Introduction Introduction and basic issues Strike means a cassation 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 accept employment1.
On 14th November, 115 !", artisans of #oyal Necropolis at $eir el%&edina '&odern day (gypt), under the rule of *haraoh #amses +++, walked off from their duty as they were supposedly not provided with shelter and food. he (gyptians later gave in on their demands. his marked the first ever recorded event in the history which can be termed as a -strike-. (ver since then, the industries have seen numerous violent, non%violent, stay%in, sympathetic, work%to%rules, tools%down, pens%down and many other forms of strikes. Strikes and lockouts are one of the most malignant tools in the weaponry of employees and employers to get their demands fulfilled. enerally due to such events, the employees, the company, the industry and the nation loses more than what might have been called for. Strikes cause an interruption in normal work flow of a company, which not only hinders its production and hence profits, but also creates prob problem lemss in deli delive very ry sche schedul dulee and and busin busines esss commi commitm tment ents. s. +n commo common n parla parlanc nce, e, stri strike kess hampe hampers rs the the credibility and perception of a company in its customer/vendor market. On the other hand, lockouts may disrupt the inflow wages for workmen most of whom live on marginal wages earned on daily basis. 0or these labors a loss of a single days pay might lead to a considerable impact on daily life. Some of the critical issues related to strikes and lockouts that have posed a matter of concern in +ndias industriali2ation are as follows3
he biggest issue is to know whether a strike or a lockout is ustified in the very first place. +ssues related to unfair labour practices, and improper compensation etc. should be resolved through tribunals, and courts hence, it is important to decide whether going on strike or declaring a lockout
should be, in any condition, legal or not6 +s right to strike or lockout a part of right to freedom of association6 +s it a part of demonstrative act
in freedom of speech. 7ence, can a strike be illegal6 $ifferent types of strikes have different impacts on business. +s there then a need for different
sections of law pertaining each of these strikes6 7ow to decide whether a strike or a lockout is/was for a ustifiable reason or not6 (ven if a strike or a lockout is found to be for a ustified reason, should it be considered legal, if it has created a considerable negative impact on parties not involved6
9ct, 1:4; 1 Section '8), +ndustrial $ispute 9ct,
+s a lockout as a conse8uence to a strike or a strike as a conse8uence to a lockout, legal6 $oes the
legality of the former matter while deciding on the legality of latter6 Should there be a prior notice mentioning a possibility of a future strike or a lockout6 +f yes, then what should be a proper time%frame6 9lso, should there be necessity to resolve the issues as soon as
possible, once a notice is received by any party6
decision of the union6 +f the strike or lockout is found to be illegal, who should then pay for the loss of wages and loss of
business6
9ll these and many other issues are to be taken care of for betterment of the relation between industry and labour unions.
Statutes +n +ndia strikes are not new the industries and ev en to the government. here are many legislative attempts to solve the problem of strikes by introducing an amicable dispute resolution mechanism, but the problem still stands unsolved. 0ollowing are few legal provisions dealing with strikes.
Industrial Disputes Act, 1947 Section 2 states the definition of -strike- as cessation of work by a body of persons employed in
any industry acting in combination or a concerted refusal, or a refusal, under a common understanding of any number of persons who are or have been so employed to continue to work or to accept employment. +t states the definition of -lockout- as temporary dosing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him. he definition of strike and lockout as per section of +$ 9ct, talks about any person working in an -industry-. 7owever, the definition of industry as mentioned in section ') of the same act, says that it means any business, trade, undertaking, manufacture or calling of employees and then goes on to say that it, includes any calling, services employment, handicraft or industrial occupation or avocation or workmen. he definition has been amended in section ') of
+ndustrial $isputes '9mendment) 9ct, 1:=, with a more pragmatic, comprehensive and realistic definition. he following case shows the importance of the definition of -+ndustry- in case of labour disputes and strikes/lockouts3 Secretary, Madras Gymkhana Club Employees' Union Vs Management of the Gymkhana Club, October, !"# $3 he employees of &adras ymkhana "lub asked the management for a bonus, which was denied and the case was taken up in the Supreme "ourt of +ndia. he court, on >rd October, 1:?; held that the management of &adras ymkhana "lub was not liable to pay bonus to its workmen, as the club, as per the definition of -+ndustry- section , +$ 9ct, 1:4;, was not an industry. 9s per the court, the respondent is a non%proprietary members club. +t is organi2ed on a vast scale with multifarious activities providing a venue for sports and games, and facilities for recreation, entertainment and for catering of food and refreshment. uests are admitted but on the invitation of members. +t has 1:4 employees with a wage bill between one lakh and two lakh rupees. 9s per the definition, +ndustry means any trade, business, undertaking, manufacture or calling of employers, and neither of these is being carried out by respondents. 7ence, no charge of +ndustrial dispute can be levied as the respondent is not an +ndustry. Sub-section (3) of section 10
"ourt, ribunal or National ribunalB under this section, the appropriate overnment may by order prohibit the continuance of any strike or lock%out in connection with such dispute which may be in eCistence on the date of the reference. Sub-section (3A) of section 10A
and the appropriate government is satisfied that the persons making the reference represent the maority of each party, the appropriate government may, within the time referred to in sub% section '>) 'one month), issue a notification in such manner as maybe prescribed and when any such notification is issued, the employers and workmen who are not parties to the arbitration agreement but are concerned in the dispute, shall be given an opportunity of presenting their case before the arbitrator or arbitrators. Sub-section (4A) of section 10A
and a notification has been issued under sub%section '>9), the appropriate government may, by
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order, prohibit the continuance of any strike or lock%out in connection with such dispute which maybe in eCistence on the date of the reference. Section 22 states the clauses applicable to prohibit employees and employers of public utility
service companies 'def. of public utility service as per section ) from going on strike and lockout. 9ccording to sub%section '1) and ') of section , No employee or employer of a public utility service shall go on strike or declare lockout, a) without giving to the employer notice of strike, as hereinafter provided, within siC weeks before striking or b) within fourteen days of giving such notice or c) before the eCpiry 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 proceedings. Section 23 states the clauses applicable to prohibit employees and employers of any industrial
establishment from going on strike and lockout. +t says that, No employee or employer of any industrial establishment shall go on strike or declare lockout, a) during the pendency of conciliation proceedings before a !oard and seven days after the conclusion of such proceedings b) during the pendency of proceedings before a Aabor "ourt, ribunal or National ribunal and two months, after the conclusion of such proceedings c) 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 '>9) of section 1D9 '+ndustrial $isputes 9ct 1:4;) d) 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. Section 243 9 strike or lock%out shall be illegal if%
'i) 'ii)
it is commenced or declared in contravention of section or section > or 'ii) it is continued in contravention of an order made under sub%section '>) of section 1D or sub%section '49) of Section 1D9.
