JUDGMENT K. Sukumaran, J. 1. Badagara area, praised in the Ballads of North, has contributed this trade union litigation. 2. The plaintiff was the successful bidder of the exclusive right to vend toddy in the Badagara range for the year 1980-81. An abkari contractor of that statute has to invest considerable sums for the conduct of the business in the shops and the sub shops. Payment to the Government (kist), wages to the workers, remittance towards workers amenities under the Welfare Act, are some of them. The kist itself exceeded Rs. 2 lakhs. There were 20 toddy shops in the range; and more than 250 workers. 3. C. I. T. U. through its Secretary, the 1st defendant, issued a strike notice on 14-11-1980, it contained the usual threat: concede the demands or else face a strike of indefinite duration. The plaintiff did not yield. Tension naturally mounted. The Industrial Disputes Act has an effective machinery for relieving the society of the ill effects of such tension. That machinery has, however, to be handled efficiently and effectively. The conciliation machinery was, regrettably enough, ineffective in the present case. A conciliation attempt under the Industrial Disputes Act, 1947, has to be made with a total involvement in the work, and with inexorable patience at its command. Such was the patience of a Judge, Justice Norman Birkett, who medicated between two fiercely fighting sections in the press industry; and who won the hearts and laurels at the successful culmination conciliation. (See Justice Norman Birkett by H. Montgomery), Every conciliation officer is not a Birkett. The State has not evaluated the resultant waste of production in a meaningful manner. That is what is reflected from the materials in another 'labour case' S. A. No. 644 of 1990. The threatened strike was ultimately launched. It continued from 22-11-1980 to 9-12-1980. 4. Toddy palms do not participate in the strike. They carry on the chemical process and produce the toddy, unmindful of other disturbing events, once the bunches are subjected to the necessary process. Ordinarily, whatever is drawn from the tree is consumed by the patrons of the beverage. (Haldane, the scientist referred to it as the poor man's vitamin B). Exhortations even by saintly visionaries 'not to tap, not to sell and not to drink' have not yet had their full force and effect. Ordinarily, whatever is drawn from the tree is consumed by the patrons of the beverage. (Haldane, the scientist referred to it as the poor man's vitamin B). Exhortations even by saintly visionaries 'not to tap, not to sell and not to drink' have not yet had their full force and effect. The State is quite often justifiably accused as insincere in its commitments to its Directive Principles of State Policy of prohibition. The produced toddy becomes a waste, if not sold or otherwise used. There is evidence in the case that a failure to draw the toddy from the bunch tapped, would be injurious to the tree itself. It is unnecessary to dwell at length on the predicament when toddy is produced, drawn by the workers and taken to the shops. As for the abkari contractor, it is a case of total loss. It does not matter for him whether the toddy is not drawn, or drawn but consumed by the drawers or others, or drawn and brought down but sold to others directly by the workers. According to the abkari contractor in the present case, the workers not only struck work but also had a side activity of selling the teddy over which he had made the financial investments and official commitments. Deprivation of the realisations from toddy so belonging to him is the injury complained of. The contractor claims damages from the striking workers. The amount claimed represents, according to him, price of toddy drawn by the workers and sold by them, with coins going to their coffers. 5. Among the 255 defendants, all but two are workers. Defendants I is the Secretary of the union having affiliation to the Centre for India Trade Unions. The Secretary of another union having affiliation to H. M. S. is the 2nd defendant. All others are ordinary toddy workers. Social and educational handicaps, hang over of yester - years, still disable them in a tragic and intense manner. Organisational powers had gained for them much materially, but not mentally or intellectually. That is patent from the defence they put up and the arrangements they made for the conduct of the case. 6. All others are ordinary toddy workers. Social and educational handicaps, hang over of yester - years, still disable them in a tragic and intense manner. Organisational powers had gained for them much materially, but not mentally or intellectually. That is patent from the defence they put up and the arrangements they made for the conduct of the case. 6. The claim for damages was linked with two substantial averments : (1) That the toddy really belonged to the plaintiff as he had paid the State the excise revenue and paid the owners of the trees consideration for letting the trees to be tapped and had agreed to pay the workers the due and proper wages.(2) The workers positively appropriated to themselves, the proceeds of the toddy drawn by them from the trees. Even if a cessation of work is understandable as a part of the strike, the workers cannot appropriate for themselves the assets of the employer and convert them for their use and profit. 