ILLEGAL STRIKES UNDER THE INDUSTRIAL DISPUTES ACT, 1947
Author: SAI KOUSHIK,
2017-2022,
CHRIST (DEEMED TO BE UNIVERSITY).
Abstract: industrial disputes act, 1947 given right to strike to every worker to safeguard their interests. The article tries to find out the rights given to the workmen to go to strike and how the workmen are using this to supress the rights of the employers. As certain strikes are harmful to the business of the employer. The articles try to find the liability of workmen and trade unions for illegal strikes. The article shows how the strike is been seen as justified or unjustified strikes. Under the industrial disputes act only workmen are liable to pay penalty, but the trade unions are left out of the scenario. Researcher analysed the judgements of various courts and their behaviour towards the strikes and the various enacted laws. The paper tries to analyse the understanding of illegal strike and how it evolved and the present status. Analyse the section 24 of the industrial disputes act, 1947 to see whether it covers the concept of illegal strikes. the article refers to the judicial decisions by the courts that developed and built the better understanding of the illegal strikes and the criteria to determine among these decisions.
Keywords: Strike, workmen, employer, Industrial Dispute.
India is one of the fastest growing economy and the change of the traditional business and agriculture changed into industrialization. The rapid industrialization made the country to go towards the development, innovation better amenities. However, it increased the differences and created a separate groups haves and have nots. As the certain class of people are having the rights over the other portions of the society. There is no way the workmen to show their grievances aver the employer. Due to which their used to be regular strikes in every establishments to force the employers to address their problems. As we seen the birth of new enactments to protect the rights of the workmen. As the trade unions act which recognised the right of workmen to form a union and the individual and collective problems can be addressed by the trade union leaders. Industrial disputes act, 1947 is legislated to give the directions how the problems of workmen can bring before the employer. The act legally recognise strike is a legal tool against the employers. But also, the act laid down certain criteria to be fulfilled to call the strike is legal, any contraventions to the act are seen as an illegal strike. Sections 22, 23 and 24 whether there is a blanke3t prohibition or they are the strikes prohibited under certain conditions.
Sec 2(q) of 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 basic idea of strike is that the workmen’s stoppage of the industry for period of time to force the management to address their problems and to come for viable solution for the dispute. There are various types of strikes which the workmen regularly followed Stay in, sit down, pen down strikes, Mass casual leave, General strike, go slow, token strike, lightning strikes, sympathetic strikes, hunger strike.
Under industrial disputes act there is no provisions which defines the legality and illegality of strikes, but section 24 lays down that strikes which contravenes the provisions laid down under sections 22 and 23 of the Act. If any strike which contravenes sections 22 and 23 are deemed as illegal strikes. it is also seen that if any strike contravenes the sections 22 and 23 can also been seen as a legal strike when the strike is justified. Section 10 of industrial disputes act, 1947 states the appropriate authority power to determine any dispute to be referred to board, tribunal or labour court. An issue of significance whether the scope of prohibition of public utility services under section 22. Clause (1) of section 22 states that no workmen can go on strike in breach of contract without giving the employer notice of strike within six weeks before striking, and not be within fourteen days of such notice. The strike has been before expiry and there cannot be strike during the conciliation proceedings before the conciliation officer and up to seven days after the conclusion of such proceedings. The whole reason of the process is to give the employers to take a better decision by taking necessary measures. Many times, employers don’t want the workmen to take any drastic steps which will not only affect the relation between the workmen but it also effects their relation with the customer, clients and the outsiders. The
notice of workmen to strike helps the employer to know the problems of the workmen and their demands. Employers usually try to address the problems with trade unions and come for a negotiation with the workmen. Section 23 of the act deals with the general probation of strikes and lock outs by all establishments and there would be breach of contract of employment during the pendency of dispute in labour court or conciliation officer. Clause (c) of section 23 states that when there is a prohibition during the matter pending for settlement or award, pendency. This section bars the trade unions and the workmen to strike during court proceedings.in the case of Ramnagar Cane and Sugar Co. v. Jatin Chakrabarty court held that as the conciliation proceedings by one union can act as a bar to other trade union of the same issue. But there is contradiction of views when the striking during conciliation proceedings on separate issues altogether. In Gujarat Steel Tubes v. G.S.T. Mazdoor Sabha court held that it would be unreasonable to workmen on bar of striking during proceedings on separate issues. But Calcutta high court and Patna high court of a view that section 23 prohibits all types of strikes whether they are relevant or irrelevant during the proceedings.
