Stricks and Lock Outs in India

•

STRIKES AND LOCK-oUTS IN INDIA:LAW AND POLICY *

Suresh C. Srivastava **

I. INTRODUCTION

With the .rapid industrialisation of the country the problems oflabour management relations concerning strikes and lock-outs havemultlplied. In many Industrially advanced countries the system ofcollective bargaining has been adopted to resolve problems of wagesand to regUlate conditions of employment. India, which is passing througha transition has adopted adjudication system as an alternative tocollective bargaining. Further the law relating to strikes and lock-outs isregulated not only by what is generally known as labour legislation butalso by the provisions of the Constitution, the criminal law and otherstatutes which aim at preserving law and order In the country.

2. Strikes result in work-stoppage which, in its tum adversely affectsproduction. The loss of production not only reduces the profit-makingcapacity of the employer but also affects his delivery schedule and otherbusiness commitments. Workers hope that the employer would concedetheir demands In order to contain this resulting economic loss. At thesame time, under the principle "no work, no wages", the workers donot earn wages for the strike period and this loss of earnings exertspressure on the workers themselves. because, in view of the generalpove/W and low level of wages, they seldom have any saVings for therainy day. In lock-out, it Is the employer who first draws the sword. But,otherwlse,'the position Is exactly the same. Be that as it may, strikes andlock-outs in public utility services Invariably Inconvenience public. Indeedsuch Inconvenience Is a part ofthe objective of the combatants so as toinvite public condemnation of the alleged unreasonable attitude of theopposite party and strengthen their own bargaining position.

3. Under the circumstances, the community cannot remain a silentand helpless spectator In the economic warfare between employers andworkers. The extent and nature of community involvement, however,varies not only from country to country but within the same country from

* The Paper presented at the 2nd International Seminar on labour law organised byLAWASIA Standing Committee on Labour Law at New Delhi on 28-30 Sept. 1990.

** LL.D. (Calcutta), Professor of Law, Kurukshetra University & U.G.C. National Fellow,Formerly Dean, Faculty of Law, Kurukshetra University and University of Calabar,Calabar (Nigeria).

12 CENTRALINDIA LAW QUARTERLY [Vol. 4:1

time to time. This paper seeks to critically examine the law relating tostrikes and lock-outs in India.

II. STATUTORY DEFINITION OF STRIKE

4. Section 2 (q) of the Industrial Disputes Act. 1947 defines "strike"to mean:

a cessation of work by a body of persons employed in anyindustry acting in combination, or a concerted refusal; or arefusal under a common understanding of any number ofpersons who are or have been so employed to continue towork or to accept employment.

Judicial delineation of the aforesaid expression of "strike" is confusing,inadequate and inapt. While some of these may be the result ofImprecise legislative definition, ignorance of the facts of industrial life andlack of policy oriented approach have also contributed to the prevailingconfusion.

A. The Element of Combination

5. The definition recognises concerted act jon under commonunderstanding on the part of strikers as an essentialelement of strike. Theexpression "concerted" action has been planned, arranged, adjusted oragreed on and settled between parties acting together pursuant to somedesign or scheme 1SANJAY . The emphasis in strike is on acting togetherand not on pre-planning or preamingiflg: the parties who resort to strike,may come to a common understanding at the time in question withoutany formal agreement or consultations but nevertheless the concertedaction must be collectively combined on the basis of spirit de corpse andmust be combined together by the community of demands and interestwith a view to compel employer. to accede to their demands of wages,bonus, allowances, hours of work holidays and the like. 2 The length orduration of the "concerted" action is immaterial. 3

B. Forms of Strike

6. Most of the cases present relatively simple instance of "cessationof work" "refusal to continue to work" or "refusal to acceptemployment." 4 while negotiating for settlement of an industrial dispute,workmen may resort to the use of instruments of economic coercion to

1. Shamnagar Jute Factory v. Their Workmen,.(1950) 1 L.L.J. 235 (I.T.)2. D.N.Banerjeev. P.R.MUkherJee, AIR(1953) S:C.58.3. See Supra note 1.4. DiamondMachinery Mfg. Works v. TheirWorkers, (1952) 1 L.L.J. 137.

1991 ) STRIKES AND LOCK-OUTS IN INDIA 13

get their points of view accepted by the management. The workmen mayremain at their respective home or at any place, other than the place oftheir work or may even be present, at, near or within the premises or theplace of employment but not at their seats. However, difficult questionsarise when workmen deviate from traditional methods. What aboutstay-in-strike, pen-down strike, tool-down strike, go-slow, hunger stike,sympathetic strike, and work-to rule? Do they fall within the meaning ofthe definition of strike 5 as defined in Section 2(q) of the IDA?

1. Stay-in-Strike: Sit"down Strike: Pen-Down Strike orTool-Down Strike

7. Decision makers 6 and writers 1 have used the expressions"stay-in-strike," 8 sit-down strike",9 "pen-down strike" 10 and "tooldown strike" 11 as synonym of each other.

8. In the Punjab National Bank Ltd. v. Their Workmen 12 ,

one Sabbarwal, a typist and Secretary of the Punjab National Bank

5. The National Commission on Labour, while considering the adequacy or otherwiseofthe definition of "strike" under Section 2(q) of the IDA declined to include concertedaction such as "go slow" and "work-to-rule" in the definition of "strike." Accordingto the Commission the labour protest, such as "go-slow" and ''work-to-rule'' shouldbe "treated as misconduct or unfair labour practices under the standing orders" (Seethe Report of the National Commission on Labour, 1969, p.483). The IndustrialRelations Bill, 1978also did not include the aforesaid forms of labour protest in thedefinition of "strike" under Section 2(43). .

6. See Puntab National Bank ltd. v. Their Workmen, (1959) 2 L.L.J. 666 (S.C.) sadulTextile Milia v. Their Workmen, (1958) 2 L.L.J. 628 (Rajasthan ); Howrah FoundryWork. v. Their Workmen, (1955) 2 L.L.J. 97 (LT.): Shalimar Work. v. TheirWorkmen, (1955) 2 L.L.J.95 (LAT.): Dalmla Cement Co. v. ThelrWorkmen, (1955)2 L.L.J. 466 (LAT.)

7. These strikes were first used in the United States of America and France.They settheir foot on the Indian soil in April, 1939.Thethen Congressgovernmentwashesitantto declare them illegal. They attracted the attention of Indian Judiciary In 1952. Earlydecision makers held that it was an invasion of the rights of the employer in theproperty of the Mill. See generally .Dwarkadas KanJI, Forty Five years withLabour, 1962, p.53. ~t in Punjab Natlonall'ank Co. supra note 6 the SupremeCourt took a somewhat different view.

8. See Ludwig Teller, 1 Labour Dispute and Collective Bargaining 31 referred to andapproved in Punjab National Bank v. TheIr WOrkmen,op.clt, pp. 666-687. Seealso Sadul Textile Mills v. their Workmen, supra note 6 at 628. Chelpark Co.Ltd. v. eommla8loner of Police (1967) 2 L.L.J. 836 (Madras); Mysore MachineryMfg. Co Ltd. v, State of Mysor:e (1967) 2 L.L.J.853, (Madras); Shalimar Worksltd. v. Their Workmen, op.clt. P.363; indian Machinery Co. v. their Workmen,(1957) LAC. 539; Dalmla cementUd. v. TheIr Workmen, (t967) 2 L.L.J. 56(LAT.)

9. Ibid.10. See Punjab National Bank v, Their Workmen, (t959) 2 L.L.J.666 (S.C.)11. See for instance, Lakshmi DeviSugar Mill v. Ram Swaroop (1957) 1L.L.J. 22 (S.C.).12. Punjab National Bank Ltd. v. TheirWorkmen (1952) 1 L.L.J. 531 (T.T.) on appeal

(1952) 2 L.L.J. 648 and on special appeal (1959) 2 L.L.J. 666 (S.C.)

14 CENTRALINDIA LAW aUARTERLY [Vol. 4:1

Employees' Union of Delhi, applied for 7 days leave. The managementdeclined to grant him leave. Even so Sabbarwal absented himself fromduty. On resumption of duties, he was charge-sheeted for absencewithout leave. However, Sabbarwal refused to accept the show-causenotice. The management thereupon sent it to him by registered post and,pending further enquiry, suspended him. The employees Unioninstructed employees to stick 'to their seats and to refuse to work untilpolice intervened and threatened arrest or until orders of discharge orsuspension were served on them. This the co-employees ofSabbarwal did. Meanwhile a turbulent crowd gathered outside thepremises of the Bank. Some of the persons in the crowd shouted slogansin support of the action of the employees. The management suspended60 of the aforesaid participating employees. This led to a nearindustry-wide, strike in Delhi and State of Uttar Pradesh. The Bank gavenotice that unless the strikers resumed their duties by a specified date,they would be treated as having voluntarily ceased to be employeesand on their failure, to report to duty on the specified date, terminatedthe services of 150 of its emplyees after giving them another chanceto resume their duties.

9. On these facts. a question arose as to the nature of theemployees' activities in sticking to their seat but refusing to work. TheSupreme Court recognised that the main grievance of the bank wasthat the employees not only sat in their places and refused to work butthey did, not vacate their seats when they were asked to do so by theirsuperior officers. However, it considered such' an "element ofinsubordination to' be a different matter" and relevant for ,interpretingthe definition of "strike" and on a plain and grammatical construction ofthe definition held.

Refusal under common understanding, to continue towork is a strike and if in pursuance of ,such commonUnderstanding the employees entered the premises andrefused to take their pens in their hands, that would nodoubt be a strike under Section 2 (q) . 13, '

We believe that the emphasis on Ilterallnterpretation resulted in Ignoring ,the conceptual understanding of the phenomenon known as strikeand in encouraging undesirable-,activit•.

13. Punlab NatIonal Bank Ltd. v.Their Workmen, op.cit., p,684.

1991 ]

2. Go-Slow

STRIKES AND LOCK~OUTS IN INDIA 15

.10. Not frequently workers deliberately slow-down the pace ofproduction. There is no "cessation of work" or "refusal to continue towork" or "refusal to accept employment." But, nevertheless, theeconomic implications are very serious: the cost of production goesup, delivery schedule gets upset and very often, raw material andmachinery are adversely affected. Workers adopt this practice tocircumvent the statutory restrictions 14 on strike. However, when theyare disciplined for misconduct, they assert that the practice amounts tostrike. 15 Obviously, they cannot be permitted to blow hot and cold at thesametime. But, then the all important question is whether this practice,popUlarly called, "go- slow" is strike? The definition of "strike" usesthephrases "cessation of work".. "refusal to continue to work" and "refusalto accept employment." Tbsse phrases are not qualified by theexpression "total" or "partial." 16

11. In Bharat Sugar Mills Ltd. v. Jai Singh. 17 Justice DasGupta, speaking for the Supreme Court observed:

Go- slow which is a picturesque description ofdeliberate delaying of production by workers pretendingto be engaged in the factory is one of the most perniciouspractices that discontented or disgruntled workmensometime resort .to. It would not be far wrong to callthis dishonest. For, while thus delaying production andthereby reducing the output, the workmen claim to haveremained employed and thus to be entitled to full wages.Apart from this also, 'go-slow' is likely to be much moreharmful than total cessation of work by strike. For, whileduring a strike much of the machinery can be fullyturned off, during the "go-slow" the machinery is keptgoing on at a reduced speed which is often extremelydamaging to machinery parts. For all these reasons

14 Sections22,23, &10 (3).15 See for Instance, Firestone Tyre and Rubber Co. of India Ltd. v, B. Shetty. (1953)

1 L.L.J. 599. (LAT.); upheld by the Bombay High Court in (1954) 1 L.L.J. 281(Bombay).

16 Clause 2(34) of the Industrial Relations Bill, 1978has defined "Strike," inter alia, tomean: Total or partial cessationof work by abody of personsemployed in anyindustrialestablishment or undertaking .... (emphasis added)

17 Bharat Sugar Mills Ltd. v. Jal Singh, (1961) 2 L.L.J.

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"go-slow" has always been considered a seridus typeof misconduct. 18

12. The expression "cessation of work", "refusal to continue towork" and "refusal to accept employment" have been equated withstoppage of work. But as the Labour Appellate Tribunal pointed out inFine Knitting Company Ltd. 19

It is not suggested anywhere in record that in this casethere was wort< stopped at any time. All that theCompany pleaded and that the Industrial Court has foundis that there was a slow - down. Hence there was nostrike (emphasis supplied) 20

3. Hunger Strike

13. Hunger strike is a strike with fasting by some or all strikers,21 0reven outsiders 22 super added to exert moral force or, perhaps whatmay be more aptly described as coercion, for acceptance of thedemands. Its usage, however, is complicated because, like the wordstrike. it is used to describe all protest fasts. whether or not theparticular protest activity is in furtherance of an industrial dispute.23

18 Ibid page 64.19 Fine Knitting Company (1957) 1 L.l.J. 409. Seealso Firestone Tyre and Rubber

Co. v . Bhola Shetty, (1953) 2. L.L.J. 499 (LAT.) where the Labour AppellateTribunalalso denouncedthe go-slowtechniqueand refused to equateit with strike.

20 Fire Knitting Compeny Ltd., op. c"., pAl 1.

21 Plpralch Sugar Mills v. Their Workman, (1956-57) X FJR 4113 (LAT.). Certainworkmenwho held key posts in the factory went on a hunger strikeon a holiday atthe residence of the Managing Directorof the factory and continued to do so onother working days. Observed the LabourAppellilate Tribunal.The mere fact that the hunger strike was stagedon...... a holiday, does not reducethe essential characteristics of strike from this hunger 'satyagraha' for the intentionof the·strikers was to continue it til.1 their demands were met or till they died ofstarvation.

22 It is not claimed on behalf of those satyagrahi workers that they did presentthemselves for their duty on the 2nd of April 1953. So it must be held that thishunger strike "satyagrah" was continuing on 2nd April, 1955 and amounted to"strike".

23 Thus, students are said to be on hunger strike to press their demands againsteducational authorities, political leadersare said to be on hunger strike to compelthe government to redresstheir grievances and various Sections of community aresaid to be on hunger strike in support of their stand against various authorities orbodies.

1991 1 STRIKES AND LOCK-OUTS IN INDIA 17

4. Lightning or Wildcat Strike

14. The characterstic feature of this type.of withdrawal of labour isthat the workmen suddenly withdraw their labour and bargainafterwards.24 Such strikes are prohibited in public utility services underthe Industrial Disputes Act 1947 25 and all industrial establishments inpublic utility services in U.P., Maharashtra , M.P. and GUjarat, wherenotice is required to be given. Furtherthe standing'ordersof the companygenerally require notice. Since no notice is required in industrialestablishments other than the public utility concern a question, therefore,arises whether the act in such a situation would be a misconduct orunjustitied. These questions have been subject- matter of judicial'controversy.

