Name: anjanay pratap singh

Course: LL. B (5 years)

Semester: 5 th

Section: A
Student ID: 2210013015033
Subject: LABOUR law
Session: 2024-25
Topic: STRIKES AND LOCKOUTS
SUBMITTED TO: prof. dr. SHWETA SRIVASTAVA
 ACKNOWLEDGEMENT

I have taken efforts in this project. However, it would not

have been possible without the kind support and help of
many individuals. I would like to extend my sincere thanks
to all of them.
I am highly indebted to Dr. Shweta Srivastava Ma’am for
her guidance and constant supervision as well as for
providing necessary information regarding the project
and also their support for completing the project on time.
Her constant guidance and her vast knowledge made me
understand this topic and its manifestation in great
depths.
I would like to express my gratitude towards my parents
and peers for their kind cooperation and encouragement
which helped me in completing this assignment.

Anjanay Pratap Singh

2210013015033
5th Semester, LL. B(Integrated)
INTRODUCTION

The right to strike by workers is a recognised weapon available to them to settle their
differences with management and enforce the management to accept their demands. Strike is a
part of the bargaining process. In this respect well-known writer R.E. Mathew, Labour
Relations and the Law1 states as follows:

“The strike is itself a part of the bargaining process. It tests the economic bargaining power of
each side and forces each to face squarely the need it has for the other's contribution. As the
strike progress, the workers' savings disappear, the union treasury dwindles, and management
faces mounting losses. Demands are tempered, offers are extended, and compromises
previously unthinkable become acceptable. The very economic pressure of the strike is the
catalyst which makes agreement possible. Even when no strike occurs, it plays its part in the
bargaining process, for the very prospect of the hardship which the strike will bring will force
a party to compromise. Collective bargaining is a process of reaching agreement, and strikes
are an integral and frequently necessary part of that process."

Lockout, the tactic of withholding employment, typically used by employers to hinder union
organization or to gain leverage in labour disputes. It is often accomplished by literally locking
employees out of the workplace, but it can also be achieved through work stoppage, layoffs, or
the hiring of non-union replacement workers.

In the United States, lockouts became a common tactic by employers in the 1880s and ’90s,
when unions of silver and lead miners in Nevada, Colorado, Idaho, and Utah were fighting for
an eight-hour day and higher pay. During this period the lockout was also used against
the Knights of Labor (KOL) in industries that included meatpacking, cigar making, knitting,
and laundering. In fact, the lockout strategy was central to the KOL’s demise.

1
https://socialsciences.exeter.ac.uk/media/universityofexeter/schoolofhumanitiesandsocialsciences/law/pdfs/Lab
our_and_the_Law.pdf
DEFINITION OF STRIKE

According to Webster's Dictionary,

“Strike is "the act of quitting work done by mutual understanding by a body of workmen as a
means of enforcing compliance with demands made on their employer; a stopping of work by
workmen in order to obtain or resist a change in condition employment."

Section 2(q) of the Industrial Disputes Act, 1947 defines strike as follows:

"Strike" means a cessation of work by a body of persons employed in any industry

acting in combination, or a concerted refusal, or a refusal under a common
understanding, of any number of persons who are or have been so employed to
continue to work or to accept employment

According to the definition the essential ingredients of a strike are:

1. Industry. The strike must be in an industry within the meaning of Section 2(j) of the
Industrial Dispute Act.
2. Employer-employee relationship. There should be relationship of employer-employee
between the employer and the striking workmen.
3. Cessation of the work by a body of persons or a refusal to continue to work or to accept
employment. Cessation of work, refusal to work or discontinuance of work is essential
to constitute a strike
4. Concerted action. Mere cessation of work will not come within the definition of strike
unless the cessation of work is a concerted action for the enforcement of an industrial
demand.

Thus, strike means the stoppage of work by a body of workmen employed in an industry acting
in concert. Duration of the cessation of work or refusal to work is immaterial. Mere absence
from work is not enough, but there must be concerted refusal to work, to constitute a strike.
There must be concerted action by a body of workmen for the enforcement of an
industrial demand. The workmen must be employed in an industry.
In Standard Vacuum Oil Co. v. M.G. Gunaseelam2. The workman of factory wanted to
celebrate "May Day". They requested the management to declare that day a holiday. The
workmen were also ready to compensate the loss of work by working on Sunday. The
management did not agree. The workmen applied enblock for casual leave. The Labour
Appellate Tribunal held that there was no strike. It is submitted that this decision is not sound
as all the ingredients of strike are present in the instant case.

