LEGALITY AND ILLEGALITY OF STRIKES
Author : Sangeethaa N S
Image Source: Google
“Always treat your employees exactly as you want them to treat your best customers” -Stephen R.Covey.
We all have heard about the word ‘strike’ atleast once whenever we read news related to industries and factories. What does the strike mean? Is strike a fundamental right? Do laborers havethe right to declare strike? If so what is the procedure to go on a strike? To get answers to all these questions we have to look into The Industrial Disputes Act, 1947 to obtain a clear picture of the concept of “Strike”.
What is Strike?
According to section 2(q) of The Industrial Disputes Act,1947 strike means ‘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.’ Therefore, it is very clear that a single person cannot go on a strike and it is conducted by a body of persons with the common intention to achieve something from the employer.
While turning back to the question, whether the strike is a fundamental right or not, we have to look to a famous Supreme Court Judgment[i] where the Court held that even though the right to form associations is guaranteed under Article 19(1)(c) of Constitution to achieve the object of such association, it has to be checked with the exception stated in Article 19(4) which insist about the preservation of public order and morality. And the Supreme Court[ii] has also observed that strike may be used as a weapon by the employees to demonstrate their needs and grievances but we cannot hold a strike to be an absolute right as it is neither approved by law nor by industrial jurisprudence. Meanwhile, we cannot put absolute ban or prohibition on such demonstrations of employees which may touch the character of strike since peaceful demonstrations would fall under the purview of Article 19(1)(a) and Article 19(b)[iii].
It is very important to discuss the landmark case to know the birds-eye view of the Supreme Court in the matter of strike. In T.K.Rangarajan v. Government of Tamil Nadu[iv],the Supreme Court had stated that the employees should not take a strike as machinery to seek redressal for their grievances because most of the strikes are misused for political purposes and it tends to result in commotions and chaos. The Court has also insisted that workers should work hard with honesty so that their efforts wouldn’t go unnoticed by the authorities as well as by the public at large since it might help them better in redressing their grievances than going on strike.
Legality and illegality of strikes
It is nowhere in the Act mentioned the legal strike. But the illegal strike has been discussed in sections 24,25,26,27 and 28 of the Act. And the punishments for commencing illegal strikes, contributing funds to such illegal strikes are also discussed in further provisions of the Act. Section 22 provides certain conditions to the employees which have to be fulfilled before going on a strike. The section[v] reads as follow:
No person employed in a public utility service shall go on strike in breach of contract –
without giving to the employer notice of the strike, as hereinafter provided, within six weeks before striking; or
within fourteen days of giving such notice; or
before the expiry of the date of strike specified in any such notice as aforesaid (or)
During the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.
The general prohibition placed on strikes and lockouts includes that no person shall go on strike if any proceedings before the Conciliation board/Labour Court/Tribunal/Arbitration board is pending or if the subject matter of strike lies within the purview of settlement or award which is already in operation[vi].The Government also has powers to prohibit the continuance of strikes or lockouts by giving an order under section 10(3) and section 10A(4A) of the Act if the dispute has been referred for settlement under such proceedings.
As per section 24 of the Act, any strike or lockout will be considered illegal if it is declared or made out in contravention of section 22 or section 23 or section 10(3) or section 10A(4A).Section 25 puts a prohibition on giving financial assistance to support any illegal strike or lockout.
Hence, we got a clear understanding of the concept of the legality of strikes. Even though legal strikes are not appreciated by law directly, it provides certain exceptions to the employees. A question may arise in our mind - how do legal strikes are considered to be safe than an illegal one? Anyway, both the strikes are not all given statutory or fundamental status. But still, legal strikes enjoy certain advantages as they are not punished with penalties. According to section 26(1),a workman will be punished with imprisonment for upto one month or with a fine of fifty rupees if he takes part in an illegal strike. As per section 27,if any person influences others to take part in an illegal strike then he will be punished with imprisonment upto six months or with a fine (upto thousand rupees) or with both.
As mentioned earlier, if a person provides financial assistance to illegal strike then he shall be punished with imprisonment upto six months or with a fine amount upto one thousand rupees or with both.
The Act clearly emphasized the word “illegal strike” which denotes that these penalties will not be imposed on legal strikes. And not forget to mention that the workmen who participated in an illegal strike may also face the punishment of dismissal or termination of employment if they involve in any sabotage actions or violation of law and order and these disciplinary actions will be taken based on the facts and circumstances of each case.
Whether employees entitled to get wages for the strike period?
Two different views have been taken by the Supreme Court while deciding the complicated question – whether employees who were on strike are entitled to get wages for the strike period or not?
We knew that no person shall get wages for the strike period if the strike is held illegal. But what about the legal strike?In both the cases, Management of Churakulam Tea Estate (P) Ltd v. The Workmen[vii] and Crompton Greaves Ltd v. The Workmen[viii]the Supreme Court held that employees are entitled to get wages if the strike is legal and justified.
But in Bank of India v. T.S.Kelawala[ix]the Court held that employees aren’t entitled to get wages for the strike period even though it is held to be legal and the concept of ‘justified strike’ was not at all raised for discussion.
But as per the industrial jurisprudence, the employees are entitled to get wages for the strike period if the strike is legal and justified. Mere satisfying one of the conditions (either legal or justified) is not enough to get wages and both the conditions should be accomplished with apparent evidence.
Even though the law is not restricting the legal strike, it is not correct to go on a legal strike when the employees have other legal redressal mechanisms. The Government and the Parliament are taking necessary actions from time to time to wipe out all the grievances of employees and it is not at all needed for the employees to commence strikes nowadays. Instead, they can seek the remedy of law through a proper mechanism such as Laboure Court or Tribunal which is also safer and more effective than strike.
1.Do all employees can get wages for the strike period?
Ans: Yes, if they took part in a legal strike and if the object of commencing strike is considered as justified, then all such employees will get wages for the strike period.
2.Is strike a fundamental right?
Ans: No, the strike is not identified as a fundamental right under the Constitution of India but it is considered a weapon by the employees to raise their voice against the employer to obtain their needs and to redress grievances.
[i]All India Bank Employees’ Association v. National Industrial Tribunal, AIR 1962 SC 171. [ii]B.R.Singh v.Union of India, AIR 1990 SC 1. [iii]Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166. [iv]T.K.Rangarajan v. Government of Tamil Nadu, AIR 2003 SC 3032. [v]The Industrial Disputes Act, 1947, S 22(1) [vi]The Industrial Disputes Act,1947, S 23. [vii]Management of Churakulam Tea Estate (P) Ltd v. The Workmen, AIR 1969 SC 998. [viii]Crompton Greaves (P) Ltd v. The Workmen, AIR 1978 SC 1489. [ix]Bank of India v. T.S.Kelawala,(1990) 4 SCC 744.
P.K.Padhi, Labour and Industrial Laws, 47-226 (2nd Edition,2012), PHI Learning Private Ltd, New Delhi. Also read : https://www.lawgicstratum.com/post/labour-law-reforms-2020