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Introduction - Every right comes with its own duties. Most
powerful rights have more duties attached to them. Today, in each
country of globe whether it is democratic, capitalist, socialist,
give 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 ultimately affect the economy of the country.
Today, most of the countries, especially India, are dependent upon
foreign investment and under these circumstances it is necessary
that countries who seeks foreign investment must keep some
safeguard in there respective industrial laws so that there will
be no misuse of right of strike. In India, 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.
Position in India
In India unlike America right to strike is not expressly
recognized by the law. The trade union Act, 1926 for the first
time provided limited right to strike by legalizing certain
activities of a registered trade union in furtherance of a trade
dispute which otherwise breach of common economic law. Now days a
right to strike is recognized only to limited extent permissible
under the limits laid down by the law itself, as a legitimate
weapon of Trade Unions.
The right to strike in the Indian constitution set up is not
absolute right but it flow 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. In the All India Bank
Employees Association v. I. T. , the Supreme Court held,
"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."
Thus, there is a guaranteed fundamental right to form association
or Labour unions but there is no fundamental right to go on
strike. Under the Industrial Dispute Act, 1947 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.
Provision
of valid strike under the Industrial Dispute Act, 1947-
Section 2(q) of said Act defines the term strike, it says,
"strike" means a cassation 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 accept
employment. Whenever employees want to go on strike they have to
follow the procedure provided by the Act otherwise there strike
deemed to be an illegal strike. Section 22(1) of the Industrial
Dispute Act, 1947 put certain prohibitions on the right to strike.
It provides that no person employed in public utility service
shall go on strike in breach of contract:
(a) Without giving to employer notice of strike with in six weeks
before striking; or
(b) Within fourteen days of giving such notice; or
(c) Before the expiry of the date of strike specified in any such
notice as aforesaid; or
(d) During the pendency of any conciliation proceedings before a
conciliation officer and seven days after the conclusion of such
proceedings.
It is to be noted that these provisions do not prohibit the
workmen from going on strike but require them to fulfill the
condition before going on strike. Further these provisions apply
to a public utility service only. The Industrial Dispute Act, 1947
does not specifically mention as to who goes on strike. However,
the definition of strike itself suggests that the strikers must be
persons, employed in any industry to do work.
Notice of strike
Notice to strike within six weeks before striking is not necessary
where there is already lockout in existence. In mineral
Miner Union vs. Kudremukh Iron Ore Co. Ltd., it was held
that the provisions of section 22 are mandatory and the date on
which the workmen proposed to go on strike should be specified in
the notice. If meanwhile the date of strike specified in the
notice of strike expires, workmen have to give fresh notice. It
may be noted that if a lock out is already in existence and
employees want to resort to strike, it is not necessary to give
notice as is otherwise required. In Sadual textile Mills v.
Their workmen certain workmen struck work as a protest
against the lay-off and the transfer of some workmen from one
shift to another without giving four days notice as required by
standing order 23. On these grounds a question arose whether the
strike was justified. The industrial tribunal answered in
affirmative. Against this a writ petition was preferred in the
High Court of Rajasthen. Reversing the decision of the Tribunal
Justice Wanchoo observed:
" ....We are of opinion that what is generally known as a
lightning strike like this take place without notice..... And each
worker striking ......(is) guilty of misconduct under the standing
orders ........and liable to be summarily dismissed.....(as).....
the strike cannot be justified at all. "
General prohibition of strike-
The provisions of section 23 are general in nature. It imposes
general restrications on declaring strike in breach of contract in
the both public as well as non- public utility services in the
following circumstances mainly: -
(a) During the pendency of conciliation proceedings before
a board and till the expiry of 7 days after the conclusion of such
proceedings;
(b) During the pendency and 2 month's after the conclusion
of proceedings before a Labour court, Tribunal or National
Tribunal;
(c) During the pendency and 2 months after the conclusion
of arbitrator, when a notification has been issued under sub-
section 3 (a) of section 10 A;
(d) During any period in which a settlement or award is in
operation in respect of any of the matter covered by the
settlement or award.
The principal
object of this section seems to ensure a peaceful atmosphere to
enable a conciliation or adjudication or arbitration proceeding to
go on smoothly. This section because of its general nature of
prohibition covers all strikes irrespective of the subject matter
of the dispute pending before the authorities. It is noteworthy
that a conciliation proceedings before a conciliation officer is
no bar to strike under section 23.