notice of workmen to strike helps the employer to know the problems of the workmen and their demands. Employers usually try to address the problems with trade unions and come for a negotiation with the workmen. Section 23 of the act deals with the general probation of strikes and lock outs by all establishments and there would be breach of contract of employment during the pendency of dispute in labour court or conciliation officer. Clause (c) of section 23 states that when there is a prohibition during the matter pending for settlement or award, pendency. This section bars the trade unions and the workmen to strike during court proceedings.in the case of Ramnagar Cane and Sugar Co. v. Jatin Chakrabarty court held that as the conciliation proceedings by one union can act as a bar to other trade union of the same issue. But there is contradiction of views when the striking during conciliation proceedings on separate issues altogether. In Gujarat Steel Tubes v. G.S.T. Mazdoor Sabha court held that it would be unreasonable to workmen on bar of striking during proceedings on separate issues. But Calcutta high court and Patna high court of a view that section 23 prohibits all types of strikes whether they are relevant or irrelevant during the proceedings.
Strike is a legitimate weapon and if it is not contravening the sections 22 and 23 of Industrial Disputes Act, 1947. But still the conduct of striking by the workmen may be reprehensible and violent whereas the employer is showing complete reasonableness and desire for conciliation. Sometimes the strike is illegal due to the non compliance of the mandatory requirements under Act where the mandatory notice for public utility services and prohibition of strike during the court proceedings, but the striking workmen are legitimate, lawful and justified by them to act as when the attitude of employer is malafide and motive of exploitation. These peculiar types of strikes made the industrial law to classify strikes into justified and unjustified strikes. Sometimes the acts by the workmen are justified as when the workmen cause of strike is just and the timely to be acted by the workmen when the demand is of such a nature of serious and urgent and the labour cannot wait until the dispute is referred to the Government held in Chandramalai Estate, Ernakulum v. its workmen[1]. Strikes help the workmen for a collective bargaining in improvement like basic pay, dearness allowance, provident fund, bonus as the trade unions could put before the employer or else, they can force the employers to negotiate through strikes, strikes per se are legal unless they have been proven with a malafide intention. The strike itself cannot be treated as a misconduct by the workmen. Employer don’t have any right to dismiss the workmen for a justified strike because in that case it will render the recognised weapon ineffective. Even if the strike is unjustified still the employer doesn’t have the power to dismiss, until the workmen have been proved frivolously and dominant motive of running the industry down then that act can be seen as a misconduct and the employer will have the right to dismiss the workmen.
The whole process of strike is to force the employer to take the necessary steps to solve the problems. But it should not affect the relationship between the employer and workmen. The strikers have to be dismissed or discharged only if the strike was not bonafide and it is conducted with misconduct held in Express Newspaper Ltd vs. McHale Mark.[2]
Under Industrial Disputes Act, 1947 there is no rule which states that when a person went for strike have right to be paid during the days. But the whole legal weapon of strike is to benefit the workmen from exploitations of the employers. By various judgements by the courts it is been seen that the workmen are entitled to pay during strike when the strike is been held legal without any malafide intention, violence during the strike. There is no uniform rule of strike pay. But with the development and classification strikes by the adjudicators, Industrial tribunals they are been depending the justification of the strike. As the relevant provisions Industrial Disputes Act, 1947 it is been seen that if the strike is illegal then the workmen are not entitled to the strike pay. Only in exceptional cases the workers are awarded with wages during the strike period. the general rule of board is no work- no wages. During unfair labour practices by the employer and not willing for arbitration, then it would open to Industrial tribunal to decide for the pay during the strike period and if it is conducted peacefully. There is no right to strike pay as there is no existence of statutory provision relating to the aspect. Normally, strike pay is awarded on the bases of the basis compassionate and equitable grounds on the account of the disparity between employers and the workmen. As it would be unfair to the workmen when they have been not paid during the legal strike with just and reasonable grievances to be addressed.
