“STRIKE REPORT"

By
[NISHA]
[00616503812],
[UNIVERSITY SCHOOL OF LAW AND LEGAL STUDIES]

2015

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 CONTENT

HEADING

1. ABSTRACT

2. CONCEPT & MEANING OF STRIKE

3. LEGAL AND ILLEGAL STRIKE AND CONDITIONS TO PROVE

4. WHO MAY DECLARE STRIKE ?

5. WHAT ARE REQUISTE OF LEGAL STRIKE ?

6. WHAT IS THE SCOPE OF PROHIBITION UNDER SECTIONS 22 AND

23?

7. DISTINCTION BETWEEN SEC 22, SEC 23 AND SEC 20?

8. CONCEPT OF JUSTIFICATION OF STRIKES

9. SECOND NATIONAL COMMISSION ON LABOUR’S

RECOMMENDATIONS ON LEGAL AND ILLEGAL STRIKES

10 .CRITICISM

11. CASES

- STRIKE CASE OF MARUTI SUZUKI

- AIR INDIA PIOLET STRIKE

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 ABSTRACT
This project will try to make an analysis of the understanding of illegal
strikes as it has evolved over time and what its status is at present and to do
this effectively, will be addressing a few issues distinctly. It will begin by
briefly addressing strikes generally, before moving on to the specifics- what
do we understand by illegal strikes? In this part will be analying Section 24
of the Industrial Disputes Act, 1947, to see how it covers the concept of
illegal strikes. Along with that, will refer to judicial decisions that have
developed and built on the understanding of illegal strikes and the criteria to
determine them, and the contradictions among these decisions. In addition
to Section 24, Sections 22 and 23 will also be highlighted in order to
understand the scope of the prohibitions, that is, whether it is a blanket
prohibition or they prohibit strikes under certain conditions. And would
analyze the parameters of a legal strike, and what would render a strike
illegal, and whether the standards followed in India correspond to the
international ones. And would also bring into light the recommendations and
suggestions of the Second National Commission on Labour on legal and
illegal strikes to determine how useful they would be, Finally, the project
aims to see if the consequences of illegal strikes as provided under the
Industrial Disputes Act, 1947, act as sufficient deterrents.

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CONCEPT & MEANING OF STRIKE

DEFINTION OF STRIKE

Section 2(q) of the Industrial Disputes Act, 1947 , defines strike.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.”

The analysis of the definition would show that there are the following
essential requirements for the existence of a strike:
(1) There must be cessation of work.
(2) The cessation of work must be by a body of persons employed in any
industry;
(3) The strikers must have been acting in combination;
(4) The strikers must be working in any establishment which can be called
industry within the meaning of Section 2(j); or
(5) There must be a concerted refusal; or
(6) 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;
(7) They must stop work for some demands relating to employment, non-
employment or the terms of employment or the conditions of labour of the
workmen.

WHAT IS COMMON IDEA OF STRIKE ?

The common idea of a strike is that there is stoppage of work for a period of
time by the workers of an enterprise in order to make the management or
employees accept their demands or come with a viable solution for the
dispute.

TYPES OF STRIKE ?

There are various types of strikes

1. general strike
2. stay-in strike
3. go-slow strike
4. sympathetic strike and so on.
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DIFFERENCE IN LEGALITY AND ILLEGALITY

There is no provision in the IDA which defines the legality or illegality of a

strike

The strike is illegal

1. if it is in breach of Contract of Employment.
2. if it is in Public Utility Services.
3. if Notice under Section 22(1) is not given.
4. if commenced during Award or settlement period.
5. if commenced During or within 7 days of completion of Conciliation
Proceedings.
6. if commenced During or within Two months of completion of
Adjudication Proceedings.

OTHER NOT COVERED ARE LEGAL.

LEGAL AND ILLEGAL STRIKE AND CONDITIONS TO PROVE

CONDITIONS TO PROVE LEGALITY NAD ILLEGALITY OF STRIKE.

