Strike Chapter One

CHAPTER – 1
INTRODUCTION
"Show me the country that has no strikes and l'll show you the country in which there is no
liberty."
Samuel Gompers1
(American labor and political leader)
1.1 PROBLEM PROFILE
In India, right to strike is not a fundamental right but is derived from the right to
association under the Constitution of India.2 It is implicitly3 and explicitly4 recognised by many
international documents. Now-a-days an increasing tendency is seen among industrial workers
in India to resort to strikes on one pretext or the other.5 India has ratified many international
documents, but has not ratified the Conventions6 of International Labour Organisation which
protect the freedom of association. By virtue of being a member of International Labour
Organisation, India is under obligation to satisfy at least the fundamental rights promoted by
the Conventions, irrespective of it having ratified them or not.7 Also the combined reading of
the Article 51(c) and Article 37 of the Constitution of India implies that principles laid down
in International Conventions and Treaties must be respected and applied in the governance
of the Country.8 The Supreme Court of India followed the International Covenant on Civil and
Political Rights, the International Covenant on Economic, Social and Cultural Rights, the
Universal Declaration of Human
1
Bill Meulemans, How the Left and Right Think: The Roots of Division in American Politics, 154 (Mcfarland and
Company, Inc., Publishers, Jefferson, North Carolina, 2019).
2
The Constitution of India, art. 19(1)(c).
3
The International Labour Organisation,1919 (Convention No. 87 Freedom of Association and Protection of the
Right to Organise Convention, 1948, arts. 3, 8 and 10); The International Covenant on Economic, Social and
Cultural Rights, 1966, art. 8; The International Covenant on Civil and Political Rights,1966, art., 22 and the
European Convention on Human Rights, 1950, art. 11.
4
The European Social Charter,1961 and The European Social Charter (Revised), 1996, art. 6,
available at: https://rm.coe.int /168007 cf93 (last visited on February 2, 2016).
5
Nirmal Singh and Santosh Kumar Bhatia, Industrial Relations and Collective Bargaining: Theory and
Practice 257 (Deep and Deep Publication Pvt. Ltd., New Delhi, 2006).
6
Convention No. 87 on Freedom of Association and Protection of the Right to Organize, 1948 and Convention
No. 98 on the Application of the Principles of the Right to Organize and to Bargain Collectively, 1949.
7
International Labour Organisation, 86th Session of International Labour Conference, "Declaration on
Fundamental Principles and Rights at Work” Geneva (June 18, 2018) available at:
https://www.ilo.org/declaration/lang--en/index.htm (last visited on May 19, 2019).
8
Vishakha v. State of Rajasthan, (1997) 6 SCC 241 and People's Democratic Rights v. Union of India, AIR 1982
SC 1473.
1
Rights and International Labour Organisation‟s Conventions, to interpret and expand the ambit
of Article 219 of the Constitution. But the same Court ignored the right to strike protected by
these Covenants and by the International Labour Organisations Conventions.10 Even the small
and politically not so significant third world Countries have incorporated these rights in their
Constitutions.11 For example the Constitutions of Rwanda,12 Ethiopia,13 Poland,14 South Korea15
etc. protect the right to strike. In our Constitution there is no specific protection of right to
collective bargaining and right to strike.
Indian Parliament is given power to regulate industrial disputes concerning union and
employees under the Union List.16 The State Legislature and the Parliament both can make
laws under the Concurrent List in relation to trade union and labour disputes.17 But no law is
specifically made by Parliament and State Legislature regarding the right to strike.
Main law which regulates the right to strike of industrial workers is the Industrial Disputes Act,
1947. An analysis of this Act reveals that none of its provisions confers right to strike to any
worker. Except defining strikes,18 the Act contains no provisions either favouring or
discouraging strikes. In fact the Act has several provisions which by providing the procedural
requirements make it difficult to conduct strike.19 It mainly concentrates on developing efficient
alternative mechanisms for dispute settlement, such as reference to Industrial Tribunals,
compulsory adjudication, conciliation etc. However, hard reality is that this system has proved
to be ineffective because of long delays in adjudicating such matters. Thousands and thousands
of cases are pending before the Labour Courts and
9
Peoples Union for Democratic Rights v. Union of India, AIR 1982 SC 1473.
10
T.K. Rangarajan v. Govt. of Tamil Nadu and others, AIR 2003 SC 3032.
11
I. Mallikarjuna Sharma, "Right to Strike" 46:4 JILI 14 (2004).
12
The Constitution of Rwanda, 2003, art. 32, available at : https://www.ilo.org /dyn/nat lex/docs/
ELECTRONIC/64236/90478/ F238686952/ RWA642 36.pdf (last visited on April 11, 2019).
13
The Constitution of the Federal Democratic Republic of Ethiopia, 1931, art. 42, available at:
https://www.africa.upenn.edu/Hornet/Ethiopian_Constitution.html (last visited on April 11, 2019).
14
The Constitution of the Republic of Poland, 1997, art. 59, available at : https://www.sejm.gov.pl
/prawo/konst/angielski/kon1.htm.pdf (last visited on April 11, 2019).
15
The Constitution of the Republic of South Korea, 1948, art. 33, available at :
https://www.constituteproject.org/constitution/Republic_of_Korea_1987.pdf?lang=en (last visited on
April 11, 2019).
16
Supra note 2, Seventh Schedule, List I, Entry 61.
17
Id., List III, Entry 22.
18
The Industrial Disputes Act, 1947, s. 2(q).
19
Sandeep S. Desai, "Right to Strike: A Conceptual and Contextual Anathema" 47:2 JILI 228 (2005).
2
Tribunals. The appropriate government takes much time in referring the matter to the
Industrial Tribunals which take years in deciding those matters. Then the award of the
Industrial Tribunal can be challenged by filing a petition under Article 226 before the High
Court as per the constitutional provisions. Thereafter, Letters Patent Appeal to the Division
Bench and ultimately Special Leave Petition under Article
126 can be filed in the Supreme Court. The workers/trade unions, who have legitimate
demands, may resort to such procedure which may take years in deciding their cases. The
workers find it reasonable in resorting to strike by putting pressure on the employer and get
their demands fulfilled. Compulsory adjudication has decreased the scope of development of
collective bargaining in India. Moreover, the Industrial Disputes Act, 1947 is based on the Rule
81A of the Defence of India Rules, 1942 passed by the British Government which prohibited
strikes and lockouts to cope with the anti-British political atmosphere in India. The Trade
Unions Act, 1926 also provides for limited right to strike by giving immunity to trade unions
from civil20 and criminal conspiracy.21
The Supreme Court in its latest division bench verdict in the case of T.K. Rangarajan v.
Government of Tamil Nadu and others 22 decided the constitutionality of legislation23 restricting
the right to strike of government employees. The Court ignored the provisions of Industrial
Disputes Act, 1947. The employees who were dismissed by the Tamil Nadu Government in
T.K. Rangarajan case were mainly engaged in clerical, manual or unskilled works which comes
within the definition of 'workman'24 under the Industrial Disputes Act, 1947. The government
undertaking under this case is covered under the definition of 'industry'25 as interpreted by the
Supreme Court in Bangalore Water Supply26 in which Hon'ble Court held that the definition
covers both the private as well as government concerns whether owned by state or by private
entrepreneur. Thus, the definitions covers the Tamil Nadu government employees which the
Supreme Court denied the right to strike.
Employer's right to lockout is associated with the worker's right to strike. Thus it is necessary
to maintain a balance between both these rights. The Court by
20
The Trade Disputes Act, 1926, s. 17.
21
Id., s.18.
22
AIR 2003 SC 3032.
23
The Tamil Nadu Essential Services Act (TESMA), 2002.
24
Supra note 18, s. 2(s).
25
Id., s. 2(j).
26
Bangalore Water Supply & Sewerage Board v. A. Rajappa AIR 1978 SC 548.
3
banning the right to strike in all forms without touching the right to lockout shifted the power in
the favour of employers which in turn reduce the bargaining power of the workers. Thus there
is no clear cut policy on the right to strike in India.
1.2 MEANING AND CONCEPT OF STRIKE

