Judicial interpretation for the concept of ‘Strike’ in India

Judicial interpretation for the concept of ‘Strike’ in India

Author: Yuvraj Ranolia
 3rd-year student,
 School of Law, Christ (deemed to be University).
The world had accomplished the evolution in the form of the machine during the era of 19thcentury and in the dawn of 20th century; with the evolution of new machines unemployment spread like a fire as it reduces human efforts and works much efficient and faster than labour. Now work of tens of men was put back by machine.  

A strike expounds as “fail to agree the terms & conditions of work set up by an employer; which emerge due to absence of consensus ad idem between employer & employee to continue their work on the said provisions of contract and express they’re irate in the form of “step down from the work for indefinite time”.

Researcher in this paper will address history of the origin of strikes, definition, elements and the important judicial decisions of various honourable High Court’s and Supreme Court of India[1]concerning ‘strike’. Does strike have any legal status in India and if yes then how it affects the society? Whether India able to achieve the true aim[2] of ‘strike’, which the researcher would like to reflect through central legislations and in the analysis?

India in the present context of economic development programmes cannot afford the unqualified right to the workers to strike or to the employer to lock-out. Compulsory arbitration as an alternative to collective bargaining has come to stay. The adoption of compulsory arbitration does not, however, necessarily mean denial of the right to strike or stifling of the trade union movement. If the benefits of legislation, settlements and awards are to reach the individual worker, not only the trade union movement has to be encouraged and its outlook broadened but the laws have also been suitably tailored.[3]

The emergence of the Industrial Revolution in India:[4]
One of the most important consequences of British Rule was the decline and destruction of urban and rural handicraft industries. British rule conditions for the rise of modern capitalist industry. Industrial development in India until! the beginning of the 20th century was mainly confined to four industries namely, cotton and jute industries, coal mining and tea plantation. A few other minor industries such as cotton presses, rice, flour and timber mills, leather tanneries, woollen textiles, paper, sugar, salt, mica, petroleum and iron mines were developed. A few engineering and railway workshops and iron and brass foundries also came into existence.

Slowly India underwent a commercial transformation and not an industrial revolution. British were not eager to lay the foundation for an industrial revolution. First of all, most of the modem industries that did develop were controlled by foreign capitalists. Secondly, though the industrial progress during this phase was steady and continuous it was extremely slow. Even by 1930s, the total number of workers covered by the Factories Act was less than one million. [5]
What was more important, even the limited development was not independent but was under the control of Foreign Capital. Secondly, the structure of the industry was such as to make its further development dependent on Britain. There was almost a complete absence of heavy capital goods and chemical industries without which rapid and autonomous industrial development could hardly occur. Machine tool, engineering and metallurgical industries were virtually non-existent. India was entirely dependent on the imperialist world in the field of technology. Britain was not interested to establish an independent industrial capitalist economy but keen to transform India into a dependent and underdeveloped colonial economy, suited to its imperial objectives.

Over time, the impact of British Rule emerged in a clearer outline and the class and contradiction between the aims and objectives of British Rule and the interest of the People of India became clear and obvious.

Along with British Rule and modern education system introduced by the British, the modem ideas of liberalism, the massage of French and Industrial Revolution and above all the rights of the emerging working class throughout the world engulfed the consciousness of India people especially the new enlightened and educated urban middle class.

The claim that British Rule was an agency of modernisation rests ultimately on facts like railway construction and the development of plantations, mines and factories through British capital, and the introduction of capitalist production relations and modem methods of banking and industrial management by whites. [6]

With the growth of modern industries, a new social class was born i.e. the working class. From the beginning, this class represented a new social outlook of all India character. Moreover, the workers were concentrated in factories and cities. All these factors gave them a significance far greater than their numbers would suggest.
Indian workers worked and lived under highly unsatisfactory conditions. Till 1891 there were no regulatory provisions concerning their hours of work. There did not exist any kind of social insurance against sickness, old age, unemployment, accident or sudden death. There was no provident fund scheme, only an inadequate maternity benefit scheme came into operation in the 1930s.

The real wages of factory workers declined from 1889 to 1929 and the average worker lived below the margin of subsistence. Underfed housed like animals, without light, air and water, the Indian Industrial workers, one of the most exploited of all in the world of industrial capitalism. Being concerned by an exploitative imperialist colonial rule, in course of time, the Indian labours were compelled to adopt a militant anti-imperialist approach and became a part of the freedom movement.
The India industrial capitalist class developed after 1858. It soon entered into competition with the British capitalist and gradually realised that its growth was checked by the official trade, tariff, transport and financial policies of the Government. While struggling for independent economic growth that came into conflict with imperialism on almost every basic economic issues, the Indian Capitalist class needed active and direct Government help to compensate it for its initial weakness in competing with the firmly established industries of Western Europe.

