LABOUR LAW PROJECT WORK

PEN-DOWN STRIKE: A Right in Question

SUBMITTED TO:
Mr. Rana Navneet Roy
Faculty, Labour Law

SUBMITTED BY:
Syed Zeeshan
B.A.LL.B. (Hon.)
Semester – V, Section A,
Roll no. 163

Date of submission: 20th August 2014

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR

 DECLARATION

I, Syed Zeeshan hereby declare that this project work is a original piece
of research and is not a result of plagiarism, the sources of data has been
adopted from other sources as well and proper mention about such sources has
been made in the form of footnotes and in bibliography.

I have completed this project work under the guidance of Mr. Rana
Navneet Roy, faculty of Labour Law, Hidayatullah National Law University.
Raipur (C.G).

Syed Zeeshan

Roll No. 163

Semester -V, Section – A

B.A. L.L.B (Hons.)

ii
 ACKNOWLEDGEMENTS

Thanks to the Almighty who gave me the strength to accomplish the project with
sheer hard work and honesty.

This research venture has been made possible due to the generous co-operation of
various persons. To list them all is not practicable, even to repay them in words is beyond the
domain of my lexicon.
May I observe the protocol to show my deep gratitude to the venerated Faculty-in-
charge Mr. Rana Navneet Roy for his kind gesture in allotting me such a wonderful and
elucidating research topic. Sir, your sincere and honest approach have always inspired me
and pulled me back on track whenever I went astray.

Last, but by no means the least, I would like to thank all the members of HNLU
family in general and my blooming and charismatic friends in particular for their
wholehearted co-operation throughout the odyssey.

I take this opportunity to also thank the University and the Vice Chancellor for
providing extensive database resources in the Library and through Internet.

Syed Zeeshan

Section – A (Political Science Major)

B.A. L.L.B (Hons.)

iii
 Table of Content

No Page
I Objectives 1
II Research Methodology 1
III Introduction 2
Ch. 1 What is Strike 3

Ch.2 The Concept of Pen-Down Stirke 4

Ch.3 The Right In Question 5

Conclusion 9
Bibliography 10

iv
OBJECTIVES

The research project has been made to answer the following questions:

 To understand what is Strike

 To find out what is pen-down strike and how it is different from regular strike
 To find whether ‘to strike’ is a right or not.

RESERCH METHODOLOGY

The method of research adopted for the project is analytical methodology. For the present
project relevant data and information has been received and collected from secondary sources
and there has been use of authentic books and websites that provided reliable information and
data.

1
 INTRODUCTION

"Strikes", as it is said, "are as old as work itself." All of us have at one time or the other
suffered inconvenience or experienced hardship as a consequence of strikes resorted to by
certain sections or groups in our society. Whenever workmen of hospitals, transport
undertakings, banks, railways, etc. have struck out their work, the general public has got
affected. The study of strikes is like a 'legal porcupine’, which bristles with difficulties the
moment it is undertaken which is becoming more complex with the coming up of concepts
such as ‘pen-down strike’ or ‘go-slow strike’. When an individual confronts a question such
as, whether freedom to form a union carries with it the concomitant right to collective
bargaining and right to strike, much more confusion gets generated.

A strike is ‘a condition where an individual or a group of individuals refuses to work as a

form of organized protest, typically in an attempt to obtain a particular concession or
concessions from their employer’. It can also be defined 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.

Labor law is complex and is ever growing. The paper tries to analyze the foregoing
precedent, that have successfully reduced the incidence of strikes in industrial conflicts, and
concludes with a question - “whether in a country plagued by famines, floods and bloodshed
mentioning only a few, should sympathetic strikes and secondary boycotts be tolerated or
tacitly encouraged by manifest inaction?”

2
CHAPTER-1

WHAT IS STRIKE

"Strikes", as it is said, "are as old as work itself." 1 All of us have at one time or the other
suffered inconvenience or experienced hardship as a consequence of strikes resorted to by
certain sections or groups in our society. Whenever workmen of hospitals, transport
undertakings, banks, railways, etc. have struck out their work, the general public has got
affected. The study of strikes is like a 'legal porcupine’, which bristles with difficulties the
moment it is undertaken. When an individual confronts a question such as, whether freedom
to form a union carries with it the concomitant right to collective bargaining and right to
strike, more confusion gets generated.