Section 24 lays down conditions, which, if contravened, would make the

strike illegal, like contravening provisions laid down in Sections 22-23, or
Section 10(3) or 10A(4A) of the Act.

Section 24 provides for the conditions under which a strike will become
illegal, and the two main clauses under this Section (with respect to
strikes) say that a strike will be illegal if it in contravention of Sections 22
or 23 which lay down the grounds for prohibition of strikes. This shows
that a strike will be illegal if these statutory provisions are breached, and
not so much the purpose of the strike, in India. Section 10 of the IDA
gives the appropriate authority power to determine whether a dispute is
in the nature of an industrial dispute and then refer it accordingly, and
this discretion or the factors which is used to determine the nature of the
dispute cannot be questioned in a court of law

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 WHO MAY DECLARE A STRIKE?

Any certified or duly recognized bargaining representative may declarea

strike in cases of bargaining deadlock and unfair laborpractice. Likewise,
the employer may declare a lockout in the samecases.In the absence of a
certified or duly recognized bargainingrepresentative, any legitimate
labor organization in the establishmentmay declare a strike but only on
the ground of unfair labor practice.(Section 2, Rule XIII, Book V, Omnibus
Rules Implementing The LaborCode, as amended)

WHAT ARE THE REQUISITES OF A LAWFUL STRIKE ?

A. The requirements for a valid strike or lockout areasfollows . It must be based on

a valid and factual ground . A strike or lockout NOTICE shall be filed with the
NationalConciliation and Mediation Board (NCMB) at least 15 days beforethe
intended date of the strike or lockout if the issues raised areunfair labor practices,
or at least 30 days before the intended datethereof if the issue involves bargaining
deadlock.In cases of dismissal from employment of union officers dulyelected in
accordance with the union constitution and by-laws,which may constitute UNION
BUSTING where the existence of theunion is threatened, the 15-day cooling-off
period shall not applyand the union may take action immediately after the strike
voteis conducted and the result thereof submitted to the Departmentof Labor and
Employment.

A strike must be approved by a majority vote of the membersof the Union and a
lockout must be approved by a majority voteof the members of the Board of
Directors of the Corporationor Association or of the partners in a partnership,
obtained bysecret ballot in a meeting called for that purpose

.2. A strike or lockout VOTE shall be reported to the NCMB-DOLERegional Branch

at least 7 days before the intended strike subject to the cooling-off period.In the
event the result of the strike/lockout ballot is filed withinthe cooling-off period, the
7-day requirement shall be countedfrom the day following the expiration of the
cooling-off period.(NSFW vs. Overarm, G.R. No. 59743, May 31, 1982)In case of
dismissal from employment of union officers which mayconstitute union busting,
the time requirement for the filing ofthe Notice of Strike shall be dispensed with but
the strike voterequirement being mandatory in character, shall “in every case”be
complied with. The dispute must not be the subject of an assumption of jurisdiction
by the President or the Secretary of Labor and Employment, a certification for

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compulsory or voluntary arbitration or a subject of a pending case involving the
same grounds for the strike

WHAT IS THE SCOPE OF PROHIBITION UNDER SECTIONS 22 AND

23?

In Section 22, which applies to public utility services specifically?

Clause (1) lays down a set of grounds which needs to be complied with
necessarily, namely, giving the employer notice of such strike six weeks
in advance, and not to be within fourteen days of such notice, the strike
has to be before the expiry of date specified in the notice, and there can
be no strike while conciliation proceedings are pending before a
Conciliation Officer and up to seven days after the conclusion of such
proceedings. A possible explanation for this is that employers are going
to get adequate time to prepare for the strike because of the notice, and
it also allows some time to find an alternative solution to the
dispute. However, if there is a lockout already by employers, notice need
not be given.

Section 23 refers to general prohibitions and broadly states that there

would be a breach of contract of employment if a strike was called during
pendency of dispute before a Board of Conciliation or Labour Court,
Tribunal, Arbitrator etc., and for a period after conclusion of such
proceedings.