The rapid development of Indian trade and industry could not occur so long as foreign imperialism dominated the country. The series of devastating famines engulfed India from 1866 to 1901 and the daydreams of guided developments entirely shattered. During this period, the working and living conditions of the labour were poor and by the end of the 19th century, the Indian intellectuals had come to realise that what had appeared to them earlier as the modernisation of India was is colonialization. They now set up to build up a nationalist political movement against imperialism. It embraced within its fold all the different classes and groups of Indian society. Indian Labour has played a crucial role in this movement. They realised that the independent is the pre-conditions to their rights and liberty, amenity and opportunity.

During the non-cooperation movement and Swadeshi movement, the Indian capitalist under the leadership of Congress leaders tried to rejuvenate the Indian cottage industry and ventured to establish certain industries in the tune of spirit and inspiration of the movement. However, the two world wars and economic depression throughout the world make hindrances in the path of industrialisation and development of India.[7]

Beginning of Trade Union movement in India:

Whatever evidence is available would seem to point to the fact that guilds vanished for one reason before trade unionism appeared for another. Indian trade union like their counterparts elsewhere emerged as a bye product of the modern industrial enterprises. Arbitrary and highhanded treatment of workers by employers as well as exploitative working conditions created among workers a shared 
sense of helplessness and dissatisfaction with employers.

At the beginning around 1880 sporadic attempts were made by employees to express their discontent towards employer and Government through strikes and protest meetings. However, genuine trade unionism in India began when the Madras Labour Union was formed in 1918.[8]

The founder of the organised labour movement in India may be said to be N.M. Lokhande, who was himself a factory worker. In 1884, he organised agitation and called for a conference of workers in Bombay to make representation to the factory Commission just then appointed. As no redress was effected by the Government, Lokhande convened a mass meeting in Bombay on April, 24. 1890 which was attended by about 10 thousand workers. In response to the resolution adopted in the meeting, the Mill owners of Bombay agreed to grant a weekly holiday to the workers. Encouraged by this, Lokhande organised the Bombay Mill Hands Association. of which, he was elected President. “Dinabandhu”, the first working-class newspaper was also started by Lokhande to create awareness towards the grievances of the working class. [9]

Relation of World WAR-2 and Trade Union in India:

During the world war, the British East India company need manpower for both to fight for them in the field and for the labour in factories for aiding the existing labour in making machines, weapons and other materials. British East India company lure the Indians with the promise of giving freedom if they aid them in the war against the Germans. Not only that before the Indians give their decisions the British authorities had already declared the support of India against the German with the British government. During this period India’s economy was turned to the war economy of the alliances. India became the main supply base of the alliance in the far East and measures were taken to utilise the country’s human and material resources in the interest of British and its allies. There was a demand for all-out production in every sector on a war footing. To ensure steady production, the Government armed itself with emergency powers by adding Rule 81A to the Defence of India Rules. Under the provision of this rule, strikes and lockouts were prohibited and any industrial dispute could be referred to conciliation or adjudication at the discretion of the Government. The award passed by the adjudicator was binding on both parties and during the term of the award, a strike or lockout was prohibited. In addition to this, the Government further promulgated two ordinances which affected the interests of the Indian workers. The National Service (Technical Personnel) Ordinance, 1940 regulated the terms and conditions of service, transfer and dismissal of the technical persons, through National Service Labour Tribunal. SecondlyEssential Service (Maintenance) ordinance 1941 regulated the conditions of service and other matter in undertaking declared to be essential by the Central or Provincial Government. In such essential services, persons could not refuse to work nor could the employers discharge or dismiss them. In essence, these ordinances had the result of preventing strikes, but at the same time, it provided job security so that the employer, according to his whims and fancies, could not throw anybody out of employment.