The right to strike plays an important role in protecting legitimate rights and interests of the
workers.27 It is one of the most effective weapons of the worker in its struggle with capital for
securing economic justice that empowers the disempowered to fight in oppressive cases when
no constructive option is left.28 Today strike is resorted to by every section of the society to
express their grievances and to put their demands.29 Strike has its foundation in the sentiment of
a worker that his wages and working conditions are unfair.30 The basic strength of a strike lies
in the labour‟s privilege to quit work and thus brings a forced readjustment of conditions of
employment.31
The right to strike is considered as an essential component of right to association.32 If the right
to strike of the workers is denied then the right to form unions would be an empty right. The
freedom of association cannot be fully exercised if the association is not able to protect its
member‟s interest and achieve its objects for which it is formed. The essence of forming and
joining trade union would be ineffective if workers could not exercise the right to strike as a
legitimate right. It is also complimentary to freedoms from slavery and forced labour. The
denial of the freedom to strike means that employees will not be allowed to stop working at
will, and can be forced to work contrary to their will, thereby depriving them of their freedom
from forced labour and constituting a grave affront to justice.33
27
Kai Chang and Fang Lee Cooke, "Legislating the Right to Strike in China: Historical Development and
Prospects" 57:3 JIR 441 (2015).
28
Debdas Banerjee and Michael Goldfield, Labor, Globalization and the State: Workers, Women and Migrants
Confront Neoliberalism 215 (Routledge, UK, 2007).
29
Srikant Mishra, Labour and Industrial Relations: New Horizons 66 (Deep and Deep Publication, New Delhi,
edn., 1998).
30
A.F. Utz, "Is the Right to Strike a Human Right?" 65:4 Wash. U.L.Q. 744 (1987), available at:
https://pdfs.semanticscholar.org/46c6/dd084aaa2de37f96f164ffb6a3304ff6d837.pdf (last visited on September 10,
2015).
31
G.M. Kothari, A Study of Industrial Law 144 (Wadhwa and Company, Nagpur, edn. 2000).
32
Commonwealth Secretariat, Freedom of Expression, Assembly and Association: Best Practice 25
(Commonwealth Secretariat, UK, 2003).
33
Roy Mthombeni, “The Right or Freedom to Strike: An Analysis from an International and Comparative
Perspective” 23(3) CILJSA 339 (November, 1990), available at: https://www.jstor.org/stable/23248358?read
now=1&seq=1#page_scan_tab_contents (last visited on September 10, 2015).
4
Right to strike is an integral part of collective bargaining. 34 Where collective bargaining breaks
down, workers tend to resort to strikes to get their demands fulfilled. For the trade unions the
threat of strike is a useful weapon compelling the employers to come for bargaining.35 It plays a
legitimate role as an incentive for management and labour to resolve their differences. The
underlying threat of economic sanctions served to push the two sides to compromise, and to
reach at an agreement through the bargaining process. Taking away the right of workers to
strike, may only force them to adopt other forms of protest, which may equally be injurious to
labour-management relations.36 Thus the denial of the right to strike causes the violation of all
these basic freedoms as the common goal of protecting the interests of the workers cannot be
achieved by either of them alone.
1.2.1 MEANING OF STRIKE
Strikes have different contours in old and new scenario. Traditionally, strikes were mainly in
the form of stoppage of work, but now the forms of the performance of the strikes have
changed. Now the term “strike” may also cover several forms of passive actions, such as the
refusal to do overtime, the sit-down strike, the go-slow strike, or the work-to-rule strike.
However, the listed forms of strike are not universally accepted.37 The first recorded successful,
work stoppage took place in Egypt in the twelfth century under the reign of Ramses III when
builders laid down their tools to demand wages (paid in food rations or other necessities) which
they then received.38 The word strike owes its origin to old English word Striken „to go
away‟.39 It developed from the action of “striking” or removing the topsails of ships, rendering
them motionless.40 In the eighteenth century the merchants used to protest by preventing the
ship from delivering the cargo by striking (lowering) a ships sail as a symbol of refusal to go
to sea.41 Their work stoppages became known as strikes,
34
P.R.N. Sinha, Indu Bala Sinha, Industrial Relations, Trade Unions and Labour Legislation 12 (Dorling
Kindersley India Pvt. Ltd., edn. 2009).
35
B.P. Rath, B.B. Das, “Right to Strike: An Analysis” 41:2 IJIR 251(October, 2005).
36
The Government of India, "First Report of National Commission on Labour" 328 (The Ministry of Labour and
Employment and Rehabilitation, 1969).
37
Erika Kovacs, "The Right to Strike in the European Social Charter" 26:4 CLLPJ 448 (2005), available at:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=902674 (last visited on March 2, 2019).
38
Paul D'Amato, The Meaning of Marxism 81 (Haymarket Books, U.S. 2006).
39
Vijay M Gawas, "Analysis of the Provision for Right to Strike of Workers under the Industrial
Dispute, Act 1947 and other Provisions of Laws" 4:5 IJL 25 (2018).
40
The Birth of Strike, available at: https://www.jacobinmag.com/2018/05/strikes-history-london-
sailors-coal-heavers (last visited on July 11, 2019).
41
Available at: https://www.etymonline.com/word/strike (last visited on July 11, 2019).
5
and later on this term was also used for work stoppages on land.42
Thus, strike means the collective and concerted stoppage of work or slowdown the pace of
work usually but not necessarily organised by a trade union, as a result of industrial dispute to
put pressure on an employer to accept their demands.
We have different contours of strike discussed in old and new scenarios. The Black‟s Law
Dictionary43 defines „strike‟ as “an organised cessation or slowdown of work by employees to
compel the employer to meet the employees demands; a concerted refusal by employees to
work for their employer, or to work at their customary rate of speed, until the employer grants
the concessions that they seek.” Another definition is provided by the Oxford Dictionary 44
which states that strike as “an organised refusal to work on the part of body of employees as a
protest, especially, in order to try and obtain some concession from an employer.” According
to the Encyclopedia of Social Sciences45 strike is concerted suspension of work by a body of
employees usually for the purpose of adjusting an existing dispute over the terms of the 'labour
contract'.
The Encyclopedia Britannica46 defines a 'strike' in the labour sense as the stoppage of work by
common agreement on the part of working people for the purpose of obtaining or resisting a
change in the conditions of employment.
However, the significance and meaning of strikes vary from place to place. It may be used as
an organising device, a means of general protest, as a political demonstration, or as an integral
part of the collective bargaining process used to induce agreement.47
International Labour Organisation (ILO) adopted a resolution on January 28, 1993 and the
interim resolution adopted by the Fourteenth International Conference of Labour Statisticians
was replaced and the word "Strike" was defined as "a temporary work stoppage affected by
one or more groups of workers with a view to
42
Aaron Brenner, Benjamin Day, et.al., The Encyclopedia of Strikes in American History, 3 (Routledge,
New York, USA, 2015).
43
Bryn A. Garner and Henry Campbell Black (ed.), The Black's Law Dictionary 1463 (West Publishing
Company, USA, 2004).
44
The Oxford Dictionaries, Oxford Large Print Dictionary, 3060 (Oxford University Press, USA, 2007).
45
Edwin Robert Anderson Seligman, Alvin Saunders Johnson, XIV The Encyclopedia of Social Sciences
(The Macmillion Co. NY, 1942).
46
Hugh Chislohm, XXI The Encyclopedia Britannica: Dictionary of Arts, Sciences, Literature and General
Information, 470 (University Press, Michigan, 1911).
47
Lewis B. Dzimbiri, Industrial Relations in a Developing Society: The Case of Colonial, Independent One
Party and Multiparty Malawi 25 (Cuvillier Verlag, Germany, 2008).
6
enforcing or resisting demands or expressing grievances, or supporting other workers in their
demands or grievances".48
According to Ludwing Teller, the word strike, in its broad sense has reference to a dispute
between an employer and his workers, in the course of which there is a concerted suspension of
employment. He described four characteristics of strike which are as follows:
i. An established relationship between the strikers and the person or persons
against whom the strike is called.
ii. The constituting of that relationship as one of employer or employees,
iii. The existence of a dispute between the parties and the utilisation by labour of
the weapon of concerted refusal to continue to work on the method of persuading or coercing
compliance with the workmen's demand, and
iv. The contention advanced by workers that although work ceases, the
employment relation is deemed to continue, albeit in a state of belligerent suspension.49
The Supreme Court of Washington in United States of America also defined the scope of strike
in the case Uden v. Schaefer50 in the following words:
"Strike is the act of quitting work by a body of workmen, for the purpose of coercing their
employer to accede to some demands, they have made upon him and which he has refused. But
it is not a strike for workmen to quit work, either singly or in a body, when they quitted without
intention to return to work, whatever may be the reason that moves them to do so".
In England 'Strike' was first defined in the repealed the Trade Disputes Act, 1929 and the Trade
Union Act, 192751 as a "cessation of work by a body of persons employed in any trade or
industry acting in combination or concerted refusal or a refusal, under a common
understanding of any number of persons, who are or have
48
International Labour Organisation, Statistics of Strikes, Lockouts and other Forms of Industrial Actions,
Fifteenth International Conference of Labour Statisticians, ICLS/15/II, 42 Geneva, 19 - 28 January 1993,
available at: https://www.ilo.org/ public/libdoc/ilo/1992/92B09_230_engl.pdf (last visited on June 10, 2019).
49
Satinder Kumar Upadhaya, Law of Essential Services in India 55 (Deep and Deep Publication, New Delhi,
1983).
50
110 Wash 391, Cited in M. N. Kaushika "An Analysis of workmen‟s Right to Strike under the Industrial
Disputes Act, 1947" 1: 1 NJLIL 14 (2018).
51
Section 8(2)(a).
7
been so employed, to continue to accept employment."52 The Industrial Relations Act, 1971
defined strike as "a concerted stoppage of work by a group of workers, in contemplation or
furtherance of an industrial dispute, whether they are parties to the dispute or not, whether (in
the case of all or any of those workers) the stoppage is or is not in breach of their terms and
conditions of employment, and whether it is carried out during, or on the termination of their
employment. This section as repealed by the „Trade Union and Labour Relations Act, 1974‟,
which contains no definition of „strike‟ although the word is used as example in schedule.53
The first legislative attempt in India to define the term strike was made by the Trade Disputes
Act, 1929, which was later reproduced in the Industrial Disputes Act, 1947.54
According to the „Trade Disputes and Trade Unions Act, 1927 the expression, „strike‟ means
the cessation of work by a body of persons employed in any trade or industry acting in
combination, or a concerted refusal under a common understanding of any number of persons
who are or have been so employed, to continue of work or to accept employment.55
The Industrial Disputes Act, 1947 defines strike as "a cessation of work by a body of persons
employed in any industry acting in combination or a concerned 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." 56 According to the clarification issued for the
purposes of Rule 7 of the Central Civil Services (Conduct) Rules, 1964 'strike' means refusal to
work or stoppage or slowing down of work by a group of employees acting in combination,
and includes-
i. Mass absence in work without permission (which is wrongly described as ''mass casual
leave");
ii. refusal to work overtime where such overtime work is necessary in the public interest.
