CHAPTER - V THE LEGALITY OF STRIKE - Shodhgangashodhganga.inflibnet.ac.in/bitstream/10603/10436/12/12_chapter 5.pdf · 140 objects of a trade union. The political considerations cannot

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CHAPTER - V

THE LEGALITY OF STRIKE

Strikes are not per se illegal. The legality or illegality of a strike must

depend on the means by it is enforced and on its objectives. Lord Shaw said in

Russel v Amal Society of Carpenters and Justice.1 "Strikes may be perfectly

legal or they may be illegal. It depends on a nature and mode of constructed

cessation of labour. If this concerted cessation is in breach of contract then it

could not be said to be within law any more than could a breach of contract by

a single workman. If on the other hand, a strike be cessation of labour on the

expiring of contract. There is no necessary illegality there any more than in

the case of an individual workmen completing their bargain and choosing to

remain idle. But of course, in this later case, the concerted cessation of a

labour may be for the sole of deliberate off obvious purpose of the refraining

tread in which case different legal consequences might ensure."

It was held in the case of “Cox and Kings Limited v. Their Employees'2

that a strike a considered justified if it is in connection with a current labour

dispute or directed against an unfair labour practice of the employer. It was

also held justified when undertaken only after remedies provided in the

statutory machinery of the Industrial Disputes Act have proved futile in the

1 (1910) I KBP 506. 2 (1949) LLJ 796 (I.T.).

139

case of Chandramouli Estates v. Its Workmen,3 likewise if the employer

discharges its union officers, or causes a union official to be assaulted. The

resultant strike is considered to be justified. Refusal to recognise a union or to

consult it are considered valid reasons for a strike. In the case of 'Bihar Fire

Works and Potteries Workers Union v. Bihar Fire Works and Potteries,'4 it

was held that it is not proper to judge from the result of the adjudication of the

demands whether a strike was not justified or not it can't be said to be

unjustified unless the reasons for it are also lately preserve and unsustainable.

Union is such it does not appeal to an ordinary common man, the strike is held

to be unjustified. When strike is held to be justified, it is not means that there

is complete justification for strike. The justification can only be relative

justification when the workers have been reasons to entertain a bonfide

unrepressed grievance which under circumstances in which they happen to be

placed is found to be such as to make them feel that the only course left to

them to redress the grievance effectively and without undue delay is stoppage

of work. A strike to be justified should be launched or the economic demands.

It was held in the case of 'Swadesh Industries Ltd v Their Workmen',5the first

and foremost requirement of a justified strike is that it should be launched

only for economic demands of workmen like basic pay, dearness allowance,

bonus, provident fund, gratuity, leave and holidays etc., which are the primary

3 (1960) KK LLJ 243-246. 4 (1953) I LLJ L.AT. (Cal.) 49 at 52 5 (1960) AIR SC 1250

140

objects of a trade union. The political considerations cannot supply and good

answer to legal obligations. The economic demands should be prima facie

reasonable. The demands should not be raised frivolously or on ulterior

reasons. Even some of employees are discharged. The workers cannot go on

strike in haste. The workers cannot insist that a particular employee should

work with particular batch of workmen and their demands can't justify the

strike as was held in the case of 'Sri Kanyakaparameswari Groundnut Oil Mils

contractor's company v their workmen" by the industrial tribunal.6 In the case

of 'Dabir (Et. S.K. Burman) Pvt. Ltd., v Their Workmen,7 it was held that

justification of strike depends upon (a) the conduct of the employer also, the

employee which includes provocation on the part of employer by high, handed

action and unsustainable reasons for the strike on the part of workmen (b) the

nature of the strike whether the peaceful of violent and (c) whether the strike

was resorted to after exhausting all the means of redress. The strike is justified

However, merely refusal to recognise a particular trade union or to negotiate

with it as a recognised union, will not by itself justify strikes. When there is a

bonfide dispute about the conditions on which recognition should be granted

when the management refuses to agree to arbitration or adjudication of

demands of the workmen, the strike is justified. Even in some demands are

not referred to adjudication or arbitration, the workers are justified to go on

strike. When the workers were forced to resort to strike because of various 6 (1955) I LLJ (566 I.T.) 561 7 (1961) II FLR (I.T.) Calcutta. 10

141

acts of management and more essentially the placing the number of workmen

under the contractors and retrenchment of a large body of a workmen the

strike is not justified. If the existing service facilities are withdrawn, the strike

started consequent on such abrupt discontinuation of benefits, is quire

justified. The strike against contract in force is not justified.

The strike itself cannot be treated as misconduct. The employer cannot

dismiss an employee forgoing on justified strike because in that case the

recognised weapon of strike will be rendered ineffective. Even in case legal,

but unjustified strike, the employer cannot given right to dismiss employees.

The power to dismiss depends upon the reasonableness of the demands will,

therefore, restrict the field of industrial bargaining. In case of 'Ram Kishan

Iron Foundry, Howrah v their workmen'8. It was held 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 1he

employer will have the right to dismiss the employees.

It Express Newspapers Ltd., v Mchale Mark,9 it was held that a strike,

legal or illegal, justified, unjustified does not dissolve the employer employee

8 1954 II LLJ (L.A.T.) 372 9 (1952) 2 LLJ SC. 220

142

relationship.The strikers can be dismissed or discharged only if the strike was

not bonafide and when it is a misconduct. The doctrine of replacement was

first raised in 1952 in the case of Spencer and Company v their workmen,10

and confirmed on appeal. In the Spencer case the Madras Industrial Tribunal

held vis a vis American decisions that an unjustified strike not caused by

unfair labour practices of equivalent to an economic strike, and hence the

workers could be replaced and upon settlement of the strike refused

reinstatement However, the other case of 'Bangalore Silk Throwing Factory v

Its Workmen,11

Bombay Appellate Tribunal held that the dismissal of workers

was against natural justice and further stated the management had the right in

law to fill up their places and 'The management are bound only to reinstate

such strikers whose places have not been filled'

As regards the wages, during the period of strike in the case of legal and

justified strike, and more specially against in the unfair labour practices of the

employer, the workers are entitled for wages for the striking period. In

contract to the practice in America wages during the existing period was real

issue. In India thus, the period was allowed because of economic conditions of

workers and tribunal are held that denial of wages is tent amounts to a denial

of the right to strike. If the deductions of wages are allowed to be made in the

circumstances of tie present case, if would amount to denying to workmen to

10 (1952) I LLJ 469. 11 (1957) ILLJ (L.A.T. Bombay). 435

143

workmen the management which they have acquired after a great deal of

struggle and sacrificed. But however the workers who are not reinstated were

entitled compensation. Inspite of temporary employees also have the right to

reinstate in the case of legal and justice.

5.1 Illegal Strikes

All strikes are not ipsofacto unlawful or illegal. Industrial Disputes

Act. 1947 however, makes certain strikes illegal under section 24. This

section specifies the events on the happening of which, strike is to be treated

as illegal and the plain meaning of this is that, those strikes which do not fall

in that category are not illegal, another way strike may be unjustifiable, but it

is not illegal unless it is illegal according to the provision of the Industrial

Disputes Act, 1947. Thus a strike which is not illegal under Section 24 of the

Industrial Disputes Act, 1947 can never be treated as illegal under the Act.

For instance, where a strike in pursuance of an industrial dispute has

already commenced and is in existence at the time of the reference of the

dispute to a Board, an Arbitrator, a Labour Court, Tribunal of National

Tribunal, the continuance of such strike will not be illegal, if, such strike

was not at its commencement in contravention of the provisions of this Act

or the continuance thereof, was not prohibited under sub-section (3) of

Section 10 or sub-section (4A) of Section 10A of Industrial Disputes Act,

144

1947.12

Also, a strike declared in consequence of an illegal lockout will not

be illegal.

