Law and You > Constitutional Law > Right to Strike

A strike is a powerful weapon used by trade unions or other associations or workers to put across their demands or grievances by employers or management of industries. Strikes are characterized by the fact that employees temporarily cease to fulfill their contractual obligation to perform work. Non-performance of the work stipulated by the contract of employment constitutes the essence of a strike. During strikes, workers put pressure on the employers by refusal to work till fulfillment of their demands. A strike is usually of a collective nature. A sufficient number of workmen participate in the strike to create enough pressure. Similarly, it is a collective commitment on the part of the employees as a group. This collective commitment on part of employees is the main ingredient of the strike. Each country whether it is democratic, capitalist, socialist, give the right to strike to the workers. But this right must be the weapon of last resort because if this right is misused, it will create a problem in the production and financial profit of the industry. This would ultimatelyaffect the economy of the country.

In India, the right to protest is a fundamental right under Article 19 of the Constitution of India. But right to strike is not a fundamental right but a legal right and with this right statutory restriction is attached in the Industrial Dispute Act, 1947.

In Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166 case, the Supreme Court held that even a very liberal interpretation of article 19 (1) (c) could not lead to the conclusion that the trade unions have a guaranteed fundamental right to strike.

In All India Bank Employees Association v. National Industrial Tribunal, 1962 AIR 171 case, the Supreme Courtheld that right to strike cannot said to be a part of Article 19(1)(c) of the Constitution.

Meaning of Strike:

Section 2 (q) of the Industrial Disputes Act, 1947 defines the term “strike” as

1. Cessation of work by a body of persons employed in any industry acting in combination; or
2. a concerted refusal of any number of persons who are or have been employed in any industry to continue to work or to accept employment; or
3. a refusal under a common understanding of any number of persons who are or have been employed in industry to continue to work or to accept employment.

According to Section 2 (b) of the Maharashtra Essential Services Maintenance Act, 2017 says “strike” means the cessation of work by a body of persons employed in any essential service acting in combination or a concerted refusal or a refusal under a common understanding of any number of persons who are or have been so employed, to continue to work or to accept employment, and includes,:-

(i) refusal to work overtime, where such work is necessary for the maintenance of an essential service;

(ii) any other conduct, which is likely to result in, or results in, cessation or substantial retardation of work in any essential service.

In Northbrook Jute Co. Ltd. V. Their Workmen (1960, I LLJ 580 SC) case, the Court held that when workers are not bound to do particular work, refusal to do that work does not amount to strike, despite the fact that their refusal is concerted or under a common understanding.

In Buckingham and Camatic Co. Ltd. v, Certain workmen, (1953, I LLJ 181 SC) case, the Court held that once there is a cessation of work as aforesaid, the mode of the duration of stoppage is immaterial and of no consequence.

Foundation of Right to Strike:

In India, the right to strike is not expressly recognized in the constitution of India. This is not an absolute right as it branches from the Article 19 of the constitution which grants the fundamental rights. Article 19 states that All citizens shall have the right to:

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India;

(f) to practice any profession, or to carry on any occupation, trade or business

The rights prescribed under subclauses

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

of Clause (1) of Article 19 creates foundation for the Right of Strike

Right to Strike Under International Conventions:

• Right to strike has been recognised by the conventions (Particularly Convention 89) of the International Labour Organization (ILO). By virtue of being a member of the ILO, India is under obligation to satisfy at least the fundamental rights promoted by the Conventions, irrespective of it having ratified them or not.
• Article 8 (1) (d) of the International Covenant of Economic, Social and Cultural Rights (ICESCR) provides that the States Parties to the Covenant shall undertake to ensure: “the right to strike, provided that it is exercised in conformity with the laws of the particular country. Article 2 (1) of the Covenant provides: “Each State Party to the present Covenant undertakes to take steps, … with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures”.

India is a signatory to the Covenant and is therefore bound under Article 2 (1) to provide for the right to strike as enshrined in Article 8 (1) (d), through legislative measures or by other appropriate means. Thus, the domestic laws mentioned below are the by-products of the international obligations and cannot be read casually.

Statutory Provisions:

Indian Trade Union Act, 1926:

The Trade Union Act, 1926, was the first provision that gave limited rights to strike by legalizing certain activities. The Trade Unions Act was enacted with the objective of providing for the registration of trade unions and verification of the membership of trade unions registered so that they may acquire a legal and corporate status.

