The Tamil Nadu Non-Gazetted Government Officers’ Union, Madras v.The Registrar of Trade UnionsAIR 1962 Mad. 234

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ANANTANARAYANAN, J. – The Tamil Nadu Non-Gazetted Government Officers’ Union
is a Services Association which has been recognised by Government, and the membership of
which is open, according to Rule 7 of its constitution, to all Non-Gazetted Government
Officers employed under the Government of Madras except the Executive Officers of the
Police and Prisons Departments and the last grade Government servants. The objects of this
Association are set forth in Rule 4 of the Constitution, and it is seen that they are beneficent
and ameliorative in character, designed along the lines of promoting the welfare of the
members in multiple directions. The Association represented by ten of its members applied on
23-12-1957 to the Registrar of Trade Unions, Madras, for registration as a Trade Union, under
section 5 of the Indian Trade Unions Act (Act XVI of 1926). In a brief order, the Registrar
rejected this application, in which, after a reference to Secs. 2 (g) and 2 (h) of the Act, he held
that such an Association of ministerial employees of the Administrative Departments of
offices of the Government of Madras could not claim to be a Trade Union at all and was not
eligible for registration under the Act. Admittedly, against such an order declining registration
an appeal is provided for under section 11 of the Act and this was duly preferred. The learned
Judge who dealt with the proceeding (Rama Chandra Iyer, J., as he them was) delivered a
judgment in which he had occasion to trade, in some detail, the history of the Trade Union
movement in the United Kingdom, in order to elucidate certain fundamental principles. This
appeal is before us as preferred by the Union and its secretary, from the order of the learned
Judge.
(2) We shall set forth, a little subsequently, the relevant definitions and provisions of the
Indian Trade Unions Act, as well as certain definitions in the Industrial Disputes Act XIV of
1947; though the learned Judge was definitely of the view that these two enactments are not in
pari materia and do not together constitute any code or legislation it is at least indisputable
that sections of the Industrial Disputes Act, 1947, are also very relevant for purposes of
comparative analysis. But before doing this, it is essential for an appreciation of the basic
issues, to summarise the grounds upon which the learned Judge (Rama Chandra Iyer, J.,)
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 word primarily signify only manual labourers 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.
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 safe-guards
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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 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 Services 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, to which we have made
earlier reference. 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.
(4) 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. This may be the convenient context for nothing an
argument of the learned counsel for the appellant Union (Sri A. Ramachandran). The learned
counsel argues that where as 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 is
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,
enumerated in section 16 (2). Sections 17 and 18 refer to the immunity of the members of a
registered Trade Union from criminal prosecution in certain respects, and similarly from civil
suits in certain cases. Under sections 21 and 22, there is room for the introduction of outsiders
as office bearers into the executive of a registered Trade Union, or of outsiders as members,
after registration.
(5) 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 terms –
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Industry means any business, trade, undertaking, 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) in the following term:-
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
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 is a member”. Learned
counsel (Sri Ramchandran) argues that the appellant 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.