7. Initially the suit was for the damages sustained by the plaintiff for the period 22-11-1980 to 29-11-1980. As the strike had continued even beyond, and had concluded only on 3-12-1990 the plaint was amended by enveloping the damages for the subsequent period as well. No objection was filed to the application for amendment; no additional written statement was filed either, despite numerous opportunities granted in that behalf by the Trial Court. The written statement has been a jumbled crochet of irrelevant details. In a lengthy written statement, it is difficult not to accommodate at least one or two relevant details. The allegation about the sale of the toddy was denied. The strike was accepted; as also the end of the strike. According to the workers, the plaintiff had agreed to withdraw all the legal actions taken by him in the mean while. 8. The existence of two trade unions, has been already alluded to. The members of the H. M. S. Union - 64 of them, filed separate written statement. They had not gone on strike. They had no idea to strike at all. They have been damnified as a result of the strike planned and performed by the C. I. T. U. - is their contention. 9. The plaintiff and his general manager gave evidence in the case. They had not gone on strike. They had no idea to strike at all. They have been damnified as a result of the strike planned and performed by the C. I. T. U. - is their contention. 9. The plaintiff and his general manager gave evidence in the case. A Commission was taken to go around the different shops and to note the goings on. His report is Ext. C1. The Commissioner gave evidence as P.W.1. The secretaries of the two unions gave evidence as D. Ws. 1 and 2. D. W. 3 is the Excise Inspector who brought about the armistice between the fighting factions in his excise range. The defence did not file any objection to the report of the commissioner. The report portrayed pitchers filled with toddy in various shop rooms. People also had gathered around. Details about what he saw in the jars and what he saw among the striking workers have been given in the report of the Commissioner. 10. The court below took the view that the striking workers are liable to make good the loss sustained by the plaintiff since they had admitted that they had tapped the coconut trees and drawn the toddy. Such of those defendant who were members of the H. M. S. Union were exonerated from their liability, as H. M S. Union had not issued such a call for strike. 11. The workers have come up in appeal. Quite consistent with the earlier conduct of the case, the appeal was initially argued with inadequate equipment. The court indicated the discomforting situation and liberally granted adjournments sought for, for further study of facts and researched in areas of law. The adjournment did serve a purpose. 12. Two substantial contentions urged before us are; (1) No liability exists in truth and fact, in the light of the facts which had come to the notice of the court; (2) in any event, an immunity from liability as provided under S.18 of the Trade Unions Act, 1926 would insulate them against the present claim. The contentions need to be examined in the elaborate manner needed by the occasion. 13. The defendants have been sued in their individual capacity. The contentions need to be examined in the elaborate manner needed by the occasion. 13. The defendants have been sued in their individual capacity. To mulct any one or the other of the defendants with a liability known to law, there must be satisfactory and sufficient evidence which would establish individual acts resulting in the damages sustained by the plaintiff. That is indeed a very heavy burden. In order to succeed the suit the plaintiff should necessarily sustain that onus. There are certain exceptional areas where the burden is somewhat reduced. That is indicated in the statement: ''If the same evidence would support an action against each, they are joint tortfeasors.'' When persons "whose respective shares in the commission of a tort are done in furtherance of a common design," they may be joint tortfeasors. .......Where two or more tortfeasors cause different damage to the same plaintiff, the causes of action against each tortfeasor are entirely distinct from one another and the plaintiff can recover from each tortfeasor only that part of his damage for which the particular tortfeasor is responsible." (See Clerk & Lindsell on Torts, 14th Edn., Pages 114-115, Para.201-202). 14. The evidence of the plaintiff is only of a vague and general character. He admitted that only his manager knew as to who all among the workers had sold the toddy during the strike period. Nor could he say the quantum of toddy so unauthorisedly sold. His ignorance about the quantity toddy sold in each of the shop was more profound. He contradicted himself by stating on one occasion that the toddy was sold outside the shop, but rectified it in reexamination by indicating that it was in the premises of the shop that the sales were transacted by the workers. The evidence does not serve any purpose in bringing home the liability to anyone or the other among the defendants. 