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IS STRIKE A FUNDAMENTAL RIGHT?

FINAL DRAFT SUBMITTED IN THE FULFILLMENT OF THE COURSE TITLED

LABOUR LAW - 1

IN THE FULFILLMENT OF THE COURSE TITLED – LABOUR LAW - 1 ACADEMIC SESSION – 2017

ACADEMIC SESSION 2017 - 2022

SUBMITTED TO:

MS. PALLAVI SHANKAR

FACULTY OF LABOUR LAW - 1

SUBMITTED BY:

DEEPTANGSHU KAR

B.A LL.B (Hons.)

ROLL NO.: 1723

SEMESTER- 4th

Table of Contents

2

DECLARATION

3

ACKNOWLEDGEMENT

4

INTRODUCTION AND HISTORICAL ASPECT

5

KINDS OF STRIKE AND RELATED PROVISIONS UNDER INDUSTRIAL DISPUTES ACT

12

RIGHT TO STRIKE AS A FUNDAMENTAL RIGHT

14

RIGHT TO STRIKE: CONSTITUITIONAL REALM

15

JUDICIAL TAKE ON RIGHT TO STRIKE

17

RIGHT TO STRIKE: INTERNATIONAL PERSPECTIVES AND COLLECTIVE BARGAINING

18

FOREIGN CONSTITUTIONAL OUTLOOK

20

CONCLUSION

21

BIBLIOGRAPHY

22

3

DECLARATION

I, Deeptangshu Kar, student of Chanakya National Law University, Patna hereby declare that the project work entitled IS STRIKE A FUNDAMENTAL RIGHTsubmitted to the Chanakya National Law University, Patna is a record of an original work done by me under the guidance of Ms. Pallavi Shankar, faculty of Labour Law- 1, Chanakya National Law University, Patna.

THANK YOU, NAME: Deeptangshu Kar COURSE: B.A., LL.B. (Hons.) ROLL NO: 1723 SEMESTER 4 th SESSION- 2017-2022

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ACKNOWLEDGEMENT

I would specially like to thank my guide, mentor, Ms. Pallavi Shankar, without whose constant support and guidance this project would have been a distant reality. This work is an outcome of an unparalleled infrastructural support that I have received from Chanakya National Law University, Patna. I owe my deepest gratitude to the library staff of the college. It would never have been possible to complete this study without an untiring support from my family, specially my parents. This study bears testimony to the active encouragement and guidance of a host of friends and well-wishers.

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INTRODUCTION AND HISTORICAL ASPECT

Widely known for patronizing democratic human rights and upholding their sacrosanct position, the apex court seems to be fascinated towards the glitter of the contemporary times. In one of the biggest democracies of the world, where the judiciary is one of those prime pillars, on which the edifice of the democracy is based, the apex court in itself commands respect.

The history of labour struggle is nothing but a continuous demand for a fair return to labour expressed in varied forms i.e. (a ) Increase in wages, (b) Resistance to decrease in wages, and (c) grant of allowances and benefits etc. If a labourer wants to achieve these gains individually, he fails because of his weaker bargaining power, the management with the better economic background stands in a better position to dictate its terms.

This project work emphasizes on importance of right to strike in democratic society. For doing so its an attempt to rationally analyse the Supreme Court judgment of T.K.Rangarajan V. State of Tamil Nadu. Taking the facts in to consideration, the action of the Tamil Nadu government terminating the services of all the employees who have resorted to strike for their demands was challenged before the Hon'ble High court of Madras, by wr it petitions under Articles 226/227 of the constitution. On behalf of the government employees, writ petitions were filed challenging the validity of the Tamil Nadu Essential Services Maintainance Act (TESMA), 2002 and also the Tamil Nadu Ordinance 2 of 2003. The division bench of the court set aside the interim order, and pronounced that the writ petitions were not maintainable as the Administrative Tribunal was not approached. The division bench judgment was challenged before the Supreme Court and Shah J. started the judgment with the word "leave granted". 1

