CRITICAL ANALYSIS OF A CASE: Tamil Nadu Non Gazetted

Government Officers Union & Ans, Madras v The Registrar of Trade

Union, Madras
SUBMITTED BY: Jerin Asher Sojan
3rd YEAR, BA.LLB (Hons.)
ROLL NO: BA0130026
5th SEMESTER

UNDER THE GUIDANCE & SUPERVISION OF

Mr. Mahindra Prabhu.
ASSISTANT PROFESSOR OF LAW

THE TAMIL NADU NATIONAL LAW SCHOOL

DINDIGUL HIGHWAY, NAVALUR KUTTAPATTU, SRIRANGAM TALUK,
TIRUCHIRAPALLI 620009

TABLE OF CONTENTS

1. Introduction 4
2. An Oveview: Tamil Nadu non gazetted government officers union, madras
v. The registrar of trade union, madras.5

a. Freedom of Association and Constitution of India..6

b. Restrictions on the Freedom of Association.6
3. Collective Bargaining and Trade Unions8
a. Meaning of Collective Bargaining9
4. WORKMEN11
a. Under Trade Union Act,...11
b. Under Industrial Dispute Act. ..13
5. Conclusion..14
6. Bibliography15

Table of Cases

1. TN non gazetted government officers union, madras v the registrar of

trade union, madras, AIR 1962 Mad 231.

2. Rangaswami v registrar of trade union, AIR 1962 Mad 231.
3. Raja Kulkarni Vs State of Bombay (1954) SC 73
4. State of Madras v. V.G. Rao , AIR (1952) SC 196
5. Karnal Leather KaramchariSanghathan V Liberty Footwear Co, 1990

Lab IC 301, 307 (SC),per Jagannatha Shetty J

INTRODUCTION

Research Objective
This research paper will have the objective of critically analysing the case: Tamil Nadu Non
Gazetted Government Officers Union & Ans, Madras v The Registrar of Trade Union, Madras
and giving viable and practicable suggestions in the conclusion of this research paper.
Research Question
1. What is relationship between trade union and collective bargaining?
2. Why was this judgement delivered with a critical analysis of the definition of workmen
taken from both Trade Union act and Industrial dispute act?

Research Methodology
The research methodology adopted in this research paper is Descriptive as it involves evaluation
of well-established concepts in the Trade Union Act, 1926 Industrial Disputes Act, 1947
Scope and Limitation of Research:
The research restricts itself to analyzing the Workman definition in the trade Union Act, 1926
Industrial Disputes Act, 1947 and the Judgment rendered in the case Tamil Nadu Non-gazetted
Government Officers' Union, Madras v. The Registrar of Trade Union, Madras. Though minor
comparisons have been made with other countries, the research restricts itself to analyzing the
Indian definition of Workman and its relations to Civil Servants.

AN OVERVIEW: Tamil Nadu Non Gazetted Government Officers Union &

Ans, Madras v The Registrar of Trade Union, Madras

The very basis of the structure of the Tamil Nadu Non-gazetted Government Officers' Union,
Madras, would exclude its registration as a trade union. The Union includes among its members
Sub-Magistrates of the judiciary, Tahsildars entrusted with the powers of enforcement of the taxmachinery officers in charge of the treasurers and sub-treasuries. They are all civil servants
engage in the tasks of the sovereign and regal aspects of government, which are its inalienable
functions and they could not be included within the definition of 'work-men' in an industry to
whom either Section 2 (g) or (2) (k) of the Trade Union Act can apply.1
Under Article 311 of the Constitution of India, the tenure of office of a civil servant is
during the pleasure of the Head of the Union or the State as the case may be, and Article 311
provides for statutory safeguards against certain penalties, such as dismissal, removal or
reduction in rank. To such a relationship, the concept of collective bargaining is utterly
inapplicable and foreign. Collective bargaining is a right conceded to labour organisation within
the contractual field of the employer and employee relationship. It would become a grotesque
anomaly that if civil service for instance, were permitted to raise a trade dispute with regard to
the dismissal of a civil servant which may be for activities against the State itself, and in the
same breath to claim that constitutional safeguards under Article 311, which are wholly
irrelevant to the field of contract and to the employer-labour nexus, should be maintained intact
for the benefit of the civil services.2
Here in this case a ratio decidenti was laid down that Civil servants engaging in tasks of
sovereign and legal aspects of Government, association of non-gazetted Government servants
consisting of members of service forming part of legal functions as well as members of services
are no included within the meaning of workman as defined in section 2(g) of the Act. The
reason for this seems to be that the purpose of interpreting the term trade dispute3

