LABOUR LAW

INTERNAL ASSESSMENT I

CASE ANALYSIS

“B.R. SINGH V. UNION OF INDIA”

CITATION: (1989) 4 SCC 710

SUBMITTED BY

NIKITA SAURABH

13010123348

DIV D

B.A. LL.B

SEMESTER IX

V YEAR
 LABOUR LAW - INTERNAL ASSESSMENT I

B. R. SINGH AND OTHERS V. UNION OF INDIA

(1989) 4 SCC 710

TABLE OF CONTENTS
FACTS OF THE CASE ......................................................................................................................... 2

ISSUES INVOLVED ............................................................................................................................ 3

RULES APPLICABLE ......................................................................................................................... 3

ANALYSIS ........................................................................................................................................ 3

A. The useful tool of collective bargaining ........................................................................... 3

B. The Right to form and join a Trade Union ....................................................................... 4

C. Constitutional Perspective ................................................................................................ 4

D. The nature of the “Right to Strike” .................................................................................. 5

E. Foreign Constitutional Outlook........................................................................................ 7

CONCLUSION.................................................................................................................................... 8

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 LABOUR LAW - INTERNAL ASSESSMENT I

FACTS OF THE CASE

1. The Trade Fair Authority Employees' Union (Union hereafter) was demanding housing
facilities, regularisation of atleast 50% of casual or daily rated employees and upward
revision of the salaries and allowances of the workers of TFAI. These demands were
discussed with the Chief General Manager of TFAI on August 29, 1986 and thereafter from
time to time but nothing concrete emerged.

2. The General Body Meeting was held as schedule and a decision was taken to strike work on
January 21, 1987 to protest against the management's failure to implement the assurances
already given. On the same day, January 19, 1987, the Union served the management with a
notice informing it about the decision to strike work on January 21, 1987. The management
reacted by placing the President. Vice-President and Executive Members of the Union under
suspension with immediate effect, i.e. with effect from January 20, 1987. This angered the
striking workmen who had gathered outside the precincts of TFAI on January 21, 1987. They
demanded the immediate withdrawal of the suspension orders failing which they threatened
that the strike would continue indefinitely.

3. Now, during the strike some of the casual workers attended duty and their services remained
unaffected, some others who reported for duty after the strike and were prepared to sign an
undertaking in the prescribed form were given work while the remaining casual workers who
did not sign such an undertaking or were late in reporting for work were denied employment.
The Union's case is that out of a total work-force of about 500 casual workers, 160 did not
participate in the strike and about 90 signed the undertaking and they have since been
employed while the remaining casual workers are denied work.

4. Thereafter the management by their orders of March 3, 1987 terminated the services of all
the 12 office bearers and Executive Committee Members who had been suspended earlier in
exercise of their power under the special procedure outlined in Rule 32 of the TFAI
Employees (Conduct, Discipline and Appeal) Rules, 1977

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 LABOUR LAW - INTERNAL ASSESSMENT I

5. Aggrieved by this, the present writ petitions were filed and clubbed together by the Court.

ISSUES INVOLVED

1. Whether the workers enjoy a right to conduct a strike?

2. Whether such a right to strike is a fundamental right or merely a legal right?

RULES APPLICABLE

i. Articles 19 (1) and 32 of Constitution of India, 1950;

ii. Sections 2, 10, 10 (3), 10A, 10A (4A), 22, 23 and 24 of Industrial Disputes Act, 1947;
iii. Section 8 of Trade Unions Act, 1926;
iv. Rule 32 of Trade Fair Authority of India Employees (Conduct, Discipline and Appeal) Rules,
1977

ANALYSIS

A. The useful tool of collective bargaining

Collective bargaining has been defined by the Supreme Court (“SC”) as “the technique by which
dispute as to conditions of employment is resolved amicably by agreement rather than
coercion.”1 It is a process of discussion and negotiation between employer and workers regarding
terms of employment and working conditions. Workers are generally represented by trade unions
with respect to expressing their grievance concerning service conditions and wages before the
employer and the management. Refusing to bargain collectively in good faith with the employer
is considered to be an unfair labour practice as per the provisions of the Industrial Disputes Act,
1947 (“IDA”). This is generally an effective system as it usually results in employers
undertaking actions to resolve the issues of the workers.

