CHAPTER - V
THE LEGALITY OF STRIKE
Strikes are not per se illegal. The legality or illegality of a strike must
depend on the means by it is enforced and on its objectives. Lord Shaw said in
Russel v Amal Society of Carpenters and Justice.1 "Strikes may be perfectly
legal or they may be illegal. It depends on a nature and mode of constructed
cessation of labour. If this concerted cessation is in breach of contract then it
could not be said to be within law any more than could a breach of contract by
a single workman. If on the other hand, a strike be cessation of labour on the
expiring of contract. There is no necessary illegality there any more than in
the case of an individual workmen completing their bargain and choosing to
remain idle. But of course, in this later case, the concerted cessation of a
labour may be for the sole of deliberate off obvious purpose of the refraining
tread in which case different legal consequences might ensure."
It was held in the case of “Cox and Kings Limited v. Their Employees'2
that a strike a considered justified if it is in connection with a current labour
dispute or directed against an unfair labour practice of the employer. It was
also held justified when undertaken only after remedies provided in the
statutory machinery of the Industrial Disputes Act have proved futile in the
1
2
(1910) I KBP 506.
(1949) LLJ 796 (I.T.).
138
case of Chandramouli Estates v. Its Workmen,3 likewise if the employer
discharges its union officers, or causes a union official to be assaulted. The
resultant strike is considered to be justified. Refusal to recognise a union or to
consult it are considered valid reasons for a strike. In the case of 'Bihar Fire
Works and Potteries Workers Union v. Bihar Fire Works and Potteries,'4 it
was held that it is not proper to judge from the result of the adjudication of the
demands whether a strike was not justified or not it can't be said to be
unjustified unless the reasons for it are also lately preserve and unsustainable.
Union is such it does not appeal to an ordinary common man, the strike is held
to be unjustified. When strike is held to be justified, it is not means that there
is complete justification for strike. The justification can only be relative
justification when the workers have been reasons to entertain a bonfide
unrepressed grievance which under circumstances in which they happen to be
placed is found to be such as to make them feel that the only course left to
them to redress the grievance effectively and without undue delay is stoppage
of work. A strike to be justified should be launched or the economic demands.
It was held in the case of 'Swadesh Industries Ltd v Their Workmen',5the first
and foremost requirement of a justified strike is that it should be launched
only for economic demands of workmen like basic pay, dearness allowance,
bonus, provident fund, gratuity, leave and holidays etc., which are the primary
3
(1960) KK LLJ 243-246.
(1953) I LLJ L.AT. (Cal.) 49 at 52
5
(1960) AIR SC 1250
4
139
objects of a trade union. The political considerations cannot supply and good
answer to legal obligations. The economic demands should be prima facie
reasonable. The demands should not be raised frivolously or on ulterior
reasons. Even some of employees are discharged. The workers cannot go on
strike in haste. The workers cannot insist that a particular employee should
work with particular batch of workmen and their demands can't justify the
strike as was held in the case of 'Sri Kanyakaparameswari Groundnut Oil Mils
contractor's company v their workmen" by the industrial tribunal.6 In the case
of 'Dabir (Et. S.K. Burman) Pvt. Ltd., v Their Workmen,7 it was held that
justification of strike depends upon (a) the conduct of the employer also, the
employee which includes provocation on the part of employer by high, handed
action and unsustainable reasons for the strike on the part of workmen (b) the
nature of the strike whether the peaceful of violent and (c) whether the strike
was resorted to after exhausting all the means of redress. The strike is justified
However, merely refusal to recognise a particular trade union or to negotiate
with it as a recognised union, will not by itself justify strikes. When there is a
bonfide dispute about the conditions on which recognition should be granted
when the management refuses to agree to arbitration or adjudication of
demands of the workmen, the strike is justified. Even in some demands are
not referred to adjudication or arbitration, the workers are justified to go on
strike. When the workers were forced to resort to strike because of various
6
7
(1955) I LLJ (566 I.T.) 561
(1961) II FLR (I.T.) Calcutta. 10
140
acts of management and more essentially the placing the number of workmen
under the contractors and retrenchment of a large body of a workmen the
strike is not justified. If the existing service facilities are withdrawn, the strike
started consequent on such abrupt discontinuation of benefits, is quire
justified. The strike against contract in force is not justified.
The strike itself cannot be treated as misconduct. The employer cannot
dismiss an employee forgoing on justified strike because in that case the
recognised weapon of strike will be rendered ineffective. Even in case legal,
but unjustified strike, the employer cannot given right to dismiss employees.
The power to dismiss depends upon the reasonableness of the demands will,
therefore, restrict the field of industrial bargaining. In case of 'Ram Kishan
Iron Foundry, Howrah v their workmen'8. It was held when the strike is
resorted to with the real object of compelling the employer to reopen a
demand settled by adjudication or when it is reported to frivolously and
frequently with a dominant motive of running the industry or when it is on the
account of extraneous considerations, then there will be misconduct and 1he
employer will have the right to dismiss the employees.
It Express Newspapers Ltd., v Mchale Mark,9 it was held that a strike,
legal or illegal, justified, unjustified does not dissolve the employer employee
8
9
1954 II LLJ (L.A.T.) 372
(1952) 2 LLJ SC. 220
141
relationship.The strikers can be dismissed or discharged only if the strike was
not bonafide and when it is a misconduct. The doctrine of replacement was
first raised in 1952 in the case of Spencer and Company v their workmen,10
and confirmed on appeal. In the Spencer case the Madras Industrial Tribunal
held vis a vis American decisions that an unjustified strike not caused by
unfair labour practices of equivalent to an economic strike, and hence the
workers could be replaced and upon settlement of the strike refused
reinstatement However, the other case of 'Bangalore Silk Throwing Factory v
Its Workmen,11 Bombay Appellate Tribunal held that the dismissal of workers
was against natural justice and further stated the management had the right in
law to fill up their places and 'The management are bound only to reinstate
such strikers whose places have not been filled'
As regards the wages, during the period of strike in the case of legal and
justified strike, and more specially against in the unfair labour practices of the
employer, the workers are entitled for wages for the striking period. In
contract to the practice in America wages during the existing period was real
issue. In India thus, the period was allowed because of economic conditions of
workers and tribunal are held that denial of wages is tent amounts to a denial
of the right to strike. If the deductions of wages are allowed to be made in the
circumstances of tie present case, if would amount to denying to workmen to
10
11
(1952) I LLJ 469.
(1957) ILLJ (L.A.T. Bombay). 435
142
workmen the management which they have acquired after a great deal of
struggle and sacrificed. But however the workers who are not reinstated were
entitled compensation. Inspite of temporary employees also have the right to
reinstate in the case of legal and justice.
5.1 Illegal Strikes
All strikes are not ipsofacto unlawful or illegal. Industrial Disputes
Act. 1947 however, makes certain strikes illegal under section 24. This
section specifies the events on the happening of which, strike is to be treated
as illegal and the plain meaning of this is that, those strikes which do not fall
in that category are not illegal, another way strike may be unjustifiable, but it
is not illegal unless it is illegal according to the provision of the Industrial
Disputes Act, 1947. Thus a strike which is not illegal under Section 24 of the
Industrial Disputes Act, 1947 can never be treated as illegal under the Act.
For instance, where a strike in pursuance of an industrial dispute has
already commenced and is in existence at the time of the reference of the
dispute to a Board, an Arbitrator, a Labour Court, Tribunal of National
Tribunal, the continuance of such strike will not be illegal, if, such strike
was not at its commencement in contravention of the provisions of this Act
or the continuance thereof, was not prohibited under sub-section (3) of
Section 10 or sub-section (4A) of Section 10A of Industrial Disputes Act,
143
1947.12 Also, a strike declared in consequence of an illegal lockout will not
be illegal.
