Law and You > Labour Laws > The Industrial Relations Code, 2020 > Strike Under the Industrial Relations Code, 2020
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 fulfilment 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.
Definition of “Strike” under the Industrial Relations Code. 2020:
According to Section 2(zk) of the Industrial Relations Code, 2020 “strike” means a cessation of work by a body of persons employed in any industry acting in combination, or a concerted refusal, or a refusal, under a common understanding, of any number of persons who are or have been so employed to continue to work or to accept employment and includes the concerted casual leave on a given day by fifty per cent or more workers employed in an industry;
Ingredients of ‘Strike’:
- There must be cessation of work
- The cessation of work must be by a body of persons employed in any industry acting in combination
- Or there must be a concerted refusal, or a refusal, under a common understanding
- There is no limit on number of persons
- The persons are or have been so employed to continue to work or to accept employment
- It includes the concerted casual leave on a given day by fifty per cent. or more workers
Definition of “strike” under The Maharashtra ESMA, 2017:
The definition of ‘strike’ as laid down in [S. 2(b)] of The Maharashtra Essential Services Maintenance Act, 2017 (Mah. Act No. XVIII of 2018), is an improved version of the definition of the Industrial Relations Code, 2020.
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.
If the decisions given by the Supreme Court are taken into consideration cases are a cessation of work even for a minute also amounts to strike. Sometimes circumstances may warrant the employer to come to the conclusion that the action of the employees amounts to a strike, like a very large number of employees and their representatives have applied for leave for various reasons and refusing to attend work in spite of best efforts made by the officers amount to strike.
Case Laws:
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.
In Punjab National Bank Ltd. v. Their Workmen, 1959, I LLJ 666 SC case, the court held that a pen-down stoppage of work was a strike within the meaning of section 2(q) of the Act.
In Ran Sarup v. Rex, AIR 1949 All. 218 case, the court held that as the cessation of work must necessarily have been effected by a concerted refusal to work or a refusal under common understanding, when two workmen were absent on a particular day, it could not, in the absence of any evidence to establish concerted action, be said that they had gone on strike.
In Raja Bahadur Motilal Poona mills v. Tukaram Piraji Masale, 1956 SCR 939 case, the Court held that a short duration of strike cannot exculpate the participants from the consequences of an illegal strike. In this case, it was also held that “concerted and combination is immaterial”.
In National Textiles Workers’ Union v. Sree Meenakshi Mills Limited, 1951, (2) LLJ 516 case, the Court held that workers may often leave the employment to fulfill some social obligations like attending the funeral of the co-workers, etc. But under such circumstances, the workers at least are expected to consult and obtain the permission of their employer before leaving the workplace. Otherwise, it may amount to strike.
In Sitapur Sugar Works. V. State of Bihar, 1958 Pat. 120 case, the Court held that an actual participation of the employee in the strike is often insisted. Mere witnessing the strike along with crowd may not amount to strike.
In Standard Vacuum oil Company Madras v. Gunaseelan (M.G), 1954 (2) LLJ 656 case, where the workers refused to work on May Day but accepted to compensate the work by working on other holiday was held not to be a strike.
In Bharat Barrel and Drum Mfg., Co. Ltd. v. Their workmen, 1952 (2) LLJ 532 at 536 case, the Court held that in deciding an act of the workmen whether it amounts to strike or not the tribunals should not assume anything from its point of view.
In Mangaram v. Labour Appellate Tribunal, 1957 (1) LLJ 603 (614-615) All (DB) case, the Allahabad High Court held neither demonstration nor delay in starting work amounts to a strike.
In Patiala Cement Co. Ltd. v Certain workmen, 1952 (2) LLJ 57 case, the Court held that workers working in the boiler room may leave the place of employment as the boiler was overheated may burst at any time. Here the action of the workmen may not amount to strike.
The Right of Strike:
It should be noted that it is a fundamental right to form association or Trade Unions but there is no fundamental right to go on strike. The right to strike in the Indian Constitution set up is not absolute right but it flows from the fundamental right to form union. As every other fundamental right is subject to reasonable restrictions, the same is also the case to form trade unions to give a call to the workers to go on strike and the state can impose reasonable restrictions. Under the Industrial Relations Code, 2020, the ground and condition are laid down for the legal strike and if those provisions and conditions are not fulfilled then the strike will be illegal.
In All India Bank Employees Association v. I.T., AIR 1962 SC 171 case, the Supreme Court held that “the right to strike or right to declare lock out may be controlled or restricted by appropriate industrial legislation and the validity of such legislation would have to be tested not with reference to the criteria laid down in clause (4) of article 19 but by totally different considerations.
Types of Strikes:
- General strikes: This strike intended to increase the political pressure in the ruling party by all unions or members in a region or state.
- Sit down or tool down strikes: In such a case, workers hold strikes at the workplace and none of the workers stays absent from duty but they all refuse to work till their demands are fulfilled. This type of strike is generally staged in manufacturing and service establishment.
- Slow down or go slow strikes: It means workers or unions don’t refuse to work but put pressure on industries to get their demand by reducing or restricting the output of the production of industry. This type of strike is generally staged in manufacturing and service establishment.
- Pen down strikes: In such cases employee attend the work but refuse to do any clerical work. This type of strike is generally staged in service, administrative and accounting establishment.
Negative Impacts of Strike:
- Economic Loss is Massive
- Economic Growth Rate is Negatively Impacted
- Brings Hardships for the Employees and Their Families
- Cooperation between employer and employee get destroyed.