iii. resort to practices or conduct which is likely to result in or results the cessation or
substantial retardation of work in any organisation. Such practices would include, what are
called 'go-slow,' 'sit-down,' 'pen down,'
52
Supra note 49.
53
The Trade Union and Labour Relations Act, 1974, s. l67(1).
54
B.D. Singh, Industrial Relations: Emerging Paradigms 141 (Excel Books, New Delhi, 2nd edn., 2008).
55
The Trade Disputes and Trade Unions Act, 1927, s. 8.
56
Supra note 18, s. 2(q).
8
'stay-in', 'token', 'sympathetic', or any other similar strike; as also absence from work for
participation in a bandh or any other similar movements.57 The Report of the National
Commission on Labour, 2002 provides that a
strike is meant to project the demands of the workers as also their determination to resort to
direct action or stoppage of work.58
The Essential Services Maintenance Act, 1981 elaborates strike as the cessation of work by a
body of persons employed in any essential service 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 work assigned and includes-
i. refusal to work overtime where such work is necessary for the maintenance of
any essential service.
ii. any other conduct likely to result in, or results in, cessation or substantial
retardation of work in any essential service.59
1.2.2 TYPES OF STRIKES
Strikes are usually categorised on the basis of initiation, technique, purpose, Statutes and scope.
Sometimes, legislation or court/agency decisions define categories of strikes for legal and
regulatory purposes. It is common for strikes to fall into multiple categories.60
1.2.2.1 On the Basis of Nature of Initiation
On the basis of nature of initiation of strikes i.e. strikes initiated with or without consent, can be
divided into a) authorised b) unauthorised.
1.2.2.1.1 Authorised Strikes
An authorised strike is one which is called only after the consent of the union. Trade unions
approves and controls the proceedings of strike.61 It is also called official strike which is
supported or ratified by a registered trade union
57
The Ministry of Home Affairs, Report 18 (1966-67), No.25/23/66-Bsts (A), available at:
http://documents.doptcirculars.nic.in/D2/D02est/25_23_66-Ests.A-09121966. pdf(last visited on May 7, 2019).
58
The Government of India, "Second Report of National Commission on Labour" 334 (The Ministry of Labour
and Employment and Rehabilitation, 2002).
59
The Essential Services Maintenance Act, 1981, s. 2(b).
60
Aaron Brenner, Benjamin Day, et.al., The Encyclopedia of Strikes in American History 1 (Routledge, New
York, USA, 2015).
61
The Encyclopaedia Britannica, XXI A New Survey of Universal Knowledge Encyclopaedia Britannica, 1952,
468 (Digitized 2010).
9
according to the union's rules.62
1.2.2.1.2 Unauthorised Strikes
Unauthorised strike, also known as wild cat strike, is spontaneous and short- lived stoppage
that takes place without the sanction of a union local or an international union.63 These strikes
are called by a section of workmen on the spur of movement without any formal notice to the
employer and any consent from the relevant union.64 Wild- Cat strikes are illegal and the
striking employees are not protected legally against the consequences of these strikes.65
1.2.2.2 On the Basis of Technique
Strikes can also be categorised on the basis of the techniques adopted by the workers in
conducting strikes. In some strikes workers remains at their workplaces but reduce the output
by working slowly while in some they quit their workplaces to conduct strikes. On the basis of
techniques strikes can be classified as a) ordinary b) slow-down c) sit-in d) quickie e) work to
rule.
1.2.2.2.1 Ordinary Strikes
In this form of strike workers formally quit their places of work and prevent others,
occasionally by violence but mostly by persuasion and picketing, from replacing them. In this
form of strikes, picketing, processions and demonstrations become necessary for the success of
the strike.66
1.2.2.2.2 Slow-Down Strikes
Slow down (Go-slow) and work to rule strikes are forms of strikes in which employees work
but not up to their usual levels or capacity. They reduced their output deliberately to show their
protest to the employer. In this type of strike the employees continue to get the wages while the
employer‟s revenue is badly affected. Here the employee strictly follows the rules and just
refuse to deviate from them.67 The workmen reduce the speed of work or adopt dilatory tactics
to reduce the usual production while pretending to be engaged on work.68 In the case of
Bharat Sugar
62
Hilde Behrend, Problems of Labour and Inflation 38 (Routledge, UK, 2016).
63
Robert E. Weir, Workers in America: A Historical Encyclopedia, Vol. 1, 846 (ABC-CLIO, California,
USA, 2013).
64
Supra note 34 at 167.
65
Pravin Durai, Human Resource Management 523 (Dorling Kindersley (India) Pvt. Ltd., Noida, 2010).
66
67
68
H.L. Kumar, Practical Guide to Industrial Disputes 54 (Universal Law Publishing Co. Pvt. Ltd., New Delhi,
4th edn., 2010).
10
Mills Ltd. v. Jai Singh,69 the Court held that go slow is deliberate delaying of production by
workmen pretending to be engaged in the factory. It would not be wrong to call this dishonest.
Delaying production and thereby reducing the output the workmen claim to have remained
employed and thus to be entitled to full wages. Go slow is likely to be much more harmful than
total cessation of work by strike as during a strike much of the machinery can be fully turned
off, during the go slow the machinery is kept going on a reduced speed which is often
extremely damaging to machinery parts.
1.2.2.2.3 Sit-in Strikes
Sit-in strikes also known as pen-down, tools down, stay in, in these strikes employees report for
work but do not work. These strikes may be planned or spontaneous, depending upon the
happenings and urgency of the situation.70 In these form of strikes, employees peacefully enter
their place of work, without indicating their intention. But after entering their workplace, they
do not do their work.71 If blue collared workmen do not do their work, it may be tool-down
strike and if white collared workmen do not work, it is pen-down strike.72 In the case of Punjab
National Bank v. Their Workmen,73 the Court held that a pen-down strike falls within the
definition of strike under the Industrial Disputes Act, 1947 and is not per se illegal. In this case,
the employees of appellant bank commenced pen-down strike, followed by a general strike
during pendency of arbitration proceedings. The strike was peaceful and non-violent. The
Court held that pen-down strike did not disentitle the employees to reinstatement.
1.2.2.2.4 Quickie
A Quickie is another name for an unauthorised wildcat strike. As its name suggests, it is
sudden, unexpected and of short duration.74 In this type of strikes the workers remain at their
workplace but suspend their work for a short period i.e. for a few minutes or for an hour. The
effect of this type of strike can be serious even if the strike is for a short period.
69
(1961) II LLJ 644 (SC).
70
Supra note 65.
71
R. Sivarethinamohan, Industrial Relations and Labour Welfare: Text and Cases 115 (PHI
Learning Private Ltd. New Delhi, 3rd edn., 2016).
72
Ibid.
73
AIR 1953 SC 296.
74
11
1.2.2.2.5 Work to Rule Strike
Employees 'work to rule' when they refuse to do any work that is above and beyond their strict
express contractual commitments delineated in their contract of employment.75 In some
industries, nature of business and the rules prescribed are such as to lead to a considerably
slowing down the pace of work and reducing output without going on a formal strike and
without causing any damage to the quality and quantity of the work. Under such conditions, if
the unions and workers declare that they will work according to the rules, they succeed in
slowing down the pace of work and reducing output without going on a formal strike and
without any dereliction of duty.76
1.2.2.3 On the Basis of Purpose
Strikes can also be differentiated on the basis of purpose that is aim for which the strike is
undertaken. On the basis of purpose the strikes can be classified as a) sympathetic b) hunger
c) jurisdictional d) economic e) token f) political g) secondary h) picketing and boycott i)
gherao j) bandh.
1.2.2.3.1 Sympathetic Strike
A sympathetic strike is one in which striking employees have no demands or grievances of
their own, but strike for the purpose of aiding others, either directly or indirectly. A
sympathetic strike is a strike within the purview of the Industrial Disputes Act.77 In the case of
Ramalingam v. Indian Metal and Metallurgical Corporation, Madras,78 it was held that when
the workers in concert absent themselves out of sympathy to some cause wholly unrelated to
their employment or even in regard to the condition of workers in service under other
management, such absence could not be held to be a strike, as the essential element of the
intention to use it against the management is absent. The management would be entitled to take
disciplinary proceeding against the workmen for their absence on the ground of breach of
condition of service.79
1.2.2.3.2 Hunger Strike
In a hunger strike, the employees undertake fasting by abstaining from both
75
Charles Barrow, Industrial Relations Law 287 (Cavendish Publishing Limited, UK, 2nd edn., 2002).
76
77
78
(1964) 1 LLJ 81.
79
S.K. Puri, An Introduction to Labour and Industrial Laws 545 (Allahabad Law Agency Faridabad,
Haryana, 10th edn., 2011).
12
food and work as a means of protest. Since there is cessation of work due to employee‟s
participation in the fasting, it is viewed as a strike. The purpose of such a strike is to embarrass
the employers and get the attention of the government and the general public to the cause of
the strike.80 It is non-violent and is not strictly strike under the Industrial Disputes Act, 1947.81
In hunger strike there need not necessarily cessation of work. But when hunger strike is
accompanied by cessation or suspension of work, then it would of course constitute strike. 82 In
the case of Pipraich Sugar Mills Ltd. v. Their Workmen83 Supreme Court held that a hunger
strike amounted to a strike where workmen who held the key positions in the factory went on a
hunger strike with the result other workmen who come to work could not do work..
1.2.2.3.3 Jurisdictional Strike
A jurisdictional strike is a concerted refusal to work undertaken by a union to assert its
members right to particular job assignments and to protest the assignment of disputed work to
members of another union or to unorganised workers. 84 It is a conflict between two or more
unions over the right of their membership to perform certain types of work. If the conflict
develops into a work stoppage, it is called a jurisdictional strike.85As a matter of fact, two
unions quarrel for their respective jurisdictions and the strike is the result of this dispute known
as jurisdictional strikes. These types of strikes are common in USA, which were restricted
under the provisions of Taft-Hartley Act, 1947. In India, also strikes pertaining to recognition
of unions are very common but the law does not have any provisions to deal with such strikes.
In such a situation of acute union rivalry, as pertains to India, jurisdictional disputes tend to
become very frequent.86
1.2.2.3.4 Economic Strike
An economic strike is one over wages, hours and other conditions of work and terms of
employment.87 In economic strikes, the workers demand increase in
80
81
82
83
AIR 1960 SC 1258.
84
Robert Emmett Doherty, Industrial and Labor Relations Terms: A Glossary 20 (ILR Press, New
York, USA, 1989).
85
Supra note 84.
86
87
Charles W. Baird, Opportunity or Privilege: Labor Legislation in America 54 (Social Philosophy
and Policy Centre, USA, 1984).
13
wages, travelling allowance, house rent allowance, dearness allowance and other facilities such
as in privilege leave and casual leave.88
1.2.2.3.5 Token Strike
A token strike, as the name suggests a brief strike (normally one or two days) intended to
convey the strong feelings of employees on a disputed issue. It is resorted to compel the
employers to meet the demands of the employees where negotiations have not been started by
the employer or the same have been failed.89
1.2.2.3.6 Political Strike
Strikes of this sort are needed to put pressure on the government to do something or desist from
doing something. Such strikes are also intended to express workers support to a particular
political cause. Political strikes have been very common in India. During the days of imperial