The Supreme Court has stated A strike is a legitimate weapon in the

hand of the workers to redress their grievances. However it has been held

that it should be used as a "last resort'' when all other avenues. Have proved

futile and so long as it is used in a restrained, peaceful manner of good and

justifiable reasons, it can not be punished13

. In U.K. strikes may or mayn't

involve breaches of contracts of employment. For many years, the traditional

view was that a strike after a strike notice of duration not less than that

services, are specified in Section 2(1)(a) of the Act. In U.K., peacetime

Emergency powers14

sought to secure the essentials of life to the community

and prohibited strikes in public utilities by empowering the Government to

declare a state of emergency. The industrial disputes which are of a grave

and serious character by establishing that the Secretary of State in certain

circumstances may apply to the Industrial Court for an order restraining

persons from organising industrial action for upto 60 days15

. The other

procedure available in the same type of emergency situation is a ballot, that

is the Secretary of State may apply for a ballot when the situation is that the

conditions appear to be, or likely to be seriously injurious to the livelihood

12 Section 24 (2) of Industrial Disputes Act. (1947) 13 Caltex (India) Ltd. v. Certain workmen , (1954)(II) LL.J.516 (520). 14 Emergency Powers Act. (1920) and (1964) 15 Section 139(2) of IRA (1971)

145

of a substantial number of workers employed in a particular industry16

. Now,

the Trade Union and Labour Relations Act of 1974, has also abolished the

Emergency measures of 1971 statute.

Turning to Australia, in the case of a proclamation made of the

existence of a serious industrial disturbance prejudicial or threatening trade

or commerce with other countries or among the States, the participation in or

incitement to strike in relation to (1) employment connected with the

transport of goods or the conveyance of passengers in overseas or inter-stale

trade or commerce or (2) employment in or in connection with the provision

of any public service by the Commonwealth Government or any

Commonwealth public authority, is an offence17

.

Indeed, the Industrial disputes act, 1947, does not purport to take

away the right to strike. In fact, this right has been recognized by the Act,

peaceful investigation and settlement of the industrial disputes and for

obviating the industrial strikes and achieving harmonious relations between

the employers and their work men the right to strike has been restricted. In

sum Right to Strike is not absolute in India. U.K. and Australia. Reasonable

restrictions have been put on this right in India and U.K. whereas in

Australia this right is very extensively regulated. Required to terminate

16 Section 141(2) of IRA 1971. 17 Section 30 (J) of the Crimes Act (1914-1955)

146

contracts was lawful. The Industrial Relation Act, 1971, separated lawful

strike from those which are resorted to by unlawful means18

or have

unlawful purposes19

. The 1971 Act provided in negative fashion that due

notice given by or on behalf of an employee shall not, unless it otherwise

expressly provides, be construed as notice to terminate his contract of

employment, or as a repudiation of that contract20

. Section 147 of the Act

further provide that so long as there is no term expressed or implied in the

contract, excluding or restricting a person's right to participate in a strike

(i.e.no-strike clause) and so long as due notice has been given of a person's

intention to strike, then his action is taking part in the strike shall not be

regarded as breach of contract for any proceeding in contract or tort, for

injury to persons or property and unfair industrial practices21

under Section

96 of the Industrial Relations act, 1971. This means, therefore, that as this

particular action of taking part in a strike is not to be regarded as a breach of

contract for the purpose of Section 96 of the Act, the inducing or threats to

induce another person to take part in a strike only after due notice has been

given will not amount to an unfair labour practices22

. However, Trade union

and Labour Relation Act of 1914, has abolished all the 'unfair labour

practices of 1971. Statute and has reverted to the traditional pattern, that is

18 Bookes v. Bernard, (1964) AC 1129. 19 Crofter Harris Tweed v. Veltch, (1942) AC 435. 20 Section 147 of Industrial Relations Act (1971). 21 Now repeated by Trade Union and labour Relation Act. (1974). 22 Cyrll Crabree Industrial Relation Act (1971) at p.137.

147

Section 29 of the 1974, Act restores to the golden formula and protects acts

done in contemplation or furtherance of a trade dispute, a modernized

definition of trade dispute based on the concepts of the Trade Disputes Act

190623

and materially different from the meaning of' Industrial Dispute' in

the 1978 Act24

. A strike is not unlawful reason of its purpose as long as it is

connected with the terms and conditions of employment. The dispute must

be connected with one of the list of topics set out widely in Section 29(1) of

the 1974 Act viz terms and conditions of employment, or physical

conditions of work engagement or non-engagement, or suspension of

employment, or duties of employment of workers, allocation of work, or

employment duties between group of workers, facilities for Trade Union

officials etc. including problems about recognition by an employer of the

right of a Trade Union to represent workers. The treat is to be treated as

being made in contemplation of a trade dispute.

In Australia, a strike may take place without notice being given to the

employer concerned or to an arbitration authority or alternatively after the

expiration of a period of notice. Again, a strike in which unionists are

concerned may have been decided up on by the particular employees

concerned or by an official of the union or by all the members of union25

.

These are variation in the methods of striking and they are a significant

23 Section 5(3). 24 Section 167(I) of (1971). 25 Portus J.H. The Development of Australian Trade Union Law 4th Ed. (1958) at p.214.

148

feature of strike legislation under some of the Arbitration Acts. In

Queensland, and New South Wales, where all strikes are not made illegal the

Acts distinguish between strike action that is taken in accordance with a

majority decision of the member if the union concerned after a secret Ballot

and strike action decided up on in some other manner26

.

5.2 Strikes - Justified and Unjustified:

A strike may be technically perfectly legal in that it may not have

been resorted to in contravention of the provisions of Section 22 and 23 of

the Industrial Disputes Act, 1947, but still the conduct of the striking

workmen may be highly reprehensible, disorderly and violent whereas the

attitude of the employer may have all along shown complete reasonableness

and a desire for conciliation. Similarly, a strike may have been illegal in that

it may have been resorted to without due regard to the compulsory

compliance of the mandatory requirements of the relevant section of the Act

such as, service of notice in the case of public utility service or violation or

prohibition of strike during the pendency of adjudication proceedings, but

the demands of the striking workmen may be quite legitimate, lawful and

justifiable whereas the attitude of the employer may have shown malafides.

unreasonableness and motive of exploitation. These peculiar features of the

strike situation prompted those responsible for the administration of

26 Section 51(I) of Queensland Act Section 99 of New South Wales Act.

149

industrial law to try to classify strikes which are otherwise legal into

categories of justified strike and un justified strikes.

5.3. Strike - When Justified

Although strike is a legitimate and sometimes unavoidable weapon in

the hands of workers and may be resorted for securing their demands to

improve their conditions, yet the justifiability of a strike has to be viewed

from the standpoint of fairness and reasonableness of the demands made by

workmen and not merely from the standpoint of their exhausting all other

legitimate means open to them for getting the demands fulfilled. However,

in Gandhiji's view, a strike of inevitable, has to be called out after

negotiations for the settlement of workers' just demands have collapsed and

the demand for arbitration has been turned down or the arbitration has been

turned down or the arbitration has failed should pass the below mentioned

test:

1. The cause of the strike must be just;

2. There should be practical unanimity among strikers;

3. No violence should be used against non-strikers;

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4. Strikers should be able to maintain themselves during the strike period

without falling back upon union funds and should therefore occupy

themselves in some useful and productive temporary occupation27

.

In Chandramalai Estate, Ernakulum v. its workmen28

K.C. Gupta J.

stated that while on the one hand it has to be remembered that strikes is a

legitimate and sometimes unavoidable weapon in the hands of labour, it is

equally important to remember that indiscriminate and hasty use of this

weapon should not be encouraged. It will not be right for labour to think that

for any kind of demands a strike can be commenced with impunity without

exhausting reasonable avenues for peaceful achievement of their objects.

There may be cases where the demand is of such an urgent and serious

nature that it would not be reasonable to expect labour to wait till after

asking the Government to make a reference. In such cases, strike even before

such a request had been made, may well be justified.

