1. RECOGNITION OF A TRADE UNION
Sangeetha Mugunthan♠
INTRODUCTION
The need for recognition of trade unions by employers was felt by the working
class to ensure that appropriate modes of collective bargaining took place and
that the agreements, which were collectively reached, were mutually observed. It
was considered that recognition of trade unions was a step towards securing
reasonable levels of pay and working conditions. This in turn will be achieved if
workers stood united in representing their demands through a trade union, which
is adequately recognised.
It was in the late 1990s that it was realised that trade unions have become
massive bureaucratic bodies with interests and agendas of those who comprise its
membership. However, there is a growing de
bate as to the extent to which they
represent and pursue the interests of their members. It is often argued that this is
slight and coincidental. Since, the prime focus of this paper is the recognition of a
trade union, the researcher will confine itself within this ambit and not delve into
this area.
There are elements in the discussion that we must think about. For
instance, the argument about whether it is acceptable to require a level of support
from among the whole of a workforce is an idea that has a history. Trade union
organisations are keen to get legislation that gives them the best chance of
winning votes for recognition. This might be a means through which they may
get back into the industries where their support has declined, mainly because
trade union membership never stopped anyone from losing a job when a
♠
IV Year, B.A. LL.B. (Hons), Hidayatullah National Law University, Raipur,
Chattisgarh.
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2. company was on the down turn. Trade union activism was often a factor that
meant an employee was picked out to be made redundant.
In reality, trade union recognition works as much in the interests of the
employer as it does in the interest of the worker. Where trade unions are
recognised, the whole system of negotiations and deals works within a pattern
that is acceptable to and often largely imposed by the employer. The recognition
of a trade union has several repercussions in defending people on disciplinary
charges, accompanying members in meetings with managers and negotiating local
conditions of service.
DEVELOPMENT OF TRADE UNIONISM
Background
Freedom of association has been the corner stone of democratic societies. The
freedom finds its expression in a democratic form of government 1. Trade
unionism has been a movement launched against the concentration of economic
power in the hands of a few individuals of society and for the purpose of
promoting the welfare of working class. The trade union movement is not
confined to the premises of one nation or country but it has widened to the
international field as well. It may be desirable to mention that besides trade
unions in specific countries, there is one international organisation of working
class known as International Labour Organisation (ILO) for promoting labour
welfare2.
History of the Trade Union Movement
1 V.L. Allen, Power in Trade Unions, (1954), pp.5-6.
2 C.W. Jenks, The International Protection of Trade Union Freedom , (1957), pp.37-38.
2

