LEGALITY OF STRIKES AND LOCKOUTS

406 Labour and Industrial Law

Submitted By
Sohail Mahomed
Parvez Pagarkar

UID: SM0120058

Year & Semester

2nd Year and IV Semester

National Law University and Judicial Academy, Assam

Guwahati
 Table of Contents
Table of Contents ......................................................................................................................i
Table of Statutes ..................................................................................................................... ii
Table of Abbreviation ............................................................................................................ ii
INTRODUCTION ................................................................................................................... 1
1.1 Literature Review ............................................................................................................ 2
1.2 Aim .................................................................................................................................. 3
1.3 Objectives ........................................................................................................................ 3
1.4 Research Questions .......................................................................................................... 3
1.5 Research Methodology .................................................................................................... 4
STRIKES UNDER THE INDUSTRIAL DISPUTES ACT, 1947 ....................................... 5
2.1 Is strike a fundamental right? .......................................................................................... 6
2.2 Implications of Strike ...................................................................................................... 6
2.3 Types of Strikes ............................................................................................................... 8
LOCKOUT UNDER THE INDUSTRIAL DISPUTES ACT, 1947 .................................. 10
3.1 Implications of Lockout................................................................................................. 11
STRIKES AND LOCKOUTS: LIMITATION ................................................................... 13
4.1 General Prohibition of Strikes and Lockouts ................................................................ 13
4.2 Prohibition of Strikes and Lockouts in Public Utilities ................................................. 14
4.3 Illegal strikes and Lockouts ........................................................................................... 15
4.4 Strikes and Lockouts treated at par ................................................................................ 16
THE APPROACH OF JUDICIARY IN THE CASES OF STRIKES AND
LOCKOUTS .......................................................................................................................... 17
Conclusion .............................................................................................................................. 20

Bibliography ........................................................................................................................ iv
Table of Cases
1. B.R. Singh v. Union of India
2. Bharat Sugar Mills Ltd. v. Jai Singh
3. Bhaskaran v. Sub-Divisional Officer
4. Chemical and Fibres of India Ltd. v. D.G. Bhoir

i
 5. Crompton Greaves Ltd. v. Workmen
6. G.E.C (Pvt.) Ltd. v. The Labour Court, Allahabad
7. Gujrat Steel Tubes v. Gujarat Steel Tubes Mazdoor Sabha
8. India General Navigation and Railway Co. Ltd. v. Workmen
9. Iron and Metal Traders Pvt. Ltd., Bombay v. M.S. Haskiel & Ors,
10. Kambalingam v. Indian Metallurgical Corporation, Madras
11. Krishna Sugar Mills v. State of U.P.
12. Lord Krishna Sugar Mills Ltd., Saharanpur v. State of U.P.
13. M/s Burn & Co. Ltd. v. Their Workmen
14. Management of Charukulam Tea Estate (P) Ltd. v. Workmen
15. Mysore Machinery Manufacturers v. State
16. North Brook Jute Co. Ltd. v. Their Workmen
17. Piparaich Sugar Mills Ltd. v. Their Workmen
18. Punjab National Bank v. All India Punjab National Bank Employees' Federation
19. Ramnagar Cane and Sugar Co. Ltd. v. Jatin Chakravarty
20. Sasa Musa Sugar Works Pvt. Ltd. v. Shobrati Khan & Ors.
21. Shri Ramchandra Spinning Mills v. State of Madras
22. T.K. Rangarajan v. Government of Tamil Nadu
23. The Management of Chandramalai Estate v. Workmen
24. TISCO Ltd v. Workmen
25. Workmen v. Motor Industries Co. Ltd

Table of Statutes
1947- The Industrial Disputes Act.

1950- The Constitution of India.

Table of Abbreviation
1. & And
2. AIR All India Reporter
3. Anr. Another
4. Co. Company
5. ed. Edition
6. etc. Et cetera
7. ID Industrial Disputes

ii
8. IJMH International Journal of Management and Humanities.
9. Ker. Kerala
10. LLJ Labour Law Journal
11. Ltd. Limited
12. Mad. Madras
13. Mys. Mysore
14. Ors. Others
15. Pvt. Private
16. SC Supreme Court
17. SCC Supreme Court Cases
18. SCR Supreme Court Reporter
19. Sec. Section
20. U.P. Uttar Pradesh
21. v. Versus

iii
 CHAPTER-1
INTRODUCTION
Employer and employees have always been considered as two primary support system in any
industry. The industry runs when these two primary support systems harmonize with each
other. In any case, in certain occasions there are conflicts of interest among employer and
employee. These conflicts affected the working environment of the industry and as a result it
was important to determine the contention among the employer and employee. Since the
workplace is influenced by these conflicts. Assuming that we provide a positive and healthy
environment then it will give the advantage to both the employer as well as the employee. Strike
is utilized as a weapon by the employees and lockout is utilized as weapon by employers when
the conflict among them does not seem to be resolved. Strike and lockout are utilized in
extremely critical situations and there exists no hope for settling the dispute.