The Supreme Court has stated A strike is a legitimate weapon in the
hand of the workers to redress their grievances. However it has been held
that it should be used as a "last resort'' when all other avenues. Have proved
futile and so long as it is used in a restrained, peaceful manner of good and
justifiable reasons, it can not be punished13. In U.K. strikes may or mayn't
involve breaches of contracts of employment. For many years, the traditional
view was that a strike after a strike notice of duration not less than that
services, are specified in Section 2(1)(a) of the Act. In U.K., peacetime
Emergency powers14 sought to secure the essentials of life to the community
and prohibited strikes in public utilities by empowering the Government to
declare a state of emergency. The industrial disputes which are of a grave
and serious character by establishing that the Secretary of State in certain
circumstances may apply to the Industrial Court for an order restraining
persons from organising industrial action for upto 60 days15. The other
procedure available in the same type of emergency situation is a ballot, that
is the Secretary of State may apply for a ballot when the situation is that the
conditions appear to be, or likely to be seriously injurious to the livelihood
12
Section 24 (2) of Industrial Disputes Act. (1947)
Caltex (India) Ltd. v. Certain workmen , (1954)(II) LL.J.516 (520).
14
Emergency Powers Act. (1920) and (1964)
15
Section 139(2) of IRA (1971)
13
144
of a substantial number of workers employed in a particular industry16. Now,
the Trade Union and Labour Relations Act of 1974, has also abolished the
Emergency measures of 1971 statute.
Turning to Australia, in the case of a proclamation made of the
existence of a serious industrial disturbance prejudicial or threatening trade
or commerce with other countries or among the States, the participation in or
incitement to strike in relation to (1) employment connected with the
transport of goods or the conveyance of passengers in overseas or inter-stale
trade or commerce or (2) employment in or in connection with the provision
of any public service by the Commonwealth Government or any
Commonwealth public authority, is an offence17.
Indeed, the Industrial disputes act, 1947, does not purport to take
away the right to strike. In fact, this right has been recognized by the Act,
peaceful investigation and settlement of the industrial disputes and for
obviating the industrial strikes and achieving harmonious relations between
the employers and their work men the right to strike has been restricted. In
sum Right to Strike is not absolute in India. U.K. and Australia. Reasonable
restrictions have been put on this right in India and U.K. whereas in
Australia this right is very extensively regulated. Required to terminate
16
17
Section 141(2) of IRA 1971.
Section 30 (J) of the Crimes Act (1914-1955)
145
contracts was lawful. The Industrial Relation Act, 1971, separated lawful
strike from those which are resorted to by unlawful means18 or have
unlawful purposes19. The 1971 Act provided in negative fashion that due
notice given by or on behalf of an employee shall not, unless it otherwise
expressly provides, be construed as notice to terminate his contract of
employment, or as a repudiation of that contract20. Section 147 of the Act
further provide that so long as there is no term expressed or implied in the
contract, excluding or restricting a person's right to participate in a strike
(i.e.no-strike clause) and so long as due notice has been given of a person's
intention to strike, then his action is taking part in the strike shall not be
regarded as breach of contract for any proceeding in contract or tort, for
injury to persons or property and unfair industrial practices21 under Section
96 of the Industrial Relations act, 1971. This means, therefore, that as this
particular action of taking part in a strike is not to be regarded as a breach of
contract for the purpose of Section 96 of the Act, the inducing or threats to
induce another person to take part in a strike only after due notice has been
given will not amount to an unfair labour practices22. However, Trade union
and Labour Relation Act of 1914, has abolished all the 'unfair labour
practices of 1971. Statute and has reverted to the traditional pattern, that is
18
Bookes v. Bernard, (1964) AC 1129.
Crofter Harris Tweed v. Veltch, (1942) AC 435.
20
Section 147 of Industrial Relations Act (1971).
21
Now repeated by Trade Union and labour Relation Act. (1974).
22
Cyrll Crabree Industrial Relation Act (1971) at p.137.
19
146
Section 29 of the 1974, Act restores to the golden formula and protects acts
done in contemplation or furtherance of a trade dispute, a modernized
definition of trade dispute based on the concepts of the Trade Disputes Act
190623 and materially different from the meaning of' Industrial Dispute' in
the 1978 Act24. A strike is not unlawful reason of its purpose as long as it is
connected with the terms and conditions of employment. The dispute must
be connected with one of the list of topics set out widely in Section 29(1) of
the 1974 Act viz terms and conditions of employment, or physical
conditions of work engagement or non-engagement, or suspension of
employment, or duties of employment of workers, allocation of work, or
employment duties between group of workers, facilities for Trade Union
officials etc. including problems about recognition by an employer of the
right of a Trade Union to represent workers. The treat is to be treated as
being made in contemplation of a trade dispute.
In Australia, a strike may take place without notice being given to the
employer concerned or to an arbitration authority or alternatively after the
expiration of a period of notice. Again, a strike in which unionists are
concerned may have been decided up on by the particular employees
concerned or by an official of the union or by all the members of union25.
These are variation in the methods of striking and they are a significant
23
Section 5(3).
Section 167(I) of (1971).
25
Portus J.H. The Development of Australian Trade Union Law 4th Ed. (1958) at p.214.
24
147
feature of strike legislation under some of the Arbitration Acts. In
Queensland, and New South Wales, where all strikes are not made illegal the
Acts distinguish between strike action that is taken in accordance with a
majority decision of the member if the union concerned after a secret Ballot
and strike action decided up on in some other manner26.
5.2 Strikes - Justified and Unjustified:
A strike may be technically perfectly legal in that it may not have
been resorted to in contravention of the provisions of Section 22 and 23 of
the Industrial Disputes Act, 1947, but still the conduct of the striking
workmen may be highly reprehensible, disorderly and violent whereas the
attitude of the employer may have all along shown complete reasonableness
and a desire for conciliation. Similarly, a strike may have been illegal in that
it may have been resorted to without due regard to the compulsory
compliance of the mandatory requirements of the relevant section of the Act
such as, service of notice in the case of public utility service or violation or
prohibition of strike during the pendency of adjudication proceedings, but
the demands of the striking workmen may be quite legitimate, lawful and
justifiable whereas the attitude of the employer may have shown malafides.
unreasonableness and motive of exploitation. These peculiar features of the
strike situation prompted those responsible for the administration of
26
Section 51(I) of Queensland Act Section 99 of New South Wales Act.
148
industrial law to try to classify strikes which are otherwise legal into
categories of justified strike and un justified strikes.
5.3. Strike - When Justified
Although strike is a legitimate and sometimes unavoidable weapon in
the hands of workers and may be resorted for securing their demands to
improve their conditions, yet the justifiability of a strike has to be viewed
from the standpoint of fairness and reasonableness of the demands made by
workmen and not merely from the standpoint of their exhausting all other
legitimate means open to them for getting the demands fulfilled. However,
in Gandhiji's view, a strike of inevitable, has to be called out after
negotiations for the settlement of workers' just demands have collapsed and
the demand for arbitration has been turned down or the arbitration has been
turned down or the arbitration has failed should pass the below mentioned
test:
1. The cause of the strike must be just;
2. There should be practical unanimity among strikers;
3. No violence should be used against non-strikers;
149
4. Strikers should be able to maintain themselves during the strike period
without falling back upon union funds and should therefore occupy
themselves in some useful and productive temporary occupation27.
In Chandramalai Estate, Ernakulum v. its workmen28 K.C. Gupta J.
stated that while on the one hand it has to be remembered that strikes is a
legitimate and sometimes unavoidable weapon in the hands of labour, it is
equally important to remember that indiscriminate and hasty use of this
weapon should not be encouraged. It will not be right for labour to think that
for any kind of demands a strike can be commenced with impunity without
exhausting reasonable avenues for peaceful achievement of their objects.
There may be cases where the demand is of such an urgent and serious
nature that it would not be reasonable to expect labour to wait till after
asking the Government to make a reference. In such cases, strike even before
such a request had been made, may well be justified.
Collective bargaining for securing improvement on matters like basic
pay, dearness allowance provident fund, bonus and gratuity, leave and
holidays is the primary object of a trade union and when demands like these
ate put forward and thereafter, a strike is resorted in an attempt to induce the
employer to agree to the demands or at least to open negotiations, the strike
27
28
Majumdar P. An anatomy to Peaceful Industrial Relation at p.54.
