Constitutional Law

Project on
Right to Strike

SUBMITTED BY:HERA FATIMA

Malik

B.A. LLB (HONS.)

4th SEMESTER

SUBMITTED TO:Dr Mohammad Asad

JAMIA MILLIA ISLAMIA

ACKNOWLEDGEMENT

Any accomplishment requires the effort of many people and same is true about this
project. This project is a result of collective effort. There are innumerous helping
hands behind it who have guided me on my way.
First and foremost I would like to thank my Constitutional Law professor for
creating such an opportunity for the students to broaden their frame of skills.
It was an interesting and informative topic and the

project helped me in

understanding the topic really well as well as various aspects of THE RIGHT TO
STRIKE.I would also like to thank my friends who helped me in making this
project and also the almighty
Thanking you
Hera Fatima

TABLE OF CONTENTS

1)

2)

3)

INDEX OF AUTHORITIES
Cases Referred
Treatises
Statutes
INTRODUCTION
Development of Strike
Changing Attitudes To Strike
WHAT IS STRIKE?
Right To Freedoms: Article 19

Strike :Legislative Provisions

Notice Of Strike

Consequences Of Illegal Strike

4) INTERNATIONAL NORMS AND STANDARDS

5) INDUSTRIAL DISPUTES ACT, 1947
6) STRIKE AS A FUNDAMENTAL RIGHT
7) STRIKE AS A LEGAL RIGHT
8) STRIKE AS A STATUTORY RIGHT
9) JUDICIAL INTERPRETATIONS OF RIGHT TO STRIKE
10) WEAPON OF LAST RESORT
11) CONCLUSION

INDEX OF AUTHORITIES

CASES REFERRED
1. All India Bank Employees' Association v. National Industrial Tribunal
and others,
2(3) SCR 269.
2. Bangalore Water Supply & Sewerage Board v. A. Rajappa, AIR 1978 SC
548.
3. Bank of India v.I.S.Kalewala
4. Bidi Supply Co. v. Union of India, 1956 SCR 267.
5. Chandramalai Estate vs. Their Workmen (1960) 2 LLJ 243 (SC).
6. Communist Party of India (M) v. Bharat Kumar and others, 1998(1) SCC
201.
7. Crompton Greaves Ltd v. Workmen AIR 1978 SC 1489
8. Ex-Capt. Harish Uppal v. Union of India and Another, 2003(2) SCC 45:
2003(1) SCT
382 (SC).
9. Gujarat Steel Tubes v. Its Mazdoor Sabha, (1990) Lab IC 389 SC
10.
Himatlal v. Police Commissioner, AIR 1985 SC 229.
11.
Kairbitta Estate v. Rajmanickam [1960] II L.L.J. 275 (S.C.)
12.
Kameshwar Prasad and others v. State of Bihar and another,
1962 Suppl.1 3 SCR 369
13.
Karnal Leather Karamchari Sanghathan v. Liberty Footwear Co.
[1990] Lab I.C. 301.
14.
Kesavananda Bharati v. State of Kerala, 1973(4) SCC 225.
15.
L. Chandra Kumar v. Union of India and others, 1997(2) SCT 423
(SC).
16.
M/S Burn & Co. Ltd. V, Their Workmen AIR 1957 SC 38.
17.
Management of Chandramalai Estate, Ernakulam v. Its workmen
AIR 1960 SC 902
18.
Maneka Gandhi v. Union of India, AIR 1978 SC 59.
19.
Mineral Miner Union v. Kudremukh Iron Ore Co. Ltd 1988 (3) KarLJ
162
20.
Mineral Miner Union vs. Kudremukh Iron Ore Co. Ltd 1988 (3)
KarLJ 162
21.
Punjab National Bank v. Their Employees 1953 SCR 686
22.
Radhey Shyam Sharma v. The Post Master General Central Circle,
Nagpur, 1964(7) SCR 403.
23.
Romesh Thappar v. The State Of Madras 1950 SCR 404
24.
Rothas Industries v. Its Union AIR 1976 SC 425
25.
Sadual textile Mills v. Their workmen,1966 SCR (3) 558

26.
Syndicate Bank v. K. Umesh Nayak AIR 1995 SC 319
27.
T K Rangarajan v. State of Tamilnadu, AIR 2003 SC 3032.
28.
Workmen of Hindustan Lever Ltd. v. Hindustan Lever Ltd., [1984]
Lab I.C. 276 (SC),

TREATISES
1) H.L Kumar, Law Relating To Strike, Lock-Out, Ghero And Demolition, (2 nd Edn,1992)
Universal Book Traders.
2) H.L. Kumar,Digest of Labour Law Cases.(7th Edn,2010),Universal Law Publishing Co.
3) Malhotra, O.P, The Law of Industrial Disputes, Vol. I, 5th Ed., Universal Law Publishing
Co.
4) M.Y. Khan, A Study of Labour & Industrial Laws, (1992), Metropolitan
5) S.N. Misra, Labour & Industrial Laws, 22 nd Ed. (2006), Central Law
Publication.

STATUTES
1) Essential Services Maintenance Act, 1960.
2) Industrial Employment (Standing Order) Act, 1926
3) Labour Relations (Public Service) Convention, 1978.
4) Tamilnadu Government Servants Conduct Rules, 1973.
5) The Constitution of India, 1950.
6) The Industrial Disputes Act, 1947.
7) The Tamilnadu Essential Services Maintenance Act 2002.
8) Trade Unions Act, 1926.

INTRODUCTION
The term "strike" is almost two hundred years old. The first recorded use of the phase 'to strike
work' appeared in 1768 at the beginning of the Industrial Revolution in U.K 1.The report of the
1867 Royal Commission on Trade Unions referred to workers having been "fined for going to
work in a shop that had been struck2, but it was some time before the more sensational
connotation of the word "strike" began to cloud the clarity of its metaphorical origins. In 1891,
the phrase "striking a firm" appeared; by 1910 the word "strike" was suggesting to a writer the
blacksmiths manner, the woodmans axe, the patriots sword3; and the word maintained its
violent association throughout syndicalist era of great strikes which ended in 1926. The year
1926 did indeed mark the end of an era, an era which ended not with a bang, but a whimper.
The very term strike has been dissolving in a solution of official euphemism ever since: a
spade is a mere garden implement, starvation in malnutrition and a strike is an unofficial
stoppage. The word strike was originally used of both forms of industrial dispute which
involve a collective stoppage of work. The word strike has been describe as willful stoppage of
many kinds of activity; for instance hunger strike, rent strike, rate strike, debt strike, strikes of
capital, buyers strike, farmers strike, students strike etc.
Generally speaking, a strike must involve a group of employed workers; that is there must be a
definite employer-employee relationship between the parties involved in the dispute. Moreover,
official definitions usually exclude political strikes and are restricted to dispute concerning the
terms or conditions of employment.