Strike and lockout remain to be two powerful weapons which exists in the hands of the
employees and the employers. Strike connotes the suspension or stopping of work by the
employees and in the case of lockout the employer forces his employees to acknowledge his
terms and conditions by the way of closing down or shutting the industry. Strike is perceived
as an ordinary right which has social significance to the employee class to put forward their
grievances and settle the industrial dispute. When these weapons are used in a skillful manner
it can help either of the parties to force the counter party in acknowledging its demand or at
least reach some common ground. Although, using these weapons recklessly can end-up risking
the unnecessary halt of work which in turn can hurt both the parties badly and create even worse
tensions, frictions and violations of law and order. When we look at it from the common man’s
perspective, these weapons can also lead to halting of the country’s economic development.
Developing nation like India is not in a position to endure frequent strikes or lockouts for pity
reasons. So, to counter such unnecessary utilization of these works, the Industrial Disputes Act,
1947 was enacted in an attempt to regulate and restrict such unnecessary strikes and lockouts
to make sure that neither the employees nor employers may hold the country to emancipate.

This research project attempts to have a look on the various implications of strikes and lockouts
on the related stakeholders in the industrial setup that is, the employer, the union and the
government. A practical perspective on strikes and lockouts is given which highlights that the
power shifts from employers to employees when a strike is declared and the other way round

1
when a lockout is declared. The first chapter deals with the aims, objectives, scope and limitation
of the study. The second chapter of the project deals with the concept of strike under the Industrial
Disputes Act, 1947. This chapter further explains whether the right to strike is a fundamental right
or not, the implications of strikes over the union, employer and the government and political setup.
This chapter also discusses the kinds of strike. Chapter third of the project deals with the concept
of lockouts. This chapter further discusses the implications of lockouts on the employees and the
government and political setup. The fourth chapter of the project contains the limitations within the
strikes and lockouts. This chapter also discusses the general prohibition of strikes and lockouts,
prohibition of strikes and lockouts in public utility, illegal strikes and the similarities between the
strikes and lockouts. The last chapter of the project contains judicial pronouncements that has been
given with respect to strikes and lockouts.

1.1 Literature Review

The researcher has referred the book by S.N. Mishra1. The author in this book has laid out the
concept of strikes and lockouts in a detailed manner and the project topic dealt with by the
researcher has been covered under this concept. The author provides ample information on the
topic and also delineates the concept of strikes and lockouts in a descriptive way. In addition
to this, he has further helped in explaining the differences between strikes and lockouts under
the Industrial Disputes Act, 1947. Various examples have also been illustrated in this book by
the author, which have helped the researcher to grasp the concept easily. Apart from that, the
author has also provided various landmark judgments with regards to strikes and lockouts that
have been pronounced by the Supreme Court of India and various High Courts in India which
the researcher has cited in the project.

Apart from the above-mentioned book, the researcher has also referred to the book by P.L.
Malik2. The author has highlighted the principle underlying strikes and lockouts in this book.
The author further provides information about the conditions underlying strikes and lockouts.
The author has also explained the distinction between strikes and lockouts in detail along with
various judgments. Apart from this, the author has also analyzed various judgments concerning
strikes and lockouts which the researcher has incorporated in the projects.

1
S.N. MISHRA, LABOUR & INDUSTRIAL LAWS (29th ed. 2019).

2
2
2 SUMEET MALIK, P.L. MALIK, INDUSTRIAL LAW (25th ed. 2020).
Apart from that, the researcher has referred to a research paper by Bushan Tilak Kaul titled
‘Strikes’ and ‘Lockouts’ in India: Judicial Perspectives 1 . This paper provides the legal
definition of strikes and lockouts under the Industrial Disputes act, 1947. Apart from that this
paper also gives an idea about the effects of strikes on employment and the punishment for
illegal strikes and lockouts. The liability of union workers participating in the strike and
lockouts has also been dealt with in the paper. Further, many judgments from the Supreme
Court of India related to strikes and lockouts have also been analyzed in the paper which has
been incorporated by the researcher in the project.

1.2 Aim
The aim of this project is to do a comparative analysis between strikes and lockouts in reference
to the Industrial Disputes Act, 1947 and to further analyze it in the light of the judicial
pronouncements.

1.3 Objectives
To achieve the aim the researcher has laid down the following objectives:

1. To discuss the concept of strike provided under the Industrial Disputes Act, 1947.
2. To discuss the concept of lockouts provided under the Industrial Disputes Act, 1947.
3. To comparatively study and analyze the concept of strikes and lockouts in the light of
judicial pronouncements.

1.4 Research Questions

Following are the research questions which the researcher will try to answer through this
research Project:

1. What is the concept of strike under the Industrial Disputes act, 1947?
2. What is the concept of lockouts under the Industrial Disputes act, 1947?
3. What are the similarities and differences between the concepts of strikes and lockouts
when analyzed under the light of judicial pronouncements?

1
Bushan Tilak Kaul, ‘Strikes’ and ‘Lockouts’ in India: Judicial Perspectives, SCC ONLINE WEB EDITION,
https://www.scconline.com/webedition?gclid=CjwKCAiA4rGCBhAQEiwAelVtiwKYPFVT5YjkXiWz0W_Tui
XCl2EX5MCpUnpxK2BJhyzTYhhkCE5EzBoC_N8QAvD_BwE .
3
1.5 Research Methodology
Approach to research
In this project, the researcher has adopted Doctrinal type of research. Doctrinal research is a
research in which secondary sources are used and it is essentially a library-based study, which
means that the materials collected by the researcher may be available in libraries, archives and
other data bases. The study is descriptive in nature. The researcher has used computer
laboratory to get important data related to this topic. Books, journals, articles, were used while
making this project. Help from various websites were also taken.