In TISCO Ltd. v. Workmen3, it was held that if the employer substitutes the weekly rest day
of Sunday by other rest day without giving a notice of change, then it is an illegal change.
Refusal to give work in pursuance of illegal change will amount to lock-out. Therefore, the
refusal to work on the substituted day in this case did not amount to strike. In North Brook
Jute Co. Ltd. v. Their Workmen4, it was held that when rationalisation scheme is introduced
contrary to Section 33 of the Industrial Disputes Act, then refusal to act according to that
scheme does not constitute 'strike'.

In Punjab National Bank v. All India Punjab National Bank Employees' Federation 5; it
was held pen down strike covered under Section 2(q). On a plain and grammatical construction
of the definition of strike in Section 2(q) it would be difficult to exclude a strike where workmen
enter the premises of their employment and refuse to take their tools in hand and start their
usual work. Refusal under common understanding to continue to work is a strike and in
pursuance of such common understanding the employees entered the premises of the Bank and
refused to take their pens in their hands that would no doubt be a strike under Section 2(q).

TYPES OF STRIKE

There are mainly two types of strike, namely (1) general strike; (2) stay in, sit down, tools
down and pen down strikes.

(1) General Strike: A general strike is one, where the workmen join together for a common
cause and stay away from work, depriving the employer of their labour to run the industry.
Token strike which is of short duration-a few hours of a day etc. whose main object is to draw
the attention of the employer by demonstrating the solidarity and co-operation of the

2
1954-II LLJ 656 (LAT)
3
AIR 1972 SC 1917
4
AIR 1960 SC 879
5
1960 SC 160
employees, is also a kind of general strike. General strike is usually for a longer period. It is
generally resorted to when the employer does not accept the demands of the employees by
other means including a token strike which precedes a general strike.

(2) Stay in, sit down, tools down and pen down strikes: These are some of the variants of
strike resorted to by workmen under different circumstances. In such cases, the workmen enter
the place of their work, report to their duties but do not do any work. In Punjab National Bank
v. Their Workmen6, it was held that on a plain and grammatical construction of definition of
strike as given in Section 2(1), it would be difficult to exclude a strike where workmen enter
the premises of their employment and refuse to take their usual work. In this case, it was held
that a 'pen down' strike is a strike within the meaning of Section 2(q). Similarly, 'tools down'
strike where factory workers refuse to work with their tools is strike under Section 2(q). In
Mysore Machinery Manufacturer v. The State7, where dismissed workmen were staying on
premises and refused to leave it was held to be a criminal trespass and not a 'stay-in' strike.

In addition to these two forms of strikes which are usually resorted to by the
employees, a few more may be discussed below although some of them are not
strikes within the meaning of Section 2(q).

Hunger strike: When a group of workmen resort to fasting on or near the place of work or the
residence of the employer with a view to coerce the employer to accept their demands it is
called hunger strike. It is not really a strike but adoption of coercive method to achieve some
objective. But under certain circumstances it may come under Section 2(q). In Piparich Sugar
Mills Ltd. v. Their Workmen8, certain workmen who held key positions in the appellants mill
resorted to hunger strike at the residence of the managing director with the result that other
workmen who came to do the work could not be work. It was held by the Supreme Court that
in the above circumstances the concerted action of the workmen who went on hunger strike
amounted to strike within the meaning of Section 2(q).

Sympathetic Strike: A sympathetic strike is resorted to in sympathy of other striking workmen

to encourage or to extend moral support to them. The workmen who go on such a strike do not
have any demand or grievance of their own. In Kambalingam v. Indian Metallurgical
Corporation, Madras9, it was held that when the workers in concert absent themselves out of

6
AIR 1960 SC 160
7
AIR 1966 Mysore 51
8
AIR 1960 SC 1258
9
1964-1 LLJ 81
sympathy to some cause wholly unrelated to their employment or even in regard to condition
of employment of other workers in service under other managements, such absence could not
be held to be strike, as the essential element of the intention to use it against the management
is absent. However, the management would be entitled to take disciplinary action against the
workmen for their absence on the ground of breach of service.

Go Slow. In this case, the workmen come to their place of work and do work also but with a
slow speed in order to lower down the Production and thereby causes loss to the employer, Go-
slow is not a 'strike' within the meaning of Section 2(q). Go-slow is a serious type of
misconduct. In Bharat Sugar Mills Ltd. v. Jai Singh10, the Supreme Court held that go-slow
is one of the most pernicious practices that discontented or disgruntled workmen sometime
resort. It would not be far from wrong to call it dishonest.