1960(II) LLJ 243 at p.246.
150
must prime facie be considered to be justified unless it can be shown that the
demands were put up frivolously or for any ulterior purpose29. Even where
the strike was not directly connected with the demand for bonus and
uncontroverted evidence established that the strike was a protest against the
unreasonable attitude of the management, in boycotting the conference held
by the Labour Minister, the strike was held to be not unjustified30. In the case
of workmen of Bihar Fire-works & Potteries Union v. Bihiar fire works &
potteries Ltd31. What happened was that the workmen resorted to one hour
token strike by way of protest against the dismissal of six workmen. A new
days later, the management issued a notice intimating that appropriate
deductions would be made from the wages of those who had taken part in the
one hour's token strike on 22nd January, 1951. The management issued
another notice intimating that further appropriate deductions would be made
from the salaries of those who went on token strike for the second time on
1st February, 1951, and thereafter the management did make the deductions.
The tribunal to which the matter was referred held both the token strikes as
'frivolous and unjustified' and the striking workmen, therefore, were not
entitled to wages for the period of the token strikes. The Appellate Tribunal,
to which the matter was referred on appeal, observed that the strikes were
not illegal as they did not contravene the provisions of Section 22 and 23 of
29
Swadeshi Industries Ltd. v. Its Workmen,(1960)(II) LLJ 78 at 81.
Churakulum Tea Estate (p) Ltd. v. Its Workmen, (1969)(II) LLJ 407.
31
1953 ILL.J.49.
30
151
the Industrial Disputes Act, 1947. But the point to be considered was
whether the strikes were justified or not. It was held by the Appellate
Tribunal that the strike cannot be said to be unjustified unless the reasons for
it are absolutely perverse and unsustainable. The awards of the tribunal was
set aside and it was directed that deductions made from the workmen's wages
should be paid back to them. If an employer behaves in an unreasonable
manner, if he curtly turns down all worker's demands and refuses to consider
them on their merits, if he resorts to unfair labour practices and if he rejects
conciliation and arbitration, workers will be regarded as justified in taking
recourse to a strike weapon.
When a strike, legal or otherwise, is found to be justified in the sense
in which this term is used by Industrial Tribunals, what is normally meant by
that finding is not that there is complete justification for the strike, or that the
authority in judging the nature of the strike, approbates the action of the
workers in going on strike under the circumstances, and where the strike
being illegal and against the express prohibition imposed by the law a
finding of complete justification of the strike or approbation of the conduct
of the workers participating therein is impossible for any Tribunal. Apart
from any drastic step that the employer might be entitled to take in
consequence of the strike, not only does the law positively disapprove and
prohibit such action, but it imposes penalties for the same and also from time
152
to time serious disabilities, in many respects, have been provided by
legislature for workers any. which can be looked for in such cases can only
be a relative justification, such as can be found when the workers have
reason to entertain a bonafide unredressed grievance, which renderthe
circumstances in which they happen to be placed., is found to be such as to
make them feel that the only course left to redress the grievance effectively
and without under delay is some stoppage of work.32
In this country, the question of payment of wages during periods of
strike is not covered by legislation nor is there an accepted code of
jurisprudence in this regard. The points generally considered by
adjudicator in awarding a strike pay is whether the strike was legal or
whether the strike was in consequence to an unfair labour practice on the
part of the employer. Sections 22 to 24 of the Industrial Disputes Act,
1947 describe the circumstances under which a strike or lock-out is illegal
and fifth schedule section 2 of the act givers a list of unfair labour practices
on the part of the employer as well as the employees.
With regard to the issue of payment of wages during a strike period
there has been a body of decisions by adjudicators. In the recent years
arguments are put forth for and against the award of strike pay in context of
the circumstances leading to each dispute. There had been no uniform trend
32
smanshahi Mills Ltd. v. Its workmen, (1959)(I) LL.J. 187.
153
but there is a gradual emergence of a body of principles that has guided
the adjudicators, Industrial Tribunals in deciding the issue of strike pay.
From trend of general arguments advanced by adjudicators it would
appear that only in exceptional cases, should the workers be awarded
wages during the periods of strike. The board determining principle is no
work - no wage. When a strike has been occasioned by the employment of
an unfair labour practice by the management or where the employees had
been always willing to submit to arbitration which the management has
not agreed to, it would be open to an Industrial court to award strike pay if
the strike had been legal and had been conducted peacefully. The first
and foremost important consideration taken into account by the
Adjudicators, Industrial Tribunals in deciding the issue of payment of
wages during a period of strike. The legality concept has to be determined
taking into view the relevant provisions of the Industrial Disputes Act
1947. If the strike is found to be illegal, the strikers would have no claim for
pay during the period of strike. The next consideration is was the strike
Justified. There will be circumstances in which a strike may be justified and
a concerned action alone might bring about the redress of a genuine
grievance and in such cases the strikers are entitled, to wages during the
strike period. The another consideration taken by the adjudicators while
adjudicating the strike pay is was the strike occasioned by an unfair
154
labour practice by the employer. If the employer commits an unfair
labour practice, the workers are entitled to strike pay. Technical reasons
also come into play in rejecting the workers claim for pay during the
periods of strike. There had also been instances where the question of strike
pay was amicably settled by agreement between the employers and
workers. In determining the amount of pay to be awarded during a period
of strike the Adjudicators, Industrial Tribunals have often followed the
method of apportioning blame and awarding strike pay in accordance with
the extent of blame attached to the parties.
The strike pay cannot be claimed as a legal right since there exists no
statutory provision relating to this aspect. However the relief of wages
for the strike period is granted not as a normal legal relief but based on
compassionate and equitable grounds on account of economic disparity
between the employer and the worker.
It is found to be otherwise
unjustified. It is not only the end but the means too that must be reasonable
and just.
The judiciary has taken up the issue of strike pay and it had
putforth the arguments for and against it taking into view the facts of the
case and the circumstances leading to the dispute.
The following case
law helps us to know as to when a strike pay is awarded and under what
circumstances a striker is entitled for strike pay.
155
It was in the case of Mahalaxmi Cotton Mills v. Their Workmen,33
the appellate Tribunal held that the right to get pay for the period of the
strike depends on the question whether the strike was legal or illegal. But
however this reasoning has been rejected by Mukherjee J. in Golaghat
Zilla Chah Mazdoor Sangh v. Hautley Tea Estate.34 It was decided in the
case of United Commercial Bank Ltd., v. A.C.Kakkar and Others35 that
workmen who have gone on illegal strike are not entitled to wages for the
period of strike. The workmen may have their fundamental right to do
work and withhold it at their pleasure and they are free to choose their own
time to launch a strike but this right has nothing to do with the right to get
wages during the period of strike. Ordinarily they are not supposed to be
compensated for any loss that may be sustained by them during strike
period.
The strike being deliberate act on the part of workmen they
must be prepared to take all the consequences arising out of it.36
The workmen have no right to wages for the period of a strike when
the strike though not illegal is unjustified. Ordinarily upon failure of a
conciliation proceeding, the workmen must wait for reasonable time to
enable the government to make reference of a dispute for adjudication. If
33
(1952) II LL.J. 635 (L.A.T.) (Cal).
(1956-57) 10 FJR 1 (LAT) (Cal).
35
1954 L.A.C. 498.
36
West Bengal Flour Mills a Mazdoor congress v. Hooghly Flour Mills Co., Ltd., 10 F.J.R. 240.
34
156
instead, they straight away go on strike the strike is unjustified and they
have no right to wages for the strike period37.
However, when a lock-out declared by the employer is unjustified, the
workmen are entitled to their full wages for the whole period of the lockout.