Objects of Trade Unions:

• To Ensure Security of Workers: Security of workers involves continued employment of workers, prevent retrenchment, lay off or lock-outs. Restrict the dismissal or discharge and VRS.
• To Obtain Better Economic Return: Obtaining better economic returns involves wages hike at periodic intervals, bonus at a higher rate, other admissible benefits, and allowances, subsidized canteen, and transport facilities.
• To Secure Power to Influence Management: Securing power to influence the management involves workers’ collective bargaining, participation in management, decision making, the role of the union in policy decisions affecting workers, and staff members.
• To Secure Power to Influence Government: Securing power to influence government involves influence on government to pass labour legislation which improves working conditions, safety, welfare, security and retirement benefits of workers and their dependents, seek redressal of grievances as and when needed.

Functions of Trade Unions:

• To secure fair wages for workers.
• To safeguard the security of tenure and improve conditions of service.
• To improve working and living conditions.
• To offer responsive co-operation in improving levels of production and productivity, discipline and high standards of quality thus improving employer-employee relations.
• To work for collective bargaining.
• To enlarge opportunities for promotion and training.
• To provide for educational, cultural and recreational facilities.
• To promote the identity of interests of workers with their industry.
• To promote individual and collective welfare.

Industrial Disputes Act, 1947:

The Industrial Disputes Act was enacted to provide machinery and forum for the settlement of such conflicting and seemingly irreconcilable interests without disturbing the peace and the harmony in industry. The Act provides social justice to both employees and employers.

Objectives of Act:

On the basis of various judgments given from time to time by the supreme court, the principal objective  of the act may be stated as below:

1. to make provision for the investigation and settlement of industrial disputes and for certain other purposes.
2. To ensure social justice to both employers and employees and advance the progress of the industry by bringing about harmony and cordial relationship between the parties.
3. To provide machinery for settling disputes arising between the capital and the labour by peaceful methods and through the machinery of conciliation, arbitration and if necessary, by approaching the tribunals constituted under the act.
4. To promote measures for securing and preserving amity and good relations between the employer and workmen.
5. To enable workmen to achieve their legitimate demands by means of the legitimate weapon of strikes, and thus promote collective bargaining.
6. To prevent illegal strikes and lockouts.
7. To provide relief to workmen in cases of layoff, retrenchment, and closure.
8. To enable the State to play a constructive role in employer workmen relationship. Thus the concept of Welfare State is maintained.

A workman includes any person (including an apprentice) employed in an industry to do manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward.  It excludes those employed in the Army, Navy, Air Force and in the police service, in managerial or administrative capacity.  Industry means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen.

Sections 22 and 23 of the Act lays down the procedures of going to strike and any deviation from the provisions stated here makes the strike ‘illegal’ in the eyes of law. Section 24 of the Act defines and differentiates between a legal strike and an illegal strike. It states that an illegal strike is one which breaches the procedure of strike as mentioned in Sections 22 and 23.

Legal Strike:

Section 22(1) of The Industrial Disputes Act, 1947, states the prohibitions on right to strike. It states that no individual employed in public utility service shall go on strike in breach of contract

a) Without giving notice of strike to the employer six weeks prior to the strike; or

b) Within two weeks of giving such notice; or

c) Before the expiry date of strike specified in any such notice; or

d) During the pendency of conciliation proceedings before the concerned officer.

It is noteworthy that these provisions do not in any way forbid the workforce to strike but merely requires the fulfilment of the aforementioned conditions. Moreover, these preconditions are applicable to public utility services only. An exception to the above provisions is that if a lockout is already in place then the need for notice is not essential for the workers to resort to strike.

In Mineral Miners’ Union v. Kudremukh Iron Ore Core Ltd., ILR 1988 KAR 2878 case, the Court held that the proposed date to go on a strike should be specifically mentioned in the notice as it is a mandatory provision under Section 22 of IDA, 1947.

In Sadul Textile Mills Ltd. v. Workmen of Sadul Textile Mills AIR 1958 Raj 202 case, where some workmen struck work in protest against lay off and transfer to another shift without prior notice of four days. The learned justice opined that a lightning strike cannot be legal as no notice was provided and therefore, each worker involved in it was declared guilty.

General Prohibition of Strike:

Section 23 of the Industrial Disputes Act states provisions of general restrictions of going on strike in the following cases:

a) If the conciliation proceeding is pending before a board and till the expiration of one week after the conclusion of such proceedings;

b) During the pendency of a case before National Tribunal, Tribunal or Labour Court and two months after the conclusion of the proceedings.

c) If a notification is pending under sub-section 3 (a) of Section 10A of the Act; that may have been issued,

d) During the period covering award or settlement which is in force in any of the matter covered under it.