The very first word of Shah J. gives the reader an impression that the Supreme Court has set a platform for another landmark judgment as a champion of democratic human rights. Ironically the apex court came out with a pronunciation, which reprimands the working community by saying that there is no fundamental, statutory, equitable/moral right to strike. The word 'strike' was given its narrowest possible interpretation by the Hon'ble Supreme Court. When workers resort to strike, they gamble with their own lives and also with that of their dependents. The Hon'ble court would have made an effort to understand the situation of

1 Srinivas Medisetty, Right To Strike- A Legitimate Illegality, LEGAL SERVICES INDIA ( Feb. 6, 2019, 01:08 PM) http://www.legalservicesindia.com/articles/legill.htm

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impasse which engulfs their own way of livelihood. The court stated that strike, as a weapon is mostly misused which results in chaos and maladministration, but the worker himself is the immediate victim of the strike with his only means of livelihood at stake. In addition to this there had been situations where they lose salaries, get imprisoned and some times shot dead.

If the fundamental right of an individual or a group of individuals is violated, the rest of the society has a duty to support the fight for a remedy. Though the word 'strike' is not mentioned anywhere in the constitution, as long as the strike remains peaceful, the society is duty bound to support the legitimate cause. If the slight ephemeral inconvenience caused to the society because of a strike, is a valid reason for declaring strike as an illegality then it is the high time for the adjudicative mechanism to wake up.

There exists in India a powerfully organised Labour movement. The secretary of the Indian Labour Federation, or ―Standing Committee of the All-India Trade Union Congress,‖ as it is called, is Mr. Chiman Lal, who claimed that under this federation are combined 97 unions, with 1,500,000 members. These unions embrace nearly all the industries of the country. The leading organisation is the Railwaymen’s Union, which has organised 50 per cent. of those employed, which is about 325,000 workers. The second in importance is the Textile Workers’ Union, and the third is the Miners’ Union.

Trade Unionism is a new thing in India. Before 1918 it did not exist except for a few unions for white workers. It was out of the strike movement of 1918 that the unions came into existence. The first one was organised at Madras by Mr. B. P. Wadia. Since then the progress of the movement has been both rapid and successful. The amount of success can be determined from the huge number of organised members, representing about 25 per cent. of the total number of the factory-going workers.

Strikes were common in the Indian factories, but they were never of a country-wide nature, and did not demonstrate any solidarity among the workers. The first instance of such a strike took place in Bombay, known as the General Strike, in which 120,000 workers, mostly textile operators, took part. The solidarity of the masses on that occasion was shown by sympathetic strikes in other parts of the country. The strike was practically lost. About 200 workers were shot down by the soldiers. There were no proletarian leaders at that time, and the Nationalist middle-class politicians who took the lead utilised the strike for demonstration purposes. Similarly, another strike of several hundred thousand plantation workers took place in Assam, about 2,000 miles from Bombay, three years after the general strike, and it, too, was lost, due

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to the Nationalist leaders exploiting it for political purposes. Once again str ikers were killed. According to the report of the Government Commission appointed to inquire into the reason for labour unrest in India it was shown that in nine months, from July, 1920, to March, 1921, in the province of Bengal, 137 strikes took place, reacting on all branches of industry. 244,180 workers took part in these strikes, and 2,631,488 working days were lost. Of these strikes 110 were for higher wages and 13 were for the continuation of former strikes. A note issued by the labour officer of Bombay states that in three months, from April to June, 1921, 33 strikes took place in that town alone, involving 240,000 workers, with a loss of 500,000 working days. About the middle of the same year a strike of 20,000 workers took place in the town of Madras. To suppress the labour movement in Madras, the Government, with the help of the capitalists, tried by all means to subdue the labourers. They imprisoned strikers, burnt their houses, and fined the unions, but the labourers were very determined in their demands. The strike ended in a compromise due to the reformist character of the leaders. This strike movement was country wide. In the north, in 1920, a strike of over 60,000 railway workers took place; the printers struck work to show their sympathy with their railroad comrades. Out of this strike was organised the Punjab Labour Union. The strike of the Cawnpore leather and textile workers, altogether about 30,000 men, is also noteworthy. They organised themselves and put forward 21 demands, including increased wages, unemployment insurance, and a share in profits. In short, in the year 1920, altogether 2,500,000 workers were involved in the strike movement, and in many cases it ended in bloodshed. It is estimated that altogether there were 1,000 workers wounded and killed.

