Civil and Criminal Immunities1

In Buckinghum and Carnatic Mills, the employers were awarded damages and the unions were
held responsible for illegal conspiracies. Thereafter, Trade Unions Act, 1926 was enacted that
confers certain privileges and immunities to the members and office bearers of the registered
trade unions to enable them to carry out their legitimate trade union activities without any fear
or threat of civil or criminal action/liability.

Criminal Immunities

Section 17 of the Act provides immunity from Criminal liability. According to this provision,
the office bearers of the registered trade unions are immune from criminal liability for criminal
conspiracy.

No office bearer or member of a registered trade union will be liable for the criminal conspiracy
u/s 120B (2) of IPC, in respect to the legal agreements created by the members for the
furtherance of valid objects of a trade union as described u/s 15 of Trade Union Act, 2 except if
the arrangement is a consent to submit an offense. Registered unions have certain rights to do
in furtherance of their trade disputes such as calling for strike and for that purpose to persuade
their members to abstain from work to break employment terms. But the immunity cannot be
claimed for an act that is an offence.

The immunity is, however, available only:

a) to office-bearers and members of a registered trade unions;

b) for agreements which further any object as is specified u/s 15 of Trade Union Act; and
c) which are not agreements to commit offences.

Trade Union 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
nonemployment 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, illegal detention.

1
For cases, go through the Case Study Manual Series.
2
S. 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 immunity does not extend to an agreement to commit an offence and intimidation,
molestation or violence amounting to an offence. Peaceful strike or gathering is permitted. But
when it resorts to unlawful confinement of persons or criminal trespass or there is indulgence
in criminal force or criminal assault or mischief to persons or property, there is no exemption
from liability (R.S. Ruikar v. Emperor, AIR 1935 Nag. 149).

In R. S. Ruikar case (1935, Nag.) The accused who was President of a T. U. called for
volunteers to picketing. Two women was harassed by and driven by police. Then the applicant
brought her wife with instruction to beat anyone with slippers if anyone interfere with her.
Charges were framed for speeches on 3rd, 4th and 6th May 1934. The court held that “Trade
Union are not liable civilly or criminally for conspiracy in furtherance of such acts as trade
union permits but there in nothing in the act which allows immunity from any criminal
offences. There is no immunity if the act falls within the scope of Section 7 of Criminal Law
Amendment Act, 1932.

Standard Chartered Bank V. Chartered Bank Employees Union (1996) – Even assuming that
the defendant union is entitled to go on strike, it cannot exercise the said right so as to cause
nuisance to the employer. The rights provided does not allow to hold meeting and shout slogans
at premised legally occupied by another.

In West India Steel Company Ltd. v. Azeez 1990 Kerala – a trade union leader obstructed work
inside the factory for 5 hrs while protesting against the deputation of a workman to work
another section. It was held that while in a factory, the worker must submit to the instructions
given by his superiors. A trade union leader has no immunity against disobeying the orders. A
trade union leader or any worker does not have any right by law to share managerial
responsibilities. A trade union can espouse the cause of workers through legal ways but
officials of a trade union cannot direct other workers individually or in general about how to
do their work. They do not have the right to ask a worker to stop his work or otherwise obstruct
the work of the establishment. An employer may deal with a person causing obstruction in
work effectively.

The last of the limitations on the scope of the immunity granted by section 17 raises an issue
relating to the very nature of the immunity. Section 120-A of the IPC defines criminal
conspiracy to mean: (i) an agreement between two or more persons to commit an offence, i.e.,
in general,” an act which is punishable under IPC or any other law for the time being in force;
and (ii) an overt act done in pursuance of an agreement between two or more persons to do an
illegal act or to do a legal act by illegal means. IPC defines the word “illegal” to include, inter
alia, everything which is prohibited by law, or which furnishes ground for a civil action.

Since workman’s use of instruments of economic coercion in an industrial dispute involve

breach of contract and ‘frequently injury to the property right of the employer both of which
are actionable, use of the instruments of economic coercion amounts to an illegal act within the
meaning of section 120-A read with section 43 of IPC. However, section 18 of the Trade
Unions Act, inter alia. provides: 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 of his labour as he wills.

Thus, u/s 17 the breach of contract and injury to employers’ property right cease to be
actionable and. therefore, does not amount to criminal conspiracy” as defined in section 120-
A read with section 43 of IPC. A question, therefore, arises as, what is the criminal liability in
respect of which section 17 of Trade Unions Act grants immunity? In considering the matter it
is relevant to note that section 17 does not grant charter of liberty to commit an offence, which
is punishable with death, life imprisonment or rigorous imprisonment for a term of two years
or more. In fact, as the last words of the section 17 of the Trade Union Act, 1926 indicate that
it does not insulate agreement to commit any offence whatsoever. Perhaps the immunity is
confined to agreement between two or more persons to do or cause to be done, acts which are
prohibited by law but which neither amounts to an offence nor furnishes ground for civil action.