15. In Swami Oil Mills v. Their Workers26 certain workmenresorted to sudden lightning strike allegedly on failure of the Governmentto refer the dispute to the Tribunal. The question for consideration withrespect to strike was whether it was either illegal or unjustified. TheTribunal held that the strike was not illegaland unjustified. But observed:

"It must be conceded that a sudden lightning strike, such asthe one in question, without any previous notice to themanagement, cannot be looked upon as quite proper....27

16. In Sadul Textile Mills v. Their Workmen 28 certain workmenstruck work as a protest against the lay-off and the transfer of someworkers from one shift to another without giving four day's noticeprovided by standing order 23. On these facts the question arosewhether the strike was justified. The Industrial Tribunal answered it inaffirmative. Against this a writ petition was preferred in the High Court ofRajasthan. Reversing the decision of the Tribunal Justice Wanchooobserved:

......we are of opinion that what is generally known as alightning strike like this takes place without noticeprovided by the standing orders and each worker strikingare gUiltyof misconduct under the standing orders ...... andliable to be s~mmarily dismissed; the strike cannot bejustified at all.

24 Kothari, Labour Lawand Practice, (1964), p. 66.25 Section 22.26 Swami Oil Mills v. Their Workers, (1953) 2 L.U. 78527 Id. at 790.28 Sadul Textile Mills v, Their Workmen, (1958). 2 L.L.J. 628 (Rajasthan).29 !d. at 630.


5. Work-to-Rule

17. In this form of concerted activity employees, though remaining onjob, do the work literally in accordance with rules or procedure laid down forthe purpose, decline to do anything not mentioned therein, take allpermissible time off the job, and do the work in such a manner that it resultsin dislocation of the work. Usually rules of work are stretched and followed insuch a manner that under the shelter of complying with rules the verypurpose of these rules, namely, harmonious working for maximisingproduction, is frustrated. In these tactics the workers literally work accordingto rules but in spirit therefore they work against; though they are called "workto rule" tactics, in substance they amount to "work against rule tactics."These tactics are generally employed as an alternative to traditional strike,particularly, where traditional strike cannot be called. Whatever may be theform of compliance with the rules and whatever may be the outwardmanifestation, in substance, the conduct of employees amounts tocompliance in a manner not in conformity with the prevailing normal practiceand in harmony with expectation then entertained, it amounts to bringingabout linilateral changes in the working system by the employees and it is amisconduetfor which the employer is justified in taking action.

18. In USA these tactics are recognised as a form of strike. But, in Indiathey are not covered by the definition Of"strike". As in go-slow, so here; thereis no "stoppage" of work. Again for the very reason because of which we areagainst extension of definition of "strike" to indude go- slow, we are alsoagainst inclusion of work-to-rule within the ambit of "strike".

C. Why Workmen go on Strike?

19. We have already seen that the Industrial Disputes Act defines"strike". A question arises whether strike is a means to achieve ends otherthan getting time off or an end in itself i.e., to get time off on the very daythe workmen indulge in cessation of work. Further, if strike, is merely ameans to an end, whether the three forms of withdrawal of labour, viz.,"cessation of work", "refusal to continue to work" and "refusal to acceptemployment" are means to further "trade dispute objectives" of theparticipants or even to achieve political and other non-trade disputeobjectives.

1991 ] STRIKES AND LOCK-OUTS IN INDIA

III. Lock-Out

19

20. The use of the term "lock-out" to describe employer'sinstruments of economic coercion dates back to 186030 and is younger31

than its counterparts in the hands of workers, strike by one hundredyears. Formerly the instrument of lock-out was resorted to by an employeror group of employers to ban union membership: the employers refusedemployment to workers who did not sign a pledge not to belong to tradeunion. later the lock-out was declared generally by a body of employersagainst a strike at a particular work by closing all factories until strikersreturned to work.32 India witnessed lock-out twenty-five years after the"lock-out" was known and used in the arena of labour managementrelations in industrially advanced countries. Karnik reports that the firstknown lock-out was declared in 1895 In Budge Budge Jute Mills.33

A. The Statutory Definition

21. Section 2(1) of the Industrial Disputes Act, 1947 defines"Iock-out" to mean:

The temporary closing of employment or the suspension ofwork, or the refusal by an employer to continue to employany number of persons employed by him.34

A delineation of the nature of this weapon of industrial warfare requiresdescription of: (i) the acts which constitute it; (ii) the party who uses it; (iii)the party against whom it is directed; and (iv) the motive which promptsresort to it.

30 The first recorded use of the phrase "to strike work" occured in 1768, at thebegining of industrial Revolution see Knowles, Strikes • A Study of IndustrialConflicts, 1952, p.p. 2-3.

31 see Encyclopaedia Brl1annica, (1959) p. 467.32 Ibid.33 V..B. Karnik, Strikes in india, 1967,pp. 13-14citing the Bengal Administration Report

(1995-96). Another Iock-out of which reference is found is that of the one declared inBuckingham and Carnatic Milia in 1968, see V.B.Karnikop. cI1.,p. 97.

34 The Industrial Disputes (Amendment) Act, 1982provides that in section 2(1) for.thewords "closing of a place of employment" the words "temporary closing of a placeof employment" be substituted.


B. Judicial Response

22. Early decision makers Oudicial and quasi-judicial) generally35declined to treat lock-out merely as an Instrument of economic coercion.They emphasised deliberate omission of the objective clause from thedefintion of lock- out and gave a catch-all meaning of Section 2(1) ofIndustrial Desputes Act. However, there is a catena of cases in whichappropriate decision-makers stressed that lock-out is essentially aninstrument of economic coercion and the omission of the objective clausedid not change its meaning. The observation of the Labour AppelateTribunal in Presidency Jute Mills Co. Ltd.v. Presidency Jute Mills Co.Employees Union38 is significant:

The definition of strike as given in the(Industrial disputes)Act is the same as that given in the Trade Disputes Act of1929.Those definitions do not in expressterms refer to anyreason behind the concerted action of the workmen, butthe very conception of strike is that it is a recognisedweapon in the hands of the workmen for enforcing theircollective demands. The use of the term "strike"necessarily implies that it has relation to a collectivedemand which has not been acceded to by the employer.Lock- out is the counter-part of strike, the correspondingweapon in the hands of the employer to resist thecollective demands of workmen or to enforce his terms.37

23. Earlier the Supreme Court in Kairbetta Estate v. Rajmanickam38

upheld the interpretation given in the Presidency Jute Mills case. In iheinstant case, the manager of the estate was assaulted by some of theworkmen as a result of which he suffered fracture and was hospitalisedfora month. Other members of the staff were also threatened and they wroteto the management stating that they were afraid to go to the affecteddivision of the estate as their lives were in. danger. On receiving thiscommunication, the management notified that the affected division wouldbe closed until such time as workmen gave an assurancethat there would

35 Empire of India LIfe Insurance Co. Ltd. v, Their Empoloyees, Labour Gazette,October, 1947 p.187, II, SUn Rolling Mill. v. Their Workmen, (1949) L.U. 696,Ganges Jute Manufacturing Company Ltd. v. their Employees, (1950) LLJ.10;Bengal Jute Mills v. Their Workmen, (1950) LL.J.437 (I.T.).

38 Presldeny Jute Milia Co. Ltd. v. Presidency Jute Mills Co. Employees Union,(1952) 1 L.L.J. 796 (L.A.T.).

37 Id. at 799.38 Kalrbetta Estate v. Rajmanickam, (1960) 2 L L J. 275 (S.C.).

1991 ] STRIKES AND LOCK-OUTS IN INDIA 21

not be any further trouble and that the members of the staff would not beassaulted. In due course of time, on the intervention of LabourCommissioner, the concerned workmen gave the requisite undertakingand work was resumed. However, the affected workers claimed lay-offcompensation for the period they had been locked-out. The IndustrialTribunal having granted the compensation, the management appealed tothe Supreme Court. Justice Gajendragadkar referred to the omission ofthe objective clause from the 1947-definitionand added:

Even so, the essential chracter of a lock-out continues tobe substanially the same. Lock-out can be described asthe antithesis of a strike. Just as a strike is a weaponavailable to the employees for enforcing their industrialdemands. In the struggle between capital and labour theweapon of strike is available to labour and is often used byIt, so is the weapon of lock-out available to the employerand can be used by him. The use of both the weapons bythe respective parties must, however, be subject to therelevant provisions of the (Industrial Disputes) Act.39

He concluded that this was a case of lock-out.

1. Disciplinary Measure not Lock-out

24. cases of indiscipline, misconduct and violation of the provision ofthe certified standing orders frequently occur in Indian Industrial andbusiness undertakings. Disciplinary measures adopted by themanagement range from adverse entry in the character roll to thetermination of employment. We are concerned here with only thosemanagement actions which result in suspension of the concernedworkmen during the pendency of investigatory proceedings as apunishment or otherwise either on payment of emoluments, or otherwiseand all other cases resulting into refusal by an employer to continue toemploy any number of persons employed by him such as ordersprohibiting late-coming workmen to resume work and marking themabsent for the day. The question here is whether these disciplinarymeasures which come within the literal meaning of Section 2(1) of theIndustrial Disputes Act, amount to a lock-out or not.

25. In Ram Naresh Kumar v. State of West 8eng81,4O themanagement found certain ash-coolies guilty of adopting go slow tactics,

39 Id. at 278.40 Ram Naresh Kumar v. State of West Bengal (1958) 1 L. L. J. 667 (Calcutta).


disobedience and assaulting the chief Engineer. Since anadjudication proceeding was pending. the management suspended theconcerned workmen and applied to the Tribunal for permission toterminate their services. The concerned ash-coolies claimed. in a writpetition. that the suspension amounted to a lock-out. that such lock-outwas illegal under Section 23 and that the Tribunal had no jurisdiction toentertain the application. However, theGalcutta High court rejected thepetition on the ground that suspension of workers in this case would notamount to a lock- out.

2. Security Measure not Lock-out

26. Dicta in certain cases 41 indicate that "the closing of a place ofemployment, or the suspension of work or the refusal by an employer tocontinue to employ any number of persons employed by him" may be asecurity measure and yet the conduct of the employer may fall within theamibit of Section 2(1) of the Industrial Disputes Act, 1947. For instance. inLakshmi Devi Sugar Mills v. Ram Sarup42 Justice Bhaqwat],summarising the views expressed by Labour Appellate Tribunal in JuteWorkers Federation v. Clive Jute Mills,43 observed that "lock-out isgenerally adopted as a security measure."

27. This is unacceptable. Lock-out is an instrument ot economiccoercion and not a security measure. Lock-out is not an end in itself but ameans to an end. The particular means adopted are the putting ofeconomic pressures on recalcitrant workmen. Further, in harmony withthe view: "no work no pay", "the closing of a place of employment, or thesuspension of work, or the refusal by an employer to continue to employany number of persons employed by him" is the means adopted to putthe requisite economic pressure. The emphasis here is due as much onthe means adopted as on the object sQught to be achieved.

Lay-off not Lock-out

28. In Prabhoo Pandey v. J.K. Jute MiHs Co. Ltd.44 the LabourAppellate Tribunal observed that:

41 SeeJute Workers Federation v, CliveJute Mills (1951) 1 L.L.J. 663. (L.A.J) LakshmlDevl SUgar MRlsv. Ram "rup (1957) 1 L.L.J. 17 (S.C.); Lord KrIshna sugar Millsltd. v. State of Uttar Pradesh (1964) 2 L.L.J.76 (Allahabad).

42 Lakshmi Devi Sugar Mills v. Ram $erup, Optcit.43 Jute Workers's Federation v. Clive Jute Mills, Optcit.44 Prabhoo Pandey v. J.K. Jute Mills Co. Ltd. (1956) 1 l.L.J. 588 (LAT.).

1991 ] STRIKES AND LOCK·OUTS IN INDIA 23

The closure being only temporary and due to reasonsbeyond the control of the management, namely, theshortage of jute at the time as notified by the management.it is clearly not a case of lock-out which ordinarily involvesan element of malice or iII_will 45

FolloWing Annamalal Timber Trust. v. V.P. Chakhu,46 it held thattemporary suspension of work for want of raw materials was not alock-out. The view of the Labour Appellate Tribunal that lock-out involvesan element of "malice or ill-will" is unacceptable. We have alreadystressed that lock-out is an instrument of economic coercion and so longas the management is acting with a view to achieve this objective byputting economic pressure on its workmen it can hardly be said that theyare activated by "malice" or "ill-will."

29. The observation of Justice Aiyar in Shri Ram Chandra spinningMills Ltd. v. State of Madras 47 is more pertinent:

The lock-out is the corresponding weapon in the armouryof the employer. If an employer shuts down his place ofbusiness as a means of reprisal or as an instrument ofcoercion or, as a mode of exerting pressure on theemployees or, generally speaking, when his act is that maybe called an act of belligerency there would be a lock-out.If, on the other hand, he shuts down his work because hecannot for instance get raw materials or the fuel or thepower necessary to carry on his undertaking or becausehe is unable to sell the goods he has made or because hiscredit is exhausted or because he (is) losing money, thatwould not be a lock-out. 48

The Kalrbetta Estate Case49 raised the reverse problem, namely whetherlay-off included lock-out so that locked-out workmen could claim lay-offcompensation. The Supreme Court after discussing the scope of theexpression "any other reason" occurring in Section 2 (KKK) and theprovisions relating to lay- off compensation under Section 25C andSection 25E (iii) of the Industrial Disputes Act observed:

45 Icl. at 590.46 Anname'a' Timber Trust v. V.P. Chakhu. (1952) 2 L.L.J. 684 (LAT.).47 Shri Ram Chandra spinning Mills Ltd. v. State of Madras (1957) 1 L.L.J. 90

(Madras)48 Id. at 92-93.49 Kalrbetta Estate cas. op. cit.


Stated broadly, lay-off generally occurs in a continuingbusiness, whereasa lock-out is the closure of the business. Inthe case of a lay-off owing to the reasonsspecified in Section2(KKK) the employer is unable to give employment to one ormore workmen. In the case cj lock-out, the employer dosesthe place of the business and Ioc\<s-out the whole body cjworkmen for reasons which have no relevance to causesspecified in section 2(kkk). 50

The court concluded that lay-off compensation could not be granted tolock-out workmen.

3. Closure not Lock-out

30. In Express Newspaper Ltd. v. Industrial Tribunal 51 JusticeGajendragadkar indicated that:

.,... the main point which the Tribunal will have to consider iswhether the strike of the (workmen) on 27th April 1959 wasjustified and whether the action of the (management) whichfollowed the said strike is either a lock-out or amounts to aclosure. The (workmen) wDl contend that it is a lock-out whichis in the nature of an act of a reprisal on the part of the(management) whereasthe (management) will contend that itis nota lock-out but a closure, genuine and bonafide.

And such inquiry, his Lordship held, was within the competence of theIndustrial Tribunal.

31. The Supreme Court in General Labour Union (Red Flag) v. B.V.Charvan 52 was invited to determine the distinction between lock- out andclosure. The court laid down the following tests53 :-

(W)here the parties are at variance whether the employershave imposed a lock-out or have closed the establishmentit is necessary to find out what was the intention of theemployer at the time when it resorts to lock-out or claimsto have closed down the industrial undertaking. It is to bedetermined with accuracy whether the closing down of theindustrial activity was a consequence of imposing lock-out

50 Id. at 278.51 Express Newspaper Ltd. v. Industrial Tribunal, (1962) 2 L.L.J. 227 (S.C.).52 (1985) 1 L.L.J: 8253 Id. at 83-84.


or the owner/employer had decided to close down theindustrial activity.