Work to rule: Work to rule is resorted to by workmen to circumvent the provisions of law
governing their service conditions. In this case, the workmen strictly observe the rules while
performing their duties and thus slow down the tempo of work which causes inconvenience to
the public and embarrassment to the employer. Work to rule is not a strike within the meaning
of Section 2(q) as there is no stoppage of work.

Gherao: It means "to surround" or "to confine". It is a criminal offence. It does not fall within
the meaning of strike in Section 2(q) of the I.D. Act, 1947.

RIGHT TO STRIKE

In T.K. Rangarajan v. Government of Tamil Nadu11, that right to resort to strike is not a
fundamental right. The Court explained why there is no such right. Further there is no
legal/statutory right to go on strike and there is no moral or equitable justification to go on
strike. Government employees cannot claim that they can take the society at ransom by going
on strike. Even if there is injustice to some extent, as presumed by some employees, in a
domestic welfare state, they have to resort to the machinery provided under different statutory
provisions for redressal of their grievances. Strike as a weapon is mostly misused which results
in chaos and total maladministration. Strike affects the society as a whole and particularly when
two lakh employees go on strike en masse, the entire administration comes to a grinding halt.

10
1961-II LLJ 664
11
(2003) 6 SCC
In the case of strike by teachers, the entire educational system suffers; many students are
prevented from appearing in their examinations which ultimately affects their whole career. In
case of strike by doctors, innocent patients suffer; in case of strike by employees of transport
services, entire movement of the society comes to a standstill: the business is adversely affected
and number of persons find it difficult to attend to their work, to move from one place to another
or one city to another. On occasions, public properties are destroyed or damaged and finally
this creates bitterness among the public against those who are on strike. There are about
twelve lakh employees in the State of Tamil Nadu. Out of the total income from direct tax,
approximately 90% of the amount is spent on the salary of the employees. In a society
where there is large scale unemployment and number of qualified persons eagerly waiting for
employment in government departments or in public sector undertakings, strike cannot be
justified on any equitable ground. In the prevailing situation, apart from conscious of rights,
there has to be full awareness of duties, responsibilities and effective methods for discharging
the same. For redressing their grievances, instead of going on strike, if employees were to do
some more work honestly, diligently and efficiently, such gesture would not only be
appreciated by the authority but also by the people at large. The reason being, in a democracy
even though they are government employees, they are part and parcel of the governing body
and owe duty to the society.

Earlier in B.R. Singh v. Union of India12, it was held that right to strike though not a
fundamental right but a recognised mode of redressal of grievances of workers. But the right
to strike is not absolute under our industrial jurisprudence and restrictions have been placed on
it. These are to be found in Sections 10(3), 10-A (4-A), 22 and 23 of the Industrial Disputes Act,
1947.

12
(1989) 4 SCC 710
DEFINITION OF LOCKOUT

Lock out is the antithesis of strike, Strike is a weapon in the hands of the labour to force the
management to accept their demands. Similarly, lockout is a weapon in the hands of the
management to coerce the labour to come down in their demands relating to the conditions of
employment. As in the case of strike so also in the case of lockout there is no severance of
relationship of employer and employee.

According to Webster's Dictionary, lock-out is withholding of employment by an employer and

the whole or partial closing of his business establishment in order to gain concessions from
employees.

Section 2(1) of the Industrial Disputes Act, 1947 defines lock-out as follows:

"Lock-out" means the temporary closing of a place of employment, or the

suspension of work, or the refusal by an employer to continue to employ any
number of persons employed by him.”

The definition has the following three ingredients of a lock-out:

1. Temporary closing of a place of employment; or

2. suspension of work, or

3. refusal to continue to employ any number of persons employed by the employer.

In case of lockout the workmen are asked by the employer to keep away from work, and
therefore, they are not under any obligation to present themselves for work. In Shri
Ramchandra Spinning Mills v. State of Madras13, it was observed that if the employer shuts
down his place of business as a means of reprisal or as an instrument of coercion or as a mode
of exerting pressure on employees or generally speaking when his act is what may be called
act of belligerency there would be a lockout. In Lord Krishna Sugar Mills Ltd., Saharanpur
v. The State of U. P14, it was held that a lock out may sometime be not at all connected with
economic demands; it may be resorted to as a security measure. In Lakshmi Devi Sugar Mills

13
AIR 1956 Mad. 241
14
1960-II LLJ 76
Ltd. v. Ram Sarup15, it was held that in case of lock out there is neither alteration to the
prejudice of workmen of the conditions of the service applicable to them nor a discharge or
punishment whether by dismissal or otherwise.