The workmen are not bound to report for work or to take part in any
conciliation proceedings, while the illegal lock-out continues, and their
claim to wages for the period of lockout cannot be denied merely on that
account. When lock-out is declared in consequence of an illegal strike,
ordinarily the workmen are not entitled to wages for the period of the lockout, but if the lock-out duration, both parties are equally to blame for the
situation which arises and the workmen should get half their wages for the
period of lock-out38.
Where the strike was held neither illegal as it did not contrivance any
statutory provisions nor unjustified as it was launched for half a day as a
protest against the unreasonable attitude of the management in
boycotting a conference held by the labour Minister of the State,
workmen were held to be entitled to full wages for that day 39.
37
Chandra Malai Estate, Ernakulam v. Its Workmen, AIR (1960) SC. 902.
Indian Marine Service (Pvt) Ltd., v. Their Workmen, AIR (1963) SC. 528.
39
Chorakulam Tea Estate (P) Ltd., v. Its Workmen, (1969) II LL.J. 407.
38
157
the
In P.C. Roy & Co. (India) Pvt. Ltd. v. Raycom Forests Labour
Union,40 the employer failed to pay work men wages on the due dates,
although he did pay the same after some time. The workmen went on strike,
and continued even after the wages have been paid. The Calcutta High Court
held that the strike was unjustified only up to the date of payment and
accordingly allowed worker claim for wages for the period of strike only up
to such date.
Where during the strike period and even prior to that, several of the
workmen resorted to violence and other acts of indecency and the workmen
continued the strike even after the notification issued prohibiting the
strike and requiring the workers to report for duty and the circumstances
clearly showed that the demand of the union regarding ex-gratia bonus could
not be considered to be of an urgent and serious nature, the launching of
the strike was held to be unjustified. Hence, the workmen were held to be
not entitled to any wages for the period of strike41.
Where the workmen concerned went on strike which was held to be
illegal for the reason that an appeal was pending during the period of the
strike, the workmen are held to be not entitled to the wages for the period of
the strike42. The Supreme Court in Crompton Creaves Ltd. v. Its Workmen43
40
AIR (1964) Calcutta 221.
Management of the Fertilizer Corporation of India v. Their Workmen, AIR (1970) SC. 867.
42
Lord Krishna Sugar Mills Ltd. v Sharanpur Case, (1952) I LLJ 803.
41
158
observed. It is well setted in order to entitle workmen to wages for the
period of strike, the strike should be legal as well as justified. A strike is
legal if it does not violate any provision of the statue. Again a strike are
entirely perverse or unreasonable. Whether a particular strike was
justified or not is a question of fact which has to be judged in the light of the
facts and circumstances of the case.
In the case of Life Insurance Corporation of India v. Amlendu Gupta44
a Division Bench of the Calcutta High Court held that the "strike being legal
and justified, the employees were entitled to salaries for the period of the
strike”. On the question whether the High Court in its constitutional writ
jurisdiction could mandate LIC to pay the employees their salaries for the
period of strike, the court held that it was within its powers to do so.
In the case of Statesman Ltd. v. their Workmen45 the Supreme Court
held that even in the case of an illegal strike, the industrial adjudicators
are empowered to grant wages, in cases where circumstances warrant
grant of wages. Relying on the above judgment the Bombay High Court in
Balmer Lawrie & Co. Ltd., Bombay v. Balmer Lawrie Employees Union and
another46 upheld the award of 35 percent wages to the workmen during the
43
AIR (1978) SC 1489
(1989) Lab. ICJ. 484
45
(1976) I LL.J.484
46
(1989) II LL.J 97
44
159
strike period not with standing the fact that the strike was illegal under the
Industrial Disputes Act.
In the case of Indian General Navigation & Railway Co., Ltd. v. Their
Workmen47, the Supreme Court has held that there can be no question of
an illegal strike being justified and the workmen are not entitled for
strike pay. In the case of Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes
Mazdoor Sabha48, the Supreme Court has held that although the strike is
illegal, it does not parse spell unjustifiability and the workmen are entitled
for wages.
A perusal of the above mentioned case law goes to show that the
strikers are entitled to strike pay depending upon the legality and
justifiability of the strike. But in the year 1990 there came an important
pronouncement by a Division Bench of the Supreme Court keeping aside the
earlier judgments and a complete departure from earlier precedents on the
workers' right to wages during the strike period. It almost choose to rewrite
the law and even its attention was not drawn to its earlier pronouncements.
It was in the case of Bank of India v. T.S.Kelawala49 that a new dimension
was created relating to the wages during the strike period.
47
SC (1960) I LLJ 13
SC (1980)I LLJ 137
49
(1990) 4 SCC 744
48
160
In the above case, the court was dealing with two appeals, one dealing
with the question of employer's power to deduct wages for the period of
strike and the other with the power of the employer to deduct wages in a
situation where employees resort to go-slow tactics. The court in a
common judgment deal with the two issues raised in these appeals
separately.
Dealing with the question of employer's right to deduct wages during
the period of strike, the court ruled that where the contract or standing
orders or the service rules regulations are silent on the issue of worker's
entitlement to wages during the strike period, the management has the
power to deduct wages for absence from duty when the absence is a
concerted-action on the part of the employees whether the strike was legal or
illegal. The court held that the question whether the deduction from the
wages would be pro-rata for the period of absence only or would be for a
longer period would depend upon the facts of each case, such as whether
there was any work to be done in the said period, whether the work was in
fact done and whether it was accepted. But where there is a dispute as to
whether employees attended the place of work or put in the allotted time of
work or not, the dispute has to be investigated by holding an enquiry into
the matter. In such cases, no deduction from wages can be made without
establishing the act of omission or commission on the part of the employees
161
concerned. Where the employees strike only for some hours but there is no
work for the rest of the day, the employer in such a situation may be
justified in deducting salary for the whole day. On the other hand where the
employees may put in work after the strike hours and the employer
accepts it, the employer may not be entitled to deduct wages at all or be
entitled to deduct them only for strike hours, P.B. Sawant J observed that
"Whether the strike is legal or illegal, the workers are liable to lose wages for
the strike period. The liability to lose wages does not either make the strike
illegal as a weapon or deprives the workers of it. When workers resort to it,
they do so knowing full well of its consequences. During the period of
strike, the contract of employment continues, but the workers with hold
their labour, consequently they cannot expect to be paid."
The court did not agree with the arguments of the employees that
wages cannot be deducted prorate for the hours or for the day or days for
which the workers were on strike, because the contract was monthly which
cannot be subdivided into days and hours. The court felt fortified in its
conclusion by reading section are definition of wages and Section.2q strike
definition together. The court held that a combined reading of these two
definitions makes it clear that wages are payable only if the contract of
employment is fulfilled and not otherwise. The court made it clear that in a
case where action is resorted to in a mass scale, some employees may have
162
either not been party to the action or may have genuinely desired to
discharge the duty but could not do so for failure of the management to give
the necessary protection or on account of other circumstances, the
management will not be justified in deducting wages of such employees
without holding an enquiry.
Strike dealing with the aspect of deduction of wages during the
period of go slow, the court held that unlike in the case of strike where a
simple measure of a prorate deduction from wages may provide a just and
fair remedy, the extent of deduction of wages on account of a go-slow action
may in some cases raise complex questions. The court held that go-slow was
a serious misconduct being a covert and more damaging breach of the
contract of employment and it had no hesitation in holding that the
employer is within his right to make deduction from the wages of the
workmen who resort to go-slow.
The approach of the court towards the entitlement of wages for the
strike period is not desirable. The industrial adjudication in Indian has
consistently followed the principle that entitlement to wages for the strike
period was to be decided keeping in view whether the strike resorted to
was legal and justified. Even the supreme court has in appropriate cases
awarded the percentage of wages to workers even during illegal strike
taking into view the facts and circumstances of those cases. The trade
163
union in India find themselves in peculiar situations because of the lackof resources and also social security measures for workers being
conspicuous by their absence, outright denial of wages even in cases of
legal and justified strikes strictly tantamount to denial of the right to strike
for securing of which the workers had gone through many trials and
tribulations. Granting of wages in cases of legal and justified strikes and
also in some other cases, where the strikes were technically illegal, being in
contravention of statutory provisions, but otherwise considered to be
justified, notwithstanding the fact that the terms of contract of employment
or standing orders were silent on the issue, is necessitated by the
considerations of social justice.