In the year 1917 there were 8,000 mills and workshops, of which 67 per cent were driven by mechanical power. The railway and tramways amount to 38,000 miles. The total industrial production was valued at £261,000,000. This is excluding handicraft work and including railways. The persons taking part in this production numbered 3,500,000; thus the production per person employed was £74 for the year. In the United Kingdom in 1907 the production per person amounted to £100. Of these workers 327,000 formed the bureaucracy, both native and Europeans; the rest were wage earners.

The sum paid as wages amounted only to £27,000,000, or little over 10 per cent. of the production, as against 53 per cent. in the United Kingdom and 50 per cent. in the United States in 1907. The salaries paid amounted to £33,000,000, or £6,000,000 more than the wages of the proletarians. These salaries are due to the existence of about 28,000 European workers, whom the capitalists have to bribe with high wages in order to keep them on their

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side and to keep them out of the Labour movement and away from the Indian native workers. Deducting 33 per cent. of the total production as cost of material and 23 per cent. from wages and salary, we can fix the profit at 44 per cent. on an average. To support this the following figures from the Labour Review of November last may prove interesting. In one year the Indian cotton textile mills profited l00 per cent. of its outlayed capital. One factory in 1920 declared a dividend of 160 per cent. on an inflated capital of £300,000, while the dividend declared becomes 500 per cent. when the original capital invested by the shareholders is taken into account, which was only £100,000. Another mill, the Ring Mills, declared a dividend of 365 per cent. in the same year. Over a dozen mills have given dividends between l00 per cent. and 300 per cent., and quite a number between 50 per cent. and l00 per cent. The same thing was also shown in the jute and textile industry, where numerous, mills declared dividends from 150 to 330 per cent. Dividends in sugar works were about 60 per cent., and in the oil and flour mills 140 per cent. That of publishing houses was l00 per cent., etc.

The size and importance of the various industries can be judged from the following table:

Cotton textile, 284 mills, but capital only known for 264, amounted to £19,000,000.

Jute textile, 76 mills, but capital only known for 76, amounted to £10,000,000.

Coal mining, 850 mines, but capital only known for 236, amounted to £6,000,000.

Plantations, 1,300 plantations, but capital only known for 300, amounted to £22,000.

Railway capital at the end of the year 1917-18 was £366,436,000, and the percentage of return on capital was very high. The net gain from the railways to the Government alone was

£10,000,000.

The coal mining industry in that year produced £4,512,000. Deducting from this one and a half per cent. to cover the cost of material, which is the rate in the United Kingdom, Germany and France, we get the income of the mines at £3,902,880; of this 25 per cent. or £978,036 was paid as wages against 56 per cent. in France and 59 per cent. in Germany before the war. The salaries amounted to £350,000, and the rest was profit. The coal mines show dividends which rise to 120 per cent. In one case the average dividend for 15 years was 95 per cent. The cheapness of woman labour has already caused their wholesale introduction into all industrial spheres. In one year 43 per cent. of the coal mine workers were women. No less than 40,030 women and 665 children were employed underground, and 18,872 women and 2,283 children

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worked on the top. The earnings of the miners were £10 8s. per year as against £55 in France and £57 in Germany before the war. The average wages of the mine workers were £6 in 1917, which was raised to £7 5s. in 1918, or 6d. per working-day. The cheapness of labour in India has kept the modern improved machines out of the Indian mines; as a result of obsolete methods 30 per cent. of the labour is wasted.