3. Modern trade unionism is a product of conditions created by the industrial
revolution. The industrial revolution in Great Britain and later on in other
countries brought about a sudden and drastic change in the economic sphere.
These changes were so sudden that it was difficult to bring about a complete
social, economic and political adjustment. The factory system of production
completely tore the relationship between the capitalist and the labour class
without replacing it with a new one. It subordinated the workers while at the
same time the powers of the masters were considerab ly increased3. The new
economic order that was created was a challenge, which workers sought to meet
through the formation of associations known as trade unions to defend their
living and working conditions.
The theory of free contract, based on free play of human will, did not
take into account the social or economic justice for economically weaker sections
of society. There was much emphasis on individualism, which resulted in free
enterprise. The attitude of non-interference by the state, which regarded industry
as a private competitive effort and on that ground granted it universal freedom,
resulting in formulation of the doctrine of laissez faire.
The movement of trade unionism, which came throughout the world as
the movement of organised labour in the form of combinations and collective
actions has been instrumental in generating the major basis of modern labour law
in the countries. Whether it be called ‘a counter revolution’ as seen by Anglo-
American thinkers4 or it is called ‘repudiation of the individualism of French
revolution’ or the ‘liberalism of the English utilitarian philosophy’ or it is termed
a ‘leader of revolutionary movement’ by communist and socialist thinkers, the
central theme of all trade unions in all the non-communist countries is one
significant object and that is of their desire to redress by combination or
collective action, the economic disparity in bargaining strength from which the
3 Mathur and Mathur, Trade Union Movement in India, pp. 1-2.
4 Alfred A. Knoff, A Philosophy of Labour, (1951), pp. 3-12..
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4. individual worker suffers as compared to the employer while settling his terms of
employment. To a large extent, the trade unions blend bargaining power to
remove the inequality in collective bargaining, which is vital for improvement of
economic conditions of labour.
Development of Trade Union Law in England
Industrial revolution had first emerged in England. It is therefore essential to
study the trade union development in England. In fact the introduction of
statutory wage fixing and the compulsory payment and acceptance of the rates so
fixed necessarily involved the prohibition of agreements or combinations, either
of workmen or employer, to alter wages or conditions of labour. From 1760
onwards, therefore, numerous statutes were passed prohibiting such
combinations under penalty, first as regards particular trades, and later generally.
Combinations in defiance of these statutes thus involved an agreement to
commit a statutory crime and were, therefore, criminal conspiracies. It is not until
the decay of the system in the eighteenth century, however, that prosecutions for
conspiracies to raise wages appear 5.
A long series of enactments of Parliament had made it a criminal offence
for workmen in particular trades to combine in order to change their wages and
conditions. The Combination Acts of 1799 and 1800 heralded a period of
ruthless repression of trade union activity6.
Francis Place, a tailor of Charing Cross and Joseph Hume, a radical
member of Parliament, managed to steer a bill to repeal the Combination Acts
through Parliament as a side issue, without the government fully realising what
5 See, R. vs. Journeyamen Tailors of Cambridge, (1721) 8 Mod. 10.
6 In 1810 some printers engaged on Times newspaper left their work as their
demand for increase in their wages as not met. The result was that they were
condemned to terms of imprisonment varying from nine months to two years
for ‘combining and conspiring together maliciously to injure their masters’.
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5. was contemplated; it became law without either a debate or a vote. The sponsors
of the Bill maintained that if freedom to combine were granted, the movement
would soon disappear. The result was, however, quite the contrary.
Encouraged by the repeal of t e Combination Laws, new unions were
h
formed and strikes broke out in many parts of the country. The government felt
alarmed and tried to replace the 1824 Act by a measure more drastic than the
Combination Acts. Ultimately there was a compromise and in 1825 another
enactment was passed which made it possible for the workers to organise without
committing an illegal act. There was however, hardly a thing that the unions
might do to carry out the purpose of their existence without coming into conflict
with the law. The legal vulnerability of the unions soon came apparent in a series
of prosecutions of trade unionists 7.
The period from 1850 onwards was a period of industrial expansion and
it gave the trade unions an opportunity to consolidate themselves on sounder
financial basis. The growing power and solidarity of the trade union movement
produced a reaction of alarm on the part of the governing groups and in 1867, a
Royal Commission was appointed to investigate into the organisation and rules
of the unions and to inquire into allegations of intimidation, which they were
accused of encouraging 8.
Between 1871 and 1876, a series of Trade Union enactments were passed
which in their total effect, provided that unions may no longer be declared
unlawful because their objects were in restraints of trade; and that they may
7 The most notable of these was the case of the Dorchester labourers in 1834, for
wholly peacefully attempts to build up a union of agricultural workers at Top
puddle, six workers were arrested and sentenced to seven years’ in exile in
Australia. This decision caused a great outburst of indignation.
8 The majority report of the said Commission made recommendations that fell
short of what the employers had been demanding, whereas the minority report
which was in effect acted upon, proposed giving the trade unions legal
protection to enable them to safeguard their funds, while leaving them in all
other respects voluntary organisations.
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6. engage in peaceful picketing in labour disputed. Although they might also acquire
a definite civil status by registration with the registrar of friendly societies, the
action was voluntary, and generally they were accorded a large measure of
freedom from legal proceedings in regard to their internal affairs. The period of
nearly 25 years that followed these enactments was not very eventful.
In 1901 came the decision of the House of Lords in the historical case of
Taff Vale Railway Company vs. Amalgamated Society of Railway Servants and it had the
result of undermining completely the position that it was thought had been
gained by the 1871-76 legislation. In that case the railway company had sued the
union of its employees for the losses to the company arising of their action in
supporting and financing a strike of its employees. The House of Lords ruled
that a civil action may be brought against the trade union and that it may be sued
for damages arising out of the actions of its officers or servants during a trade
dispute and be restrained by an injunction from authorising and committing any
action which might be held by the courts to be wrongful. As a result of this
decision no union, of whose members were involved in trade dispute may any
longer be regarded as safe from an action for damages that might completely
denude its funds, even those funds maintained for friendly society purposes. This
decision undermined in one stroke, the whole system of colective bargaining
l
upon which trade unionism depended and made the effective carrying out of the
main purpose for which trade unions were established impossible. The only
remedy was to get the law changed.
The awakening created by the Taff Vale decision considerably influenced
the general elections in 1906. So much so that a majority of the liberal members
of the Parliament returned were pledged to support labour’s demand for early
legislation to reverse the Taff decision. In 1906, the Trade Disputes Act came to
be enacted which fully recognised inducement to breach of contract and
picketing as legitimate adjuncts to the method of collective bargaining. To quote
Sydney and Beatrice Webb: ‘The Trade Disputes Act which remains the main
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7. charter of trade unionism, explicitly declares, without any qualification or
exception that no civil action will be entertained against a trade union in respect
of any wrongful act committed by or on behalf of the union; an extraordinary
and ultimate immunity, however great may be the damage caused, and however
unwarranted the act, which most lawyers, as well as employers, regard as nothing
less than monstrous’.
History of the Trade Union Movement in India
The first cotton mill in India was established in 1951 in Bombay and the first jute
mill in 1855 in Bengal. This was the beginning of the modern factory system in
India. After 1851 and 1855, the number of factories began to increase both in
Bombay and Bengal. Prof. S. N. Dhyani has observed that the year 1875 is a
landmark in the history of the trade union movement. For the first time, in India
factory workers united together for securing better working conditions in the
factories.
Factories Act, 1881
The growing consciousness of a common cause for amelioration brought the
w orking class closer despite several hindrances. The Secretary of State for India
was kept informed of all these evils of the modern factory system and the first
Factory Commission was appointed in Bombay in the year 1875 and the first
Factories Act was passed in 1881. The 1881 Act proved highly inadequate and its
provisions regarding protection to child labour and absence of any regulation for
women labour were highly disappointing.
Consequently, another Factory Commission was appointed in 1884. Mr.
Lokha ndey organised a conference of workers in Bombay and drew up a
memorandum signed by some 5,300 workers to be presented to the Factory
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8. Commission. This was the beginning of modern trade union movement in India.
The memorandum submitted and adopted at this meeting demanded a weekly
rest, half an hour’s recess, compensation for disablement, payment of wages not
later than 15 day of the month following the one in which they were earned,
limitation on hours of work from 6.30 A.M. till sun-set9.
Bombay Mill-hands Association and Other Labour Associations
The conditions, however, did not improve and therefore, another representation
was submitted to the government in 1890 reiterating the demands of 1884 and
was signed by about 17,000 workers. In the same year the Bombay mill-hands
association was established under the presidentship of Mr. Lokhandey. This was
the first labour association in India. The Bombay mill-hands association may not,
however, be classified as a genuine trade union. The workers did not have
effective organisation of their own. It had no existence as an organised body
having no roll or membership, no funds and no rules.
A large number of labour associations were started after 1890. For
instance, the Printers’ Union, Calcutta was established in 1905 and the kamgar
hitwardhak sabha and the social service league in 1910. The amalgamated society
of railway servants of India and Burma was registered under the Companies Act.
Its rules were comprehensive and provided for the election of various office-
bearers, the holding of annual general meetings. The society and all other labour
associations established were essentially labour welfare organisations. They may
hardly be regarded as modern trade unions. They wanted to mitigate the evils of
the modern factory system and improve the lot of the workers. They discussed
the problems, represented their case before the government and pressed for
suitable labour legislation. During the said period from 1875 to 1918, the unions
and labour associations mainly relied upon the constitutional method for getting
9 Dr. S.N. Dhyani, Trade Unions and Right to Strike, pp.24-26.
8