The court has treated employer - employee relationship as merely
one of law of contract issue and it wanted to imbibe into the working class,
work culture which of late has fallen to the lowest ebb. But in a welfare state
like ours, the employer-employee relationships cannot be looked at merely
from the stand point of laws of contract but has to be considered in the
broader context of social justice. no work - no pay has been the basis of this
decision.
However, apart from the decision of the supreme court, one should
keep in view that strike pay is desirable upon satisfying of the following
conditions namely the strike was legal, the object of the strikes was
164
justified and the workers sought help of redressal mechanism available
under the law before resorting to strike.
5.4 Strikes - When Unjustified
It is to be noted that a strike may be perfectly legal and yet be
unjustified, for examples a strike commenced not to secure improvement on
matters of basic industrial interest to labour, but to embarrass the
management could not be justified50 In West Bangal Flour Mills Mazdoor
Congress v. Hooghly Flour Mills Co. Ltd.51, the Labour Appellate Tribunal
held that, where a strike was resorted to, by workmen in spite of the
conciliatory attitude of the management and without trying all other
available means of settlement of the dispute according to law, the strike
would be unjustified and the workmen would not be entitled to claim wages
for the strike period.
Thus, a strike may be held to be unjustified for various reasons, they are :
1. the demands may be pitched unreasonably high, or
2. the employer may have adopted a reasonable attitude by taking steps to
have the alleged grievance redressed through negotiation or conciliation;
or
50
51
Workers of Textool Co. Ltd. v. Textool Co. Ltd. 10 I.J.R. 460.
10 F.J.R. 240(L.A.T).
165
3. the demands were not made bonafide, but with other extraneous motives,
that is, for the specific purpose of embarrassing the employer52.
In case it is found that the strike lacks bona fide, the employer has the
right to take action against the workmen who have joined the strike. There
would be no bonafide if
(a) the strike is resorted to under the pretence of backing a current demand
but with the real object of compelling the employer to reopen a demand
which has already been adjudicated upon or
(b) when it is resorted to frivolously or frequently with a view to ruin the
factory or where it is resorted to extraneous considerations.
Where the workmen resorted to a strike as a result of a hot-waded
decisions without giving their grievances redressed by conciliation
proceedings it was held that the strike was unjustified53. Right to strike, is to
be exercised after fulfilling certain conditions regarding service of notice and
also after exhausting intermediate and salutary remedy of conciliation
proceeding54. Whether the strike is justified or unjustified is a question of
fact to be determined on the fact and circumstances of each case.
Justifiability of a strike would depend upon several factors such as:
52
Ramakrishna Iron Foundry, Howrah v. their workers (1954)(II) LLJ 372 at p.374.
Union Factories in Bihar v. Their Workmen 13 FJR 150
54
Dharam Singh Rajput v. Bank of India Bombay (1979) Lab.IC 1079 (DB)(Punj).
53
166
(i) Were the demands of the workmen genuine or were reasonable or
inspired by an oblique motive
(ii) Were the demands fair and reasonable
(iii) Did the workers try a less drastic method before going on a strike etc.55
The conduct of the employer is also a relevant and important factor in
resolving the question of justification or otherwise of a strike. A strike may
be held to be justified if it was occasioned by the employment of unfair
practices by the employer or may be held to be unjustified if it resorted to
despite employer’s willingness to settle the dispute through conciliation,
unjustified where the employer decided to closed down the undertaking and
sell its assets but with the assurance of the new company with continuity of
service.56 The Supreme Court in Management of the Fertilizer Corporation
of India Ltd. v. The Workmen57 was emphatic that the launching of the tike
was unjustified with inspite of the fact that the management was prepared to
pay bonus as per the Bonus Act, had announced a production bonus scheme
and had made some proposals in the course of conciliation with the workmen
and yet the workmen were not prepared to put off the strike even by one day
and decided to go on strike. On the other hand, when workmen went on
strike as a protest against the recalcitrant attitude of the managements, in
55
Andhra Pradesh State Road Transport Corporation, Employees Union v. Andhra Pradesh State Transport
Corporation, Hyderabad,1970 L.I.C. 1225.
56
The Andhra Pradesh Ltd. v. The Secretary, Madras Union of Journalists, AIR 1967 SC 1869.
57
AIR 1970 SC 867.
167
boycotting the conference called by the labour minister or failure or
conciliation, the strike was held to be not unjustified.58
An unjustified strike may not necessarily be illegal. A strike prompted
by political considerations might be wholly outside the contemplation of the
Industrial Disputes Act, 1947, but it is not possible to see how it can be said
to be a strike in contravention of the provisions of any law or rules having
the force of law. Unless a case would be expressly brought within the
purview of Section 22 and 23 of the Act. It could not be held that the strike
was illegal, and at the most such a strike could be held as unjustified.59
It may be noted that in India, legal strikes are classified into ‘justified’
and ‘unjustified’ strike, whereas in U.K., U.S.A. and Australia it is not so.
Strikes - When Illegal
Every strike is not illegal. It may be mentioned that the field of
industrial law, so far as country is concerned,60 it is not the objects which
make the strike illegal but it is the breach of the statutory provisions, which
refers the industrial strikes illegal. Section 24 of the Industrial Disputes Act.
1947, declares that strikes would be illegal only when they have been
resorted to in contravention of the mandatory provisions of Section 22 and
58
Earnakulum Tea State v. Its Workmen, (1969)(II) LL.J. 407.
Matchwel Electricals (India) v. Chief Commissioner, Delhi & Others (1962)(II) LLJ289. (HC Punjab).
60
In Australia and England, there are certain objects which renders the strike illegal. In Dorcey v. Kansas
(71 L.Ed.248) speaking for the Supreme Court of United States, Brandeis J. Said “A strike may be illegal
because of its purpose, however orderly the manner in which it is carried”.
59
168
those of Section 23 of Act or when they are in defiance of the order made
under sub-Section (3) of Section 10 or (4A) of Section 10 A of the Act.
The provisions of Sections 22 of the Act apply to establishments
which fall in the category of 'public utility service' as defined in Section 2(n)
of the Act. According to Section 2(n) of the Industrial Disputes Act, 1947,
public utility service means:
a) any railway service or any transport service for the carriage if
passengers or goods by air,
b) any section of an industrial establishment, on the working of which the
safety of the establishment or the workmen employed therein depends;
c) any postal, telegraph or telephone service,
d) any industry which supplies power, light or water to the public,
e) any system of public conservancy or sanitation: (f) any industry
specified in the First Schedule which the appropriate Government
may, if satisfied that public emergency or public interest so requires,
by notification in the official Gazette declare to be public utility
service for the purpose of this Act for such period as may be specified
in the notification provided that the period so specified shall not in the
first instance, exceed six months but may by a like notification be
extended from time to time by any period not exceeding six months at
169
any one time if in the opinion of the appropriate Government public
emergency or public interest requires such extension.
A glance at the definition of ‘public utility service' which is
mentioned above, shows that these are key services, essential to the very
life of the State and well being of the community and hence special
formalities have been provided for in the Act before strike in these
services can be legally resorted to. Employees in the above stated
industrial are not completely prohibited by the provisions of this section
to go on strike. What the section 22 of the Act aims at, is placing certain
mandatory obligations subject to the fulfillment of which alone the right
of the workers to go on strike can be exercised. The fulfillment of the
mandatory requirements of the Section is absolutely essential before a
strike can be resorted to in a public utility service.
The Industrial Disputes Act, l947, as regards strikes. makes a clear
distinction between persons employed in a public utility service and those
employed in ordinary industrial occupations. The enactment of Section 22
appears to be for the clear purpose of preventing a handful of public utility
workmen from holding the general public at ransom by indulging in
lightening strikes. Such workmen are not shorn of their right to go on strike
but a qualification is attached there to requiring them to fulfill certain
170
essential conditions as enumerated in the four clauses of Section 22(1) of the
Act.
