ALL ABOUT STRIKES IN LABOUR LAW

Introduction
Strikes and lock-outs are the two weapons in the hands of workers and employers
respectively, which they can use to press their viewpoints in the process of collective
bargaining. The Industrial Disputes Act, 1947 does grant an unrestricted right of strike or
lock-out. Under Section 10(3) and Section 10A(4A), the Government empowered to issue
order for prohibiting continuance of strike or lock-out. Sections 22 and 23 make further
provisions restricting the commencement of strikes and lock-outs.


General prohibition of strikes and lock-outs
No workman who is employed in any industrial establishment shall go on strike in breach
of contract and p employer of any such workman shall declare a lock-out:
(a) during the pendency of conciliation proceedings before a Board and seven days the
conclusion of such proceedings;
(b) during the pendency of proceedings before a Labour Court, Tribunal or National
Tribunal and two mon after the conclusion of such proceedings:
(c) during the pendency of arbitration proceedings before an arbitrator and two months
after the conclusion of such proceedings, where a notification has been issued under subsection (3A) o Section 10A; or
(d) during any period in which a settlement or award is in operation, in respect of any of
the matters covered by the settlement or award. (Section 23)


Prohibition of strikes and lock-outs in public utility service
The abovementioned restrictions on strikes and lock-outs are applicable to both utility
services and non-utility services. Section 22 provides for following additional safeguards
for the smooth and uninterrupted running of public utility services and to obviate the
possibility of inconvenience to the general public and society (Stale of Bihar v. Deodar
Jha, AIR 1958).
(1) No person employed in a public utility service shall go on strike in breach of contract.
(a) without giving to the employer notice of strike, as hereinafter provided, within six
weeks before striking, from the date of the notice to the date of strike a period of six weeks
should not have elapsed; or
(b) within 14 days of giving of such notice, a period of 14 days must have elapsed from the
date of notice to the date of strike; or
(c) before the expiry of the date of strike specified in any such notice as aforesaid, i.e., the
date specified in the notice must have expired on the day of striking; or
(d) during the pendency of any conciliation proceedings before a conciliation officer and
seven days after the conciliation of such proceedings.
(2) No employer carrying on any public utility service shall lock-out any of his workmen:
(a) without giving them notice of lock-out as hereinafter provided within six weeks before
locking-out (b) within 14 days of giving such notice; or (c) before the expiry of the date of
lock-out specified in any such notice as aforesaid; or
(d) during the pendency of any conciliation proceedings before a Conciliation Officer and
7 days after the conciliation of such proceedings.


Right to Strike is to be exercised after complying with certain conditions regarding service
of notice and also after exhausting intermediate and salutary remedy of conciliation
proceedings (Dharam Singh Rajput v. Bank of India, Bombay, 1979). The Act nowhere
contemplates that a dispute would come into existence in any particular or specified
manner. For coming into existence of an industrial dispute, a written demand is not a sine
qua non unless of course in the case of public utility service because Section 22 forbids
going on strike without giving a strike notice.


(3) The notice of lock-out or strike under this Section shall not be necessary where there is
already in existence a strike or, as the case may be, lock-out in the public utility service,
but the employer shall send intimation of such lock-out or strike on the day on which it is
declared, to such authority as may be specified by the appropriate Government either
generally or for a particular area or for a particular class of public utility services.
(4) The notice of strike referred to in Section 22(1) shall be given by such number of
persons to such person or persons and in such manner as may be prescribed.
(5) The notice of lock-out referred to in Section 22(2) shall be given in such manner as
may be prescribed.
(6) If on any day an employer receives from any persons employed by him any such
notices as are referred to in sub-section (1) or gives to any persons employed by him any
such notices as are referred to in sub- section (2), he shall within five days thereof report to
the appropriate Government or to such authority as that Government may prescribe the
number of such notices received or given on that day, (Section 22).