9. their grievances redressed. The most notable feature of this period was the
absence of strikes as a means of getting grievances redressed. Strikes during this
period were only exceptional. This period has been characterised as the social
welfare period of our early trade union movement10.
Effects of the First World War
The declaration of war in 1914 had much helped in the growth of labour
movement in India. The entire economic situation was changed. The war and the
consequent shortage of shipping facilities led to restricted imports of
commodities. There was a considerable increase in the prices of essential
commodities like salt, cotton, cloth, kerosene oil, etc. The capitalists were making
enormous profits.
The cost of living was steadily increasing and wages lagged behind. This
economic situation created discontentment and class-consciousness amongst the
workers. Their low standard of living was lowered further. The consequent
distress of workers whose wages were not correspondingly increased generated a
series of strike waves in 1918-19. The strike of Buckingham and Carnatic mills
workers in Madras gave a fillip to the trade union movement in the south. The
strike improved their working conditions. However, they needed proper guidance
and leadership. The non-cooperation movement of Gandhi provided willing
leadership to the labour movement.
The Russian revolution and the establishment of Union of Soviet
Socialist Republic (USSR) had its own favourable effect on our trade union
movement. It brought a ray of hope to the underdog in every country. The
setting of ILO, a tripartite body was also helpful in the organisation of labour
associations in India.
10 G. M. Kothari, A study of Industrial Law, pp. 17-21.
9

10. All these factors brought a change in the moral and mental outlook of the
workers. A large number of trade unions were organised after 1918. The Madras
labour union was the first trade union or modern type in India. Its progress was
mostly because of the spirit and sacrifice of its President B. P. Wadia. By 1920, a
large number of unions were formed. The All lndia Trade Union Congress
(AITUC) was established. It represented the workers interests economic, social
and political whenever and wherever it became necessary. The foundation of the
AITUC marked the first recognition of the common interest of labour
throughout the country. By 1925 the number of unions had increased. During
that period the labour movement was truly united and there was complete
harmony and co-operation among all sections of working class.
Indian Trade Unions Act, 1926
The passing of the Indian Trade Unions Act in 1926 is an important landmark in
the history of the trade union movement in the country. In addition to giving
legal status to registered trade unions, the registration conferred o trade unions
n
and their members a measure of immunity from civil suits and criminal
prosecutions. Registration also enhanced the status of unions in the eyes of the
public as well as the employers and in this process, even unregistered unions
benefited, and the movement as a whole gained greater confidence of the
workers11.
Thus, the Indian Trade Unions Act, 1926, greatly enhanced the status of
trade unions in the worker’s imagination and in the public minds. Before 1926,
trade unions were treated as illegal bodies. It was only after 1926 onwards that
the movement acquired a big spurt and dynamism in bringing together the
elements, which were hitherto scattered, divided and disunited. It was a great
11 V.V. Giri, Labour Problems in Indian Industry, pp.11-13.
10

11. success, rather a leap forward, which they achieved after a prolonged struggle,
suffering and sacrifice. The Royal Commission rightly observed that:
‘The stimulus given by the Act to trade unionism resulted, not so much
from any rights or liabilities that created, as from the enhanced status in
the statute book’12.
THE PROCESS OF TRANSFORMATION OF THE TRA DE UNIONS’
ACT, 1926
The history of the trade union movement indicates that it did not have to face
the onslaught of legislation as in England. In Great Britain, trade unions were
regarded against the common law. They were looked down as criminal
conspiracies.
The prosecution of B. P. Wadia, the President of the Madras Labour
Union, and the issue of injunction against the Union stunned people not only in
India but also in Great Britain. The demand for the early passing of a trade
unions Act to protect the interests of the growing and infant trade movement
became insistent. The Trade Unions Act was passed in 1926 just eight years after
the organisation of the first trade union in this country. Trade unions and
unio nist could thus secure early, legal protection and social status. It is equally
true that legislation has not so developed in our country as in Great Britain.
After the passing of the Trade Unions Act, 1926, it may be observed that
from criminal and illegal associations trade unions have now become legalised
and recognised institutions, from institutions which were only very small bodies
they have now become gigantic associations, from institutions that were primarily
interested in the advancement of the cause of their own membership they have
12 Report of the Royal Commission on Labour in India, 1931 at p.318.
11

12. now become institutions which are interested in the social, cultural and political
development of the country. This was a remarkable process.
Recommendations of the Royal Commission on Labour
The Royal Commission on Labour examined the working of the Act and found
that the Act had ‘helped to give trade unions stability and enhanced sense of
responsibility’13. It recommended inter alia that the Act must be re-examined in
not more than three years’ time; that all limitations imposed on the activities of
registered unions and their officers and members must be reconsidered. No
significant action was however taken in the matter.
Indian Trade Unions (Amendment) Act of 1947 remained only
on paper
Though the Indian Unions Act, 1926 provided for the registration of trade
unions complying with various specified requirements, it imposed no obligation
on employers to recognise and deal with such registered unions. The Royal
Commission on Labour in India, had also pleaded for the recognition of trade
unions by employers in spirit as well as in letter. The matter figured prominently
on the agenda of successive labour ministers in 1940 and 1941 and of the
meeting of the standing labour committee (1944) and the Indian labour
conference (1945). The result was the adoption of the Indian Trade Unions
(Amendment) Act (XLV) of 1947, which provided for the compulsory
recognition of employers of representative trade unions by order of a labour
court. The Act confers on the executive of recognised trade union the right to
negotiate with the employers in respect of matters connected with the
employment or non-employment, terms of employment and the conditions of
work of all or any of its members. The Amendment Act has not, however, come
13 Report of the Commission, p. 331.
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13. into f rce, at all. Similarly the Trade Union Bill, 1950 providing for administrative
o
controls on trade unions also lapsed.
Recommendations by the National Labour Commission, 1969
The Commission has, inter alia, strongly recommended that:
(1) trade union registration be made compulsory;
(2) the registrar must be time bound to decide the issue of
registration
(3) effective measures must be taken for cancellation if the unions do
not comply with conditions regarding filing of returns or
membership;
(4) trade unio n recognition by the employers be made compulsory by
Central legislation as specified undertakings;
(5) such recognised unions, must be given statutorily exclusive rights
and facilities like right of sole representation, entering into
collective bargaining agreements, holding discussions and
negotiations, inspection, check-off etc; and
(6) the minority unions must also be allowed to represent workers in
redressal of individual grievances like dismissal, discharge etc.
The suggested measures are likely do promote growth of healthy and
strong trade unionism and eliminate inter-union rivalry to some extent.
Compulsory recognition of one union for one undertaking will make the unions
effective instruments of collective action and give them requisite bargaining
equality.
State Amendments and State Laws
13