DISTINCTION BETWEEN SEC 22 , SEC 23 AND SEC 20 ?

The three main distinctions between Sections 22 and 23 is,

FIRST, that while the former deals specifically with public utility services,
which makes conditions more stringent for them, the latter applies to all
other establishments as well as public utility services.

SECOND, providing notice under Section 22 is mandatory, while it is not

so under Section 23, and

FINALLY, unlike Section 22, proceedings before a Conciliation Officer in

the case of establishments other than public utility services will not bar
the declaration of a strike.
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While Section 23(c) states that there is a prohibition on strikes with respect
to matters pending for settlement or award, during the period of such
pendency. The provisions of Section 20 has been given a restrictive
interpretation, that only on receipt of conclusion report by the Central
Government will it be assumed that settlement proceedings have concluded.

In the case Workmen v. Industrial Colliery there was a delay in receipt of the
conclusion report by the Central Government which the Trade Union did not
know about, and it declared a strike. The Court held this to be an illegal
strike on the basis of a strict interpretation of Section 20.

Another case, Ramnagar Cane and Sugar Co. v. Jatin Chakrabarty court
held that conciliation proceedings between one Union and the employer will
act as a bar against all other Unions striking on the matter. But on the
question of striking during conciliation proceedings on separate issues
altogether, there have been slight contradictions.

Justice Krishna Iyer in Gujarat Steel Tubes v. G.S.T. Mazdoor Sabha by

obiter said that it would be unreasonable to assume that a strike on an
unrelated matter should be barred because there is conciliation
proceedings going on regarding another matter altogether. However, the
Patna High Court and the Calcutta High Court have said that Section 23
prohibits strikes on all issues, whether related, or unrelated, when there are
proceedings going on before a Conciliation Officer, Board of Conciliation or
any Industrial Tribunal.

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 CONCEPT OF JUSTIFICATION OF STRIKES

DETERMINATION WHETHER AND IN WHAT SITUATIONS SHOULD

STRIKING EMPLOYEES BE ENTITLED TO PAYMENT OF WAGES FOR
THE PERIOD.
Yet courts have been trying concept of justification of a strike,

In Chandramalai Estate, Ernakulam v. Its Workmen

COURT OBSERVED - Though a strike is legitimate action on the part of the

labour, it cannot be used indiscriminately. Still, there may be situations of
emergency when there may not be time to wait for references and in such
instances a strike will be justified. This was added on to in a number of other
cases where they said that the justifiability of a strike would depend on
whether the intentions were bona fide, and justifiability would be viewed as
to whether the demands are fair and reasonable, and in various situations
strikes have been held to be justified, like in an instance of using strike as a
method of protest against unreasonable attitude of the management and so
on.

Another case

In Crompton Greaves Ltd. v. Workmen [] , the court said that whether a

strike is justifiable or not depends on the facts of the case and has to be
determined on a case to case basis. It then went on to say that a strike
cannot be said to be unjustified unless its reasons are entirely perverse or
irrational.

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SECOND NATIONAL COMMISSION ON LABOUR’S RECOMMENDATIONS
ON LEGAL AND ILLEGAL STRIKES

They recommend that in essential services strikes cannot be called without

a strike ballot in which there is at least a 51 percent majority, and it can only
conducted by the recognised negotiating agency who is also supposed to be
the only recognized body to call for such a strike, and the ballot would be
supervised a hierarchy of officers headed by the Registrar. Another problem
that emerges is that now the system is a lot more complex and time
consuming, and it would require a significant amount of co-ordination. Also,
surely there are concerns about the negotiating agent, like if the
government is the recognizing body, and there is only one such agent does it
not become sort of like a trade union of trade unions? This would simply be
inserting a middleman and increasing transaction costs. Most of the above-
mentioned procedure also applies in the case of general strikes, that is for
non-essential services, except, the negotiating agent shall send notice of
such strike to the labour commissioner and conciliation officer and the
procedure would be the same then as it exists now.

