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Acknowledgement

Apart from the efforts of me, the success of any project depends largely on the
encouragement and guidelines of many others. I take this opportunity to express
my gratitude to the people who have been instrumental in the successful
completion of this project.

I would like to show my greatest appreciation to Ass. Prof. Lalit Srivastava. I

The guidance and support received from all the members who contributed and who
are contributing to this project, was vital for the success of the project. I am
grateful for their constant support and help.

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INTRODUCTION

Every right comes with its own duties. Most powerful rights have more duties attached to them.
Today, in each country of globe whether it is democratic, capitalist, socialist, give right to strike
to the workers. But this right must be the weapon of last resort because if this right is misused, it
will create a problem in the production and financial profit of the industry. This would ultimately
affect the economy of the country. Today, most of the countries, especially India, are dependent
upon foreign investment and under these circumstances it is necessary that countries who seeks
foreign investment must keep some safeguard in there respective industrial laws so that there will
be no misuse of right of strike. In India, right to protest1 is a fundamental right under Article 19
of the Constitution of India. But right to strike is not a fundamental right but a legal right and
with this right statutory restriction is attached in the industrial dispute Act, 1947.

Position in India

In India, unlike America, right to strike is not expressly recognized by the law. The trade union
Act, 1926 for the first time provided limited right to strike by legalizing certain activities of a
registered trade union in furtherance of a trade dispute which otherwise breach of common
economic law. Now days a right to strike is recognized only to limited extent permissible under
the limits laid down by the law itself, as a legitimate weapon of Trade Unions.

The right to strike in the Indian constitution set up is not absolute right but it flow from the
fundamental right to form union. As every other fundamental right is subject to reasonable

1
BARE ACT, Article 19, The Constitution of India

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restrictions, the same is also the case to form trade unions to give a call to the workers to go on
strike and the state can impose reasonable restrictions.

Provision of valid strike under the Industrial Dispute Act, 1947-

Section 2(q)2 of said Act defines the term strike, it says, "strike" means a cassation of work by a
body of persons employed in any industry acting in combination, or a concerted refusal, or a
refusal, under a common understanding of any number of persons who are or have been so
employed to continue to work or accept employment. Whenever employees want to go on strike
they have to follow the procedure provided by the Act otherwise there strike deemed to be an
illegal strike. Section 22(1) of the Industrial Dispute Act, 1947 put certain prohibitions on the
right to strike. It provides that no person employed in public utility service shall go on strike in
breach of contract:

Without giving to employer notice of strike within six weeks before striking; or

Within fourteen days of giving such notice; or

Before the expiry of the date of strike specified in any such notice as aforesaid; or

During the pendency of any conciliation proceedings before a conciliation officer and seven days
after the conclusion of such proceedings.

It is to be noted that these provisions do not prohibit the workmen from going on strike but
require them to fulfill the condition before going on strike. Further these provisions apply to a
public utility service only. The Industrial Dispute Act, 1947 does not specifically mention as to
who goes on strike. However, the definition of strike itself suggests that the strikers must be
persons, employed in any industry to do work.

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Industrial Dispute Act, 1947

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Notice of strike

Notice to strike within six weeks before striking is not necessary where there is already lockout
in existence. In Mineral Miner Union vs. Kudremukh Iron Ore Co. Ltd.3, it was held that the
provisions of section 224 are mandatory and the date on which the workmen proposed to go on
strike should be specified in the notice. If meanwhile the date of strike specified in the notice of
strike expires, workmen have to give fresh notice. It may be noted that if a lock out is already in
existence and employees want to resort to strike, it is not necessary to give notice as is otherwise
required. In Sadual textile Mills v. Their workmen certain workmen struck work as a protest
against the lay-off and the transfer of some workmen from one shift to another without giving
four days notice as required by standing order 23. On these grounds a question arose whether the
strike was justified. The industrial tribunal answered in affirmative.