Sources of Data Collection

Data has been collected from secondary sources like web sources. No primary sources like
survey data or field data were collected by the researcher.

Mode of Citation
The mode of citation used by the researcher in this project is the 20th edition of Bluebook
citation.

4
 CHAPTER-2
STRIKES UNDER THE INDUSTRIAL DISPUTES ACT, 1947
The right to strike by workers/employees is a universally recognized weapon accessible to them
to redress their disputes in lined with the employer/management and to influence them to
acknowledge their demands. In our regular lives, we often come across news related to strikes
done by various workers union in order to get their demands fulfilled such as better working
conditions, wages, benefits, holidays, and so forth, and these demands are accepted by their
management.

Strike is a significant part of the process of bargaining as it brings upon the power of economic
bargaining of both sides and in result both the parties are forced to understand, realize and
evaluate the importance of contribution made by either side. As the strike continues, both the
sides are bound to undergo losses, the employees lose their savings and the employers suffers
loses due to the production halt.2 This financial pressure ultimately leads to bargaining resulting
in offers and counter offers finally leading to agreement and compromises. Regardless of
occurrence of a strike, it still poses a lot of influence on the bargaining process as the aftereffect
of a strike would often leads to a compromise between parties in order to avoid the hardships
that a strike would cause. In order to reach a common agreement, the process of collective
bargaining is utilized and strike remain an integral part of the process.

Strikes as characterized in the Industrial Disputes Act, 1947 as an essential element in the Act
(hereinafter alluded to as the 1D Act). Strikes have been defined in Section 2(q) of the Act as
follows:

"Strike means a cessation of work by a body of persons employed in any industry acting in
combination or a concerted refusal or a refusal under a common understanding of any number
of persons who are or have been so employed to continue to work or to accept employment.”5

2
M.R. FREELAND & P.L. DAVIES, KAHN-FREUND’S LABOUR AND THE LAW, 267 (3rd ed., 1983). 5

Sec. 2(q) of the Industrial Disputes Act, 1947.

5
Thus, in simple words strike implies the suspension of work by an assortment of workmen who
are employed in an industry in order to put forward their demands. From this definition, the
essential elements of a strike can be stated as follows3:

1. The strike must be in an establishment which falls under the definition of industry as
given in Section 2(q) of the ID Act.
2. There should be a relationship of employer-employee between the employer and the
striking workmen.
3. There should be a cessation of the work by a body of persons, or a refusal to continue
to work or to accept employment.
4. The cessation of work must be accompanied by a concerted action for the enforcement
of industrial demand.

2.1 Is strike a fundamental right?

In spite of the fact that right to form union and right to freedom of speech and expression are
ensured under the Constitution under Article 19(1)(c) and Article 19(1)(a) respectively, the
right to strike is not derived out of it.4 Although, peaceful demonstrations are allowed. In the
case of T.K. Rangarajan v. Government of Tamil Nadu5 it was held by the Supreme Court that
“the right to strike is not a fundamental right. Further, it is not even a legal or statutory right.”
A similar proposition had been recognized in the case of B.R. Singh v. Union of India9. In this
case, it was held by the Supreme Court that “the strike is a form of demonstration. Though the right
to strike or right to demonstrate is not a fundamental right, it is recognized as a mode of redress for
resolving the grievances of the workers. Though this right has been recognized by almost all
democratic countries but it is not an absolute right.”

2.2 Implications of Strike

 Implication of strike on the union

3
S.N. MISHRA, LABOUR & INDUSTRIAL LAWS, 73 (29th ed., 2019).
4
Bushan Tilak Kaul, ‘Strikes’ and ‘Lockouts’ in India: Judicial Perspectives, SCC ONLINE WEB EDITION, (May
10, 2021, 10:15 AM),
https://www.scconline.com/webedition?gclid=CjwKCAiA4rGCBhAQEiwAelVtiwKYPFVT5YjkXiWz0W_Tu
i XCl2EX5MCpUnpxK2BJhyzTYhhkCE5EzBoC_N8QAvD_BwE .
5
T.K. Rangarajan v. Government of Tamil Nadu, AIR 2003 SC 3032. 9
B.R. Singh v. Union of India, 1989 SCR Supl. (1) 257.

6
Following are the major implications of strike on a union:

i. Positive Implications
A strike flags the transfer of powers from the employer to the body of employees while the
employer has a right to employ and retrench worker if there is a declaration of a strike, the right
to not go to the work rests with the union. Such transfer of right implies higher bargaining
power for the union.

Additionally, a strike is utilized by the union in order to unite the member and convey a solid
signal to the management. In such a situation, strike additionally turns into a powerful tool for
the association to regain any lost support among the workmen.

ii. Negative Implication

The most immediate effect of a strike on the workmen is the non-payment of wages while a
strike is going on. As clarified before, the wages might be paid sometime in the future just if
the strike is justified and lawful. Nonetheless, till the time the strike goes on, the workmen have
to survive without pay.