In the Ballarpur Collieries Co. v. H. Merchant
it was held that where in a pending reference neither the employer
nor the workmen were taking any part, it was held that section 23
has no application to the strike declared during the pendency of
such reference.
Illegal
Strike-
Section 24 provides that a strike in contravention of section 22
and 23is illegal. This section is reproduced below:
(1) A strike or a lockout shall be illegal if,
(i) It is commenced or declared in contravention of section 22 or
section 23; or
(ii) It is continued on contravention of an order made under sub
section (3) of section 10 or sub section (4-A) of section 10-A.
(2) Where a strike or lockout in pursuance of an industrial
dispute has already commenced and is in existence all the time of
the reference of the dispute to a board, an arbitrator, a Labour
court, Tribunal or National Tribunal, the continuance of such
strike or lockout shall not be deemed to be illegal;, provided
that such strike or lockout was not at its commencement in
contravention of the provision of this Act or the continuance
thereof was not prohibited under sub section (3) of section 10 or
sub section (4-A) of 10-A.
(3) A strike declared in the consequence of an illegal
lockout shall not be deemed to be illegal.
Consequence of illegal Strike-
Dismissal of workmen-
In M/S Burn & Co. Ltd. V, Their Workmen , it was
laid down that mere participation in the strike would not justify
suspension or dismissal of workmen. Where the strike was illegal
the Supreme Court held that in case of illegal strike 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 , it was
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. He 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.
Wages-
In Cropton Greaves Ltd. v. Workmen, it was held that
in order to entitle the workmen to wages for the period of strike,
the strike should be legal and justified. A strike is legal if it
does not violate any provision of the statute. It cannot be said
to be unjustified unless the reasons for it are entirely perverse
or unreasonable. Whether particular strike is justified or not is
a question of fact, which has to be judged in the light of the
fact and circumstances of each case. The use of force, coercion,
violence or acts of sabotage resorted to by the workmen during the
strike period which was legal and justified would disentitle them
to wages for strike period.
The constitutional bench in Syndicate Bank v. K. Umesh Nayak
decided the matter , the Supreme Court held that a strike may be
illegal if it contravenes the provision of section 22, 23 or 24 of
the Act or of any other law or the terms of employment depending
upon the facts of each case. Similarly, a strike may be justified
or unjustified depending upon several factors such as the service
conditions of the workmen, the nature of demands of the workmen,
the cause led to strike, the urgency of the cause or demands of
the workmen, the reasons for not resorting to the dispute
resolving machinery provided by the Act or the contract of
employment or the service rules provided for a machinery to
resolve the dispute, resort to strike or lock-out as a direct is
prima facie unjustified. This is, particularly so when the
provisions of the law or the contract or the service rules in that
behalf are breached. For then, the action is also illegal.
Right of employer to compensation for loss caused by illegal
strike-
In Rothas Industries v. Its Union , the Supreme
Court held that the remedy for illegal strike has to be sought
exclusively in section 26 of the 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 Act.
Conclusion- The right to strike is not fundamental and
absolute right in India in any special and common law, Whether any
undertaking is industry or not. This is a conditional right only
available after certain pre-condition are fulfilled. If the
constitution maker had intended to confer on the citizen as a
fundamental right the right to go on strike, they should have
expressly said so. On the basis of the assumption that the right
to go on strike has not expressly been conferred under the Article
19(1) (c) of the Constitution. Further his Lordship also referred
to the observation in Corpus Juris Secundum that the right to
strike is a relative right which can be exercised with due regard
to the rights of others. Neither the common law nor the fourteenth
Amendment to the federal constitution confers an absolute right to
strike. it was held in the case that the strike as a weapon has to
be used sparingly for redressal of urgent and pressing grievances
when no means are available or when available means have failed to
resolve it. It has to be resorted to, to compel the other party to
the dispute to see the justness of the demand. It is not to be
utilized to work hardship to the society at large so as to
strengthen the bargaining power. Every dispute between an employer
and employee has to take into consideration the third dimension,
viz. the interest of the society as whole.
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Authored by Vijendra Vikram Singh Paul and can be reached at
:
vikrampaul@legalserviceindia.com
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