3/15/2021 Right to strike under Industrial Dispute Act, 1947 - iPleaders

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Right to strike under Industrial Dispute Act, 1947

By Rajeev Kumar - February 10, 2018

http://www.telegraph.co.uk/news/worldnews/asia/india/11840570/Millions-strike-in-India-to-protest-against-Modis-labour-
reforms.htmlImage Source -

This article is written by Tanishq Khandelwal, from School of Law, University of Petroleum and
Energy Studies. The following article talks about the legality of strikes, its fundamental values
and what are the after consequences of strikes.

Brief Overview
Right to strike is recognized globally. Article 19(1) the Constitution of India 1949 guarantees
the protection of certain freedoms as fundamental rights.

All citizens shall have the right

1. To freedom of speech and expression;

2. To assemble peaceably and without arms;
3. To form associations or unions;
4. To move freely throughout the territory of India;
5. To reside and settle in any part of the territory of India; and
6. To practise any profession, or to carry on any occupation, trade or business

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However, strike is not expressly recognized in the Constitution of India. The Supreme Court
settled the Case of Kameshwar Prasad v. The State of Bihar on 7 July 1958 by stating that
strike is not a fundamental right. Government employees have no legal or moral rights to go
on strikes.

Industrial Disputes Act, 1947

India recognized strike as statutory right under Industrial Disputes Act, which came into force
on April 1, 1947. Prior to Industrial Disputes Act, 1947, India had enacted its first industrial
disputes legislation i.e. Employer & Workmen Disputes Act, 1869 and subsequently Trade
Disputes Act, 1929 and Rule 81A of Defense of India Rules.

Experiences from Employer & Workmen Disputes Act, 1869 reveal that this act was much
against the workers. Trade Disputes Act, 1929 had brought in a special provision of strikes,
however, such legislation could not establish peace in the industries due to strike problems
and disputes kept on continuing. Further to overcome this, Rule 81A of defense rule was
brought in during the Second World War. After the Second World War Industrial Disputes Act,
1947 came into the picture to sort out the disputes in industries. Its applicability is extended
to the whole of India. It is applicable to existing industry and not on dead industries.

Meaning of Strike
As per Cambridge Dictionary “Strike is to refuse to continue working because of an argument
with an employer about working conditions, pay levels, or job losses”.

General Meaning
A strike is a powerful weapon used by trade unions or other associations or workers to put
across their demands or grievances by employers or management of industries. In another
way, it is the stoppage of work caused by the mass refusal in response to grievances. Workers
put pressure on the employers by refusal to work till fulfilment of their demands. Strikes may
be fruitful for workers’ welfare or it may cause economic loss to the country.

Types of Strikes

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Based on the phenomena of strikes around the world, strikes can be categorised into economic
strike, sympathy strike, general strike, sit down strike, slow down strike, hunger strike and
wildcat strike have been experienced.

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Economic Strike – Such strike happens due to economic demands like increment of wages
and allowances like house rent allowance, transport allowances, bonus etc.

Sympathy Strike – In such strike union or workers of one industry join the strikes already
hailed by other union or workers.

General strike – This strike intended to increase the political pressure in the ruling party by
all unions or members in a region or state.

Sit down strike – In such case, workers hold strikes at the workplace and none of the
workers stays absent from duty but they all refuse to work till their demands are fulfilled.

Slow down strike – It means workers or unions don’t refuse to work but put pressure on
industries to get their demand by reducing or restricting the output of the production of an
industry.

Hunger strike – It is one of the painful strikes by the striker where workers go on strike
without having food/water to redress the grievances. The employees of Kingfisher airlines
went on hunger strikes for salary dues of several months.

Wildcat strike – Such strike happens by the workers without the consent of union and
authority. In 2004, advocates went on wildcat strike at civil courts in Bangalore to protest the
remarks allegedly made by an assistant commissioner against them.

However, if we see the history of strikes, it is found that strikes mostly occur due to issues
related to wages by the employers to the workers.

Few Instances of Strikes in India

In March 2012, nurses employed by different hospitals in Chennai went on strike for 7 days
demanding from hospital management hike of basic wages to Rs 15000/-, apart from leave
benefits and annual increment. All the well-known hospitals like Apollo, Fortis, Max etc.came
to a standstill because of the strike.

In January 2014, Kingfisher employees went on hunger strike due to non-payment of salary
for 17 months.

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In September 2016, tens of millions of Indian workers of public sector had gone on strike
demanding higher wages. Banks, power stations were kept shut and public transportation
systems froze in some of the states. Later the government considered their demands and
increased the wages. It was the world’s largest-ever strike.

Strike under Industrial Dispute Act, 1947

For strike, the industrial dispute act under 2 (q) defines strikes as “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 persons who
are or have been so employed to continue to work or to accept employment”.

In the case of “Cox and Kings Limited v. Their Employees”, the Court held that a strike can be
considered justified if it is in connection with a current labour dispute or directed against an
unfair labour practice of the employer.