15. P. W. 3 is the General Manager of the abkari contractor. The evidence given by him is also not specific or pointed. He claimed to have accompanied the commissioner when the latter visited the shops. He admitted that each shop had its own cashier. The fluctuations in the quantum of toddy brought to the shop and the sales effected in the shop were spoken to by him. His evidence does not appeal to us for acceptance. The interested character of his testimony cannot be overlooked. He admitted that each shop had its own cashier. The fluctuations in the quantum of toddy brought to the shop and the sales effected in the shop were spoken to by him. His evidence does not appeal to us for acceptance. The interested character of his testimony cannot be overlooked. Added to it is the ambiguous and vague character of the evidence. As General Manager, it is indeed difficult for him to identify everyone among the workers engaged in the 20 shops. Those in actual management of the shops, who see the workers and pay them for their produce, and who deal with the consumers, had not been examined. The report of the commissioner Ext. C1 does not advance the case of the plaintiff to the desirable degree of definiteness so as to induce a court to grant a decree in his favour. The mere fact that he saw some of the jars in the toddy shop filled would not be sufficient to fasten liability on any particular defendant. The report states that on being questioned, some of those present in the shop stated their names. About the correctness of the statement of the persons so interrogated in the atmosphere of the toddy shop, no one can be safely sure. One is likely to be somewhat imaginative inside a toddy shop, depending upon the factum and quantum of the consumption he had of a drowsing beverage. Even if someone had represented himself to be either Asokan or Gopalan, a reference to that statement in the report of the Commissioner could not be treated as acceptable evidence of the presence of a particular defendant. The omission to file an objection to the report of the commissioner would then be not fatal to the defence. The suit has necessarily to entail a dismissal when the plaintiff bad signally failed to establish the liability of anyone of the 255 defendants. Viewed even from the narrow range of a civil litigation, the suit has therefore to be dismissed for the inability of the plaintiff in establishing his case as against the defendants. 16. Counsel for the plaintiff rightly stressed on the admission made by D.W. 1 Secretary of the Union that despite the strike situation, the workers had tapped the trees. In an action of this nature, where liability is in a sense individualistic, his admission cannot bind the other defendants. 16. Counsel for the plaintiff rightly stressed on the admission made by D.W. 1 Secretary of the Union that despite the strike situation, the workers had tapped the trees. In an action of this nature, where liability is in a sense individualistic, his admission cannot bind the other defendants. There is yet another formidable reason for not relying on that admission. D.W. 1 himself admitted that he was totally ignorant of many of the relevant details such as the sale of toddy during the strike period and about the membership in his union of the different defendants. It was brought out in cross examination that he was not in the habit of going to the shops. He had no intimate knowledge about the workers attached to the toddy shops or about the daily quantum of toddy delivered by them to the shop. The statement about the tapping of the trees has to be read along with the immediately following statement that the toddy so drawn used to be spilt immediately. The statement read as a whole would not then lead to an inference that the workers derived an advantage by the conversion of the property of their employer. D. W. 2 has given evidence that it would be injurious to the tree, if toddy is not drawn daily, even if it is not sold or consumed. We are inclined to accept the statement as correct. The worker has an abiding interest in the preservation of the life and health of the tree which is the sustenance of his livelihood. If is therefore probable that he would have drawn the toddy to save and safeguard the tree which according to him is a symbol of life and livelihood. In that view of the matter also, no decree can be granted to the plaintiff on the basic of the evidence given by D. W. 1 as Secretary of the C. I. T. U. 17. The suit is bound to fail for another reason as well. The entire cause of action is geared to a trade union action. The plaint itself proceeds on that footing. There is a prominent reference in Para.3 of the plaint about the strike notice served by the 1st defendant's union. The suit is bound to fail for another reason as well. The entire cause of action is geared to a trade union action. The plaint itself proceeds on that footing. There is a prominent reference in Para.3 of the plaint about the strike notice served by the 1st defendant's union. The strike that actually commenced and the injury sustained by the plaintiff, and the claim for damages dealt with in the plaint are all linked with this basic situation of strike. Can a suit succeed in a situation against the striking workers? 