Collective bargaining for securing improvement on matters like basic

pay, dearness allowance provident fund, bonus and gratuity, leave and

holidays is the primary object of a trade union and when demands like these

ate put forward and thereafter, a strike is resorted in an attempt to induce the

employer to agree to the demands or at least to open negotiations, the strike

27 Majumdar P. An anatomy to Peaceful Industrial Relation at p.54. 28 1960(II) LLJ 243 at p.246.

151

must prime facie be considered to be justified unless it can be shown that the

demands were put up frivolously or for any ulterior purpose29

. Even where

the strike was not directly connected with the demand for bonus and

uncontroverted evidence established that the strike was a protest against the

unreasonable attitude of the management, in boycotting the conference held

by the Labour Minister, the strike was held to be not unjustified30

. In the case

of workmen of Bihar Fire-works & Potteries Union v. Bihiar fire works &

potteries Ltd31

. What happened was that the workmen resorted to one hour

token strike by way of protest against the dismissal of six workmen. A new

days later, the management issued a notice intimating that appropriate

deductions would be made from the wages of those who had taken part in the

one hour's token strike on 22nd January, 1951. The management issued

another notice intimating that further appropriate deductions would be made

from the salaries of those who went on token strike for the second time on

1st February, 1951, and thereafter the management did make the deductions.

The tribunal to which the matter was referred held both the token strikes as

'frivolous and unjustified' and the striking workmen, therefore, were not

entitled to wages for the period of the token strikes. The Appellate Tribunal,

to which the matter was referred on appeal, observed that the strikes were

not illegal as they did not contravene the provisions of Section 22 and 23 of

29 Swadeshi Industries Ltd. v. Its Workmen,(1960)(II) LLJ 78 at 81. 30 Churakulum Tea Estate (p) Ltd. v. Its Workmen, (1969)(II) LLJ 407. 31 1953 ILL.J.49.

152

the Industrial Disputes Act, 1947. But the point to be considered was

whether the strikes were justified or not. It was held by the Appellate

Tribunal that the strike cannot be said to be unjustified unless the reasons for

it are absolutely perverse and unsustainable. The awards of the tribunal was

set aside and it was directed that deductions made from the workmen's wages

should be paid back to them. If an employer behaves in an unreasonable

manner, if he curtly turns down all worker's demands and refuses to consider

them on their merits, if he resorts to unfair labour practices and if he rejects

conciliation and arbitration, workers will be regarded as justified in taking

recourse to a strike weapon.

When a strike, legal or otherwise, is found to be justified in the sense

in which this term is used by Industrial Tribunals, what is normally meant by

that finding is not that there is complete justification for the strike, or that the

authority in judging the nature of the strike, approbates the action of the

workers in going on strike under the circumstances, and where the strike

being illegal and against the express prohibition imposed by the law a

finding of complete justification of the strike or approbation of the conduct

of the workers participating therein is impossible for any Tribunal. Apart

from any drastic step that the employer might be entitled to take in

consequence of the strike, not only does the law positively disapprove and

prohibit such action, but it imposes penalties for the same and also from time

153

to time serious disabilities, in many respects, have been provided by

legislature for workers any. which can be looked for in such cases can only

be a relative justification, such as can be found when the workers have

reason to entertain a bonafide unredressed grievance, which renderthe

circumstances in which they happen to be placed., is found to be such as to

make them feel that the only course left to redress the grievance effectively

and without under delay is some stoppage of work.32

In this country, the question of payment of wages during periods of

strike is not covered by legislation nor is there an accepted code of

jurisprudence in this regard. The points generally considered by

adjudicator in awarding a strike pay is whether the strike was legal or

whether the strike was in consequence to an unfair labour practice on the

part of the employer. Sections 22 to 24 of the Industrial Disputes Act,

1947 describe the circumstances under which a strike or lock-out is illegal

and fifth schedule section 2 of the act givers a list of unfair labour practices

on the part of the employer as well as the employees.

With regard to the issue of payment of wages during a strike period

there has been a body of decisions by adjudicators. In the recent years

arguments are put forth for and against the award of strike pay in context of

the circumstances leading to each dispute. There had been no uniform trend

32 smanshahi Mills Ltd. v. Its workmen, (1959)(I) LL.J. 187.

154

but there is a gradual emergence of a body of principles that has guided

the adjudicators, Industrial Tribunals in deciding the issue of strike pay.

From trend of general arguments advanced by adjudicators it would

appear that only in exceptional cases, should the workers be awarded

wages during the periods of strike. The board determining principle is no

work - no wage. When a strike has been occasioned by the employment of

an unfair labour practice by the management or where the employees had

been always willing to submit to arbitration which the management has

not agreed to, it would be open to an Industrial court to award strike pay if

the strike had been legal and had been conducted peacefully. The first

and foremost important consideration taken into account by the

Adjudicators, Industrial Tribunals in deciding the issue of payment of

wages during a period of strike. The legality concept has to be determined

taking into view the relevant provisions of the Industrial Disputes Act

1947. If the strike is found to be illegal, the strikers would have no claim for

pay during the period of strike. The next consideration is was the strike

Justified. There will be circumstances in which a strike may be justified and

a concerned action alone might bring about the redress of a genuine

grievance and in such cases the strikers are entitled, to wages during the

strike period. The another consideration taken by the adjudicators while

adjudicating the strike pay is was the strike occasioned by an unfair

155

labour practice by the employer. If the employer commits an unfair

labour practice, the workers are entitled to strike pay. Technical reasons

also come into play in rejecting the workers claim for pay during the

periods of strike. There had also been instances where the question of strike

pay was amicably settled by agreement between the employers and

workers. In determining the amount of pay to be awarded during a period

of strike the Adjudicators, Industrial Tribunals have often followed the

method of apportioning blame and awarding strike pay in accordance with

the extent of blame attached to the parties.

The strike pay cannot be claimed as a legal right since there exists no

statutory provision relating to this aspect. However the relief of wages

for the strike period is granted not as a normal legal relief but based on

compassionate and equitable grounds on account of economic disparity

between the employer and the worker. It is found to be otherwise

unjustified. It is not only the end but the means too that must be reasonable

and just.

The judiciary has taken up the issue of strike pay and it had

putforth the arguments for and against it taking into view the facts of the

case and the circumstances leading to the dispute. The following case

law helps us to know as to when a strike pay is awarded and under what

circumstances a striker is entitled for strike pay.

156

It was in the case of Mahalaxmi Cotton Mills v. Their Workmen,33

the appellate Tribunal held that the right to get pay for the period of the

strike depends on the question whether the strike was legal or illegal. But

however this reasoning has been rejected by Mukherjee J. in Golaghat

Zilla Chah Mazdoor Sangh v. Hautley Tea Estate.34

It was decided in the

case of United Commercial Bank Ltd., v. A.C.Kakkar and Others35

that

workmen who have gone on illegal strike are not entitled to wages for the

period of strike. The workmen may have their fundamental right to do

work and withhold it at their pleasure and they are free to choose their own

time to launch a strike but this right has nothing to do with the right to get

wages during the period of strike. Ordinarily they are not supposed to be

compensated for any loss that may be sustained by them during strike

period. The strike being deliberate act on the part of workmen they

must be prepared to take all the consequences arising out of it.36

The workmen have no right to wages for the period of a strike when

the strike though not illegal is unjustified. Ordinarily upon failure of a

conciliation proceeding, the workmen must wait for reasonable time to

enable the government to make reference of a dispute for adjudication. If

33 (1952) II LL.J. 635 (L.A.T.) (Cal). 34 (1956-57) 10 FJR 1 (LAT) (Cal). 35 1954 L.A.C. 498. 36 West Bengal Flour Mills a Mazdoor congress v. Hooghly Flour Mills Co., Ltd., 10 F.J.R. 240.

157

instead, they straight away go on strike the strike is unjustified and they

have no right to wages for the strike period37

.

However, when a lock-out declared by the employer is unjustified, the

workmen are entitled to their full wages for the whole period of the lockout.