14. The Government of Bombay amended in June 1956, the Indian Trade Unions
Act, 1926, in its application to the State of Bombay. The Indian Trade Unions
(Bombay Amendment) Act, 1956 amends s. 33 of the Act of 1926 in order to
enable the registrar of trade unions to make complaints in respect of offences
under s. 31(2) within six months of the on which the offence came to his
knowledge.
State of Madhya Pradesh has also enacted Trade Unions (Amendment)
Act, 1961. Recently Maharashtra has enacted Maharashtra Recognition of Trade
Unions and Prevention of Unfair Labour Practices Act, 1971 which seeks to
fulfill some of the badly needed objectives of recognition of unions and
regulation of unfair labour practices.
RECOGNITION OF TRADE UNION
The Trade Unions Act, 1926 however, was conspicuously silent with regard to
provisions regarding compulsory recognition of the unions by employers for the
purposes of negotiation and bargaining on account of employers’ stiff opposition
who were not still reconciled with the trade unions.
The Trade Unions Act, 1926, covers mainly three sets of matters, namely,
the conditions governing registration of trade unions, the obligation to which a
trade union is subjected after registratio n and the rights and privileges accorded
to registered unions. The Act, however, was amended by the Indian Trade
Unions (Amendment) Act, 1928, defining the procedure regarding appeal against
the decision of a registrar refusing to register a trade union or withdrawing
certificate of registration. It would not be out of place to state at this stage, that
the trade union law in India made no provision with regard to compulsory
recognition of unions of workers by their employers for the purposes of
negotiation or settlement of disputes and thereby deliberately created
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15. unbridgeable gulf which is constantly creating acrimony, fear and war of nerves
between the labour and capital.
It may be desirable to mention that though the Trade Unions Act, 1926
provided for the registration of trade unions complying with various specified
requirements, it imposed no obligation on employers to recognise and deal with
such registered unions. The Royal Commission on Labour in India, pleaded for
the recognition of unions by emplo yers in spirit as well as in letter. But
throughout the ‘thirties’ the question of recognition proved to be a recurring
cause of friction between the employers and organised labour, and the
advisability of amending the Trade Unions Act, with a view to imposing on
employers a statutory obligation to recognise and deal with such trade unions
satisfying certain prescribed conditions, figured prominently on the agenda of
successive Labour ministers conference held in 1940 and 1941 and of the
meetings of the standing labour committee (1944) and the Indian labour
conference (1945). The result was the adoption of the Indian Trade Union
(Amendment) Act XLV of 1947, which provided for the compulsory recognition
by employers of representative trade unions by order of a labour court. The Act
confers on the executive of a recognised trade union the right to negotiate with
employers in respect of matters connected with the employment or non-
employment, terms of employment and the conditions of work of all or any of its
m embers. Finally, the Act defines certain practices, as unfair on the part of a
recognised trade union and certain others as to be unfair on the part of an
employer, and requires both to desist from such practices under threat of
withdrawal recognition on ap plication to the Labour Court by the Registrar or
the employer in the case of the former and a fine of upto Rs. 1,000 in the case of
the latter. Unfair practices include participation, support or instigation of an
irregular strike, submission of returns, containing false statements, discharge or
15

16. discrimination against any officer of a recognised trade union. The Amendment
Act has not, however, come into force at al1 14.
In the absence of enforcement of the said amendment of the Act
regarding recognition as technically there is no provision in the Trade Unions Act
for recognition. However, in actual practice, the employers accord recognition to
the trade unions following procedure contained in the Code of Discipline ratified
by all Central Employers’ and Workers’ Organisations at the 16 session of the
Indian Labour Conference held in May, 1958, and negotiate with the trade unions
for settlement of industrial disputes to restore and maintain industrial peace in
their establishments.
Definition of Recognition
A union must be recognised before it may effectively represent any employees15.
Once a union is recognised it serves as the bargaining agent for the workers in a
particular bargaining unit16. An employee may not circumvent the union17,
because recognition entails willingness ‘to negotiate with a view to striking a
bargain and this involves a positive mental decision’18.
Need for recognition
Recognition of trade union is the backbone of collective bargaining. It has been
debated time and again. But inspite of the government stated policy to encourage
trade union there is no enforced central legislation on this subject. There are
14 G.M. Kothari, A Study of Industrial Law, pp.88-89.
15 John Bowers, Employment Law, 450 (5th ed. 2000).
16 Ibid. at 451.
17 I.T. Smith & Gareth Thomas, Industrial Law, 558–59 (7 th Ed. 2000).
18 Definition of Collective bargaining as the ‘performance of the mutual obligation
of the employer and the representative of the employees to meet at reasonable
times and confer in good faith with respect to wages, hours, and other terms
and conditions of employment’.
16