18. A strong enough answer is statutorily furnished. That is contained in S.18 of the Trade Unions Act, 1926. The section reads: "18. Immunity from civil suit in certain cases. -- (1) No suit or other legal proceeding shall be maintainable in any Civil Court against any registered Trade Union or any office bearer or member thereof in respect of any act done in contemplation or furtherance of a trade dispute to which a member of the Trade Union is a party on the ground only that such act induces some other person to break a contract of employment, or that it is in interference with the trade, business or employment of some other person or with the right of some other person to dispose of his capital or of his labour as he wills. (2) A registered Trade Union shall not be liable in any suit or other legal proceeding in any Civil Court in respect of any tortious act done in contemplation or furtherance of a trade dispute by an agent of the Trade Union if it is proved that such person acted without the knowledge of, or contrary to express instructions given by, the executive of the Trade Union." 19. The Inter action of pristine principles of Tort and progressive projections of workers' movement has been the subject matter of discussions in judicial forums and academic circles. The Supreme Court of India through Krishna Iyer, J gave an understandably elaborate discussion on allied topics. (Vide Rohtas Industries v. Its Union, AIR 1976 SC 425 ). Kalliath, J. discussed a similar problem in CRP 409/87. It is unnecessary for the purpose of this case to find out the dominant motive of the striking workers, to come to a comfortable conclusion on the crucial controversy whether it is an illegal strike or not. (Vide Rohtas Industries v. Its Union, AIR 1976 SC 425 ). Kalliath, J. discussed a similar problem in CRP 409/87. It is unnecessary for the purpose of this case to find out the dominant motive of the striking workers, to come to a comfortable conclusion on the crucial controversy whether it is an illegal strike or not. The workers through their unions had already given notice about their intention to strike work, The plaintiff had admitted that he had not sought protection of the court, in continuing his trading activity. Whether he should seek and obtain police protection from the court or resort to remedy by way of injunction, did not occur to him - he said. He admitted that there was a demand from the workers who belonged to the H. M. S. Union to keep open the shops and continue the business. Ha had closed the shops as he felt that the customers would not frequent them in the prevailing situation. The demand was for higher wages. It is difficult to postulate a case of malicious motive on the striking workers so as to characterise their agitation as one intended to destroy or damage the industry. The fact that the employer suffers, and suffers much by the strike is not a decisive criterion. In the process of collective bargaining, the employer or the employees or even both may suffer: the employer by the deprivation of his profits and the incurring of loss even otherwise; the employees by the denial of work either voluntarily or self imposed, and the resultant deprivation of the wages which may expose them even to the pangs of starvation. A strike per se, would not therefore be an actionable wrong. In any case, the trade union, the office bearers and the members are insulated against legal pieces dings linked wish the strike of the workmen. In the present case, the action has necessarily been linked with such a strike. The court below also proceeded on that basis. That was the foundation of the finding by which the workers having affinity towards the H. M. S. Union were exonerated from the liability. In such a situation, the Trade Unions Act through its S.18, unfolds an umbrella of protection to the defendants. In that view of the matter, the decree of the court below is denuded of its legal foundation. In such a situation, the Trade Unions Act through its S.18, unfolds an umbrella of protection to the defendants. In that view of the matter, the decree of the court below is denuded of its legal foundation. The appellate court has to declare so and direct removal of the debris. We would accordingly allow the appeal but without any order as to costs. 20. There was a time when masters put up in their shop windows, "Good hands wanted: no Unionists need apply." This was treated by Baron Bramwell, as a conspiracy at common law. Trade union movement has indeed its glorious history. Trade unionism was led by Robert Owen, the founder of Socialistic movement (which according to some appeared as Utopian as against the scientific). Combinations among wage earners were illegal until 1824. (See In My Time An Autobiography by Lord Elwyn-Jones, Page 90). The London Working Men's Association was founded in 1836. One of the earliest enactments somewhat adverse to the interest of the labour was the Act passed in 1826 during the reign of George IV. Master and Servant Act 1867 was bailed by Mr. and Mrs. Webb in the History of Trade Unionism as the first positive success of the trade unions in the legislative field. (See History of Trade Unionism, Page, 236), A Royal Commission on Trade Unions under the chairman ship of Sir William Erie started a laborious but rewarding work in 1869. It collected massive information about the workers and the trade unions. Applegarth, Secretary to the amalgamated Society of