Subsequently, as the strike time keeps extending, the bargaining power of the union also starts
decreasing and might go to levels lower than the pre-strike time frame.

 Implication of strike on the Employer

Strikes straightforwardly influence the bottom line of an industry. During the initial timeframe
of the strike the union’s bargaining power is very high and the employer’s requirement to
compromise is also high. The monetary implications of each extra day of strike are tremendous
and there is immanence pressure on the management to bring an end to the strike. Although,
such an end would usually result in some extra financial burden on the management. Hence,
from the employer’s perspective, a strike is usually a lose-lose situation.6

 Implication of strike on the government and political setup

Strikes have an enormous implication on the government and also on the political setup
prevalent in the area of strike. The political parties utilize a strike in order to set an emotional

6
Arun Kumar, Strikes and Lockouts-A Contemporary Analysis, LEGAL SERVICE INDIA, (May 11, 2021, 9:40
PM), http://www.legalserviceindia.com/legal/article-2083-strikes-and-lockouts-a-contemporary-analysis.html.

7
chord 7 with the workmen in order to keep-up or upgrade their vote bank. This acts as an
additional burden on the government which needs to ensure that both the management and
workmen are satisfied.

2.3 Types of Strikes

The various kinds of strikes can be understood as follows8:

i. General Strike: It is one of kinds of strike. Here the workmen come together for a
common cause and suspend the work which deprives the employer of the labour which is
required to run

the factory. An example of a general strike is token strike, it is a strike for a day, few hours or
any short duration in order to draw the employer’s attention by demonstrating the workmen’s
solidarity and cooperation. General strike goes on for an extended period and is usually resorted
to when the object of the employees is not achieved by other means which includes a token
strike which usually precedes a general strike. In the case of North Brook Jute Co. Ltd. v. Their
Workmen9 it was held by the court that “when a rationalization scheme was introduced contrary
to Section 33 of the ID Act, then the refusal to act according to that scheme would not constitute
a strike”.

ii. Stay-in Strike: It is a form of strike where the workmen report to their duties and occupy
the premises but do not carry on the work. So, the employer does not need to employ other
workers to carry on the business. Although, it becomes a criminal offence when the dismissed
employees stay on the premises and refuse to leave. This kind of strike is also as tool-down or
pen-down strike. In such a strike, workers/strikers do not touch tools, put down pens in case of
office workers and do not teach in case of teachers. In the case of Punjab National Bank v. All
India Punjab National Bank Employees' Federation10 it was held by the court that “a pen down
strike would be covered within Section 2(q) because here the workmen do enter the premises
but refuse to take on their usual work, and refusal to continue to work as a part of a common
understanding would constitute a strike”. Also, in the case of Mysore Machinery Manufacturers

7
Ibid.
8
Shrikant Malegaonkar, Types of Strikes Regarding Industrial Disputes in India, 4 IJMH, 55, 62 (2019).
9
North Brook Jute Co. Ltd. v. Their Workmen, 1951 1 LLJ 145.
10
Punjab National Bank v. All India Punjab National Bank Employees' Federation, AIR. 1960 SC 16. 15
Mysore Machinery Manufacturers v. State, AIR 1966 Mys. 51.

8
v. State15, it was held that “where dismissed workmen were staying on premises and refused to
leave them, did not amount to strike but an offence of criminal trespass.”

Following are not considered as strikes under the purview of Section 2(q)[3] of the ID Act,
194711:

i. Sympathetic Strike: A sympathetic strike declared in order to support and show

sympathy to other striking workmen in order to encourage and extend moral support to such
striking workmen. Such sympathizers who resort to such strike does not have any demand or
grievance of their own. In the case of Kambalingam v. Indian Metallurgical Corporation,
Madras12, 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
employment of

other workers in service under other managements, such absence cannot be held to be a strike
as the essential elements of the intention to use the strike against management is absent”.

ii. Go-slow Strike: In this type of strike, the employees do come to the workplace, also
they do not suspend the work but they slow down the peace of work resulting in slower
production and causing loss to the employer. It cannot be considered as a strike as per the Act
but it is a misconduct insidious in nature as hence cannot be countenanced. 13 It is also known
as slowdown strike. In the case of Bharat Sugar Mills Ltd. v. Jai Singh14 where it was held by
the Supreme Court that “work to rule is where the workmen circumvent the provisions of law
governing their service slow is a dishonest practice. conditions thus slowing down the speed of
the work and causing inconvenience to the public Since there is no stoppage of work, it is not
covered within Section 2(q)”. Also, in the case of Sasa Musa Sugar Works Pvt. Ltd. v. Shobrati
Khan & Ors.15, it was held by the Supreme Court that “go-slow strike is not a “strike” within the
meaning of the term in the Act, but is serious misconduct which is insidious in its nature and cannot
be countenanced.” iii. Hunger Strike: In this type of strike a group of workmen resort to fasting

11
MISHRA, supra note 6, at 74.
12
Kambalingam v. Indian Metallurgical Corporation, Madras, 1964-I LLJ 81.
13
Vaishali D, Types of Industrial Disputes: 7 Major Types, ECONOMICS DISCUSSION, (May 11, 2021, 8:16 PM),
https://www.economicsdiscussion.net/industrial-disputes-2/types-of-industrial-disputes-7-major-types/31632.
14
Bharat Sugar Mills Ltd. v. Jai Singh, (1961)2 LLJ 644.
15
Sasa Musa Sugar Works Pvt. Ltd. v. Shobrati Khan & Ors., AIR 1959 SC 923. 21
Piparaich Sugar Mills Ltd. v. Their Workmen, (1964) LLJ 81.