(7) Upon one ground, we do not think that it is really necessary to follow the learned
Judge into the analysis that he has made. The learned Judge refers to the definitions of
“workmen” in the Concise Oxford Dictionary and Wharton’s Law Lexion, and concludes that
the term could only fairly characterise persons engaged in manual labour semi-skilled
occupations for wages, and could certainly not include civil servants of the State. It is
certainly true that such a restrictive interpretation appears to have prevailed at one time, and
to have found expression in several Acts in the United Kingdom, such as the Bankruptcy Act
1883, Employers and Workmen Act, 1875, Truck Acts 1887 etc., (see Burrows Words and
Phrases, Vol. 5, page 527). But, more and more as the industrial structure expanded, such a
limited definition became out of place; further, it was clearly impossible to sustain, him a
logical point of view, a distinction between brain-workers and manual workers, in relation to
‘industry’ broadly conceived. One instance suggested to us may be significant. It would be
difficult to hold that a typist does not do manual labour; literally his work is executed with his
hands conforming to the etymological sense of the definition. But equally, it would be
impossible to deny that a typist is also a brain-worker, or to deny that he is a “workman” in
industry. Obviously, springing from such causes, we find that the earlier attitude is no longer
maintained, particularly in Industrial law in the United States of America. For instance, in
Corpus Juris Secundum (Vol. 98 page 834), “workman” is defined as – “a tailer, a worker,
one who works in any department of physical or mental labour”. Also see the definition
furnished by Bouvier cited in “Works and Phrases” Permanent Edn. Vol. 45, page 508 as “one
who labours; one who is employed in some business for another.” Finally in N. A. Citrine’s
(now Lord) “Trade Union Law” (1960 Edn.) the learned author observes (page 312) “It is
suggested that a similar wide interpretation of the definition of “workmen” will be adopted by
courts.” In the United Kingdom, Association of variety artistes and Musicians have been
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recognised as unions of workmen, and the old distinction of the restrictive meaning no longer
holds the field.
(8) Apart from this, as far as the present judgment is concerned, the learned Judge appears
to have overlooked the definition of “workman” in section 2 (g) of the Trade Unions Act itself
in the form – “means all persons employed in trade or industry.” The learned AdvocateGeneral has placed certain arguments before us with regard to this definition, and the
implication of the word “means”, as occurring therein. We shall dilate upon this a little later.
It is here pertinent to observe that this definition, if considered integrally with the definition of
“Trade Union” in section 2 (h) renders otiose and even inadmissible any arguments founded
upon the distinction between manual labour and brain-labour, in the context of the word
“workmen”. It is here important to take note of another judgment of the learned Judge
(Ramachandra Iyer, J., himself) in Rangaswami v. Registrar of Trade Unions [AIR 1962
Mad. 231], a similar petition with regard to the order of the Registrar of Trade Union refusing
to register the Union of Employees of the Madras Raj Bhawan, as a Trade Union under the
Act. This judgment has really to be read as supplementing the judgment in appeal, with regard
to the broad perspective of approach and the learned Judge herein specifically refers to the
definition of “workmen” which occurs in section 2 (g). Upon these grounds, it is not essential
to explore further the argument based upon the distinction as one of the factors justifying the
order of the Registrar declining to register the appellant Union.
(9) Next, it is argued by learned counsel for the appellant Union, that as noted by the
learned Judge himself, such Unions of civil servants of the State are recognised as Trade
Unions in the United Kingdom. It is stressed that this recognition should also become part of
the Industrial law of this country; particularly as Trade Unions of the workmen in the
railways, which are now State concerns, already exist. There is no doubt about the situation in
the United Kingdom, and a single sentence from a passage in the “History of Trade Unions”
by Sydney and Beatrice Webb (1950 Edn., p. 507) cited by the learned Judge himself, will
suffice.
Practically no one below the rank of an Under Secretary of State is held to be
outside the scope of the Society of Civil servants.
It is strenuously contended that the same principle should apply here, that any distinction
between tenure at the pleasure of the Crown, in the United Kingdom, and tenure subject to
constitutional safeguards, as in this Country, is really invalid for the purpose of applying the
criterion under the Trade Unions Act, and that, in brief, the learned Judge was in error in
holding that the appellant Union was not entitled to registration. Sri Ramachandran further
contends that recent case-law has been in the opposite direction, namely, the direction of
recognising even Governmental activities as part of “industry”, and the employees of such
branches of administration as “workers” entitled to form Trade Unions, subject of course, to
well-recognised exceptions) section 2(s) of Act XIV of 1947), categories (i) to (iv); the cases
relied on, chiefly are State of Bombay v. Hospital Mazdoor Sabha [AIR 1960 SC 610],
Banerji v. Mukherjee [AIR 1953 SC 58] and Nagpur Corporation v. Its Employees [AIR
