.A. Employees Union and another, (1994) II L.L.J. 912 (Guj.)

32

In Standard Chartered Bank v. Hindustan Engineering and General

Mazdoor Union and others20, 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 Unions Act, 1926 in
respect of act done in furtherance of trade dispute is concerned, it is
protected only by allowing demonstrations at a distance of 50 or 100
metres of premises.

_____________________________
33

20. (2001) I L.L.J. 1009 (Del.)

Breach of contract
The breach of contract contemplated is the breach of contract of
employment. What amounts to the breach of contract of employment will
depend on the terms of contract express or implied. A strike without
required notice or in breach of the statutory provisions would be in breach
of contract.

In Ram Naresh Kumar v. State of W.B.21, rejecting the

contention that the strikes and lockouts, strikes in breach of contract
being forbidden during the pendency, inter alia, of proceedings before a
tribunal.....That the expression breach of contract in the section means
breach of contract of service or employment and not a special contract
not to go on strike is clear from the fact that while there must necessarily
be a contract of service, express or implied, between a workman and his
employer, a special contract not to go on strike does not constitute an
essential part of the contract between a workman and his employer, so
that a contract or service may exist without any such special contract. If,
therefore, the Legislature really sought to imply by the expression a
special contract not to go on strike, it could reasonably be expected to say
so in clear terms and the mere fact that it does not, would go to show that
the expression could not possibly have been intended to mean the breach
of any such special contract.

Contract of employment
In Ready Mixed Concrete(London) Ltd. v. Cox 22, the questions
were as to what was the ambit of the expression contract of employment
on the proper construction of Section 3 of the Trade Disputes Act, 1906,
and whether the same covered the contracts under consideration.
Answering these questions, Vice-Chancellor, John Pennycuick, observed:
34

__________________________
21. (1958) 1 LLJ 567
22. 1972 Lab IC 229 (Ch D)

The expression contract of employment, in its ordinary use in the

English language, denotes, it seems to me, a contract of service, an
expression which has always been understood to the law. I do not think
that upon its ordinary use, apart from some context which aids a wider
construction, the expression, contract of employment is at all apt to
denote a contract for services. That point, of itself, hardly permits of
elaboration, It was pointed out that the word employ and also the word
employment are habitually used in a wider sense than to denote
employment under a contract of service, as in many familiar instances I
do not doubt that is so. On the other hand, the expression contract of
employment is not, I think- according to the ordinary use of those words,
unaided by any enlarging context- apt to denote anything beyond a
contract of service.

35

Suits not barred by Section 18

(i) Suit for recovery of amounts due to ex-number- Certain amounts had
been received bya trade union from the employer towards gratuity and
accident benefit for the workers. Neither the trade union had drawn any
scheme for paying such amounts to the individual workers nor was there
any agreement between the union and its members that the said amount
would for part of its funds. In such circumstances, suit filed against the
President and the General Secretary of the trade union by a worker, after
resigning from the membership of the union, for rendition of an account of
the amounts so received and for refund of the amount due to him, was
held to be maintainable.
(ii) Suit to restrain violence- Making allegations of violence against striking
members of the trade union and placing on record documents in support
of such allegations, a company filed a suit to restrain them from picketing,
demonstrating and gheraoing other employees. It was held that such a
suit did not attract the bar of section 18.23
(iii) Suit against blocking ingress to and egress from the factory- In
pursuant to a charter of demands submitted to the respondent company
by the appellant union, the State Government had initiated conciliation
proceedings. However, during the pendency of the proceedings the
appellant union, with a view to pressurise the management to concede to
its charter of demands, resorted in various tactics including prevention of
free movement of men and material from and to the respondents factory.
The respondent company instituted a suit to prevent such activities on the
36

part of the workmen. Subsequently, it declared a lock-out due to the said

circumstances. The trial court passed an ad-interim order restraining the
members of the appellant union from interfering with the free movement
of men and material into and from the respondents factory and from
endangering the life of persons.24

____________________________
23. Indian Express Newspapers(Bombay) Pvt. Ltd. v. T.M. Nagarajan, 1988 Lab IC 1067
24. Simpson & Group Companies Workers and Staff Union v. Amco Batteries Ltd., [(1990) 2 Cur LR 832]

(iv) Suit against deliberate trespass- In Dlamia Cement Ltd. v. Naraindas

Anandji Rechar,25, it was held that Section 18 of the Trade Unions Act did
not excuse trespass into anothers property. Lobo, J., said:
It does not appear to me in the first instance that Section 18
of Act 10 of 1926 is any bar to the present suit. If the section is carefully
read and of the object of the Legislature is carefully considered it will be
clar that whereas ordinarily a person is liable in tort if he deliberately
brings about a breach of contract of 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 of some other
person, in contemplation or furtherance of a trade dispute etc. The
important and significance 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.

37

____________________________
25. AIR 1939 Sind 256

Bibliography
1. S.N. Mishra, Labour and Industrial Laws, 26th Edition, 2011, Central Law Publications
2. Avtar Singh, Introduction to Labour and Industrial Law, 2nd Edition, 2008, LexisNexis
Butterworths Wadhwa Publications
3. S.K. Puri, Labour and Industrial Laws, 9th Edition, 2005,

38