The liability of the employer in case of lock-out would depend upon whether the lock-out was
justified and legal or not and the provisions regarding lay-off compensation are not applicable.
Where the manager was violently attacked and other members of staff were threatened the lock-
out was fully justified. Kairbetta Estate v. Rajamanickam16.

DISTINCTION BETWEEN LOCK-OUT AND CLOSURE.

In the case of closure, the employer does not merely close down the place of business, but he
closes the business itself. Lock-out, on the other hand, indicates the closure of the place of
business and not the closure business itself. In Express Newspapers Ltd. v. Their Workmen
(1962) 2 LLJ 227 the Supreme Court gave the following points of distinction between the two:

1. In lock-out there is no severance of employer-employee relationship while in closure

there is severance of such relationship.

2. Lock-out is caused by the existence or apprehension of an industrial dispute. A

closure need not be due to an industrial dispute.

3. A lock-out is a weapon available to an employer to persuade the workers by coercive

process to agree to his point of view. Thus it is a tactic in bargaining. On the other hand,
a closure is closing down the business and thereby ending bargaining.

In General Labour Union (Red Flag) Bombay v. B.V. Chavan and Others17 it was held that
"the essence of the lock-out is the refusal of the employer to continue to employ workmen.
There is no intention to close the industrial activity. Even if the suspension of work is ordered
it would constitute lock-out. On the other hand, closure implies closing of industrial activity as
a consequence of which workmen are rendered jobless." To determine whether the employer
has resorted to lock-out or closure “the true test is that when it is claimed that the employer has
resorted to closure of industrial activity, the Industrial Court in order to determine whether the
employer is guilty of unfair labour practice must ascertain on evidence produced before it

15
1957-I LLJ 17 SC
16
(1960) 3 SCR 371
17
(1985) 1 SCC 312
whether the closure was a device or pretence to terminate the services of workmen or whether
it is bonafide and for the reasons beyond the control of the employer. The duration of the closure
may be significant fact to determine the intention and bonafides of the employer at the time of
closure but it is not decisive of the matter."

PROHIBITION OF STRIKES AND LOCK-OUTS IN PUBLIC UTILITIES

Section 22 of the Act deals with prohibition of strikes and lock-outs in industries carrying
public utility service. The strikes and lockouts in public utility services are not absolutely
prohibited but certain conditions are to be fulfilled by the workmen before resorting to strike
or by the employers before resorting to lockout. Sub-section (1) of Section 22 and sub-section
(2) of Section 22 prescribe the conditions which are to be fulfilled in case of strike and lockout
respectively. The intention of the legislature in enacting the section was to provide sufficient
safeguards in matters of public utility services, as otherwise it would result in great
inconvenience to the general public and the society.

Section 22(1) prescribes conditions for the employees, before going on strike. It provides
as follows:

"No person employed in a public utility service shall go on strike in breach of contract-

(a) without giving to the employer notice of strike, as herein after provided,
within six weeks before striking; or

(b) within fourteen days of giving such notice; or

(c) before the expiry of the date of strike specified in any such notice as
aforesaid; or

(d) during the pendency of any conciliation proceedings before a conciliation

officer and seven days after the conclusion of such proceedings."

Thus, a strike in a public utility can take place only when 6 weeks notice has been served and
14 days have expired after serving the notice. According to Section 22(3) notice of strike
(within six weeks before striking) is not necessary when there is already a lock-out in existence
in the public utility concerned.
Further, the employees should not go on strike before the expiry of the date of the strike during
the pendency of any conciliation proceedings before a conciliation officer and seven days after
the conclusion of such proceedings. Any strike commenced in contravention of these
provisions would be illegal.

Section 22(2) lays down similar conditions which an employer must fulfill before resorting
to lock-out. It provides as given below:

"No employer carrying on any public utility service shall lock-out any of his workmen-

(a) without giving them notice of lock-out as hereinafter provided, within six
weeks before locking-out; or

(b) within fourteen days of giving such notice; or

(c) before the expiry of the date of lock-out specified in any such notice as
aforesaid; or

(d) during the pendency of any conciliation proceedings before a conciliation

officer and seven days after the conclusion of such proceedings."