9
on or near the place of work or the residence of the employer with a view to coerce the employer
to accept their demands. In the case of Piparaich Sugar Mills Ltd. v. Their Workmen21, certain
employees who held key positions in the Mill resorted to hunger strike at the residence of the
Managing Director, with the result that even those workmen who reported to their duties could
not be given work. It was held by the court that the concerted action of the workmen who went
on hunger strike amounted to strike within the meaning of this sub-section.

iv. Gherao: A gherao means to “surround/confined” in the vernacular language. It is a clear

violation of law and is a criminal offence and accordingly does not come under Section 2(q) of
the Act.

CHAPTER-3
LOCKOUT UNDER THE INDUSTRIAL DISPUTES ACT, 1947
The antithesis of strike is lockout. The weapon which is in the hands of the workmen to force
the employer and accepting their demands is called known as strike. Likewise, lockout is a
weapon present in the hands of the management to pressurize the workmen to diminish their
demands related to employment conditions. As in the case of a strike so also in the case of a
lockout, there is no severance of the relationship of employer and employee.16

Lockout has been defined under Section 2(i) of the ID Act, 1947 as follows:

"Lock-out means the temporary closing of a place of employment, or the suspension of work or
the refusal by an employer to continue to employ any number of persons employed by him.”17

From this definition, the essential elements of a strike can be stated as follows18:

1. Temporary closing of a place of employment, or

2. suspension of work, or

16
MISHRA, supra note 6, at 56.
17
Sec. 2(i) of the Industrial Disputes act, 1947.
18
Id at 56.

10
 3. refusal to continue to employee any number of persons employed by the employer.

In case of lockout, the workmen are asked by the employer to keep away from work, and
therefore, they are not under any obligation to present themselves for work. In the case of
TISCO Ltd v. Workmen19 it was held by the court that “if the employer substitutes the weekly
rest day of Sunday by another rest day without giving a notice of change, then it is an illegal
change. Since refusal to give work in pursuance of illegal change amounts to a lock-out,
therefore, the refusal to work on the substituted day did not amount to a strike.” Also, in the
case of Shri Ramchandra Spinning Mills v. State of Madras20 it was observed by the court that
“if the employer shuts down his place of business as a means of reprisal or as an instrument of
coercion or as a mode of exerting pressure on employees or generally speaking when his act is
what may be called an act of belligerency there will be a lock-out”.

3.1 Implications of Lockout

 Implication of lockout on the employer
Lockout is an employer's action, so it obviously has some positive implications for the
management and henceforth, the management might be keen on such an action. Although,
similar to the negative implications of strike on the workmen, there exists negative implications
of lockout for the employer as well.21

i. Positive Implications:
A lockout proclaimed due to the poor financial state of the industry has obvious positive
impacts for the employer as it cuts his financial loses. During such period, the employer need
not pay the labour cost and other variable expenses.

A lockout proclaimed in a counter response to a strike is an interesting scenario. A strike already

declared by workmen is in continuation to the production is already halted, if not completely
then partially. The action of the employer is to make sure that he has the control and not the

19
TISCO Ltd v. Workmen, AIR 1972 SC 1917.
20
Shri Ramchandra Spinning Mills v. State of Madras, AIR 1956 Mad 241.
21
Kumar, supra note 10. 28
Ibid.

11
workers who are striking. When such lockout is announced, there is a transfer of right from the
striking workers to the employer as now the employer decides when the workers will come
back to work even if the workers end their strike.28 This conveys a solid message to the striking
union and workers. Likewise, a lockout in counter of an illegal strike is legal and has legal.
This implies that the employer has made a solid move being on the positive side of law,
whereas, the workers/union stand on the wrong side of the law.

ii. Negative Implication

A lockout is the last action that an employer would take. As lockout would result in loss of
production which would ultimately lead to financial loses for the industry. So, only in the
extreme situation of financial distress, the employer would proclaim a lockout. Likewise, a
lockout implies a deterioration in the relationship shared between the employer and the
workmen. In the event when the workmen decide to challenge or contest the reasons on which
the employer has proclaimed a lockout, there exists possibilities that the employer might have
to end up paying wages and other benefits for the period of lockout which will in turn have a
negative financial implication on the industry.

 Implication of lockout on the union

A lockout largely affects the union much more than a strike would affect an employer. This
holds true as when a strike is declared, the implication that the employer faces is majorly
financial. On the other hand, a lockout declaration weakens the union. The union flourishes
with the fact that it a collective set of workmen who have collective bargaining power as they
are together.22 A proclamation of lockout means that the employer has disregarded or has not
recognized the bargaining power of the union. This diminishes the basic foundation on which
the union is based on and makes the workers have self-doubt in their minds about their
association with their union and job security. There exist several examples of when a lockout
has ended up solving an industrial dispute but has weakened the union in the due process. A
strike usually prompts greater unity among workmen and on the contrary, the lockout has an
exactly reverse effect.