TN non gazetted government officers union, madras v the registrar of trade union, madras, AIR 1962 Mad 231.
ibid
3
Rangaswami v registrar of trade union, AIR 1962 Mad 231.
2

Freedom of Association and Constitution of India

Constitution of India under Article 19(1)(c) guarantees to all its citizens the right
to form associations and unions Under clause (4) of Article 19, the state may by law
impose reasonable restrictions on this right in the interest of public order or morality or the
sovereignty and integrity of India. The right to form associations or unions has a very wide and
varied scope including all sorts of associations viz., political parties, clubs, societies,
companies, organizations, entrepreneurships, trade unions etc. It was held in Kulkarnis case4
that the right of association pre-supposes organization. It as an organization or permanent
relationship between its members in matters of common concern. It thus includes the right to
form companies, societies, partnership, and trade union.
The right to form trade unions should not lead to the conclusion that trade unions have a
guaranteed right to an effective collective bargaining or to strike as a part of collective
bargaining or otherwise. The right to strike or to declare a lock-out may be controlled or
restricted by various industrial legislations such as Industrial Dispute Act or Trade Unions Act.
This here is the matter in dispute according to the judgement of TN non gazetted government
officers union, Madras v the Registrar of trade union, Madras. The matter that if the so called
association is provided with the recognition of trade union in tern implies the fact that they are
provided with the right of collective bargaining.
Restrictions on the Freedom of Association
The right of association like other individual freedom is not unrestricted. Clause
(4) of Article 19 empowers the State to impose reasonable restrictions on the right of
freedom of association and union in the interest of "public order" or "morality" or "sovereignty
or integrity" of India. It saves existing laws in so far as they are not inconsistent with
fundamental right of association. The Criminal Law (Amendment) Act, 1908, as amended
by the Madras Act, 1950, provides that if the State Government is of opinion that any
association interferes with the administration of law or with the maintenance of law and
order or that it constitutes a danger to the public peace it may, by notification in the
Official Gazette declare such association to be unlawful.
4

Raja Kulkarni Vs State of Bombay (1954) SC 73

Such a notification was to be placed before an Advisory Board. Representation against

such a notification could be made. If the Advisory Board was of opinion that the association was
not unlawful the Government was to cancel the notification.
The validity of the above Act was challenged in the case Of State of Madras v. V.G.
Rao5, The Supreme Court held that the restrictions imposed by Section 16(2)(b) of the Act
were unreasonable, The test under it was subjective satisfaction of the Government and the
factual existence of the grounds was not a justiciable issue.
Therefore, the vesting of power in the Government to impose restriction on this right,
without allowing the grounds tested in a judicial enquiry, was a strong element to be taken into
consideration in judging the reasonableness of the restrictions on the right to form association or
union.
Tosummarise the grounds upon which the case was rejected the petition before him. After
referring to the definition of "Trade Union" in section 2(h) of the Trade Unions Act, the learned
Judge pointed out that a vital consideration would be the content or significance of the word
"workmen" as occurring in section 2(h) and he was of the view that this would primarily signify
only manual laborers, or workers of that class. This was one ground upon which the learned
Judge ultimately concluded that civil servants of the present Association could not be considered
as workmen at all. Next, the learned Judge pointed out that the concept of "collective
bargaining", which is the rationale behind the Trade Union movement and the existence of the
Trade Unions was wholly inappropriate when applied to Government servants.6
This was all the more so in this country where the civil service was not a mere tenure at
the pleasure of the Crown, as in the United Kingdom, but where constitutional safeguards were
provided for such civil servants, as in Article 311 of the Constitution, and the terms of service
were themselves the subject of elaborate statutory rules. The Indian Trade Unions Act
contemplated not merely collective bargaining, but also the permeation of the Trade Union by
outside influences to a certain extent (Secs. 21 and 22) and definite participation in politics (Sec.
16). These were elements that had to be totally eschewed, in the public interest itself, with regard
to the civil services. A strike, the acknowledged weapon of Labour Organisations, must be
5

AIR (1952) SC 196

Supra note 1.