In lock-out the employer refuses to continue to employ the workmenemployed by him eventhough the businessactivitywas not closed down norintended to be closed down. The essence of lock- out is the refusal of theemployer to continue to employ workmen. There is no intention to close theindustrial activity. Even if the suspension of work is ordered it wouldconstitute lock-out. On the other hand closure implies closing of industrialactivity as a consequence of which workmen are rendered lob-less.

4. Discharge of Lock-out

32. In Feroz Din v. State of West Bengal 54 Justice Sarkar whodelivered the jUdgment for the Supreme COL:rt observed:

.. the words 'refusal by an employer to continue toemploy any number of persons employed by him' inSection 2(1) do not include the discharge of an employee.We feel no difficulty in taking this view, for it does not seemto us that the words "refusal to continue to employ" inSection 2(1) plainly include a discharge. These words haveto be read with the rest of the definition and also the word"Lock-out". The other parts of the definition contemplateno severance of the relation of employer and employee.55

and held that discharge was not covered in Section 2(1) of the Act.

iv. RIGHT TO STRIKE

A. No Fundamental Right to Strike

33. Article 19(1) (c) of the constitution declares that:

All citizens shall have a right ..... to form associations or unions.This right, however, is not absolute. Clause 4 of Article 19 provides that:

Nothing in Sub-clause (c) of the said clause shall affect theoperation of any existing law in so far as it imposes, or··prevents the state from making any law imposing, in theinterests of the sovereignty and integrity of India or public

54 Feroz Din v. State of West Bengal, (1960) 1 L.L.J. 244 (S.C.)55 Id.249. .


order or morality, reasonable restrictions on the exercise ofthe right conferred by the said sub-clause.

In All India Bank Employees Association v. National IndustrialTribunal,56 the Supreme Court considered the aforesaid provisions. It,inter alia, ruled that:

..... even a very liberal interpretation of subclause (c) ofClause (1) of Article 19 cannot lead to the conclusion thatthe trade unions have a guaranteed right to .... strike, eitheras part of collective bargaining or otherwise. 57

B. Right to Strike under the Industrial Disputes Act

34. Though, the right to strike is not a fundamental right as such, it isopen to a citizen to go on strike or withhold his labour. The right to strikehas been recognised under the Industrial Disputes Act by defining thecircumstances under which a strike is to be regarded as illegal.58 Judicialand quasi-judicial decisions59 indicate that "workmen have, after a longstruggle, succeeded in establishing that in proper cases the weapon of strikeis open to them. Whatever may be the value of strike judged by commonstandards, it has, in certain circumstances, been recognised as a legitimateweapon of tneworkmen for the purpose of ventilating their demands." 60 Theworkers' right to strike was explained by the Labour Appellate Tribunal inRam Krishna Iron Foundry v. Their Workers: 61

The right to strike has been recognised by necessaryimplication in the industrial legislation in India and expressstatutory provisions have been made for the purpose of

56 All India Bank Employees Association v. NationallnduBtrlal Tribunal, A.I.A. 1962S.C. 171.

57 Id at 181.58 Gwallor Ravon Silk Mfg. Co. v. District Collector (1982) 1 LLJ. 356 (Kerala);

Buckingham and Carnatic Mills Ltd. v. Their Workmen, (1951) 2 LLJ. 314-316(LA.T.); Amalendu Gupta v. LtC. (1982) 2 LLJ. 332 (calcutta).

59 See. for instance, Buckingham earn.tic MUla v. Their Workers, (1951) 2 L.L.J.314, Bihar Fire Works v. Its Workmen (1953) 1 L..L.J. 49.

60 Bihar Fire Works v. Its Workmen op. elt., supra, p. 52.61 Ram Krishna Iron Foundry v. Their Workers, (1954) ~ L.L.J. 372 (L.A.T.).

---- --- - - -- - - -- - -- --- -- -- -- -- -


regulating it. It is thus a recognised weapon of theworkmen to be resorted to by them for asserting theirbargaining power and backing up their collective demandson an unwilling employer. 62

Thus the common law right to strike 63 cannot be taken away even if thereis a standing order abrogating their rights. 64 To hold otherwise would beto interfere with fundamental right of employees to resort to strike as ameans to enforce their demands which falls within the subject of industrialdisputes. 65

35. Again in G. R. S. M. (W) Co. Ltd. v. District Collector 66 theKerala High Court summarised the legal position of the worker's right tostrike in the following words:

Though under the ConstItution of India, the right to strike isnot a fundamental right as such, It is open to a citizen to goon strike or withhold his labour. Every strike is not illegaland the workers in any democratic state have the right toresort to strike whenever they are so pleased in order toexpress their grievances or to make certain demands. Astrike in the circumstances is a necessary safety valve in

. industrial relations when proper1y resorted. It is a legitimateweapon in the matter of industrial relations.

In Gwalior Rayon Silk Manufacturing (Weaving) Co. v. DistrictCollector 67 the first petitioner had applied to the High Court for a writ ofmandamus directing the government to grant adequate police protectionto remove the goodS from the premises in the second petitioner's factory.A labour dispute was on between the second petitioner and the workmenand the workmen had resorted to a strike as per the provisions of theIndustrial Disputes Act.The Kerala High Court relying upon its ear1ierdecision in C. Kannan v. Superintedent of Police 68 held that the courtshould exercise great caution in dealing with an application for police

62 Id. at 373.63 "There is nothing inherently unlawful or illegal in a strike..... common law permitted

an employer to stop work if he so desired." SeeRaja Bahadur Motllal Poona MillsY. Mill Mazdoor Sabha (1954) 1 L.L.J. 124. .

64 Smtih Stalnstreet and Co. Ltd. Y. Workers Union (1953) 1 L.L.J. 67 (LAT.).65 Id. at 71.66 (1982) Lab. J.e. 367. See also Colmbatore P.D.M. Sangam Y. Mis SIYakumar

Transport, 1986 Lab. I.e. 1012 (Madras).67 (1982) 1 L.L.J. 35968 1974 Ker. L.T. 516.


protection. Managements placed under very trying circumstances mayhave to seek the assistance of the court in obtaining orders for policeprotection. However, such orders should not interfere with the rights ofworkers to carry on their agitation peacefully. In this connection the courtunder-lined the need for adopting Mahatma Gandhiji's method ofresistance:

Mahatma Gandhi's methods of resistance to what onesincerely considers wrong or evil is fully relevant even in anindependent country in a democratic set up. Gandhianmethods are in perfect consonance with a democraticsociety as a means for effecting social change. If in anycircumstances ordinary methods are found to be of noavail and violence had to be prevented; one cannot findfault with social engineers if they go back to Gandhiji andhis methods of fighting the evil. It is true, no doubt, thatduring the post-independence period the weapon ofresistance to Government or to any other constitutionalauthority has come to be misused. Any disobedience oflaw whether evil or unevil is wrongly termed satyagrahanow. But that is no reason Why Gandhian methods shouldbe considered to be against law. 69

The court in the instant case pointed out that if the Government decidednot to step in the labour dispute with its police power "to tilt the balancein favour of the capital the court shall not act as a spoke in the wheel tointerfere with such policy." 70 At the same time the court cautioned thatthe police could not. be told that they should not take action when anoffence was committed. The police officer was answerable to law and tothe law alone. If in the gUise of peacefUl satyagraha or strike. cognizableoffences were sought to be committed and violence was resorted to, thepolice should interfere. Police should certainly Interfere if there was anyimminent danger or peril to life and property.

36. But the right to strike conferred by the Act cannot be extended tonon-workmen because that would result in anarchy in the Industrialsociety:

Even if it is assumed without deciding that as far as thedispute in question there is community of interest between

69 (1982) 1 L.L.J. 359 at 360-361.70 Id. at 361.


the workmen of the Board and the petitioners- AssistantEngineers, it cannot be said that tne Assistant Engineerscould join the strike. If they could not join the strike theycannot take shelter under the Act when the Board takesaction against them for their unauthorised absence fromduty.71

Strike has, however, an adverse effect upon production and upon theIndustry. It is, therefore, desirable that it should be used "as a last resortwhen all other avenues for settlement of industrial disputes, have provedfutile."72 The Supreme Court in Chandramalai Estate v. TheirWorkmen73 recognised that "strike is a legitimate and sometimesunavoidable weapon in the hand of labour."

v. RIGHT TO LOCK-OUT

37. Since 1950 the Constitution guaranteed the right to acquire, holdand dispose of property. The Constitution also guarantees the right tocarry on any occupation, trade or business. Is the employer's right tolock- out workmen guaranteed under any or both of these Constitutionalprovisions (with the result that a law regulating lock-out) violates theConstitutional guarantee unless it imposes reasonable restrictions in theinterest of general public? This question was answered in negative by theAndhra Pradesh High Court, in A. P. E;lectrical Equipment Corporationv. Its Staff Union. 74 The Court observed:

...... the right to lock-out is now controlled by Sections [(10)(3)], 10-A (4A) ..... 22 and 23 of the Act and the penalaction is engraftedfor disobedience of the prohibition oflock-out u/s 24. If it is held that the petitioner has afundamental right to declare lock-out, then natLirally theprovisions referred to earlier would be rendered atiose.75

The Court accordinagly held that right to lock-out is a statutory rightcontrolled by the relevant provisions of the Act and must be exercised inconformity therewith.

71 Kera_a StIlte Electrlcl1y Workers Federations v. Kerale S1ate Electricity Board,(1983) 1 L.L.J. 435, 442 (Kera/a).

72 See Ram Krishna .Iron Foundry v. Their Workers (1954) 2 L.L.J. 516,520 (LAT.);See also Chandramalai Estate v. Their Workmen, (1960) 2 L.L.J. 243 (S.C.).

73 Chandramalal Estate v. Their Workmen, op. cit.74 1986 Lab. I.C. 1851.75 Id. at 1857.

30 CENTRAL INDIA LAWQUARTERLY [Vol. 4:1

VI. REGULATION OF STRIKES AND LOCK-OUT

A. General Prohibition of Strikes and Lock-outs

38. Section 23 prohibits strikes and lock-outs:

No workman who is employed in any industrialestablishment shall go on strike in breach of contract andno employer of any such workmen shalldeclare a lock-out,

(a) during the pendency of conciliation proceedings beforea Board and seven days after the conclustlon of suchproceedings;

(b) during the pendency of proceedings before a labourCourt, Tribunal or National Tribunal and two monthsafter the conclusion of such proceedings;

(c) during the pendency of arbitration proceedings beforean arbitrator and two months after the conclusion ofsuch proceedings, where a notification has been issuedunder Sub Section (3A) of Section 10A ; or

(d) during any period in which a settlement or award is Inoperation in respect of any of the matters covered bythe settlement or award.

The aforesaid provisions do not limit illegality only to strikes (or lock-out)which cover demands which are the subject-matter of the pendingproceedings. Thus, a strike (or lock-out) which is called during thependency of conciliation proceedings or a reference is illegal, although itis in respect of demands which are not covered by conciliationproceedings.76 .

2. Curtailment of Scope of General Prohibition

39. In Chemicals and Fibres of India ltd. v. D.C. Shoir n there wasa dispute between a workman and the employer concerning the former'sdismissal. This "individual dispute" became an "industrial dispute"because of the provisions of Section 2A of the IDA and the Governmentreferred the "industrial dispute" to a labour Court for adjudication. Duringthe pendency of adjudlcatlon proceedings relating thereto, themanagement of MIS Chemicals and Fibres ltd., dismissed three other

76 Balmer Lawrie It Co. Ltd. v, hs Employee's Union Lab. I.e. 88 (Bombay).n Chemicals and Fibres of India ltd. v, D.C. Sholr, (1975) 2 L.l.J. 168 (S.C.).

- --- -- - --- ---------------


workmen. Thereafter the workmen of MIS Chemicalsand Fibres Ltd., wenton strike to protest against the dismissal of the aforesaid threeemployees. Was this strike prohibited under Section 23 (b)? The SuprmeCourt ruled:

Even in respect of clause(b) some limitations should beread confining it to the parties to the proceedings eitheractually at constructively, as in the case of the Unionespousing the cause of an individual workman. 78

The Court held that the prohibition contained in Section 23 did not applyto the workmen employed in Chemical and Fibres of India trd., eventhough they went on strike, and matters relating to the dismissal of asingle workman of that establishment were pending adjudication before aLabour Court. At the same time, the Supreme Court widened, in a differentdirection, the scope of the prohibition imposed by Section 23 when itapproved the High Court decisions Which established:

....... that even though the proceedings pending before theLabour Co.urt, Tribunal or National Tribunal might relate tocertain matters, only, there cannot be a strike or lock-outeven in relation to matters other than those which arepending before the Labour Court; Tribunal or NationalTribunal. 79

Among the decisions cited and approved by the Supreme Court is thedecision of the Calcutta High Court In Provat Kumar Kar v, W.T.Parkar. 80

40. In view of Its approval of the principle established in ProwtKumar Kar's Co. Ltd., the Supreme Court did not advert to the questionwhether the subject matter of the impugned strike arose out of, or wasconnected with or was relevant to, the subject matter of pendingadjudication proceedings. The Court proceeded on the basis, (as decidedin that case), that the general prohibition contained in Section23 did notcover workmen employed in establishments which were not concerned inthe adjudication proceedings. It addressed itself to a limited question: didthe prohibition affect all workmen employed In the establishment orestablishments involved In the pending adjudication proceedings, or only

78 Id. at 173.79 Id. at 170.80 Prov8t Kumar Kar v. W.T. Parkar, AIR 1950 Calcutta, 116; The Supreme Court

also approved the decision of state of Bihar v. Deodhar Jha, AIR 1958 Patna 51.

32 CENTRALINDIA LAW aUARTERLY (Vol. 4:1

those workmen who were parties to the proceeding? Having reached theconclusion that the general prohibition imposed by Section 23{b) affectedonly those workmen who were parties to the adjudication proceedings.the Supreme Court went on to assert that, since the pending adjudicationproceeding related to an "individual dispute", other workmen of theestablishment were not affected by the general prohibition.

B. Additional Restrictions on Strikes and Lock-out inPublic Utility Services

41. Strikes and lock-outs adversely affect the interest of thecommunity in maintaining a high level of production and uninterruptedpublic utility services. Section 22, which regulates strikes and lock-outs inpublic utility services. inter alia, directs:

(1) No person employed in a public utility service shall goon strike in breach of contract:

(a) Without giving to the employer notice of strike. ashereinafter 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 anysuch notice as aforesaid; or

(d) during the pendency of any conciliation proceedingsbefore a conciliation officer and seven days after theconclusion of such proceedings.

(2) No employer carrying on any public utility service shalllock-out any of his workmen:

(a) without giving them notice of lock-out as hereinafterprovided. within six weeks before lock-out; or

(b) within fourteen days of giving such notice; or

(c)-before the expiry of the date of lock-out specified in anysuch notice as aforesaid; or

(d) during the pendency of any conciliations proceedingsbefore a concUiation officer and seven days after theconclusion of such proceedings.