Against this, a writ petition was preferred in the High Court of 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. "

General prohibition of strike-

The provisions of section 235 are general in nature. It imposes 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: -

3
ILR 1988 KAR 2878, 1988 (3) KarLJ 162, (1989) ILLJ 277 Kant
4
The Industrial Disputes Act, 1947
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The Industrial Disputes Act, 1947

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During the pendency of conciliation proceedings before a board and till the expiry of 7 days after
the conclusion of such proceedings;

During the pendency and 2 month’s after the conclusion of proceedings before a Labour court,
Tribunal or National Tribunal;

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;

During any period in which a settlement or award is in operation in respect of any of the matter
covered by the settlement or award.

The principal object of this section seems to ensure a peaceful atmosphere to enable a
conciliation or adjudication or arbitration proceeding to go on smoothly. This section because of
its general nature of prohibition covers all strikes irrespective of the subject matter of the dispute
pending before the authorities. It is noteworthy that a conciliation proceedings before a
conciliation officer is no bar to strike under section 23.

In the Ballarpur Collieries Co. v. H. Merchant it was held that where in a pending reference
neither the employer nor the workmen were taking any part, it was held that section 23 has no
application to the strike declared during the pendency of such reference.

Illegal Strike-

Section 246 provides that a strike in contravention of section 22 and 23 is illegal. This section is
reproduced below:

A strike or a lockout shall be illegal if,

It is commenced or declared in contravention of section 22 or section 23; or

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The Industrial Disputes Act, 1947

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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.

Where a strike or lockout in pursuance of an industrial dispute has already commenced and is in
existence all the time of the reference of the dispute to a board, an arbitrator, a Labour court,
Tribunal or National Tribunal, the continuance of such strike or lockout shall not be deemed to
be illegal;, provided that such strike or lockout was not at its commencement in contravention of
the provision of this Act or the continuance thereof was not prohibited under sub section (3) of
section 10 or sub section (4-A) of 10-A.

A strike declared in the consequence of an illegal lockout shall not be deemed to be illegal.

Consequence of illegal Strike-

a) Dismissal of workmen

In M/S Burn & Co. Ltd. V, Their Workmen,7 1960 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, 8it 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

7
AIR 896, 1960 SCR (3) 423
8
AIR 296, 1953 SCR 686

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according to the standing order and pass proper orders against them subject to the relevant
provisions of the Act.

b) Wages

In Cropton Greaves Ltd. v. Workmen,9 it was held that in order to entitle the workmen to wages
for the period of strike, the strike should be legal and justified. A strike is legal if it does not
violate any provision of the statute. It cannot be said to be unjustified unless the reasons for it are
entirely perverse or unreasonable. Whether particular strike is justified or not is a question of
fact, which has to be judged in the light of the fact and circumstances of each case. The use of
force, coercion, violence or acts of sabotage resorted to by the workmen during the strike period
which was legal and justified would disentitle them to wages for strike period.

The constitutional bench in Syndicate Bank v. K. Umesh Nayak10 decided the matter, the
Supreme Court held that a strike may be illegal if it contravenes the provision of section 22, 23
or 24 of the Act or of any other law or the terms of employment depending upon the facts of each
case. Similarly, a strike may be justified or unjustified depending upon several factors such as
the service conditions of the workmen, the nature of demands of the workmen, the cause led to
strike, the urgency of the cause or demands of the workmen, the reasons for not resorting to the
dispute resolving machinery provided by the Act or the contract of employment or the service
rules provided for a machinery to resolve the dispute, resort to strike or lock-out as a direct is
prima facie unjustified. This is, particularly so when the provisions of the law or the contract or
the service rules in that behalf are breached. For then, the action is also illegal.

c) Right of employer to compensation for loss caused by illegal strike

9
AIR 1978 SC 1489
10
AIR 1995 319, 1994 SCC (5) 572

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In Rothas Industries v. Its Union11, the Supreme Court held that the remedy for illegal strike
has to be sought exclusively in section 26 of the Act. The award granting compensation to
employer for loss of business though illegal strike is illegal because such compensation is not a
dispute within the meaning of section 2(k) of the Act.

The various types of strikes include:

1) General Strike

2) Sit down Strike

a) Pen/ Tool down Strike

1) Go-slow strike

2) Go- speed Strike

General Strike

A general strike is said to be a legal strike since it follows all the protocols as stated in the Act of
Industrial Disputes. Employees begin by giving a strike notice to the management of the industry
they work for it. If the management fails to settle the dispute within the given time in the strike
notice, the strike will be launched after the expiry of notice. All trade unions linked to the
demand at hand participate in the General Strike.