Again, in the tea gardens, the output amounted to £12,400,000, and putting 20 per cent. aside as cost of material, we get £9,920,000 as the income. The workers numbered 703,585, of whom 640,267 are women. The wages paid amounted to £3,579,952, or 35 per cent. of the income. The salaries paid amounted to 60 per cent. of the amount paid in wages, and two- thirds of these salaries were drawn by a few European supervisors. The average wage of a woman worker in the tea plantations was £5 per year.

Eighty per cent. of the factory capital, 30 per cent. of the plantation capital, 40 per cent. of the mining capital, and 2 per cent. of the railway capital is Indian. Three-fourths of the rest is British and the rest international, mostly American. The following figures will show the increase of the Indian industry since 1917:—―The average total capital of the new companies registered in India year by year was approximately £12,000,000 per year for the years 1910- 14. In the first three years of the war the average fell to £6,000,000 per year. After the war it rose to the enormous figure of £183,000,000, and in 1920, to March, 1921, owing to the extraordinary ordinary disturbances in the exchange rate, it went up to £100,000,000.‖ 2

The main principles of the Indian Trade Unions are as follow:(1) The status of labour as a labourer, his relation to his employer, and effect on the economic and industrial life of the country. (2) The status of the labourer as a citizen, as related to the political movements and its result. (3) The status of the labourer in the industrial world, which has been rising ever since the Russian Revolution.

These extracts are from the Madras Labour Union’s programme. It is said that the Union

started with the first principle. ―It was when the work of education was begun, when several

In dealing

with the second we were face to face with the necessity of recognising the third factor.‖ It is further given out that in formulating these principles very little help was received from the

questions were submitted by the Union men, that the second factor

2 Abani Mukherji, Indian Labour Movement:

A

Review

of

the

Situation,

MARXISTS

(

Mar.

6,

2019,

01:12

AM)

10

educated class. ―The workpeople themselves, with a culture of their own, vaguely felt, but were unable to express what was passing in their mind, and what was bound up in the three factors described above.‖

The most prominent leader of the labour movement is Mr. B. P. Wadia. It was he who first started the labour unions in India. Wadia is an ex-member of the Indian Home Rule League (a moderate political organisation with a programme to achieve self-government by gradual concessional process) and a well-known theosophist. He is president of five virile unions in Madras. He says that the economic aim of the Indian labour movement is not only to get higher wages, etc., but the ultimate destruction of wage slavery. In his opinion the international labour movement is too materialistic, and lacks a soul. This spiritual task, he contends, is a special one left for the Indian workers to develop. His reformist attitude became most marked in his evidence on labour reform, given before the Joint Parliamentary Committee, which collected material to find the best means of introducing political reforms into India. He said: ―It is my considered opinion that Indian Ministers are better fitted to carry out adequate factory reforms than the Official Executive.‖

The next leader in importance is the reformist Indian Labour leader, Mr. Joseph Baptista. He was president of the Second Congress of the Indian Trade Union Congress. Four months before the Congress, on the 29th July, he addressed a mass meeting requesting them to follow the pacificism preached by Gandhi. He was met with cries of ―Shame.‖ The chairman of this meeting was Mr. Jamnadas Dwarkadas, a well known member of the Bombay Mill Owners’ Association, and among those present on the platform was Mr. R. Williams, chief Publicity Bureau officer of the Government of Bombay. This bureau was specially created to fight the revolutionary tendency of the masses. Mr. Baptista came to the forefront after Colonel Wedgewood’s visit to India, and though we do not know of any relation or agreement between them we know that Mr. Baptista is following the policy of the very moderate I.L.P. Labour M.P., and is introducing Fabian Socialism to India. In his presidential speech he declared that: ―The political policy of the Congress must steer clear of extreme Individualism and Bolshevism and follow the golden path of Fabian Socialism.‖

These mass leaders lack a definite viewpoint. They have picked up, here and there, some news of the Russian revolution from the bourgeoisie newspapers, and a few Communist ideas have influenced them. But they are our men, and we ought to gather them together for the

11

Indian Communist Party and then push them to take leadership of the unions. This is the immediate task of the Party.

