NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL

LABOUR LAW

PROJECT: Analysis of the provision for right to strike of workers

under the industrial dispute act 1947 and other provisions of laws

SUBMITTED TO: SUBMITTED BY:

Mr. Mahendra Soni Nikhil Aradhe

(Associate Professor) 2016 BALLB 132

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 ACKNOWLEDGEMENT

I am using this opportunity to express my gratitude to everyone who supported me through this
project. I am thankful for their aspiring guidance, invaluably constructive criticism and friendly
advice during the project work. I am sincerely grateful to them for sharing their truthful and
illuminating views on a number of issues related to the project.

I express my warm thanks to Mr. Mahendra Soni for his support and guidance at National Law
Institute University, Bhopal.

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STATEMENT OF PROBLEM

The right to strike is not fundamental or absolute right in India in any special and common law,
whether any undertaking is industry or not. This is a conditional or qualified right only available
after certain pre-condition are fulfilled. If the constitution maker had intended to confer on the
citizen as a fundamental right the right to go on strike, they should have expressly said so. On the
basis of the assumption that the right to go on strike has not expressly been conferred under the
Article 19(1) (c) of the Constitution.

OBJECTIVES OF STUDY

1. Right to strike has been conferred an important position in the labour law jurisprudence.
2. Despite not being expressly recognised, courts in India have endeavored to protect it at
all costs.

HYPOTHESIS

There is a guaranteed fundamental right to form association or Labour unions but there is no
fundamental right to go on strike. Under the Industrial Dispute Act, 1947 the ground and
condition are laid down for the legal strike and if those provisions and conditions are not fulfilled
then the strike will be illegal.

RESEARCH QUESTIONS

1. Whether the right to strike to subject to reasonable restrictions?

2. To what extent does the Industrial Dispute Act recognizes the right to strike?
3. What is the status of this right under other provisions of law?

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LITERATURE REVIEW

1. Textbook on Labour and Industrial Law by H K Saharay

Every right comes with its own duties. Most powerful rights have more duties
attached to them. Today, in each country of globe whether it is democratic,
capitalist, socialist, give right to strike to the workers. But this right must be
the weapon of last resort because if this right is misused, it will create a
problem in the production and financial profit of the industry. This would
ultimately affect the economy of the country. Today, most of the countries,
especially India, are dependent upon foreign investment and under these
circumstances it is necessary that countries who seeks foreign investment
must keep some safeguard in their respective industrial laws so that there
will be no misuse of right of strike. In India, right to protest is a fundamental
right under Article 19 of the Constitution of India. But right to strike is not a
fundamental right but a legal right and with this right statutory restriction is
attached in the industrial dispute Act, 1947.

2. Practical Guide to Labour Management– A-Z from Selection to

Separation by HL Kumar
The word strike is defined in section 2(q) of Industrial Disputes Act as a
cessation of work by a body of persons employed in any industry acting in
combination, or a concerned refusal, or a refusal under a common
understanding of any number of persons who are or have been so employed
to continue to work or to accept employment.

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Cases

Colliery Mazdoor Congress v Beerbhum Coal Co [1952 LAC 29(LAT)....................................................9

Madurai Coats Ltd. v Inspector of Factories Madurai [(1981) 1 LLJ 255 (SC)]..........................................9
Punjab National Bank Ltd v. their workmen AIR 1960 SC1 60..................................................................9
ANZ Grindlays Bank v SN Khatri and Others [(1995) 11 LLJ 877 (BOM)].............................................10
B.R Singh v Union Of India [(1989) 11 lab LJ 591 (SC).........................................................................10
Mineral Minors Union v Kudremukh Iron Ore Co Ltd [(1988) 1 lab LJ 277 (karn)].................................10
Rohtas Industries v Its Union {(AIR) 1976 SC 425}.................................................................................12

Statutes

Industrial Disputes Act, 1947...................................................................................................................8

International Covenant on Civil and Political Rights.................................................................................17
The International Covenant of Economic, Social and Cultural Rights (ICESCR) 1966............................16
Universal Declaration of Human Rights....................................................................................................17

TABLE OF CONTENT

STATEMENT OF PROBLEM.....................................................................................................3
OBJECTIVES OF STUDY............................................................................................................3
HYPOTHESIS..............................................................................................................................3
RESEARCH QUESTIONS............................................................................................................3
LITERATURE REVIEW..............................................................................................................4
INTRODUCTION............................................................................................................................7
Industrial Disputes Act Clarifies the Prohibition of strikes..........................................................9
General prohibitions of illegal strikes........................................................................................11
Right to strike is not fundamental right under constitution of India........................................13