Case - Kameshwar Prasad and others v. State of Bihar and Union of India12

Bihar Government servants’ Conduct Rules, 1956 had a rule, Rule 4-A that prohibited workers
from demonstrating or initiating any strike. The petitioners and other employees in the State of
Bihar filed a case before the High Court concerning the rule. The High court made a judgement

11
1976 AIR 425, 1976 SCR (3) 12
12
AIR 1962 SC 1166 SCR 369

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in favour of the employees and petitioners saying that strike is the workers’ right though not
fundamental.

Sit- down Strike

This kind of strike involves employees reporting for duty in their workplaces normally, take their
positions in their various areas of work but here comes the game changer , the simply sit and do
nothing.

They might also choose to just hang around the industry’s premises. The objective of this strike
is to cripple production. The industry ends up incurring huge losses due to no work being done at
all.

It is also of great pain and shame to the employers since the rate of production is going down in
the presence of workers who have reported for duty to work which they eventually end up not
doing.

Case – Sadul Textile Mills limited v. Their workmen 13

The Supreme Court ruled that a sit down strike is not justified by any means even if it does not
involve violence since it is an infringement of the employers’ rights.

 Pen/ Tool down Strike

This type of strike shares some similarities with the sit down strike. For the pen down, it mostly
takes place among people with white- collar jobs or rather people who work in offices. Tool
down is for workers in production industries like factories to be specific. This type of strike
qualifies to be a strike since members drop down their items of work in unison and refuse to
work.

13
1958 L.L.J. 638 Raj.

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1) Go slow Strike

The go slow strike is aimed at showing the employers how offended the employees are. The
employees report for duty as usual and could even go to work but with only one distinction; they
don’t actually do anything productive. They delay in all that they do and the outcome turns into
little or no production at all.

The unique thing about this strike is that at the end of the day, the employees demand for their
wages. This aspects makes the go slow strike the most harmful strike compared to total
dissertation of work like in the general strike. No production has been made but the workers have
to be paid because they are demanding for it.

The Supreme court ruled that a go slow strike is a major form of misconduct when it comes to
labor in the case of “Bharat Sugar Mills ltd. v. Jai Singh”14

2) Go speed strike

It is not a common type of strike but it has also proven to bear results. Unlike the go slow strike,
the workers of the industry give a notice to the employers in advance stating various demands
that they have. They go ahead to give a duration of time to the management to look into those
demands. By any chance, if the management fails to meet the stated demands in the time given,
the workers resolve to a strike.

A kind of a strike that sees them work harder hence making a greater level of production in the
industry. The increase in production is meant to channel their discontentment with the
management. The unique strike sees the workers working on overtime which is in turn causes the
employer to feel humiliated.

The overproduction brings about a problem in the distribution of raw materials, storing and
keeping stock of the finished and unfinished products and so forth- generally causing an
economic collision. The employer is then forced to meet the demands of the workers.

14
1961 L.L.J. 644 SC

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CONCLUSION
The right to strike is not fundamental or absolute right in India in any special and common law,
Whether any undertaking is industry or not. This is a conditional or qualified right only available
after certain pre-condition are fulfilled. If the constitution maker had intended to confer on the
citizen as a fundamental right the right to go on strike, they should have expressly said so. On the
basis of the assumption that the right to go on strike has not expressly been conferred under the
Article 19(1) (c) of the Constitution. Further his Lordship also referred to the observation in
Corpus Juris Secundum that the right to strike is a relative right which can be exercised with due
regard to the rights of others. Neither the common law nor the fourteenth Amendment to the
federal constitution confers an absolute right to strike. it was held in the case that the strike as a
weapon has to be used sparingly for redressal of urgent and pressing grievances when no means
are available or when available means have failed to resolve it. It has to be resorted to, to compel
the other party to the dispute to see the justness of the demand. It is not to be utilized to work
hardship to the society at large so as to strengthen the bargaining power. Every dispute between
an employer and employee has to take into consideration the third dimension, viz. the interest of
the society as whole. Recently Supreme Court held that if the strike is illegal then the employer
have right to take action against the workers or employees who had taken part in the strike.

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