STRIKE – MEANING

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 employment1 .

RIGHT TO FREEDOM: ARTICLE 19

Article 192 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
amendment3, 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 .4

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.”

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
1 Section 2(q), Industrial Disputes Act, 1947.
2 Right to Freedom.
3 The Constitution (Forty-fourth Amendment) Act, 1978,.
4 State of Madras v. V G Row, AIR 1952 SC 196.
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 satisfied .5 Article 19 guarantees the following freedoms:

a) Freedom of speech and expression.

b) Freedom to assemble peacefully and without arms.
c) Freedom to form association and unions.
d) Freedom to move freely throughout the territory of India.
e) Freedom to reside and settle in any part of the territory of India.
f) Freedom to practice any profession or to carry on any occupation, trade or business.

FREEDOM OF SPEECH AND EXPRESSION6

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.”

FREEDOM TO ASSEMBLE PEACEFULLY AND WITHOUT ARMS7

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. 8 Reasonable

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

6 Article 19(1)(a).
7 Article 19(1)(b).
8 Himatlal v. Police Commissioner, AIR 1985 SC 229.
restrictions may be imposed in the interests of the sovereignty and integrity of India or public
order.

FREEDOM TO FORM ASSOCIATIONS AND UNIONS 9

Social functioning of organised societies is based on multiplicity of associations and

organisations. No democracy can function without freedom to form associations and unions.
Political parties, trade unions, social and other organisations are part of democratic functioning
of the society and the government. Article 19(1) (c) guaranteed freedom to form associations and
unions, though reasonable restrictions on the freedom may be imposed in the interest of integrity
and sovereignty of India, public order and morality.

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. Now days a right to strike is recognized only to limited extent permissible under
the limits laid down by the law itself, as a legitimate weapon of Trade Unions.

The right to strike in the Indian constitution set up is not absolute right but it flow from the
fundamental right to form union. As every other fundamental right is subject to reasonable
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 the All India Bank Employees Association v. National Industrial Tribunal and others 10, the
Supreme Court held,

9 Article 19(1)(c).
10 (1962) 3 SCR 269.
 "the right to strike or right to declare lock out may be controlled or restricted by
appropriate industrial legislation and the validity of such legislation would have to be
tested not with reference to the criteria laid down in clause (4) of article 19 but by totally
different considerations."

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 Disputes 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.

PROVISIONS OF VALID STRIKE UNDER INDUSTRIAL DISPUTES ACT, 1947

Section 2(q) of said Act defines the term strike, it says, "strike" means a cassation of work by a
body of persons employed in any industry acting in combination, or a concerted refusal, or a
refusal, under a common understanding of any number of persons who are or have been so
employed to continue to work or accept employment. Whenever employees want to go on strike
they have to follow the procedure provided by the Act otherwise there strike deemed to be an
illegal strike. Section 22(1)11 of the Industrial Dispute Act, 1947 put certain prohibitions on the
right to strike. It provides that no person employed in public utility service shall go on strike in
breach of contract:

a) Without giving to employer notice of strike with in six weeks before striking; or
b) Within fourteen days of giving such notice; or
c) Before the expiry of the date of strike specified in any such notice as aforesaid; or
d) During the pendency of any conciliation proceedings before a conciliation officer and
seven days after the conclusion of such proceedings.

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

11 Prohibition of strikes and lock-outs.

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 12., 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 workmen13 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 Rajasthen. Reversing the decision of the Tribunal Justice
Wanchoo observed:

" ....We are of opinion that what is generally known as a lightning strike like this take
place without notice..... And each worker striking ......(is) guilty of misconduct under the
standing orders ........and liable to be summarily dismissed.....(as)..... the strike cannot be
justified at all. "

GENERAL PROHIBITION OF STRIKE

The provisions of section 2314 are general in nature. It imposes general restrictions on declaring
strike in breach of contract in the both public as well as non- public utility services in the
following circumstances mainly: -

12 1989 (58) FLR 915.

13 AIR 1958 Raj. 202.
14 Industrial Disputes Act 1947.
 a) During the pendency of conciliation proceedings before a board and till the expiry of 7
days after the conclusion of such proceedings;
b) During the pendency and 2 month's after the conclusion of proceedings before a Labour
court, Tribunal or National Tribunal;
c) During the pendency and 2 months after the conclusion of arbitrator, when a notification
has been issued under sub- section 3 (a) of section 10 A;
d) During any period in which a settlement or award is in operation in respect of any of the
matter covered by the settlement or award.

The principal object of this section seems to ensure a peaceful atmosphere to enable a
conciliation or adjudication or arbitration proceeding to go on smoothly. This section because of
its general nature of prohibition covers all strikes irrespective of the subject matter of the dispute
pending before the authorities. It is noteworthy that a conciliation proceedings before a
conciliation officer is no bar to strike under section 2315.

16
In the Ballarpur Collieries Co. v. H. Merchant it was held that where in a pending reference
neither the employer nor the workmen were taking any part, it was held that section 23 has no
application to the strike declared during the pendency of such reference.

ILLEGAL STRIKE

Section 2417 provides that a strike in contravention of section 22 18 and 2319 is illegal. This section
is reproduced below:

1. A strike or a lockout shall be illegal if,

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

15 Ibid
16 AIR (1972) SC 1216.
17 Supra 14.
18 Supra 14.
19 Supra 14.
 b. It is continued on contravention of an order made under sub section (3) of section
10 or sub section (4-A) of section 10-A.
2. Where a strike or lockout in pursuance of an industrial dispute has already commenced
and is in existence at the time of the reference of the dispute to a board, an arbitrator, a
Labour court, Tribunal or National Tribunal, the continuance of such strike or lockout
shall not be deemed to be illegal; provided that such strike or lockout was not at its
commencement in contravention of the provision of this Act or the continuance thereof
was not prohibited under sub section (3) of section 10 or sub section (4-A) of 10-A.
3. A strike declared in the consequence of an illegal lockout shall not be deemed to be
illegal.