rule, workers would go on strike very often to protest against the imprisonment of the
national leaders to voice their support to the cause of independence. In the post independence
period, the reorganisation of states, the claims of linguistic groups and languages, location of
particular industrial unit in a particular region, the general economic situation, economic and
industrial policies of the government. Such strikes are not caused by industrial disputes.90
Political strikes are called with the objective of challenging the government or influencing its
policy. In India there is no law concerning political strikes as the existing law deals with
industrial strikes only.91
1.2.2.3.7 Secondary Strike
Secondary strike sometimes called a sympathy strike which means a strike that is in support of
a strike by other employees from another employer. A strike is not secondary if the secondary
strikers have the same demand as the workers from other employer. It means strike in support
of other striking workers only.92
1.2.2.3.8 Picketing and Boycott
Picketing is the action taken by unionists to prevent employees from attending work after a
strike has been called. This activity is usually carried out at the gate or entrance. Picketing is
a legitimate activity in some countries, although
88
R.K. Suri, Dynamics of Industrial Relations 147 (Pentagan Press, New Delhi, 2007).
89
90
91
S.N. Dhyani, Trade Unions and the Right to Strike: A Comparative Socio-legal Study in Labour
Management Relations 177 (S. Chand & Co. (Pvt.) Ltd., New Delhi, 1970).
92
Chris Hickley Siber, Labour Relations for Shop Stewards 149 (Siber Ink Publishers, South Africa,
2012).
14
not specifically allowed in India.
The Criminal Law (Amendment) Act, 193293 is the most important Indian legislation which
affects various aspects of picketing.94 The constitutional validity of section 7 of the Criminal
Law (Amendment) Act, 1932 was challenged in Damodar Ganesh v. State of Bombay95 and
Vimal Kishore Mehrotra v. The State of U.P.96 In Damodar Ganesh's case, restriction on
peaceful picketing was construed as reasonable in the interest of the general public as it sought
to interfere with the freedom movement of other citizens. In Vimal Kishore Mehrotra case the
contention of the petitioner was that section 7 Criminal Law Amendment Act is ultra vires the
Constitution of India, 1950.
The Court held that this Act prohibits several acts. The prohibition of some of these acts may
be unconstitutional. But it does not mean that prohibition of other acts also is unconstitutional.
The valid parts can be separated from the invalid part. So assuming (without deciding) that
certain parts of section 7(1) of the Act are ultra vires the Constitution, the entire section 7
cannot be condemned on that ground. Boycott means the rejection by workers of specific
activities, products or services provided by management.97 The workers may decide to
boycott the company by not using its products which is known as primary boycott and they
may also appeal the general public not to use company's products which is known as
secondary boycott.98
1.2.2.3.9 Gherao
Gherao literally means "encircle" or "surround".99 It is one of the methods designed to exert
pressure for fulfillment of demands. Legally speaking the term gherao means physical
blockade of a target either by encirclement or forcible occupation.100 The practice involves
confinement of authorities (often managerial personnel) in their offices, by the workers. This
can last for hours or even days and
93
Section 7(1).
94
Suresh C. Srivastava, "Picketing: Conceptual and Legal Framework" 43:2 JILI 225 (2001).
95
AIR 1951 Bom. 459.
96
AIR 1956 All. 56.
97
P. N. Singh, Employee Relations Management 85 (Dorling Kindersley Pvt. Ltd., New Delhi
(India), 2011).
98
Supra note 88.
99
The Indian Law Institute, Cases and materials, 436 (The Indian Law Institute, New Delhi, 3rd
edn., 2007).
100
15
they are prevented from going out pending the fulfillment of the demands. 101
They block
ingress and egress and sometimes cut off electricity, telephones, even food and water.102 In the
case of Jay Engineering works v. State of West Bengal,103 it was held that the protection under
sections 17 and 18 of the Trade Unions Act, 1906 extended only to acts that were peaceful and
did not amount to molestation or intimidation.104 If a person or number of persons wrongfully,
restrain or wrongfully confine another person or persons it is elementary that the matter comes
under sections 339, 340 read with sections 341, 342 of the Indian Penal Code, 1860 as the case
may be, and cannot be saved by section 17 of the Trade Unions Act 1926. In the present case,
gherao leads to confinement of several persons. The High Court held that such acts would
amount to wrongful confinement and would not be protected under the Act.
1.2.2.3.10 Bandh
Bandh means 'closed', 'locked' or 'blocked'. It has been declared unconstitutional and illegal by
Kerala High Court105 and Supreme Court of India.106 The objective behind organising bandhs
has primarily been political in nature. Whatever may be the purpose, bandhs often lead to
widespread sufferings and inconvenience particularly for the local community.107 In the case
of Bharat Kumar
K. Palicha v. State of Kerala108 the court held that no political party or organisation can claim
that it is entitled to paralyse the industry and commerce in the entire State or Nation and is
entitled to prevent the 'citizens not in sympathy with its view point, from exercising their
fundamental rights or from performing their duties for their own benefit or for the benefit of the
State or the Nation. The main contention raised on behalf of the political parties was that to call
for a bandh and a protest against any action or inaction on the part of the executive is the
fundamental right of every political party or of every citizen comprising that party and any
curtailment of such a right would involve the curtailment of the fundamental right enjoyed by
the citizen of this country guaranteed to them under Article 19(1)(a) and (b) of the Constitution.
101
102
103
AIR 1968 Cal. 407.
104
Kunal Ambasta, "Immunity of Trade Unions for Inducing Breach of Contract: A study of the Evolution of
English Law and its Application in India." 3:2 Labor & Emp. L.F 338 (2013).
105
Bharat Kumar K. Palicha v. State of Kerala, AIR 1997 Ker 291.
106
Communist Party of India (M) v. Bharat Kumar, (1998)1 SCC 201.
107
108
AIR 1997 Ker. 291.
16
The Court also draws a distinction between bandh and general strike or hartal. The intention of
the callers of the bandh is to ensure that no activity either public or private is carried on that
day is also clear from their further statements sometimes made that the newspapers, hospitals
and the milk supply is excluded from the bandh. While approving the decision of Kerala High
Court the Supreme Court in the case of Communist Party of India (M) v. Bharat Kumar,109 held
that the fundamental rights of the people as a whole cannot be subservient to the claim of the
fundamental rights of the people as a whole or only a section of the people and there cannot be
any right to call or enforce bandh which interfere with the fundamental freedoms of other
citizens.110
The question of constitutionality of bandhs again came for consideration before the Kerala
High Court in the case of Kerala Vyapari Vyavasayi Ekopana Samithi, Ottapalam and others v.
State of Kerala,111 in which court held that the enforcement of a hartal call by force,
intimidation, physical or mental and coercion would amount to an unconstitutional act and a
party or association or organisation that calls for a hartal has no right to enforce it by resorting
to force or intimidation.
1.2.2.4 On the Basis of Statutory Acts
Strikes become legal or illegal on the basis of objects and means of enforcing strikes. In
countries like America and England strikes are illegal on the basis of their objects but in India
breach of statutory provisions render strikes an illegal. On the basis of statutory acts strikes can
be classified as a) legal b) illegal.
1.2.2.4.1 Legal Strike
A strike is legal if it does not violate any provisions of the statute. 112 Though the right to strike
is not expressly recognized as a legal right under Industrial Disputes Act, 1947, strikes not
resorted to in contravention of the provisions of Section 22 and 23 of the said Act are
considered as legal as enunciated by Section 24 of the said Act.113
109
AIR 1998 SC 184.
110
H.K. Saharay, Labour and Industrial Law 284 (Universal Law Publishing Co. Pvt. Ltd, New Delhi, edn.
2011).
111
AIR 2000 Ker. 389.
112
Sharathh Babu and Rashmi Shetty, Social Justice and Labour Jurisprudence: Justice V.R. Krishna Iyer's
Contributions 151 (Sage Publications, India Pvt. Ltd., New Delhi, 2007).
113
M.N. Kaushika, "An Analysis of workmen‟s Right to Strike under Industrial Disputes Act, 1947" 1:1 NJLIL 16
(2018).
17
1.2.2.4.2 Illegal Strike
In America and England, there are certain objects which render the strike illegal. But in India,
strikes became illegal, not because of objects but for the breach of statutory provisions.114 Thus,
strikes in contravention of the provisions of the Industrial Dispute Act, 1947,115 the Central
Civil Services (Conduct) Rules, 1964116 and the Essential Services Maintenance Act, 1981117
are illegal. The circumstances under which strikes shall be illegal and under which they shall be
deemed to be legal are provided in section 24 of the Act.
1.2.2.5 On the Basis of Scope
On the basis of scope i.e. the number of workers participating in strike and areas covered by the
strike the strikes can be classified as a) general strike b) particular strike.
1.2.2.5.1 General Strike
It normally refers to a large-scale strike organised by the employees belonging to an industry,
region or an entire country. Since these strikes are organised on a mass basis, they create a
huge impact and often put a lot of pressure on the employers. However these strikes are not
intended against any individual employer.118 Few examples of general strikes in India are the
nation-wide strike of November, 1991, June, 1992, September, 1993, September, 1994 and
September, 1998 and recent which are organised mostly by the Central Trade Union
Federations.
1.2.2.5.2 Particular Strike
Particular strikes are limited in scope and are usually confined to a single plant or a few plants
or to a single trade or occupation.119
These are the names given to the strikes in different circumstances. Whatever the form or
method may be, it is a strike within the meaning of the Act provided it fulfills the requirement
of section 2(q) of the Industrial Disputes Act, 1947.120
However, the significance and meaning of strikes vary from place to place. It may be used as
an organising device, a means of general protest, as a political
114
115
Section 22 and 23.
116
Rule 7.
117
Sections 3 and 4.
118
Supra note 80.
119
120
Supra note 82.
18
demonstration, or as an integral part of the collective bargaining process used to induce
agreement.121
1.2.3 CAUSES OF STRIKES
There are many causes of strikes. Anything which affects the mind of the workers can induce
them to go on strike. They are now conscious of their rights. Wherever there is violation of the
rights of workers or there is unfair labour practice or unnecessary victimisation it is bound to
lead to an atmosphere of strike.122 The causes of strikes can be divided into following
categories:
1.2.3.1 Economic Causes
Economic causes include questions pertaining to wages, bonus and allowances, retrenchment
of workmen by the employer, faulty retrenchment system, leave and so on. Low wages,
irrespective of rising prices, demand for a rise in dearness allowance, intolerable working and
living conditions, issues pertaining to hours of work, etc. are some other economic causes that
provoked a number of strikes in India.123
1.2.3.1.1 Demand for Wages
In India, the remuneration paid to workers for their work is not adequate to meet their
expenses. They can neither provide for the education of their children nor they can feed them
properly. Their living conditions are deplorable. The low wages are the main reason of
discontent among the workers.124 While the price level has been increasing constantly at a
higher rate but the increase in the rate of wages could not keep pace with it. This led to a
situation where workers resort to strike for raising their rate of wages.125 Since the cost of
living is increasing, workers generally bargain for higher wages to meet the rising cost of