The workmen are not bound to report for work or to take part in any

conciliation proceedings, while the illegal lock-out continues, and their

claim to wages for the period of lockout cannot be denied merely on that

account. When lock-out is declared in consequence of an illegal strike,

ordinarily the workmen are not entitled to wages for the period of the lock-

out, but if the lock-out duration, both parties are equally to blame for the

situation which arises and the workmen should get half their wages for the

period of lock-out38

.

Where the strike was held neither illegal as it did not contrivance any

statutory provisions nor unjustified as it was launched for half a day as a

protest against the unreasonable attitude of the management in

boycotting a conference held by the labour Minister of the State, the

workmen were held to be entitled to full wages for that day39

.

37 Chandra Malai Estate, Ernakulam v. Its Workmen, AIR (1960) SC. 902. 38 Indian Marine Service (Pvt) Ltd., v. Their Workmen, AIR (1963) SC. 528. 39 Chorakulam Tea Estate (P) Ltd., v. Its Workmen, (1969) II LL.J. 407.

158

In P.C. Roy & Co. (India) Pvt. Ltd. v. Raycom Forests Labour

Union,40

the employer failed to pay work men wages on the due dates,

although he did pay the same after some time. The workmen went on strike,

and continued even after the wages have been paid. The Calcutta High Court

held that the strike was unjustified only up to the date of payment and

accordingly allowed worker claim for wages for the period of strike only up

to such date.

Where during the strike period and even prior to that, several of the

workmen resorted to violence and other acts of indecency and the workmen

continued the strike even after the notification issued prohibiting the

strike and requiring the workers to report for duty and the circumstances

clearly showed that the demand of the union regarding ex-gratia bonus could

not be considered to be of an urgent and serious nature, the launching of

the strike was held to be unjustified. Hence, the workmen were held to be

not entitled to any wages for the period of strike41

.

Where the workmen concerned went on strike which was held to be

illegal for the reason that an appeal was pending during the period of the

strike, the workmen are held to be not entitled to the wages for the period of

the strike42

. The Supreme Court in Crompton Creaves Ltd. v. Its Workmen43

40 AIR (1964) Calcutta 221. 41 Management of the Fertilizer Corporation of India v. Their Workmen, AIR (1970) SC. 867. 42 Lord Krishna Sugar Mills Ltd. v Sharanpur Case, (1952) I LLJ 803.

159

observed. It is well setted in order to entitle workmen to wages for the

period of strike, the strike should be legal as well as justified. A strike is

legal if it does not violate any provision of the statue. Again a strike are

entirely perverse or unreasonable. Whether a particular strike was

justified or not is a question of fact which has to be judged in the light of the

facts and circumstances of the case.

In the case of Life Insurance Corporation of India v. Amlendu Gupta44

a Division Bench of the Calcutta High Court held that the "strike being legal

and justified, the employees were entitled to salaries for the period of the

strike”. On the question whether the High Court in its constitutional writ

jurisdiction could mandate LIC to pay the employees their salaries for the

period of strike, the court held that it was within its powers to do so.

In the case of Statesman Ltd. v. their Workmen45

the Supreme Court

held that even in the case of an illegal strike, the industrial adjudicators

are empowered to grant wages, in cases where circumstances warrant

grant of wages. Relying on the above judgment the Bombay High Court in

Balmer Lawrie & Co. Ltd., Bombay v. Balmer Lawrie Employees Union and

another46

upheld the award of 35 percent wages to the workmen during the

43 AIR (1978) SC 1489 44 (1989) Lab. ICJ. 484 45 (1976) I LL.J.484 46 (1989) II LL.J 97

160

strike period not with standing the fact that the strike was illegal under the

Industrial Disputes Act.

In the case of Indian General Navigation & Railway Co., Ltd. v. Their

Workmen47

, the Supreme Court has held that there can be no question of

an illegal strike being justified and the workmen are not entitled for

strike pay. In the case of Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes

Mazdoor Sabha48

, the Supreme Court has held that although the strike is

illegal, it does not parse spell unjustifiability and the workmen are entitled

for wages.

A perusal of the above mentioned case law goes to show that the

strikers are entitled to strike pay depending upon the legality and

justifiability of the strike. But in the year 1990 there came an important

pronouncement by a Division Bench of the Supreme Court keeping aside the

earlier judgments and a complete departure from earlier precedents on the

workers' right to wages during the strike period. It almost choose to rewrite

the law and even its attention was not drawn to its earlier pronouncements.

It was in the case of Bank of India v. T.S.Kelawala49

that a new dimension

was created relating to the wages during the strike period.

47 SC (1960) I LLJ 13 48 SC (1980)I LLJ 137 49 (1990) 4 SCC 744

161

In the above case, the court was dealing with two appeals, one dealing

with the question of employer's power to deduct wages for the period of

strike and the other with the power of the employer to deduct wages in a

situation where employees resort to go-slow tactics. The court in a

common judgment deal with the two issues raised in these appeals

separately.

Dealing with the question of employer's right to deduct wages during

the period of strike, the court ruled that where the contract or standing

orders or the service rules regulations are silent on the issue of worker's

entitlement to wages during the strike period, the management has the

power to deduct wages for absence from duty when the absence is a

concerted-action on the part of the employees whether the strike was legal or

illegal. The court held that the question whether the deduction from the

wages would be pro-rata for the period of absence only or would be for a

longer period would depend upon the facts of each case, such as whether

there was any work to be done in the said period, whether the work was in

fact done and whether it was accepted. But where there is a dispute as to

whether employees attended the place of work or put in the allotted time of

work or not, the dispute has to be investigated by holding an enquiry into

the matter. In such cases, no deduction from wages can be made without

establishing the act of omission or commission on the part of the employees

162

concerned. Where the employees strike only for some hours but there is no

work for the rest of the day, the employer in such a situation may be

justified in deducting salary for the whole day. On the other hand where the

employees may put in work after the strike hours and the employer

accepts it, the employer may not be entitled to deduct wages at all or be

entitled to deduct them only for strike hours, P.B. Sawant J observed that

"Whether the strike is legal or illegal, the workers are liable to lose wages for

the strike period. The liability to lose wages does not either make the strike

illegal as a weapon or deprives the workers of it. When workers resort to it,

they do so knowing full well of its consequences. During the period of

strike, the contract of employment continues, but the workers with hold

their labour, consequently they cannot expect to be paid."

The court did not agree with the arguments of the employees that

wages cannot be deducted prorate for the hours or for the day or days for

which the workers were on strike, because the contract was monthly which

cannot be subdivided into days and hours. The court felt fortified in its

conclusion by reading section are definition of wages and Section.2q strike

definition together. The court held that a combined reading of these two

definitions makes it clear that wages are payable only if the contract of

employment is fulfilled and not otherwise. The court made it clear that in a

case where action is resorted to in a mass scale, some employees may have

163

either not been party to the action or may have genuinely desired to

discharge the duty but could not do so for failure of the management to give

the necessary protection or on account of other circumstances, the

management will not be justified in deducting wages of such employees

without holding an enquiry.

Strike dealing with the aspect of deduction of wages during the

period of go slow, the court held that unlike in the case of strike where a

simple measure of a prorate deduction from wages may provide a just and

fair remedy, the extent of deduction of wages on account of a go-slow action

may in some cases raise complex questions. The court held that go-slow was

a serious misconduct being a covert and more damaging breach of the

contract of employment and it had no hesitation in holding that the

employer is within his right to make deduction from the wages of the

workmen who resort to go-slow.

The approach of the court towards the entitlement of wages for the

strike period is not desirable. The industrial adjudication in Indian has

consistently followed the principle that entitlement to wages for the strike

period was to be decided keeping in view whether the strike resorted to

was legal and justified. Even the supreme court has in appropriate cases

awarded the percentage of wages to workers even during illegal strike

taking into view the facts and circumstances of those cases. The trade

164

union in India find themselves in peculiar situations because of the lack-

of resources and also social security measures for workers being

conspicuous by their absence, outright denial of wages even in cases of

legal and justified strikes strictly tantamount to denial of the right to strike

for securing of which the workers had gone through many trials and

tribulations. Granting of wages in cases of legal and justified strikes and

also in some other cases, where the strikes were technically illegal, being in

contravention of statutory provisions, but otherwise considered to be

justified, notwithstanding the fact that the terms of contract of employment

or standing orders were silent on the issue, is necessitated by the

considerations of social justice.