The Commission recommends that Section 66 would deal with illegal

strikes and penalties for the same. First, to be valid, a strike cannot in be in
contravention of the earlier two Sections 63 and 64, next, three days wages
shall be deducted for each day of the illegal strike by each striking worker,
and finally, any Trade Union leading such illegal strikes would be
derecognised and the office bearers of that union will not be allowed to hold
any other office for any other union for three years.

The Commission appears to have taken into consideration that there was a
bit of confusion with respect to payment of wages during the strike period
which required the justification of the matter looked into, and these
provisions ensure that if a strike is illegal by failing to comply with statutory
provisions, wages will be deducted.

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 CRITICISM

The penalties are supposed to act as much as a deterrent as a punishment,

but it seems more like a method to strangle the right to freedom of
association and collective bargaining because these harsh measures would
ensure that unions and workers think twice before declaring a strike, and if
they are to follow the new complicated and time consuming provisions,
especially with respect to essential services, to the ’t’, they will probably
never get around to actually going on strike! As far as the adequacy of the
consequences for illegal strikes under IDA is concerned, they do not appear
to be too serious, but they are not entirely inadequate either. Though it
makes prosecution difficult because prior permission of the government has
to be sought, the penalty may be in terms of imprisonment or a fine or both.

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 STRIKE CASE

MARUTI SUZUKI CASE

This case is about the labor unrest that occurred at the Manesar plant of India's largest car
manufacturer, Maruti Suzuki India Limited (MSIL), the Indian subsidiary of the Japanese
automobile maker, Suzuki Motor Corporation (SMC). The Manesar plant witnessed three
labor strikes 2011 and a lockout in July 2012 after the brutal murder of a General Manager
(HR) at the company. The three strikes resulted in a revenue loss of Rs.25 billion to MSIL.
The case details the events leading up to the gory incident in July 2012 which left one
manager dead and more than 100 injured.

The main points of contention between MSIL's management and its workers related to the
formation of an independent union by the Manesar plant workers; contract workers being
paid one-third the salaries as permanent workers despite both the groups performing
similar tasks; and, the exacting rules at work such as half the salaries of workers being
deducted if they were late to work by a few minutes. Though the primary responsibility for
the July 2012 murder lay with the perpetrators, i.e. the workers, the case discusses the
circumstances that led to the incident and questions whether it could have been
avertedworkers of Maruti Suzuki’s Manesar plant by declaring the strike illegal and
imposing a ban on the strike by passing prohibitory orders fully appraised of it because we
believe this is an illegal strike. There was no notice given, there was no prior demand
placed before us. There were no discussions; there was no attempt at conciliation, nothing.
It was a sudden preemptive, without notice, out of the blue kind of strike. Now we are
trying to understand what exactly are the problems of the workers which need to be
addressed and when we fully understand what they really are wanting, we will try and
work out appropriate solutions to meet those genuine requirements

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The 2,500 workers who had struck work on Saturday have been demanding recognition of
a new union -- Maruti Suzuki Employees Union (MSEU) –independent of the existing one
which is dominated by workers of the Gurgaon plant. They have also demanded that the
management take back the order for termination of eleven employees who allegedly
instigated the workers. The third demand is to scrap the order of ‘no work no pay’ imposed
by the management. Maruti had signed an agreement on October 1 to end a month-long
workers' strike at its Manesar plant over a "good conduct bond", but faced another on
October 7 over reinstatement of 1,100 contract workers. The plant has been shut since
then.
The Haryana government on Wednesday declared the strike illegal for violation of the
October 1 agreement. The strikes this year, including one in June, have cost Maruti Rs
1,643 crore and a production loss of 54,775 units. The carmaker has been seeking legal
intervention as the strike has spread to its subsidiaries in the vicinity. Workers at Suzuki
Powertrain India Ltd (SPIL), which supplies engines and transmission, andSuzuki Motorcycle
India Pvt Ltd are on strike since October 7 in support of their Mansard colleagues.
Conclusion- The right to strike is not fundamental and absolute right in India in any special
and common law, Whether any undertaking is industry or not. This is a conditional right
only available after certain pre-condition are fulfilled. If the constitution maker had
intended to confer on the citizen as a fundamental right the right to go on strike, they
should have expressly said so. On the basis of the assumption that the right to go on strike
has not expressly been conferred under the Article 19(1) (c) of the Constitution. Further his
Lordship also referred to the observation in Corpus Juris Secundum that the right to strike
is a relative right which can be exercised with due regard to the rights of others. Neither
the common law nor the fourteenth Amendment to the federal constitution confers an
absolute right to strike. It was held in the case that the strike as a weapon has to be used
sparingly for redressal of urgent and pressing grievances when no means are available or
when available means have failed to resolve it. It has to be resorted to, to compel the other
party to the dispute to see the justness of the demand. It is not to be utilized to work
hardship to the society at large so as to strengthen the bargaining power. Every dispute
between an employer and employee has to take into consideration the third dimension,
viz. the interest of the society as whole.