considered inconceivable as a normal feature of the relationship between the State and its civil
servants, at least with regard to essential State functions. This was another vital ground on which
the learned Judge considered that this Service Association was not a trade union, and could not
be registered as such. Finally, the learned Judge referred to the Memorandum of Association and
the objects as specified in Rule 4. He stressed that those objects were benevolent and
ameliorative, and that they could not sustain the interpretation that the association existed for
"regulating the relations between workmen and employers (State)" or, in brief, for "collective
bargaining" with the State. Upon all these grounds, the petition was dismissed.7

Collective Bargaining and Trade Unions

Industrial harmony is essential for economic progress and the concept of Industrial
harmony wants the existence of undertaking, co-operation and sense of partnership
between employers and employees. There may be conflicting interests between employer and
workmen but this attitude leads to an understanding for achieving common goals, such as
production and prosperity. The phrase collective bargaining was first coined by Sidney
and Beatrice Webb. This was widely accepted, particularly in the developed countries.
Generally by collective bargaining we mean, an essential element of economic democracy, is a
two party procedure for arriving at a commonly agreed solution. The term is thus used to
describe the procedure, whereby employers must attempt to reach agreement about wage-rates
and basic conditions of labour with trade unions, instead of with individual workers. In other
words, it is the process of discussion and negotiation between an employer and a union
culminating in a written agreement or contract and the adjustment of problems arising
under the agreement.
Collective bargaining writes Harbison8is a process of accommodation between
two institutions which have both common and conflicting interests. Its aim is not to seek
industrial peace at any price. Constructive bargaining should seek to promote the attainment of
the commonly held goals of a free society.

ibid
Goals and Strategy in Collective Bargaining by F.H. Harbison, Harper &Bros. USA.1951

In the context of the present day egalitarian society, with its fast changing social
norms, a concept like collective bargaining is not capable of a precise definition. The content
and scope of collective bargaining is a process of bargaining between the employers and their
workers, by which they settle their disputes relating to employment or non-employment, terms of
employment or conditions of labour of the workmen, among themselves, on the strength of the
sanctions available to each side.
Collective bargaining is a technique by which disputes as to conditions of employment,
are resolved amicably, by agreement, rather than by coercion. The dispute is settled
peacefully and voluntarily, although reluctantly, between labour and management, seeks to
achieve social justice on the basis of collective bargaining9
Meaning of Collective Bargaining
As put by Louis E. Howard, collective bargaining means . To get together (right
of meeting), to enter a common organization (right of association), to determine that
whatever conditions of work are allotted shall be the same for all workers and to make a
bargain with employers to that effect (rights of combinations and bargaining) and eventually
in case the employers should refuse to enter on such a bargain or fail to honour it when entered
upon, to confront them with a united refusal to go to work or to continue at work (right of
strike).Collective bargaining as a technique for the fulfillment of the needs and objectives of
workers and employers is an integral part of industrial society. It is, in fact, an extension
of the principles and practices of democracy to industry. It is a dynamic process and is
constantly expanding.
Collective bargaining is the principal factor behind formation of trade unions. While the
Common law did not recognize Collective bargaining, it became a norm only when large
scale industries developed and it became necessary to regulate the capital-labour relations with
a view to better the working conditions of labour and sustaining the industrial peace in
the country. The ILO conventions and the Constitution of India which the people of India
have given to themselves amply recognize the right of employees to form Unions to
espouse their cause. The Trade Unions Act, 1926 is one of the earliest labour legislations

Karnal Leather KaramchariSanghathan V Liberty Footwear Co 1990 Lab IC 301, 307 (SC),per Jagannatha Shetty J

in India to recognize this valuable and significant right of the labour. The Act besides providing
for registration of trade unions seeks to grant recognition to trade unions and provides a broad
legislative parameter within which the trade unions have to function.
The common law hadrecognised relations between individuals as master and servant. It
did not recognise collective bargaining or anybody that is entitled to represent the body of
workmen in negotiations relating to employment or the terms of employment or with the
conditions of labour of any person. In common law, if a number of employees in concert and
combination withdraw their labour and decide not to work, it would amount to a breach of
contract, which was actionable in common law.
In the UK the Industrial Relations Act, 1971 establishes a presumption in favour of
the collective agreements and in the US under the National Labour Relations Act, 1935
collective bargaining by employers with chosen representatives of employees is
compulsory. Collective bargaining is put on statutory basis in Canada, Australia and other
countries. In Sweden, The Terms and Conditions of Employment Act, 1959 sanctions collective
bargaining. W. Friedmann observes in Law in a Changing Society,10 2nd Edn. 1996 at p. 156 as
follows:
"The vital significance of collective bargaining for the law of contract thus lies in its
following aspects; first, it resembles a standard contract of business and industry in that
standardized terms regulate the conditions of employment of millions of individuals.
Secondly, it is a most important instance of a public law function delegated, by the
permissive or even imperative authority of the State, from government to social groups. Thirdly,
the freedom of the individual to bargain in his terms of employment is inevitably
curtailed by the prevalence of collective bargaining. It is even excluded where the closed
shop' is recognised either legally or de facto. Fourthly, this lack of freedom is compensated by a
substantial restoration of equality of bargaining power. It is not the individual employee who has
regained equality, but the trade union negotiating on his behalf. Although the trade union is not
strictly speaking the agent it has in effect absorbed and consolidated the bargaining power
formerly vested in the individual.