living index and to increase their standard of living.126
1.2.3.1.2 Dearness Allowance and Bonus
Due to high rate of inflation and rise in cost of living, the demand is made for increasing the
dearness allowance, as the high rate of inflation or dearness
121
Lewis B. Dzimbri, Industrial Relations in a Developing Society: The Case of Colonial, Independent One
Party and Multiparty Malawa 25 (Cuvillier Verlag, Germany, 2008).
122
123
M.J. Arputharaj and R. Gayatri, "A Critical Analysis on Efficacy of Mechanism to Industrial Disputes
Resolution in India" 2:8 Int.J.Karr.Aca.Rev. 331 (2014).
124
Arun Kumar, Industrial Law Vol. 2 207 (Atlantic Publishers and Distributors, New Delhi, 2003).
125
Rathnamma R, Dr. T. Rajendra Prasad, "Interpreting Industrial Disputes in India: A Study with Special
Reference to the Garment Industry" 3:11 Int.J.Humanit. Soc. Sci.Res 8 (2017).
126
19
allowance are co-related. The various trade unions in India have been demanding for
100 percent neutralisation of prices by corresponding increase in the dearness allowance.127
Another important cause of industrial disputes in India is the demand for bonus by the workers.
This has resulted from workers‟ increasing demand to share profits of the industrial units and
employer's non-acceptance of this provision.128 Though in many industries bonus is being paid
now, but the amount or percentage of bonus is a source of frequent disputes among workers
and employers.129
1.2.3.1.3 Demand for Improved Working Conditions
Industrial disputes in India has also resulted from demand for improved working conditions
such as leave, lesser hours of work, better working conditions like better safe measures, canteen
facilities etc.130 The working conditions in most of the countries are unhygienic and poor in
respect of lighting and ventilation. These unhealthy conditions makes workers discontented and
leads to strike.131
1.2.3.1.4 Demand for Re-instatement
At times the employers arbitrarily retrench many workers and this naturally is resisted by the
affected workers. Besides, other workers also feel insecure. Therefore, the workers resist such
moves. They stand united and agitate for the reinstatement of the retrenched colleagues.132
1.2.3.1.5 Modernisation of Industries
In modern industries many new and sophisticated machines are installed. These machines are
labour saving and therefore results in retrenchment of workers.133
1.2.3.2 Managerial Causes
The managerial causes includes the wrongful treatment of workers by the management, unfair
labour practices and defective recruitment and workers development policies of the
management, non recognition of the trade unions by the management, political causes etc.
127
R.N. Sharma, Industrial Sociology and Labour Problems 207 (Surjeet Publication, New Delhi, 2002).
128
129
130
131
Raj Kumar, Human Resource Management: Strategic Analysis Text and Cases 407 (I.K. International
Publishing House Pvt. Ltd., New Delhi, 2011).
132
133
Ibid.
20
1.2.3.2.1 Non Recognition of Trade Unions
Sometimes, employers refuse to recognise the trade unions. This too becomes a source of
contention between the employer and the employees. The employees may declare strike to
demand recognition of their trade unions conflict may results in strikes etc.
1.2.3.2.2 Resistance to Misconduct of Officers
Today there is sufficient awakening among the workers and they are very conscious of self-
respect. Therefore, any slight insult by officers invokes them. Such incidents many times ignite
fire of conflict and tension which takes the form of gheraos etc.134
1.2.3.2.3 Defective Recruitment and Workers Development Policies
Indian industries recruit labour through faulty systems which create many problems. Besides,
management‟s partial treatment with regard to grooming, promotion or demotion of workers
also causes dissatisfaction among workers which lead the workers to resort to strike.135
1.2.3.2.4 Insufficient and Defective leadership
The reason for some industrial disputes is also the lack of able leadership in both management
and trade unions. Inefficient managerial leaders do not care for the problems of the workers.
Due to lack of competence on the part of the supervisors and managers, neither they attempt to
improve the human and labour relations, nor they try to develop mutual understanding between
the workers and themselves.136
1.2.3.3 Political causes
These days various political parties in India fight with each other to gain sympathy and support
of workers and for this reason go out of way to support all types of agitations and even foment
discontent among them.137 All labour unions in India are connected with one or other political
party, which uses workers for its own selfish motives.138 Some important political strikes are
organised by industrial workers in India. Some strikes have occurred owing to agitations of
political parties
134
Supra note 127.
135
136
R.C. Sharma, Industrial Relations and Labour Legislation 56 (PHI Learning Private Limited, Delhi, 2016).
137
138
21
on questions like reorganisation action of states, national language, etc.139
1.2.4 IMPACT OF STRIKES
Consequences of industrial disputes are often far-reaching as they disturb the economic, social
and political life of a nation.140 In strikes besides employer and employee there is third party
involved i.e. the public.141 The economic effects are first felt by the employer and than by the
community at large and in furtherance of their aims workers also inflict economic hardships on
themselves.142 Following are the impacts of strikes:
1.2.4.1 Impact of Strikes on Workers
The workers face many difficulties during strikes. The strikes not only workers but their
families also suffer as they are not paid during strike which affect their physical and mental
health.
1.2.4.1.1 Loss of Wages
The workers may not be paid during the strike period. Thus, workers and their families
have to face financial difficulties due to such disputes.143 The workers and their family
members also suffer health loss due to mental stress resulting from loss of wages.144 The loss of
wages also increases the indebtedness among the workers.
1.2.4.1.2 Loss of Job
The prolonged strikes by the workers sometimes lead to lock-out by the employer or closure of
the industry due to industrial sickness. This results in loss of jobs of the workers and increase
unemployment and unrest among workers.
1.2.4.1.3 Victimisation by the Employers
Due to industrial disputes, the feeling of hostility develops between the employer and the
employee due to which employer lose sympathy for the workers. As a result the employer may
deny certain welfare and other facilities to the workers once the strike is over.
139
140
141
R.J. Reddy, Organisational Behaviour & Industrial Relations 89 (A.P.H. Publishing Corporation, New
Delhi, 2004).
142
Theodore K. Rabb and Robert I. Rotberg (edn.), Industrialization and Urbanization: Studies in
Interdisciplinary History 138 (Princeton University Press, New Jersey, 1981).
143
144
22
1.2.4.1.4 Injury to the Workers
Sometimes confrontation occurs between the security forces and the workers during protest.
Security forces use force like lathi charge, firing etc. to suppress the striking workers which
causes physical injuries and sometimes death of workers.
1.2.4.2 Impact of Strikes on the Employer
Employer suffers equally like that of workers during strikes as they face the output loss,
adverse effect on the quality of production, damage to property. All this effect the labour
management relations.
1.2.4.2.1 Effect on Output and Quality of Production
Strikes affect the productivity and profitability of the industrial unit. Loss of output not only
affects the industry which is directly affected by strike, but also other industries which are
dependent on the strike affected industries. The strike also affects the quality of production due
to limited interest or non-cooperation from workers during the period of strike.
1.2.4.2.2 Effect on the Goodwill of the Industry
The strikes effect the market reputation of the industry. The society loses faith in the industry.
Efficient and sincere workers may be reluctant to join the industry where strikes are common.
The rate of investment is also reduced due to strikes.
1.2.4.2.3 Bad Effect on Labour-Management Relations
Strikes affect labour-management relations as they can lead to breakdown of communication
between the employer and employees. The management's attitude changes towards the workers
which cause tension between the employer and the employees and this disturbs the smooth
working of the industrial unit.
1.2.4.2.4 Damage to Property
Sometimes strikes results into destruction of the property of the employer as the strikers may
turn violent and destroy the property of the industry. The property may also get damage due to
the confrontation of the workers with police which causes loss to the employer. The employers
also have to bear the additional expenditure for protecting the property.
1.2.4.3 Impact of Strikes on the Society
Strikes not only affect the employer and employee but the society as a whole equally suffers
from the effects of the strikes.
23
1.2.4.3.1 Impact on the Economy
Industry and economy are interrelated and interdependent. Due to strikes industrial production
is decreased, exports suffer and this affects the entire national economy.145 Strikes leads to
shortages of essential commodities which causes artificial price rise. Strikes not only harm the
industry involved but leads to all-round economic depression. The closure of one industry due
to strike leads to the reduction of demand of goods of other industries or trades. 146 If the
industry under work stoppage manufactures items that are used in the conduct of other
industries, it lessens the supply of raw materials for their production. 147
1.2.4.3.2 Hardships to Consumers
Strikes and lockouts create problem to consumers also. Due to low production of the goods
articles of their requirements are not available in time, and the prices of such articles increases
high due to black marketing activities.148
1.2.4.3.3 Threat to Social Security and Public Peace
If the tension and frustration among workers and employers takes serious form, the workers are
liable to become violent or indulge in sabotage. This may threaten the public peace and safety
and may compel the employer to take help of police force.149
1.2.4.3.4 Effect on the Government
Strikes leads to loss of revenues to the government. Lots of money and time is wasted in the
settlement of industrial disputes. It also became difficult for the government to maintain law
and order due to strikes. There is also destruction of public property during strikes for the repair
of which the government have to spend money.
1.2.4.4 Positive Impact of Strikes
Generally strikes bring with them bad effects but there also are certain impacts of strikes which
plays an important role in immediate realisation of the demands of the workers and improving
their condition of work.
145
146
Rajendra Kumar Sharma, Industrial Labour in India 259 (Atlantic Publishers and Distributers (Pvt.)
Ltd.1997).
147
S.S. Khanka, Human Resource Management 305 (S. Chand & Company Ltd., New Delhi, 2003).
148
Gurpreet Randhawa, Human Resource Management 296 (Atlantic Publishers and Distributors (P) Ltd. 2007).
149
Supra note 146.
24
1.2.4.4.1 Growth in Worker's Unity
Strikes bring a sense of co-operation among workers which results in growth of worker's
unity.150 Workers suffer not only for their own rights but also for the rights of other workers.
Thus, strikes develop the feeling of unity and the ethics to endure hardships for the rights of
fellow workers.
1.2.4.4.2 Improvement in Work Conditions and Wages
Strike increases the collective bargaining power of the workers which compels the employers
to negotiate with workers. The stoppage of work in the industries pressurise the employers to
improve the working conditions of the workers and increase their salaries.
1.2.4.4.3 Progress of Labour Unions
Success of the strikes increases the faith of workers in labour union which in turn increase the
membership of unions which strengthen the bargaining power of the labor unions and compel
the employer to accept the legitimate demands of the unions.
1.2.4.4.4 Labour Reforms
Strikes are most of the time effective in bringing about change in the working conditions of the
workers. The disruption caused to an entire society by a general strike can bring down a
government or persuade authorities to bring reforms in labour laws.151
1.3 OVERVIEW OF EXISTING LITERATURE