17. however voluntary code of discipline and legislations in some states. In the
absence of any central legislation, management in several states have refused to
recognise trade union mainly on five grounds:
(1) most of the office bearers of the union were outsiders19;
(2) the trade union keeps outsiders disapproved by management and
particularly politicians and ex-employees20;
(3) the union consisted of only small number of employees;
(4) there were in existence many rival unions; and
(5) the trade union was not registered under the Trade Unions Act,
1926 21.
However none of these objections are maintainable because to accept the same
would amount interference in the functioning of the Trade Unions. Be that as it
may, the refusal by employers to recognise or bargain with unions has been the
major obstacle to the healthy growth of trade union and collective bargaining22.
Role of ILO in recognition of Trade Unions
At an international level, the concern felt by the ILO for evolving an
international instrument for recognition of trade unions resulted in ILO
Convention No. 87 on ‘freedom of association and protection of the rights to
organise’ in 1948 and Convention No. 98 concerning the right to organise and
bargain collectively in 1949. The former states that:
‘Workers and employers, without distinction whatsoever, will have the
right to establish and, subject only to the rules of the organisation
concerned, to join organisation concerned, to join organisation of their
own choosing without previous authorisation. The Convention
19 Paramount Films India Ltd. vs. Their Workmen (1950) L.L.J. 690.
20 Report of Royal Commission of Labour, (1931) p. 325.
21 Ibid. at p.326.
22 Suresh C. Srivastava, ‘Trade Unionism in India’, Review of Contemporary Law,
Brussels and Paris, 1970, p. 83.
17

18. empowers the workers organisation to frame their constitution, to elect
representatives and among others to organise their activities. To establish
and join federation, Convention, art. 8 require that workers and
employers and their respective organisations, like all other, will respect
the law of the land. The law of the land shall not be such as to impair nor
shall it be so applied as to impair, the guarantees provided for in the
constitution’.
The latter confers protection to workers against acts of anti-union
discrimination in respect of their employment. The protection is, directed in
respect to acts calculated to:
(1) make the employment of a worker subject to the condition that
he will not join a union or may relinquish trade union
membership; and
(2) cause the dismissal, of or otherwise prejudice a worker by reason
of union membership or because of his participation in union
activities outside working hours.
Constitution and Recognition of Trade Unions
Whether there exists a right for a trade union to be granted recognition to trade
unions within the meaning of Constitution of India, art. 19(1)(c) is a fundamental
right or not is answered in the negative23 because the right to form association
does not carry with it the concomitant right24. The withdrawal of recognition25
does not infringe the fundamental rights guaranteed under the Constitution of
India, art. 19(1)(c).
23 A.C. Mukerjee vs. Union of India (1972) 2 L.L.J. 345; M.A. David vs. K.S.E. Board
(1973) 3 L.L.J. 466 (Kerala); Tamil Nadu Electricity Board Accounts Executive Staff
Union vs. Tamil Nadu Electricity Board, Madras (1980) 2 L.L.J.
24 All India Bank Employees Association vs. National Industries Tribunal (1961) 1 L.L.J.
375; Raghubir Dayal Jai Prakash vs. Union of India 1961 AIR (SC) 363; D.A.V.
College Jullunder vs. State of Punjab 1971 INDLAW SC 638, 1971 AIR(SC) 1737.
25 M.A. David vs. K.S.E. Board (1973) 3 L.L.J. 466 (Kerala).
18

19. Conditions for Recognition
Trade Unions (Amendment) Act, 1947, s. 25D provides that a trade union will
not be entitled for recognition by order of a Labour Court under s. 25E unless it
fulfills the following conditions, namely:
(1) that all its ordinary members are workmen employed in the same
industry or in industries closely allied to or connected with
another;
(2) that it is representative of all the workmen employed by the
employer in that industry or those industries;
(3) That its rules do not provide for the exclusion from membership
of any class of the workmen referred to in cls. (b);
(4) that its rules do not provide for the procedure for declaring a
strike;
(5) that its rules provide that a meeting of its executive will be held at
least once in every six months; and
(6) that it is a registered trade union and that it has complied with all
provisions of this Act.
The aforesaid provisions of the Act raise various problems
(1) Can an employer voluntarily recognise a union which is not
registered under the Act which is in fact a majority union?
(2) Can an employer be compelled to recognise more than one
union?
Notwithstanding the relative importance of these questions and rather
unsatisfactory answer than we get from the statute, the significance of Trade
Unions (Amendment) Act, 1947, must not be overlooked. But even this might
not be put into force.
19

20. Re-recognition of Trade Unions
The Trade Union (Amendment) Act, 1947, s. 28H permits the registered trade
union whose recognition is withdrawn under sub -s. (3) of s. 28G to make an
application for re-recognition after six months from the date of withdrawal of
recognition.
CASE LAW ANALYSIS OF THE REGULATION OF T RADE UNION
LAW IN INDIA
The General Secretary, Rourkela Sramik Sangh vs. Rourkela Mazdoor Sabha and others26,
is a relevant case on the point. In this case Rourkela Sramik Sangh had addressed
a letter on 09 October 1989 to the Implementation and Evaluation Officer-cum-
Labour Commissioner, Orissa, Cuttack intimating him that as per the Code of
Discipline it had called upon the Rourkela Steel Plant to recognise it as a sale
bargaining agent in the plant. Receiving no response appellant had further
requested the labour commissioner to pass orders for immediate verification of
the membership of all trade unions operating in the said plant and to recommend
for recognition, the Union having majority of the membership.
In pursuance of the same, the deputy labour commissioner passed an
order on 14 December 1989 calling upon the different trade unions to produce
the necessary records within ten days of the receipt of the notice. These orders
passed by the labour commissioner and deputy labour commissioner were
challenged by the first respondent-Rourkela Mazdoor Sabha which is a rival
union in the plant by way of a writ petition in the High Court of Orissa.
It was observed by the Supreme Court that the High Court had erred in
allowing writ petition filed by the first respondent and dismissing the appellant’s
26 1991 INDLAW SC 263, 1991 AIR(SC) 1250, per Sawant J.
20