12

KINDS OF STRIKE AND RELATED PROVISIONS UNDER INDUSTRIAL DISPUTES ACT

In business terms, a strike can be understood as a curtailment of work, due to the collective

refusal of workers to work, which occurs as a response to employee grievances. It involves, dropping out of work by any number of workers, employed in a particular industry, with an

aim of creating pressure on the employers, to accept their demands relating to pay scale, working conditions, trade practices and so forth.

A strike is a situation in which the workers act in concert for stopping or denying to resume

work. The relationship between the employer and employee continue to exist though in a state of hostile suspension.

Causes of Strike

Dispute relating to minimum wages.

Salary and incentive issues.

Increment is not up to the performance.

Dissatisfaction with the policies of the company.

Hours of work and interval timings.

Holidays and leaves with pay.

Bonus, Provident Fund, and gratuity.

Withdrawal of any facility or allowance.

Wrongful dismissal of workmen.

The most obvious reason of strike is the non-payment of wages or salaries to the workers of the factory by the employers.

Types of Strike

Hunger Strike: Strike in which the employees go on fasting, near the workplace or at the residence of the employer, to force him/her redress their grievances is called hunger strike.

Economic Strike: Economic Strike is the cessation of work by the labors with an aim of imposing their economic demands like wages and bonus.

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In such strike, the workers raise their voices to increase their pay, improve working conditions, facilitate them with allowances, perquisites, and add-on benefits.

Stay-in Strike: A type of strike, in which the employees come to the office, as usual, take their seats but do not work and also deny to leave the office premises, when asked to do so.

When such an act is performed in combination, it amounts to stay-in strike. Alternately called

as sit-down, pen-down or tool-down strike.

Go-slow Strike: Otherwise called as a slow-down strike, is one in which the workers do not stop working, but slow down the entire process by deliberately delaying the production, which results in the reduction of output.

This amounts to a serious case of misconduct, whereby the workmen pretend to be engaged

in the work and entitled to full wages. It is more harmful than the complete cessation of work

by employees, as the resources get wasted, due to delayed working of employees.

Sympathetic Strike: A type of strike in which the workers of one department, unit, division,

or industry, go on strike, in support of the workers of another department, unit, division, or industry, who are already on strike.

This may be an unjustified seizure of rights of the employer, who is not even involved in the conflict.

Strike is one of the powerful tool of collective bargaining, used by trade unions and labor associations to compel the employer to grant several concessions. It can also be used to protest certain terms of former or proposed agreement amidst the labor and management.

A prolonged strike may result in lock-out, which is a strategy used by employers to make

trade unions settle down with their terms.

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RIGHT TO STRIKE AS A FUNDAMENTAL RIGHT

The TK Rangarajan judgement relies on 5 prior cases to conclude that is is well-settled that there is no fundamental right to strike. However, a more nuanced reading of those precedents indicates that this question has never been properly considered by the Court at all. The very first case to touch on this topic, was the All India Bank Employees’ Association case wherein the Court dealt with Article 19 (1) (a). however, it is worth noting that the case did not pertain to strikes at all rather the issue of strike was merely an illustration relied upon by the court hence, the statement was, at best, merely obiter dicta. It is submitted that the courts in subsequent cases wrongly took the obiter dicta of the case to be the ratio of the said judgement.

In Kameshwar Prasad’s case, decide 6 months later, a 5-judge bench distinguished between a demonstration and strike, and blindly relied on All India Bank Employees’ Association case to conclude that there was no fundamental right to strike. However, this overlooked two crucial points firstly, that the previous case had only analysed whether strikes fell within the ambit of Article 19(1)(c), but not considered the scope of articles 19(1)(a) or (b); and secondly, that the issue of strike was never urged before the Court at all. 3

Subsequent cases like Post Master General, and Harish Uppal, have merely cited the above two cases as authority for the proposition that there is no right to strike. Therefore it is clear that these 4 cases cannot be considered as laying down a rule that there is no fundamental right to strike- rather, each case erroneously reads previous cases, and provides only conclusionary statements, without actually analysing ―strike‖ as a part of the rights to free expression and assembly a mistake repeated by the Court in TK Rangarajan. The only other case cited in the judgement, Communist Party of India’s case, actually distinguished between coerced bandhs (which are illegal), and peaceful strikes (which are not), and therefore supported the petitioners’s case, not the governments!