The negative aspects of these two ordinanceswere that the Government interfered in the process of collective bargaining and endeavoured to settle the working conditions to suit their interests. This period showed a definite change in the Government’s attitude towards labour. Two factors appeared to be responsible for the change. The first wasGovernment’s anxiety to have increased production for supporting the war efforts, for which the maintenance of industrial peace was essential. The secondwas “the sympathetic outlook with which the popular government in the provinces viewed the problems of labour”. Although the popular ministries constituted under the Government of India Act, 1935resigned from office in 1939, their new policy and appreciation left its mark on the wartime Government. The Government took the initiative to provide workers with better amenities, such as canteens, lunchrooms and rest places. Further joint production councils work committees and the like we’re set up to assure steady and increased production.[10]

Condition of trade union after Independence:

To implement the recommendations made in th
e report of the Royal Commissions of Labour (1931), the Government appointed a labour Investigation Committee in 1944 under the Chairmanship of B.V. Rege. This report gave comprehensive information about wages, earnings and conditions of work and labour in many industries. Apart from that, in employer-employee relations, the Rege Committee brought out the need for stressing on collective bargaining methods to settle disputes between labour and management.[11]

The work of examining the proposals and of preparing schemes for implementing the various recommendations of the labour commission was taken up during this period. Several laws including the Factories Act, 1948, Industrial Disputes Act, 1947 have been passed in compliance with the recommendations of the commission.[12]

After the Independence the Jute Industry in India suffered a great set back and had to restrict its normal production resulting in the unemployment in many workers because of Partition major jute producing land was given to the ‘East Pakistan’ or ‘now Bangladesh’ due to partition of India & Pakistan; earlier India (Hindustan) was the biggest or highest producer of Jute and now its Bangladesh. In the Trade Union front, the All India Trade Congress was in the grip of the communists; and the Indian Federation of Labour because of the patronage it had received from the British was suspected in the eyes of the people. Disunity in the Trade union ranks defeated the very purpose of the movement during the early hours of independence. The Congress leaders, who were assumed power after the war, wanted to restore normal conditions. In India, the whole economy had been disrupted by war and partition. [13]

Concerning the Indian Constitution:

Right to strike is recognized globally. Article 19(1) the Constitution of India 1949 guarantees the protection of certain freedoms as fundamental rights.
All citizens shall have the right
1.     To freedom of speech and expression;
2.     To assemble peaceably and without arms;
3.     To form associations or unions;
4.     To move freely throughout the territory of India;
5.     To reside and settle in any part of the territory of India; and
6.     To practise any profession, or to carry on any occupation, trade or business
However, the strike is not expressly recognized in the Constitution of India. The Supreme Court settled the Case of Kameshwar Prasad v. The State of Bihar on 7 July 1958 by stating that strike is not a fundamental right. Government employees have no legal or moral rights to go on strikes”.[14]
India recognized strike as statutory right under the Industrial Disputes Act, which came into force on April 1, 1947. Before the Industrial Disputes Act, 1947, India had enacted its first industrial disputes legislation i.e. Employer & Workmen Disputes Act, 1869 and subsequently Trade Disputes Act, 1929 and Rule 81A of Defense of India Rules.
Experiences from Employer & Workmen Disputes Act, 1869 reveal that this act was much against the workers. Trade Disputes Act, 1929 had brought in a special provision of strikes, however, such legislation could not establish peace in the industries due to strike problems and disputes kept on continuing. Further to overcome this, Rule 81A of defence rule was brought in during the Second World War. After the Second World War Industrial Disputes Act, 1947 came into the picture to sort out the disputes in industries. Its applicability is extended to the whole of India. It applies to existing industry and not on dead industries.
As per Cambridge Dictionary “Strike is to refuse to continue working because of an argument with an employer about working conditions, pay levels, or job losses”.[15] But the act defines the term strike, as per Section 2 (q) of the Industrial Disputes Act, 1947 “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’. some of the reasons of stroke in India are; Strikes generally occur in industries due to disputes between employees and employers, employees and employees or among employers and employers mostly due to the following issues: Working hours, Working Conditions, Salary, Incentive etc., Time payment of wages, Reduction in salary/wages, Issue related Minimum wages, Leave/Holidays, Dissatisfaction with the company policy, PF, ESI, Profit Sharing etc., Retrenchment of workmen and closure of establishment or any other issue.


 Section 22 of Chapter V of Industrial Disputes Actclarifies the Prohibitions on right to strike