42. The Act81 adopts a two pronged approach to prevent the use of

81 Section22.

1991 } STRIKES AND LOCK-OUTS IN INDIA 33

instruments of economic coercion in public utility concerns and therebyto maintain continuity of production or services. First, the Sectionpostpones the imptementation of the decision to use the instruments ofeconomic coercion by prescribing a statutory requirement of notice.Second, Section 22 read with Section 12 ensured "peace making" effortsby imposing a statutory duty on conciliation officers to hold conciliationproceedings and direcUng the parties not to resort to the use ofinstruments or economic coercion during the pendency of suchproceedings.

C. Prohibition on the Continuance of Strike and Lock·out

1. Legislative Measures:

43. suo-secnon (3) of Section 10 provides:

Where an industrial dispute has been referred to Board,Labour Court, Tribunal or National Tribunal under thisSection the appropriate Government may by order prohibitthe continuance of any strike or lock-out in connection withsuch dispute which may be in existence on the date of thereference. .

The discretion to issue prohibitiory order where an industrial dispute hasbeen referred to Arbitrator under Section lOA, however, is SUbject toadditional restrictions. Sub-Section (4A) of Section lOA lays down:

Where an industrial dispute has been referred to arbitrationand a notification has been issued under Sub- Section(3-A), the appropriate Government may, by order, prohibitthe continuance of any strike or lock-out in connection withsuch dispute which may be in existence on the date of thereference.

A strike or lock-out shall be illegal if "It is continued in contravention of anorder made under Sub-Section (3) of Section 10 or Sub-Section 4A ofSection lOA. The reason underlying the prohibition is that industrialdisputes should be tried in.a spirit of amity and no party should be inpostition to coerce the other during the pendency of such proceedings. Itis for this reason that the appropriate Government has been empoweredby Section 10(3) of the IDA in case of strikes or lock-out declared beforethe commencement of such procee(:lings to prohibit their continuancewhile the dispute Is being adjudlcated.82 The discretion gi'{en to the

82 (1986) 1 LL.J.204 (Karanataka).

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34 CENTRAL INDIA LAW QUARTERLY. [Vol. 4:1

appropriate government to make a prohibition order has to be exercisedin accordance with the object and purposes of the Act: There cannot beany 'absolute rule obl.iging the appropriate Government to prohibitcontinuance of strike during the pendency of proceedings because insome cases strike may not affect production or injure the community ingeneral and. in such cases, the appropriate Government may not. in theexercise of its discretion. prohibit such continuance. 83 However, theexercise of this unfettered discretionary power has been attacked byopposition political parties. and perhaps not always without reason.

2. Whether Section 10(3) or 10A (4A)is Mandatory? Judicial Approach

44. The judicial interpretation has also raised several problems. (i)whether courts can quash the order where the very nature ofmanagement action Is in dispute? (Ii) Whether Section 10(3) violatesArticle 14 of the Constitution? (Iii) Whether strike can be prohibited whereone or more and not all the demands were referred for adjudication? (iv)Whether workman should be given an opportunity of show cause beforestrike is prohibited?

(a) Nature of the order of prohibition

45. In Express Newspapers Ltd. 84 the Court held that themanagement could Ignore the prohibitory order with impunity and, whileremanding the case to Tribunal to determine whether there was lock-outor closure, refused to quash the order. The decision raises at least twoproblems. (1) What if the Tribunal holds the management conduct to be alock-out? 85 (2) can the Government issue the prohibitory order wherethe very nature of management's action Is in dispute?

(b) Can Government issue Prohibitory orderswhere some and not all demands were referred

46. Prior to 1978. the decisions In Workmen of Edward Keventers(P) Ltd. v. Delhi Administration 86 and Keventers Karmacharisangh v.Lt. Governor Delhi 87 were divided on the issue whether strike could be'prohibited where one or more and not all the demands were referred for

83 Keventera Karmacharl 5angh v.Lt. Governor, DeIhl, 39 FLR211 (1971).84 Expr... N._papers Ltd., (1962) 2 L.L.J. 227 (S.C.).85 Meghr.j Klahangarh Milia Ltd., (1953) 2 L.L.J. 21486 Workmen of Edward Kevente,. (P) Ltd. v. Deihl Admlnl.,-8tlon, I.L.R. 1969,

Delhi 767.87 Keventera Karmacharl 5angh v. Lt. Governor DeIhl, (1971) 2 L.L.J. 375.

1991 J STRIKES AND LOCK-OUTS IN INDIA 35

adjudication? In the former case a Division Bench of the Delhi High Courttook the view that If out of several demands only some were referred foradjudication, the continuance of strike could be prohibited only regardingthe dispute with respect to the matter which had been referred toadjudication and prohibition of the continuance of strike with respect tothe matter which had not been r~ferred to adjudiction was unwarranted. Inthe latter case another Division Bench of the same High Court was of theopinion that even if one of the demands connected with strike had beenreferred as Industrial dispute the strike would be in connection with suchdispute and the power to prohibit the continuance of strikes could beexercised. This conflicting opinion even among the two benches of thesame High Court provided an opportunity to the Supreme Court in DelhiAdministration v. Workmen of Edward Keventera and others, 88 toexpress its opinion on the aforesaid issue. Speaking for the SupremeCourt Justice Krishna Iyer observed: .

Two 'conditions are necessary to make Section 10(3)applicable. There must bean industrial dispute existing andsuch existing dispute must have been referred to a Board,Labour Court, Tribunal or National Tribunal under thisSection, namely, Section 10(1). Section 10 stands as a selfcontained code as It were so far as this subject-matter isconcerned. Secondly, such dispute must have beenalready referred, for adjudication. Then, and then alone, thepower to prohibit in respect of such dispute can beexercised.

But haVing said so his Lordship framed an enquiry,

Imagine twenty good grounds of dispute being raised in acharter of demands by the workmen, and the appropriateGovernment uniraterany and subjectively deciding againstthe workmen on nineteen of them and referred only one foradjudication, how can this result in anomalous situation ofthe wol"kl1len being deprived of their basic right to go onstrike in support of those nineteen demands?

and came to the conclusion:

This would be productive not of industrial peace, which isthe' object of the Industrial Disputes Act butcounter-productive of such a purpose. If Government feels

88 DeIhl Admlnlstrldl~n v. Workmen of EdWard Keventer. (1978)2 L.L.J. 209 (S.C.).

36 CENTRAL INDIA LAW QUARTERLY [Vol. 4:1 .

that it should prohibit a strike under Section 10(3) it mustgive scope for the merits of such dispute of demand beinggone into by some other adjudicatiory body by making areference of all those demands under Section 10(1) asdisputes. In regard to such disputes as are not referredunder Sction 10(1), Section 10(3)' cannot operate. Thisstands to reason and justice and a demand which issuppressed by a prohibitory order and is not allowed to beventilated for adjudication before a Tribunal will explodeinto industrial unrest and run contrary to the policy ofindustrial jurtsprudence. 89

(c) No requirement to give show cause notice

47. The High Courts are divided on the issue whether theGovernment is bound to give show cause notice to the affected parties.Thus, the Kerala High Court in A. K. Kalippa Chettiar & Sons v. State ofKerala 90held that power exercised under Section 10(3) is a quasi-judicialpower and an order thereunder cannot be passed without a reasonableopportunity to all those who would be affected by the order to state andestablish their case. On the other hand the High Courts of AndhraPradesh, Karnataka and Bombay took the opposite view. Thus in EenaduPress Workers Union v. Government of .Andhra Pradesh 91 and A.P.Electricals Equipment Corporation v. Its Staff Union 92 the AndhraPradesh High Court held that it was not necessary that the Governmentshould issue a show cause notice to the affected parties before issuingthe prohibitory order under Section 10 and it would not violate theprinciples of natural justice. According to the Court the action under 10(3)is only preventive one, and if prior opportunities and hearing 15 givenbefore invoking Section 10(3), the object of restoring industrial peace andharmony would be jeopardlsed and a self defeating one. Similar view wasexpressed by the Karnataka High Court in Mysore City Powerloom andGeneral Worker's Association v. State of Karnataka. In this case thepetitioner challenged the validity of the.order issued by the Government ofKarnataka under Section 10(3) prohibiting the continuance of strikes andlock-outs on the ground that the appropriate Government had failed toprovide opportunity of being heard and, therefore, the order was violative

89 Id. at 209.21090 (1970) 1 L.L.J.97 (kerala).91 1979Lab. I.e. 330 (Andhra Pradesh).92 1986Lab. I.e. 1851 (Andhra Pradesh).


of the principles of natural justice. The Court rejected the contenation andobserved:

(H)aving regard to the nature and purpose of the powerconferred under sub-Sectlon(3) of Section 10 ..... bynecessary implication the application of rules of naturaljustice stands eXcluded. The power conferred under theSub-Section Is such as would call for an immediate action,on the part of the Government in order to ensureindustrial peace. of prohibiting a lock-out or strike, as thecase may be, when the dispute, Inconnection with whichthe lock-out or strike was resorted to, had been referredby the appropriate government for industrial adjudication.To Insist on compliance with the Rule of audi alterampartem before passing an order under Sub-Sectlon(3) ofSection lOis plainly contrary to the common sense ofthe situation and would make the provision lifeless andwould defeat the purpose of the provision.

The aforesaid view was followed and adopted by the Bombay High Courtin H.B. Khaitan. v. State of Maharashtra.93

(d) Whether Section'10(A) Is mandatory:

48. Section lOA (3A) empowers the appropriate Go~ernment where:

(I) an industrial dispute has been referred to arbitration; and

(Ii) it is satisfied that the persons making a reference representthe majority of each party, to issue a notification within a period of onemonth with a view to provide an opportunity to those who are notparties to arbitration agreement but are concerned in the dispute topresent their case before the arbitrator or arbitrators. Is the aforesaidprovision mandatory or directory? One confronts with the divergenceof judicial opinion on this question. The Madras High Court in MadrasMachine Tools Manufactures v. Special Deputy commissioner ofLabour 94 has held the provisions of Section 10A (3A) to bemandatory because:

If Section lOA (3A) Is not complied with we fail to

93 1987Lab. I.C. 836 (Bombay).94 Madra. Machine Tools Manufactures v. Special Deputy Commissioner of

Labour (1979) 2 L.L.J. 331.

38 CENTRAL INDIA LAWQUARTERLY • [Vol. 4:1

understand how an award could ever be characterised asvalid. There is an important legal consequence if Section10A(3A) is not compiled with. No notification underSection 10A(4A) can be issued prohibiting thecontinuance of the strike or lock-out, 95

Which not only would jeopardise the peace and harmony but divert theGovernment from issuing a notification under Section 1-A (4A).However, this aforesaid decision runs contrary to the views expressedby the Madhya Pradesh High Court in Singh (K.P.) v. Gokhale (S.K.)96.Here the Court has held that the procedural requirement in Section10A(3A) is directory and is dependent on the satisfaction of theappropriate Government.

VII. ILLEGAL STRIKE$ AND LOCK-OUTS

49. Section 24 of the Industrial Disputes Act. 1947 defines "illegalstrikes and lock-outs." Sub-Section (1) provides that a strike or alock-out shall be illegal if.

(i) it is commenced or declared in contravention of Section 22 or 23;

(Ii) it is continUed in contravention of prohibitory order is-sued under Section 10(3)or Section 10A (4A).

Further, SUb-Section(2) says that where a strike or lock-out inpursuance of an industrial dispute has already commenced and is inexistence at the time of the reference of the dispute to adjudication orarbitration authorities, the continuance of such strike or lock-out "shallnot be deeemed to be illegal", if:

(i) such strike or lock-out was not at its commencementin contravention of the provision of the Industrial Disputes Act, 1947.

(Ii) the continuance of such strike or lock-out was notprohibited under .Sub-Section (3) of Section 10 .orSub- Section 4A of Section 10A of the Act.

Under Sub-Section (3) of Section 24 a lock-out is not illegal if it isdeclared in consequence of 'an illegal strike. Similarly, a strike is notillegal if declared in consequence .of an illegal lock-out.

95 Ibid.96 K.P. Singh v, S.K. Gokhale (1970) 1 L.L.J. 125.

1991 ] STRIKES AND lOCK~OUTS IN INDIA 39

VIII. SANCTION AND CRIMINAL PROCEEDINGS.

A. Sanction

1. For Declaring Illegal Strikes and lock-Outs

SO. Section 26(1) prescribes punishment to a workman forcommencing. continuing or otherwise acting in furtherance of a strikewhich a "illegal" under Section 24 of the IDA. The penalty in case ofparticipation in an illegal strike is imprisonment for a term which mayextendto one month or with a fine which may extend upto fifty rupeesor with both. Thus , in order to convict a person under the Act it isnecessary to prove that:

(i) the accused Is a "workman";

(Ii) the accused commenced, continued or otherwiseacted in furtherance ofa strike; and

(iii)the accused had the knowledge that the strike inquestion was illegal. likewise Section 26 (2)prescribes punishment to employers for commecingcontinuing or otherwise acting in furtherance of a lockout which is Illegal under Section24. The employerIspunishable with Imprisonment for a term which mayextend upto one month, or with fine upto onethousand rupees or with both for commencing, continuing or otherwise acting in furtherance of illegallock-out.

51. A perusal of the aforesaid provision reveals: that (i) theco-relation between Imprisonment and fine is missing. Whereas Section26(1) prescribes the ratio 'of one month Imprisonment and/or fiftyrupees fine Section 26(2) provides one month imprisonment and\orone thousand rupees fine; (Ii) the penalties under the Section aredifferent from penalties mentioned in ·Sectlon 31 for contravention ofSection 33;97. and (iii) the duties Imposed by Section 26 arestatutory duties owned by the workmen or employers to the public,which could, solely be enforced by criminal procedure.

2. For Instigating or Inciting Illegal Strikers or Lock-Out

52. Section 27 unlike Section 26 (which is limited to workmen and

97 Sun Roiling Mills v. Their Workmen (1949) LL.J. 382.


employers) is wide enough to cover all persons. Section 27 providesfor imprisonement for a term which may extend to six months or with afine which may extend to one thousand rupees or with both for"JfIstigation and incitement of any strike or lock-out which is illegal underthe I.D.A" In order to bring the activities of a person within the mischiefof Section 27, two conditions must be satisfied: (i) the particular strikecomplained of is itself illegal, and (Ii) the strike for which he incited theworkers to take part in is to his knowledge illegal.98

53. The vires of this provision was challenged in Raja Kulkarni andOther. v. State of Bom~y.99 The Supreme Court upheld the validityof the Section and observed that the industrial Disputes (AppeUateTribunal ) Act, 1950 imposed no restriction either upon thefreedom of speech and expression of the textile workers or their right toform associations or unions. Hence Section 27 of the Act was not voidas being opposed to the fundamental rights under Article 19 (1) (a) and(c) of the Constitution. In Deshpande v. Ferro Alloy corporation, 100

the management and workmen (represented by the office-bearers ofthe union) entered into a settlement qn 30 September, 1959. Such asettlementwas arrived at in the course of conciliation proceeding. Twopersons (non-workmen and officer of trade union) who were fully awareof the settlement incited the workmen to go on strike in breach ofsettlement with effect. from 24 September to 2 October, 1960. Aprosecution was launched aqainst these two offlcersc(non-workmen) oftrade unions. The Magistrate convicted the accused under Section 27 ofIDA. The decision was upheld by the Session Judge. Then theconcerned accused filed. a petition before the Andhra Pradesh HighCourt. Justice Kumarayya observed:

In fact the wokers have a fundamenJal right to launch astrike, and, any instigation or incitement to stage a strikewould not therefore be illegal, unless the partiCUlar strikecomplained of itself is illegal under the Act. The personinstigating would be guilty only when it is Hlegal underthe Act. The person instigating would be gUilty onlywhen it is established that the strike which he incited theworkers to take part in is to his knowledge illegal.'O'

98 De8hpandev. Ferro Alloy corporation (1964) 1 L.L.J. 613.99 Raja Kulkarnland others v. State of Bombay, AIR 1954SC73.100 De8hpande v. Ferro Alloy Corporation, op. cit.101 Id. 619.