The court has treated employer - employee relationship as merely

one of law of contract issue and it wanted to imbibe into the working class,

work culture which of late has fallen to the lowest ebb. But in a welfare state

like ours, the employer-employee relationships cannot be looked at merely

from the stand point of laws of contract but has to be considered in the

broader context of social justice. no work - no pay has been the basis of this

decision.

However, apart from the decision of the supreme court, one should

keep in view that strike pay is desirable upon satisfying of the following

conditions namely the strike was legal, the object of the strikes was

165

justified and the workers sought help of redressal mechanism available

under the law before resorting to strike.

5.4 Strikes - When Unjustified

It is to be noted that a strike may be perfectly legal and yet be

unjustified, for examples a strike commenced not to secure improvement on

matters of basic industrial interest to labour, but to embarrass the

management could not be justified50

In West Bangal Flour Mills Mazdoor

Congress v. Hooghly Flour Mills Co. Ltd.51

, the Labour Appellate Tribunal

held that, where a strike was resorted to, by workmen in spite of the

conciliatory attitude of the management and without trying all other

available means of settlement of the dispute according to law, the strike

would be unjustified and the workmen would not be entitled to claim wages

for the strike period.

Thus, a strike may be held to be unjustified for various reasons, they are :

1. the demands may be pitched unreasonably high, or

2. the employer may have adopted a reasonable attitude by taking steps to

have the alleged grievance redressed through negotiation or conciliation;

or

50 Workers of Textool Co. Ltd. v. Textool Co. Ltd. 10 I.J.R. 460. 51 10 F.J.R. 240(L.A.T).

166

3. the demands were not made bonafide, but with other extraneous motives,

that is, for the specific purpose of embarrassing the employer52

.

In case it is found that the strike lacks bona fide, the employer has the

right to take action against the workmen who have joined the strike. There

would be no bonafide if

(a) the strike is resorted to under the pretence of backing a current demand

but with the real object of compelling the employer to reopen a demand

which has already been adjudicated upon or

(b) when it is resorted to frivolously or frequently with a view to ruin the

factory or where it is resorted to extraneous considerations.

Where the workmen resorted to a strike as a result of a hot-waded

decisions without giving their grievances redressed by conciliation

proceedings it was held that the strike was unjustified53

. Right to strike, is to

be exercised after fulfilling certain conditions regarding service of notice and

also after exhausting intermediate and salutary remedy of conciliation

proceeding54

. Whether the strike is justified or unjustified is a question of

fact to be determined on the fact and circumstances of each case.

Justifiability of a strike would depend upon several factors such as:

52 Ramakrishna Iron Foundry, Howrah v. their workers (1954)(II) LLJ 372 at p.374. 53 Union Factories in Bihar v. Their Workmen 13 FJR 150 54 Dharam Singh Rajput v. Bank of India Bombay (1979) Lab.IC 1079 (DB)(Punj).

167

(i) Were the demands of the workmen genuine or were reasonable or

inspired by an oblique motive

(ii) Were the demands fair and reasonable

(iii) Did the workers try a less drastic method before going on a strike etc.55

The conduct of the employer is also a relevant and important factor in

resolving the question of justification or otherwise of a strike. A strike may

be held to be justified if it was occasioned by the employment of unfair

practices by the employer or may be held to be unjustified if it resorted to

despite employer’s willingness to settle the dispute through conciliation,

unjustified where the employer decided to closed down the undertaking and

sell its assets but with the assurance of the new company with continuity of

service.56

The Supreme Court in Management of the Fertilizer Corporation

of India Ltd. v. The Workmen57

was emphatic that the launching of the tike

was unjustified with inspite of the fact that the management was prepared to

pay bonus as per the Bonus Act, had announced a production bonus scheme

and had made some proposals in the course of conciliation with the workmen

and yet the workmen were not prepared to put off the strike even by one day

and decided to go on strike. On the other hand, when workmen went on

strike as a protest against the recalcitrant attitude of the managements, in

55 Andhra Pradesh State Road Transport Corporation, Employees Union v. Andhra Pradesh State Transport

Corporation, Hyderabad,1970 L.I.C. 1225. 56 The Andhra Pradesh Ltd. v. The Secretary, Madras Union of Journalists, AIR 1967 SC 1869. 57 AIR 1970 SC 867.

168

boycotting the conference called by the labour minister or failure or

conciliation, the strike was held to be not unjustified.58

An unjustified strike may not necessarily be illegal. A strike prompted

by political considerations might be wholly outside the contemplation of the

Industrial Disputes Act, 1947, but it is not possible to see how it can be said

to be a strike in contravention of the provisions of any law or rules having

the force of law. Unless a case would be expressly brought within the

purview of Section 22 and 23 of the Act. It could not be held that the strike

was illegal, and at the most such a strike could be held as unjustified.59

It may be noted that in India, legal strikes are classified into ‘justified’

and ‘unjustified’ strike, whereas in U.K., U.S.A. and Australia it is not so.

Strikes - When Illegal

Every strike is not illegal. It may be mentioned that the field of

industrial law, so far as country is concerned,60

it is not the objects which

make the strike illegal but it is the breach of the statutory provisions, which

refers the industrial strikes illegal. Section 24 of the Industrial Disputes Act.

1947, declares that strikes would be illegal only when they have been

resorted to in contravention of the mandatory provisions of Section 22 and

58 Earnakulum Tea State v. Its Workmen, (1969)(II) LL.J. 407. 59 Matchwel Electricals (India) v. Chief Commissioner, Delhi & Others (1962)(II) LLJ289. (HC Punjab). 60 In Australia and England, there are certain objects which renders the strike illegal. In Dorcey v. Kansas

(71 L.Ed.248) speaking for the Supreme Court of United States, Brandeis J. Said “A strike may be illegal

because of its purpose, however orderly the manner in which it is carried”.

169

those of Section 23 of Act or when they are in defiance of the order made

under sub-Section (3) of Section 10 or (4A) of Section 10 A of the Act.

The provisions of Sections 22 of the Act apply to establishments

which fall in the category of 'public utility service' as defined in Section 2(n)

of the Act. According to Section 2(n) of the Industrial Disputes Act, 1947,

public utility service means:

a) any railway service or any transport service for the carriage if

passengers or goods by air,

b) any section of an industrial establishment, on the working of which the

safety of the establishment or the workmen employed therein depends;

c) any postal, telegraph or telephone service,

d) any industry which supplies power, light or water to the public,

e) any system of public conservancy or sanitation: (f) any industry

specified in the First Schedule which the appropriate Government

may, if satisfied that public emergency or public interest so requires,

by notification in the official Gazette declare to be public utility

service for the purpose of this Act for such period as may be specified

in the notification provided that the period so specified shall not in the

first instance, exceed six months but may by a like notification be

extended from time to time by any period not exceeding six months at

170

any one time if in the opinion of the appropriate Government public

emergency or public interest requires such extension.

A glance at the definition of ‘public utility service' which is

mentioned above, shows that these are key services, essential to the very

life of the State and well being of the community and hence special

formalities have been provided for in the Act before strike in these

services can be legally resorted to. Employees in the above stated

industrial are not completely prohibited by the provisions of this section

to go on strike. What the section 22 of the Act aims at, is placing certain

mandatory obligations subject to the fulfillment of which alone the right

of the workers to go on strike can be exercised. The fulfillment of the

mandatory requirements of the Section is absolutely essential before a

strike can be resorted to in a public utility service.

The Industrial Disputes Act, l947, as regards strikes. makes a clear

distinction between persons employed in a public utility service and those

employed in ordinary industrial occupations. The enactment of Section 22

appears to be for the clear purpose of preventing a handful of public utility

workmen from holding the general public at ransom by indulging in

lightening strikes. Such workmen are not shorn of their right to go on strike

but a qualification is attached there to requiring them to fulfill certain

171

essential conditions as enumerated in the four clauses of Section 22(1) of the

Act.