10

S.Krishna Murthy, Commentary on Trade Union Act, 1926, Commercial Pub. New Delhi (2002) p.3

10

Collective bargaining could be an effective instrument in the settlement of disputes

and advancement of the cause of labor if certain basic conditions are fulfilled.
Firstly, the primary condition for the successful process of collective bargaining is
the existence of well-organized and fully recognized trade unions with well-defined policies.
It follows that collective bargaining is not very useful in the early stages of development
when unions are not well organized.
Secondly, collective bargaining can be an effective technique of settling industrial
disputes when there is a spirit of give and take between the employers and the workers.
Thirdly, as there is no legal sanction behind the terms and conditions voluntarily
agreed upon, the parties concerned must do things and act in good faith on the basis of
mutual agreement.
Fourthly, much depends upon the moral fiber of the labor leaders as well as the
employers. There should be a complete and true understanding and appreciation of each others
viewpoints. Face to face meetings between the representatives of workers and employers can
serve a useful purpose only when the traditional prejudices are kept aside by both the parties.
Finally, there should be no uncertainty about the fields in which the parties are
legally required to bargain collectively.11

WORKMEN
The following provisions of the two Acts (Indian Trade Unions Act, 1926, and Industrial
Disputes Act, 1947) are valuable for a comprehension of the arguments upon which the case was
decided upon.
Under Trade Union Act ,1926.
Section 2(g) of the Trade Unions Act states:-

11

Dr.T.N.Bhogoliwal, Economics of Labour and Social Welfare, SahityaBhavan Pub. Agra(1974) p.119

11

Trade dispute means any dispute between employers and workmen or between workmen
and workmen, or between employers and employers which is connected with the employment or
non-employment or the terms of employment or the conditions of labor, of any person, and
"workmen" means all persons employed in trade or industry whether or not in the employment of
the employer with whom the trade dispute arises.
Section 2(h) runs as follows:Trade Union means any combination whether temporary or permanent, formed primarily
for the purpose of regulating the relations between workmen and employers or between
workmen and workmen, or between employers and employers or for imposing restrictive
conditions on the conduct of any trade or business, and includes any federation of two or more
Trade Unions.
As we have stated earlier, section 5 of the Act entitles a Trade Union to apply for
registration, and provides that the application shall be accompanied by a copy of the rules of the
Trade Union, and statement of specified particulars. Under section 5(2), where a Trade Union
has been in existence for more than one year before the making of the application for its
registration, a further general statement of assets and liabilities is required to be submitted. Under
section 7(1) of the Act, the Registrar may call for further information, for the purpose of
satisfying himself that an application complied with the provisions of sections 5 and 6 of the Act
and that the Trade Union is entitled to registration. The Registrar may refuse to register a Trade
Union until such information is supplied. Section 8 relates to registration proper, and section 11
provides for an appeal by a person aggrieved by any refusal of the Registrar to register a Trade
Union. In this case, the Registrar did not call for any further information under section 7; he has
really no jurisdiction to decline registration. This argument was obviously unsustainable.
The very terms of section 8 are that the Registrar has to register the Union on being
satisfied that the Trade Union has complied with all the requirements of this Act"; this shows
that where the definitions under sections 2(g) and 2(h) are themselves inapplicable to the socalled Union, the Registrar has every power to decline the registration. It is for the specified
purpose of granting redress against the erroneous exercise of such power that the appeal is
provided for under section 11. Section 16 of the Act, as noted by us earlier, enables the Union to
constitute a separate fund for political purposes and objects and to pursue those purposes,
12