21. writ petition. We, therefore, set aside t e decision of the high court and direct the
h
deputy labour commissioner to complete the process of verification of
membership and the labour commissioner to complete the proceedings of
recognition as expeditiously as possible and preferably within four mon from
ths
the receipt of this decision. Thus the appeal was allowed.
In Automobile Products of India Employees’ Union vs. Association of Engineering
Workers,27 where the industrial court issued order granting recognition under the
aforementioned enactment to the appellant-union by following the method of
ballot, the Supreme Court observed that the court ignored in particular the
mandatory provisions of ss. 10, 11, 12, 14 and 19. The consent of the parties to
follow a procedure, which is against the mandatory provisions of the Act, may
not cure the illegality. The recognition or derecognition of a union under the Act
is not a matter which concerns only the contesting unions or its members. It is a
matter of utmost importance to the interest of all the workmen in the
undertaking concerned and to the industry and society in general. No union is
entitled to be registered as a recognised union under the Act merely because it
satisfies the membership qualification. The industrial court is forbidden from
granting recognition to a union whatever its membership, if the court is satisfied
that it is disqualified for reasons mentioned in s. 12, or does not satisfy
conditions mentioned in s. 19. The court observed that the order of the
Industrial Court granting recognition by following the method of ballot is prima
facie illegal being in breach of the provisions of the Act.
In Association of Engineering Workers vs. Dock Yard Labour Union and Others28,
it has been observed by the Supreme Court that the Maharashtra Recognitio n of
Trade Union and Prevention of Unfair Labour Practices Act, 1971, s. 11 provides
for making an application for recognition of a union. The plain language of this
27 1990 SCC 293.
28 1995 SCC (L&S) 137, Automobile Products of India Employees Union vs. Association of
Engineering Workers, Bombay, (1990) SCC (L&S) 293, followed.
21

22. provision makes crystal clear that the requirement for recognition is that the
union must have for a period of six months immediately preceding the making of
an application, a number of not less than 30 per cent of the total number of
employees employed in the said undertaking. Where the industrial court is
satisfied that the conditions requisite for registration specified in s. 11 are
satisfied then the industrial court has to grant recognition to the union and issue
a certificate in that behalf in the prescribed form.
In Association of Chemical Workers vs. S. D. Rane and others29, where the
appeal by special leave arose from the order of the Division Bench of the
Bombay High Court. The appellant is a rival trade union under M/s. Chemicals
and Fibres of India Ltd. The industrial court in the order had pointed out that
the total employees on 15 J ne 1981 were 811 and the respondent-union had a
u
strength of 448 as against rival union having strength of 241. Thus, it was
observed to be recognised union.
In International Airport Authority of Indian Workers Union vs. International
Airports Authority of India and others30, where a dispute arose between two rival
unions, one International Airports Authority of Indian Workers Union and the
other International Air port Authority Employees Union and reached this Court
routing through High Court for recognition as majority union. One union did
not participate in the elections on ground of seeking recognition in court. It was
observed by the Supreme Court that in the circumstances of the case it is just and
proper to hold fresh elections to determine the majority character of the union
which may be recognised by the International Airport Authority of India.
29 1996 SCC (L&S) 759, Automobile Products of India Employees Union vs. Association of
Engineering Workers, Bombay, (1990) SCC (L&S) 293 and Association of Engineering
Workers vs. Dock Yard Labour Union and others1995 SCC (L&S) 137. These cases
were considered.
30 1993 SCC (L&S) 155.
22

23. In D. K. Changani and others vs. Nitya Ranjan Mukherjee and others31, where
appeal by special leave arose from the order of the Calcutta High Court. The
claims for recognition of rival union Geological Survey of India Employees’
Association were considered. After making reference of the aforementioned rules
and due consideration the Supreme Court observed that if there are more than
one rival unions or the service employees, the Government of India had evolved
a policy as to how the service Associations require to be recognised by the
appropriate authority must represent the interest of the members or the
respective unions. It would be open to the appropriate u
nion to approach the
government in light of the above rules and seek recognition in accordance with
law to avoid any future litigation in this behalf. The appeal was accordingly
disposed of.
In Food Corporation of India Workers Union vs. Food Corporation of India and
32
Another, the Supreme Court observed that it is the appellant-union who was a
party in earlier proceedings which resulted in the decision of the Supreme Court
in Workmen vs. Food Corporation of India33, the appellant claims to be a recognised
trade union. The first respondent-management, stated that the appellant was a
recognised Union till 1984 and not thereafter, since no recognition was given to
the union dealing with contract labour. It is so stated in the addidonal affidavit
filed by the first respondent dated 17 July 1995. The appellant in reply dated 18
July 1995 asserted that it is the only relevant trade union, representing the
handling, loading-unloading mazdoors; contract labour, direct payment or
departmental employees employed by first respondent in the whole of India. The
appellant has been representing, the abovementioned workers for more than
three decades. It also appears from the papers filed by the appellant that at
various stages negotiations carried on between the appellant-union and the
31 1997 SCC (L&S) 352.
32 1996 SCC (L&S) 1255.
33 1985 SCC (L&S) 420.
23

24. respondent. So it may not be said that the petitioner is not a valid or recognised
trade union.
Rights of Trade Unions in India
The trade union rights in our country are found scattered in various laws,
voluntary measures like the Code of Discipline and the constitutional provisions
under the Constitution of India, art. 19. These trade union rights may be divided
into the following categories:
(1) right of freedom of speech and expression which includes right of
picketing34 and demonstrations 35;
(2) right regarding the formation and the registration of the trade
union;
(3) right regarding the recognition of the trade union by the
employers;
(4) Right regarding collective bargaining and collective actions;
(5) Right regarding conduct and functioning of the trade union; and
(6) Miscellaneous rights.
Right to form a Trade Union – A Constitutional Right of
citizens of India
The right to form and continue 36 a trade union is a fundamental right guaranteed
under the Constitution of India, art. 19(1)(c), which may only be subjected to
reasonable restrictions in the public interest as provided by art. 19(1)(6) of the
34 In re Vengan AIR 1952 Mad 95; Raj Narain vs. State AIR 1961 All 531; Damodar vs.
State AIR 1951 Bom. 459.
35 Kameshwar vs. State of Bihar AIR 1956 All 57.
36 Kulkarni vs. State of Bombay AIR 1951 Bom. 106; Row vs. State of Madras AIR 1951
Mad 147; Uttar Pradesh Shramik Sangh vs. State of Uttar Pradesh AIR 1960 All. 45 at
49.
24