Development of Strike
Until the beginning on the 19th century, the relation between the management and workers were
governed by what is known as the doctrine of Laissez Faire which gave the management
unbridled power over their workmen whom they could freely hire and fire as they pleased and
sweat and exploit on the strength of the so-called sanctity of contract. The reason was that the
labour was unorganized and commanded no bargain power to fight for better terms from their
1 Annual Register, 107 (may 9th, 1968).
2 Third report, 1867 at 27.
3 Crosby, Strikes: When to strike-How to strike(1910).

management. Even the very innocent and legitimate grievances of the working class were
suppressed by the management.
However, the struggle went on and the working classes suffered untold hardships but they
continued their efforts to grow united and organized. It was this unity, spirit of organization and
the conscience of common suffering which placed into the hands of the working called what is
known as the weapon of collective bargain. So , what the working classes could not claim in
law, they tried to get it in fact by organizing and controlling the supply of labour to the
employers. Thus the doctrine of Laissez Faire received a rude shock and gradually became
inoperative in the face of the organized labour. In our country also, the legal right tot organize
themselves into trade union for collective bargaining was recognized when the Trade Union Act,
1926 was passed and brought into force with effect from 1 st June 1927. To make this weapon
really effective for its use, the legislature subsequently provided a sharp edge to it by giving the
industrial workers the right to strike, subject to certain restriction and limitation. Another welfare
legislature in India resulted in the passing of the Industrial Employment (Standing Order) Act,
1926. The model standing orders defined the terms of employment and also spelt out what type
of conduct could amount to misconduct entailing punishment of fine, suspension and dismissal.
This concept began gradually to be transformed into one of industrial employment. The law of
master and servant fell essentially in the domain of the private law of contract. The law of
industrial employment was, therefore, another step in the transition towards the public law which
was regulated the relations between the employer and the employee on the basis of statuary
regulations rather than by the terms of private contract. This process was rather strengthened by
the passing of the Industrial Dispute Act, 1947. The industrialization afforded opportunities to
the workers to unite in order, to assert their rights and to protect against the inferior working
conditions and terms of employment. Thus after a long struggle the workers succeeded in
establishing that the weapon of strike was open to them and the strike was recognized as a
legitimate weapon in the armory of the workers for the purpose of ventilating their grievances.
Now the strongest weapon with which the law has armed workmen in any industrial
establishment, for collective bargaining, is the power to go on strike and it is often accelerates
settlement by the employers and employees. The strike is itself a past 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 others contribution. As a strike progresses, the workers savings disappears, the union
treasury dwindles, and the management faces mounting process. Demands are tempered, offers
are extended, and compromises previously unthinkable become acceptable. The ever economic
pressure of the strike is the catalyst which makes agreement possible, for the very prospect of the
hardship which the strike will bring provided a prod to compromise. Collective bargaining is a
process of reaching agreement and strikes are and integral and frequently necessary part of the
process. That is how the development of strike took place. Now whatever may be the value of
strike judged by common standards, it has, in certain circumstances, been recognized as a
legitimate weapon of the workmen for the purpose of ventilating the demands. Now a day the

weapon of strikes which use to be the last recourse of the labour, has become the first choice of
the workers.

Changing Attitudes To Strike

Naturally, strikes bear very different characters at different times, and popular attitudes to strikesthat is shared by many of the workers, themselves change also. In the first part of the 19 th
century, strikes, as a blind revolt against the laissez faire were considered conspiracies against
the laws of the god as well as of man.
Industrial revolution brought economic prosperity in UK and the establishment of stronger trade
unions was reflected in the policy of New Model Unionism and modified The Great Depression
and the growth of socialist propaganda bodies, developed a greater degree of self consciousness
in strikers and aroused considerable public sympathy on there behalf, while the political
implications of workers militancy were largely unrecognized. But from the end of the first
decade of the 20th century, when events had forced the trade unions decisively into parliamentary
politics, syndicalist agitation gave the strike movement a political colour. In the world at large,
Britain was beginning to face an economic showdown; at home, the supply of good tempered,
cheap labour upon which the fabric of our contemporary case and comfort is erected is given out.
The workers in beginning now to strike for unprecedented ends against the system, against the
fundamental conditions of labour, to strike for no define ends at all, perplexingly and
disconcertingly the old fashioned strike was a method of bargaining, clumsy and violent perhaps,
but bargaining still the new fashioned strike is far less of a haggle, far more of a display of
temper.4
The outbreak of the war merely checked the unrest, the armistice released it; inflation, Russian
intervention and slump inflamed it. In the words of Trade Union representatives in 1919, the
fundamental cases of labour unrest were to be found rather in the growing determination of
labour to challenge the whole existing structure of capitalist industry than in any of the more
special and smaller grievances which came to the surface at any particular time.5
Revolution in Europe develop the self consciousness or class consciousness of both sides; but it
accidently depended on the split between left and right in the trade union movement, which
appeared very clearly in 1926 brought about new attitudes, not only the general strikes but to all
strikes. This change cannot be attributed wholly to the onset of a greater depression and greater
war, or to the elaboration of strike preventing machinery and to postwar full employment. Strikes
4 H.G. Wells, in 1913.
5 Memorandum on the causes of labour unrest, presented by the Trade Union
representatives on the joint committee at the national industrial conference,
February 27th 1919.

today are very different from what they were 50 years ago. Yesterday they were battles; today
few of them are more than protest demonstrations.
The concept of social justice in a dynamic society sees justice as a matter of right and obligations
considered together as a whole. Therefore, in order to achieve social justice, contractual
procedure should be arranged in such a way that conditions are fair for the workers, and that at
the same time, the stability and evolution of society is guaranteed. The responsibility for this
rests mainly on those in position of public power, and also on all citizens.
The strike phenomenon expresses a challenge to the employers power, and the emergence of the
workers power not only to their economic power as their labour force, but also their political
power, defined as the coordination of individual forces with the aim of struggling for recognition
of the social personality of the group. This group draws its strength not only from its members
but also for the community for the purpose of its members. Trade unionism coincides with the
strike and hence comes into conflict not only with the employer but also with the public
authorities6.

6 H.L Kumar, Law Relating To Strike, Lock-Out, Ghero And Demolition, (2nd Edn,1992) Universal Book
Traders.

WHAT IS STRIKE?
Strike, is a work stoppage caused by the mass refusal of employees to perform work. A strike
usually takes place in response to employee grievances. Strikes became important during the
industrial revolution, when mass labour became important in factories and mines. In most
countries, they were quickly made illegal, as factory owners had far more political power than
workers. Most western countries partially legalized striking in the late 19th or early 20th
centuries.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
employment8.
RIGHT TO FREEDOMS: ARTICLE 19
Article 19 of the Indian Constitution, the rainbow of the fundamental rights, originally
guaranteed seven freedoms, one of which, the right to property, had been by the 44th
amendment7, made a constitutional right and had ceased to be a fundamental right. The unique
feature of the freedoms guaranteed by Article 19 is that they are not absolute terms and, and
clauses (2) to (6) provide for reasonable restrictions imposed on these freedoms. The restrictions
may be procedural or substantive, but both must satisfy the test of reasonableness. Whether a
restriction is reasonable or not is to be determined by the Court.
Reasonableness of the restriction means that any limitation imposed on an individual in the
enjoyment of his right should not be arbitrary or of excessive nature, beyond what is required in
the interest of public.
7 The Constitution (Forty-fourth Amendment) Act, 1978, (w.e.f. 20-6-1979).