The judiciary has put forth the arguments regarding the strike pay of the depending from case to case and some cases are discussed below. As the following cases will help us to understand interpretation of strikes by different courts. It was in the case of United Commercial Bank Ltd., v. A.C. Kakkar and Others[3] it was held that workmen are not entitled to pay during the period of illegal strike. In West Bengal Flour Mills a Mazdoor congress v. Hooghly Flour Mills Co., Ltd[4] it was held that every workmen have the right to work and withhold at his pleasure and he have the liberty to launch a strike at any time but this right is having to do with the right to get paid during the period of strike. As the strike is the deliberate act by the workmen as he must be prepared for all the consequences. He cannot be compensated for loss during the strike.
In the case of P.C. Roy & Co. (India) Pvt. Ltd. v. Raycom Forests Labour Union[5] as the employer failed to pay wages on due date, although it is paid after some time. The strike continued after wages are paid also, court held that the workmen’s strike is unjustified and allowed to claim till the wages are due. In the case of Management of the Fertilizer Corporation of India v. Their Workmen[6] the workmen during the strike and prior to that they resorted in violence and other acts of indecency and they continued the strike after notification issued from prohibiting to report back to the duty and also held that the ex-gratia bonus is not of serios and urgent nature, and launching of strike by workmen is unjustified and they are not entitled to wages for the period of strike. In Statesman Ltd. v. their Workmen[7] supreme court held that even if the strike is held to be illegal then also the industrial adjudicators are empowered to grant wages. Relying upon the judgement of Bombay High court in Bombay High Court in Balmer Lawrie & Co. Ltd., Bombay v. Balmer Lawrie Workmen Union and another[8] where the workmen were entitled to 35 percent of the wages even though the strike is held to be illegal.
There are different views by the courts as in the case of Indian General Navigation & Railway Co., Ltd. v. Their Workmen held that if the strike is illegal, then the workmen are not entitled to wages. But in the case of Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha[9], Supreme court held that although the strike is illegal and unjustifiable still, the workmen are entitled for wages. In the case of Bank of India v. T.S. Kelawala[10] the court came with a new dimension of law is formed relating to the wages during the period of strike. Both issues are whether the employer have the power to deduct wages during the period of strike and the other was employers right to deduct wages during Go-slow strike. As the court of opinion that management have the power to deduct wages whether it is a legal or illegal strike, but the deduction should be of pro-rata basis. Court laid few scenarios how the wages should be deducted to different people. Go-slow strike is the strike where the workmen attend their designated places in the establishment but they refused to do the work and intentionally delay the work. The court of a view that these types of strikes are of serious misconduct being a covert and more damaging breach to the contract of employment and court of no hesitation to held that the employer have the right to deduct wages for the period of go-slow strike. Section 26 of Industrial Disputes Act lays down the penalties for illegal strikes and lockouts imprisonment up to 1 month and a fine which may extend up to fifty rupees for workmen and one thousand rupees for employers. As the Industrial Disputes Act only deals with the punishment of minimal in nature. But the illegal strikes are very dangerous to the establishment and also to the employers. The act is silent about the dismissal of workmen who have malafide intention and the workmen used the violence during the period of strike. Strike pay is also not discussed in the Act for illegal strikes.
Conclusion: As the strike is a legal weapon of the workmen to stop the employers from exploitation of them, but just as a legal weapon it cannot be used against the employer to create inconvenience and loss to him. Strike is recognised and also certain procedure is stated to be followed by certain entities such as public utility services. As the dispute between employer and workmen should affect the lives of the customers, outsiders. As the act prohibited any type of violence and also the Act sanctioned certain penalties for illegal strikes. but the degree of punishment is minimal and also the act is silent about dismissal of workmen and the strike pay. As India is a developing country, there is development in every industry but the relation between the workmen and the employer is decreasing which increases the risk of more strikes regularly. If strike is legal weapon of workmen then illegal strike should be avoided by them against the employer and they have to be punished more seriously and also should pay compensation for the damage done to the employer.
[1] 1960(II) LLJ 243 at p.246
[2] (1952) 2 LLJ SC. 220
[3] 1954 L.A.C. 498.
[4] 10 F.J.R. 240.
[5] AIR (1964) Calcutta 221
[6] AIR (1970) SC. 867.
[7] (1976) I LL.J.484
[8] (1989) II LL. J 97
[9] SC (1980) I LLJ 137
[10] (1990) 4 SCC 744