Breach of contract does give rise to a civil cause of action, therefore, under section 43 of IPC
an agreement to commit breach of contract through withdrawal of labour as an instrument of
economic coercion in an industrial dispute, is a criminal conspiracy. Further, so long as any
law declares withdrawal of labour in breach of contract to be an offence of a member of the
consenting party takes any step to encourage, abet, instigate, persuade, incite or in any manner
act in furtherance of the objective, the crime of criminal conspiracy would have been
committed. Finally, since criminal conspiracy is a substantive offence punishable under section
120-B of the Indian Penal Code it is doubtful if section 17 grants immunity at all.
The word “illegal” is applicable to everything which is an offence or which is prohibited by
law, or which furnishes ground for a civil action, and a person is said to be “legally’ bound to
do, whatever it is illegal for him to omit. Reading section 18 of the Trade Unions Act with
section 43 of the Indian Penal Code it would appear that withdrawal of labour as an instrument
of economic coercion in an industrial dispute in breach of contract is not illegal. Accordingly,
an agreement between two or more workmen, members of a registered trade union to withdraw
labour as an instrument of economic coercion in an industrial dispute is not an agreement “to
do or cause to be done an illegal act” and amounts to a criminal conspiracy within the meaning
of section 120-A of IPC. Accordingly, withdrawal of labour in breach of contract does not give
rise to a cause of action in civil courts.

The Calcutta High Court in Jay Engineering Works Ltd. v. Staff while interpreting the
provisions of section 17 of the Trade Unions Act, 1926 held that, no protection is available to
the members of a trade union for any agreement to commit an offence. When a group of
workers, large or small, combined to do an act for the purpose of one common aim or object it
must be held that there is an agreement among the workers to do the act and if the act committed
is an offence, it must similarly be held that there is an agreement to commit an offence.

If a registered Union goes on an illegal strike according to Industrial Dispute Act 1947, then
there is no immunity from the offence of criminal conspiracy because going on an illegal strike
is punishable under section 26 of the said act which is a special law. This is so because Section
40 of IPC defines an offence as an act punishable under the IPC or under any special or local
law. Thus, the immunity from criminal liability is limited only to the extent of going on legal
and peaceful strikes.

Civil Immunities

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 particular way in contemplation or furtherance of a
trade dispute. The act done by the trade unionists 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
Unions Act.

Section 18 provides immunity from civil liability in certain cases to a registered trade union or
its office bearers or members. They are immune from civil suits in certain cases, viz. contractual
liability, tortuous liability etc. Section 18 provides that no suit or other legal proceedings 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 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.

Analysis of this provision would show that no suit is maintainable for any act against — l.) any
Registered Trade Union or 2.) Any office bearer, or 3.) A member of Trade Union provided
such act has been done in contemplation or furtherance of a trade dispute and a member of the
Trade Union is a party to that trade dispute if the ground is only that (a) such act induces some
other person to break a contract of employments or (b) that it is interference with the trade,
business or employment of some other person or (c) that it is interference with the right of some
other person to dispose of his capital or his labour as he desires.

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 tortious act 'done in contemplation
or in furtherance of a trade dispute by an agent of the Trade Union if it is proved that such
person acted without the knowledge of, or contrary to express 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 pressurize the members or other persons to stop their work or to break a
contract or employment or service because they want better conditions of work which
ultimately takes the shape of 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 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.

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.

Section 18 (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 or furtherance of a trade
dispute by an agent of the trade union if it is proved that such person acted without the
knowledge of, or contrary to express instructions given by the executive of the trade
unions.

The above section does not afford immunity to the members or office bearers of a trade ‘union
for an act of deliberate trespass.? The immunity also cannot be availed of by them for unlawful
or tortuous act. Further such immunity is denied if they indulge in an illegal strike or gherao.
Moreover, the immunities enjoyed by the union do not impose any public duty on the part of
the union.

In general, a person is liable in torts for inducing another person to breach his contract of
employment or for interfering with the trade or business of another. However, a trade union,
its officers, and its members are immune from this liability provided that such an inducement
is in contemplation or furtherance of a trade dispute. Further, the inducement should be lawful.
There is no immunity against violence, threats, or any other illegal means.

P Mukundan and others v. Mohan Kandy Pavithran 1992 Kerala – strike per se is not an
actionable wrong. Trade union, its officers, and its members are immune against legal
proceedings linked with the strike of workmen.