25. Constitution37. Provision is also made in the Indian Trade Unions Act, 1926 for
providing them immunities from criminal prosecution in certain circumstances,
which further ensure the safe conduct of the trade unions. Under the various
laws, the trade unions are required to get themselves registered for certain
purposes. Every trade union is required to register itself under the Trade Unions
Act in order to operate as a trade union.
Recognition of Trade Unions by Employers
After the registration of the trade union, the question of its recognition by the
employer comes to the forefront in as much as if it is recognised by the employer
for the purpose of collective bargaining, then it will have certain privileges and an
opportunity to fulfill its role. There is no provision in the Indian Trade Unions
Act or Industrial Disputes Act, 1947, the only two central enactments in this
respect in the country regarding recognition of the trade union by employers.
No union registered or otherwise may lay claim to recognition by the
management for participation in negotiations as a matter of a legal right.
However it may not be denied that fair play requires the management to consider
grant of recognition when a body of persons legitimately expects to be affected 38.
This right of recognition has to be secured by the trade unions by raising an
industrial dispute. The Code of Discipline regulates this aspect, t ough not on a
h
statutory level. The National Commission on Labour has recommended such a
statutory right for unions. Non-recognition of a trade union for collective
bargaining constitutes an unfair labour practice. Provisions have however been
made in the State of Maharashtra through the Maharashtra Recognition of Trade
Unions and Prevention of Unfair Labour Practices Act, 1971.
37 Ramkrishnaiah vs. Dstrict Board AIR 1952 Mad. 253; Sitharamachary vs. Senior Deputy
Inspector AIR 1958 AP 78.
38 Indian Airlines Technical Assts. vs. Indian Airlines and others 1995 LLJ 578 (AP).
25

26. Code of Discipline and Trade Union Recognition
With the evolution of the voluntary measures in the nature of the Code of
Discipline in the industry, an attempt has been made to make a provision for
recognition of the unions by the employers. Thus under the Code of Discipline
the management has agreed to recognise in accordance with the criteria evolved
at the 16 Session of Indian Labour Conference held in May 1958. The criteria for
recognition of a union has been that the membership of the union must cover at
least 15 per cent of the workers in the establishment and for this purpose the
membership has to be counted only of those persons who have paid their
subscription for at least three months during the period of six months
immediately preceding the reckoning. When there is more than one union, a
union claiming recognition must have been functioning for at least one year after
registration. The recognition is generally given for a period of two years. It there
is more than one union in an industry or establishment, the one with the largest
membership must be recognised. It is a condition of recognition that the unions
must observe the provision of the Code of Discipline. These criteria for
recognition of unions have created many problems and in the absence of any
statutory sanction underlying the Code of Discipline in actual practice, the
recognition of a union by employers has lot much of its significance.
Rights of the Recognised Unions under the Code of Discipline
Under the Code of Discipline, the recognised unions have been given certain
rights in preference to unrecognised unions. These rights are:
(1) to raise issue and enter into collective agreements with employers
on general questions concerning terms of employment and
conditions of service of workers in an establishment of in the case
of a representative union, in an industry in a local area;
26

27. (2) to collect membership fees/subscriptions payable by members to
the union within the premises of the undertaking;
(3) to put up or cause to put up a notice board on the premises of
the undertaking in which its members are employed and affix or
cause to be affixed thereon notices relating to meeting, statements
of accounts of its income and expenditure and other
announcements which are not abusive, indecent or inflammatory
or subversive of discipline or otherwise contrary to the Code;
(4) for the purpose of prevention or settlement of an industrial
dispute:
(a) to hold discussion with the employees who are members of the
union at a suitable place or places within the premises of
office/factory/establishment as mutually agreed upon;
(b) to meet and discuss with an employer or any person appointed by
him for the purpose, the grievance of its members employed in
the undertaking; and
(c) to inspect to prior arrangement, in an undertaking, any place
where any member of the union is employed;
(5) to nominate its representatives on the grievance committee
constituted under the grievance procedure in an establishment;
(6) to nominate its representative on joint management councils, and
(7) to nominate its representative on non-statutory bipartite
committees for instance production committee, welfare
committee, canteen committee, house allotment committees set
up by managements.
LEGAL CHARACTER OF A REGISTERED TRADE UNION
Is registered trade union a legal person? The answer may be given in affirmative
in view of the provisions of the Trade Unions Act, 1926, s. 13. It may be pointed
27

28. out that only a trade union which has been registered under the provisions of the
Trade Unions Act, 1926, receives a legal status and thereby becomes legal person
and not unregistered trade union, In fact, certain advantages, and rights emanate
from the registration of a trade union under the provisions of the Trade Unions
Act, 1926. When a trade union is registered all communications and the notices
to a registered trade union may be addressed to its registered office. The
registered office means that office of a trade union, which is registered under this
Act as the head office thereof39. Notice of any change in the address of the head
office will be given within 14 days of such change to the registrar in writing and
the changed address will be recorded in the register of the trade unions to be
maintained in the registrar’s office40.
Incorporation of Registered Trade Unions
According to the Trade Unions Act, 1926, s. 13, every registered trade union will
be a body corporate by the name under which it is registered, and will have
perpetual succession and a common seal with power to acquire and hold both
movable and immovable property and to contract and shall by the said name sue
and be sued.
The analysis of the aforementioned provisions would make it clear that
when a trade union is registered, it becomes a body corporate meaning thereby
an artificial legal person. By virtue of its legal entity certain rights are accorded.
Duties are imposed and certain powers are conferred upon which may be called
advantages of registration in an ordinary sense. Thus, the following are the
advantages or effects of registration of trade union:
(1) every registered trade union becomes a body corporate by the
name under which it is registered. It means that the trade union,
after registration under this Act, becomes artificial legal person
39 The Trade Union Act, 1926, Section 2 (d).
40 The Trade Union Act, 1926, Section 12.
28

