Navigating the Civil and Criminal Immunities of Trade Unions in India

Introduction – Trade Unions in India

Immunity of the Trade Union from civil and criminal liability constitutes an important right without which any Trade Union activity in the proper sense is not possible. The main object of the union is to facilitate the working conditions of its members. To realise this objective, the union office bearers are authorised to represent workers in any dispute with their employers.

Interference by the union with the business of the employer often takes place, which may lead to strikes, and this may cause financial injury to the employer.  In India, until the Trade Unions Act of 1926 was passed, such interferences by the Union were held to be illegal conspiracies, and employers were awarded damages. The Trade Unions Act, 1926 granted to Trade Unions, office bearers and members, certain privileges and immunities to carry out the legitimate trade union activities without fear of civil or criminal action in the court of law.

Immunity from Civil Liability

Section 18 of the Trade Unions Act, 1926, provides immunity from civil suits to the registered trade unions and their members for certain actions taken in contemplation or furtherance of a trade dispute. Specifically, it protects unions from being sued for inducing a breach of contract or interfering with someone’s business, trade, or employment, as long as the actions are related to a trade dispute and the union member is a party to that dispute.

1. Scope of Immunity:
   • As per Section 18(1), the immunity has been extended to the Union for acts done by office bearers and members of the Union only if done “in contemplation or furtherance of a trade dispute”. This means that actions undertaken with the genuine aim of advancing the general interest of the working class, who are legally permitted to organize themselves into Trade Unions, are protected.    
   • The inducement, procurement, or interference must be by lawful means and not by means which would be illegal or wrongful under other provisions of law, as provided under the case of R.B.I. v Ashis Kusum (1969) 73 Cal WN 388.
   • If the acts done in furtherance of a trade dispute involve any violence, etc., then the immunity will no longer be available.
   • The immunity does not extend to libel actions such as defamation.
   • The immunity is limited to breach of contract of employment and not to other kinds of contracts.
2. Vicarious Liability:
   • Sec 18(2) of the Trade Union Act 1926 protects the Union from vicarious liability for tortious acts done in contemplation or furtherance of a trade dispute by an agent of the Trade Union without the knowledge or contrary to the express instructions given by the executive of the Trade Union.
   • The acts done must be in contemplation or furtherance of a trade dispute, and protection from vicarious liability of the Trade Union under the provision. The act of trade dispute by the agent is envisaged under Section 18(2). This Section is intended to protect the Trade Union from any such act. However, it must be proved that the agent acted either without the knowledge of or contrary to any instructions given by the executive of the Trade Union.
3. Actions Covered Under the Civil Liabilities
   • Peaceful Picketing: The acts of peaceful picketing are protected under Section. 18. Picketing has been described as the act of patrolling to and from the premises of an establishment involved in a dispute, by workers to draw the attention of the public and display a sign or banner, etc. Picketing may be accompanied by persuasion to the customers and workers not to patronize that establishment. The methods of persuasion are limited to oral and visual methods [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 general or wrongful confinement of officers of the managerial staff or other members of the public in premises of that establishment will be unlawful.
   • Strikes: In the case of P. Mukundan v Mohan Kandy Pawithran (1992 Ker.), it was held that a strike per se is not an actionable wrong. Further, it was held that the trade union, its officers, and its members are immune from legal proceedings linked with the strike of workmen by the provisions of Sec 18.

Case Analysis: Rohtas Industries Staff Union v. State of Bihar (AIR 1953 Pat 170)

In the case of Rohtas Industries Staff Union v State of Bihar (AIR 1953 Pat 170), the question before the Patna High Court was whether the employers have any right to claim damages against the employees participating in an illegal strike and thereby causing loss to production and business. In this case, consequent to non-payment of bonus and failure to implement an existing award, the workers were struck. Later, they withdrew the strike on the agreement to refer the matter for arbitration. The arbitrators inter alia awarded that the strike was illegal, and so the union would not get immunity under Section 18 of the Trade Unions Act, and the company was entitled to compensation. The High Court, however, set aside the award. Read our article: The Registrar of Trade Unions: Powers, Duties, and Judicial Oversight.