Right of Employer:
Right to claim compensation for loss caused by strike:
In Rothas Industries v. Its Union, AIR 1976 SC 425 case, the Supreme Court held that the remedy for illegal strike has to be sought exclusively in Section 26 of the Industrial Disputes Act. The award granting compensation to employer for loss of business though illegal strike is illegal because such compensation is not a dispute within the meaning of section 2(k) of the Industrial Disputes Act.
Dismissal of Workmen:
In M/S Burn & Co. Ltd. v. Their Workmen, AIR 1960 SC 896 case, the Supreme Court held that, mere participation in the strike would not justify suspension or dismissal of workmen, however if the strike was illegal, the only question of practical importance would be the quantum or kind of punishment. To decide the quantum of punishment a clear distinction has to be made between violent strikers and peaceful strikers.
In Punjab National Bank v. Their Employees, AIR 1960 SC 160 case, the Court held that in the case of strike, the employer might bar the entry of the strikers within the premises by adopting effective and legitimate method in that behalf. The employer may call upon employees to vacate, and, on their refusal to do so, take due steps to suspend them from employment, proceed to hold proper inquires according to the standing order and pass proper orders against them subject to the relevant provisions of the Act.
Dismissal on account of misconduct:
In Ram Kishan Iron Foundry, Howrah v. their workmen, 1954 II LLJ (L.A.T.) 372 case, the Court held that 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 the employer will have the right to dismiss the employees.
Right of Employee:
Right to Wages during the Strike Period:
In Crompton Greaves Ltd. v. their Workmen, AIR 1978 SC 1489 case, the Supreme Court stated 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, 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.
Prohibition of Strike:
Under Clause 62 of the Industrial Relations Code, 2020 gives conditions when the strike is prohibited. The conditions are as follows:
- without giving to the employer notice of strike, as hereinafter provided, within sixty days before striking; or
- within fourteen days of giving such notice; or
- before the expiry of the date of strike specified in any such notice; or
- the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings; or
- during the pendency of proceedings before a Tribunal or a National Industrial Tribunal and sixty days, after the conclusion of such proceedings; or
- during the pendency of arbitration proceedings before an arbitrator and sixty days after the conclusion of such proceedings, where a notification has been issued under sub-section (5) of section 42; or
- 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.
Illegal Strike:
According to Clause 63 of the Industrial Relations Code, A strike or lock-out shall be illegal, if it is—
- commenced or declared in contravention of section 62; or
- continued in contravention of an order made under sub-section (7) of section 42.
A lock-out declared in consequence of an illegal strike or a strike declared in consequence of an illegal lock-out shall not be deemed to be illegal.
Where any strike or lock-out declared to be illegal under this section is withdrawn within forty-eight hours of such declaration, such strike or lock-out shall not, for the purposes of this Act, be deemed to be illegal under this Code.
Difference between Strike and Lockout
Strike and a lockout are both types of industrial action, but they are initiated by different parties and have distinct purposes:
| Strike | Lockout |
| Initiated by employees or their representatives, usually a labour union. | Initiated by employers or management. |
| Employees stop working to protest or demand better working conditions, higher wages, benefits, or other employment terms. | An employer prevents employees from working, often to force the union to accept certain terms, prevent a strike, or respond to a strike. |
| A strike is a way for workers to pressure the employer by disrupting normal business operations. | It is a defensive or offensive tactic used to apply pressure on workers to accept the employer’s terms. |
| Strikes are usually legal if they follow the proper procedures, such as giving notice and being sanctioned by a union. The legality can vary based on the country and specific labour laws. | Lockouts can also be legal or illegal depending on the circumstances and local labour laws. |
| Workers in a factory refuse to work to demand better pay and working conditions. | A company shuts down its plant and prevents workers from entering after failed negotiations with the union. |
Difference between Closure and Lockout
| Closure | Lockouts |
| Section 2 (h) of the Industrial Relation Code, 2020 defines ‘Closure’. | Section 2 (u) of the Industrial Relation Code, 2020 defines “Lock-out” of Industrial Disputes Act, 1947 |
| Closure means the permanent closing down of a place of employment or part thereof | Lock-out means the temporary closing of a place of employment. |
| A closure is not a weapon in the hands of the employer. It equally effects on both the employer and employees | It is a weapon in the hands of the employer against his employees. He uses it as a threat. |
| A bona fide closure can never be illegal. | A bona fide lock-out can be illegal if it is violated the provisions of Sec. 24. |
| Closure signifies the final and irrevocable termination of the business itself. | Lock-out signifies the closure of the place of business and not the closure of the business. |
| In the Closure, the relationship between them comes to an end. | In the lock-out, the relationship between employer and employees does not come to an end. |
| The causes for the Closure of industry are permanent or lasting and cannot be cured. | The causes for the lockout in an industry are temporary and can be cured. |
| . Generally, the cause of closure is economical, poor quality of maintenance, poor management, nonavailability of raw material, Government policies, etc. | Generally, the causes of lock-out arise from political, disturbances with trade union leaders, rigid policies of the State, and particularly the economic factors too, etc. |
| Closure cannot be turned into a lockout. | A lock-out may turn into the closure of an industry. |
| Closure of an industry is the last resort. It may be due to economic reasons | Generally, the lock-out is declared as an answer to a Strike. |
Conclusion:
The resort to strike can only be taken when no means are available or when available means have failed to resolve it. However, if the strike is illegal and is resorted to strengthen the bargain power, then the employer has right to take action against the workers or employees who had taken part in the strike. If the employers and managements showed empathy towards the genuine needs of their workmen and in return the workmen too gave full cooperation, then the situation to resort to strikes would not be created. The unions and associations should take an amicable route to get their demands fulfilled by having dialogues with the management. It is rightly said that agreements give better results than arguments.