According to Bhagwati J. the principle of reasonableness which legally as well as

philosophically, is an essential element of equality and non- arbitrariness pervades Article 14 like
brooding omnipresence of the procedure contemplated by Article 21 must answer the test of
reasonableness in order to be in conformity with Article 14. It must be right, just, fair, and not
arbitrary, fanciful or oppressive, otherwise it would be no procedure at all and the requirement of
Article 21 would not be satisfied8.
Article 19 guarantees the following freedoms:
1) Freedom of speech and expression.
2) Freedom to assemble peacefully and without arms.
3) Freedom to form association and unions.
4) Freedom to move freely throughout the territory of India.
5) Freedom to reside and settle in any part of the territory of India.
6) Freedom to practice any profession or to carry on any occupation, trade or business.
1) FREEDOM OF SPEECH AND EXPRESSION9
A suppression of speech, in its most painful consequence would be mental sterilization.
Freedoms of speech are comprehensive, and include freedom of expression concerning both
public and private affairs. In guaranteeing the freedom of speech and in subjecting it to
reasonable restrictions, our Constitution has to resolve the dilemma, since the choice is not
between order and liberty; it is between liberty and anarchy.
Restrictions on freedom of speech may be imposed in the interests of the sovereignty and
integrity of India, the security of State, friendly relationship with foreign sates, public order,
decency and morality in relation to contempt court, defamation or incitement of an offence.

8 Maneka Gandhi v. Union of India, AIR 1978 SC 59.

9Article 19(1)(a)

2) FREEDOM TO ASSEMBLE PEACEFULLY AND WITHOUT ARMS10

Democracy would have no meaning if freedom to assemble is not guaranteed. Thus, public
meetings in open spaces and public streets have formed part of our national life and people have
come to regard it as part of their privileges and immunities. Similarly, the right to take out a
procession on the highways and Public Street is part of the right to assemble which the people
have regarded as part of Indian law, even before the commencement of Constitution 11.
Reasonable restrictions may be imposed in the interests of the sovereignty and integrity of India
or public order.

3) FREEDOM TO FORM ASSOCIATIONS AND UNIONS12

Social functioning of organized societies is based on multiplicity of associations and
organizations. No democracy can function without freedom to form associations and unions.
Political parties, trade unions, social and other organizations are part of democratic functioning
of the society and the government. Article 19(1) (c) guaranteed freedom to form associations and
unions, though reasonable restrictions on the freedom may be imposed in the interest of integrity
and sovereignty of India, public order and morality.
STRIKE - LEGISLATIVE PROVISIONS
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. The Trade Unions Act, 1926 also recognizes the right to strike. Sections 18 and
19 of the Act confer immunity upon trade unions on strike from civil liability. Now days a right
to strike is recognized only to limited extent permissible under the limits laid down by the law
10 Article 19(1)(b)
11 Himatlal v. Police Commissioner, AIR 1985 SC 229.

12 Article 19(1) (c)

itself, as a legitimate weapon of Trade Unions.

The scheme of the Industrial Disputes Act, 1947 implies a right to strike in industries. A wide
interpretation of the term industry by the courts includes hospitals, educational institutions,
and clubs and government departments. Section 2 (q)13 of the Act defines 'strike'. Sections 2214,
2315, and 2416 all recognize the right to strike. Section 24 differentiates between a 'legal strike'
and an 'illegal strike'.
It defines 'illegal strikes' as those which are in contravention to the procedure of going to strike,
as laid down under Sections 22 and 23. The provision thereby implies that all strikes are not
illegal and strikes in conformity with the procedure laid down, are legally recognized. Further,
Justice Krishna Iyer had opined that "a strike could be legal or illegal and even an illegal strike
could be a justified one" in Gujarat Steel Tubes v. Its Mazdoor Sabha,17 is thus beyond doubt
that the Industrial Disputes Act, 1947 contemplates a right to strike.
The statutory provisions thus make a distinction between the legality and illegality of strike. It is
for the judiciary to examine whether it is legal or illegal and not to declare that there exists no
right to strike.
Article 8 (1) (d)18 provides that the States Parties to the Covenant shall undertake to ensure: "the
right to strike, provided that it is exercised in conformity with the laws of the particular country.

13 "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

14 Prohibition of strikes and lock-outs.

15 General prohibition of strikes and lock-outs.
16 Illegal strikes and lock-outs.
17 (1990) Lab IC 389 SC
18 The International Covenant of Economic, Social and Cultural Rights (ICESCR).

Article 2 (1)19 of the Covenant provides: "Each State Party to the present Covenant undertakes to
take steps, ... with a view to achieving progressively the full realization of the rights recognized
in the present Covenant by all appropriate means, including particularly the adoption of
legislative measures".
India is a signatory to the Covenant and is therefore bound under Article 2 (1) to provide for the
right to strike as enshrined in Article 8 (1) (d), through legislative measures or by other
appropriate means.
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 20., it was held that the
provisions of section 22 are mandatory and the date on which the workmen proposed to go on
strike should be specified in the notice. If meanwhile the date of strike specified in the notice of
strike expires, workmen have to give fresh notice. It may be noted that if a lock out is already in
existence and employees want to resort to strike, it is not necessary to give notice as is otherwise
required. In Sadual textile Mills v. Their workmen21 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. "
19 Ibid.
20 1988 (3) KarLJ 162
21 1966 SCR (3) 558

 CONSEQUENCES OF ILLEGAL STRIKE

Dismissal of workmenIn M/S Burn & Co. Ltd. V, Their Workmen 22, 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 23 , it was held that in the case of strike, the
employer might bar the entry of the strikers within the premises by adopting effective and
legitimate method in that behalf. He may call upon employees to vacate, and, on their refusal to
do so, take due steps to suspend them from employment, proceed to hold proper inquires
according to the standing order and pass proper orders against them subject to the relevant
provisions of the Act.

WagesIn Cropton Greaves Ltd. v. Workmen24, 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 Nayak25 decided the matter , the
22 AIR 1957 SC 38.
23 1953 SCR 686.
24 AIR 1978 SC 1489
25 AIR 1995 SC 319

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.

Right of employer to compensation for loss caused by illegal strikeIn Rothas Industries v. Its Union26, 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.

INTERNATIONAL NORMS AND STANDARDS

Article 8 (1) (d) of the International Covenant of Economic, Social and Cultural Rights
(ICESCR) provides that the States Parties to the Covenant shall undertake to ensure: "the right to
strike, provided that it is exercised in conformity with the laws of the particular country. Article 2
(1) of the Covenant provides: "Each State Party to the present Covenant undertakes to take steps,
... with a view to achieving progressively the full realization of the rights recognized in the
present Covenant by all appropriate means, including particularly the adoption of legislative
measures".