A strike is ‘a condition where an individual or a group of individuals refuses to work as a

form of organized protest, typically in an attempt to obtain a particular concession or
concessions from their employer’.2 It can also be defined 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.3

The emphasis in strike is on acting together and not on pre planning: the parties who resort to
strike, may come to a common understanding at the time in question without any formal
agreement or consultations but nevertheless the concerted action must be collectively
combined on the basis of spirit de corpse and must be combined together by the community
of demands and interest with a view to compel employer to accede to their demands of
wages, bonus, allowances, hours of work holidays and the like 4. Also, the length or duration
of the "concerted" action is immaterial.5

In India, prior to 1926, there was no law governing strikes in Industrial Conflicts. During this
period there were 1,729 industrial disputes throughout India, one of which extended to five
provinces and another covered three provinces. The total number of workers involved in

1
Knowles, ‘Strikes: A Study In Industrial Conflicts’ 357 (1967)
2
Oxford Dictionary Of English, 3rd Ed. Oxford university Press 2010
3
Sec. 2(q), Industrial Disputes Act, 1947
4
D.N. Banerjeev v. P.R. Mukherjee, AIR (1953) SC 58
5
Diamond Machinery Manufacturing Works v. Their Workers, (1952) 1 LLJ 137.

3
these disputes was approximately 3¼ million and the aggregate time-loss amounted to 84
million days or over 250,000 working years.6 With the advent of the Trade Unions Act of
1926, the right of the industrial workers to strike was recognized, rather indirectly, by
granting to the members, office- bearers of registered trade unions certain immunities. Thus,
the Act of 1926 accorded statutory protection to strike action in the guise of immunities and
at the same time protected the funds of registered trade unions.

CHAPTER – 2

THE CONCEPT OF PEN-DOWN STRIKE

The concept of ‘pen – down strike’ came to India in early 1930s where the workers didn’t
deserted their work place, rather went to their offices but didn’t work. A major debate arose
to whether a pen down strike will fall under the general definition of strike? The National
Commission on Labor, while considering the adequacy or otherwise of the definition of
"strike" under Section 2(q) of the IDA declined to include concerted action such as "go slow"
and "work-to-rule" in the definition of "strike." According to the Commission the labor
protest, such as "go-slow" and ''work-to-rule'' should be "treated as misconduct or unfair labor
practices under the standing orders",7 and not as a strike.

However, the Supreme Court in Punjab National Bank Ltd. v. All India Punjab National
Bank Employees’ Federation8 distinctly held on a plain and grammatical construction of the
definition in Section 2(q)9, that it would be difficult to exclude a strike where workmen enter
the premises of their employment and refuse to take their tools in hand and start their usual
work. Refusal under common understanding to continue to work is a strike and if in
pursuance of such common understanding the employees entered the premises of the
employer and refused to take their pens in their hand that would no doubt be a strike under

6
Percy Glading, ‘The Growth of the Indian Strike Movement’, as seen at
http://www.marxists.org/archive/glading/1930/07/x01.htm (Last retrieved on 28th November, 2013)
7
Report of the National Commission on Labor, 1959, p.483
8
AIR 1960 SC 160
9
Supra Note 2

4
the provision of Sec. 2(q). Also, in the case of Bharat Sugar Mills Ltd. v. Jai Singh 10, the
Supreme Court holding on to the Punjab National Bank decision held-

‘Go-slow or pen-down which is a picturesque description of deliberate delaying of production

by workers pretending to be engaged in the factory is one of the most pernicious practices
that discontented or disgruntled workmen sometime resort to. It would not be far wrong to
call this dishonest. For, while thus delaying production and thereby reducing the output, the
workmen claim to have remained employed and thus to be entitled to full wages. Apart from
this also, 'go-slow' or ‘pen-down’ is likely to be much more harmful than total cessation of
work by strike. For, while during a strike much of the machinery can be fully turned off,
during the ‘go-slow’ or ‘pen-down’ the machinery is kept damaging to machinery parts. For
all these reasons ‘go-slow’ or ‘pen- down’ indeed fall under the definition of the term strike.’

Thus, hereon a ‘pen-down’ strike or ‘go-slow’ strike is included under the Sec. 2(q) of the
Industrial Disputes Act, 1947.