This research is aimed at deep review of the existing literature of the subject. Many Journals,
Newspapers, Magazines, Reports, Proceedings of the Governments, International Documents
and Websites are consulted. Some of important books and articles relating to this subject are
mentioned here.
Aggarwal, Arjun P., "Strike by Government Employees: Law and Public Policy:”152 This
article focuses on the right to strike of the government employees in India. It also discusses the
historical background of the laws which regulates the right to strike of the government
employees such as Central Civil Services (Conduct) Rules 1955, Essential Service
Maintenance Act, 1981. The
150
Supra note 148.
151
Samuel Waje Kunhiyop, African Christian Ethics 128 (World Alive Publishers, Kenya 2008).
152
Aggarwal, Arjun P., "Strike by Government Employees: Law and Public Policy" 14:3 JILI
(1972).
25
author also put forward the alternatives to strikes.
Anand, Vishal, Shashi Ranjan Kumar Jha, “Trade Union Movement in India and the
Aftermath of Liberalised Economic Policy of 1991:”153 This paper through light on the
history of trade union movement in India. It also examines the role played by the trade unions
in improving the conditions of the workers in India. It also studies the changes in the role of
the trade unions with the introduction of economic liberalisation policy of 1991.
Arnesen, Eric, (ed.), “Encyclopedia of U.S. Labor and Working-class History:”154 This
work provides information about the labour and trade unions history in U.S. from colonial era
to the present. It not only examines the well known strikes and trade unions but also the
infamous strikes and common trade unions. It is very systematically organised simple book
which is easy to use.
Babu, Sharath, and Rashmi Sethi, “Social Justice and Labour Jurisprudence:”155 This
book analyses the most important judgments delivered by Justice Iyer relating to industrial and
labour issues. The authors also examine the important aspects of industrial relations in India
and collective bargaining issues. It also contains detailed explanation of the Industrial Dispute
Act, 1947and provides a clear understanding of the linkage between labour issues and the
philosophy of the Constitution as perceived by Justice Krishna Iyer.
Blanpain, Roger, Jacques Rojot, et al., “Employee Rights and Industrial Justice:”156 This
book analyses the Laval and Viking cases. In this study 12 scholars present the challenges
faced and the impact of the Laval and Viking rulings on the Twelve Members of European
Union. It also focus on other issues covered by the ruling i.e. recognition of collective action
as fundamental freedom, cross border unity among workers and the scope of the enforcement
of this ruling by the enforcement authorities of the member states.
Brenner, Aaron, Benjamin Day, et al., “The Encyclopedia of Strikes in American
History:”157 discuss the history of strikes in the USA for understanding
153
Anand, Vishal and Shashi Ranjan Kumar Jha, “Trade Union Movement in India and the Aftermath of
Liberalised Economic Policy of 1991 16:4(1) IOSR-JBM (Apr. 2014).
154
Arnesen, Eric (ed.), Encyclopedia of U.S. Labor and Working-class History (Routledge, USA, vol.1, 2007).
155
Babu, Sharath and Rashmi Sethi, Social Justice and Labour Jurisprudence (Sage Publications, New Delhi,
2007).
156
Blanpain, Roger, Jacques Rojot, et al., Employee Rights and Industrial Justice, (Kluwer Law International,
The Netherlands, 2009).
157
Brenner, Aaron, Benjamin Day, et al., The Encyclopedia of Strikes in American History
(Routledge, New York, USA, 2015).
26
the strikes.
1.4 RESEARCH METHODOLOGY