The Court accordingly upheld the order of conviction of Lower Courtand.held that .non-workmen, inciting workmen bound by settlement togo on illegal strike. were liable under Section27.

3. For Aiding Illegal Strikes or Lock"()uts:

54. Whereas Section 25 prohibits financial aid to illegal strikesand lock-outs Section 26 provides penalty therefor. The fatter Sectionreads: .

(Any) person who knowingly expends or applies anymoney in direct furtherance or support of any illegal strikeor lock-out shall be punishable with imprisonment for aterm which may extend to six months. or with fine whichmay extend to one thousand rupees or both.

It is clear from the aforesaid provisions that the person spending orapplying money must know that the strike or lock-out is illegal. Thus,mens rea is a necessary element of an offence under this Section. Theprovisionsof this Section are attracted if the strike or lock-out is held tobe illegal and not otherwise.

B. Criminal Proceedings

1. Perml8sion of the Government

(a) Legislative respol"ase

55. Sub-Section(1) of Section 34 of the IDA. provides:

No court shall take cognizance of any offencepunishable under this Act or of the abetment of any suchoffence saveon complaintmade by or under the authorityof the appropriate Government.

It follows that Section 34(1) empowers the appropriate Government(i) to make a complaint, and (Ii) to authorise someone else to file acomplaint. The object of the Section is to prevent a frivolouscomplaint 102 being filed.

2. Court of Competent Jurisdiction

102 See State of Kerele v. Chako, (1961) 2L.L.J. 569(Kerala).


56. Section 34(2) of the IDA provides that no court, inferior to thatof Presidency Magistrate or Magistrate of the First Class Is competent totry an offence punishable under IDA.

C. Protection toPersone Refusing to takePart in an Illegal Strike and Lock-out

57. The Industrial Disputes Act 103 protects persons refusing totake part in an illegal strike or lock-out from (i) expulsion from anytrade union or society or (ii) to any fine or any penalty or (iii) todeprivation of any right or benefit to which.he or his legal representativewould otherwise be' entitled or from (iv) liability to be placed in anyrespect either directly or indirectly under the disability or to anydisadvantage as compared with other members of union or society. Theimmunity under this Section is to prevail notwithstanding any thingcontrary in the rules of the trade union or society.

IX. JUSTIFICATION OF STRIKE AND LOCK-OUT

A. Justified Strike and Lock-Qut.

58. In collective bargaining, the question of employment of strikingemployees and wages for the strike or lock-out period can form thesubject of negotiation in the settlement of a dispute. In adjudicationsystem that possibility being closed, refusal to award wages for strike orlock-out period might lead to further unrest. To avoid this unhappysituation and at the same time to protect the interest of working classand industry, Tribunals and Courts have evolved the concept of"justified" and "unjustified" strike and Jock-out. In a seriesof decisionsthe Courts and Tribunals have provided guidelines for determiningwhether a strike or lock-out is justified or not.

1. Justified Strike

59. A strike has been held to be justified, when it was resorted to, (i)after eXhausting the remedles provided In the IDA and these beingproved futile. 104 (Ii) against unfair labour practice or victimisation on thepart of the management .105 (iii) to press reasonable. demands of

103 Section 35.104 Seefor instance, Swadeshllndustrles ltd. v. their Workmen, (1955) 2 L.L.J. ('85

(LAT.) Swami 011 Mills v. their Workmen (1953) 2 L.L.J. 785 (I.T.) CromptonGreaves Ltd. v. their Workers, (1978) 36 F.L.R. 329 (S.C.)

105 See F.W. Hellgers and Co. Ltd. v. Its Workmen, 1950 LL.J. 231 (I.T.); AmblkaJute Mills, v. their Workers, (1954) 1 L.L.J.835 (I.T.) Seealso Indllln MachineryMazdoor Unoln v.lndlan Machinery Co. Ltd. (1956) 2 L.L.J. 408 (L.A.J.)

1991) STRIKES AND LOCK-OUTS,IN INDIA 43

workmen in a peaceful manner, 106 (iv) due to provocation of theother party, 107 (v) as a measure of protest against retrenchmentof workmen.. 108 (vi) as a measure of protest against suspension offellow workmen, 109 (Vii) discharge of union officials,110 (Viii) refusal torecognise the union, 111 (ix) against employer's refusal to payadvance wages, 112 (x) advance for festival holidays 113 or againstGovernment's refusal to refer the dispute for adjUdication. 114

2. Justified lock-out

60. A lock-out is held to be justified if :(i) it was neither actuatednor occasioned by any unfair labour practice on the part ofemployer;115 (ii) it was adopted due to security measure; 116 (iii) itwas necessitated by the conduct of the workmen, 117 (iv) it was inconsequence of strike which was unreasonable, 118 (v) was declaredafter a tool down strike was staged. 119

b. Unjustified Strike and l,.ock-out

1. Nature and Concept

61. The concept of unjustified strike seems to be based upon theprinciple that in their dealings with the management the workersshould be considerate, loyal and disciplined. The workers realise that thecapacity to pay is dependent upon the economic situation of theindustry. In any case they should adopt peaceful and orderly method for

106 Vellanlkara and Thunle Rubber Estate v, Its Employees quoted inIndustrial Awardsin India, 1959. p. 113.

107 Indian Cycle Mfg. Co. Ltd. v. Their workers, (1951) 1L.L.J. 390 (I.T.) CertainBanks In the State of Punjab and Deihl v. their Workmen, (1950), L.L.J. 425 (I.T.).

108 Dalmla Cement (Bharat) Ltd. v. their Workers, (1955) 2L.L.J. 466 (LAT.)Standard Mills Ltd. v. Their Workmen, (1953) 2 L.L.J. 135 (I.T.); See alsoCrompton Greaves Ltd. v. Its Workmen, op. cit. supra note 83

109 Union Tile Works v, their Employees, (1954) 2L.L.J. 103 (I.T.) .110 Indian Cycle Mfg. Co. v, their Workers, (1952) 2LW 390 (I.T.)111 Associated Cement Co. v. their Workmen (1952) 2LW 225 (I.T.)112 Bihar Fire Works and Potteries Ltd.. (1953) 1LW 49 (LAT.)113 Caltex Ltd. v, their Workmen, (1954) 2 LW 51.114 Swami 011 Mills v, TheIr Workers, (1953) 2LW 785 (tT.).115 Amblka Jute Mills v. their Workers, (1954). 1LW 835 (LAT)116 Hanuman Juta Mills v. their Workmen (1953) 2LW 684 (LAT) Govlnd Sheet Metal

Works and Foundary,. (1956) F.J.R. 363 (LAT)117 Mahalaxml Cotton Mills v. their Workmen, (1952) 1LLW 68.118 See also Highway Group of Estates. v. Industrial Tribunal (1978) 2 LW 251 (I.T.)

Certain Tailoring Concern, (1950) LLW 280 (I.T)119 Pioneer Match Factory v. Their Workmen, (1951) 1LW 43 (L.T.)

44 CENTRAL INDIA LAW QUARTERLY [ Vol. 4:1

ventilating their grievances.. Similarly. the concept of the unjustifiedlockout is based on the principle that it should not be declared in haste orby way of reprisal or victimisation etc. In short the strike and lock-outshould be declared as a last resort after all available remedies. formal orinformal. have been exhausted. When a strike or lock-out situation isbrought before the Tribunal or Court there is a tendency on the part ofboth workers and management to blame for the strike rests with theworkers in unjustified lock-out the blame for lock-out rests withemployers.

2. Factual Analysis

62. like Justified strike or lock-out an unjustified strike or lock-outis a varying concept. No attempt has been made to give an exhaustivedescription of the situation which would give rise to an "unjustified"strike or lock-out.

(a) Unjustified strike

A strike is held to be "unjustified" if it was resorted to: (i) to press thedemands of workers which according to community standards areunreasonably high. 12O (ii) immediately on failure of conciliationproceedings without waiting for reference 121 . (iii) without exhaustingthe remedies provided under the IDA. 122 (iv) as a measure of protestagainst the assault of co-workers by the officer of the company, evenafter the assurance given by the management to inquire into the incidentof assault 123 or any other grievance of the workmen. (v) even whenthe management was prepared from the beginning to settle the disputethrough the conciliation. adjudication or arbitration.124 (vi). to forcearbitration,125 (vii) as a measure of protest against the transfer of thePresident of the Union.126 (viti) when the workers did not cooperate

120 Ram Krishna Iron Foundary v. Their Workmen, (1951) 2LW 372 (LA.T);Chandramalai Estate service v. Its Workers, (1960) 2. L.L.J. 243 (S.C.); IndianMarine Service v.lts Workers, (9163) 1L.L.J. 122 (S.C.); Vlrl,l Bhal Laxman Bhalv.New Commercial Mills Co. (1958) Born. Ind. Ct. Rep 1153.

121 Chandramalal Estate v. Its Workers,op cit. p. 243.122 Hoplngs and Williams Travancore Ltd. v. Minerai COmpanies Staff Association

(1955) 2 L.L.J. 293 (LT.)123 Jeypore Sugar Co. Ltd. v. Their Employees, (1955) 2L.L.J. 444 (LAT.).124 Dlgvl'ay Cement Co. Ltd. v. Their Workmen, (1951) 1L.L.J. 236 (I.T.); M/SPlerce

Leslie" Co. Ltd. published in Kerala Gazette, No. 43 dt.3rd November 1959, p./13.Ashok Textiles pvt. Ltd. case, keralaGazette October 13, 1959.

125 Lakshml Vilasam Tile Works Kerala, Gazette No.501 eft. 22nd December 1959, p. 7.126 Certain Banks In the State of Pun,ab and Deihl v. Workmen, 1950 L.L.J. 245 (I.T.)

1991] STRIKES AND LOCK-OUTS IN INDIA 45

with the authorities for peaceful solution,127 (ix) when the staffassociation was hasty,128, (x) by using violence or acts of sabotage.129.

(b) Unjustified lock-out.

A Look-out was held to be unjustified if ; it was with a view tooblige workmen to accept the lower wages130. or the managementrefused to allow workers to enter the factory131 or it was declared onaccount of an unfair labour practice on the part of the management132

or it was not inevitable and was unjustified. 133

C. Determination of "justified" or "unjustified" Strikeand Lock-out

1. Reasonableness of Demand

63. Justified or unjustified strike or lock-out, we have already seen,determines whether workmen are entitled to wages for the period ofstrike or lock-out. The question, therefore, arises; how to ascertain thejustification or otherwise of strike or lock-out? First reading ofAssociated Cement Co. Ltd. v. Their Workmen134 leaves an impressionthat "reasonableness of demand" is determinative. Observed theIndustrial Tribunal:

I am of opinion (that) it was a legitimate and properdemand, that is to say, as a demand itwas properand such as required due consideration... (The)demand was one which the management should havegiven due consideration and in respect of which theworkmen were left without remedy.

and held that workmen had reasonable and justifiable cause forstrike and hence workmen were entitled to wages for such a period.Even independently of this decision, other decisions of the Tribunalsand Courts have also accepted the test of reasonableness of demand.

2. Bonafides of Strike or Lock-out

127 . Ashok Textile Pvt. Ltd. v. Their Employees, Published in Kerala Gazette,October 13, 1959, p. 13.

128 MIS Pierce Leslie andCo, Ltd. Alleppey v. Their Workmen published in KeralaGazette, No. 43, 3rd November 1959·2 L.L.J. 1959 p. 13.

129 Crompton Greaves Ltd. v. Its Workmen op.cit.130 Shrl Ram SilkMillsv. Their Workmen, (1952) 2 L.L.J. 862 (I.T.)131 Bharat Barrel and Dr.um mfg. Co. v. Their Workmen, (1952) 2 L.L.J. 532 (I.T.)132 Indian Machinery Co. Ltd. (1956) e L.L.J. 408 (L.A.T.).133 Poineer Match. Factory v. theirWorkmen (1951) 1L.L.J. 43 (I.T.).134 Associated Cement Co. Ltd. v. Their Workmen, (1952)2 L.L.J. 255 (I.T.).

46 CENTRAL INDIA LAWQUARTERLY ( Vol. 4:1

64. Reasonableness of demands is not the only relevant factor toarrive at a conclusion whether a strike or lock-out is justified or not. Thebonafide of the strike or lock-out should be the most important factorfor deciding the issue, it is necessary, therefore, to describe under whatcircumstances a strike or lock-out can be deemed to be bona fide. Thus.when a strike is resorted to without exhausting the remediesavailable to workmen under the IDA or without waiting for the result ofthe conciliation officer's report sent to the Government or if it is notinevitable or if the strike is continued even after the assurance givenby the management or the preparedness of the management to settlethe dispute by direct negotiations or adjudication or when it isresorted to frequently and frivolously predominant motive being to ruinthe industry we may say it is not a bona fide strike. The LabourAppellate Tribunal in Ram Krishna Iron Foundry v. Their Wor-kers135

has held that a strike is normally a weaoon to lodge a protest and assuch it is unobjectionable unless it is used for a purpose other thanof giving an expression to the grievances of the workers. A strike wouldbe normally deemed to be justified unless the reasons for it areabsolutely perverse and unsustainable. l 36.

65. Similarly, a lock-out may be deemed to be bona fide, if it isadopted as a security measure to protect the personnel and property,or if it is in consequence of strike which is unreasonable or if it islaunched after remedies provided in the IDA proved futile, or when it isdeclared if the workmen do not show their willingness to settle thedispute through negotiation. However, it might be mentioned that theillustrations given are not exhaustive but illustrative. It is hoped that itwould tessen the uncertainties connected with classification of a strikeor lock-out.

3. Can an illegal strike be justified

66. Even though the legislature has not provided for anyclassification of illegal strike into justified and unjstified strike thejUdiciary has examined this question while dealing with the cases ofdismissal of strikers and wages for the period of strikellock-out. Thequestion came up for interpretation before the Supreme Court for thefirst time in Indian General Navigation of Railway Co. ltd. v. TheirWorkmen. 137 The Supreme Court rUI~ that a strike which is illegal

135 Ram Krl.hna Iron Foundry•.v Their Worker., (1954) 2 L.L.J. 372 (LAT.).136 The same view was expressed by the Full Bench of the Labour Appellate

Tribunal in Ram Krl8hna Iron Foundry, op. cl1.137 Indian General Navigation of Railwayco. Ltd. v. TheirWorkmen, (1960) 1 L.L.J.