It states that no person employed in a public utility service shall go on strike in breach of contract –
1.     without giving to the employer notice of the strike, as hereinafter provided, within six weeks before striking; or
2.     within fourteen days of giving such notice; or
3.     before the expiry of the date of strike specified in any such notice as aforesaid; or
4.     during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.[16]
There are plenty of types of strikes like Economic, Sympathy, General, Sit-down, slow down, etc. some of the instances of strikes in India are mentioned herein as; In March 2012nurses employed by different hospitals in Chennai went on strike for 7 days demanding from hospital management hike of basic wages to ₹15000/-, apart from leave benefits and annual increment. All the well-known hospitals like Apollo, Fortis, Max etc. came to a stan
dstill because of the strike.
In January 2014, Kingfisher employees went on hunger strike due to non-payment of salary for 17 months.
In September 2016, tens of millions of Indian workers of the public sector had gone on strike demanding higher wages. Banks, power stations were kept shut and public transportation systems froze in some of the states. Later the government considered their demands and increased the wages. It was the world’s largest-ever strike.[17]
Section 23 deals with General prohibitions of strikes it is applicable for public utility services and non-public utility services. It gives the general guidelines for prohibitions of strike however section 22 deals only with services related to a public utility.
No workman who is employed in any industrial establishment shall go on strike in breach of contract and no employer of any such workman shall declare a lock-out—
(a) during the pendency of conciliation proceedings before a Board and seven days after the conclusion of such proceedings;
(b) during the pendency of proceedings before a Labour Court, Tribunal or National Tribunal and two months after the conclusion of such proceedings;
(bb) during the pendency of arbitration proceedings before an arbitrator and two months after the conclusion of such proceedings, where a notification has been issued under sub-section (3A) of section 10A; or
(c) during any period in which a settlement or award is in operation, in respect of any of the matters covered by the settlement or award.[18]
Bank of India vs T S Kelawala and Ors. (SC)
Principle of “no work and no wages” was accepted by Hon’ble Supreme Court in the above-mentioned case and held that:
            “In the first appeal filed by the Bank of India against the judgment of the Bombay High Court, it was contended by the bank that it has a right to deduct wages for the period the employees are on strike and they do not do the work as per the contract of employment. In the second appeal, a private limited company contended that they have a right to deduct wages proportionately as the workmen had resorted to go-slow and were not giving normal production which would entitle them to earn full wages by the contract of employment. The high court had taken the view that the bank had no power to make any deductions from the wages of the employees for the strike period. The court had taken this view on the ground that strikes and demonstrations were not banned in the country, that they were recognised as legitimate fo
rms of protests for the workers and that the bank could not stifle the legitimate mode of protest allowed and recognised by law. The high court had taken a view that the deduction of wages for the day amounted to unilaterally changing the service conditions, depriving the workers of their fixed monthly wages under the contract of service. The court had further held that the bank could get the strike declared as illegal and proceed against the employees by the regulations and impose necessary punishment. In the second judgment, the employer had challenged directly in the Supreme Court the order of the Industrial Court, Maharashtra, holding that the non-payment of full wages to the workmen was an act of unfair labour practice, rejecting the contention of the employer that he was entitled to deduct wages pro-rata as the workmen had not given full production as they had resorted to go-slow tactics. The Supreme Court accepted the principle of ‘no work, no wages’ and upheld the right of the employers to deduct wages proportionately for the strike period as well as for the go-slow tactics. It is further significant that the Supreme Court has held that no disciplinary proceeding is either necessary or feasible where misconduct was committed en masseby employees or workmen. This is the ratio of these two judgments”.[19]

Some Hon’ble justice’s views on the term ‘Strike’

Andhra Pradesh State Road Transport Corporation Employees’ Union (1970 LIC 1225)
Justice Chinnappa Reddy:    “A right to strike is labour’s ultimate weapon and in 100 years, it has emerged as the inherent right of every worker. It is an element which has all the very essence of the principle of collective bargaining and as stated by an eminent English Judge, the right to strike is an implication writ into the contract of the Modern Law as to trade disputes (see Lord Denning in Morgan vs Fry-1968 III WLR 566 at page 516). The nature of the right is such that it cannot, in my view, be abridged or taken away, save in the strict conformity with the provisions of the Statute providing for such abridgement or taking away. After considering the justifiability of the strike, the judge held that the strike was justified and that workers should be paid the wages for 28.3.1966 if the strike was not illegal for the reason that the settlement was not terminated.[20]

India Marine Services Pvt Ltd vs their workmen (1963 I LLJ 122)

Three judge bench of the Supreme Court said:                   “We would like to make it clear that in a case where the strike is unjustified and the lockout is justified, the workmen would not be entitled to any wages at all. Similarly, where the strike is justified and the lock-out is unjustified, the workmen would be entitled to the entire wages for the period of strike and lock-out. Where, however, a strike is unjustified and is followed by a lock-out, which becomes unjustified, a case for apportionment of blame arises.”[21]

The Statesman Limited vs their workmen (1976 I ELJ 484)