 Implication of lockout on the government and political set up

22
Id.

12
Taking into account the tripartite setup of industrial relationships in the Indian setup, the
government plays a vital role in event of a lockout. Reference of the industrial dispute for
adjudication is the step taken by the government which ensures that there are no legal strikes
or lockouts. The proclamation of a lockout makes the workers unemployed and creates an
unstable environment. This causes political implications and is regularly exploited by political
institutions to their advantage. So, in the case of lockout, the government pressure on
management to allow production would be much more than the government pressure on union
to resume work in case of a strike. In the case of Lord Krishna Sugar Mills Ltd., Saharanpur v.
State of U.P.23 it was held that a lock-out may sometime be not at all connected with economic
demands; it may be resorted to as a security measure.

CHAPTER-4
STRIKES AND LOCKOUTS: LIMITATION
4.1 General Prohibition of Strikes and Lockouts
The prohibition of strikes and lockouts provided under Section 23 of the Act is general in nature
and applies to both public utility as well as non-public utility establishments. The primary
object of these provisions is to make sure that a peaceful atmosphere is established to provide
for a smooth process of conciliation, adjudication or arbitration. It may be noted that
conciliation proceeding before conciliation officer is not a bar to a strike or Lock-out under this
provision. In the case of Chemical and Fibres of India Ltd. v. D.G. Bhoir24 it was held by the
Apex Court that “mere pendency of a dispute between an individual workman as such and the
employer does not attract the provisions of Section 23.” Also, in the case of Workmen v. Motor

23
Lord Krishna Sugar Mills Ltd., Saharanpur v. State of U.P., 960-11 LLJ 76.
24
Chemical and Fibres of India Ltd. v. D.G. Bhoir, AIR 1975 SC 1660.

13
Industries Co. Ltd25 it was held by the Supreme Court that “there is a difference between a
strike envisaged by Section 23(1) in respect of matter covered by a settlement envisaged by
Section 29. If the strike is in the matter not covered by the settlement, it is not an illegal strike
under Section 24 read with Section 23(3) of the Act.”

4.2 Prohibition of Strikes and Lockouts in Public Utilities

Section 22 of the ID Act, 1947 talks about the prohibition of strikes and lockouts in specific
industries carrying public utility service. Here, in these kinds of industries, strikes and lockouts
are not absolutely prohibited but certain conditions are to be satisfied by the workmen prior to
declaring a strike or by the employers prior to proclaim a lockout. The enactment of this section
shows that the intention of the legislature was to put in place sufficient safeguards in the matters
of public utility services, or else it may cause great inconvenience and hardships to the general
public and the society.

Strike in such a utility can happen only if a 6 weeks’ notice has been served and 14 days have
passed after serving of such notice. As per Section 22(3) of the Act, such a notice of strike is
not compulsory when there already exists a continuing lockout. Further, the workmen ought
not to go on strike before the expiry date of the strike during the pendency of any conciliation
proceedings before a conciliation officer and seven days after the conclusion of such
proceedings. Any strike commenced in contravention of these provisions would be illegal.33

Section 22(2) of the Act sets forward similar conditions which must be fulfilled by the employer
before proclaiming a lockout. These conditions are as follows26:

No employer carrying on any public utility service shall lockout any of his workmen-

1. without giving them notice of lockout as hereinafter provided, within 6 weeks before
locking-out, or
2. within 14 days of giving such notice; or
3. before the expiry of the date of Lock-out specified in any such notice as aforesaid; or

25
Workmen v. Motor Industries Co. Ltd, AIR 1969 SC 1280. 33
MISHRA, supra note 6, at 197.
26
Id.

14
 4. during the pendency of any conciliation proceedings before a conciliation officer and
seven days after the conclusion of such proceedings.

Section 22(3) of the Act lays down that no notification of lockout is vital where there already
exists a continuing strike in the concerned public utility service. Additionally, the employer
needs to send the intimation of lockout or strike on the specific day on which it is declared to
such an authority as may be prescribed by the appropriate government either generally or for a
particular area or for a particular class of public utility services.27

In the case of Ramnagar Cane and Sugar Co. Ltd. v. Jatin Chakravarty28, it was held by the
Supreme Court that “during the pendency of conciliation proceedings between a public utility
concern and one of its unions, it attracts the provisions of Section 22(1)(d) to the strike declared
by another unit of the same concern and makes the same strike illegal.” Also, in India General
Navigation and Railway Co. Ltd. v. Workmen29, the Supreme Court held that “lockouts within
7 days of conciliation proceedings not illegal if resulting from the consequence of the illegal
strike already started.” Further, in the case of Bhaskaran v. Sub-Divisional Officer38, it was
held by the court that “posts and Telegraphs Department, being Public Utility Service, cannot
declare lock-out without notice and that the employees of the department cannot go on strike
without notice.”