contravention of the provisions of this 9ct or the continuance thereof was not prohibited under sub%section'>) of section 1D or sub%section '49) of section 1 D9. 9 lock%out declared in conse8uence of an illegal strike or a strike declared in conse8uence of an illegal lock%out shall not be deemed to be illegal. Section 2! No person shall knowingly eCpend or apply any money in direct furtherance or
support of any illegal strike or lock%out. Section 2" states the penalty which shall be levied on anyone for going on illegal strike or
declaring illegal lock out. he penalty can be imprisonment up to one month, and/or a fine of rupees fifty, in case of a strike and rupees one thousand, in case of a lockout.
#onstitutional $erspecti%e of Stri&es 9rticle 1:14 of the +ndian "onstitution, the rainbow of the fundamental rights, originally guaranteed seven freedoms, one of which, the right to property, had been by the 44th amendment>, made a constitutional right and had ceased to be a fundamental right. he uni8ue feature of the freedoms guaranteed by 9rticle 1: is that they are not absolute terms and, and clauses ') to '?) provide for reasonable restrictions imposed on these freedoms. he restrictions may be procedural or substantive, but both must satisfy the test of reasonableness.
c) d) e) f)
0reedom to form association and unions. 0reedom to move freely throughout the territory of +ndia. 0reedom to reside and settle in any part of the territory of +ndia. 0reedom to practice any profession or to carry on any occupation, trade or business.
'reedo of Speec and *+pression 9 suppression of speech, in its most painful conse8uence would be mental sterili2ation. 0reedoms of speech are comprehensive, and include freedom of eCpression concerning both public and private affairs. +n guaranteeing the freedom of speech and in subecting it to reasonable restrictions, our "onstitution has to resolve the dilemma, since the choice is not between order and liberty it is between liberty and anarchy. #estrictions on freedom of speech may be imposed in the interests of the Esovereignty and integrity of +ndia, the security of State, friendly relationship with foreign sates, public order, decency and morality in relation to contempt court, defamation or incitement of an offence.F
'reedo to Asseble $eacefull and itout Ars $emocracy would have no meaning if freedom to assemble is not guaranteed. hus, public meetings in open spaces and public streets have formed part of our national life and people have come to regard it as part of their privileges and immunities. Similarly, the right to take out a procession on the highways and *ublic Street is part of the right to assemble which the people have regarded as part of +ndian law, even before the commencement of "onstitution?. #easonable restrictions may be imposed in the interests of the sovereignty and integrity of +ndia or public order.
'reedo to 'or Associations and .nions Social functioning of organi2ed societies is based on multiplicity of associations and organi2ations. No democracy can function without freedom to form associations and unions. *olitical parties, trade unions, social and other organi2ations are part of democratic functioning of the society and the government. 9rticle 1:'1) 'c) guaranteed freedom to form associations and unions, though reasonable restrictions on the freedom may be imposed in the interest of integrity and sovereignty of +ndia, public order and morality.
6 3imatlal /- 4olice Commissioner, )01 !+2 SC $$!
/it to Stri&e - udicial Interpretations he right to strike in the +ndian constitution set up is not absolute right but it flow from the fundamental right to form union. 9s every other fundamental right is subect to reasonable restrictions, the same is also the case to form trade unions to give a call to the workers to go on strike and the state can impose reasonable restrictions. +n 9ll 0ndia 5ank Employees' )ssociation /- 6ational 0ndustrial %ribunal and others# , the "ourt specifically held that even very liberal interpretation of sub%clause '") of clause '1) of 9rticle 1: i.e. #ight to form associations or unions, cannot lead to the conclusion that trade unions have a guaranteed right to an effective collective bargaining or to strike, either as part of collective bargaining or otherwise. hus, there is a guaranteed fundamental right to form association or Aabour unions but there is no fundamental right to go on strike. Hnder the +ndustrial $ispute 9ct, 1:4; 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.
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