enumerated in section 16(2). Sections 17 and 18 refer to the immunity of the members of
registered Trade Unions from criminal proceedings in certain respects, and similarly from civil
suits in certain cases. Under sections 21 and 22, there is room from the introduction of outsiders
as office bearers into the executive of a registered Trade Union, or of outsiders as members, after
registration.
Under Industrial Dispute Act, 1947
Turning now to the Industrial Disputes Act (Act XIV of 1947), we find the very
important definition of "industry" in section 2(j) of the Act in the following termsIndustry means any business, trade, under taking, manufacture or calling of employers
and includes any calling, service, employment, handicraft, or industrial occupation or avocation
of workmen.
An equally important definition is that of "workmen" in section 2(s) of the following
terms:"Workmen means any person (including an apprentice) employed in any industry to do
any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward,
whether the terms of employment be express or implied, and for the purposes of any proceeding
under this Act in relation to an industrial dispute, includes any such person who has been
dismissed, discharged or retrenched in connection with or, as a consequence of, that dispute, or
whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such
person
(i) Who is subject to the Army Act, 1950 (46 of 1950) or the Air Force Act, (45 of 1950),
or the Navy (Discipline) Act, (34 of 1934); or
(ii) Who is employed in the police service or as an officer or other employees of a prison;
or
(iii) Who is employed mainly in a managerial or administrative capacity; or
(iv) Who being employed in a supervisory capacity draws wages exceeding five hundred
rupees per month or exercises, either by the nature of the duties, attached to the office or by
reason of the powers vested in him, functions mainly of a managerial nature?
13

With regard to the present appeal, section 9-A concerning notice of change in the
conditions of service is important; clause (b) of the proviso specifically exempts from such
notice, workmen who are persons to whom the Fundamental and Supplementary rules, Civil
Services (Classification Control and Appeal) Rules apply.
This certainly suggests that at least employees of the quasi-Government Organisations,
such as the Industrial undertakings or Insurance corporations, are persons to whom the Industrial
corporations are persons to whom the Industrial Disputes Act may apply. We may further note
that under section 36(1) of this Act, a workman who is a party to an industrial dispute is entitled
to be represented in a proceeding under the Act by "an officer of a registered Trade Union of
which he is a member". The Union is keen upon registration under the Trade Unions Act, not
merely for the privileges or immunities conferred under sections 17 and 18 of the Act, which we
have noticed earlier, but even more importantly for this power or being represented in an
industrial dispute, by the Union.

CONCLUSION
The researcher is of the view that the trade union is of less importance to the to
government officials for a fact that they are provided with constitutional safeguards under art.311
of the Indian constitution , where as if we take into consideration as to why there was an
emergence of trade union for civil servants in UK. The officials who are posted in the
government are not provided with the constitutional safeguards as provided in India, as they hold
their respective post under the pleasure of the Crown. This has led to the emergence of trade
union.
The situation in why there was emergence of trade Union in UK was because of the fact
that when these officials are posted, and there is a dispute against their higher officials, it can
only be sorted out with the governments intervention and thus here the government would act as
a third party. As they are not provided with safeguards , a mere individual concern would not
amount to anything, thus it if required in situations such as this , that a Trade Union is set up for
promoting collective bargaining and to keep a check on arbitrary actions by the higher officials.

14

But in the case of India, for a fact we are provided with constitutional safeguards under
Art.311 of the constitution, and they are provided with the right to form associations .they are
provided with a mechanism (safeguard) which provide them power to question, the so called
arbitrary action, or the problems which they wanted to bring about with the help of An
established Trade Union. Now as they are provided with the safeguards now they tent to go
against the Government, it will be government against the government, which is leads us to a
situation where the appropriate government will be in question.
Suggestion:
Well when it comes to government servants who do not belong to the safeguards and who
is a government servant, there arises a dilemma, where it is up to the registers of the trade Union
as to determine if as association such Government servants would be provided an option of
forming the trade union. As for them the weapon of collective bargaining is the only hope, as
they are not provided with safeguards.

15

Bibliography
Primary Source
1. Trade Union Act,1929
2. Industrial Disputes Act,1947.
3. Case Laws
Secondary Sources
4. Vijayasekhar,RD. Labour Law-I, 2nd Ed., 2010,Vijay Publications, Hyderabad
5. Nair,M.Krishna. Labour and Industrial Law 12th Ed.,2014,The Acadamey of Legal
Publications, Thiruvananthapuram.

16