Key Principles from the Rohtas Industries Case:

• Conspiracy as Tort: A combination becomes an actionable tort if its real purpose was to inflict damage, as distinguished from serving the bona fide and legitimate interest of those who combine. If the object was to improve wage prospects, it would not be actionable even if it affects the employer’s interest.
• Right to Strike and Collective Bargaining: The right of workmen to strike is an essential element in collective bargaining. This right is not absolute and is qualified by legal limitations, just as employers’ rights are conditioned by the right of employees to give or withhold their services.
• Dominant Motive/Purpose: In cases of “mixed motive” for conspiracy, the test is the dominant motive/purpose of the combination. The focus is on the object in the minds of the workmen when they acted, rather than the natural result or damage to the employer. If the dominant purpose is the promotion of the legitimate interest of the Trade Unions for better wage conditions, it is not tortious.
• Legality of Strike and Immunity: Even if a strike is illegal under Section 24 of the Industrial Disputes Act, 1947, workers are still entitled to immunity under Section 18 of the Trade Unions Act, 1926. The legality or illegality of the strike has no bearing on the question of immunity furnished under Section 18. Peaceful worker demonstrations are protected.
• Exclusive Remedy for Illegal Strikes: The High Court emphasized that duties imposed by Sections 22, 23, and 24 of the Industrial Disputes Act are statutory duties owed to the public, not to employers. A breach of these duties, such as an illegal strike, can only be enforced by criminal prosecution under Section 26(1) of the Act, and employers have no right to civil action for damages.

In Rohtas Industries v Its Union (AIR 1976 SC 425), the Apex Court held that the remedy for an illegal strike has to be sought exclusively in Sec. 26 of the Industrial Disputes Act, 1947. The workers are entitled to the protection of Sec. 18 of the Trade Unions Act even if the strike is illegal under Sec. 24(1) of the I.D. Act. The workers’ demonstrations are protected as long as they are peaceful and do not turn violent. The decision of the Patna High Court was upheld by the Supreme Court.

The Court said that in the instant case, the workers could not be asked to make good the loss suffered by the employer because of the illegal strike. Although the strike was illegal, the object of the strike was “inter-union rivalry” and not to inflict damage and destruction on the employers.

Immunity from Criminal Liability – Trade Unions in India

Section 17 of the Trade Unions Act grants a specific and partial immunity from criminal liability. Section 17 states that “No member or officer of a registered Trade Union shall be liable to punishment under sub-section (2) of Sec. 120B, IPC, 1860 in respect of furthering any agreement entered into between the members specified in Sec. 15, unless the agreement object of the Trade Union is to commit an offence”.

1. Scope and Limitations of Immunity
   • Base of The Immunity: The immunities provided under the Act primarily apply to agreements between members to further the objects of the Trade Union as enumerated in Section 15 of the Act. Hence, an agreement between the members of a registered Trade Union to promote any of those objects will not be attracted by any offence, and they cannot be prosecuted for the same.
   • Partial Immunity: The immunities provided are partial since they do not extend to agreements whose object is to commit an actual offence. For example, an agreement to commit assault or other offences against the management would not be protected by Section 17, as it constitutes an agreement to commit an offence, not to promote legitimate trade union objects.
   • Protection of Lawful Acts: Section 17 is crucial for enabling trade union activities, without officers or members being exposed to criminal liability for actions like exhorting strikes to address worker grievances. It is based on similar provisions in English law, recognizing that inducing a breach of contract without threat or violence is not actionable if done in contemplation or furtherance of a trade dispute.
   • No Immunity for Criminal Offenses: While trade unions have the right to declare strikes and persuade members to abstain from work, this does not grant immunity from criminal offenses. Peaceful strikes and gatherings are permitted, but acts involving unlawful confinement, criminal trespass, criminal force, criminal assault, or mischief to person or property are not exempted from liability as held in the case of  R.S. Ruikar v Emperor AIR 1935 Nag 149.
   • Slogan Shouting vs. Abusive Language: Slogan shouting is generally permitted, but using abusive language towards employers, staff, and visitors is subject to other laws, as held in the case of Western India Cine Employees v Filmalaya Pvt. Ltd. (1981 II LLJ 393).
   • Illegal Strikes under Special Laws: If a registered Trade Union engages in an illegal strike under the Industrial Disputes Act, 1947, there is no immunity from the offense of criminal conspiracy. This is because an illegal strike is punishable under Section 26 of the Industrial Disputes Act, which is a special law. Bharatiya Nyaya Sanhita defines an “offence” to include acts punishable under any special or local law. Thus, immunity from criminal liability is limited to legal and peaceful strikes.
2. Actions Not Covered by Immunity
   • Obstructing Managerial Powers: Trade union leaders cannot order or dictate to workmen about how they should perform their duties or obstruct the work of an establishment. They have no immunity against disobeying lawful orders as held in the case of West India Steel Co. Ltd. v Azeez (1990).
   • Gherao: The practice of “Gherao” (wrongful confinement of persons) is not approved as a legal means for workers to redress grievances. Such acts constitute offenses under Section 127 of BNS and are not saved by Section 17 of the Trade Unions Act, as held in the case of Jay Engineering Works Ltd. v State of West Bengal (AIR 1968 Cal 407).