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International law recognizes right to strike..............................................................................15
CONCLUSION..............................................................................................................................17
BIBLIOGRAPHY...........................................................................................................................18

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 INTRODUCTION

The Industrial Disputes Act, 1947 came into existence in 1947, and it was enacted to make
provisions for investigation, settlement of Industrial Disputes and providing for certain
safeguards to the workers. In order to analyze the various provision of law and to determine
the correct legal position of the rights of workmen to go on strike. It is necessary to
consider some of the vital definition given by the Industrial dispute act, and some of the
other provision of law. As per Section 2(k) of Industrial Disputes Act, 1947, an industrial
dispute is defined as industrial dispute to means any dispute or difference between employees
and employers, or between employers and workmen, or between workmen and which is
connected with the employment or Non-employment or the terms of employment or with the
conditions of labour, of any person .The definition of Industrial Disputes may be defined as
a conflict or difference of opinion between management and workers on the terms of
employment. It is a disagreement between an employer and employees' representative. When an
industrial dispute occurs, both the parties, that is the management and the workmen, try
to pressurize each other. The management may resort to lockouts while the workers may
resort to strikes, picketing orgheraos.Strike is one of the oldest and the most effective
weapons of labour in its struggles with capital for securing economic justice. The word of
strike derived in origin to old English words “strican to go”. In common parlance it
means hit, impress, and occur to, to quit work on a trade dispute. In fact, the meaning is
traceable to 1768 and later on it varied to strike of work. The definition and use of the word
strike has been undergoing constant transformation around the basic concept of stoppage of work
or putting of work by employees in their economic struggle with capital. The term strike has
been defined in a wide variety of branches of human knowledge, viz.etymology, sociology,
political economy, law and political science. According to Webster’s dictionary defines the term
strike as “the act of quitting work done by mutual understanding by a body of workmen as a
means of enforcing compliance with demands made on their employers; a stopping of work by
workmen in order to obtain or resist a change in condition of employment”.The Right to Strike to
the workmen is to help them in negotiating and getting their demands fulfilled by the employer.
It also helps the trade unions and workers union to fight for the rights of their workmen and get

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justice for themselves in case of violation of their rights. Therefore, the Strike is an important
weapon in the hands of the workmen and Strike could also be to compel the employer to get
economic concessions such as higher wages, better working conditions, shorter hours etc. As per
Section 2(q) strike has been defined under Industrial Disputes Act, 1947, that strike means a
cessation of work by a body of persons employed in any industry acting in combination, or a
concerted refusal, or a refusal under a common understanding, of any number of person who are
or have been so employed to continue to work or to accept employment. The workmen must be
employed in any industry. The stoppage of work by workers individually does not amount of
strike. The cessation of work by a body of persons employed in any industry in combination is a
strike. It also pointed out in this clause a cessation of work or refusal to work is an essential
element of strike.

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 Industrial Disputes Act Clarifies the Prohibition of strikes

The Industrial dispute act 1947 under Section 22 deals with the prohibition of strikes. Similarly,
the Strikes deal with the industries caring on Public Utility Services. The Strike is not completely
prohibited but certain requirements which needs to be fulfilled by the workmen before resorting
to a strike have been laid down. It also laid down the Conditions under section 22(1) need to be
fulfilled in case of strike for Public Utility Services. The legislature also laid down certain types
of conditions, which was to provide sufficient safeguards against sudden strikes for Public Utility
Services. The legislature also laid down certain types of conditions, which was to provide
sufficient safeguards against sudden strikes for Public Utility Services which would also result in
great inconvenience not only to the industry but also to the general public and society at large.
Similarly Section 22(1) No person employed in a public utility service shall go on strike, in
breach of contract-(a) Without giving to the employer notice of strike, as hereinafter provided,
within six weeks before striking; or(b) Within fourteen days of giving such notice; or(c) Before
the expiry of the date of strike specified in any such notice as aforesaid; or(d) During the
pendency of any conciliation proceedings before a conciliation officer and seven days after the
conclusion of such proceedings1.It pretends to be noted that these provisions do not prohibit a
workmen from going on a strike but are conditions required to be fulfilled before striking. Where
a strike has commenced during to pendency of conciliation proceedings, and the workmen,
pleaded that the strike was provoked by the employer, it was held that the fact that the strike or
lockout was provoked by the opposite party will not absolve the person, going on strike or
lockout of the duty of complying with the requirements of section 22 and section 23 of the act’ 2.
The workmen went on a strike without serving a notice under section 22. They claimed wages
for national holiday which fell within the strike period. The supreme court held that they were
not entitled to wages because they themselves brought about the situation by going on a strike
without serving a notice whereby the management was deprived of their Right to take work from
them”3.The court view the provisions of section 22 are mandatory and it should be specified the
date in the notice on which the workmen proposed to go on strike. In case, the date of strike is
expires, fresh notice has to be given. Further held that deduction of wages for the days of illegal
1
Punjab National Bank Ltd v. their workmen AIR 1960 SC1 60.
2
Colliery Mazdoor Congress v Beerbhum Coal Co [1952 LAC 29(LAT)]
3
Madurai Coats Ltd v Inspector of Factories Madurai [(1981) 1 LLJ 255 (SC)]