CHAPTER – 3

THE RIGHT IN QUESTION

If the Directive Principles of State Policy as enumerated under part IV of our Constitution
when read with Art.19 (which guarantees to the Indian citizens fundamental rights like
freedom of speech and expression, freedom of association, etc.) sow the seeds of bargaining
Jurisprudence" then, the relative questions arises: Does the Constitution recognize the right to
strike? Does the right to form unions guaranteed under the Constitution carry with it the
concomitant right to achieve the purpose for which the union is formed? In other words, if the
workers are guaranteed the right to form trade unions, should such trade unions be entitled to
engage in collective bargaining and to exercise, if necessary, the right to strike?

10
(1961) 2 LLJ 53.

5
However, when the Supreme Court was presented with the same question (formulated
slightly differently) - whether the right to form a union would carry with it the concomitant
right to collective bargaining and strike, the Supreme Court in the case of Kameshwar
Prasad v. State of Bihar11, held that even a very liberal interpretation of article 19 (1) (c) 12
could not lead to the conclusion that the trade unions have a guarantee fundamental right to
strike. The notion reiterated in the case of T.K. Rangarajan v. Govt. of Tamil Nadu13, where
the Supreme Court held that there exists no fundamental right to strike or even to a ‘pen-
down’ strike.

Though (right to strike) is not raised to the high pedestal of a fundamental right, it is
recognized as a mode of redress for resolving the grievances of workers 14. The Industrial
Disputes Act of 1947 so provides for; inters alia, the investigation and settlement of industrial
disputes. The Act seeks to bring about peaceful resolution of industrial disputes through
Conciliation, Arbitration and Adjudication. The Act regulates strikes and lockouts in public
utility services (henceforth "P.U.S.") and other general industrial establishments. Chapter V
of the Act embodies provisions relating to prohibition of strikes and lockouts.

The scheme of the Industrial Disputes Act, 1947 implies a right to strike in industries. A wide
interpretation of the term 'industry' by the courts includes hospitals, educational institutions,
clubs and government departments. Sections 22, 23, and 24 all recognize the right to strike.
Section 24 differentiates between a 'legal strike' and ‘illegal strike'. It defines 'illegal strikes'
as those which are in contravention to the procedure of going to strike, as laid down under
Sections 22 and 23. The provision thereby implies that all strikes are not illegal and strikes in
conformity with the procedure laid down, are legally recognized.

11
1962 AIR 1166; All India Bank Employee's Association v. National Industrial Tribunal, AIR 1962 SC 171.
12
Art. 19(1)(c)- Freedom to form associations or unions;

13
AIR 2003 SC 3032
14
B.R. Singh and others v. Union of India, (1989)2 LLJ 591; Chemicals and Fibers of India v. D. G. Bhoir, (1975) 2
LLJ 168.

6
Further, Justice Krishna Iyer had opined that "a strike could be legal or illegal and even an
illegal strike could be a justified one"15. It is thus beyond doubt that the Industrial Disputes
Act, 1947 contemplates a right to strike. However, such a right shall always be used as for a
remedy of last resort as negotiations should be attempted before using such a right. Thus,
there exists a legal right to strike only in accordance to the provisions of the IDA, 1947. The
provisions being: -

(a). A notice must be provided to the employer within six weeks before striking;

(b). The strike must be at least 14 days after the issuance of the notice.

(c). The strike must begin before the expiry of the date provided in the notice.

(d). No strike can be done during the pendency of any conciliation proceedings before a
conciliation officer and seven days after the conclusion of such proceedings.16

The last of the conditions is further detailed as: -

No workmen who is employed in any industrial establishment shall go on strike in breach of

contract and no employer of any such workmen shall declare a lock-out: -

(a) During the pendency of conciliation proceedings before a Board (of conciliation) and
seven days after the conclusion of such proceedings;

(b) During the pendency of proceedings before (an adjudicatory body) and two months after
the conclusion of such proceedings;

(c) During the pendency of arbitration proceedings and two months after the conclusion of
such proceedings where a notification has been issued under Sub-Section (3-A) of Section
10A; or

(d) During any period in which a settlement or award is in operation in respect of any of the
matters covered by the settlement or award17.

15
Gujarat Steel Tubes v. Its Mazdoor Sabha, AIR 1980 SC 1896.
16
Section 22, Industrial Disputes Act, 1947
17
Ibid at Section. 23

7
Strike notice under the section is mandatory. If the notice is not in the prescribed form and
does not mention the date of strike then the notice is ineffective and invalid. Consequently,
any strike action would be illegal. 18 Further, they cannot go on strike after the expiry of six
weeks from the date on which the strike notice has been served. To illustrate, if the workmen
serve a strike notice on the 1st of December 2013, they cannot strike before the 14 th of
December 2013.