26 AIR 1976 SC 425

India is a signatory to the Covenant and is therefore bound under Article 2 (1) to provide for the
right to strike as enshrined in Article 8 (1) (d), through legislative measures or by other
appropriate means. Thus, the aforesaid domestic laws are the by-products of the international
obligations and cannot be read casually as has been done in the Rangarajan case.
The blanket ban on the right to strike also transgresses the limits of the Conventions of the
International Labour Organization (ILO). Convention 87 relates to Freedom of Association and
Protection of the Right to Organize. Convention 98 refers to the Right to Organize and Collective
Bargaining. Both Conventions have been ratified by 142 and 153 nations respectively including
Australia, France, Germany, Italy, Japan, Pakistan, Sri Lanka, Pakistan and the United Kingdom.
Both the conventions, along with eight other conventions, have also been identified by the ILO's
Governing Council to be its core conventions.
Convention 154 is the Collective Bargaining Convention, 1981. The Preamble to this Convention
reaffirms the provision of the Declaration of Philadelphia recognising "the solemn obligation of
the International Labour Organisation to further among the nations of the world programmes
which will achieve ... the effective recognition of the right of collective bargaining". Further the
Convention is not restricted to labour trade unions. Article 1 of the Convention states
"Convention shall apply to all branches of economic activity". Public employees are also not
exempted from the above. Convention 151 is the Labour Relations (Public Service) Convention,
1978. Article 9 of the Convention provides: "Public employees shall have, as other workers, the
civil and political rights which are essential for the normal exercise of freedom of association,
subject only to the obligations arising from their status and the nature of their functions".
Though India is not a signatory to any of the above-mentioned ILO Conventions, it has been a
member of the ILO since 1919. The ILO Declaration on Fundamental Principles and Rights at
Work states: "The International Labour Conference, ... Declares that all Members, even if they
have not ratified the Conventions in question, have an obligation arising from the very fact of
membership in the Organization, to respect, to promote and to realize, in good faith and in
accordance with the Constitution, the principles concerning the fundamental rights which are the
subject of those Conventions, namely: freedom of association and the effective recognition of the
right to collective bargaining".

Therefore, by virtue of being a member of the ILO, India is under obligation to satisfy at least
the fundamental rights promoted by the Conventions, irrespective of it having ratified them or
not. Further, India is not an ordinary member of the ILO, but one of the founding members of
the Organization. After 85 years of this relationship that India has had with the Organization,
our Apex court has refused to adhere to the fundamental tenets of the ILO.

INDUSTRIAL DISPUTES ACT, 1947

The Industrial Disputes Act, 1947 refrains generally the Trade Unions from going on strike. Its
focal thrust is on more efficient alternative mechanisms for dispute settlement, such as, reference
to Industrial Tribunals, compulsory adjudication, conciliation, etc. In fact the very intention
behind its enactment as illustrated in the Statement of Objects and Reasons, was to overcome the
defect in the Trade Unions Act, 1926, which was, that it imposed restraints on the right to strike
but did not provide for alternative settlement of the disputes.
The Statement further reads as under: "The power to refer disputes to Industrial Tribunals and
enforce their awards is an essential corollary to the obligation that lies on the Government to
secure conclusive determination of the disputes with a view to redressing the legitimate

grievances of the parties thereto, such obligation arising from the imposition of restraints on the
rights of strike and lock-out, which must remain inviolate, except where considerations of public
interest override such right".
Thus, the concept of alternative settlement mechanisms in industrial disputes was statutorily
ushered in the Act with a view to providing a forum and compelling parties to resort to the forum
for arbitration so as to avoid confrontation and dislocation in industry, that a developing country
like India can ill-afford. Peace and harmony in industry and uninterrupted production being the
demand of the time, it was considered wise to arm the Government with the power to compel the
parties to resort to arbitration and a necessary corollary to avoid confrontation and trial of
strength which are considered wasteful from national and public interest point of view27.
Sections 4, 5, 6, 7, 7A, 7B, 9, 10 and 10A of the Industrial Disputes Act, 1947 provide alternative
measures for settlement of industrial disputes elaborately. Section 4 28 of the Act provides for a
diplomatic procedure which endeavours to settle a controversy by assisting parties to reach a
voluntary agreement and the ultimate decision is made by the parties themselves 29. The
conciliation machinery provided for in the Act, can take note of the existing as well as
apprehended disputes either on its own or on being approached by either of the parties. Since the
final decision is with the parties themselves, they cannot complain that their practical freedom
has been impaired or that they have been forced into a settlement which is unacceptable to
them30.
27 Workmen of Hindustan Lever Ltd. v. Hindustan Lever Ltd., [1984] Lab I.C. 276 (SC), per Desai, J
28 .Conciliation Officers.- (1) The appropriate Government may, by notification in the Official Gazette, appoint
such number of persons as it thinks fit, to be conciliation officers, charged with the duty of mediating in and
promoting the settlement of industrial disputes.

29 Malhotra, O.P., The Law of Industrial Disputes, Vol. I, 5th Ed., Universal Law Publishing Co., Delhi, 1998 at p.
12.

30 Note- One of the most important Section are, 10 and 10A, which talk about references of Disputes to
Boards, Courts or Tribunal. Section 10(1) states: Where the appropriate Government is of the opinion that
any Industrial Dispute exists or is apprehended, it may at any time, by order in writing, Refer the dispute
to the Board for promoting a settlement thereof. Refer any matter appearing to be connected with or
relevant to the dispute to a court for inquiry. Refer the dispute to a Labour Court. Further Section 10A

Section 6 provides for the constitution of a Court of Inquiry, that enquires into the merits of the
issues and prepares a report on them that is "intended to serve as the focus of public opinion and
of pressure from Government authorities"31. Section 10 A provides for voluntary arbitration.
Voluntary arbitration seems to be the best method for settlement of all types of industrial
disputes. The disputes can be resolved speedily and is less formal than trials. The greatest
advantage of arbitration is that there is no right of appeal, review or writ petition. Besides, it may
well reduce a company's litigation costs and its potential exposure to ruinous liability apart from
redeeming the workmen from frustration32. Apart from these, Sections 7, 7A and 7B deal with the
constitution of adjudicatory authorities, viz., Labour Courts, Tribunals or National Tribunals,
respectively.
It is submitted that these alternative machinery for settlement of industrial disputes are proving to
be highly effective. Report of the National Commission on Labour 33, according to which "during
the years 1959-66, out of the total disputes handled by each year, the percentage of settlements
had varied between 57 and 83. The remaining disputes, it is reported, were settled mutually
referred to voluntary arbitration or arbitration under the Act or to adjudication or were not
pursued by the parties. During the period 1965-67, the percentage of settlements reached in Bihar
ranged from 51 to 86, in Assam from 65.5 to 92.3. In U.P., Punjab and Delhi, in the year 1966,
the percentage of disputes settled was 60, whereas in Kerala it ranged around 80 per cent. The
statistics for settlement of disputes by alternative mechanism are greater those for that by strike
where the disputes are mainly left unresolved.
talks about voluntary reference of disputes to Arbitration. Section10 A (1) states that "Where any
industrial dispute exists or is apprehended and the employer and the workmen agree to refer the dispute to
arbitration, they may at any time before the dispute has been referred to under Section 10, by a written
agreement refer the dispute to arbitration and the reference shall be to such person or persons as an
arbitrators as may be specified in the arbitration agreement".
31 International Encyclopedia of Social Sciences, Vol. 8, p. 508.
32 Karnal Leather Karamchari Sanghathan v. Liberty Footwear Co. [1990] Lab I.C. 301 at 307 (SC), per
Jagannatha Shetty, J.
33 Chapter 3.- Industrial Relations-1, under the heading 'Conciliation', para 23, 16 at p. 322

The provision of such an elaborate and effective mechanism for settlement of industrial disputes,
along with a reading of the Statement of Objects and Reasons, is a definitive indication of the
fact that the statute enshrines a preference to these alternative mechanisms over strikes.