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strike would be justified4. The Bombay High Court held that once the strike is held to be illegal
the question of justifiability does not arise and the workmen in Public Utility service are not
entitled to seek wages for the strike period unless they prove the strike legal and justifiable 5. It
was further stated that the strike is a form of demonstration and right to strike or right to
demonstration is not a fundamental right. It is recognized as a mode of redress for solving the
grievances of the workers. It is not an absolute right and is restricted by the provisions of
Industrial Dispute Act 1947.6

General prohibitions of illegal strikes

4
Mineral Minors Union v Kudremukh Iron Ore Co Ltd [(1988) 1 lab LJ 277 (karn)]
5
ANZ Grindlays Bank v SN Khatri and Others [(1995) 11 LLJ 877 (BOM)]
6
B.R Singh v Union Of India [(1989) 11 lab LJ 591 (SC)]

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General provisions on the prohibition of strike are mentioned in section 23 of the Industrial
dispute Act. It provides that no workman who is employed in any industrial establishment shall
go on strike in breach of a contract and no employer of any such workmen shall declared a
lockout is prohibited in the following cases:(a) During the pendency of conciliation proceedings
before a Board and seven days after the conclusion of such proceedings;(b) During the pendency
of proceedings before[a Labour Court, Tribunal or National Tribunal] and two months, after the
conclusion of such proceedings;(b) During the pendency of arbitration proceedings before an
arbitrator and two months after the conclusion of such proceedings, where a notification has been
issued under sub-section (3A) of section 10A; or(c) During any period in which a settlement or
award is in operation, in respect of any of the matters covered by the settlement or award. 7
According to section 24 of the Industrial dispute act, provides that a strike and lockout shall be
illegal.8 The workers have a right if not a fundamental right, to go on strike. The penalties are
contained in section 26 to 29 of the Industrial disputes act, 19479. Even in case of illegal strikes a
distinction has been attempted to be made between illegal but justified strike and illegal and
unjustified strike. The effect of an illegal strike on the demand of workmen to wages or
compensation and their liability to punishment according to one view is based on the strike being
justified. Mere illegality of a strike does not matter. It means if the strike is illegal and at the
same time unjustified the workmen have no claim to wages and must also be punished. If the
strike is justified they have the right to claim wages. The Right of striking workmen to
reinstatement after termination of strike: If the strike is the result of unfair labour practice on the
part of the employer, the workmen have a right to be reinstated. If the employer is not guilty of
unfair labour practice and he has also engaged other workmen in the interim period to continue
the work, the striking employees have no right to reinstatement. In the former case the employer
must put his employees back to their work after the strike. The Right of employer to
compensation for loss caused by illegal strike in the case of Supreme Court held that the remedy
for illegal strike has to be sought exclusively in section 26 of the Act. The award granting
compensation to employer for the loss of business through illegal strike is illegal because such
compensation is not a dispute within the meaning of section {2(k)} of the act 10. The rights of a

7
Ibid 8 at 297.
8
Ibid 14 at 307.
9
Ibid 15 at 317.
10
Rohtas Industries v Its Union {(AIR) 1976 SC 425}.

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government servant to go on a strike are different from the workmen employed in Private
concerns. There are different rules which prohibit him to go on strike Central government
employees are governed by the central civil service (conduct) Rules, 1955. The Industrial dispute
act 1947 under Section 25 of the Act prohibits financial Aid to illegal strikes. It has been
provided under section 25 of the Act that no person shall knowingly expend or apply any money
in direct furtherance or support of any illegal strike or lockout. It means that financial aid is
prohibited in direct furtherance of illegal strike and lockouts 11. The important element here is
mens rea. The person spending or applying money should have the knowledge that the strike is
illegal. Punishment for violation of the provision is provided in section 28 of the Act. It also
specified penalty for Financial Aid to Illegal Strikes under Section 28 imprisonment for a term
which may extend to 6 months or with a fine which may extend to thousand rupees or with
both.12 It is only the spending of money in support of strike which is prohibited under the section.
Therefore, assistance for the strikers in any other form, for example supplying them with clothes,
food, etc. is not prohibited under section 25 of the Act.