The Supreme Court, adopting a literal construction of the statutory provision, observed: “the
date of strike should be carefully selected and specified in the notice of strike.” According to
the Court, “time is the essence of the Act and the requirements of its relevant provisions must
be punctually obeyed and carried out if the Act is to operate harmoniously at all”.19

However, if the strike does go beyond the above-mentioned provisions as given under
Section. 22 and 23 of the Industrial Disputes Act, 1975 the participants of such a strike shall
be punishable with an imprisonment for a term not exceeding one month or a fine not
exceeding Rs.50 or both.20

Labor law is complex and is ever growing. The foregoing precedents as heeded and acted
upon have successfully reduced the incidence of strikes in industrial conflicts. However, the
Government should also pragmatically examine and express opinion over the question-
“whether in a country plagued by famines, floods and bloodshed mentioning only a few,
should sympathetic strikes and secondary boycotts be tolerated or tacitly encouraged by
manifest inaction?”

18
Modi Industries v. Employees, (1949) 1 LLJ 882
19
Mineral Miners Union v. Kudremukh Iron Ore Co, 1989(58) F.L.A. 915 (Karn)
20
Section 26(1), Industrial Disputes Act, 1947

8
 CONCLUSION

A strike is ‘a condition where an individual or a group of individuals refuses to work as a

form of organized protest, typically in an attempt to obtain a particular concession or
concessions from their employer’. It can also be defined 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.

The concept of ‘pen – down strike’ came to India in early 1930s where the workers didn’t
deserted their work place, rather went to their offices but didn’t work. A major debate arose
to whether a pen down strike will fall under the general definition of strike? The National
Commission on Labor, while considering the adequacy or otherwise of the definition of
"strike" under Section 2(q) of the IDA declined to include concerted action such as "go slow"
and "work-to-rule" in the definition of "strike." According to the Commission the labor
protest, such as "go-slow" and ''work-to-rule'' should be "treated as misconduct or unfair labor
practices under the standing orders", and not as a strike.

Strike notice under the section is mandatory. If the notice is not in the prescribed form and
does not mention the date of strike then the notice is ineffective and invalid. Consequently,
any strike action would be illegal. 21 Further, they cannot go on strike after the expiry of six
weeks from the date on which the strike notice has been served. To illustrate, if the workmen
serve a strike notice on the 1st of December 2013, they cannot strike before the 14 th of
December 2013.

The Supreme Court, adopting a literal construction of the statutory provision, observed: “the
date of strike should be carefully selected and specified in the notice of strike.” According to
the Court, “time is the essence of the Act and the requirements of its relevant provisions must
be punctually obeyed and carried out if the Act is to operate harmoniously at all”.

21
Modi Industries v. Employees, (1949) 1 LLJ 882

9
 BIBLIOGRAPHY

Books:

 KNOWLES, ‘STRIKES: A STUDY IN INDUSTRIAL CONFLICTS’ 357 (1967)

 PERCY GLADING, ‘THE GROWTH OF THE INDIAN STRIKE MOVEMENT’, (Maxwell

Publications 2012) 76
 OXFORD DICTIONARY OF ENGLISH, 3rd Ed. (Oxford university Press 2010)

Cases:

 All India Bank Employee's Association v. National Industrial Tribunal, AIR 1962 SC
171.

 B.R. Singh and others v. Union of India, (1989)2 LLJ 591

 Bharat Sugar Mills Ltd. v. Jai Singh (1961) 2 LLJ 53.

 Chemicals and Fibers of India v. D. G. Bhoir, (1975) 2 LLJ 168.

 Diamond Machinery Manufacturing Works v. Their Workers, (1952) 1 LLJ 137.

 Gujarat Steel Tubes v. Its Mazdoor Sabha, AIR 1980 SC 1896.

 Kameshwar Prasad v. State of Bihar, 1962 AIR 1166;

 Mineral Miners Union v. Kudremukh Iron Ore Co, 1989(58) F.L.A. 915 (Karn)

 Modi Industries v. Employees, (1949) 1 LLJ 882

 T.K. Rangarajan v. Govt. of Tamil Nadu, AIR 2003 SC 3032

10