Hence, the court was hasty in concluding that there is no fundamental right to strike perhaps the Hon’ble Judges might have referred the matters for the consideration of a larger bench (since earlier cases were decided by 5-judge Benches).

3 Harshita Jalan, Right to Strike as a Fundamental Right, CORPORATE LAW REPORTER (Mar. 3, 2019, 01:16 AM) http://corporatelawreporter.com/2013/03/24/tk-rangarajan-government-tamil-nadu-2003-6-scale-84- review/

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RIGHT TO STRIKE: CONSTITUITIONAL REALM

The Administrative Tribunals may act as speedy machinery for redressal of the grievances of the employees in the service matters, but when 1,70,000 employees are dismissed en masse ,as in T.KRangarajan v. State of Tamil Nadu, it is not a trivial service matter but a matter relating to right to life, that is a fundamental right guaranteed under Article 21 of the constitution. It becomes obligatory on the constitutional courts, which exercise the writ jurisdiction to embroil themselves in to the grave situation. Moreover the administrative tribunals are quasi judicial bodies which some times act according to the executive whims and fancies rather than judicial principles. Article 19 (c) of the Constitution of India provides freedom to form associations and unions. The term union's also include trade unions.

The conditions of service of the central government employees are governed by the rules made by the president under Article 309 of the constitution or under the Act of the parliament enacted under the same rule. In Union of India v. Tulsi Ram Patel it was stated that the opening words of article 309 "subject to the provisions of the constitution" make it clear that the conditions of service, whether laid down by the legislature or prescribed by the rules, must confirm to the mandatory provisions of the constitution.

Article 43-A of the constitution speaks about the participation of workers in management of

industries. It says that the state shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organizations engaged in any industry. If the workers require supporting their stand in parlance with the management an effective action like the right to strike needs to be at their reach. In Radhe Shyam Sharma v. Post Master General it was stated that Article 43-A of the Constitution clearly states that the State shall take steps by suitable legislation or in any other way to secure the participation of workers in the management of undertakings, establishments or other organisation engaged in any industry. The High-powered Expert Committee on Companies and MRTP Acts headed by Rajinder Sachar J. of the Delhi High Court has also made certain recommendations about provisions to be made for workers'

participation in management

of companies.

Ahmadi J. in B.R. Singh v. Union of India observed: "The right to form associations or unions is a fundamental right under Article 19 (1) (c) of the Constitution. Section 8 of the

16

Trade Unions Act provides for registration of a trade union if all the requirements of the said enactment are fulfilled. The right to form associations and unions and provide for their registration was recognized obviously for conferring certain rights on trade unions. The necessity to form unions is obviously for voicing the demands and grievances of labour. Trade unionists act as mouthpieces of labour. The strength of a trade union depends on its membership. Therefore, trade unions with sufficient membership strength are able to bargain more effectively; reduced if it is not permitted to demonstrate. "Strike in a given situation is only a form of demonstration. There are different modes of demonstrations, e.g., go-slow, sit- in, work-to-rule, absenteeism, etc., and strike is one such mode of demonstration by workers for their rights. The right to demonstrate and, therefore, the right to strike is an important weapon in the armoury of the workers. This right has been recognised by almost all democratic countries. Though not raised to the high pedestal of a fundamental right, it is recognised as a mode of redress for resolving the grievances of workers".

It has become a ubiquitous practice to blame the workers for the man days lost due to the strike, but why aren't the employers blamed for the lock outs? The industrialists according to their profit motive end up the lives of the dependent workers in enigma. The recent statistics show that the numbers of man days lost due to lock outs are more than that of strikes.