CONSEQUENCES OF AN ILLEGAL STRIKE

Dismissal of workmen

In M/S Burn & Co. Ltd. V, Their Workmen 20 , 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 21 , 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.

20 1960 SCR (3) 423.

21 1960 SCR (1) 806.
Wages

In Crompton Greaves Ltd. v. Workmen22, 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 Nayak 23 decided the matter , the
Supreme Court held that a strike may be illegal if it contravenes the provision of section 22, 23
or 24 of the Act24 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 strike

In Rothas Industries v. Its Union25 , the Supreme Court held that the remedy for illegal strike has
to be sought exclusively in section 26 of the Act26. 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.

22 AIR 1978 SC 1489.

23 1994 SCC (5) 572.
24 Supra 14.
25 1976 AIR 425.
26 Supra 14.
JUDICIARY ON THE RIGHT TO STIKE

A series of judicial decisions emphasized on the legality or the illegality of the strike, but did not
impose a ban on the right to strike.

 In Management of Kairbeta Estate, Kotagiri v.Rajamanickanthe full bench observed that,

just as a strike is a weapon available to the employees for enforcing their individual
demands, a lockout is a weapon available to the employer to persuade by a coercive
process the employees to see his point of view and to accept his demands. In the struggle
between the capital and the labour, the weapon of strike is available with the labour.
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 recognised under the
Industrial Disputes Act as defined in Sec 2(q).

 In Bank of India v/s T. S. Kalewala 27 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. Workmen28 the 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 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 29

a 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

27 (1990) 4 SCC 744.

28 Supra 22.
29 AIR 1960 SC 902.
 wait till after the government takes notice. In such cases, strike even before such a
request has been made may well be justified.

 In the case of Kameswar Prasad v. State of Bihar30 where Rule 4A of the Bihar
Government Servants’ Conduct Rules, 1956, which prohibits ‘any form of
demonstrations’ for the redress of the grievances of Government servants was contented
to be violative of the fundamental rights guaranteed to them under Art. 19(1) (a) and (b)
of the Constitution of India and should, therefore, be struck down by the petitioners. But
the court observed that ‘The rule in so far as it prohibits a strike cannot be struck down
since there is no fundamental right to resort to a strike.”

 In the case of Moti Lal Yadav v. State of UP, the court held that doctors have no right to
deny medical treatment/ administration of medicines, care to ailing people on the ground
that they are on a strike or any of its different terminology like protest, abstention etc.
having effect of denying medical treatment/ administration of medicines, care to ailing
people.
 In the case of T.K. Rangarajan v. Government of Tamil Nadu and Others (the Tamil Nadu
Government Employees Case), Justice M.B. Shah, speaking for a Bench of the Supreme
Court consisting of himself and Justice A.R. Lakshmanan, said,
“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.”

RIGHT TO STRIKE: INTERNATIONAL PERSPECTIVES AND COLLECTIVE

BARGAINING

The rights of the workers to negotiate and collective bargain are won after a struggle for three
centuries right from the beginning of the industrial revolution in 1765. ILO (International Labour
Organization) guarantees these rights and many other labour rights with the help of international
conventions. India is a founding member of the ILO and it is naturally expected that it doesn't
violate the international labour standards. The two most important conventions in relation to
right to strike are convention no. 8731 (Freedom of Association and Protection of the Right to

30 AIR 1962 SC 1166.

31 Conventions of the International Labour Organization (ILO).
Organise Convention, 1948) and 9832 (Right to Organise and Collective Bargaining Convention,
1949). Even though the convention does not refer to the right of strike, the ILO committee on
experts has been regarding it as an essential part of the basic right to organize.

In the opinion of the ILO committee of experts so long as a suitable and effective alternate
remedy for dealing with the demands of the employees is made available there would be no
objection to the right of strike being restricted. The scheme of the joint consultative Machinery
which is at present functioning for dealing with the grievances of the Central government covers
mainly class III and class IV employees of the central government. The scope of national and
departmental council set up under the scheme includes all matters relating to conditions of
service and work, welfare of the employees and improvement of efficiency.

The convention No. 87 had been ratified by 144 countries and the convention No. 98 had been
ratified by 154 countries . India has ratified neither of these two conventions. The main reason
for our not ratifying these two Conventions is the inability of the Government to promote
unionisation of the Government servants in a highly politicised trade union system of the
country. Freedom of expression, Freedom of association and functional democracy are
guaranteed by our constitution. The Government has promoted and implemented the principles
and rights envisaged under these two Conventions in India and the workers are exercising these
rights in a free and democratic society. Our Constitution guarantees job security, social security
and fair working conditions and fair wages to the Government servants. They have also been
provided with alternative grievance redressal mechanisms like Joint Consultative Machinery,
Central Administrative Tribunal etc .

CONCLUSION

The right to strike is not fundamental and absolute right in India in any special and common law.
This is a conditional right only available after certain pre-condition are fulfilled

Unless the strike is banned within the meaning of Sec 22 (1) of the Industrial Disputes act, the
same cannot be termed as illegal attracting Sec 24 of the Act.

32 Ibid.
This legislation makes a point clear that the courts presumed the right to strike as a legally
justifiable right. The point in which the courts were traditionally interfered was with the legality
of the 'strike' and not the right to strike. For a worker the right to strike is fundamental as it is
intertwined with very source of livelihood. It is expedient on the judiciary, at least the apex
judiciary to recognise this right for the working class to survive in a mixed economy.