Carpenters, it is recorded, dispelled much ignorant prejudice by proving that the trade unions "desired neither secrecy norcoercion." The wealth of materials collected by the Commission was such that all subsequent writers on the subject had founded their theories of Trade Unionism, upon the evidence which the Commissioners took and printed. In 1871, the time had come for giving effect to the Report of the Royal Commission on Trade Unions. At this distance of time, it may be a matter of historic curiosity to note that registration for the trade unions "was only to be granted where there was no interference by the Union with the mode in, which the masters conducted their business." Taff Valley case, 1901 A.C. 426, is well known to the students of law and the trade unionists. Lenin commented about it. Lenin commented about it. Legislative history on Trade Unionism starting with the Trade Disputes Act 1906, has been sketched by Lord Denning in Hadmor Productions v. Hamiltion, (1983) A. C. 191, pages 202 to 204. A still later decision associated with Associated British Ports v. TGWU, (1989) 3 All E. R.822 discusses the concept of economic torts with reference to the trade union activity and the concept of statutory duty of the workers. (The House of Lords did not accept a contention about the action of the trade union as inducing a breach. It indeed used a strong language in expressing its view as is evident from that part of the sentence, "it would surely be nonsense to describe the union's action as inducing a breach.") 21. There are useful discussions on the rights and liabilities of trade unions in academic treatises on Torts and trade unions. The economic torts have been dealt with under a separate chapter, Chap.22 by C. D. Baker. (See Tort, Fourth Edition, Page 299). The Law of Contract interference, which "was of considerable significance in labour management disputes and in the law of trade regulation", has been dealt with by Prosser and Keeton on Torts, Fifth Edition in Chap.24. (See the discussion starting at page 1002), Much information on the topic is available from Kidner's Trade Union Law. 22. We have broadly referred to a fractional background of the law relating to the trade unions. The conduct of the case has prompted us to do so Time was then those who worked among the workers had fiery zeal and immaculate intellect. They could exhort the workers all over the world to unite and tell them that they had nothing to lose except their chains but a world to gain. They had ideas in their mind and books in their hands. 23. The Secretary of the Union would not appear to have given timely or adequate instructions to counsel appearing for the workers he represented, (The majority of the workers was in his union). The inartistic written statement is a reflection of this lapse. We have already alluded to the omission to react to the application for amendment of the plaint: and what is more, to the grievous omission in filing an amended written statement. There was no attempt to file any objection to the report of the Commissioner. The inartistic written statement is a reflection of this lapse. We have already alluded to the omission to react to the application for amendment of the plaint: and what is more, to the grievous omission in filing an amended written statement. There was no attempt to file any objection to the report of the Commissioner. The plaintiff employer rightly placed considerable reliance on his admission that the workers had tapped the trees during the strike. The court below also saw a solid foundation in his admission to decide the case against the workers. It observed: "The defendants having admitted that they had tapped the trees and drawn toddy cannot now contend that the toddy sold from the various shops is not the toddy which they had drawn ........." We have indicated earlier, our views on this admission and how notwithstanding the same, liability could not be fastened on the workers. That does not, however, absolve him from the charge of neglect or negligence in the discharge of his duty as a trade union leader. His sincerity need not be doubted. But his ineffective conduct of the defence of the case cannot but be commented upon. Those who worked in the trade union field, were quite often exposed to the risky and difficult lives in early days; they were attracted by the glow of idealism. Many who hailed from upper classes, discarded advantages arising from their birth, position or class, for a dear dream of transforming the world from its squalid conditions. Even those who did not have the benefit of formal education, had equipped themselves with the trends and tendencies in human life so as to be effective as a trade union leader. Trade union leaders of the calibre of the 1st defendant would be ineffective in a movement which has necessarily to be informed and dynamic. Whether useful or periodic courses could be started for them by a State noted for its high level literacy, is an aspect which could engage the attention of the Government It is sufficient for us to say, compelled by the facts of the case, that those who espouse the cause of the weaker sections of the workers cannot afford to be indifferent to the exactions of intelligence and thinking ability. Brawn no doubt is important; Brain is not unimportant.