Under the following situation as given under section 22, on these grounds the strikes can be
considered as illegal:

1. Without giving to employer notice of strike within six weeks before striking; or
2. Within fourteen days of giving such notice; or
3. Before the expiry of the date of strike specified in any such notice as aforesaid; or
4. During the pendency of any conciliation proceedings before a conciliation officer and seven
days after the conclusion of such proceedings.

But herein it is important to notice these that these arrangements don’t forbid the labourers
from demonstration yet expect them to satisfy the condition before taking to the streets.
Further, these arrangements apply to open utility assistance in particular. The Industrial
Dispute Act, 1947 doesn’t explicitly specify who takes to the streets. Nevertheless, the
definition of the strike itself suggests that the strikers must be persons, employed in any
industry to do work.

Further, the provisions under section 23 are general in nature. It imposes general restrictions
on declaring strike in breach of contract in both public as well as non- public utility services in
the following circumstances mainly: –

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1. During the pendency of conciliation proceedings before a board and till the expiry of 7 days
after the conclusion of such proceedings;
2. During the pendency and 2 months after the conclusion of proceedings before a Labour
Court, Tribunal or National Tribunal;
3. During the pendency and 2 months after the conclusion of the arbitrator, when a notification
has been issued under subsection 3 (a) of section 10 A;
4. During any period in which a settlement or award is in operation in respect of any of the
matter covered by the settlement or award.

The main purpose of this section is to maintain the untroubled and discipline atmosphere when
conciliation, negotiation proceedings are on the process without any disturbance.

As held in the case of Ballarpur Collieries Co. v. The Presiding Officer, Central Government
Industrial Tribunal, “It was held, if a person was employed in public utility services then,
he/she cannot go for a strike without the consent and gathering the procedures which must be
satisfied in the provisions.”

Illegal Strikes

Section 24 of the Industrial dispute Act, 1947 provides that strikes which are in non-
compliance to section 22 and section 23 are illegal.

1. A strike or a lockout shall be illegal if,

1. It is commenced or declared in contravention of section 22 or section 23; or
2. It is continued on contravention of an order made under subsection (3) of section 10 of
subsection (4-A) of section 10-A.
2. Where a strike or lockout in pursuance of an industrial dispute has already commenced and
is in existence all the time of the reference of the dispute to a board, an arbitrator, a Labour
Court, Tribunal or National Tribunal, the continuance of such strike or lockout shall not be
deemed to be illegal; provided that such strike or lockout was not at its commencement in
contravention of the provision of this Act or the continuance thereof was not prohibited
under subsection (3) of section 10 of subsection (4-A) of 10-A.
3. A strike declared in the consequence of an illegal lockout shall not be deemed to be illegal.

Constitution stand on the legality of the strikes

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Contrary to the international laws where the right to strike is generally considered as a
fundamental human right; but here in India Right to Strike is not expressly recognised by the
law, it is not an absolute right, exceeding this right comes with reasonable restrictions which
are being imposed by the state.

Under entry 29 in list III, (Concurrent List) of the VII the schedule of the constitution of India,
deals with the matter of trade unions, industrial and labour dispute; entry 61 (concurrent list)
dealing in the matter of industrial disputes, concerning union employee, empowered the
central as well as the provincial and presidency legislatures to legislate on the following
matter.

According to the 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 the welfare of labour, including the
condition of work, provident funds, employers liability, workmen’s compensation etc. Thus,
both the parliament and the legislature have the competence to legislate on this subject.

In article 19(1) of the Indian constitution guarantees the protection of certain freedoms as a
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 peaceably and without arms, To form
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 profession, or to carry on any occupation,
trade or business. But the principle of the right of the strike is not expressly defined or
recognized under Indian constitution

In the case of ‘All India Bank Employees Association v. I. T.’,

Supreme Court held that “the right to strike or right to declare lockout may be controlled or
restricted by appropriate industrial legislation and the validity of such legislation would have to
be tested not regarding the criteria laid down in clause (4) of Article 19 but by totally different
considerations.”

The Supreme Court concerning strikes has the same point of view that the right to strike is an
important weapon in the armoury of employees as a mode of redress. It is a right earned by
the employees as a form of direct action during their long struggle. It is a weapon to
safeguard and preserve liberty. It is an inherent right of every employee. Being an essential

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right for every employee, right to strike is an inherent legal strike, despite the fact it cannot be
raised to the status of the fundamental right.

Both Indian constitution and industrial dispute act, 1947, are on common grounds, both of
them thinks that the right to strike is a legal right and to the sustainment of this right comes
with reasonable restrictions. The significance of the right to strike is the core of significance to
the principle of collective bargaining of each worker.

Hence, the constitution provides guaranteed fundamental right to for association and union
under article 19 of Indian constitution but it’s doesn’t provide the fundamental right to go on
strike.to till date, it remains a disputable topic whether the right to strike is a fundamental
right or not? No clear view has been provided by courts on strikes. But one thing is clear and
cut that the right to strike is a statutory implied right with certain restrictions.