1960 SC 675]. These arguments certainly deserve careful consideration at our hands.
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(10) We think it is clear that there are two broad grounds upon which the claim of the
appellant Union to registration as a Trade Union could be properly resisted. The first ground
is inherent to the very constitution of the Union, and the admitted facts of its structure, in
relation to a basic principle stressed by the Supreme Court; we do not see how this ground of
objection can in any manner be negatived. The second ground is more open to controversy,
but even here we are inclined to the view that at least as relative to the core of the civil
services entrusted with the implementation of the essential and sovereign functions of
Government, the ground of objection is valid. But the first ground alone is really sufficient to
dispose of the present appeal.
(11) As the learned Advocate-General contends, the word “means” when it occurs in a
definition, and occurs without the complementary expression “and includes”, is restrictive and
explanatory in character. The matter was put thus by Lord-Esher M. R. in Gough v. Gough,
1891-3 QB 665, at p. 674:
It is a hard and fast definition, and the result is that you cannot give any other
meaning to the word landlord in the Act than that which is mentioned in the
definition.
Also see Burrows – Words and Phrases, Vol. 3, page 347, and page 49 of Supplement, where
Canadian case-law on the matter is cited. Hence, the word “workmen” as occurring in the
Trade Unions Act, means “all persons employed in Trade or industry” without any other
criterion or reference. The question therefore is whether such persons as Sub Magistrate in the
Judiciary, Tahsildars, Officers of the Treasuries and Home department of Government, who
are all members of the appellant-Union according to its constitution, could, by any stretch of
imagination, be regarded as “workmen employed” in “trade” or “industry”. Learned Counsel
for the appellant Union (Sri Ramachandran) draws our attention to the observation of Lord
Wright in National Association of Local Govt. Officers v. Bolton Corporation [1943 AC
166], to the effect that:
Indeed Trade is not only in etymological or dictionary sense, but in the legal
usage, a term of the widest scope.
He points out that in (AIR 1960 SC 610), a hospital subsidised and run by Government was
held to be “industry” within the scope of the wide definition of section 2 (j) of the Industrial
Disputes Act. But this very case furnishes us with a point of departure in the direction of
excluding the core of the civil services from the definition of “workmen”.
However wide the term “trade” might be, in all the authorities cited before us, the
Supreme Court has approved of the dictum that those activities of the Government which
should be properly described as regal or sovereign activities were outside the scope of
“industry”,
“These are functions which a constitutional Government can and must undertake for
governance, and which no private citizen can undertake” (AIR 1960 SC 610 at p. 615). Their
Lordships also quoted the reference of Lord Watson in Coomber v. Justices of Berks, [(1883)
9 AC 61] to “the primary and inalienable functions of a Constitutional Government.” Again,
the dicta of Issacs, J., in Federated State School Teachers’ Association of Australia v. State
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of Victoria, [(1929) 41 CLR 569], were quoted with approval by the Supreme Court in AIR
1960 SC 675, namely,
Regal functions are inescapable, and inalienable. Such are the legislative power,
the administration of laws, the exercise of the judicial power.
The Supreme Court added –
It could not have been, therefore, in the contemplation of the Legislature to bring
in the regal functions of the State within the definition of “industry” and thus confer
jurisdiction on industrial courts to decide disputes in respect thereof.
Also see the observations of this Court in Govindarajulu Naidu v. Secy. of State [AIR 1927
Mad 689], repelling an argument based on the wording in clause 12 of the Letters Patent, that
the business of Government being to govern, Government must also be deemed, within the
meaning of the section, to carry on business at its head-quarters. This court observed :
The business intended by the section is a commercial business and not a business
of State or Government.