17

JUDICIAL TAKE ON RIGHT TO STRIKE

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.Rajamanickan the 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 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. Workmen 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 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 wait till after the government takes notice. In such cases, strike even before such a request has been made may well be justified.

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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. 87 (Freedom of Association and Protection of the Right to Organise Convention, 1948) and 98 (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 . Even though, these

19 conventions were not ratified, the requirement was not felt prior to the Supreme Court
19
conventions were not ratified, the requirement was not felt prior to the Supreme Court
judgment
banning
the
right
to
strike.
The principal objects of the Industrial Disputes Act 1947, as analysed by the Supreme Court
in the case of Workmen of Dimakuchi Tea estate v. Management of Dimakuchi Tea Estate
(1) promotion of measures for securing amity and good relations between the employer and
the
workmen.
(2) relief to workmen in the matter of lay off, retrenchment and closure of an undertaking.
(3) collective bargaining.

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FOREIGN CONSTITUTIONAL OUTLOOK

Strike, means 'concerned stoppage of work by workers done with a view to improving their wages or conditions, or giving vent to a grievance or making a protest about something or the other, or supporting or sympathizing with other workers in such endeavour' . The right to strike has acquired an implied authorization from the Universal Declaration of Human Rights (1948). Articles 23,24 and 25 of the declarations assert every one's right to work, right to just and favourable remuneration and right to form and join trade unions and also the right to rest, leisure, leave etc. and the right for fair living conditions with necessary social benefits.

The English Courts have already recognised this right as a justiciable right. Lord Denning in Morgan v. Fry stated that strike is labour's ultimate weapon and in the course of hundred years it has emerged as the inherent right of every worker. It is an element which is of the very essence of the principle of collective bargaining. Right from the industrial revolution the reasonable right of the workers to strike work is recognised in various countries. Article 32 of the constitution of Rwanda lays down that:

"The right to strike shall be exercised with in the laws by which it is regulated. It may not infringe upon the freedom to work". Article 42 of the constitution of Ethiopia provides the right to strike to the workers and also enjoins the state to provide such right, subject to any restrictions, even to the government employees. Article 34 of the constitution of Angola guarantees right to strike and prohibits lockouts. Brazil, the developing Latin American country also guarantees the right to strike under Article 9 of the constitution. Capitalist countries like Japan under Article 28 and South Korea under Article 33 of their respective constitutions provide the right to strike.

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CONCLUSION

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

Section 22(1) provides that no person employed in public utility service shall go on strike in breach of contract:

(a)

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

(b)

within fourteen days of giving such notice ; or

(c)

before the expiry of the date of strike specified in any such notice as afore said ; or

(d) during the pendency of any conciliation proceeding before a conciliation officer and seven days after the conclusion of such proceedings.

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.

Even though there is no express statement in our constitutional law incorporating in it the doctrine of separation of powers, in the interpretation of the Constitution, this Court has broadly adopted the said doctrine in Indira Nehru Gandhi v. Shri Raj Narain and others . Even though by virtue of its powers by interpretation of law the court in an indirect way is making law, it should be stated that there are well recognised limitations on the power of the court making inroads into the legitimate domain of the legislature. If the legislature exceeds its power, this Court steps in. If the executive exceeds its power, then also this Court steps in. If this Court exceeds its power, what can people do? Should they be driven to seek an amendment of the law on every such occasion? The only proper solution is the observance of restraint by this Court in its pronouncements so that they do not go beyond its own legitimate sphere. It is expedient on this court to recognize the right to strike in this context to provide the legitimate locus for the workers.

22

BIBLIOGRAPHY

BOOKS

Mishra, S.N.:Labour and Industrial laws: Universal Law Publishing, 2013.

Sharan S.B.: Industrial Relations and Labour Laws at Glance: Shroff; First edition (1

January 2015)

Vijaya Kumar T.: Labour and Industrial Relations Law: Atlantic; Edition edition

(2014).

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