13 (S.C.).


cannot be characterised as "perfectly justified" and these twoconclusions cannot in law co-exist. The Court reasoned that:

The law has made a distinction between a strikewhich is illegal and one which is not, but it has notmade any distinction between an illegal strike whichmay be said to be justifiable and one which is notjustifiable.138

The Court accordingly deprecated the tendency to condoneillegal act in the' statute. An attempt to re-open the question wasnegatived in Model Mills v. Dharam Das139 wherein the Supremecourt held that even though the reasons for going on strike may becompletely justified, yet the illegal strike would be totally unjustified.Likewise, when a strike is illegal. the questionwhether it is provoked ornot is immaterial. 140

67. However, majority decision in Gujarat Steel Tubes v. GujaratSteel Tubes Mazdoor $abha141 shakened the foundation laid inIndian General Navigation and ruled that" mere illegality of strike doesnot per se spell unjustifiability." It visualised that "between perfectlyjustified and unjustified the neighour-hood is distinct," In support of theaforesaid observation the Court heavily relied upon its earlierdecision in Crompton Greaves Ltd. v. Their Workmen. 142 But it maybe pointed out that the Supreme. Court misread the decision ofCrompton G~ves ltd. case when it said that:

even ifstrike is illegal. it cannot be castigated asunjustified, unless the reasons for it are entirelyperverse or unreasonable.143

Indeed, what it said was:

....in order to entitle the workmen to wages for theperiod of strike. the strike should be legal as weill asjustified. A strike is legal if it does not violate any

138 ld. at 22.139 Model MIll., v. Dharam 0... AIR 1958 (SC) 311' See also C8ltex India Ltd.

Madr.. v, Their Workmen, (1955) 2 L.L.J. 693 (LAT.).140 See Colliery Mazdoor congress v, New Vlrbhoom Coal co. ltd. (1952) LAC.

219 Mahalaxml Cotton Mills Ltd. v. Their Workmen (1952)2 L.L.J. 635. 640(L.A.T.).

141 Gularat Steel Tubes v, Gularat Stee' Tubes Mazdoor Sabha (1980) 1 L.L.J.137 (S.C.).

142 Crompton Greaves Ltd. v. their Workmen, (1978) 2 L.L.J. SO(S.C.)143 Supra note 140 at 168.

48 CENTRAL INDIA LAW aUARTERLY [Vol. 4:1

provision of the statute. Again, a strike cannot besaid to be unjustified unless the reasons for it are entirely perverse or unreasonable.144

A survey of the aforesaid decisions. therefore leads us to theconclusion that the observation of majority judgement has left the issuewhether illegal strike per se is unjustified wide open and introducesuncertainty.

X. DISMISSAL OF STRIKERS

68. The problems of dismissal of strikers .has assumed greatsignificance in India since the adoption of adjudication system. In theabsence of any specific statutory provisions in the Industrial legislation,the Supreme Court has faced the problems relating to dismissal ofstrikers. In deciding the questions of legality of management's action todismiss strikers. the Courts have not been solely governed by thelegality or illegality of the strike. According to the Court neither il/egalstrike .authorises the management to terminate the services of strikersnor the legal strike disallows the management to terminate theirservice. In such a situation.the Supreme court has made a significantcontribution to the Industrial Jurisprudenceby evolvinga multifaced andhighly complex concept of "justified" and "unjustified" strike to decidethe issue. The Court has laid down the following grounds forintervention by Tribunals for the purpose of giVing relief to the workersagainst wrongful dismissal:

(i) when there is want of good faith,

(ii) When there is victimization or unfair labour practice,

(iii) When the management has been guilty of a basicerror or violation of principles of natural justice. and

(iv) When on the materials the finding is completelybaseless orperverse. 145 .

Where the order terminating services of workmen was held illegal theCourts have generally...,pirected reinstatement of workmen with orwithout wages. ",.

69. The aforesaid norms have been formulated by the SupremeCourt on, at least, three important conditions. First, that the

144 Id. at 82 (Emphasis added).145 Indian Iron & S1eel Co. v. Their Workmen, AIR 1958 SC 130.


industrial worker must be placed in such a position that security of hisservice may not depend upon the caprice or arbitrary will of theemployer. Second, that the industrial peace should be maintained.Lastly, the industry should be efficiently managed.146

70. Tribunals and Courts have ruled that workers participating in alegal and justified strike cannot be dismissed because if this ispermitted the statutory right of strike would become ineffective evenin a reasonable and bonafide situation. The court also ruled thatworkers participating in a legal and justified strike cannot be deniedreinstatement simply on the ground that their placeswere filled by otherpersons.147 While laying down these rules the Court was cautious inmaintaining industrial discipline when it hetd that such a rule wasapplicable only to peaceful strikers.

71. The legal and unjustified strike raises more complex issues.It has been recognised by the Court that merely because the strikehas been held to be legal it does not foreclose the possibility ofdismissal of strikers. This line of thinking has been adopted in view ofthe fact that sometimes the conduct of strikers has beenobjectionable, or they have been qUilty of serious misconduct orintentional damage to'the property of concern or they have inflictedpersonal injuries to the employees of the concern. It is also found thatstrike is sometimes resorted to in haste. In the aforesaid situation theCourts have evolvedthe following rule to regulate management's powerto dismiss strikers in a legal and unjustified strike:

1. A Workman cannot be dismissed for joining a strike which isnot illegal but which is simply unjustified;

2. The employer however, will have the right to dismiss aworkman joining an unju,stified strike:

(a) When the strike itselfwas not bona fide or

146 See Smith Stain Street .and Co. v. smith Stain Street Worker's Union,(1953) 1L.L.J. 67 (LAT.); See also SwalBWOlI Mills v. Their Workmen,(1953) 2 L.L.J. 785; Swadeshl Industries v.'" Workers, (1955) 2 L.L.J. 785(LAT.).

147 Ibid.

50 CENTRALINDIA LAW QUARTERLY [ Vol. 4:1

(b) When it was launched on other extraneous considerations and not solely with a view to better theconditions of labour.148

It has been settled in view of the Supreme Court decision in NationalTransport General CO.v. Workmen 149 and Punjab National Bank v.Their Employees150 that workers wrongfullydismissed for paticipating ina legal but unjustified strike are normally entitled to reinstatementnotwithstanding the fact that their placeswerefRied by other personsduringthe strike. Further, workers are entitledto reinstatement if they participatedin a strike which was occasioned on account of any Unfair labour practiceor vietimisation on the part of the employer. But it is exceedingly doubtfulin view of the decision in Spencer and Co. Ud. v. Their Workmen,151Swadeshmirtran and Co. Ltd. v. Their Workmen 152 and BangloreSilk Throwing Factory v. Their Workmen153 if the workmenparticipating in a legal and unjustified strike (who were substituted byother persons) provided unfair labour practice is absent, can claimreinstatement. It is equally doubtful if the workmen can claimreinstatement for participating in an Olegal strike for non observance ofthe provisions of certified standing orders. It has also been wellestablished that mere participation in an illegal strike would notjustify the dismissal of strikers.

72. The ruling of the Supreme court In Model Mills v. DharamDas154 and I.M.H. Press Delhi v. Addl. TribunaP55 suggests thatthe management can dismiss the strikers participating in an illegal strikeaccording to the rules of standing orders of the company. The Court,however, pointed out that even in this situation the rules of naturaljustice must be followed. This view raises two significant questions.

148 Ram Krishna Iron Foundry. v, Their workmen, (1954) 2 L.L.J. 372. 375(LAT.).

149 Civil Appeal NO.312 of 1956 decided by the Supreme Court on 2nd January1957.

150 Punjab National Bank v, Their Employees, (1959) 2 L.L.J. 666 (S.C;).151 Spencer and Co. Ltd. v. Thel. Workmen. (1956) 1L.L.J. 714 (LAT.).152 Swadeshmlrtran and Co. Ltd. v, their Workmen, (1952) 1L.L.J. 479 (I.T.).153 Bangalore Silk throwing Factory v, their Workmen, (1957) 1 L.L.J. 435

(L.AT.)154 Model Mills. v.Dharam Oas, AIR 1958 SC 311.155 I.M.H. Pr... Deihl v. Addle. Tribunal, (1961) 1L.L.J. 499 (S.C.)

I. A. S.t. _.tAW UIUI'f. ~...aIlS •.~ ",_ ,- -..•.....,.-...,... ...

• TRI oIi:-•••••••_-.'..,.. -.-- --_ -_ , ...1991} STRIKES AND LOCK-OUTS IN INDIA 51

First , is it desirable in the interest of industry to allow wholesaledismissal of strikers? Second, whether the rule equally applies topeaceful strikers as against violent strikers? Indeed, the view taken bythe Court in the.above case in not in conformity with its decision inPunjab National Bank v. Their Workmen156 and Indian GeneralNavigation v. Their Workmen. 157 The end of justice would beserved if a lesser punishment is given to strikers participating in anillegal strike where their conduct has been peaceful. The SupremeCourt in Bum and Co. ltd. v. Their Workmen158 has depricatedthe tendency of the management to discriminate among strikers whileterminating their services in the absence of clear distinction. It has tobe proved in each case that certain strikerswho havebeen singled outfor disciplinary action can be treated differently on rational andreasonable consideration. The Supreme Court159 has adopted apragmatic approach in dealing with the question of management'spower to dismiss peaceful .strikers even though they happen toparticipate in an illegal strike. tt has distinguished between peacefuland violent strikers. It ruled that the punishment of dismissal may beimposed on violent strikers. But, where the strikers, remained peacefulsuch extreme punishment of dismissal would not be justified. Further,it would not be in the interest of industry and workers themselves.

73. The process of distinguishing one case from the other is bestdepicted in Bata Shoe· Co. v. D.N. Gangull160 and I.M.H. press v.Addl. Tribunal 161 wherein the Court in its anxiety to ensure securityof tenure of strikers observed that the peaceful strikers should not besubjected to extreme penalty of dismissal as it would lead to massdismissal of workers. However, the Court at the same time ruled thatin the process of distinguishing the case the context in whichjudgements were given should. always be kept in mind. TheSupreme court162 has consistently held that the order of dismissalof strikers by the management in violation of Section 33 is illegal. In

156 Punjab National Bank v. Their workmen , op cit.157 Indian General Navigation v. Their Workmen, (1960) 1 L.L.J. 13 (S.c.).158 Burn and Co Ltd. v. Their Workmen (t956) 1 L.L.J. 450 (S.C.).159 See Indian General Navigation and Rly ;co. v. Their Workmen op. cit. of

Gujarat Steel Tubes v. Gujarat Steel Tubes Mazdoor Sabha. (1980) 1L.L.J.187. (S.C.).

160 Bata Shoe Co. v. D.N. ;Gangull,AIR 1961 SC 1158.161 LM.H. Press v, Add!. Tribunal, op cit.162 See Puntab National Bank v. Their Workmen,·Op. cit. Shalimar Works Ltd. v.

Workmen, AIR 1959SC 1217.

52

....,-. ,

CENTRAL INDIA LAW QUARTERLY [ Vol. 4:1

such situation they are entitled to reinstatement. The SupremeCourt163 has given due importance to the observance of the provisionsof standing Orders of the Company. It the dismissal was found to be inaccordance with the principles of natural justice the Court refused tointerfere in the management's meter of dismissal of strikers. The onlyexception to this rule has been the case in which a striker is dismissed forparticipating in a legal and justified strike. The Supreme Gourt164 hasconsistently held that one of the functions of the Industrial Tribunal is toscrutinise the action taken by the management in dismissing the strikersin order to satisfy itself that proper domestIc enquiry has been held andthe principles of natural justice have been complied with. Thus, LordHewart's verdict that "justice should not only be done but must he seento have been done" is regarded to a considerable extent in matters ofdismissal of strikers. It has now been settled through the decisions of theSupreme Court165 that normal relief incases .of wrongful dismissal isreinstatement. But in so ordering the Tribunal is expected to be inspiredby a sense of foul play towards the employees on the one hand andconsideration of discipline on the other. The relief or reinstatement isgranted on the:basis of social justice.

XI. WAGES FOR STRIKE AND LOCK-OUT PERIOD

74. There is no specific provision either in the Industrial Disputes Act,1947 or in other labour legislation for determining the question of wagesfor the period of strike or lock-out. In the absence of such provision thejudiciary has evolved certain norms to fill this gap. In Statesman Ltd. v.Their Workmen,166 certain workmen went on an·illegal strike, thereuponthe management declared a lock-out. The question arose whether theworkmen are entitled to wages for the period of illegal strike/legallock-out? The Supreme Court observed:

If the strike is illegal wages during the period will ordinarilybe negatived unless consderate circumstances constrain adifferent course.- Like-wise, if the lock-out is illegal fullwages for the closure period have to be "forked out", ifone may use that exopression. But, in between lies a grey

163 See Model Mills Ltd. v. Dharam Das, op. cit . Bata Shoe Co. (Pvt) Ltd. v.D.N. Ganguli, op. cit.

164 See Indian General NaVigation and Rly. Co. v. Their Workmen, op. cit.165 See BUkingham and Carnatic Mills Co. Ltd. v. Their workmen, (1951) 2. L.L.J.

314 (LAT); Punjab National Bank v. Their Workmen op.cit.; M.L Bose and Co.(Pvt.). Ltd. v. Its Employees (1961) 2 L.L.J. 107 (S.C.).

166 (1976) 1 L.L.J. 484 (S.C.).

_1991 ] STRIKES AND LOCK-OUTS IN INDIA 53

area of twilight law. Strictly speaking. the whole field is leftto the judicious discretion of the Tribunal. Where the strikeis illegal and the sequeal of lock-out legal, we have to takea view of the whole course of developments and not stopwith examining the initial legitimacy. If one side or otherbehaves unreasonably or the over all interests of goodindustrial relations warrant the Tribunal making suchdirections regarding strike period wages as will meet withjustice, fair play and pragmatic wisdom. there is no error indoing so. His power is flexible.

From the aforesaid observation it is evident that irrespective of theillegality of strike. the Tribunal has a discretion to pass such orderregarding wages during the strike period as "justice, fair play andpragmatic wisdom" dictate. This decision was of a bench of three jUdges.In the later decision in Crompton Greaves Ltd. v. Workmen167 a benchof two jUdges of the Supreme Court without referring to its judgement inStatesman Ltd. supra has observed that in order to enable the workmento wages for the period of the strike. the strike should be legal as well asjustified. Krishna Iyer J. was a party to both decisions. Yet no attempt hasbeen made in the later case to explain the earlier observations.

B. Effect of Illegality ofLock-out on Payment of Wages

75. The Courts168 have held that. If the lock-out is illegal full wages forthe period of lock-out shall have to be paid to workers.

C. Effect of Justification of Strike on Wages

76. No doubt strike Is a legit~mate weapon in the armoury of workingclass but it should be sparingly used depending upon the exigencies ofthe case particularly in the conditions prevailing in our country. With aview to discouraging the misuse of the weapon of strike the Tribunal andCourts have applied the concept of "justified" and "unjustified" strike incases where strike is legal. They held that in case of unjustified strikeworkmen were not entitled to wages.

1. Strike Declared Against Unfair Labour Practiceof Victimisation on the Part of Management

77. The Courts and Tribunals while deciding the question of wagesfor the period of strike have generally taken into account the fact whether

167 (1978) 2 L.L.J. SO.168 See Statesman Ltd. v. Their Workmen, (197) 1 L.L.J. 484 (S.C.), North Brook Jute

Co. Ltd. v. Their Workmen, (1960) 1 L.L.J. 4SO (S.C.).


such strike was. occasioned due to unfair labour practice on the part ofemployer. In such cases the workmen have been allowed wages for theperiod of strike.