Before provisions of Section 22 of the Act can be attracted, two things
must be first proved i.e
1. The 'industry'' concerned is a Public Utility Service within the meaning
of Section 2(n) of the Act and
2. That the workmen concerned-are employed in it.
It has been emphatically stated in the case of Swadeshi Industries Ltd.
v. Its Workmen61 that where the establishment is consisting of public utility
as well as non-public utility service, the bonus is upon the employer to show
that concerned workmen who launched strike worked in public utility
section.
Following conditions relating to a valid notice of strike are prescribed
in Section 22(1 )62 of the Act which requires compliance by, the workers in a
public utility service intending to go on strike
(1) notice of strike within six weels before striking, i.e. the notice
should have been given not earlier than six weeks before the date on which
the strike is resorted, and63
61
62
(1960) (II) LL.J. 78.
Section 22(1) of Industrial Disputes Act. 1947.
171
(2) the strike should not be resorted to unless and until a period of 14
days has expired from the date of the notice of strike.
(3) before the expiry of the date of strike specified in the notice of
strike.
The condition contained in sub-Section (i) (b) of Section 22 of the Act
is that the strike shall not be resorted to during the period when the
conciliation proceeding are pending before, a conciliation officer until the
expiry of seven days after the conclusion of the conciliation proceedings. In
case of Ramnager Cane and Sugar Co. Ltd. v. Jatin Chakravorthy and
others64, the Supreme Court while considering the implications of the
provisions of Section 18(3) of the Act held that the interpretation put on
Section 13(3) which aims at giving an extended operation to a settlement has
an important bearing on the meaning of Section 22(b) and, therefore,
lordships observed that if a conciliation proceeding is pending between one
union and the employer and it relates to matters concerning all the
employees, the pendency of such a proceeding would be a bar against all the
employees of the employed in a public utility service to go on a strike. In
Worker of the Industry Colliery, Dhanbad v. Industry Colliery65 the
company submitted its report on 20.10.1949, i.e. well within 14 days from
The World “or” between clauses (a) & (b) of Section 22(I) is used, but in the context in which it is used
actually means “and” because both the conditions mentioned in these two clauses should be fulfilled.
64
AIR (1960) SC 1012.
65
(1953) SCR 428.
63
172
the conciliation proceedings as required by Section 12(6) of the Act. The
report was sent through routine official channel and was received in the
office of Chief Labour Commissioner at New Delhi on 25.10.1949.
However, the report was not passed on to the ministry of Labour which was
also in New Delhi until about 17.11.1949. The employees had no means of
knowing when the report was actually received by the Central Government
which was the 'appropriate Government' or when the period of seven days
after such receipt expired. In these circumstances, the employees went on
strike on 7.11.1949 in accordance with the date specified in their notice. But
in view of the fact that the Chief Labour Commissioner was not the agent of
the Central Government the 'receipt' by him was not the receipt by the
Central Government. Hence, on true construction of the previsions of
Section 22(i) of the Act, it was held by the Supreme Court that the strike was
illegal and the employees must face and bear the consequences of an illegal
strike.
Upon the expiry of this period of seven days from the day the
Government received the conciliation officer's report, the Act permits, no
strike but after that period is over the employees are left free to resort to
collective action by way of strike. It is crystal clear that the time is the
essence of the provisions and the requirement of the relevant provision must
173
be punctually obeyed and carried out if the Act is to operate harmoniously at
all.66
It can thus, succinctly be stated that, any strike started
(a) without giving notice within six weeks before the strike;
(b) without giving notice of 14 days;
(c) before the date specified in the notice; and
(d) during the pendency of any conciliation proceedings and within seven
days after its conclusion would be an illegal strike.
The obvious object for, the above mandatory provision to enable the
authorities to make alternative arrangements for running public utility
service vital to the day-to-day life of the community in the event of a strike.
These conciliations are essential and have to be fulfilled in order to clothe a
strike by public utility service workmen with the mantle of legality.67 To
compensate for the imposition of the condition of notice which prevents
workers in public utility service from organising lightening or hasty strikes,
it is provided that in their case a reference of the dispute to adjudication will
be automatic except where the Government considers that the notice has
66
67
Workers of the Industry Colliery, Dhanbad V. management of Industry Colliry (1953) SCR 428 at p. 437.
Municipal Committee, Pathankot v. I.T., Punjab(1971)(II) LLJ52 at p.55.
174
been frivolously or vexatiously given' or that it would be inexpedient to do
so.
The Essential Service Maintenance Act, 1981, provides in explicit
words that no person employed in any essential service shall go or remain on
strike, and any strike declared or commenced by persons employed in any
such essential service shall be illegal.68 The essential services have been
defined in Section 2(1) (a) of the Act.
In U.K. whether public utility service or non-public utility service, if
due notice of strike is not given, then each workman withdraws his labour in
breach of his respective contract of employment. Hence in U.K. all wildcat69
and official strike are unlawful. In Australia the setting up of
conciliation arbitration machinery has been accompanied by legislation
making strikes illegal. The attitude is that where machinery for the
settlement of disputes by conciliation and arbitration exists, resort to strikes
is unnecessary strikes victoria are illegal strikes in essential service unless
there has been affirmative vote at a secret ballot. New South Wales
Legislation also makes certain strikes illegal which take place before 14 days
notice to the government of an intention to strike.
68
Section 3(4) (a) and (6) of Essential Services maintenance Act 1984.
Wild-cat a kind of unpremeditated strike action which is not taken according to the due process. The
purpose of ‘wild-cat’ strike is to get quick results also known as ‘quckie’ strike.
69
175
Before we proceed to discuss the provisions and requirements of
Section 23 of the Industrial Disputes Act, 1947, it would be better to briefly
discuss as to what the expression in breach of contract occurring in Section
22(1) of the Act. The words in breach of contract refer to a contract of
service or employment. Under the common law, it is ordinarily presumed
that the workers will continually render service according to the terms of the
contract of service if the employer so wishes. Section 22 and the following
Section 23, however provides that the workers can go on strike in spite of
the contract of service quite lawfully, provided they fulfill certain
requirements of the Section and this going in strike will not, in the least,
affect the relationship between the employer and the employees of course
the employer-employee relationship will remain suspended during the period
of strike. That the expression 'breach of contract' in the Section means
breach of contract of service or employment and not a special contract not to
go on strike, is clear from the fact that there must necessarily be a contract of
service, express or implied, between the employee and his employer, special
contract not to go on strike does not constitute an essential part of the
contract so that a contract of service may exist without any such special
contract. If, the legislator really sought to imply by this expression a special
contract not to go on strike it could reasonably be expected to say so in
explicit terms and the mere fact that it does not say so, would go to show
that the expression could not possibly have been intended to mean the
176
breach of any special contract. Apart from this, if the expression 'in breach
of contract' in Section 22 and 23 of the Act really referred to a contract not
to strike, the prohibition in these two sections would be almost meaningless
for there could not possibly be any strike, in breach of contract where there
is no such special contract at all, or in other words where workmen strike
with in the definition of the words in Section 2(q) of the Act but at the same
time there is no special contract not to strikes. Thus, a large part of the evil
which the measure like the Industrial Disputes Act seeks to remedy would,
on this interpretation, be left completely uncovered. It is this, that is, the
definitions of the words 'strike' and 'workmen' in Section 2(q) and 2(S) use
expressions like 'persons employed' and 'any person employed', respectively
and these two suggest that the contract spoken of in Sections 22 and 23 is the
contract of employment and nothing more or less. In the case of Punjab
National Bank Ltd v. Their Workmen70 the Labour Appellate Tribunal while
interpreting the expression in breach of contract observed that the word
contract occurring in Section 23 means contract of service. Just as the
expression in breach of contract occurring in Section 22 refers to a contract
of service or employment, the expression in breach of contract occurring in
Section 23 also refers to a contract of employment
70
(1952) (II) LL.J. 648 at p. 655.