It is interesting to note here that an ongoing conciliation proceeding before a conciliation officer is not a deterrent in going on strike.

In Ballarpur Collieries vs H. Merchant, AIR 1966 Pat 219 case, the Patna High court held that Section 23 was not applicable to the strike declared during the pendency period.

Illegal Strike:

Section 24 of the Industrial Disputes Act, 1947, deals exclusively with the illegality of a strike. Any violation or breach of Sections 22 and 23 results in the strike becoming illegal. A strike or lockout shall be deemed to be illegal if,

• It is declared or commenced in breach of Section 22 and 23; or
• It is continued in violation of an order made under sub-section (3) of Section 10; or
• It is continued in contravention of an order made under sub-section (4-A) of Section 10-A.

If an industrial dispute exists at the time of being referred to the Tribunal, National Tribunal, an arbitrator, a board or a Labour Court; then the continued strike shall not be deemed to be illegal. But a strike shall be declared illegal if its commencement was in breach to the provisions of the Act. A strike shall not be deemed illegal if it was declared in response to an illegal lockout.

Penalty for Illegal Strikes and Lockouts:

Section 26 of the Industrial Disputes Act, 1947, prescribes the penalties that shall be awarded to all those who commence and participate in illegal strikes.

In Punjab National Bank v. Their Employees, AIR 1960 SC 160 case, the Supreme Court held that the employer may adopt legitimate and effective methods in order to stop the entry of employees into the premises, or force them to vacate it, if they are taking part in the illegal strike. The authorities may also begin an enquiry or suspend the wrong doers based on the provisions in the Act.

In M/S Burn & Co. Ltd. v. their workmen, AIR 1960 SC 896 case, The Supreme Court held that if a strike is illegal the quantum of punishment shall be decided based on the practical importance, for example those participating in violence while striking shall fetch harsher punishment in comparison to those going for a peaceful strike.

In Crompton Greaves Ltd. v. their Workmen, AIR 1978 SC 1489 case, the Supreme Court held that the question of entitlement of wages during the strike period depends on the legality of the strike. If it is a legal strike then it shall be awarded but the justification of it will depend on other related factors too. If the strike is legal but the strikers resorted to violence or sabotage then they shall be deprived of the wages.

In Bank of India v. T. S. Kelawala, 1990 SCR (3) 214 case, where the employer’s appeal was allowed by the court and it further stated that the legality or illegality of the strike shall be of no consequence. The employer shall be entitled to the deduction of wages especially if it was a mass strike. This shall be applicable even if the service rules did not have any specific mention regarding this. The quantum of deduction shall be decided after going through the facts of each case.

In Rohtas Industries v. It’s Union, AIR 1976 SC 425 case, the Supreme Court clarified that in case of an illegal strike also the employer is not entitled to compensation for the losses. This is so because no such provision exists in Section 26 of the Industries Disputes Act, 1947.

Other Important Case Laws:

In T.K Rangarajan vs. Government of Tamil Nadu, (2003) 6 SCC 581 case, where the Tamil Nadu Government terminated the services of over 2 lakh employees who were striking. It also arrested and put them behind bars for the same reason. They filed a writ petition under Article 226 in the High Court of Madras, challenging the action of the Government. The single bench passed an interim order directing the state government to suspend the dismissal of the employees until further order and after a proper inquiry. Then the state government filed the writ appeal, challenging the interim order. The writ petition filed by the government employees challenged the validity of the Tamil Nadu Essential Services Maintenance Act, 2002 and Tamil Nadu Ordinance no. 3 of 2003. Then the division bench of the High Court set aside the order of the single bench and held that the employee’s petition was not maintainable and concluded by referring to the case of L Chandra Kumar vs. Union of India that employees shall approach firstthe administrative tribunal. It was stated in the court that the employees who were arrested were mainly clerks and subordinate staff and their pathetic conditions were also revealed. The court further directed to release them on bail. Then again, writ petitions were filed in the Supreme Court under Article 32 and Article 226 challenging the order of the High Court. The Supreme Court held that the government employees do not have a statutory or fundamental right to strike as there is no law regarding it and also according to Tamil Nadu Essential Services Maintenance Act they are prohibited to go on a strike.

Conclusion:

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

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