Illegal strikes and lock-outs
(1) A strike or lock-out shall be illegal if:
i. It is commenced or declared in contravention of Section 22 or Section 23; or
ii. It is continued in contravention of an order made under Section 10(3)
(2) Where a strike or lock-out in pursuance of an industrial dispute has already
commenced and is in existence at the time of reference of the dispute to a board, an
arbitrator, a Labour court, Tribunal the continuance of such strike or lock-out shall not be
deemed to be illegal, provided that such strike or lock-out was not at its commencement in
contravention of the provisions of this Act or the continuance thereof was not prohibited
under Section 10(3) or Section 10A(4A).
(3) A lock-out declared in consequence of an illegal strike or strike declared in
consequence of an illegal lock-out shall not be deemed to be illegal. (Section 24)
No person shall knowingly expend or apply any money in direct furtherance or support of
any illegal strike or lock-out (Section 25).

Justified and Unjustified Strikes
If strike is in contravention of the above provisions, it is an illegal strike. Since strike is the
essence of collective bargaining, if workers resort to strike to press for their legitimate
rights, then it is justified. Whether strike is justified or unjustified will depend upon the
fairness and reasonableness of the demands of workers.


Thus, if workmen go on strike without contravening statutory requirements, in support of
their demands, the strike will be justified. In the beginning strike was justified but later on
workmen indulged in violence, it will become unjustified.

In the case of Indian General Navigation and Rly Co Ltd. v Their Workmen, (1960),
the Supreme Court held that the law has made a distinction between a strike which is
illegal and one which is not, but it has not made distinction between an illegal strike which
may be said to be justifiable and one which is not justifiable. This distinction is not
warranted by the Act and is wholly misconceived, specially in the case of employees in a
public utility service. Therefore, an illegal strike is always unjustified.

Wages and Strike period
The payment of wages for the strike period will depend upon whether the strike is justified
or unjustified. This also depends upon several factors such as service conditions of
workman, the cause which led to strike, the urgency of cause or demand of workman, the
reason for not resorting to dispute settlement machinery under the Act. No wages are
payable if the strike is illegal or it is unjustified. Further, if the workers indulge in violence,
no wages will be paid even when their strike was legal and justified (Dum Dum
Aluminium Workers Union v. Aluminium Mfg. Co). The workmen must not take any
hasty steps in resorting to strike. They must, first take steps to settle the dispute through
conciliation or adjudication except when the matter is urgent and of serious nature. In the
leading case of Chandramalai Estate v. Workmen, it was observed that when workmen
might well have waited for some time after conciliation efforts had failed, before starting a
strike and in the mean time could have asked the Government to make a reference, the
strike would be unjustified and the workmen would not be entitled to wages for the strike
period.


Dismissal of Workmen and Illegal Strikes
If workers participate in an illegal strike, the employer is within his right to dismiss the
striking workmen on ground of misconduct. For this it is necessary that a proper and
regular domestic enquiry is hold. In the case of Indian General Navigation and Rly. Co.
v. Their Workmen, the Supreme Court laid down the general rule that mere taking part in
an illegal strike without anything further would not necessarily justify the dismissal of all
workmen taking part in the strike and that it was necessary to hold a regular inquiry after
furnishing charge-sheet to each of the workman sought to be dealt with for his participation
in the strike. It was further observed, that allegations of misconduct have been made
against them, those allegations have to be enquired into by charging them with specific
acts of misconduct and giving them an opportunity to defend themselves at the enquiry.
In the case of Express Newspaper (P) Lid. v. Michael Mark, the Supreme Court held
that where the workmen who had participated in an legal strike, did not join their duties
which resulted in their dismissal under the Standing Orders, participation in strike means
that they have abandoned their employment. However, the employer can take disciplinary
action against the employees under the Standing Orders and dismiss them.

Conclusion
Though lockout appears as the employer’s counterpart to strike, in reality the implication
of a lockout on the various stakeholders is very different from that of a strike. The
employer can use a lockout as a strong weapon; at the same time, such a move can harm
the growth prospects of the organization.

Also, the employer does not use lockout in the
same way as the union would use a strike. The union, as an institution, gets affected during
a lockout. This effect is exactly the reverse of the effect of strike on the union. The
government’s role in the case of lockout is very different from that of a strike. The
government would want to ensure that a lockout is stopped at the earliest; the pressure
from its side would be more because of the political ramifications of a lockout. Also, it is
in the employer’s interest to call a lockout whenever an illegal strike is declared. The
lockout does not necessary mean that all production is stopped; however it ensures several
benefits to the employer

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.