Right to strike is not fundamental right under constitution of India

The Right to strike is universally recognized as fundamental human right, but Indian
constitution has not recognized as fundamental right. The right to strike has not been
specifically covered by any of the entries in the seven scheduled of the Indian
constitution. It makes reference to some of the provision in this context. The
11
Ibid 16 at 318.
12
Ibid 18 at 317.

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government of Indian Act, 1935, entry 29 in list III, (Concurrent list) of the VIIth schedule,
empowered the central as well as the provincial and presidency legislatures to legislate
on trade unions, industrial and labour dispute. Besides, Indian constitution the entry 55 in list-I
(union list) of the VIIth scheduled, empowers the parliament to legislate on the subject of
Regulation of labour and safety in mines and oil field; entry No.61, deals with the
industrial disputes, concerning union employee; entry 97 gives the residuary power to the
parliament to legislate on any other matter, Not enumerated in the list II or III. In the state
list (II) does not contain any entry pertaining to labour or Industrial dispute. According
to concurrent list it specified that the trade Union, Industrial and Labour disputes related
to entry 22; entry 23 deals with social security and social insurance, employment and
unemployment and entry 24 deals with welfare of labour, including condition of work,
provident funds, employers liability, workmen’s compensation etc.. Thus, both the
parliament and legislature have the competence to legislate on this subject. Similarly, article
19(1) the constitution of India guarantees the protection of certain freedoms as fundamental
right. The constitution of Indian has specified that all citizen shall have the right i: e, To
freedom of speech and expression, To Assemble peaceable and without arms, To from
associations or union, To move freely throughout the territory of India, To reside and settle in
any part of the territory of India, and to practise any professional, or to carry on any
occupation, trade or business. However, strike is not expressly recognized in the constitution of
India. In the case of Kameshwar Prasad v. The State of Bihar, the court held that the strike is not
fundamental right government employees have no legal or moral right to go on strike. Similarly,
the Court view that right to strike is an important weapon in the armory of employees as a mode
of redress. It is a right earned by the employees as form of direct action during their long
struggle. It is a weapon to safeguard and preserve the liberty. It is an inherent right of every
employee. According to court observed that the right to strike is central to collective bargaining.
It further stated that right to strike is a legal right though not elevated to the status of a
fundamental right. The court held that there is no fundamental right for workers to go on strike”.
It was held that the right to form Association guaranteed under Article 19(1)(c) of the
Constitution, also carried with it the right to strike otherwise the right to form association would
be rendered illusory. The Supreme Court is many of the cases has recognised the right to strike
of the workers as a legal right but has not said that it is a fundamental right”. The right to protest

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is a fundamental right was specified under the Article 19 of the Constitution of India. Similarly,
the Right to strike not recognized as fundamental right in the Indian constitution but it is
recognized as a legal right. According to Industrial Dispute Act 1947, the right to strike are
attached in statutory restrictions. In the case the court observed that the significance of right to
strike is core of significance to the principle of collective bargaining of each worker. According
to the Justice Krishna Iyer view that the strike could be legal or illegal and even an illegal strike
could be justified one. The court view that the right to go on peaceful strikes but this right cannot
be interfered with except on sufficient grounds. The workers have right to make legitimate
demands, which if not met to go on legal but peaceful strike. Trade unions also have the right to
pursue its trade union activities in peaceful methods. The strike is a form of demonstration
andthe every Worker has a right to demonstrate but right to strike cannot be done anyway. The
strength of trade union depends on its membership and able to bargain more effectively the
management rather than the individual. The bargaining strength depend upon demonstrate by
way of adopting agitation by workers such as strike.Thus from the cases discussed and
judgements delivered it is very much evident that the right to strike is available to the workers as
a legal right and they can resort to peaceful strikes if their demands are not fulfilled by the
management. The courts have also said that the right to strike and collective bargaining go hand
in hand as it persuades the mighty and the rich powerful employer to come in common terms and
negotiate with the working class. But the right to strikes as a fundamental right still remains a
controversy and the Indian constitution does not recognise the right to strike as a fundamental
right. The Right to strike is an implied statutory right which has various limitation and it must be
used as a weapon of the last resort.