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 AIR INDIA STRIKE CASE

CASE POINTS • In 2007, the Government of India announced that Air India would be
merged with Indian Airlines.
• As part of the merger process, a new company called the National Aviation Company of
India Limited (NACIL) was established.
• Around 2006-2007, the airlines began showing signs of financial distress. The combined
losses for Air India and Indian Airlines in 2006-07 were 770 crores (7.7 billion).
• On 27 February 2011, Air India and Indian Airlines merged along with their subsidiaries to
form Air India Limited.
Employee Strike
• Demand:
• Better salary, promotion and increment.
• Equality between Air India and India Airline Staff.
• Reappoint the pilots, who force to resign.
• Career progression
• Integration across various cadres
• rationalization of pay scale

THE CHRONOLOGY OF THE AIR INDIA STRIKE MAY 2012

• On May 8, 2012 about 100 pilots went on medical leave as a mark of protest.
• Later, the same day it sacked ten agitating pilots and de-recognized their union after 160
pilots failed to join duty by the given deadline.
• After putting forth an original list of 14 demands, the aviators are now asking for
reinstatement of their 101 sacked colleagues

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 • On the 15th of May, the Union Civil Aviation Minister Ajit Singh stated that the
Government was giving Air India one last chance and that it must perform in order to
qualify for a bailout.
• on 4 July 2012 AIl management gave an assurance to Delhi High Court that it would look
into the hardships of the pilots sympathetically, the striking pilots have decided to end the
58 day old strike immediately.
• Due to pilots' strike Air India suffered a loss of 500 crores (US$90.5 million)

MANAGEMENT’S VIEW
• Efforts are being made to resolve the situation.
• Appeal to the pilots that they should think about the passengers.
• As per Rule 42 (2) of the Aircraft Rules, 1937: Pilots who have claimed sickness for two
months have been asked to submit medical reports. But verification of the two-month long
sickness and related tests and reports may catch pilots on the wrong foot
• An interview with the former executive director of Air India: Jitender Bhargava Why so
many pilot strikes taken place in Air India lately? Successive managements have also been
insensitive to issues raised by the unions. This is because of a weak HR setup, lack of
structured policies and their inconsistent application. The management has taken decisions
under duress, appeasing one section of employees at the expense of others.

HOW IT END?
• The 58-day protracted strike by Air India pilots was called off on 4th July after the Delhi
high court asked them to join duty within 48 hours and the management to
sympathetically consider their grievances. • "The AI management shall sympathetically
consider the grievances of the pilots including the aspect of reinstatement of those pilots
whose services were terminated as a consequence to their strike," Justice Khetrapal said
while disposing of the pilots' plea for a direction to the AI management to take back the
101 sacked pilots, including 10 IPG office bearers.
• Employee opinion: “The merger created problems that cannot be solved. Our grades,
work, promotions and allowances are different. When you see your colleague from the
other cadre doing the same work, but getting easy promotions, allowances, there is bound
to be resentment,”

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