The present research is primarily descriptive and analytical. The data has been collected from
secondary sources both print material as well as internet sources. The help of various
secondary sources like books, Statutes, Acts, Reports, Articles in law journals, law reviews,
newspapers, international documents, decisions of different Courts, First and Second Report of
National Commission on Labour etc. has been taken.
1.5 RESEARCH HYPOTHESES

 The Constitution of India does not protect the right to strike specifically.
 Other legislations of India protect the right to strike.
 Role of trade unions are politically motivated in strike.
 Indian Judiciary implicitly protects the right to strike.
1.6 OBJECTIVES OF THE STUDY

The fundamental objectives of the study are:-
 To trace the origin, historical background of strike.
 To analyse the international and regional documents relating to the right to strike.
 To evaluate the right to strike under Indian Constitution.
 To explain the laws regulating right to strike in India.
 To find out whether the government servants have right to strike in India.
 To examine the attitude of judiciary towards the right to strike.
 To evaluate the role of trade unions in achieving industrial peace.
 To investigate how far the international standards relating to right to strike are
implemented in India.
 To examine need of reforms in the existing laws relating to right to strike.
27
1.7 SIGNIFICANCE OF THE STUDY
Even though strikes are common in India but the right to strike is the least studied topic in our
country. In spite of the recommendations by the National Commission on Labour on the right
to strike no steps have been taken to reform the laws regulating strikes in India. The study of
the topic "Legal Regulation of Strikes in India: An Analysis" provides an insight into the
struggle of the working class to achieve the right to strike by throwing light on the historical
background of the right to strike. It also explains the status of the right to strike at international
level which justifies the need for giving constitutional status to right to strike in India. The
constitutional recognition of the right to strike increases the bargaining power of the workers
which in turn helps to harmonies industrial relations between employer and employees.
1.8 CHAPTER SCHEME