Section 22(3) provides that no notice of lock-out is necessary where there is already in
existence a strike in the public utility service concerned.

Section 22(3) further provides that the employer shall send intimation of such lock-out or strike
on the day on which it is declared, to such authority as may be specified by the appropriate
Government either generally or for a particular area or for a particular class of public utility
services.

Sub-sections (4), (5) and (6) of Section 22 are reproduced below:

"(3) The notice of lock-out or strike under this section shall not be necessary where there is
already in existence a strike, or as the case may be lock-out in the public utility service, but the
employer shall send intimation of such lock-out or strike on the day on which it is declared, to
such authority as may be specified by the appropriate Government either generally or for a
particular area or for a particular class of public utility services.

(4) The notice of strike referred to in sub-section (1) shall be given by such number of person
or persons and in such manner as may be given in such manner as may be prescribed.
(5) The notice of lock-out referred to in sub-section (2) shall be given in such manner as may
be prescribed.

(6) If on any day an employer receives from any person employed by him any such notices as
are referred to in sub-section (1) or given to any persons employed by him any such notices as
are referred to in sub-section (2) he shall within five days thereof report to the appropriate
government or to such authority as that government may prescribe, the number of such notices
received or given on that day."

In Ramnagar Cane and Sugar Co. Ltd. v. Jatin Chakravarty18 it was held that during the
pendency of conciliation proceedings between a public utility concern and one of its unions
attracts the provisions of Section 22(1)(d) to the strike declared by another union of the same
concern and makes the said strike illegal.

In India General Navigation and Railway Co. Ltd. v. Workmen19, the Supreme Court held
that lock-out within seven days of conciliation proceedings not illegal if resulting as a
consequence of illegal strike already started.

In Essorpe Mills Ltd. v. Presiding Officer, Labour Court20, it was held that Section 22
provides for six week's advance notice for strike, and fourteen days' time is given to the
employer to consider the demand raised in the strike notice. Valid strike cannot commence
before the expiry of six weeks' time under Section 22(1)(a) and fourteen days thereafter under
Section 22(1)(b). Strike notice has to be given in Form 'L' to the employer who in turn is
required to inform the Government/prescribed authority under Section 22(6). There is no
provision for sending notice by workers direct to the Conciliation Officer. Any purported notice
of strike which does not observe the prescribed time period is not a valid notice under Section
22. Consequently, such an invalid notice cannot also commence conciliation proceedings under
Section 20. In the absence of conciliation proceedings, approval of the Conciliation Officer
under Section 33(2)(b) proviso was not necessary. It was further held that earlier strike which
was illegal could not be remedied by a subsequent strike in compliance with Section 22.

GENERAL PROHIBITION OF STRIKES AND LOCK-OUTS

18
AIR 1960 SC 1012
19
AIR 1960 SC 219
20
(2008) 7 SCC 594
The prohibition of strikes and lock-outs contained in Section 23 is general in nature which
applies to both public utility as well as to non-public utility establishments. The section is
reproduced below:

"No workman who is employed in any industrial establishment shall go on strike in breach of
contract and no employer of any such workman shall declare a lock-out-

(a) during the pendency of conciliation proceedings before a Board and seven days after
the conclusion of such proceedings.

(b) during the pendency of proceedings before a Labour Court, Tribunal or National
Tribunal and two months after the conclusion of such proceedings;

(bb) during the pendency of arbitration proceedings before an arbitrator and two months
after the conclusion of such proceedings, where a notification has been issued under
sub- section (3-A) of Section 10-A; or

(c) 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 object of these provisions is to ensure a peaceful atmosphere to enable a conciliation or

adjudication or arbitration proceeding to go on smoothly. It may be noted that conciliation
proceeding before a Conciliation Officer is no bar to a strike or lock-out under this section.

In Chemicals and Fibres of India Ltd. v. D.G. Bhoir & Others21, it was held that pendency
of a dispute between providividual workman as such and the employer does not attract the of
Section 23.

In Workmen v. Motor Industries Co. Ltd22., it was held that there is a difference between a
strike envisaged by Section 23(1) in respect by Section 29. If the strike is it is not an illegal
strike Co. Ltd., AIR 1969 SC 1280 of matter covered by in the matter not covered by the
settlement a settlement envisaged 23(3).

AIR 1975 S.C. 1660

21

AIR 1969 SC 1280

22