Consequences of illegal Strike

Economic Consequences: Losses incurred by strikes are humungous and serious, in some
cases can even lead to the bankruptcy of the industry. The economic losses caused by the
strike may be serious for the employer. During strikes, production stops, sales go down, due to
which rival companies use this opportunity to capture their market and industry loses its
consumers and their trust, strikes badly affects the market goodwill of the company.

Both parties i.e, employer and employee are at loss; for employers the quick losses capital
loss, loss of profits, the delaying of orders and loss of goodwill as well as the possible incurring
of insurance or strike-breaking expenses while on the worker’s side there is the loss of wages,
the contracting of debts and all the personal hardships that may be involved.

The losses incurred by a strike are difficult to be calculated economically. Strike can have
adverse effect leading to an unstable foreign investment in an economy. Furthermore, the
negative effects on international trade include the hindrance of economic development and
creating great economic uncertainty – especially as the global media continues to share
details, images and videos of violence, damage to property and ferocious clashes between
strikers and security.

Social Consequences: the social consequences of the strike are serious, and mostly affect
the employees; as they are the ones who are losing their wages, they are at greater risk of
losing their jobs. Loss of wages or loss of jobs will directly affect in curtailing their
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consumption and expenses and further strikes in essential utility services effects the tripod of
any industry i.e, suppliers, manufactures ( both employer and employees ) & customers.

A hostile attitude on the part of the employer towards their employees lead Dismissal of
workmen

In Punjab National Bank v. Their Employees, court observed that in the strike, the employer
might bar the entry of the strikers within the premises by adopting the effective and legitimate
method in that behalf. He may call upon employees to vacate, and, on their refusal to do so,
take due steps to suspend them from employment, proceed to hold proper inquires according
to the standing order and pass proper orders against them subject to the relevant provisions
of the Act.

The effect of a strike is that the workmen cannot claim wages for the period during which an
illegal strike continues. It is observed that if the strike is legal the workmen are entitled to
wages. A strike is legal or illegal, justified or unjustified is the question of fact which is to be
judged in the light of the fact which is to be judged in the light of the facts and circumstances
of each case.

In Cropton Greaves Ltd. v. Workmen, Supreme Court observed that the if a strike is legal as
well as justified then, the worker is entitled to wages for the period of strike, the strike should
be legal and justified. Whether a particular strike is justified or not is a question of fact, which
has to be judged in the light of the fact and circumstances of each case. The use of force,
coercion, violence or acts of sabotage resorted to by the workmen during the strike period
which was legal and justified would disentitle them to wages for the strike period.

A strike is legitimate if it doesn’t disregard any arrangement of the provision. Again a strike
can’t be said to be unjustified except if the purposes behind it are altogether unreasonable or
irrational. It is likewise all around settled that the utilization of power or brutality or
demonstrations of treachery turn by the labourers during a strike disentitles them to
compensation for the strike time frame.

Legal consequences: The legitimateness of a strike may rely upon the article, or reason, of
the strike, on its planning, or the direction of the strikers. The article, or items, of a strike and
whether the articles are legitimate are matters that are not in every case simple to decide A
strike, legal or illegal, justified or unjustified does not dissolve the employer-employee
relationship.

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Normally taking part in the illegal strike amounts to misconduct on the part of a workman for
which they invite the punishment of dismissal. Whether the employer is free to punish
dismissal from services in such cases has been subject to regular domestic enquiry to
determine the quality of misconduct and quantum of punishment by finding out whether they
were peaceful strikes or violent strikers. It is only after complying with these requirements, a
workman if found guilty of the charges may be dismissed.

The question of whether the workmen are entitled to strike pay or not is generally based on
the dilemma is the strike is justified or not?

Supreme court in Bank of India v T.S. Kelawala, “held that where the contract or standing
orders or the service rules regulations are silent on the issue of workers entitlement to wages
during the strike period, the management has the power to deduct wages for absence from
duty when the absence is concerted action on the part of the employees and the absence is
not disputed, irrespective of the fact whether the strike was legal or illegal. There is no
statutory provision either in civil law or in industrial law prescribing payment of strike wages.
Strike pay cannot, therefore, be claimed as a legal right.”

Common Reasons for Strike

Strikes generally occur in industries due to disputes between employees and employers,
employees and employees or among employers and employers mostly due to the following
issues:

Working hours
Working Conditions
Salary, Incentive etc
Time payment of wages
Reduction in salary/wages
Issue related Minimum wages
Leave/Holidays
Dissatisfaction with the company policy
PF, ESI, Profit Sharing etc
Retrenchment of workmen and closure of establishment
Any other issue.

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Conclusion
It is observed that strike is not a fundamental right in India and government employees have
no right to go on strikes. Industrial Disputes Act, 1947 limits the rights of strikers and given
the legal right of going on strikes as stipulated in sections 22, 23 and 24, right to strike under
Industrial Disputes Act, 1947 is very much limited and regulated.

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