STRIKE AS A FUNDAMENTAL RIGHT

Trade Unions with sufficient membership strength are able to bargain more effectively The
bargaining strength would be considerably reduced if it is not permitted to demonstrate by
adopting agitational methods such as sit-down strike, and strike. This has been recognized
by almost all democratic countries.
As the statement of the Indian Supreme Court quoted above indicates, the ability to go on strike
is perhaps the labour class most effective weapon in its struggle to convince employers to heed

its demands , and a key element of their bargaining power. Despite recognizing this fact, the
Supreme Court displayed a very different attitude to the right to strike when confronted by this
issue again.
In T.K. Rangarajan vs. Government of Tamil Nadu and Others (the Tamil Nadu
Government Employees Case34), Justice M.B. Shah, speaking for a Bench of the Supreme
Court consisting of himself and Justice A.R. Lakshmanan, said, "Now coming to the question of
right to strike whether fundamental, statutory or equitable moral right to strike in our view
no such right exists with the government employee."
Even as early as 1961, the Supreme Court held that even a very liberal interpretation of Article
19 (1)(c) cannot lead to the conclusion that the trade unions have a guaranteed right to strike as
part of collective bargaining or otherwise35.In support of the theory of "concomitant right" to
collective bargaining, reliance was placed on Romesh Thappar v. The State Of Madras36 where
it was observed, "There can be no doubt that freedom of speech and expression includes freedom
of propagation of ideas and that freedom is ensured by the freedom of circulation." It was argued
if freedom of speech and expression "in Article 19 (1) (a) was given the liberal construction so as
to effectuate the object for which the freedom was conferred, a similar construction should be
adopted regarding the freedom of association guaranteed under Article 19 (1) (c)."
The Supreme Court observed, "There was no analogy between the two cases", that it was "one
thing to interpret each of the freedoms guaranteed liberally" but it was another "to read each
guaranteed right as involving the concomitant right necessary to achieve the object which might
be supposed to underlie the grant each of such rights, for such a construction would, by ever
expanding concentric circles in the shape of rights concomitant to concomitant right and so on,
lead to an almost grotesque result."

34 AIR 2003 SC 3032

35 All India Bank Employees Association v. National Industrial Tribunal [ 1962] 3 SCR 269
36 1950 SCR 404

The Supreme Court in the instant case also referred to Kameswar Prasad v. State of Bihar37 in
holding there is no fundamental right to strike. The Supreme Court was perhaps therefore right in
following its earlier judgments that there is no fundamental right to strike.
The Supreme Court referred to Tamil Nadu Government Servants Conduct Rules 1973 where
Rule 22 provides that no Government employee shall engage himself in strike or in incitements
thereto or in similar activities. In view of this rule the Supreme Court was right in holding that
the strike was illegal. It is not known whether other Government Servants Conduct Rules contain
a similar provision.
Earlier, before referring to the Tamil Nadu Rules, the Supreme Court gave the reason for holding
the strike as illegal that there is no legal/statutory right to go on strike. The Supreme Court was
evidently referring to the case of the Tamil Nadu Government employees with which it was
concerned, for there are statutory provisions like the Industrial Disputes Act, which gives the
right to strike to certain categories of employees.
Even if the judgment refers to the absence of statutory provision in the case of Tamil Nadu
Government employees, it is respectfully submitted that no statutory provision is needed to
enable employees to go on strike. If the right of an employee is denied by the employer or is
interfered with, he has the right not to do work, i.e., to go on strike. If it is denied to a group of
employees or all the employees, all of them can refuse to work for the employer (or go on strike)
and a union representing the employees may ask them to go on strike.
As Soli Sorabjee, the Attorney-General, pointed out, the right to strike is a valuable right. In B.R.
Singh v. Union of India38, Justice Ahmadi observed that the right to strike is an important
weapon in the armour of workers as a mode of redress. Therefore, no statutory provision is
needed to confer on the employees the right to strike.
It is quite another matter if any statute or rule makes it illegal for the employees to go on strike
unless and until the statue or rule is struck down.
37 (1962) Supp 3 SCR 369
38 (1990) Lab IC 389 SC.

Unfortunately, the Supreme Court goes further and says that there is no moral or equitable
justification to go on strike. Though broadly worded as if to apply to every employee, it is clear
from the sentence that follows, viz., "Government employees cannot claim that they can take the
society at ransom by going on strike," that the Supreme Court refers to the moral right of
Government employees.
Even so, it is respectfully submitted that the Supreme Court is not right in saying that
Government employees have no moral right to strike. There may be many instances when the
employees may be harassed and all avenues of their rights being recognised are closed, in which
case the employees may have no other course than to go on strike.
Evidently, the Supreme Court was carried away by the fact that nearly two lakh Government
employees went on strike in the instant case and the Government machinery came to a standstill.
It seems to have also been influenced by the fact stated by senior counsel for the State
Government, K.K. Venugopal, that 90 per cent of the State's revenue in Tamil Nadu is spent on
salaries of Government servants.
It is true that Government employees everywhere are paid better salaries and enjoy more
privileges and amenities than other employees. The public sympathy is generally against
Government employees who go on strike. But that is no justification for the Supreme Court to
say that Government employees have no moral justification to go strike in every case.
Not stopping with the case of Government employees, the Supreme Court refers to several
categories of employees in the following words, "In case of strike by a teacher entire educational
system suffers... In case of strike by doctors innocent patients suffer; in case of employees of
transport services entire movement of the society comes to a standstill; business is adversely
affected and number of persons find it difficult to attend to their work, to move from one place to
another or from one city to another. On occasion public properties are destroyed... "
It is respectfully submitted that there was no necessity for this extreme reaction against all cases
of employees when the Supreme Court was dealing with the strike by Tamil Nadu Government
employees. The Supreme Court must be certainly aware that in certain States teachers are not
paid salaries for several years. Doctors, especially junior doctors, have on many occasions

genuine grievance against the Government or other employers. Destruction or damage of public
property is not always the result of strikes. It is true that in some cases the right to strike is being
misused but that is no reason why all strikes should be condemned as immoral.
There seems to be some move to have the judgment of the Supreme Court reviewed. As far as
the Tamil Nadu Government is concerned, the Supreme Court, perhaps having in mind the
judgment of Justice V.R. Krishna Iyer that even illegal strikes need not attract dismissal (vide
Gujarat State Steel Tube Case), directed that all employees who were suspended except those
who resorted to violence should be reinstated if they apologise and that direction has been
complied with. So there is no need for review in their case.
In case of other employees, the strong opinions expressed against strikes by other categories of
employees is not even obiter dictum and is the mere expression of personal views of the two
judges concerned and there is no need to ask for any review except as regards the obiter dicta
that there can be no strike if there is no legal/statutory right to do so.

