Right to strike

1. Right to strike under
Industrial Disputes
Act
M.Vishnu
603
IX’Th Semester
NUALS

2. Acknowledgement
I hereby sincerely thank or faculty of Labour laws, Mrs Liji Samuel, who gave
me an opportunity to work on such an important topic. I also thank the library
staff and friends for their help and suggestions.

3. Introduction
Every right has its own duties. More powerful rights have more duties attached to them.
Today, all countries of the world irrespective of whether it is democratic, capitalist or
socialist, give the right to strike to their workers. But this right must be the weapon of last
resort because if this 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 seek foreign investment must have some
safeguard in their 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.
The history of labour struggle is nothing but a continuous demand for a fair return to labour
expressed in varied forms i.e. (a ) Increase in wages, (b) Resistance to decrease in wages, and
(c) grant of allowances and benefits etc. If a labourer wants to achieve these gains
individually, he fails because of his weaker bargaining power, the management with the
better economic background stands in a better position to dictate its terms.
The right to strike has acquired an implied authorization from Articles 23, 24 and 25 of the
Universal Declaration of Human Rights (1948). In India unlike as in 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 is a breach of common economic law. Nowadays, a right
to strike is recognized only to a 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 an 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 with trade unions to give a call to
the workers to go on strike and the state can impose reasonable restrictions. The Supreme
Court has said 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

4. totally different considerations”.1 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.
Industrial disputes act 1947
Under Section 2 (q) of the Industrial disputes act, ‘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.
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 within 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 fulfil 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.
1 All India Bank Employees Association v. I. T.

5. Under this section, a notice of strike is required to be given, only in the case of any public
utility service2
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. Ltd3., 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.
When the blame attaches to both the parties, i.e. employer and the workmen, the burden of
the back wages for the long period that has elapsed between the dates of the end of strike and
the date of the award, ordering their reinstatement, should be divided half and half between
the parties. This was held in Indian General Navigation & Railway Co. Ltd. v. Their
Workmen4
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 Rajasthan. 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. "
The effect of section 22(1)(d) was discussed in ‘Ramnagar Cane & Sugar Co, v. Jatin Chalin’
5It was said “The effect of section 22(1)(d) is clear. If a strike is declared in a public utility
user during the pendency of a conciliation proceeding it is illegal. Under the construction the
said provision, if a conciliation proceeding is pending between a union and (employer and it
relates to matters concerning all the employees of the employer, pendency of the said
conciliation proceeding would be a bar against all the employee of the employer employed in
2 U.P. State Bridge Corp. Ltd. v. U.P. Rajya Setu Nigam Sa
Karamchari Sangh, (2004) 4 SCC 268.
3 1989 (58) FLR 915
4 (1960) 1 LLJ 13
5 AIR 1960 SC 1012

6. a public utility service to go on a strike during ‘pendency of the proceeding, under section
22(l)(d)
Section 23 provides general restrictions 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 months 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. A conciliation proceedings before a conciliation
officer is no bar to strike under section 23.
In the Ballarpur Collieries Co. v. H. Merchant6 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.
Section 24 provides that a strike in contravention of section 22 and 23is illegal. This section
states that:
(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
6 AIR 1966 Pat 219

7. 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.
In M/S Burn & Co. Ltd. V, Their Workmen7, 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 8, 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.
In Crompton Greaves Ltd. v. Workmen, 9it 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 Nayak10, 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
7 1960 AIR 896
8 1953 AIR 296
9 AIR 1978 SC 1489
10 1995 AIR 319