1
Karol Leather Karamchari Sangathan v. Liberty Footwear Company, (1989) 4 SCC 448

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 LABOUR LAW - INTERNAL ASSESSMENT I

B. The Right to form and join a Trade Union

Trade unions in India have come a long way since the first organized trade union - the Madras
Labour Union, one of the earliest unions, was formed in 1918. India now has more than 84,642
registered trade unions2 along with an unaccounted number of unregistered trade unions scattered
across a large spectrum of industries in India. The trade union movement in India began after the
end of First World War due to the need for coordination of activities of individual unions.

In India, the right to form and join a trade union, and engage in collective bargaining is provided
for under national and state-specific legislations. Time and again, the courts have upheld the
right of workers to form or join a trade union in India3 including the present case.

C. Constitutional Perspective

Article 19(1)(c) of the Constitution of India, 1950 (“Constitution”) which envisages

fundamental right to freedom of speech and expression also guarantees the country’s
citizens the right “to form associations or unions” including trade unions.4 The SC has
held that the right guaranteed in Article 19(1)(c) also includes the right to join an
association or union.5 This right carries with it the right of the State to impose reasonable
restrictions.6

However, it has been established that the right to form associations or unions does not in any
manner encompass the guarantee that a trade union so formed shall be enabled to engage in
collective bargaining or achieve the purpose for which it was formed.7 The right to recognition of
the trade union by the employer was not brought within the purview of the right under Article
19(1)(c) and thus, such recognition denied by the employer will not be considered as a violation

2
1. http://mospi.nic.in/Mospi_New/upload/SYB2014/CH-41-TRADE%20UNIONS/Trade%20Unions.pdf
(Accessed on October 07, 2017)
3
All India Bank Employees’ Association v. N.I.Tribunal, AIR 1962 SC 171
4
All India Bank Employees’ Association v. N.I.Tribunal, AIR 1962 SC 171
5
Damyanti v. Union of India (AIR 1971 S.C. 966)
6
Article 19(4) of the Constitution
7
again

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 LABOUR LAW - INTERNAL ASSESSMENT I

of Article 19(1)(c). 8 The various freedoms that are recognized under the fundamental right,
Article 19(1)(c), are:

i. The right of the members of the union to meet

ii. The right of the members to move from place to place
iii. The right to discuss their problems and propagate their views
iv. The right of the members to hold property9

Although no specific right is granted to any trade union with respect to the right to be
recognized, it has become crucial in India to develop a mechanism wherein a trade union is
recognized formally by the employer. Recognition is the process through which the employer
accepts a particular trade union as having a representative character and hence, will be willing to
engage in discussions with the union with respect to the interests of the workers. 10 This process
is important so as to ensure smooth collective bargaining and stability of industrial relations.

D. The nature of the “Right to Strike”

On several occasions the superior courts in India had sought for a uniform constitutional answer
to the question whether right to strike is at all a right, if not a fundamental right and if yes, where
does it derive its validity from.11

In the present case the court has recognized “strike” as a mode of redress for resolving the
grievances of workers. However, it was not elevated to the position of a fundamental right. The
IDA12 defines a “strike” as “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”.

In India, there is no specific right to strike. Instead such right flows from the fundamental right to
form a trade union contained in Article 19(1)(c) of the Constitution, which, like all fundamental

8
Raghubar Dayal Jai Prakash v. Union of India, AIR 1950 SC 263
9
Again
10
Singh et al., Employee Relations Management, p. 110, Available at
https://books.google.co.in/books?id=vkQ7BAAAQBAJ&printsec=frontcover
11
Kameshwar Prasad v. State of Bihar, A.I.R. 1962 SC 1166
12
Section 2(gg)(q) of the IDA

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rights, is subject to reasonable restrictions. In All India Bank Employees Association v. N.I.
Tribunal13, the SC held, inter alia, that “the right to strike or right to declare lockout may be
controlled or restricted by appropriate industrial legislation and the validity of such legislation
would have to be tested not with reference to the criteria laid down in clause (4) of Article 19 of
the Constitution but by totally different considerations.”