STRIKE AS A LEGAL RIGHT

The working class has indisputably earned the right to strike as an industrial action after a long
struggle, so much so that the relevant industrial legislation recognizes it as their implied right 39.
Striking work is integral to the process of wage bargaining in an industrial economy, as classical
39 Bank of India v. T.S. Kelawala, 1990 (4) SCC 744.

political economy and post-Keynesian economics demonstrated long ago in the analysis of real
wage determination.
A worker has no other means of defending her/his real wage other than seeking an increased
money wage. If a capitalist does not grant such an increase, s/he can be forced to come to a
negotiating table by striking workers. This s/he can do because the earnings of the capitalist are
contingent upon the worker continuing to work. The argument is drawn from Ricardian and
Marxian classical political economy that shows how the employer's income is nothing other than
what is alienated from the worker in the process of production. When workers stop working,
capitalists stop earning. The same applies to government servants as well. When they strike
work, it is not the authorities who suffer a loss of income or disruption of their income
generating process but the general public. Here, authorities come to a negotiating table mainly
under political pressure or in deference to public opinion.
The right to strike is organically linked with the right to collective bargaining and will continue
to remain an inalienable part of various modes of response/expression by the working people,
wherever the employer-employee relationship exists, whether recognized or not. The Apex court
failed to comprehend this dynamic of the evolution of the right to strike.
In B.R. Singh v. Union of India 40, Justice Ahmadi opined that "The Trade Unions with sufficient
membership strength are able to bargain more effectively with the management than individual
workmen. The bargaining strength would be considerably reduced if it is not permitted to
demonstrate by adopting agitational methods such as 'work to rule', 'go-slow', 'absenteeism', 'sitdown strike', and 'strike'. This has been recognized by almost all democratic countries".
In Gujarat Steel Tubes v. Its Mazdoor Sabha41 , Justice Bhagwati opined that right to strike is
integral of collective bargaining. He further stated that this right is a process recognized by
industrial jurisprudence and supported by social justice. Gujarat Steel Tubes is a three-judge
bench decision and cannot be overruled by the division bench decision of Rangarajan. In
40 [1990] Lab I.C. 389 (396) (S.C.)
41 AIR 1980 SC 1896

the Rangarajan case the court had no authority to wash out completely the legal right evolved by
judicial legislation.

STRIKE AS A STATUTORY RIGHT

The scheme of the Industrial Disputes Act, 1947 implies a right to strike in industries. A wide
interpretation of the term 'industry'42 by the courts includes hospitals, educational institutions,
42 Bangalore Water Supply & Sewerage Board v. A. Rajappa, AIR 1978 SC 548.

clubs and government departments. Section 2 (q) of the Act defines 'strike'. Sections 22, 23, and
24 all recognize the right to strike. Section 24 differentiates between a 'legal strike' and an 'illegal
strike'. It defines 'illegal strikes' as those which are in contravention to the procedure of going to
strike, as laid down under Sections 22 and 23. The provision thereby implies that all strikes are
not illegal and strikes in conformity with the procedure laid down, are legally recognized.
Further, Justice Krishna Iyer had opined that "a strike could be legal or illegal and even an illegal
strike could be a justified one" (ix). It is thus beyond doubt that the Industrial Disputes Act, 1947
contemplates a right to strike.
The statutory provisions thus make a distinction between the legality and illegality of strike. It is
for the judiciary to examine whether it is legal or illegal. Is the total ban on strikes postRangarajan not barring judicial review which itself is a basic structure of the Constitution?
Further, Sections 22, 23 and 24 of the Act imply a right to strike for workers and a right to lockout for the employers. In Kairbitta Estate v. Rajmanickam 43,Justice Gajendragadkar opined: "In
the struggle between the capital and labour, the weapon of strike is available to labour and is
often used, as is the weapon of lock-out available to the employer and can be used by him" 44. The
workers' right to strike is complemented by the employers' right to lock-out, thus maintaining a
balance of powers between the two. However, the Rangarajan judgement, by prohibiting strikes
in all forms but leaving the right to lock-out untouched, tilts the balance of power in favour of
the employer class.
The Court, in opining that strikes 'hold the society at ransom', should have taken into account
that the number of man days lost due to strikes has gone down substantially during the last five
years. Whereas there has been a steep rise in the man days lost due to lock-outs, due to closures
and lay-offs (Annual Report of the Union Labour Ministry (2002-03). In 2001, man days lost
due to lock-outs were three times more than those due to strikes. In 2002 (January-September)
lockouts wasted four times more man days than strikes. Who is holding the production process to
ransom? Definitely, not the workers. The Apex court preferred to overlook the recent strike by
43[1960] II L.L.J. 275 (S.C.)
44 Id. at 278

the business class against the value added tax and also the transport companies' strike against the
judicial directive on usage of non-polluting fuel, both of which created much more chaos and
inconvenience to the common people. It is submitted that the court came to a conclusion without
looking at the industrial scenario in the present times. Should the apex court not consider
banning closures, lock-outs, muscle-flexing by the business class etc., which not only put people
to inconvenience but also throw the workers at risk of starvation?45
Besides the Industrial Disputes Act, 1947, the Trade Unions Act, 1926 also recognizes the right
to strike. Sections 1846 and 1947 of the Act confer immunity upon trade unions on strike from civil
liability.

JUDICIAL INTERPRETATIONS OF RIGHT TO STRIKE

45 Sen, Tapan, Right to Strike is Inalienable, People's Democracy, Vol. XXVII, No. 35, Aug. 31, 2003
46 S. 18 provides for immunity from legal proceedings in respect of any act done in contemplation or
furtherance of any trade dispute on the sole ground of inducing person to break a contract of employment.
47 19. Enforceability of agreements.- Notwithstanding anything contained in any other law for the time
being in force, an agreement between the members of a registered trade Union shall not be void or
voidable merely by reason of the fact that any of the objects of the agreement are in restraint of trade.