4.3 Illegal strikes and Lockouts

Section 24 of the Act provides that a strike or Lock-out in contravention of Section 22 and
Section 23 of the Act is illegal. In the case of The Management of Chandramalai Estate v.

Workmen 30 , it was held by the court that “an illegal strike cannot be half legitimate. The
Supreme Court held that the Industrial Tribunal cannot come to the conclusion that a strike was
half justified and half unjustified. The award of payment of fifty per cent of the employments
for strike period was set aside.” Also, in the case of Management of Charukulam Tea Estate
(P) Ltd. v. Workmen31, it was held by the court that “workmen were entitled to the wages for
the strike period as their strike was not unjustified. It was further held in this case that the

27
MISHRA, supra note 6, at 201.
28
Ramnagar Cane and Sugar Co. Ltd. v. Jatin Chakravarty, AIR 1960 SC 1012.
29
India General Navigation and Railway Co. Ltd. v. Workmen, AIR 1960 SC 219. 38
Bhaskaran v. Sub-Divisional Officer, (1982) II LLJ 248 (Ker).
30
The Management of Chandramalai Estate v. Workmen, AIR 1960 SC 902.
31
Management of Charukulam Tea Estate (P) Ltd. v. Workmen, (1969).1 SCR 931.

15
pendency of conciliation proceedings before the conciliation officer, as distinct from the board,
does not render the strike illegal.”

Consequences of illegal strike

Illegal strikes may result in consequences like disciplinary action against workmen. The
question also arises whether they are entitled to wages for the strike period. In the case of
Crompton Greaves Ltd. v. Workmen32 it was held by the Supreme Court that “in order to entitle
the workmen to wages for the period of strike, the strike should be legal and justified. Whether
a particular strike is justified or not is a question of fact which has to be judged in the light of
the facts and circumstances of each case. The use of force violence or act of sabotage resorted
to, by the workmen during the strike period which was legal and justified would disentitle them
to wages for the strike period.” Furthermore, in the case of M/s Burn & Co. Ltd. v. Their
Workmen33 it was laid down by the court that “mere participation in the strike would not justify
suspension or dismissal of workmen.” In the case of Gujrat Steel Tubes v. Gujarat Steel Tubes
Mazdoor Sabha 34 the workmen resorted to strike and as a consequence, the management
terminated their services. The Supreme Court ordered the reinstatement of those workmen who
were not found guilty of misconduct after proper enquiry being held.

4.4 Strikes and Lockouts treated at par

The ID Act, 1947 look at strikes and lockouts as the counterpart of each other and treats them
similarly. Strike is a weapon in the hands of workers in the same way lockout is a weapon in
the hands of employers. Also, both does not contemplate a severance of the relationship shared
between the employer and the employee. Also, the applicable law under the Act is applicable

to both strikes as well as lockouts. An illegal lockout followed by a strike renders the strike
lawful and vice-versa.

Under the statutory law, both these rights are not absolute as there are several restrictions placed
on them under the Sections 10(3), 10-A(4-A), 22 and 23 of the ID Act, 1947.35 The reason

32
Crompton Greaves Ltd. v. Workmen, (1878) 3 SCC 155.
33
M/s Burn & Co. Ltd. v. Their Workmen, AIR 1956 SC 529.
34
Gujrat Steel Tubes v. Gujarat Steel Tubes Mazdoor Sabha, AIR 1980 SC 1860.
35
44 Bushan, supra note 7.

16
behind this is that the proceedings which are before the conciliation or adjudication authority,
as the individual case may be, are to held in a peaceful environment and the society must not
suffer the inconvenience caused by such strikes and lockouts.

CHAPTER-5
THE APPROACH OF JUDICIARY IN THE CASES OF STRIKES AND LOCKOUTS
 The Management of Chandramalai v. Its Workmen and Anr.36
In this case, the Union of the workmen of the Chandramalai Estate submitted a memorandum
containing their fifteen demand to the manager of the estate. Although some of the demands of

36 46
The Management of Chandramalai v. Its Workmen and Anr., AIR 1960 SC 902.
Crompton Greaves Ltd. v. Its Workmen, AIR 1978 SC 1489.

17
the memorandum were fulfilled by the management but the principal demanded was not
fulfilled. The then labour officer advised mutual negotiations between the representatives of
the management and workers, but the negotiation did not become successful, and the union
gave strike notice, and the workmen went on strike with effect from December 9, 1955. The
strike ended on January 5, 1956. An appeal was raised by the by the management of the
Chandramalai Estate against the Tribunal's. The Tribunal held that the management had
charged more than the cost price and held that they were bound to refund the same. The
Tribunal also rejected the contention of the management that no dispute was being raised
regarding the allowance earlier and awarded cumbly allowance of Rs. 39 per workman - made
up of Rs. 7 per year for the years 1949, 1950 and 1951 and Rs. 9 per year for the years 1952
and 1953. The Tribunal held that both parties were to blame for the strike and ordered the
management to pay workers 50% of their total emoluments for the strike period. The Supreme
Court further held that however the union did not choose to wait and after giving notice to the
management that it had decided to strike from December 9, 1955, actually started the strike
from that day.