8. 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.
Section 26(1) of the act lays down the punishment for participation in an illegal strike. Any
workman who commences, continues or otherwise acts in furtherance of, a strike which is
illegal under this Act, shall be punishable with imprisonment for a term which may extend to
one month, or with fine which may extend to fifty rupees, or with both.
In Rothas Industries v. Its Union11 , the Supreme Court held that the remedy for illegal strike
has to be sought exclusively in section 26(1) of the Act. The award of granting compensation
to employer for loss of business though illegal strike is illegal because such a compensation is
not a dispute within the meaning of section 2(k) of the Act.
Strike as a legal right
The working class has indisputably earned the right to strike as an industrial action after a
long struggle, so much so that the relevant industrial legislation recognizes it as their implied
right. Striking work is integral to the process of wage bargaining in an industrial economy, as
classical political economy and post-Keynesian economics demonstrated long ago in the
analysis of real wage determination.
A worker has no other means of defending her/his real wage other than seeking an increased
money wage. If a capitalist does not grant such an increase, he/she can be forced to come to a
negotiating table by striking workers. This they will do because the earnings of the capitalist
are contingent upon the worker continuing to work. The argument is drawn from Ricardian
and Marxian classical political economy that shows how the employer's income is nothing
other than what is alienated from the worker in the process of production. When workers stop
working, capitalists stop earning. The same applies to government servants as well. When
they strike work, it is not the authorities who suffer a loss of income or disruption of their
11 1976 AIR 425

9. income generating process but the general public. Here, authorities come to a negotiating
table mainly under political pressure or in deference to public opinion.
The right to strike is organically linked with the right to collective bargaining and will
continue to remain an inalienable part of various modes of response/expression by the
working people, wherever the employer-employee relationship exists, whether recognized or
not. The Apex court failed to comprehend this dynamic of the evolution of the right to strike.
In B.R. Singh v. Union of India 12(v), Justice Ahmadi opined that "The Trade Unions with
sufficient membership strength are able to bargain more effectively with the management
than individual workmen. The bargaining strength would be considerably reduced if it is not
permitted to demonstrate by adopting agitational methods such as 'work to rule', 'go-slow',
'absenteeism', 'sit-down strike', and 'strike'. This has been recognized by almost all democratic
countries".
In Gujarat Steel Tubes v. Its Mazdoor Sabha 13(vi), Justice Bhagwati opined that right to
strike is integral of collective bargaining. He further stated that this right is a process
recognized by industrial jurisprudence and supported by social justice. Gujarat Steel Tubes is
a three-judge bench decision and cannot be overruled by the division bench decision of
Rangarajan. In the Rangarajan case the court had no authority to wash out completely the
legal right evolved by judicial legislation.
Strike and the constitution
Demonstrations and processions usually involve three fundamental rights; freedom of speech,
freedom of assembly, and freedom of movement. Many a times the question arose before the
court that whether the above stated fundamental rights includes the right to strike.
Social functioning of organised societies is based on multiplicity of associations and
organisations. No democracy can function without freedom to form associations and unions.
Political parties, trade unions, social and other organisations are part of democratic
functioning of the society and the government. Article 19(1) (c) guaranteed freedom to form
associations and unions, though reasonable restrictions on the freedom may be imposed in the
interest of integrity and sovereignty of India, public order and morality.
12 1990 AIR
13 1980 AIR 1896