Before provisions of Section 22 of the Act can be attracted, two things

must be first proved i.e

1. The 'industry'' concerned is a Public Utility Service within the meaning

of Section 2(n) of the Act and

2. That the workmen concerned-are employed in it.

It has been emphatically stated in the case of Swadeshi Industries Ltd.

v. Its Workmen61

that where the establishment is consisting of public utility

as well as non-public utility service, the bonus is upon the employer to show

that concerned workmen who launched strike worked in public utility

section.

Following conditions relating to a valid notice of strike are prescribed

in Section 22(1 )62

of the Act which requires compliance by, the workers in a

public utility service intending to go on strike

(1) notice of strike within six weels before striking, i.e. the notice

should have been given not earlier than six weeks before the date on which

the strike is resorted, and63

61 (1960) (II) LL.J. 78. 62 Section 22(1) of Industrial Disputes Act. 1947.

172

(2) the strike should not be resorted to unless and until a period of 14

days has expired from the date of the notice of strike.

(3) before the expiry of the date of strike specified in the notice of

strike.

The condition contained in sub-Section (i) (b) of Section 22 of the Act

is that the strike shall not be resorted to during the period when the

conciliation proceeding are pending before, a conciliation officer until the

expiry of seven days after the conclusion of the conciliation proceedings. In

case of Ramnager Cane and Sugar Co. Ltd. v. Jatin Chakravorthy and

others64

, the Supreme Court while considering the implications of the

provisions of Section 18(3) of the Act held that the interpretation put on

Section 13(3) which aims at giving an extended operation to a settlement has

an important bearing on the meaning of Section 22(b) and, therefore,

lordships observed that if a conciliation proceeding is pending between one

union and the employer and it relates to matters concerning all the

employees, the pendency of such a proceeding would be a bar against all the

employees of the employed in a public utility service to go on a strike. In

Worker of the Industry Colliery, Dhanbad v. Industry Colliery65

the

company submitted its report on 20.10.1949, i.e. well within 14 days from

63 The World “or” between clauses (a) & (b) of Section 22(I) is used, but in the context in which it is used

actually means “and” because both the conditions mentioned in these two clauses should be fulfilled. 64 AIR (1960) SC 1012. 65 (1953) SCR 428.

173

the conciliation proceedings as required by Section 12(6) of the Act. The

report was sent through routine official channel and was received in the

office of Chief Labour Commissioner at New Delhi on 25.10.1949.

However, the report was not passed on to the ministry of Labour which was

also in New Delhi until about 17.11.1949. The employees had no means of

knowing when the report was actually received by the Central Government

which was the 'appropriate Government' or when the period of seven days

after such receipt expired. In these circumstances, the employees went on

strike on 7.11.1949 in accordance with the date specified in their notice. But

in view of the fact that the Chief Labour Commissioner was not the agent of

the Central Government the 'receipt' by him was not the receipt by the

Central Government. Hence, on true construction of the previsions of

Section 22(i) of the Act, it was held by the Supreme Court that the strike was

illegal and the employees must face and bear the consequences of an illegal

strike.

Upon the expiry of this period of seven days from the day the

Government received the conciliation officer's report, the Act permits, no

strike but after that period is over the employees are left free to resort to

collective action by way of strike. It is crystal clear that the time is the

essence of the provisions and the requirement of the relevant provision must

174

be punctually obeyed and carried out if the Act is to operate harmoniously at

all.66

It can thus, succinctly be stated that, any strike started

(a) without giving notice within six weeks before the strike;

(b) without giving notice of 14 days;

(c) before the date specified in the notice; and

(d) during the pendency of any conciliation proceedings and within seven

days after its conclusion would be an illegal strike.

The obvious object for, the above mandatory provision to enable the

authorities to make alternative arrangements for running public utility

service vital to the day-to-day life of the community in the event of a strike.

These conciliations are essential and have to be fulfilled in order to clothe a

strike by public utility service workmen with the mantle of legality.67

To

compensate for the imposition of the condition of notice which prevents

workers in public utility service from organising lightening or hasty strikes,

it is provided that in their case a reference of the dispute to adjudication will

be automatic except where the Government considers that the notice has

66 Workers of the Industry Colliery, Dhanbad V. management of Industry Colliry (1953) SCR 428 at p. 437. 67 Municipal Committee, Pathankot v. I.T., Punjab(1971)(II) LLJ52 at p.55.

175

been frivolously or vexatiously given' or that it would be inexpedient to do

so.

The Essential Service Maintenance Act, 1981, provides in explicit

words that no person employed in any essential service shall go or remain on

strike, and any strike declared or commenced by persons employed in any

such essential service shall be illegal.68

The essential services have been

defined in Section 2(1) (a) of the Act.

In U.K. whether public utility service or non-public utility service, if

due notice of strike is not given, then each workman withdraws his labour in

breach of his respective contract of employment. Hence in U.K. all wild-

cat69

and official strike are unlawful. In Australia the setting up of

conciliation arbitration machinery has been accompanied by legislation

making strikes illegal. The attitude is that where machinery for the

settlement of disputes by conciliation and arbitration exists, resort to strikes

is unnecessary strikes victoria are illegal strikes in essential service unless

there has been affirmative vote at a secret ballot. New South Wales

Legislation also makes certain strikes illegal which take place before 14 days

notice to the government of an intention to strike.

68 Section 3(4) (a) and (6) of Essential Services maintenance Act 1984. 69 Wild-cat a kind of unpremeditated strike action which is not taken according to the due process. The

purpose of ‘wild-cat’ strike is to get quick results also known as ‘quckie’ strike.

176

Before we proceed to discuss the provisions and requirements of

Section 23 of the Industrial Disputes Act, 1947, it would be better to briefly

discuss as to what the expression in breach of contract occurring in Section

22(1) of the Act. The words in breach of contract refer to a contract of

service or employment. Under the common law, it is ordinarily presumed

that the workers will continually render service according to the terms of the

contract of service if the employer so wishes. Section 22 and the following

Section 23, however provides that the workers can go on strike in spite of

the contract of service quite lawfully, provided they fulfill certain

requirements of the Section and this going in strike will not, in the least,

affect the relationship between the employer and the employees of course

the employer-employee relationship will remain suspended during the period

of strike. That the expression 'breach of contract' in the Section means

breach of contract of service or employment and not a special contract not to

go on strike, is clear from the fact that there must necessarily be a contract of

service, express or implied, between the employee and his employer, special

contract not to go on strike does not constitute an essential part of the

contract so that a contract of service may exist without any such special

contract. If, the legislator really sought to imply by this expression a special

contract not to go on strike it could reasonably be expected to say so in

explicit terms and the mere fact that it does not say so, would go to show

that the expression could not possibly have been intended to mean the

177

breach of any special contract. Apart from this, if the expression 'in breach

of contract' in Section 22 and 23 of the Act really referred to a contract not

to strike, the prohibition in these two sections would be almost meaningless

for there could not possibly be any strike, in breach of contract where there

is no such special contract at all, or in other words where workmen strike

with in the definition of the words in Section 2(q) of the Act but at the same

time there is no special contract not to strikes. Thus, a large part of the evil

which the measure like the Industrial Disputes Act seeks to remedy would,

on this interpretation, be left completely uncovered. It is this, that is, the

definitions of the words 'strike' and 'workmen' in Section 2(q) and 2(S) use

expressions like 'persons employed' and 'any person employed', respectively

and these two suggest that the contract spoken of in Sections 22 and 23 is the

contract of employment and nothing more or less. In the case of Punjab

National Bank Ltd v. Their Workmen70

the Labour Appellate Tribunal while

interpreting the expression in breach of contract observed that the word

contract occurring in Section 23 means contract of service. Just as the

expression in breach of contract occurring in Section 22 refers to a contract

of service or employment, the expression in breach of contract occurring in

Section 23 also refers to a contract of employment

70(1952) (II) LL.J. 648 at p. 655.