177
Section 23 of the Industrial Disputes Act, 1947, as earlier mentioned,
is a general provision prohibiting strikes and lockout in all industrial and
commercial establishment irrespective of whether they are falling in the
category of public utility service or in other category. Under this Section, the
workmen are prohibited from resorting to strike under the following
circumstances:
(1) during the pendency of conciliation proceedings before a board and
seven days after its conciliation.
(2) during the pendency of proceedings before
i) a Labour Court;
ii) Tribunal; or
iii) National Tribunal It further and down that no strike shall be
declared even after
two months of the conclusion of such
proceedings;
(3) during pendency of proceedings before an Arbitrator appointed under
section 10(3-A) and two months after conclusion of such proceedings;
(4) during the operation of settlement or award in respect of matters
covered by them.
178
A comparison of the provisions of Section 22 and 23 would exhibit
that in matters concerning non-public utility services. Section 23 does not
prohibit strike during conciliation proceedings before a conciliation officer.
However, it prohibits strike where the proceedings are pending before a
Board. Arbitrator, Labour Court, of Tribunal of National Tribunal. Section
22, on the other hand, makes provision for the compulsory service of notice
of strikes, whereas Section 23 makes no such provision, and therefore, the
notice of strike which is mandatory in the case of public utility services, is
not at all imperative in the case of those establishments which are not public
utility services. Whereas in any essential service declared under the Essential
Service Maintenance Act, 1981, the strike declared or commenced shall be
illegal ipso facto it may be stressed here that in the Essential Services
Maintenance Act,1981, that there is no provision such as notice of strike etc.
which is required under Section 22 of the IDA.
Sudden or lightening i.e. wild cat or quickie strikes are not prohibited
by Section 23 IDA so far as the industries which are not fall in the category
of public utility services as defined in Section 2(n) of the Industrial Disputes
Act are concerned, provided they do not flout or contravene the requirements
of Section 23 of the Act.
Since Sections 22 and 23 prohibit strikes during the pendency of
conciliation proceedings before a Labour Court, Tribunal National Tribunal
179
and Section 33 prohibits changes, in the conditions of service during the
pendency of the a fore mentioned proceedings, it was found necessary to
define the starting and the concluding points of time of these proceedings.
Section 20 was enacted for this purpose. Section 20(1) lays down that the
conciliation proceedings are deemed to have commenceced in the case of
public utility when a notice of strike as required by Section 22 has been
received by the conciliation officer or in the case of proceedings before a
conciliation Board, on the date on which the dispute is referred to such
Board of conciliation, though nowhere it is mentioned as to when the
conciliation proceedings will be deemed to have commenced in the case of
those industries which do not fall in the category of public utility services as
defined in Section 2(n). It can, however, be presumed that the date on which
the conciliation officer gives notice of his intention to conciliation would
naturally be the date of commencement of the conciliation proceedings.
Section 20(2) declares that a conciliation proceedings shall be deemed to
have concluded when a settlement is reached before the conciliation officer
and the same is enshrined on the memorandum of settlement duly signed by
the parties concerned with the dispute or where if no settlement is arrived at
the failure report of the conciliation officer is received by the appropriate
Government as defined in Section 2(A) or in the case of conciliation
proceedings before a Board of Conciliation when the report of the Board is
published under section 17 of the Act or in the case of reference under
180
Section'10 when such reference is made to a Court Labour Court, Tribunal or
National Tribunal. Sub-Section (3) of the 20 deals with starting point and
conclusion of proceedings before Arbitrator appointed under Section 10(A),
or before a Labour Court or Tribunal. It enacts that proceedings before any
of such authorities shall be deemed to have commenced on the date of
reference of the dispute to arbitration or adjudication as the case may be.
This Sub-Section also lays down that the point of time when such proceeding
are to be deemed to have concluded is the date on which the award becomes
enforceable under Section 17(A) of the Act.
In Associated Cement Companies Ltd. v. Their workmen.71 It was
observed by the Labour Appellate Tribunal that the proceedings before he
Tribunal commence the moment the order of reference is made by the
appropriate Government whether it reaches the tribunal concerned or not. It
was further observed that the strike would be illegal if resorted to after the
passing of the order of reference by the appropriate Government even though
it may not have reached the Tribunal. Section 22(2) has been strictly
construed in the case of Workers of Industry Colliery v. Management of
Industry colliery72 wherein the Supreme Court observed that although
factually the conciliation proceedings terminate when a settlement is arrived
at before the conciliation officer or when h is found that no settlement can be
71
72
(1953) (II) LL.J. 369.
(1953) SCR 428.
181
arrived at, the Act by a legal fiction, prolongs the conciliation proceedings
until the actual receipt of the report by the appropriate Government and goes
on to provide that the appropriate Government must have seven days time to
consider what further steps it would take under the Act. Up to the expiry of
the period of seven days, the Act permits no strike but after the period is
over, the employees are left free to resort to collective action by way of a
strike.
A token strike also should not resorted to without first moving the
conciliation authorities and in any case, it should not be for more than one
day. When the workmen concerned went on a token strike for a period of
three days without intimating the conciliation officer, it was held by the
Supreme Court that even if the strike resorted to was a token strike and
purely sympathetic in nature, it should not have continued for such along
period as three days. If the workmen straightaway resorted to the token strike
of three days, it would not entitle them to the wages for the period of lock
out if declared by the management by way of retaliation even though the
lock out declared as a counter measure lacked justification.73
The bar against strike during the pendency of conciliation proceedings
before a Board and adjudication proceedings prescribed under clauses (a)
and (b) of this section is mandatory. It is to be noted that the words which
73
Northern Dooars Tea Ltd.v. Workmen of Dem Dima Tea Estate, (1964) (I) LL.J.436.
182
occur at the end of clause(c) viz in respect of the matter covered by the
settlement of award do not occur in clauses (a) arid (b) and the meaning of
these words cannot be imported while applying these two clauses.
Whereas strike is permitted on matters not covered by a settlement or
award by clause (c) of Section 23, no strike can be resorted to during the
proceedings before a Board or during the adjudication proceedings before a
Labour Court, Tribunal or National Tribunal or Arbitration proceedings
before an arbitrator under Section 10-A of the Act. In Swamy Oil Mills v.
Their Workers74 case the settlement provided that the union and the workers
undertake to completely co-operate with the management, to work in a
disciplined and amicable way and that matters concerning industrial disputes
would be reported in the first instance to the Labour Officessor to the
commission of Labour and no matter touching such disputes would be
reported to the police. While this settlement was in force, the workers went
on strike as the management did not satisfy some of their demands. The
Tribunal held that neither of the above terms made any reference to the
workers, right to strike when they were dissatisfied with the management
terms in any respect. In this view of the matter, the Tribunal held that there
had been no breach of any matter covered by any settlement in operation
between the parties and hence the strike was not hit by Section 23 (c) of the
74
(1953)(II) LL.J. 785.
183
Act. A breach of a standing order simpliciter will not render the strike
illegal.
Where the assurance given by the workmen to the Labour
Commissioner that they would not resort to strike and adopt all
constitutional means to get their grievances redressed, it neither amounted to
be contract nor a matter covered by the settlement and there for the strike by
workmen after such settlement would not attract section 23(c) of the Act.75
When the workmen have collectively made a number of demands and even if
one of the demands is in contravention of Section 23(c) of the Act, the whole
strike to which they may resort to enforce the compliance with those
demands would be illegal because in such a case it would not be possible to
know which of the several demands made by, them prompted them on the
strike move.76
The prohibition against strike under Section 23(c) does not extend
beyond the period for which the Award or settlement is in, force. The
Supreme Court in the case of South Indian Bank Ltd. v. Chakka held that so
long as the award remains in operation under Section 19(3), Section 23(c)
stands in, the way of any strike by the workmen in respect of any matter
covered by the award. After the period of operation of an award or
75
Ballapur Collieries v. C.G.I.T. Dhanbad,AIR (1972) SC 1216.
