Article (August-2019)

Articles

Unions right to agitation

Deepanjan Dey

Designation : -   General Manager-HRM

Organization : -  Tata Steel BSL Ltd., Angul, Odisha

01-Aug-2019

161933 Total View        

In the sphere of Employer-Employee relations the workmen ever since from 19th century in England have sought to organize themselves as Trade Union so as to collectively bargain on equal terms in regard to their conditions of service. The reason for forming trade unions is to organize in groups so as to engage in collective bargaining with Employers. In doing so sometimes the union resorts to various types of agitation like strikes, picketing, gherao, slogan shouting etc. so as put pressure on the Employer to accept their demands. With passage of time various forms of agitation like strike has been recognized statutorily but the action of union can be legal and illegal depending upon the facts and circumstances of the case.

Immunity under section 18 & 19 :

Section 17 and 18 of the Trade Union Act provides immunity under certain cases to various activities of the Union. Now the difference between a legitimate Trade Union right and the right of the Employer to run its business peacefully is so thin it sometimes becomes difficult to put a balance between the two. The question therefore is what can be legitimate trade Union activities under Section 17 or 18 of said Act? Can all the activities of the Union get immunity under the pretext or mischief of the aforesaid sections? Section 17 and 18 of the Trade Union Act is reproduced herein below for better appreciation.

Section 17: Criminal conspiracy in trade disputes. - No office- bearer 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, in respect of any agreement made between the members for the purpose of furthering any such object of the Trade Union as is specified in section 15, unless the agreement is an agreement to commit an offence.

Section 18: Immunity from civil suit in certain cases. - (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 o 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.

(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 an agent of the Trade Union if it is proved that such person acted without the knowledge of, or contrary to express instructions given by, the executive of the Trade Union.

The question of immunity under section 18 of the Trade union Act was dealt in the case between Ahmedabad Textile Research Association vs. Atira Employees Union and Anr. ( 1995 (1) LLN 348; (1994) IILLJ 912 Guj) wherein the division bench of the Gujarat High Court held that as long as the holding of demonstrations or shouting of slogans, displaying of placards or holding of dharnas do not turn unlawful, tortuous or violent such trade union activities is permissible and  legitimate. However, while pronouncing its judgment the Court was also of the opinion that any activities with regard to causing damage to the property of and obstructing ingress into and egress from the plaintiffs' institution will be construed as unlawful and tortuous and could not be protected.

In deciding the extent of immunity available to a trade Union under the provision of section 18 of the Trade Union Act the Karnataka High Court in Simpson & Group Companies Workers and Staff Union vs. Amco Batteries Ltd. (1991 LLR 95 Karn HC; 1994 II LLN 147) ruled that till the action of the union are peaceful the union can enjoy immunity under the Act. It held that the conduct of the workmen in the instant case in blocking the passage of men and material of the plaintiff-Company does not enjoy immunity under Section 18 of the Trade Unions Act. It was also observed by the Court that under a lock out or strike situation the protection under section 18 does not get enlarged as the consideration and the principle are same under both the situations.

Is Gherao a legitimate trade union right?

Gherao has been a specific form of agitation in various trade union activities. Gherao as a form of agitation was rampant during the era of seventies and eighties. Is Gherao immune under the aforesaid sections of the Trade Union Act? The matter was discussed at length and its legitimacy was decided by the five Judges special bench of the Calcutta High in the case between Jay Engineering Works Ltd. vs. State Of West Bengal And Ors (AIR 1968 Cal 407).

While determining what is gherao the court examined the various section of 17 & 18 of the Trade Union Act, provisions of the Indian penal code which are cognizable offence such as criminal conspiracy under section 120 A, unlawful assembly under section 141, wrongful restraint under 339, wrongful confinement under section 340, assault under section 351, theft under Section 378, mischief under section 440. The Court inter-alia ruled that a gherao is not an offence under the Indian Penal Code but any wrongful confinement of person/s tantamount to offence and are guilty under Section 339  or 340  of the Indian Penal Code. Such gherao is not saved by section 17 of the Trade Union Act and are cognizable offences for which the participants are liable to be arrested without warrant.

Law on the right to hold demonstrations : 

Holding demonstration has been held as a legitimate activity of the trade Union in the case between Patel Oil Mills vs. Relaxo Rubber & Allied Industries Employees Union  2000 (85) FLR 7; (1999) (2) LLJ 894 Del; 1999 (95) FJR 434. On similar lines the Delhi High Court in a suit of injunction between the Delhi Stock Exchange Association vs. Delhi Stock Exchange Karamchari ( 2000 (86) FLR 705; (2000) II LLJ 436 Del) considered as to what constitute the legitimate trade union rights of a workmen. The Court inter- alia ruled that the "... law is thus clear that law has conferred and recognised as a legitimate right of the workmen to hold meeting, demonstration, assembly and even to go on strike as a means or weapon by way of collective bargaining in connection with the improvement of service conditions and other service related demands but peacefully and without any nuisance or inconvenience or obstruction to the management and others. When meetings, assemblies, demonstrations are held, speeches and slogans are shouted. This is intended to be addressed or to be heard by the management. If the workers and their union are not allowed to hold such meeting in the very vicinity of their place of work, the purpose of such meetings/protests/demonstrations would be a futile exercise as the speeches and slogans will not surely reach the management. This restriction on their right should not be unreasonable so as to render this right ineffective. They would not be debarred from holding meeting within a reasonable distance from the place of work or seat of management."