178

Section 23 of the Industrial Disputes Act, 1947, as earlier mentioned,

is a general provision prohibiting strikes and lockout in all industrial and

commercial establishment irrespective of whether they are falling in the

category of public utility service or in other category. Under this Section, the

workmen are prohibited from resorting to strike under the following

circumstances:

(1) during the pendency of conciliation proceedings before a board and

seven days after its conciliation.

(2) during the pendency of proceedings before

i) a Labour Court;

ii) Tribunal; or

iii) National Tribunal It further and down that no strike shall be

declared even after two months of the conclusion of such

proceedings;

(3) during pendency of proceedings before an Arbitrator appointed under

section 10(3-A) and two months after conclusion of such proceedings;

(4) during the operation of settlement or award in respect of matters

covered by them.

179

A comparison of the provisions of Section 22 and 23 would exhibit

that in matters concerning non-public utility services. Section 23 does not

prohibit strike during conciliation proceedings before a conciliation officer.

However, it prohibits strike where the proceedings are pending before a

Board. Arbitrator, Labour Court, of Tribunal of National Tribunal. Section

22, on the other hand, makes provision for the compulsory service of notice

of strikes, whereas Section 23 makes no such provision, and therefore, the

notice of strike which is mandatory in the case of public utility services, is

not at all imperative in the case of those establishments which are not public

utility services. Whereas in any essential service declared under the Essential

Service Maintenance Act, 1981, the strike declared or commenced shall be

illegal ipso facto it may be stressed here that in the Essential Services

Maintenance Act,1981, that there is no provision such as notice of strike etc.

which is required under Section 22 of the IDA.

Sudden or lightening i.e. wild cat or quickie strikes are not prohibited

by Section 23 IDA so far as the industries which are not fall in the category

of public utility services as defined in Section 2(n) of the Industrial Disputes

Act are concerned, provided they do not flout or contravene the requirements

of Section 23 of the Act.

Since Sections 22 and 23 prohibit strikes during the pendency of

conciliation proceedings before a Labour Court, Tribunal National Tribunal

180

and Section 33 prohibits changes, in the conditions of service during the

pendency of the a fore mentioned proceedings, it was found necessary to

define the starting and the concluding points of time of these proceedings.

Section 20 was enacted for this purpose. Section 20(1) lays down that the

conciliation proceedings are deemed to have commenceced in the case of

public utility when a notice of strike as required by Section 22 has been

received by the conciliation officer or in the case of proceedings before a

conciliation Board, on the date on which the dispute is referred to such

Board of conciliation, though nowhere it is mentioned as to when the

conciliation proceedings will be deemed to have commenced in the case of

those industries which do not fall in the category of public utility services as

defined in Section 2(n). It can, however, be presumed that the date on which

the conciliation officer gives notice of his intention to conciliation would

naturally be the date of commencement of the conciliation proceedings.

Section 20(2) declares that a conciliation proceedings shall be deemed to

have concluded when a settlement is reached before the conciliation officer

and the same is enshrined on the memorandum of settlement duly signed by

the parties concerned with the dispute or where if no settlement is arrived at

the failure report of the conciliation officer is received by the appropriate

Government as defined in Section 2(A) or in the case of conciliation

proceedings before a Board of Conciliation when the report of the Board is

published under section 17 of the Act or in the case of reference under

181

Section'10 when such reference is made to a Court Labour Court, Tribunal or

National Tribunal. Sub-Section (3) of the 20 deals with starting point and

conclusion of proceedings before Arbitrator appointed under Section 10(A),

or before a Labour Court or Tribunal. It enacts that proceedings before any

of such authorities shall be deemed to have commenced on the date of

reference of the dispute to arbitration or adjudication as the case may be.

This Sub-Section also lays down that the point of time when such proceeding

are to be deemed to have concluded is the date on which the award becomes

enforceable under Section 17(A) of the Act.

In Associated Cement Companies Ltd. v. Their workmen.71

It was

observed by the Labour Appellate Tribunal that the proceedings before he

Tribunal commence the moment the order of reference is made by the

appropriate Government whether it reaches the tribunal concerned or not. It

was further observed that the strike would be illegal if resorted to after the

passing of the order of reference by the appropriate Government even though

it may not have reached the Tribunal. Section 22(2) has been strictly

construed in the case of Workers of Industry Colliery v. Management of

Industry colliery72

wherein the Supreme Court observed that although

factually the conciliation proceedings terminate when a settlement is arrived

at before the conciliation officer or when h is found that no settlement can be

71 (1953) (II) LL.J. 369. 72 (1953) SCR 428.

182

arrived at, the Act by a legal fiction, prolongs the conciliation proceedings

until the actual receipt of the report by the appropriate Government and goes

on to provide that the appropriate Government must have seven days time to

consider what further steps it would take under the Act. Up to the expiry of

the period of seven days, the Act permits no strike but after the period is

over, the employees are left free to resort to collective action by way of a

strike.

A token strike also should not resorted to without first moving the

conciliation authorities and in any case, it should not be for more than one

day. When the workmen concerned went on a token strike for a period of

three days without intimating the conciliation officer, it was held by the

Supreme Court that even if the strike resorted to was a token strike and

purely sympathetic in nature, it should not have continued for such along

period as three days. If the workmen straightaway resorted to the token strike

of three days, it would not entitle them to the wages for the period of lock

out if declared by the management by way of retaliation even though the

lock out declared as a counter measure lacked justification.73

The bar against strike during the pendency of conciliation proceedings

before a Board and adjudication proceedings prescribed under clauses (a)

and (b) of this section is mandatory. It is to be noted that the words which

73 Northern Dooars Tea Ltd.v. Workmen of Dem Dima Tea Estate, (1964) (I) LL.J.436.

183

occur at the end of clause(c) viz in respect of the matter covered by the

settlement of award do not occur in clauses (a) arid (b) and the meaning of

these words cannot be imported while applying these two clauses.

Whereas strike is permitted on matters not covered by a settlement or

award by clause (c) of Section 23, no strike can be resorted to during the

proceedings before a Board or during the adjudication proceedings before a

Labour Court, Tribunal or National Tribunal or Arbitration proceedings

before an arbitrator under Section 10-A of the Act. In Swamy Oil Mills v.

Their Workers74

case the settlement provided that the union and the workers

undertake to completely co-operate with the management, to work in a

disciplined and amicable way and that matters concerning industrial disputes

would be reported in the first instance to the Labour Officessor to the

commission of Labour and no matter touching such disputes would be

reported to the police. While this settlement was in force, the workers went

on strike as the management did not satisfy some of their demands. The

Tribunal held that neither of the above terms made any reference to the

workers, right to strike when they were dissatisfied with the management

terms in any respect. In this view of the matter, the Tribunal held that there

had been no breach of any matter covered by any settlement in operation

between the parties and hence the strike was not hit by Section 23 (c) of the

74 (1953)(II) LL.J. 785.

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Act. A breach of a standing order simpliciter will not render the strike

illegal.

Where the assurance given by the workmen to the Labour

Commissioner that they would not resort to strike and adopt all

constitutional means to get their grievances redressed, it neither amounted to

be contract nor a matter covered by the settlement and there for the strike by

workmen after such settlement would not attract section 23(c) of the Act.75

When the workmen have collectively made a number of demands and even if

one of the demands is in contravention of Section 23(c) of the Act, the whole

strike to which they may resort to enforce the compliance with those

demands would be illegal because in such a case it would not be possible to

know which of the several demands made by, them prompted them on the

strike move.76

The prohibition against strike under Section 23(c) does not extend

beyond the period for which the Award or settlement is in, force. The

Supreme Court in the case of South Indian Bank Ltd. v. Chakka held that so

long as the award remains in operation under Section 19(3), Section 23(c)

stands in, the way of any strike by the workmen in respect of any matter

covered by the award. After the period of operation of an award or

75 Ballapur Collieries v. C.G.I.T. Dhanbad,AIR (1972) SC 1216. 76 The Management of New Jamehari Khas Collery v. Chairman Central Govt. Industrial Tribunal,

Dhanbad – AIR (1960) Patna 542.