Therefore, legislation can and does restrict the right to strike by deeming certain strikes illegal.
The IDA restricts strikes and lockouts equally. Various restrictions are contained in sections 22,
23, 24, 10(3) and 10A(4A) of the IDA. Furthermore, the IDA also lays down certain activities
that may be deemed as “unfair labour practices of workers or workers’ trade unions pertaining to
strikes such as advising or actively supporting or instigating any illegal strike or staging
demonstrations at the residence of the employers or managerial staff members.14

Furthermore, the SC has held that workers shall only be entitled to wages during a strike which is
not only legal, but also “justified”. A strike shall be deemed unjustified where “the reasons for it
are entirely perverse and unreasonable…[which is] a question of fact, which has to be judged in
the light of the fact and circumstances of each case… the use of force, coercion, violence or acts
of sabotage resorted to by the workmen during the strike period which was legal and justified
would [also] disentitle them to wages during the strike period.”15 The SC has also held that
whether or not a strike is “unjustified depends on such factors as “the service conditions of the
workmen, the nature of demands of the workmen, the cause which led to the strike, the urgency
of the cause or the demands of the workmen, the reason for not resorting to the dispute resolving
machinery provided by the IDA or the contract of employment or the service rules and
regulations etc.”16

In the present case, Justice Ahmadi opined that "The Trade Unions with sufficient membership
strength are able to bargain more effectively with the management than individual workmen. The
bargaining strength would be considerably reduced if it is not permitted to demonstrate by
adopting agitational methods such as 'work to rule', 'go-slow', 'absenteeism', 'sit-down strike',
and 'strike'. This has been recognized by almost all democratic countries".

13
14
Fifth Schedule of the IDA
15
Crompton Greaves Ltd. v. Its Workmen (AIR 1978 SC 1489) at para 4
16
Syndicate Bank v. K. Umesh Nayak (1995 AIR 319) at para 27

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 LABOUR LAW - INTERNAL ASSESSMENT I

The present case examines the constitutional validity of “objectives” of an association. However,
it does not give right to strike a fundamental character, even reiterating the restrictions on this
right under the Indian industrial jurisprudence and echoed its non-absoluteness. What it does
give is a sound justification for future benches to read right to strike in “right to demonstrate”
which is implicit, both on principles and precedents, in right to speech and expression and
peaceful assembly guaranteed under article 19(1)(a) and (b) of the Constitution.

Another important aspect is the emphasis upon “purposive approach” to fundamental rights i.e.
the acknowledgement of the fact that article 19 (freedom of association) like other fundamental
rights in Part III has no exclusive purpose of formation of a union, but also has in its purview
other foundational rights (for instance, right to strike) which cannot be accomplished without due
recognition of their implicit existence.

E. Foreign Constitutional Outlook

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 within 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.

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Capitalist countries like Japan under Article 28 and South Korea under Article 33 of their
respective constitutions provide the right to strike.

CONCLUSION

The case under examination rightly emphasizes the importance and usefulness of the right to
strike in our society while not elevating it to the revered position of a fundamental right. In doing
so, it struck a right balance between the individual and public right. Unless the strike is banned
within the meaning of Sec 22 (1) of the Industrial Disputes act, the same cannot be termed as
illegal attracting Sec 24 of the Act.

The power and right to strike is an important tool in the hands of workers to agitate their claims
and cannot be taken away from them. However, it is important that important safeguards are
built into freedoms to prevent misuse and chaos. Right to strike is essentially meant to bring
employees, if not higher, than on an equal pedestal, with the employers. The putting of
employees at par with the employers if the latter is granted a fundamental right to lock out on the
granting of a fundamental right to strike to the employees would prima facie be a dangerous
example of equal treatment of unequals.

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