Rohtas Industries Staff Union v. State of Bihar 1963 – SC – certain workmen went on an
illegal and unjustified strike at the instance of the union. A question arose whether the
employers have any right of civil action for damages against the strikers. The arbitrator held
that the workers who participated in an illegal and unjustified strike, were jointly and severely
liable to pay damages. On a writ petition the Patna High Court quashed the award of the
arbitrator and held that employers had no right of civil action for damages against the
employees participating in an illegal strike within the meaning of section 24 of the Industrial
Disputes Act, 1947. From this decision it is evident that section 18 grants civil immunity in
case of strike by the members of the trade union. On appeal, the Supreme Court affirmed the
judgment of the high court on the ground that the claim for compensation and the award thereof
in arbitration proceedings were invalid and such compensation for loss of business was not a
dispute or difference between the employers and the workmen which was connected with the
employment or non-employment or terms of employment or with the condition of labour of
any person.

The remedy which is available to the employer u/s 26(1) of I.D. Act in case of illegal strike
i.e., to report or initiate a criminal proceeding, hence, suit for damages is not maintainable.

The Supreme Court found itself not obliged to decide the question as to whether the Patna High
Court was right in relying on section 18 of the Act to rebuff the claim for compensation because
the learned judges In Jay Engineering Works v. Staff the Calcutta High Court was invited to
consider the question whether the protection under sections 17 and 18 of the Trade Unions Act
can be availed of where workers resort to gherao.

The net result of the decision set out above is that Sections 17 and 18 of the Trade Unions Act
grant certain exemptions 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. Members of a trade union may resort to a peaceful strike, that is to say, cessation
of work with the common object of enforcing their claims. Such strikes must be peaceful and
not violent and there is no exemption where an offence is committed. Therefore, a concerted
movement by workmen by gathering together either outside the industrial establishment or
inside within the working hours is permissible when it is peaceful and 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 person’s 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.
The Calcutta High Court once again in Reserve Bank of India v. Ashis held that in order to
secure immunity from civil liability under section 18 inducement or procurement in breach of
employment in furtherance of trade dispute must be by lawful means and not by means which
would be illegal or wrong under any other provisions of the law. The Madras High Court in Sri
Ram Vilas Service Ltd. v. Simpson Group Company Union held that it was not within the
purview of the high court to prevent or interfere with the legitimate rights of the labour to
pursue their agitation by means of a strike so long as it did not indulge in acts unlawful and
tortious.

In Indian Newspapers (Bom) Pvt. Ltd. v. T.M. Nagarajan the Delhi High Court held that when
there are allegations of violence made by the management in the plaint supported by documents
then prima facie a suit would be maintainable and the protection of section 18 of the Trade
Unions Act, 1926 would not be available. The fact whether any act of violence was committed
or not would be decided in the suit.

In Ahmedabad Textile Research Association v. ATIRA Employees Union, Gujarat High Court
held that it is not within the purview of the civil court to prevent or interfere with the legitimate
rights of the workmen to pursue their demands by means of strike or agitation or other lawful
activities so long as they do not indulge in acts unlawful, tortious and violent. The court further
held that any agitation by the workmen must be peaceful and not violent. Any concerned
movement by workmen to achieve their objectives is certainly permissible even inside the
industrial establishment.

The act of peaceful picketing is protected under section 18. Picketing has been described as
“the marching to and from before the premises of an establishment involved in a dispute
generally accompanied by the carrying and display of a sign or banner etc. Picketing may be
accompanied by a polite request asking workers not to assist in the running of that
establishment or customers not to patronise that establishment [D. Ganesh v. State AIR 1961
Bom. 459].

The picketing ceases to be peaceful, the moment it results in a private or public nuisance.
Intimidation or indulging in gherao or wrongful confinement of officers of the managerial staff
or other members of the public in premises of that establishment will be unlawful.

Any show or threat of violence, or any other unlawful threat likely to create fear in the mind of
a reasonable man will render picketing unlawful. Pickets cannot compel people to listen to
them. They cannot obstruct the passage of customers, goods, vehicles, etc. Thus, the right to
picket is closely limited by the equal right of others to go about their lawful affairs free from
obstruction, molestation or intimidation [Simpson & Group Co. Workers Union v. Amco
Batteries Ltd. 1992) 1 Lab LJ 266 (Kank.)].

Enforceability of agreements

Section 19 - In India, an agreement in restraint of trade is void as per section 25 of Indian

Contract Act. However, such an agreement between trade union members is neither void nor
voidable. It is important to note that this right is available only to registered trade unions. An
unregistered trade union must follow the principles of general contract law.