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settlement has expired. under Section 19(3) and 19(2) respectively, the

award or the settlement may continue to bind the parties by virtue of the

other provisions77

of the Act but during such period of binding effect,

Section 23(c) has no application.

while making a distinction between section23(c) and section 29 of the

Act, it is to be noted that section 23(c) envisages a strike in respect of matter

covered by a settlement and section 29 deals with a strike in breach of a

settlement and lays down the penalty for a person not necessarily a

workmen, who commits breach of a term, of a settlement which his binding

under the Act. A strike in breach of a contract during the operation of a

settlement and in respect of a matter covered by the settlement comes under

Section 23(c) and is illegal under Section 24 of the Act. Whereas

commencing a strike or acting in furtherance of it in breach of a settlement

binding on the workmen who so commence it or act in its furtherance, is an

offence punishable under Section 29 of the Act. Where one of the clause of

settlement arrived at between the management and association of work men

before the conciliation officer provided that neither the association nor the

management would resort to any direct action such as strike or lockout

without giving to the other a four days notice and in violation of this clause,

the workmen during the operation of the settlement went on strike on the

77 See. 19(2) & 19(6) of Industrial Disputes Act. 1947.

186

question of suspension of one of the workers pending a domestic enquiry, it

was held that the strike was in connection with a matter not covered by the

settlement and as such the strike was not illegal under section 24 read with

Section 23(c) of the Act. However, the strike was held to be in contravention

of the clause of the settlement forbidding strike without notice, because

settlement was binding on workmen and in operation at the time strike was

illegal and thus punishable under Section 29.78

It may be pointed out that the words ‘in respect of any of the matters

covered by the settlement or award’ have been deliberately inserted in clause

(c) of Section23 to limit its operation. Section 23(c), draws a clear distinction

between strikes or lockouts on matters in respect of which an award or

settlement has been made and strikes or lockouts connected with matters not

covered by any award or settlement. However it is to be noticed that no such

distinction is made in clause (a) and (b) of Section 23 of the Act. Clauses (a)

and (b) of that Section forbid workmen striking or any employer locking-out

his employment during the pendency of conciliation proceedings before a

Tribunal and two month after the conclusion of such proceedings.

In U.K., the major problem in the illegality of strike action is whether

or not the strike is in breach of contract. Most of the tortious liabilities which

78 Workmen of the Motor Industries Co. Ltd. v. Management of Motor Industries and another, AIR (1969)

SC 1280.

187

can be incurred at common law by strike action require an initial unlawful

act and a breach of contract of employment may be considered ‘unlawful’

for such purposes. Also, the tort of inducing a breach of contract by

definition requires an initial breach of contract.79

In Australia, the common

Wealth System, covered by the Commonwealth Conciliation and Arbitration

Act of 1904 since amended many times, provides for arbitral tribunal to

insert 'no-strike' clauses into awards. In Australia also, if a strike is resorted

to when no strike clause of the award is in operation, it becomes illegal and

invites possible penal sanctions and fines.

Under section 10(3) and section 10-a(4a) of the industrial disputes act,

1947, appropriate government is empowered to prohibit the continuance of

strike, the effect of these sub-sections is that even though a strike when

commenced was legal, it would become illegal if continued after the

prohibitory order under it has been made. The pre-conditions to the exercise

of the power by the appropriate Government under Sections 10(3) and

10A(4A) are an 'industrial dispute should have been referred to a Board,

Labour Court Tribunal or National Tribunal under Section 10 or Arbitrator

under Section 10-A and on the date of the reference, there should be a strike

in existence in connection with such dispute, It may be pointed out that the

appropriate Government has the power to prohibit by order the continuance

79 Foster Ken Strikes & Employment Contracts-36 MLR (1973) 27.5.

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of such strike only when the two conditions are existing. If a strike is

continued even after an order has been issued by the appropriate Government

under Section 10(3) or Section 10A (4A)of the Act it becomes illegal under

Section 24(1) (ii) of the Industrial Disputes Act 1947. The idea behind this

prohibition is that industrial disputes should be tried in a spirit of amity and

no party should be in a position to coerce the other during the pendency of

such proceedings. It is for this reason that power has been given to the

appropriate Government by Section 10(3) and Section 10A(4A) of the Act in

case of strikes resorted to before the commencement of such proceedings to

prohibit their continuance while the dispute is being adjudicated.80

Worker's right to strike in non-public utility- services arises primarily.

When their demands are not acceded to by the employer. Immediately they

can go on strike as there is no legal restriction which prevents them from

doing so. Then the conciliation and mediation starts. Board is constituted and

if both the efforts fail and need is felt a reference is made to the adjudicator

to adjudicate in to the dispute, this is fantastically working proposition of

law. Weapon of strike cannot be used first and then to resort to other

avenues. As a sound proposition of law the supreme Court has time and

again laid down that the strike as a weapon is of last resort when all avenues

to settle the differences have exhausted.

80 Keventers Karamchand Sangh v. Lt. Governor, Delhi and another, (1971) (II) LL.J. 375 at p. 380.

189

it is noteworthy that a clause like, a strike shall be illegal if it is

commenced or continued only for the reason that the employer has an illegal

change is not present in the Industrial Disputes Act,1947, though enacted in

some state statutes81

. The world only occurring in the clause goes with the

word reason, and if the strike is commenced or continued for the only reason

that the employer has made an illegal change, it shall be illegal. Under

Section 40(1) (c) of the central province and barer Industrial Disputes Act,

1947, the management in the working conditions will tantamount to illegal

strike82

. Further where some of the workmen refused to receive attendance

cards in order to comply with the card system for marking attendance sought

to be re-introduced by the management and stayed away from their work in

common understanding, their action must be held to amount to 'strike' and

also an 'illegal strike' within the meaning of Section 40(b) and (c) of the

Madhya Pradesh Industrial Disputes Act. The change sought to be

introduced by the management whether legal or illegal is immaterial to the

determination of the question as to the 'illegality of the strike83

.

In spite of the fact that these State Acts seem to be more

comprehensive than the Industrial Disputes Act, 1947, there is hardly any

occasion when workers will be in a position to organize a lawful strike under

81 Section 97 (I)(c) of Bombay Industrial Relations Act 1946 Section 40(1) (c) of Central province & Berar

Industrial Disputes Act, 1947. 82 Kevernters karamchan Sangh v. Lt. Governor, Delhi and another, (1971) (KK) LL.J. 375 at p. 380. 83 Indian Hume pine Co. Ltd. v. Rashtriya India Aume pine Sangh & Others,(1957) (II) LL.J. 67.

190

these State Act. The occasion will arise only when the Government fails to

perform its obvious duty of referring a dispute to an industrial court or to a

wage Board.

Where the refusal by the workmen to do additional work imposed

under a rationalization scheme which is illegal by reason of contravention of

Section 3384

will not amount to an illegal strike and the employer has no

right to declare a lockout in such a case. What happened in the case of North

Brook Jute Co. Ltd v. Their Workmen85

was that the employer sought to

effect certain changes in the service conditions of the employees as part of

the rationalization scheme. Since the workers objected to the 'changes, the

matter was referred for adjudication while the dispute was pending at the

adjudication level the employer tried to and did enforce the scheme, so that,

his action not amounted to violation of Section 33 of the Act. The workers

refused to do additional work as required of them under rationalization

scheme enforced by the employer in contravention of the provisions of

Section 33 of the Act and this action of the workers, it was held did not

amount to an illegal strike.

84 Section 33 of IDA no doubt gives the workmen aggrieved by the contravention by the employer of

section 33 the right to apply to the Tribunal for relief, but the existence of this remedy does not mean that

the workmen were bound to work under the altered conditions of service, even though those were in clear

contravention of law. 85 AIR (1960) SC 8793.