(12) But if this criterion is to be applied, it is evident that the very basis of the structure of
the appellant Union would exclude its registration as a Trade Union. The appellant Union
purports to include among its members Sub Magistrates of the Judiciary, Tahsildars entrusted
with the powers of enforcement of the tax-machinery (Revenue Recovery Act etc.), officers in
charge of Treasuries and Sub-treasuries officers of civil court establishment, and of the Home
Department of Government. It is impossible to contend that these are not civil servants
engaged in the tasks of the sovereign and regal aspects of Government, which are its
inalienable functions; they cannot be included within the definition of “workmen” in an
“industry” to whom either section 2 (g) or 2 (h) of the Trade Unions Act can apply. Learned
counsel points out that the Association equally includes members of the State Transport
organisation, the Cinchona factory of Government, etc., who could well be regarded as person
in an “industry” since these are specific industrial undertakings of Government, certainly not
part of its essential and regal functions. This may well be so. As the learned AdvocateGeneral has conceded, there are three categories to be regarded here, the middle of which
shares the characteristics of the other two, and is hence debatable in its scope.
Firstly, we have the core of the civil services integrated with the inalienable and regal
functions of government; those aspects of governmental activities cannot be an “industry”;
not can such civil servants be “workmen”. As opposed to this, we have those independent
corporations which are quasi-Government agencies, or subsidised undertakings, which are
purely industrial in character; these may be such concerns as a Machine Tool factory,
Insurance Corporation etc. Here there would appear to be little room for doubt, upon the
authority of (AIR 1960 SC 610), that these are industrial undertakings, whose employees are
“workmen” at least as defined in the Industrial Disputes Act XIV of 1947. The learned Judge
considers that the Trade Unions Act is not in pari materia but however this might be, it may
be difficult in principle to claim that such employees could not raise “industrial disputes” or
form Trade Unions for the conduct of such disputes. But we have the intermediate category,
forming as the learned Advocate general phrased it, a kind of penumbra where light and
shadow are mixed. Here, differences of view are certainly possible. Certain welfare,
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educational or ameliorative departments of Government might or might not be regarded as
liable to exclusion; the employees in those departments might or might not hence be regarded
as “workmen” in an “industry”. But we have no doubt that the appellant Union, with its wide
and unqualified basis cannot claim to consist of “workmen” in an “industry”. Sri
Ramachandran argues that as the learned Judge himself has explicitly stated in a portion of his
judgment “The test for a Trade Union is its object, and not its personnel. But that does not
imply that persons who are not workmen” in an “”industry” can form a Trade Union at all;
obviously they cannot, for the definitions in sections 2 (g) and 2 (h) could not apply to them,
and they could neither raise a “trade dispute” nor form a “trade union”. It is noteworthy that,
as we have pointed out-siders can come into the picture only after the registration of the Trade
Union. On this clear ground, the appellant Union must fail.
(13) Even upon the second ground, we consider that the appellant Union is not entitled to
succeed, at least with reference to the members of the civil services who form part of the
essential and regal administrative machinery of Government. Under Article 310 of the
Constitution even in this country, 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 inappropriate and
foreign. “Collective bargaining” is a right conceded to Labour Organisations within the
contractual field of the employer and employee relationship. It would become a grotesque
anomaly that if civil services, for instance, were permitted to raise a ‘trade dispute” with
regard to the dismissal of a civil servant it may be for activities against the State itself, and at
the same breath to claim that the 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. Hence, whatever might be the
developments in the United Kingdom, it is difficult for us to conceive of “collective
bargaining” as governing the State in its relations to civil services. It is not necessary for us to
express any view whether, in the event of the employee of those branches of Government,
which do partake of the character of “industry” organising themselves into an Association of
this kind, they would be eligible for registration as a trade Union, or otherwise.
(14) We are therefore of the view, on a careful consideration of the grounds urged before
us, that the order of the learned Judge (Ramachandra Iyer, J.,) was correct, and that this
appeal has to fail. We accordingly direct that it be dismissed but, under the circumstances,
without costs.