The Study is divided into seven chapters which are as under: Chapter 1 : Introduction
Chapter 2 : History of Legal Regulation of Strikes Chapter 3 : International Perspective
Relating to Strikes
Chapter 4 : Legislative Framework Relating to Strikes in India Chapter 5 : Strikes and Role of
Trade Unions
Chapter 6 : Role of Judiciary in Regulation of Strikes Chapter 7 : Conclusion and Suggestions
Chapter 1: Introduction
Chapter one deals with introduction of the research work. Meaning and definitions of strike
given by Black‟s Law Dictionary which provides „strike‟ as “an organised cessation or
slowdown of work by employees to compel the employer to meet the employees demands; a
concerted refusal by employees to work for their employer, or to work at their customary rate
of speed, until the employer grants the concessions that they seek.” and similar other contours
of strike are also provided by other dictionaries like Oxford, The Encyclopedia Britannica,
Encyclopedia of Social Sciences etc. and different writers. The interpretation of definition of
strike by the Court of United States of America in the case of Uden v. Schaefer,197 regulation
of
110 Wash 391, Cited in M. N. Kaushika "An Analysis of workmen‟s Right to Strike under Industrial
197
Disputes Act, 1947" 1:1 NJLIL 14 (2018).
28
strikes in England under the Trade Disputes Act, 1929 and the Trade Union Act, 1927, the
Industrial Relations Act, 1971 and International Labour Organisation are also discussed. The
right to strike is protected under the Industrial Disputes Act, 1947,198 the Trade Unions Act,
1926, the Essential Services Maintenance Act, 1968,199 in India. It also covers various types of
strikes on the basis of initiation , technique, purpose, statutory acts, scope and different causes
of strikes like economic, managerial and political are also discussed. The impacts of strikes on
workers, employers and society are also part of this chapter. Researcher also reviewed previous
literature available on this concept with the help of different books, articles and international
documents to study the topic. In this chapter significance and objectives of the study, research
hypotheses, research methodology adopted, chapter scheme of the thesis etc are also discussed.
Chapter 2: History of Legal Regulation of Strikes
This chapter covers historical background of regulation of strikes in different countries. The
forms of strikes have changed with passage of time. Strikes were considered illegal and laws
were made to suppress the strikes and trade unions. Workers achieved this right after great
struggle and sacrifices. Most of the western countries partially legalised striking in the late 19 th
or early 20th centuries. Indian labour legislations are mainly based on common law due to
colonial rule. Thus, the law regulating strikes in India was also influenced by the British law.
Moreover the courts in our country rely mostly on English and American law precedes and
there is need to discuss the history of regulation of strikes in these countries. In United
Kingdom strikes were considered illegal and laws were made to suppress the strikes and trade
unions till the passing of the Trade Unions Act, 1871, which recognised the trade unions.
The immunity to trade unions from civil liability was provided by the Trade Dispute Act, 1906.
But later on restrictions were imposed by the Industrial Relations Act, 1971 on strikes which
was repealed by Trade Unions Labour Relations Act, 1974 and further five legislations were
passed between 1979 and 1990. The Trade Union and Labour Relations (Consolidation) Act
(TULRCA), 1992 was passed to restrict the influence of trade unions by consolidating the
previous legislations200 which regulated strikes.
198
Section 2(q).
199
Section 2(b).
200
The Employment Acts, 1980, 1982, 1988, 1989, The Trade Union and Labour Relations Act, 1974 and The
Trade Unions Act, 1984.
29
Strikes were considered as illegal in the past which later on were accepted as necessary evil and
afterwards as an important element of democracy in America. During 19th century the English
common law of conspiracy and injunctions were applied in America to take action against
strikes. Employers used the doctrine of yellow-dog contracts to obstruct the employees from
declaring strikes which were declared illegal under the Norris La Guardia Act, 1932. The right
of workers to organise was recognised by the National Labor Relations Act, 1935 (also known
as Wagner Act, 1935). The Taft Harley Act, 1947 (also known as the Labor Management
Relations Act) was passed to suppress the power and activities of labour unions by amending
the Wagner Act, 1935.
This chapter also discusses how strikes were regulated by judicial decisions and legislature
historically in communist countries such as in USSR before 1991, China. Strikes were less
common in communist countries as compared to capitalist countries as government responded
quickly to labour strikes with concessive as well as repressive measures being the de facto
employer and directly involved in the industrial conflicts.
In India laws relating strikes developed under the colonial rule and were mainly based on
English laws. These laws were enacted by the British government to protect their own
interests. First law regulating strikes was the Trade Unions Act, 1926 which put restrictions on
strikes in public utility services. To deal with the anti-British political atmosphere in the
country the British government issued notifications and ordinances201 both at central and
provincial level to restrain strikes and lockouts. The most important legislation with regard to
labour relation i.e. The Industrial Dispute Act in 1947 was enacted which embodied the
essential principles of Rule 81A of the Defence of India Act, 1942 relating to the strikes. The
ban on strikes and demonstrations by government employees was imposed by the amendment
of 1957 in the Central Civil Services (Conduct) Rules, 1955 which were again amended in
1964. The strikes in essential services were regulated by the Essential Services Maintenance
ordinance which was promulgated for the first time in 1957 again in 1960 and 1968. The
Essential Services and Maintenance Act, 1981 was passed which was made applicable for a
period of nine years which lapsed in
The National Service (Technical Personnel) Ordinance, 1940; The Essential Services (Maintenance) Ordinance,
201
1941, r. 81A; The Defence of India Rules, 1942, r.56A and The Defence of India Rules, 1943.
30
1990. This Act was again re-enacted by the government in 1992 to suppress the protests against
the economic reforms of 1992. Now the Essential Services Maintenance Act 1968 is
applicable, which is central law and many states have enacted their own essential service
maintenance Acts with minor changes as per the freedom granted by the Central government.
Chapter 3: International Perspective Relating to Strikes
Chapter third deals with the position of right to strikes at international level and highlights the
initiatives of international institutions for recognition and regulation of strikes. It includes
initiatives of International Labour Organisation, United Nations Organisation, Council of
Europe, and European Union. International Labour Organisation protects the right to strike
implicitly under two Conventions
i.e. Convention No. 87202 and 98203 which deals with freedom of association. United Nations
regulates the right to strike through its legal instruments i.e. Universal Declaration of Human
Rights, International Covenant on Economic, Social and Cultural Rights, 1966 and
International Covenant on Civil and Political Rights, 1966. The Council of Europe has two key
instruments which deals with the labour ethics i.e. European Convention on Human Rights and
Fundamental Freedoms (ECHR) and European Social Charter (ESC). Both recognise the
freedom of association but the right to strike is expressly protected by European Social Charter.
The right to strike was not recognised under the European Union. It was proposed to be
incorporated into European Union Law when the EU proposed for the incorporation of the
Community Charter Fundamental Social Rights of Workers in EU in 1989. But it was not
incorporated due to United Kingdom's refusal to sign the declaration. The Lisbon Treaty in
2007 adopted the Charter of Fundamental Rights, which was also proposed in 2000 at Nice
Conference, in which right to strike was protected. The European Court of Justice which is one
of the Courts of European Community had already recognised the right to strike as a
fundamental right. The Court established the status of right to strike in two cases i.e. Laval204
and Viking205
202
Convention No. 87 on Freedom of Association and Protection of the Right to Organize, 1948.
203
Convention No. 98 on the Application of the Principles of the Right to Organize and to Bargain Collectively,
1949.
204
Laval Un Partneri Ltd v. Svenska Byggnadsarbetareförbundet, (2007) C-341/05, para. 102, available at:
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri =CELEX:62005CJ0 341_SUM&from=FI (last visited
on May 10, 2019).
205
International Transport Workers Federation v. Viking Line ABP, (2007) C-438/05, available at:
https://www.etui.org/content/download/2237/24592/file/zahn3.pdf (last visited on May 7, 2019).
31
after which the right to strike progressed. The status of the right to strike in the different
countries of the world is also discussed by dividing it into different categories. In some
countries like France, Italy, South Africa, right to strike is expressly included in the
Constitution, and in some countries like Germany, Switzerland, India, Canada, USA, it is
implicit. In some countries like Germany, Greece, Poland, Czech Republic, Slovakia and
Sweden, this right can be exercised by trade unions, and in some countries like Belgium, Italy,
France and Spain, it is an individual right and in some countries like Argentina, Ecuador,
Estonia, Hungary and Kazakhstan, it can be exercised both by workers and trade unions. There
are some countries like Belgium, Denmark, France, Germany, Greece, Ireland, Israel, Italy,
Luxembourg, Netherlands and Columbia, where there is no right to strike but it developed
through case laws. Some countries included the right to strike in their legal framework. There
are also some countries where there is no right to strike.
Chapter 4: Legislative Framework Relating to Strikes in India
This chapter elaborates the position of strikes under the Indian Constitution, regulation of
strikes under other Indian laws, such as the Industrial Disputes Act, 1947, The Trade Unions
Act, 1926, The Essential Services Maintenance Act, 1968, the Essential Services Maintenance
Act, 1981, The Central Civil Service (Conduct) Rules, 1964. The Indian Constitution does not
specifically mention the right to strike in fundamental rights but impliedly cover it under the
right to form associations and unions.206 In spite of being a member of International Labour
Organisation India has not ratified the Conventions207 which protect the right to strike
implicitly. The most important law regulating strikes in India is the Industrial Disputes Act,
1947 which does not favour or oppose the right to strike but it provides for the condition which
the parties have to comply in case they resort to strikes. 208 The workers enjoy a limited right to
strike as they have to fulfill certain requirements before resorting to strike failing which they
can be penalised for illegal strikes.209 The Trade Unions Act, 1926 also provides for a limited
right to strike. It provides immunity to the workmen from civil210 and criminal conspiracy.211
The Essential Services Maintenance Act, 1981 gives power to the Central Government to
prohibit strikes in
206
Supra note 2.
207
Supra note 6.
208
Supra note 18, ss. 22 and 23.
209
Id., ss. 24 and 25.
210
Supra note 20.
211
Id., s. 18.
32
essential services if it is necessary to do so in public interest. 212 Strikes are not prohibited in
every essential service. The Act was made applicable for a period of nine years which lapsed in
1990. The Essential Services Maintenance Act was again re-enacted by the government in 1992
to suppress the protests against the economic reforms of 1992. It is central law but the state
government's can enact their own law as per the freedom granted by the Central Government. It
means execution of this Act depends on the discretion of the State Governments. Many States
have enacted their own Essential Service Maintenance Acts with minor changes.213 The Central
Civil Service (Conduct), Rules 1964 provides for the rules, which prohibits government
servants to declare strikes. These Rules in India states the activities in which civil servants
should not be involved to ensure highest ethical standards.
Chapter 5: Strikes and Role of Trade Unions
Chapter five of the research work deals with role of trade union in protection of interests of
labour class including right to strike. The trade unions give collective identity to the workers
and the power to bargain collectively. Most of the strikes are undertaken by trade unions as a
last resort during collective bargaining. This chapter also discusses origin and growth of trade
unions in India, before and post independence, during pre-liberalisation period 1971 to 1991
and during the post liberalisation period (since 1991). It also discusses the recommendations of
First Report of National Commission on Labour, 1969 and Second Report of National
Commission on Labour, 2002 regarding the role of trade unions. The chapter also discuss the
role of trade unions in collective bargaining for strike which is an powerful weapon recognised
by almost all democratic nations of the world. It also highlights the effect of association of
trade unions with political parties. The trade unions are tied up with many political parties
having different ideologies which in turn affect the working of trade unions. The trade unions
also enjoy the immunities available to them from civil and criminal conspiracies under the
Trade Unions Act, 1926. The researcher also examined the strikes in industries by trade
unions that
212
The Essential Services Maintenance Act, 1981, s. 3
213
The Andhra Pradesh Essential Services Maintenance Act, 1971; The Gujarat Essential Services Maintenance
Act, 1972; The Assam Essential Services Maintenance Act, 1980; The Himachal Essential Services Maintenance
Act, 1973; The Haryana Essential Services Maintenance Act, 1974; The Kerala Essential Services Maintenance
Act, 1994; The Karnataka Essential Services Maintenance Act, 1994; The Maharashtra Essential Services
Maintenance Act, 2012; The Madhya Pradesh Essential Services Maintenance Act, 1979; The Rajasthan Essential
Services Maintenance Act, 1970 etc.
43
turned violent due to adoption of aggressive collective bargaining tactics by the trade union
during strikes. The strikes by trade unions against labour reforms by the Central Government
are also covered in this chapter.
Chapter 6: Role of Judiciary in Regulation of Strikes
In this chapter judicial approach towards right to strike in India is also highlighted. Judiciary
plays a significant role in providing social justice to the workers. Indian judiciary affirmed
several times that strike is an essential and inevitable safeguard of the workers. After
independence, Indian judiciary not directly but through its judgments gave certain protections
to workers so that they can adjust to the new environment. This attitude kept on changing with
time. This chapter is divided into five phases to examine changing attitude of judiciary towards
the right to strike since independence to till date. Strike was recognised as the legal right of the
workers during the phase I i.e. after independence.214 During the phase II right to strike was
affirmed as a legal right but courts denied the fundamental status to the right to strike under the
right to association.215 During the phase III the courts started adding conditions which weaken
the power of the weapon of the strike.216 The courts became more and more intolerant to the
destructive effects of demonstrations, bandhs and strikes during phase IV.217 During the phase
V the judiciary suggested that workmen should work more instead of going on strikes. 218 This
shows the changing attitude of the judiciary towards strikes. The recent judgment of the
Supreme Court of India in the case of T.K.Rangarajan v. Govt. of Tamil Nadu and others219 is
also critically analysed in this chapter in which the Court denied the right to strike to the
government employees.
Chapter 7: Conclusion and Suggestions
The last chapter of the thesis deals with conclusion and suggestions put forward by the
researcher. Right to strike is an essential right of the workers. The
214
Punjab National Bank Ltd. v. Its Workmen, (1952) II 648 (LAT); Swadeshi Industries Ltd. v. It's Workmen,
(1960) II LLJ 78 (SC); Chandramalai Tea Estate, Ernakulam v. It’s Workmen, AIR 1960 SC 219.
215
All India Bank Employees Association v. National Industrial Tribunal and others, AIR 1962 SC 171 and
Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166.
216
Radhey Shyam v. Post Master General, AIR 1965 SC 311; Management of the Fertiliser Corporation of India
Ltd. v. Workmen, AIR 1970 SC 867; Crompton Greaves v. The workmen, AIR 1978 SC 1489.
217
Bharat Kumar K. Palicha v. State of Kerela, AIR 1997 Ker 291 and Communist Party of India
(M) v. Bharat Kumar, AIR 1998 SC 184.
218
Dangs Zila Panchayat Karamchari Mandal, Class III, Dangs v. State of Gujarat and another,
2002, Lab.I.C.2568 (Guj); Harish Uppal v. Union of India, AIR 2003 SC 739.
219
Supra note 10.
42
working class has indisputably earned the right to strike after a long struggle and sacrifice. The
rate of occurrence and the intensity of the strikes can be reduced but it is not possible to
suppress the strikes completely. The legislation can prescribe the conditions to be fulfilled by
the workers before resorting to strikes but putting a complete ban on the exercise of this right is
not justified. Recognition of right to strike does not mean adopting this right on each and every
occasion. There will be effective collective bargaining and the industrial jurisprudence of India
will enter a new era if the Constitutional protection is granted to workers right to strike by
declaring it as a fundamental right. It may be strongly argued that right to form unions carries
with it right to strike as a concomitant right which guarantee that such union shall achieve the
object for which they are formed. If these concomitant rights were not conceded, the right
guaranteed to form unions would be an idle right. The Rangarajan case simply ignores statutory
provisions in the Industrial Dispute Act, 1947 and the Trade Unions Act, 1926 and an equal
number of case laws lay down by larger benches that have recognised the right to strike. It
also failed to consider International Covenants that pave the way for this right as a basic tenet
of international labour standards.
Finally, such measures should be taken into account and relevant reforms should be made in
legislation regarding right to strike. In a democratic society like ours it is not possible to
completely rule out the right to strike, but this right must be used as a last resort when all other
remedies are used. If this right is taken away completely from the workers then it may force
them to adopt other forms of protest, which may be injurious to labour-management relations.
45
44

Strike Chapter One

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Strike Chapter One

Uploaded by

Copyright:

Available Formats

CHAPTER – 1

1.2 MEANING AND CONCEPT OF STRIKE

1.3 OVERVIEW OF EXISTING LITERATURE

1.4 RESEARCH METHODOLOGY

1.5 RESEARCH HYPOTHESES

1.6 OBJECTIVES OF THE STUDY

1.8 CHAPTER SCHEME

Disputes Act, 1947" 1:1 NJLIL 14 (2018).

You might also like