Strike is a temporary stoppage of work by a group of employees in order to express a grievance

or to enforce a demand concerning changes in work conditions. Strike is neither an act of war
against the industry nor against the employer. It is basically a weapon of self-defense against the
arbitrary and unjust policy of the management. It is a social necessity for promoting or defending
the just economic interest of the working class.
The right to strike has acquired an implied authorization from Articles 23, 24 and 25 of the
Universal Declaration of Human Rights (1948). In India the Trade Unions Act, 1926 for the first
time provided limited right to strike by legalizing certain activities of a registered trade union. 1
Further, the Industrial Disputes Act, 1947 recognized that the workers have the right to strike in
certain circumstances other than those prohibited.26 The Supreme Court in Chandramalai
Estate vs. Their Workmen48, recognized that strike is a legitimate and sometimes unavoidable
weapon in the hands of labourers.
In the Indian Constitutional set up the right to strike is not an absolute right but it flows from the
fundamental right to form union and is subject to reasonable restrictions. The question, whether
the right to strike is a fundamental right came up for consideration in All India Bank
Employees' Association v. National Industrial Tribunal49, where the Supreme Court observed:
"Even a very liberal interpretation of sub-clause (c) of clause (1) of Article 19 cannot lead to the
conclusion that the trade unions have a guaranteed right to strike either as part of collective
bargaining or otherwise......The right to strike or the right to declare lock-out may be controlled
or restricted by appropriate industrial legislation, and the validity of such legislation would have
to be tested not with reference to the criteria laid down in clause (4) of Article 19 but by totally
different considerations."
The right of Government Servants to form associations, hold demonstrations and strikes has been
debated since long. The position is somewhat anomalous. On the one hand, government servants
like industrial workers have the guaranteed fundamental right to form association or union and to
demonstrate for redressal of their grievances, on the other hand, unlike industrial workers,
48 (1960) 2 LLJ 243 (SC).
49 AIR 1962 SC 171.

government servants generally are charged with onerous responsibilities for operating essential
and vital services to the community. As such they are expected to behave in a responsible manner
without resorting to concerted activity on the ground that strike would be tantamount to
disloyalty to the nation and the public. Government has tried to regulate strikes by the
government servants through the Government Servants Conduct Rules, Essential Services
Maintenance Ordinances, etc. and withdrawal of recognition of union formed by government
servants. Rule 4A of the Central Civil Services Conduct Rules, 1955 reads:
No Government servant shall participate in any demonstration or resort to any strike in
connection with any matter pertaining to his conditions of service The Supreme Court in
Kameshwar Prasad v. State of Bihar50 held that a person did not lose his fundamental rights by
joining government services. Article 33 of the Constitution provides that fundamental rights of
the members of the Armed Forces, etc. can be abridged or abrogated by law, thus implying that
fundamental rights of other government servants cannot be abridged. Rule 4A was held to be
valid so far as it referred to strikes, and void in so far as it referred to demonstrations because it
violated the fundamental right of speech and expression. In T.K. Rangrajan v. Government of
Tamil Nadu51 the Supreme Court held that the government employees have no fundamental,
legal, moral or equitable right to go on strike even for a just cause.
Recently, in April, 2011, several members of Indian Commercial Pilots Association went on
strike resulting in six pilots being sacked by State owned Air India thereby derecognizing their
Association. Hon'ble Justice Geeta Mittal of the Delhi High Court asked the 800 pilots to call off
their agitation, barring the pilots from resorting to any kind of demonstration and asked them to
resume work in the larger public interest and declared the strike illegal, as it was against the
commercial interest of the public airline as well as against the larger public interest.52

50 1962 SCR 369.

51 1962 SCR 369.

52 The Hindu, New Delhi, April 27, 2011

To conclude, strike as a weapon has to be used sparingly for redressal of urgent and pressing
grievances when no other means are available or when available means have failed to resolve a
dispute. Every dispute between an employer and employee has to take into consideration the
third dimension, viz. the interest of the society as a whole. However, the workers must have the
right to strike for the redress of their grievances and they must be paid wages for the strike period
when the strike is legal and justified. The 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 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.
In All India Bank Employees' Association v. National Industrial Tribunal and others 53, the
Court specifically held that even very liberal interpretation of sub-clause (C) 54 of clause (1) of
Article 19 cannot lead to the conclusion that trade unions have a guaranteed right to an effective
collective bargaining or to strike, either as part of collective bargaining or otherwise.
Thus, there is a guaranteed fundamental right to form association or Labour unions but there is
no fundamental right to go on strike. Under the Industrial Dispute Act, 1947 the ground and
condition are laid down for the legal strike and if those provisions and conditions are not fulfilled
then the strike will be illegal.
It was also held that, strike a weapon to force the employer to accede to employees demand and
to give them the legitimate dues is a strike which is recognized under the Industrial Disputes Act
as defined in Sec 2 (q).
In Bank of India v.I.S.Kalewala the constitutional bench held that, whether the strike is legal or
justified is question of fact to be decided with the help of the evidence on record.
In Crompton Greaves Ltd v. Workmen55t he division bench held it that a strike is legal if it
does not violate any provision of the statute. Again a strike cannot be said to be unjustified unless
53 (1962) 3 SCR 269
54 Right to form associations or unions
55 AIR 1978 SC 1489

the reasons for it are entirely perverse and unreasonable. Whether a particular strike was justified
or not is a question of fact which has to be justified in the light of the facts and circumstances of
each case.

In the case concerning Management of Chandramalai Estate, Ernakulam v. Its workmen 56a
division bench judgment, there was a dispute between the management and the workers and the
labour minister decided to arbitrate the matter. In this case it was held that the strike in protest of
the recalcitrant attitude of the management in boycotting the conference, held on 23rd
November, 1961 by the labour minister of the state was not unjustified. It was also held in this
case that strike is legitimate and sometimes an unavoidable weapon in the hands of the workers.
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 the government takes notice. In such cases, strike
even before such a request has been made may well be justified

56 AIR 1960 SC 902

WEAPON OF LAST RESORT

While on the one hand it has to be remembered that a strike is a legitimate and sometime
unavoidable weapon in the hands of labour, it is equally important that indiscriminate and hasty
use of this weapon should not be encouraged. It will not be right for labour to think that any kind
of demand for a 'strike' can be commenced with impunity without exhausting the reasonable
avenues for peaceful achievement of the objects. There may be cases where the demand is of
such an urgent and serious nature that it would not be reasonable to expect the labour to wait
after asking the government to make a reference. In such cases the strike, even before such a
request has been made, may very well be justified57.
In Syndicate Bank v. K. Umesh Nayak 58, Justice Sawant opined: "The strike, as a weapon, was
evolved by the workers as a form of direct action during their long struggle with the employer, it
is essentially a weapon of last resort being an abnormal aspect of employer-employee
relationship and involves withdrawal of labor disrupting production, services and the running of
enterprise. It is a use by the labour of their economic power to bring the employer to meet their
viewpoint over the dispute between them. The cessation or stoppage of works whether by the
employees or by the employer is detrimental to the production and economy and to the well
being of the society as a whole. It is for this reason that the industrial legislation, while not
denying for the rights of workmen to strike, has tried to regulate it along with the rights of the
employers to lockout and has also provided a machinery for peaceful investigation, settlement
arbitration and adjudication of dispute between them. The strike or lockout is not be resorted to
because the concerned party has a superior bargaining power or the requisite economic muscle to
57 Chandra Malai Estate, Ernakulum v. Its Workmen31, per Das Gupta, J.
58 [1994] II L.L.J 836 (SC)

compel the other party to accept its demands. Such indiscriminate case of power is nothing but
assertion of the rule of 'might is right'".
Thus, initially, employees must resort to dispute settlement by alternative mechanisms. Only
under extreme situations when the alternative mechanisms have totally failed to provide any
amicable settlement, can they resort to a strike as a last resort.