10. In the Indian Constitutional set up the right to strike is not an absolute right but it flows from
the fundamental right to form union and is subject to reasonable restrictions. The question,
whether the right to strike is a fundamental right came up for consideration in All India Bank
Employees' Association v. National Industrial Tribunal14, where the Supreme Court observed:
"Even a very liberal interpretation of sub-clause (c) of clause (1) of Article 19 cannot lead to
the conclusion that the trade unions have a guaranteed right to strike either as part of
collective bargaining or otherwise......The right to strike or the 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." The Honourable Supreme Court also
specifically held that even very liberal interpretation of sub-clause (C) of clause (1) of Article
19 cannot lead to the conclusion that trade unions have a guaranteed right to an effective
collective bargaining or to strike, either as part of collective bargaining or otherwise.
The Court also later held that a perusal of Article 19(1) (a) shows that there is no
fundamental right to strike15
The relevant paragraph 17 of Kerala High Court judgment16t reads as under: - "No political
party or organization can claim that it is entitled to paralyze the industry and commerce in the
entire State or nation and is entitled to prevent the citizens not in sympathy with its
viewpoints, from exercising their fundamental rights or from performing their duties for their
own benefit or for the benefit of the State or the nation. Such a claim would be unreasonable
and could not be accepted as a legitimate exercise of a fundamental right by a political party
or those comprising it." The Bench held that no fundamental right exists with the
Government employees to go on strike.17
The right of Government Servants to form associations, hold demonstrations and strikes has
been debated since long. The position is somewhat anomalous. On the one hand, government
servants like industrial workers have the guaranteed fundamental right to form association or
union and to demonstrate for redressal of their grievances, on the other hand, unlike industrial
workers, government servants generally are charged with onerous responsibilities for
operating essential and vital services to the community. As such they are expected to behave
14 AIR 1962 SC 171
15 Radhey Shyam Sharma v. The Post Master General Central Circle, Nagpur, (1964) 7 SCR 403
16 Communist Party of India (M) v. Bharat Kumar and others, (1998) 1 SCC 201
17 T K Rangarajan v. State of Tamilnadu, AIR 2003 SC 3032

11. in a responsible manner without resorting to concerted activity on the ground that strike
would be tantamount to disloyalty to the nation and the public. Government has tried to
regulate strikes by the government servants through the Government Servants Conduct Rules,
Essential Services Maintenance Ordinances, etc. and withdrawal of recognition of union
formed by government servants. Rule 4A of the Central Civil Services Conduct Rules, 1955
reads:
No Government servant shall participate in any demonstration or resort to any strike in
connection with any matter pertaining to his conditions of service.
The Supreme Court in Kameshwar Prasad v. State of Bihar 18held that a person did not lose
his fundamental rights by joining government services. Article 33 of the Constitution
provides that fundamental rights of the members of the Armed Forces, etc. can be abridged or
abrogated by law, thus implying that fundamental rights of other government servants cannot
be abridged. Rule 4A was held to be valid so far as it referred to strikes, and void in so far as
it referred to demonstrations because it violated the fundamental right of speech and
expression. In T.K. Rangrajan v. Government of Tamil Nadu 19the Supreme Court held that
the government employees have no fundamental, legal, moral or equitable right to go on
strike even for a just cause.
Recently, in April, 2011, several members of Indian Commercial Pilots Association went on
strike resulting in six pilots being sacked by State owned Air India thereby derecognizing
their Association. Hon'ble Justice Geeta Mittal of the Delhi High Court asked the 800 pilots
to call off their agitation, barring the pilots from resorting to any kind of demonstration and
asked them to resume work in the larger public interest and declared the strike illegal, as it
was against the commercial interest of the public airline as well as against the larger public
interest.
18 1962 SCR 369
19 AIR 2003 SC 3032.

12. Conclusion
To conclude, strike as a weapon has to be used sparingly for redressal of urgent and pressing
grievances when no other means are available or when available means have failed to resolve
a dispute. Every dispute between an employer and employee has to take into consideration
the third dimension, viz. the interest of the society as a whole. However, the workers must
have the right to strike for the redress of their grievances and they must be paid wages for the
strike period when the strike is legal and justified.
The state of India’s economy calls for more and more production. Thus reckless use of strike
by the workmen creates the risk of unnecessary stoppages. These stoppages create worse
tensions and frictions and may results in the violation of law and order. India cannot tolerate
frequent stoppages of work for frivolous reasons. Above all from the public point of view
they retard the nation’s economic development.
Though, a legitimate strike is a weapon that empowers the disempowered to fight in
oppressive cases when no constructive option is left. It is a weapon of the last resort taken out
of exasperation. It is this weapon, which provides an opportunity for collective bargaining.
The right to strike is not fundamental and absolute right in India in any special and common
law, whether the 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.