2. Strike Declared to Press ReasonableDemands of Workmen in a peaceful Manner

78. The'general policy of the tribunal and courts169 while dealing withthe question of strike has been to take into account the undoubted right ofworkers to resort to strike for redressal of their genuine grievances. Intackling such questions Tribunals emphasised that strike is justified if it isresorted to in a peaceful manner. Where these conditions are satisfiedTribunals and Courts have awarded wages for the period of strike.

3. Strike Due to Provocation of the other Party

79. Another consideration taken into account by the Tribunals andCourts 170 in deciding the question of payment of wages for the strikeperiod is whether the strike was provoked by the action of the other party.In such a situation the Tribunals and Courts granted wages for strikeperiod if the strike was provoked as a consequence of unreasonablestand adopted by the management in relation to worker's demand.provided of course the strike was not illegal.

4. Strike as a Measure of ProtestAgainst Retrenchment of Workmen

80. Tribunals and Courts 171 have recognised that strike is a weaponto register a protest including a protest against retrenchment and itcannot be said to be unjustified unless the reasons for it are absolutelyperverse or unreasonable.

169 See Veltanlkara and Thutll Rubber Estate v. Its Employees, quoted inGoverment of India, Industrial Awards in India; P.S.N. Motors Ltd. v. TheirWorkmen, 12 F. J.R. 192.

170 India Cycle Mfg. Co.Ltd. v. Their Workers, (1951) 1 L.L.J. 390 (!.T.) of CertainBanks In the State of Punjab and Deihl v. Their Workmen, (1950) L.L.J. 425 (I.T.).

171 See Dalma Cement Ltd. v. Ther Workers, (1955) 2 L.L.J. 466 (LAT.), StandardsMills Ltd. v. Their Workmen, (1953) 2 L.L.J. 135.

----- --- -- - -- - ---- ------- -'-


D. Effect of Legal but Unjustified Strike on Wages

1. Strike to Press the Demands of Workers whichAccording to Community Standards are Unreasonably High

81. One of the important considerations which has been taken intoaccount by Tribunals and Courts in reaching the conclusion that a strikeis 'unjustified' is quality of demands made by the workers. If the demandsof the workers are unreasonably high or frivolous with the dominantnature to ruin the industrial establishemnt, the strike)s held to beunjustified and the workers have been refused wages for the strikeperiod.172

2. Strike Resorted Immediately After the Failure ofConciliation Proceedings without waiting for Refernce

82. In order to bring about settlement of disputes, the ConciliationOfficer is enjoined under the IDA(i) to expeditiously investigatethe disputeand all matters affecting the merits and the right settlement thereof; and(ii) to do all such things as he thinks fit for the purpose of inducing theparties to come to a fair and amicable setttement of the dispute. With aview to give time to the Government to make a referencethe Courts haveheld that strike resorted to immediately after the failure of conciliationproceeding without waiting for reference to be made to the Tribunal isunjustified, and accordingly workers would not be entitled for wages forstrike period. .

83. In Chandramalai Estate v.lts Workmen173 the union of workmenof the Estate raised certain demands. The conciliation proceedings inrespect of these items of the dispute ended in failure on 30 November1955. Without waiting further and without asking the State Government tomake a reference under Section 10 of th IDA, the workmen went on strikefrom 9 December, 1955. and the strike was withdrawn on 5 Junuarym1956, the day the dispute was referred to Industrial Tribunal foradjudication. One of the questions for determination before the IndustrialTribunal was whether the strlkers.were entitled to wages? The IndustrialTribunal granted fifty per cent of the total emoluments for the strikeperiod. Aggrieved by the order of the Tribunal, the management preferredan appeal before the Supreme Court: Speaking for the Court. Justice Dasobserved:

172 Ram Krishana Iron Foundry v, Their Workers, (1954) 2 L.L.J. 572 (LAT.)Vlrjebhai Lakshmlbhai v. New Commercial Mfg. Co. (1958) I.C.R. Bombay, 1153.

173. Chandramal.1 Estate v. 11s Workmen, (1960) 2 L.L.J. 243 (S.C.).

56 CENTRAL INDIA LAWQUARTERLY [ Vol. 4:1

3.

In our opinion the workmen might well have waited forsome time after conciliation efforts failed before starting astrike and in the meantime to have asked the Governmentto make the reference. They did not wait at all. Theconciliation efforts failed on 30 November, 1955 and on thevery next day the union made its decision on strike andsent the notice of the intended strike from 9 December,195, and on 9 Dacember, 1955 the workmen actuallystruck work. The Government appears to have actedquickly and referred the dispute on 3 January, 1956. It wasafter this that-the strikewas called off. We are unableto seehow the strike in such circumstances could be held to bejustified.174

The Court accordinqly held that workmen were not entitled towages for such period.

Strike Declared without exhaustingthe Remedies Provided under the Act

84. It has been observed elsewhere that strike is a recognisedweapon of the workmen to be resorted to by them for asserting theirbargaining power for backing up their collective demands upon anadamant employer. But in order to avoid themisuse of the weapon theCourt175 cautioned that it should be used as a last resort when all otheravenues for settlement of industrial dispute, as provided under the IDAhave been exhausted and proved futile.

4. Strike Resorted to in Haste

85. The Tribunals and Courts176 have deprecated the tendency ofworkers to resort to strike in haste.

5. Use of Violence During Strike

86. It has now been settled that the use of force or violence or act ofsabotage resorted to by the workmen would disentitle them for wages.Thus, in Crompton Greaves ltd. v. Its Workmen, the Supreme Court

174 Id. at 246.175 Hopkings and William (Travancore ltd. v. Mineral Companies Staff

Assoclaltion, (1955) 2 L.L.J. 293 (I.T.).176 See MIs Pierce Leslie and Co. Ltd. v. Their Workmen, published in Kerata Gazette

110.43 November, 1959, p. 13, quoted in Goovernment of India, Supplement toindustrial Awards in India, 80 (1961), Ashok Textiles Pvt. Ltd. v. Their Employees,pUblished in the Kerala Gazette. October 13. 1959,p.3.


E.

F.

ruled, that the use of force or violance or acts of sabotage resorted to bythe workmen during a strike would disentitle them to wages for the strikeperiod. 177

Effect of Legal but UnjustifiedLock-out on Payment of Wages

87. Tribunals and Courts have generallly awarded wages to workmenwhen a lock-out was legal but unjustified. In Bharat Barrel and DrumMfg. Co. v. Their Workmen178 certain workmen turned up for work at theappointed hour on a certain date. Finding the doors locked, waited half anhour and then left. Thereupon the management locked its door anddemanded explanation from workmen for not attending the work onconcerned day. The Tribunal hetd that workmen were entitled to wagesfor the lock-out period. The Labour Appellatd Tribunal in ltalkholic TeaEstate v..Their Workmen179 decided that workmen cannot be deniedwages on the ground of their failure to report for work every day duringthe lock-out period. According to the Labour Appellate Tribunal:"Lock-out implies that the employer would not allow the workmenconcerned in the dispute to work. That the act of the employer, indeclaring lock-out amounted to an anticipatory breach of contract on hispart. The workmen thereafter were not under any obligation to presentthemselves for work."180

The problem of Unjustified Lock-outFollowing Unjustified Strike and Vice-Versa

88. Tribunals and Courts are often faced with the situation whereunjustified strike was followed by unjustified lock-out, and vice versa.Faced with this stuation the Superme Court in India Marine Service Pvt.Ltd. v. Their Workmen181 evolved the doctrine of "apportionment ofblame." To quote the Supreme Court:

Where, however. a strike is unjustified and is followed by alock-out which becomes unjustified a case ofapportionment of blame arises.

177 Crompton Greaves ltd. v. Its Workmen, (1978) 2 L.L.J. SO, 82 (S.C.).178 Bharat Barrel and Drum Mfg. Co. v. Their Workmen, (1952) 2 L.l.J. 532 (I.T.)179 Italkhoollc Tea Estate v. Their Workmen, (1954) 2 L.L.J. 717 (LAT.).180 Ibid., p. 718.181 India Marine Service pvt. Ltd. v. Their Workmen, AIR 1963 SC 528.


This view was followed in Northern Dooras Tea Company v.Workmen of Oem Dima Tea Estate.182

G. Other Problems

89. The Calcutta High Court in Amlendu Gupta v. Life InsuranceCorporation of India183 found itself faced with two problems, namely, (i)whether justifiability of strike is a pure question of fact which can bedecided in a writ petition? and (ii) whether the High Court can mandatethe Life Insurance Corportation (L.I.C.) to pay the striking employees theirwages for the period of strike and also not to give effect to the impugnedcirculars? The Court answered both the question in the affirmative.

90. In this case class III and IV employees of the L.I.C. went on a legaland justified strike to press their demands for the payment of bonus underthe settlement. The strike was lifted when the issue of bonus was finallysettled by the Supreme Court. The corporation, however, issued circularsto the effect that the period of strike would be treated as unauthorisedabsence on loss of pay and salary for the strike period would be deductedon a proportionate basis from the salary, and provident fund contributionsand the house rent allowance would also be adjusted for the said period.AggrieVed by the circulars the employees moved a writ petition underArticle 226. On the first issue the Court held that the Tribunal was entitledto decide the question whether the strike was justified or not. As regardsthe second issue the Court observed:

If I refuse to exercise my powers under Art. 226 of theConstitution and to deny the reliefs prayed for in thispetition, the employess of the respondent No.1, who havebeen affected by the impugned circulars and who Iunderstand, will number about 45,000will have to fall backon other remedies which may be available to them underthe law..... When the respondent No.1 and the CentralGoverment took recourse to various measures in order toprevent the employees form getting the bonus in terms ofthe settlement, it is unlikely that the workmen will get aquick or efficacious relief by taking recourse to theremedies available to them under the Act. In my view, theworkmen have already been driven from pillar to post

182 Northen Dooras Tea Company v. Workmen of Oem Dima Tea Estate. (1964) 1L.L.J. 436 (S.C.); See also Pradip Lamp Works v. Their Workmen, (1969) 38 F.J.R.20 (S.C.); Statesman Ltd. v. Their Workmen, (1976) 1 L.L.J. 484 (S.C.); HighwayGroup of Estates v. Industrial Tribunal, (1978) 2 L.L.J. 251 (Mad)

183 (1982) 2 L.L.J. 332.

---- ---- ---- - ------ --


ar'ld inspite of repeated orders of the highest Court of theland, the respondent No.1 did not pay them the bonus towhich they were legally entitled, till they resorted to thestriKe. It must also be borne in mind that the workmenimmediately called off the strike on 15.4.81 on receiving anassurance from the respondent No.1 that the bonus will bepaid.184 .

Swastlc Textile Engineers P.Ltd. v. Rajan Singh Sant Singh185 raisesthree issues namely; (i) Whether deduction of wages after withdrawal ofillegal strike amounts to a penalty? (ii) Whetherdeduction of wages afterwithdrawal of strike amounts to change in conditions of service? (iii)Whether insistence on workmen to execute.a written ,undertaking not togo on strike in future and seek pardon is valid? In this case certainworkmen went on an alleged illegal strike. After termination of strike themanagement asked them to give an undertaking that they would go onsuch strike. However, the concerned workmen refused to furnish suchstatements, and therefore they were not allowed to resume their duties.On failure of conciliation proceedings the aggrieved workmen filed acomplaint under Section 34A. Further, the management deducted theirwages for the strike period. The tribunal held that the strikewas not illegal.It accordingly held that each of the concerned workmen was entitledto wages for the period of strike. The tribunal further held that it wasneither fair nor legal on the part of the management to insist that itsworkmen should execute an unconditional apology and anexecution of such writing amounted to change in the conditions ofservice. Against this order the management filed a petition underArticle 227 challenging the order of the tribunal in regard to wagesfor the period of strike. The Gujarat. High Court held that (i)insistence upon execution of the writing amounted to a change inthe conditions of service of workmen because they were not boundto execute such writing; (ii) deduction of wages amounted to achange in the conditions of service because employer had no rightto deduct wages; and (iii) with-holding of wages amounted toimposition of penalty under the standing orders.

184 Id. at 341.185 (1984) 2 LL.J. 97.


XII. PROTECTION OF CONCERTED LABOUR ACTIVITY

A. IMMUNITY FROM CRIMINAL CONSPIRACY

91. Section 17 of the (Indian) Trade Union Act, 1926 (hereinafterreferred to TUA) seeks to insulate trade union activity from liability forcriminal conspiracy :

No office-bearer or member of a registered trade unionshall be liable to punishment under sub-Section (2) ofSection 120-8 of the Indian Penal Code (45 of 1860), inrespect of any agreement made between the members forthe purpose of furthering any such object of the TradeUnion as is specified in Section 15, unlessthe agreement isan agreement to commit an offence. The immunity is,however, available only:

(i) to office bearer and members of registered trade unions,

(ii) for agreements:

(a) in futherance of any such trade union object as isspecified in Section 15 of the Act, and

(b) which are not agreements to commit offences.

The first of these limitations, confines the protection to a smallsection of labour force.

B. IMMUNITY FROM CIVIL ACTIONS

92. Section 18(1) of the TUA grants immunity to registered tradeunions as well as office bearers and members thereof from civil actions.This Section does not afford immunity to a trade union or an office bearerthereof for an act of deliberate tresspass. The immunity will not, however,be taken away for the reason that the workers participated in an illegalstrike. This is supported by the decision of the Supreme Court in RohtasIndustries Staff Union v. State of Bihar. In this case the workmen Wenton illegal and unjustified strike. The question arose whether the employershad any right of civil· action for damages against the strikers. Thearbitrator held that the workers who participated in an illegal andunjustified strike, were jointly and severally liable to pay damages. On awrit petition the Patna High Court quashed the award of the arbitrator andheld that 'employers have no right of civil action for damages against theemployees participating, in an illegal strike within the meaning of Section24 of the Industrial Disputes Act, 1947." This view was upheld by theSupreme Court. It is also evident from thisdecision that Section18 affordscivil immunity in case of strike by the members of trade union.


XIII. CONCLUSIONS

93. India in the present context of economic developmentprogrammes cannot afford the unqualified right to the workers to strike orto the employer to lock-out. Compulsory arbitration as an alternative ofcollective bargaining has come to stay. The adoption of compulsoryarbitration does not, however, necessarily mean denial of the right tostrike or stifling of trade union movement. If the benefits of legislation,settlements and awards are to reach the individual worker, not only thetrade union movement has to be encouraged and its outlook broadenedbut the laws have atso the be suitably tailored.

94. The existing legislation and [udlcial pronouncements lack breadthof vision. Indeed, the statutory definitions of "strike" and "lock-out" havebeen rendered worse by a system of interpretation which is devoid ofpolicy-oriented approach and which lays undue stress on semantics. Thediscussion of the concepts and definition of strike has sought to establishthat legalistic consideration has frequently weighed with the court ininterpreting and expounding the said statutory definition: We believe thatemphasis on literal interpretation resulted in ignoring the ordinarilyunderstood connotation of the term "strike" and in encouragingundesirable activity.