International law recognizes right to strike

The international labour organisation was come into existence in 1919, the recommendation and
conventions of the ILO form a part of the international labour law. In the conventions of the
International labour organisation every member were obliged to adhere, the provisions of such
conventions by virtue of their membership. However, in the convention the International labour
organisation passed the freedom of Association and protection of the Right to workers. There are
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several others conventions also promote the right to organize and collective bargaining of such
association; provide the labour Regulation (public service) and collective Bargaining. The
Universal declaration of Human right have provisions to protect the interest of workers and it
stated that everyone has the right to work, to free choice of employment, to just and favourable
condition of work to protection against unemployment. Similarly, everyone has the right to form
and to join trade union for protection of his interest. It means the right has recognized the right to
form trade Union of the working class, and the right to go on strike for the purpose of securing
proper working conditions is the sequel of the right to form association. The International
Covenant of Economic, Social and Cultural Rights (ICESCR) 1966, that the state parties to
present the covenant that recognizes the right of everyone to enjoyment of just and favorable
condition of work and it also ensure the right to strike provided that it is exercised in conformity
with the laws of the particular country. The country like Indian had ratified an obligation to
respect the law of international provisions related to protection interest of workers. Even after
India Being a member to the above mentioned International conventions and treaties India has
still refused to accept the right to strike as a fundamental right even though the preamble of the
ILO places great importance on the right to strike as being fundamental to collective bargaining
power of the workers. As per the international conventions the right to life should have been a
fundamental right in India. According to the Supreme Court decision of the various cases well
point out to the fact the international law should be abided with and respected and the
constitutional laws should also be such that they are abided. In fact, the right to form Association
and Right to demonstration being part of the fundamental human right, but the Indian law does
not recognise the right to strike as a fundamental right. It need to take the certain steps towards
bringing about reconciliation between the international law and the India law on this matter and
the balance lies in recognising the right to strike as a legal Right. This is implicit from Article 51
(c) and the enabling power of Parliament to enact laws for implementing the international
conventions and norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh
Schedule of the Constitution. Similarly, the Court must followed the norms of International
Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social
and Cultural Rights (ICESCR), the Universal Declaration of Human Rights (UDHR) and
International Labour Organization’s Conventions, to interpret and expand the ambit of Article 21
of the Constitution. The court was held that fundamental rights are subject to the directives

15
enshrined in Part IV of the Constitution, the UDHR, the European Convention of Social,
Economic and Cultural Rights, and other international treaties such as the Convention on Rights
to Development for Socio-Economic Justice. It is thus settled that the raison deter of Article 51
(c) is to introduce and implement various international instruments particularly the UDHR,
ICCPR and the ICESCR in the interpretation of fundamental and legal rights. Therefore, the right
to strike as contemplated by these Covenants and the ILO conventions is well within the ambit of
constitutional (Articles 19 & 21) as well as legal provisions (Trade Unions Act, 1926 &
Industrial Disputes Act, 1947). Thus, the decision in Rangarajan stands in disrespect to the
provisions of international law.

CONCLUSION

The power has given to the Labour Court, Tribunals and National Tribunals in terms of section
11(A) Industrial Dispute Act 1947. In India, the most important factors are lead to strikes to
demand of higher wages because the cost of living standard was high. Similarly, the employer
also seeks to make the profit with balancing of the interest of workers. It also ensures to respect
the interest of workers and protect their current legislative provisions on the right strike.
According legislative framework relating to strike does not succeed to find the optimum solution

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of the problems of workers. In spite of all the controversies related to the right to strike as to
whether it should be a fundamental right, it still continues to have a legal or statutory status.
Right to strike is one of the greatest weapons available to the workers to fulfilling their demands.
Every worker has the right to peaceful strike and makes legitimate and reasonable demands.
According to the Indian law is not specified the Government employees have a right to strike.
Apart from this India member of the ILO has fails to give recognition to the right to strike as a
fundamental right. The Indian judiciary clarified that right to strike though a legal right has many
restrictions and not an exclusive right. The violation of any of the provisions would make the
strike illegal. Therefore, the right to strike is not fundamental right in India. Similarly the
Government employee have no right to go on strike. According to the industrial dispute Act,
1947 has given the legal right of going on strikes as stipulated in section 22, 23, and 24. Hence,
the rights of strikes under industrial dispute Act, 1947 is very much limited and regulated
because this act, has limits of rights to strikers.

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 BIBLIOGRAPHY

1. Practical Guide to Labour Management– A-Z from Selection to Separation by HL

Kumar.

2. Textbook on Labour and Industrial Law by H K Saharay.

3. Introduction To Labour And Industrial Law by Avtar Singh (Author).

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