CONCLUSION
Strike is a weapon that empowers the disempowered to fight in oppressive cases when no
constructive option is left. It is a weapon of the last resort taken out of exasperation. It is this
weapon, which provides an opportunity for collective bargaining. The modern form of strikes
had its origin in the era of industrial revolution and assumed its multifarious forms and
dimensions during the Indian national movement varying from bandh, hartal, and protestation to
hunger strike, Satyagraha, non-co-operation and civil disobedience etc., it was considered
inalienable right and duty of a patriot to protest against the mighty colonial rule. People who
took part in protests were regarded as patriots. Paradoxically, after 50 years of Independence the
act of participation in a strike even for a good cause is considered illegal.
To avoid strikes is everyone's responsibility. But to assert that strikes under any circumstances
are illegal, immoral, inequitable and unjustified is contrary to our law and industrial
jurisprudence. Striking work is integral to the process of wage bargaining in an industrial
economy, as classical political economy and post-Keynesian economics demonstrated long ago
in the analysis of real wage determination. A worker has no other means of defending her/his real
wage other than seeking an increased money wage.
If a capitalist does not grant such an increase, he/she can be forced to come to a negotiating table
by striking workers. This he/she can do because the earnings of the capitalist are contingent upon
the worker continuing to work. The argument is drawn from and Marxian classical political
economy that shows how the employer's income is nothing other than what is alienated from the
worker in the process of production. When workers stop working, capitalists stop earning. The
same applies to government servants as well. When they strike work, it is not the authorities that

suffer a loss of income or disruption of their income generating process but the general public.
Here, authorities come to a negotiating table mainly under political pressure or in deference to
public opinion.
If a capitalist does not grant such an increase, he/she can be forced to come to a negotiating table
by striking workers. This he/she can do because the earnings of the capitalist are contingent upon
the worker continuing to work. The argument is drawn from and Marxian classical political
economy that shows how the employer's income is nothing other than what is alienated from the
worker in the process of production. When workers stop working, capitalists stop earning. The
same applies to government servants as well. When they strike work, it is not the authorities that
suffer a loss of income or disruption of their income generating process but the general public.
Here, authorities come to a negotiating table mainly under political pressure or in deference to
public opinion.

In B.R. Singh v. Union of India59 Justice Ahmadi opined "The Trade Unions with sufficient
membership strength are able to bargain more effectively with the management than individual
workman. The bargaining strength would be considerably reduced if it were not permitted to
demonstrate by adopting agitation methods such as 'work to rule', 'go-slow', 'absenteeism', 'sitdown strike', and 'strike'. This has been recognized by almost all democratic countries".
In Gujarat Steel Tubes v. Its Mazdoor Sabha60, JUSTICE Bhagwati opined that right to strike
is integral of collective bargaining. He further stated that this right is a process recognized by
industrial jurisprudence and supported by social justice.
Justice Shah's judgment in Rangarajan case does not seem to be right when saying: "There is no
statutory provision empowering the employees to go on strike." Going further, the judge then
declared that there was "no moral or equitable justification to go on strike. This observation
does ignore the legal provisions under the Indian Law and International conventions.
The scheme of the Industrial Disputes Act, 1947 implies a right to strike in industries. A wide
interpretation of the term industry by the courts includes hospitals, educational institutions, and
59 (1990) Lab IC 389 SC.
60 AIR 1980 SC 1896.

clubs and government departments. Section 2 (q)61 of the Act defines 'strike'. Sections 2262, 2363,
and 2464 all recognize the right to strike. Section 24 differentiates between a 'legal strike' and an
'illegal strike'. It defines 'illegal strikes' as those which are in contravention to the procedure of
going to strike, as laid down under Sections 22 and 23. The provision thereby implies that all
strikes are not illegal and strikes in conformity with the procedure laid down, are legally
recognized.

Further, Justice Krishna Iyer had opined that "a strike could be legal or illegal and even an illegal
strike could be a justified one" in Gujarat Steel Tubes v. Its Mazdoor Sabha 65, is thus beyond
doubt that the Industrial Disputes Act, 1947 contemplates a right to strike.
The statutory provisions thus make a distinction between the legality and illegality of strike. It is
for the judiciary to examine whether it is legal or illegal and not to declare that there exists no
right to strike.
Besides the Industrial Disputes Act, 1947, the Trade Unions Act, 1926 also recognizes the right
to strike. Sections 18 and 19 of the Act confer immunity upon trade unions on strike from civil
liability.
Article 8 (1) (d)66 provides that the States Parties to the Covenant shall undertake to ensure: "the
right to strike, provided that it is exercised in conformity with the laws of the particular country.
61 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

62 Prohibition of strikes and lock-outs

63 General prohibition of strikes and lock-outs.
64 Illegal strikes and lock-outs

65 AIR 1980 SC 1896.

66 The International Covenant of Economic, Social and Cultural Rights (ICESCR)

Article 2 (1)67 of the Covenant provides: "Each State Party to the present Covenant undertakes to
take steps, ... with a view to achieving progressively the full realization of the rights recognized
in the present Covenant by all appropriate means, including particularly the adoption of
legislative measures".
India is a signatory to the Covenant and is therefore bound under Article 2 (1) to provide for the
right to strike as enshrined in Article 8 (1) (d), through legislative measures or by other
appropriate means.
The blanket ban on the right to strike also transgresses the limits of the following Conventions of
the International Labour Organization (ILO): Freedom of Association and Protection of the Right
to Organize68. The Right to Organize and Collective Bargaining69. Collective Bargaining
Convention, 198170. Labour Relations (Public Service) Convention, 197871.
Article 972 of the Convention provides: "Public employees shall have, as other workers, the civil
and political rights which are essential for the normal exercise of freedom of association, subject
only to the obligations arising from their status and the nature of their functions".
By virtue of being a member of the ILO, India is under obligation to satisfy at least the
fundamental rights promoted by the Conventions, irrespective of it having ratified them or not.
With the Rangarajan verdict, the Apex court has refused to adhere to the fundamental tenets of
the ILO.
Further, the right to strike being well recognized under the scheme of central legislation i.e. the
Industrial Disputes Act, and forming an inalienable part and parcel of the same, could not be
67 Ibid.
68 Convention 87.
69 Convention 98.
70 Convention 154.
71 Convention151.
72 Ibid.

taken away by way of enacting legislation by the state assembly or by merely issuing a
notification or any other executive action which necessarily involves but only a subordinate,
delegated or residue jurisdiction and capacity, inferior to that of the central legislature in any
case, and as such is incapable of overreaching the rights created or recognized by the central
legislature.
The provisions of the enactment passed by the state legislature TESMA, the service rules,
specifically Rule 22 of the Conduct Rules and the Ordinance of 2003, imposing a ban on the
right to strike, all belong to such category of inferior legislation and thus as far as they subvert or
even restrict the sweep of the right to strike available to the employees under the central
legislation Industrial Disputes Act, are all illegal, ultra virus to the legislature and should have
been struck down on this ground alone.
In a state of conflict between recognition of such rights by central legislation and their
abrogation by the state legislation through TESMA or rules framed under the residue power of
the executive like the conduct rules, the provisions of the central legislation would doubtlessly
hold the ground. As such, the rights, benefits, protection accruing under the Industrial Disputes
Act including the right to strike are doubtlessly available to the government employees, and their
status of being under the employment of the government neither has any relevance nor makes a
difference for the purpose of availability of such right.