Three judge bench of the Supreme Court said:                  “If the strike is illegal, wages during the period will ordinarily be negatived unless considerate circumstances constrain a different course. Likewise, if the lock-out is illegal, full wages for the closure period shall have to be forked out, if one may use that expression, but in between lies a grey area of twilit law. Strictly speaking, the whole field is left to the judicio
us discretion of the Tribunal. Where the strike is illegal and the sequel of lock-out is legal, we have to view the whole course of developments and not stop with examining the initial legitimacy. If one side or other behaves unreasonably or the overall interests of good industrial relations warrant the Tribunal making such directions regarding strike period wages as will meet with justice, fair play and pragmatic wisdom, there is no error in doing so. This power is flexible.”[22]
Crompton Greaves Ltd vs its workmen (AIR 1979 SC 1489)
Two judge bench of the Supreme Court held that:             “It is well-settled that to entitle the workmen to wages for the period of strike, the strike should be legal as well as justified. A strike is legal if it does not violate any provisions of the statute. Again, a strike cannot be said to be unjustified unless the reasons for it are entirely perverse or unreasonable. whether a particular strike was justified or not is a question of fact, which has to be judged in the light of facts and circumstances of each case. It is also well settled that use of force or violence or acts of sabotage resorted to by the workmen during a strike disentitles them to wages for the strike period.”[23]
LIC of India vs A Gupta and Ors. (1989 II CLR 651)
A division bench of Calcutta high court held that:             “that if the strike was legal and justified, the employees are entitled to the payment of wages for the period of ‘the strike’.”[24]
Apart from what the Hon’ble courts decide; researcher think strike is the basic right of employee in conditions where their rights are exploited and they are facing some kind of difficulties; it is justified because employers due to money can lure the above authorities (executives, the one who visits the site for inspections) to not take actions against them. But if the look on the other side of this situation that the illegal or unjustified strikes are affecting the employer and the general public who else are dependent on the product of the respected company, and the economic loss suffered by the employer is also a big concern. So looking at the situation; it’s very subjective to come to a conclusion that which side should be taken, rather one should hear both sides and then took decision will lead to settling down the dispute in a more effective, fast and amicable manner.

[1] Labour & Industrial Law by “Surya Narayan Misra”, Central Law publication, 25th Edition, 2010

[2] The bare act of Labour & Industrial Law (Manual), 2019

[3] The article was written by Sonakshi Verma on “Strikes and Lockouts” (Legalserviceindia.com)

[4] Shodha ganga online site: (https://shodhganga.inflibnet.ac.in/bitstream/10603/66023/15/15_chapter%201.pdf)

[5] Chandra Bipan, Tripathi Amalesh & Barrin De – Freedom Struggle, 2nd Edition, ¶22

[6] Sarkar, Summit, Modern India, 1983 Edition, ¶37

[7] Political Science book (NCERT), class 11th & History book (NCERT), class 11th

[8] Seth N.R. – ‘Trade Unions in social Reality’ collected in ·industrial relations in India – A sociological perspective’ – Edited by E.A. Ramaswamy 1978 Ed., page-7.

[9] Shodha ganga online site: (https://shodhganga.inflibnet.ac.in/bitstream/10603/66023/15/15_chapter%201.pdf)

[10] Shodha ganga online site: (https://shodhganga.inflibnet.ac.in/bitstream/10603/66023/15/15_chapter%201.pdf)

[11] Article by ‘Rajeev Kumar’, read on legal service India website.

[12] Article by ‘Rajeev Kumar’, read on legal service India website.

[13] Shodha ganga online site: (https://shodhganga.inflibnet.ac.in/bitstream/10603/66023/15/15_chapter%201.pdf)

[14] Kameshwar Prasad v. The State of Bihar (1958) SC

[15] Cambridge dictionary meaning for ‘Strike’ definition.

[16] Bare Act of Industrial Dispute Act, 1947

[17] Article by ‘RJ Kochar’  https://blog.ipleaders.in/right-to-strike-under-industrial-dispute-act-1947/

[18] Bare Act of Industrial Dispute Act, 1947

[19] Economic and Political Weekly, Vol. 25, No. 29 (Jul. 21, 1990), pp. 1564-1566, published by ‘Economic and Political Weekly’ (Jstore).

[20] Andhra Pradesh State Road Transport Corporation Employees’ Union (1970 LIC 1225)

[21] India Marine Services Pvt Ltd vs their workmen (1963 I LLJ 122)

[22] The Statesman Limited vs their workmen (1976 I ELJ 484)

[23] Crompton Greaves Ltd vs its workmen (AIR 1979 SC 1489)

[24] LIC of India vs A Gupta and Ors. (1989 II CLR 651)

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