29. having its separate existence from its members of which it is
composed 41;
(2) an incorporated trade union never dies. It becomes an entity with
perpetual succession. The members of the trade union change but
the trade union remains unchanged. The retirements, withdrawal
or expulsion and death of individual members do not affect the
corporate existence of the trade union;
(3) the trade union will have a common seal after its registration.
(4) the trade union is empowered to acquire and hold both movable
and immovable property in its own name. In State Bank of India
Officers’ Association vs. Commissioner of Wealth Tax 42, the High Court
of Madras observed that a registered trade union is an ‘individual’
as envisaged by Wealth Tax Act, 1957 and liable to pay wealth
tax. Expression ‘individual’ occurring in the Wealth Tax Act,
1957, s. 3 would not only take in an individual but also a plurality
of individuals which in turn would include a body or group of
persons forming a single collective unit knit together by ties of
common aim and joint interests who owned property;
(5) by virtue of its legal personality, the trade union acquires power to
contract in its own name;
(6) the trade union, being a body corporate, may sue and be sued in
its own name; and
(7) The registered trade union is granted immunity from criminal43
and civil44 liability in certain cases singled out under the provisions
of the Trade Unions Act, 1926.
It would not be out of place to say that the abovementioned advantages
solicit the members of an association to get it registered as trade union under the
41 Ramendra Nath Roy Chowdhary vs. State of Bihar & Others, (1954-55) F.J.R. 528.
42 (1986) LLJ 267, per Ramanujam, J.
43 The Trade Unions Act, 1926, Section 17.
44 Ibid., s. 18.
29

30. provisions of the Trade Unions Act, 1926. Although the trade union becomes a
body corporate after its registration just like a company after its incorporation
under the provisions of the Companies Act, 1956, the trade unions may not be
registered under the Companies Act, 1956, or any other enactment.
Trade Unions Act, 1926, s. 14 expressly provides that the following Acts
will not apply to any registered trade union:
(1) the Societies Registration Act, 1860;
(2) the Co-operative Societies Act, 1912; and
(3) The Companies Act, 1956.
The provisions of the said Acts will not apply to any registered trade
union and if any trade union is registered under any such Act it will be void. The
reason is simple that where an association of persons is registered under the
Societies Registration Act, 1860, it becomes society, if registered under the Co-
operative Societies Act, 1912, it becomes a co -operaive society, and if it is
registered under the Companies Act, 1956, it becomes a company and not a trade
union. Therefore, the trade unions must be registered under the Trade Unions
Act, 1926, in order to get advantages referred to above. The rights and
advantages which are available to the registered trade unions under the various
provisions of the Trade Unions Act, 1926, are not available to a union which is
not registered in accordance with the provisions of this Act. In other words,
effect of non-registration of a trade union is non-availability of advantages and
privileges which are conferred upon a registered trade union under the provisions
of the trade unions Act, 1926. It may be concluded that a trade union after
registration becomes a legal person and so long as its registration certificate
exists, it remains a body corporate.
30

31. In Chemosyn Pvt. Ltd. and others vs. Kerala Medical and Sales Representatives
Association 45, the question for consideration was whether a trade union, registered
under Trade Unions Act, 1926, is amenable to writ jurisdiction under the
Constitution of India, art. 226. It was observed that applying the tests that are
well established it may be seen that a trade union registered under the Trade
Unions Act, 1926 is neither an instrumentality nor an agency of the state
discharging public functions or public duties. A trade union is defined in s. 2(h)
of the Act. The state has no deep or pervasive control or dominion in the
composition or functions of the union. There need not be any substantial
financial assistance by the government. A trade union is not a statutory body. It is
not created by statute or incorporated in accordance with the provisions of a
statute. The activities of the trad e union are not closely related to governmental
functions and are not of public importance. The privileges conferred or the
immunities enjoyed by the trade union do not impose any public duties on the
part of the union. There is no scope for expanding the content of the expression
‘authority’ to cover a trade union. Therefore, the trade union is not amenable to
writ jurisdiction under the Constitution of India, art. 226.
CONCLUSION
Sound trade union activity has the potential for generating a healthy circle of
better labour productivity, increasing earnings of labour, expanding their
purchasing power, improving their working and living conditions, increasing
efficiency, and having more production.
Such a state of affairs would be beneficial not only to workers, but also to
the industry and to the nation. The government and many enlightened employers
do appreciate the importance of the role of trade unions, and their policy is one
of encouragement and assistance to the trade unionism. The future of trade
45 (1988) LLJ 43 (Kerala).
31

32. unionism in Indian depends mainly upon the effort of the unionists themselves.
For developing internal vitality, a strong and stable trade union movement is
essential for the proper functioning of industry.
Multiplicity of unions in the same plant leads to inter-union rivalry that
ultimately cuts at the root of the trade union movement. It weakens the power
for collective bargaining and reduces the effectiveness of workers in securing
their legitimate rights. Therefore, there must be only one union in one industry.
Till recently, the employers refused recognition to the trade unions either
on the basis that unions consisted of only a minority of employees or two or
more unions existed. The Trade Unions Act, 1926 is completely silent on the
question of recognising a trade union for the purpose of collective bargaining.
Such a provision exists, however, in Annexure A of the Code of Discipline,
which is a voluntary measure. This annexure lays down the following criteria for
recognising a trade union:
(1) where there are more than one union, a union claiming
recognition must have been functioning for at least one year after
registration. Where there is only one union, this condition would
not apply;
(2) the membership of the union must cover at least fifteen per cent
of the workers in the establishment concerned. Membership
would be counted only of those who have paid their subscription
for at least three months during the period of six months
immediately preceding the month of reckoning;
(3) a union may claim to be recognised as a representative union for
workers in all establishments in an industry in a local area if it has
a membership of at least 25 per cent of the workers of that
industry in that area;
(4) when a union has been recognised, there must be no change in its
position for a period of two years;
32

33. (5) where there are several unions in an industry or establishment, the
one with the largest membership must be recognised;
(6) a representative union for an industry in an area must have the
right to represent the workers in all the establishments in the
industry, but if a union of workers in a particular establishment
has membership of 50 per cent or more of the workers of that
establishment, it must have the right to deal with matters of
purely local interest such as, for instance, the handling of
grievances pertaining to its own members. All other workers, who
are not members of that union might either operate through the
representative union for the industry or seek redress directly; and
(7) only unions that observe the Code of Discipline should be
entitled to recognition.
33