95. We now pass on to acts which constitute strike. Unlike theIndustrial Relations BiI~, 1978 the three phrases used in the definition of"strike" in IDA are not qualified by the expression "total" or "partial".Further, they do not specifically take into account go-slow. The Courtshave accordingly excluded go-slow from the purview of "strike".However, the exclusion of go-slow from the ambit of "strike" throws themopen to the third party suits for damages. However, the lneluslon ofgo-slOW in the definition of "strike" will not solve the problem unless at thesame time, Section 24 of the IDA is suitably amended to include go-slowwithin the category of illegal strikes. Unless both the suggestions areincorporated employers would be in a worse position because if go-slowbecomes a legal strike, employer's right to take. disciplinary action wouldbe severaly curtailed.

96. Likewise the definition of "strike" does not specifically includestay-in, sit down, pen down or tool down strikes and the emergingposltion is far from satisfactory. However, the Supreme Court has heldthat pen-down strike is a "strike" under Section 2(q). The decision, it issubmitted, ignores policy considerations and does not adequatelyanalyse the legal implication of Including the same in "strike". We believethat the question whether the so-called pen-down or stay-in strike shouldbe treated as covered by traditional definition of strike as given in Section

62 CENTRAL INDIA LAWQUARTERLY [ Vol. 4:1

2(q) of the IDA is basically a question for policy decision and presumablyinvites a decision-maker to choose between industrial peace andindustrial indiscipline. In our opinion sit-down strike includes not onlytrespass but frequently intimidation and wrongful restraint. It also attractsthe property right of the employer. In view of this it is suggested thatParliament should suitably amend the IDA to exclude stay-in,sit down orpen-down strike.

97. Similarly, the definition of "strike" also does not Include "hungerstrike", but the Coutrs have brought it within the ambit of "strike". We areof the view that the fasting part should be outlawed from hunger strike .properly so-called. It is possible that Section 7 of the Criminal LawAmendment Act, 1932 could be applied to several species of hungerstrikes. However we are not in favour of taking resort to that provisionbecause it applies not only to hunger strike but also to strike. Thework-to-rule tactics have also not been included in "stn1<e" under Section2(q). It is submitted that it should be regarded as a problem of indisciplineand adequate disciplinary measures should be made available toemployers.

98. Law must be changed to keep pace with scientific andtechnological development. It will be an anachronlsm to assert that in thepresent age of automation stress should still be made on element ofcombination. Thus, the requirement of combination in "strike" whichignores the importance of individual workers in the present age ofautomation should be dispensed with and the definition of "strike" mayaccordingly be amended to meet the needs of the modern time. Theconcluding part of the definition of "strike" namely, "refusal to acceptemployment" is inarticulately phrased. In our opinion this must beinterpreted to mean "accept a particular assignment in pursuance of asubsisting contract of employment."

99. Lastly, eventhough the definition of strike does not specificallyinclude purpose-Clause, a perusal of the policy considerations. thelegislative intent, the legislative history of the word "strike", the schemeand statutory provisions of the IDA, the provisions of the TUA and someof the decided cases may well lead to the inevitable conclusion that strikeis a coercive measure in labour management relations. Moreover, inseveral industrially advanced countries the statutory definition of "strike"specifically inctudes the purpose clause and wherever the definitiondoesnot include such clause the courts have generally read thepurpose-clause to fill in the gap in the definition of strike. However,tribunals and courts, which had opportunities to interpret the statutorydefinition of "strike" generaUy adopted literal interpretation. Such


interpretation, it may be submitted, has failed to take into account theordinary meaning of the word "strike" as understood in the arena oflabour management relations. This approach of decision-makers Oudicialand quasi-judicial) was conditioned partly by the legal nature of theirtraining and partly by the ignorance of the facts of industrial life theysuffered from. Unaware of Indian conditions and in the absence of Indianliterature in the early years, they tried to learn the dimensions of theconcept of strike and lock-out from such widely different foreign statutessuch as the Wagner and Taft Hortley Acts in the United States of Americaand Commonwealth Conciliation and Arbitration Acts of Australia. The factthat Government spokesmen emphasisethe need of collective bargainingon the American model and that the IDA is partly based on English,Australian and Swedish statutes has only encouraged this tendency ofjudicial interpretation. However, it need hardly be emphasised that thelobour laws of a country are to be viewed in the context of its culture andhistory, including political, economic and legal. Indian conditions aretotally different from those of the countries on the laws of which ourdecision-makers are relying. It is submitted that time has come toabandon this type of interpretation. Under the circumstances unless theSupreme Court reverses its stand we suggest the incorporation of apurpose-clause, namely:

"Where such cessation or refusal by the employeesoccured in consequence of industrial dispute and isintended for the purpose of compelling their employer oraiding the employees of any other establishment to compeltheir employees to accept terms or conditions of oraffecting employment,"

in Section 2(q) of the IDA.

100. Like "strike", there is nothing inherent in the concept of"Lock-out" to suggest that its object is other than a coercive measure. Onthe contrary, legislative enactments in several other countries specificallydefine "lock-out" to be a weapon in the hands of employer to coerceworkmen to accept his terms and demands. Next, the policyconsideration reveal that the measures adopted by the management todiscipline workmen,protect property and personnel, transfer business orclose the uridertaking do not amount to lock-out. Further, the scheme ofthe IDA is so arranged that it deals separately with the preventive measureand dispute settlement procedure. If "lock-out" were to includedisciplinary, security or enconomy measure the entire scheme of thestatute would be thrown out of gear. Moreover, the statutory provision ofthe IDA would not be reconciled. The emphasis on "objective" of the IDA


further confirms that "lock-out" is a coercive measure and not adisciplinary, security or an economy measure. Thus, the policyconsiderations and legal materials suggest that disciplinary measures,security measures or economy measures adopted by the managementare not lock-outs. Indeed, there are number of decisions in which theCourts have specifically held that lock-out is a coercive measure. But byholding in some cases that a disciplinary measure adopted by themanagement is included within the definition of "lock-out", the Courtsdefeated the very purpose of the IDA, namely to keep the wheels ofindustry moving besides rendering part of Section 33 useless. Next, tohold that the fact situation in' Lakshmi Devi Sugar Mills,186 HanumanJute Mills187 and Ambika Jute Mills188 amount to a lock-out is to ignorethe coercive element of lock- out. These decisions are tantamount toasking the management to choose betweenthe devil and the deep sea. Ifit chooses not to close the business, there is a danger of unruly andexcited mob taking the possession of the property and destroying thesame and endangering the safety of personnel and property. On the otherhand, if it closes "the place of employment" he will be liable to thepunishment provided under Section 26 of the IDA. Further, the SupremeCourt decision in Express Newspapers Ltd.189 not only ignored thepolicy considerations, the scheme of the Act, the statutory provisions ofthe IDA and the management's right ter close the business but alsocompletely lost sight of the coercive element of "lock-out." However, thependulam swung in the other direction in Tea District LabourAssociation190 Andhra Prabha Ltd.191 Kalipon Tubes Ltd.192 andTatanagar Foundry CO. 193 wherein the Supreme Court held that "themotive behind closure (was) immaterial and what should be seen (was)whether it was an effective one." These decisions finally exploded thejudicial myth.

101. Nevertheless, the off shoots of a thinking process cultivated andnourished judicially, rationalised to meet the predisposition ofdecision-makers and refined to distinguish the usually undistinguishableover the past several years are of varied and far-reaching consequences.Unless appreciated and changed, it will render the recent attempts to

186 (1957) 1L.L.J. 17 (S.C.).187 (1953) 2 L.L.J. 684 (LAT.).188 (1954) 1L.L.J.835 (I.T.).189 (1962) 2 L.L.J. 227 (S.C.).190 (1960) 1L.L.J. 802 (S.C.).191 (1968) 1 L.L.J. 15 (S.C.).192 (1969) 1 L.L.J. 557 (S.C.).193 (1970) 1L.L.J.348 (S.C.).


discard motive behind closure futile, besides giving rise to cancers inunpredictable places. In the circumstnces our suggestion would be in thefavour of a reapprisal of the Supreme Court decisions by the SupremeCourt itself whenever a future occasion demands. But, if that is notpossible, we suggest an immediate legislative intervention for includingpurpose clause in Section 2(e) of the IDA which occured in Section 2(e)of the IDA.

102. Proceeding from the area of statutory interpretation to that ofright to strike and lock-out, we find that it is difficult to reconcile policystatements with statutory provisions. Government spokesmen, forinstance, are generally agreed that "workers" right of association,organization and collective bargaining is to be accepted as a fundamentalbasis of mutual relationship between lobour and management, and thatcollective bargaining can derive reality only from organized strength ofworkers." Yet apart from granting immunity from criminal and civilconspiracies and restraint of trade, the provisions of TUA do little tostrengthen trade union movement and right to strike. Indeed, the IDAwhich permits right to strike in a certain situation has not, on the whole,delivered the goods.

103. Coming to the constitutional interpretation of Article 19(1) (c) wefind that the Supreme Court in All India Bank Employees Association194

has excluded right to strike form its ambit. Supreme Court's reasoning is,however, involved, inconsistent and at variance with principles laid downin other decisions. Further, the interpretation does not promote thecommunity's interest in either trade union or even in functioning of theparliamentary form of government, and in fact, frustratesthe very purposeof guaranteeing the right to from associations or unions. In our opinionthe Founding Fathers recognised that trade unionism could not beensured by merely securing to the citizens the right of formingassociations or unionsbut alsothey shouldhavethe right of collective action.But,at the sametime, they also recognised that collective action might, (evenif individual action did not), endanger "publlc order or morality". They,therefore. provided that, subject to the right of the State to protect thoseinterests, a citizen might do collectively what he could do individually.

104. We believe that an act which is illegal, if done by an individualcontinues to be illegal when doen by two or more persons acting incombination. Article 19(1) (c) does not grant a charter of liberty to the

194 A.I.A. 1962 S.C. 171.


citizens to collectively do that which they cannot do individually. On theother hand, an act which is legal if done by an individual may becomeillegal when done by two or more persons acting in combination. Article19(4) indicates the permissible area of State regulation of combination asan element of liability. With respect to the right to lock-out we are inclinedto believe that the employer has a constitutional right to lock-out; the rightis not absolute and the restrictions imposed by the IDA are reasonable inthe interests of general public.

105. Having discussed the conclusion emerging from right to strikeand lock-out we can now turn to draw conclusion from the discussion ofthe regulation of instruments of economic coercion in part four. Thestatutory provisions and also judicial response to problems connectedwith regulation of strikes and lock-outs leave much to be desired. It is truethat Parliament cannot anticipate and provide for all potential difficulties,but can certainly react to such as appear through case law. The generalscheme of regulation of strikes and lock-outs in pubnc utility services issomewhat satisfactory. However, there is no provision in the IDA for"strike ballot" even in public utility service. The absence of such aprovision is likely to result in misuse of the weapon, particularly whenthere are multiple unions in the same industry/unit. It is, therefore,suggested that the IDA should be amended to provide for "strike ballot"before the workmen go on strike in publtc utility service as provided inSection 90 of the Industrial Relations Bill, 1978. Further, two trends ofjudicial interpretation apparently pulling in the opposite directions may benoted here. The non-pubtlc utility concerns unlike the public utilityservices do not require notice of strike of lock-out to be given to theopposite party. This is likely to lead to lightening strikes and lock-out. Inview of this it is suggested that Section 23 of the IDA may be amendedrequiring the parties concerned to give minimum period of notice ofstrike/lock-out to the other party concerned.

106. The judicial interpretation of Section 23 reveals mutuallyconflicting reasoning and lack of appreciation of both, the facts ofindustrial life as well as the law. Neither the additional limitation placed bythe Supreme Court, nor the original limitations imposed by the CalcuttaHigh Court, on the scope of the general prohibition is sound in principleand in law. We believe that the criterion of connection or relevance ismore in accord with the facts of industrial life and the provision of IDA. Itis, therefore, suggested that during the pendency of proceeding beforethe. Board of Conciliation or adjudicating authorities there should be no


ban on matters unconnected with such proceeding. Section 23 of the IDAmay accordingly be amended.

107. Section 24 which defines illegal strikes and lock-outs isinadequate. inasmuch as there is no provision in the IDA which prohibitssympathetic and general strikes and lock-outs. In view of this it issuggested that there should be a provision similar to Section 16 of the IDAto regulate sympathetic or general strikes/lock-out. A strike is not illegaleven if it is commenced or continued only for the reason that theemployer has made an illegal change. This is likely to affect industrialpeace. It is. therfore. suggested that such a strike should be treated asillegal under Section 24 of the IDA. Further a strike or lock-out should beillegal if it is resorted to due to unfair labour practice or victimization onthe part of trade unions or employers. A clause to this effect should beadded in Section 24.

108. The co-relation between imprisonment and fine is missing:Whereas Section 26(1) prescribes ratio of one month imprisonmentand/or fine of rupees fifty Section 26(2) provides one month imprisonmentand one thousand repees fine. Legal sanctions against illegal strikes andlock-outs lack in enforcement. It is, therefore. suggested that not onlylegal sanctions prescribed in the IDA should be adequately enforced butthe IDA should be amended to provide more deterrant punishment.

109. Now coming to the effect of use of instruments of economiccoercion on right to terminate employment relationwe find that there is noprovision in the IDA to regulate the same. To bridge this gulf tribunals andcourts have tried to formulate various norms. In this process judiciary hastried to maintain a balance between the need for discipline in industry andsecuring adequate security of tenure to the workmen. The task has beenextremely difficult one in view of sharply divided and vociferously pressedconflicting claims. Thus, the courts held that legality of management'saction to dismiss strikers the Court has solely been gUided by the legalityor illegality of the strikes. According to the Courts neither illegal strikeauthorises the management to terminate the services of strikers nor thelegal strike. disallows the management to terminate their services. In sucha situation the judiciary has made a significant contribution to theIndustrial jurisprudence by evolving a highly complex concept of"justified" and "unjustified" strike to decide the issue. Although the Courthas evloved principles relating to the regulation of management's powerto dismiss strikers. these suffer from the normal vices which were usuallyfound in judicial legislation. In any case the matter which has come upbefore the Court has thrown sufficient light on the nature of problems


relating to dismissal of strikers. The time is ripe that the principles laiddown by the Court and the suggestions outlined above need be put in theform of statute book in order to put an end to controvercies which havearisen and are likely to arise in the matter of dismissal of strikers. .

110. This brings us to the last point namely, effect of instruments ofeconomic coercion on wages. A survey of decided cases revealsadequate judicial awarencess of the need to provide wages for the periodof strike and lock-out, in certain circumstances. The discussion alsoindicates that problems are arising faster than judiciary can solve them. Itis also observed that the concept of claim of wages for strike or lock-outperiod are undergoing change. In this regard the principles of "no-workno wages" is being whittled down to provide for wages to strikers orlocked- out employee in certain circumstances. Thus. the decisions in thisarea demonstrate the vital role of judicial process in formulating thenorms.

111. In the end, we may say that it is high time to review the entirelegislation and judicial pronouncements relating to instruments ofeconomic coercion. It is hoped that the suggestions outlined above wouldgo a long way in maintaining industrial peace and harmony.

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Stricks and Lock Outs in India