Case Analysis: R.S. Ruikar v. Emperor (AIR 1935 Nag 149)

This case clarified that while trade unions are not civilly liable for acts or criminally liable for conspiracy in furtherance of acts permitted by the Trade Unions Act, there is no immunity from any criminal offenses themselves.

In this case, the applicant R.S. Ruikar (President of Nagpur Textile Union) was convicted of the abetment of the offence under Sec 7, Criminal Law (Amendment) Act, 1932. The accused Union called for a strike of textile workers in Nagpur on the ground that certain terms of the settlement had not been honoured by the Empress Mills in Nagpur. Initially, the strike was unsuccessful; thus, the Union decided on picketing. The President of the Union made speeches asking the workers to do picketing, during which two women picketers were harassed by the police and driven away. At this, the applicant brought his wife to one of the mill gates and posted her there with instructions to beat, with her slippers, anyone who interfered with her.

The applicant was arrested, prosecuted, and convicted for abetment of picketing under Sec 7, Criminal Law (Amendment) Act, 1932. The principal contention on behalf of the applicant is that, on the facts found against him, no offence has been committed as Sec. 7, Criminal Law (Amendment) Act, 1932 can have no application to purely industrial disputes. It is contended that the valuable right given to Trade Unions to declare a strike and their immunity from liability for criminal conspiracy or civil suits in connection with the furtherance of a strike is taken away if Sec. 7 is held to apply to trade disputes.

The court observed that Trade Unions have the right to declare a strike and to do certain acts in furtherance of trade disputes. They are not liable civilly for such acts or criminally for conspiracy in furtherance of such acts as the 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 Sec. 17 of the Trade Unions Act make them liable for criminal conspiracy. Sec. 7 of the Criminal Law (Amendment) Act was part of the criminal law of the land. An offence committed as defined in that section is an offence to which the concluding sentence of Sec. 17, Trade Unions Act, would apply as much as it would do to an agreement to commit murder.

The court thus held that the offence under Sec. 7 of the Criminal Law (Amendment) Act, 1932 which prohibits obstructing and use of violence or intimidations and loitering, etc. if done with intent to cause any person to abstain from doing, or to do any act which such person has a right to do or abstain from doing, is an offence mentioned in Sec. 17 of the Act. There is no immunity if the act falls within the scope of Sec. 7 of the above Act.

Conclusion – Trade Unions in India

The civil and criminal immunities granted to trade unions, their office bearers, and members under the Trade Unions Act, 1926, are fundamental to the effective functioning of collective bargaining and the protection of workers’ rights. Section 18 offers broad protection from civil liability for acts done in contemplation or furtherance of a trade dispute, including inducing breaches of employment contracts and interfering with trade, provided these acts are carried out by lawful means. Section 17 provides partial immunity from criminal conspiracy for agreements furthering the legitimate objects of a trade union.

However, these immunities are not absolute and do not prohibit any unlawful conduct. They do not shield individuals or unions from liability for violence, intimidation, defamation, or other criminal offenses. The balance between the right to organize and strike and the rights of employers and the public is consistently emphasized by the judiciary. While the legitimate trade union activities are protected, any actions that convert into criminal behavior or create a public nuisance will fall outside the ambit of these immunities, hence highlighting the need for responsible and lawful conduct in industrial relations.

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