The Management of New Jamehari Khas Collery v. Chairman Central Govt. Industrial Tribunal,
Dhanbad – AIR (1960) Patna 542.
76
184
settlement has expired. under Section 19(3) and 19(2) respectively, the
award or the settlement may continue to bind the parties by virtue of the
other provisions77 of the Act but during such period of binding effect,
Section 23(c) has no application.
while making a distinction between section23(c) and section 29 of the
Act, it is to be noted that section 23(c) envisages a strike in respect of matter
covered by a settlement and section 29 deals with a strike in breach of a
settlement and lays down the penalty for a person not necessarily a
workmen, who commits breach of a term, of a settlement which his binding
under the Act. A strike in breach of a contract during the operation of a
settlement and in respect of a matter covered by the settlement comes under
Section 23(c) and is illegal under Section 24 of the Act. Whereas
commencing a strike or acting in furtherance of it in breach of a settlement
binding on the workmen who so commence it or act in its furtherance, is an
offence punishable under Section 29 of the Act. Where one of the clause of
settlement arrived at between the management and association of work men
before the conciliation officer provided that neither the association nor the
management would resort to any direct action such as strike or lockout
without giving to the other a four days notice and in violation of this clause,
the workmen during the operation of the settlement went on strike on the
77
See. 19(2) & 19(6) of Industrial Disputes Act. 1947.
185
question of suspension of one of the workers pending a domestic enquiry, it
was held that the strike was in connection with a matter not covered by the
settlement and as such the strike was not illegal under section 24 read with
Section 23(c) of the Act. However, the strike was held to be in contravention
of the clause of the settlement forbidding strike without notice, because
settlement was binding on workmen and in operation at the time strike was
illegal and thus punishable under Section 29.78
It may be pointed out that the words ‘in respect of any of the matters
covered by the settlement or award’ have been deliberately inserted in clause
(c) of Section23 to limit its operation. Section 23(c), draws a clear distinction
between strikes or lockouts on matters in respect of which an award or
settlement has been made and strikes or lockouts connected with matters not
covered by any award or settlement. However it is to be noticed that no such
distinction is made in clause (a) and (b) of Section 23 of the Act. Clauses (a)
and (b) of that Section forbid workmen striking or any employer locking-out
his employment during the pendency of conciliation proceedings before a
Tribunal and two month after the conclusion of such proceedings.
In U.K., the major problem in the illegality of strike action is whether
or not the strike is in breach of contract. Most of the tortious liabilities which
78
Workmen of the Motor Industries Co. Ltd. v. Management of Motor Industries and another, AIR (1969)
SC 1280.
186
can be incurred at common law by strike action require an initial unlawful
act and a breach of contract of employment may be considered ‘unlawful’
for such purposes. Also, the tort of inducing a breach of contract by
definition requires an initial breach of contract.79 In Australia, the common
Wealth System, covered by the Commonwealth Conciliation and Arbitration
Act of 1904 since amended many times, provides for arbitral tribunal to
insert 'no-strike' clauses into awards. In Australia also, if a strike is resorted
to when no strike clause of the award is in operation, it becomes illegal and
invites possible penal sanctions and fines.
Under section 10(3) and section 10-a(4a) of the industrial disputes act,
1947, appropriate government is empowered to prohibit the continuance of
strike, the effect of these sub-sections is that even though a strike when
commenced was legal, it would become illegal if continued after the
prohibitory order under it has been made. The pre-conditions to the exercise
of the power by the appropriate Government under Sections 10(3) and
10A(4A) are an 'industrial dispute should have been referred to a Board,
Labour Court Tribunal or National Tribunal under Section 10 or Arbitrator
under Section 10-A and on the date of the reference, there should be a strike
in existence in connection with such dispute, It may be pointed out that the
appropriate Government has the power to prohibit by order the continuance
79
Foster Ken Strikes & Employment Contracts-36 MLR (1973) 27.5.
187
of such strike only when the two conditions are existing. If a strike is
continued even after an order has been issued by the appropriate Government
under Section 10(3) or Section 10A (4A)of the Act it becomes illegal under
Section 24(1) (ii) of the Industrial Disputes Act 1947. The idea behind this
prohibition is that industrial disputes should be tried in a spirit of amity and
no party should be in a position to coerce the other during the pendency of
such proceedings. It is for this reason that power has been given to the
appropriate Government by Section 10(3) and Section 10A(4A) of the Act in
case of strikes resorted to before the commencement of such proceedings to
prohibit their continuance while the dispute is being adjudicated.80
Worker's right to strike in non-public utility- services arises primarily.
When their demands are not acceded to by the employer. Immediately they
can go on strike as there is no legal restriction which prevents them from
doing so. Then the conciliation and mediation starts. Board is constituted and
if both the efforts fail and need is felt a reference is made to the adjudicator
to adjudicate in to the dispute, this is fantastically working proposition of
law. Weapon of strike cannot be used first and then to resort to other
avenues. As a sound proposition of law the supreme Court has time and
again laid down that the strike as a weapon is of last resort when all avenues
to settle the differences have exhausted.
80
Keventers Karamchand Sangh v. Lt. Governor, Delhi and another, (1971) (II) LL.J. 375 at p. 380.
188
it is noteworthy that a clause like, a strike shall be illegal if it is
commenced or continued only for the reason that the employer has an illegal
change is not present in the Industrial Disputes Act,1947, though enacted in
some state statutes81. The world only occurring in the clause goes with the
word reason, and if the strike is commenced or continued for the only reason
that the employer has made an illegal change, it shall be illegal. Under
Section 40(1) (c) of the central province and barer Industrial Disputes Act,
1947, the management in the working conditions will tantamount to illegal
strike82. Further where some of the workmen refused to receive attendance
cards in order to comply with the card system for marking attendance sought
to be re-introduced by the management and stayed away from their work in
common understanding, their action must be held to amount to 'strike' and
also an 'illegal strike' within the meaning of Section 40(b) and (c) of the
Madhya Pradesh Industrial Disputes Act. The change sought to be
introduced by the management whether legal or illegal is immaterial to the
determination of the question as to the 'illegality of the strike83.
In spite of the fact that these State Acts seem to be more
comprehensive than the Industrial Disputes Act, 1947, there is hardly any
occasion when workers will be in a position to organize a lawful strike under
81
Section 97 (I)(c) of Bombay Industrial Relations Act 1946 Section 40(1) (c) of Central province & Berar
Industrial Disputes Act, 1947.
82
Kevernters karamchan Sangh v. Lt. Governor, Delhi and another, (1971) (KK) LL.J. 375 at p. 380.
83
Indian Hume pine Co. Ltd. v. Rashtriya India Aume pine Sangh & Others,(1957) (II) LL.J. 67.
189
these State Act. The occasion will arise only when the Government fails to
perform its obvious duty of referring a dispute to an industrial court or to a
wage Board.
Where the refusal by the workmen to do additional work imposed
under a rationalization scheme which is illegal by reason of contravention of
Section 3384 will not amount to an illegal strike and the employer has no
right to declare a lockout in such a case. What happened in the case of North
Brook Jute Co. Ltd v. Their Workmen85 was that the employer sought to
effect certain changes in the service conditions of the employees as part of
the rationalization scheme. Since the workers objected to the 'changes, the
matter was referred for adjudication while the dispute was pending at the
adjudication level the employer tried to and did enforce the scheme, so that,
his action not amounted to violation of Section 33 of the Act. The workers
refused to do additional work as required of them under rationalization
scheme enforced by the employer in contravention of the provisions of
Section 33 of the Act and this action of the workers, it was held did not
amount to an illegal strike.
84
Section 33 of IDA no doubt gives the workmen aggrieved by the contravention by the employer of
section 33 the right to apply to the Tribunal for relief, but the existence of this remedy does not mean that
the workmen were bound to work under the altered conditions of service, even though those were in clear
contravention of law.
85
AIR (1960) SC 8793.
190