However, the Kerala High court in the case between Sreekumar vs. State of Kerala (1996 (1) LLJ 977; 1996 (74) FLR 1997; 1996 (3) LLN 334; 1996 (89) FJR 154; 1996 (2) CLR 154 (Ker HC) held that demonstration in front of shop or business establishment is not allowed as it interferes with the smooth conduct of the business and infringes upon the right to enjoy property and business of the other person. Accordingly, the court directed to remove the demonstration conducted in front of the shop to a distance of 25 metres from the main gate of the shop and in such a way not to affect the free ingress and egress to and from the shop. In Standard Chartered Bank vs. Chartered Bank Employees Union ((1996) II LLJ 52 Del; 1996 LLR 418) it was also held that the Union cannot have the demonstrations, dharnas or sticking of posters and tying of banners within the premises of their employer. They can have peaceful demonstrations out of the premises of the employer. In Ajmer District Forest Department Assistant Employees Union vs. State of Rajasthan, 2006 LLR 283 Raj HC, it was held that a trade union has no right to obstruct ingress or egress by staging demonstration as they have forum under the law for redressal of their grievances.

While summing up our aforesaid discussion on demonstration it may be appropriate to refer to the judgment of the Delhi High court in Vidya Sagar Institute Of Mental vs. Vidya Sagar Hospital Employees ((2006) I LLJ 781 Del) wherein the court after referring to the host of judgments delivered by Supreme Court and various High Court culled of the principle in regard to the law on the right to hold demonstrations by the Unions/employees for pressing their demand and inter- alia laid down the following ratio :

"1. Civil Court has the jurisdiction to entertain suit of this nature.

2. Immunity given to the Unions under Section 18 of the Trade Unions Act, 1926, does not extend to conduct those acts which may amount to offence.

3. Peaceful demonstration is a fundamental right of the Unions/employees.

4. ………Trade union has a right to pursue its trade union activities by peaceful methods. However, in exercise of such a right unions/employees cannot disrupt the functioning of the employer or obstruct willing workers from performing their duties. Further they cannot indulge in the acts of violence, physical assault, intimidation, threats etc.

5. There is no right of the unions/employees to hold demonstrations at the residence of the employer. This is specifically prohibited by the provisions of the Industrial Disputes Act and amounts to unfair labour practice on the part of the unions (See Schedule V Entry 6). Thus holding of any kind of demonstration even physical demonstration is per se prohibited at the residence of the employer.

6. Thus while it may be the right of the union to hold peaceful demonstration, such demonstrations cannot be allowed to become violent or intimidating in nature. The safety of those visitors who are visiting the employer's premises as well, as those willing workers, including their smooth ingress and egress is also to be ensured. This balance is to strike between the two competing and conflicting interests………."

Strike :

Strike is legally recognized by our industrial legislation. `Strike has been defined in section 2 (q) of the Industrial Disputes Act 1947. The trade union has a right to strike has been legally recognised. However, such rights of Trade Union to strike are not fundamental either as part of collective bargaining or otherwise and is restricted and controlled by the appropriate legislation. (Ref All India Bank Employees' Association vs. National Industrial Tribunal (Bank Disputes), Bombay (1962 AIR (SC) 171; 1961 (II) LLJ 385).

In B.R. Singh & Ors vs. Union of India & Ors (1990 AIR (SC) 1; 1989 (4) SCC 710; 1989 II LLJ 591) it was held by the apex Court that the right to strike is an important weapon in the armoury of the workers. Though not raised to the high pedestal of a fundamental right, it is recognised as a mode of redress for resolving the grievances of workers. But the right to strike is not absolute under our industrial jurisprudence and restrictions have been placed on it. These are to be found in sections 10(3), 10A(4A), 22 and 23 of the Industrial Disputes Act, 1947. Hence, the procedure as laid down in section 22 (for public utility service) or 23 of the Industrial Disputes Act is required to be complied with before the Union can resort to strike.

Conclusion :

From the above discussion we can conclude that section 17 & 18 of the Trade Union Act grant certain immunity but no immunity can be claimed under these sections for any activities of the union which constitutes or fall under the ambit of intimidation, molestation or violence. A peaceful strike is permissible after due compliance with section 22 and 23 of the ID Act but no exemption is allowed where violence is resorted to by the members of the Trade Union. Even a gathering inside or outside the industrial establishment is permissible when it is peaceful and does not violate the provisions of law. However, such exemption is lost and gathering becomes unlawful & criminal trespass when it resorts to unlawful confinement of persons, where agitation becomes violent and/or it interferes with the right of other stake holders of the industry or establishment.