 Crompton Greaves Ltd. v. Its Workmen46

In this case, Crompton Greaves intimated to the Graves Cotton and Crompton Paikinston
Associane Concerns workmen's Union, Calcutta its decision to reduce the strength of the
workmen in its branch ac Calcutta on the ground of severe recession in business which resulted
in mass retrenchment of the workmen. Thereafter, the Union sought the intervention in the
matter of the Minister in change, Labour, and the Labour Commissioner. A talk for negotiation
took place but both the parties did not reach on any agreement. The workmen resorted to strike
with effect from January 11. 1968 after giving notice to the appellant and the Labour
Directorate and continued the same upto June 26, 1968. Here, the Tribunal held that the strike
cannot also be said to be unjustified as before the conclusion of the talks for conciliation which
were going on through the instrumentality of Assistant Labour Commissioner, the Company

retrenched as many as 93 its workmen without even intimating to the Labour Commissioner
that it was carrying out its proposed plan of effecting retrenchment of the workmen.
Additionally, the Tribunal held that the Management has failed to prove that the workmen
resorted to force and violence during the period with which we are concerned. The said award
was challenged by special leave in a reference made to it by the State Government under
Section 10 of the Industrial Disputes Act. 1947 holding the striking workmen entitled to their
18
wages, for a portion of the strike period, i.e., from January 11, 1968 to the end of February,
1968. The Supreme Court upheld the decision of the Tribunal under Article 136 of the
Constitution and directed the appellant to pay the same to the workmen within one month from
the date of the publication of the award in the Calcutta Gazette.

 G.E.C (Pvt.) Ltd. v. The Labour Court, Allahabad37

In this case, some workmen employed in G.E.C. were dismissed for having taken part in an
illegal strike. Previously they have been warned for having been on strike, but they participated
in a strike for the second time. The fact of previous warning and then subsequent participation
in the strike by the workmen was taken in view while making the order of dismissal. An appeal
was made to the Supreme Court in this regard. The Supreme Court held that in this case, even
the order of dismissal clearly shows that the management has taken into account the previous
conduct of the workmen having gone, on the first strike, and the punishment of warning,
administered on May 8, 1964. It is because of this past conduct; the six workmen were being
dismissed from service. The court finally held the dismissal to be mala fide and vindictive.

 Iron and Metal Traders Pvt. Ltd., Bombay v. M.S. Haskiel & Ors.38
In this case, the workers of the company went on strike and later on were reinstated by the
company, but the respondent were singled out by the management for drastic treatment. The
matter went to the tribunal where the Tribunal found the action of the employer as
discriminatory and ordered reinstatement of the three workers and awarded compensation to
the respondent in lieu of the reinstatement. An appeal was filed by the management to the
Supreme Court. The Supreme Court upheld the decision of the Tribunal on the grounds of being
fair, just and reasonable and awarded compensation for reinstatement.

 Krishna Sugar Mills v. State of U.P.39

In this case, the mill was closed for two days consequent to the alleged assault of officers by
some workmen who created a panicky situation. The main issue that was raised in this case was
that whether workers are entitled to wages during illegal lock-out. It was held by the Tribunal

37
G.E.C (Pvt.) Ltd. v. The Labour Court, Allahabad, AIR 1969 SC 235.
38
Iron and Metal Traders Pvt. Ltd., Bombay v. M.S. Haskiel & Ors, (1983) II LLJ 504 (SC).
39
Krishna Sugar Mills v. State of U.P., 1960 SCR (1) 226.

19
Court that the closure was lock-out which was illegal and unjustified and so workers are entitled
to wages during the lock-out period. The matter was agitated before the High Court which held
that the lock-out may be sometimes not at all connected with economic demands; it may be
resorted to as a security measure. In this case such a lock-out was declared without giving
notice as was required and that it was unjustified also being a retaliatory measure. So the
company was liable to pay wages during the lock-out period.

Conclusion
In the present context of economic development programs, India cannot afford to provide for
the right to strike in the hands of employees or the right to lockout in the hands of the employers.
The alternative of collective bargaining, i.e., compulsory arbitration is here to stay. As such

20
adoption of compulsory arbitration over collective bargaining does not essentially mean a
refusal of the right to strike or stifling of trade union movement. If the positive aspects of any
enactment, settlements or awards are to benefit the individual employ, not only the trade union
movement has to be empowered and its outlook be widened, but also the legislation has to be
customized as per their needs.

Current legislation and judicial pronouncement are lacking the expansiveness of vision.
Undoubtedly, the legal meanings of strike and lockout is rendered to be worse by the current
system of interpretation which lacks the much-desired policy-oriented approach and lays
unnecessary stress of semantics.

The ongoing debate as to the concept and definition of strike seems to lay down that the
legalistic consideration has usually weighed with the court of law while deciphering and
expounding the statutory definition. We believe that accentuation on literal interpretation
results in ignorance of the customarily perceived connotation of the term strike and in
empowering undesirable activities.

In the industrial establishment, both the workmen and the employers aspire for different goals
so it is that interest of both must be kept in mind as a failure in this regard shall lead to strikes
and lockouts which likely will have a rippling effect on the production and the county’s
economy. So, to keep a watch on unlawful strikes and lockouts, this Act has been enacted by
the legislation and brought into force. Strike remains as one of the most effective ways for
ensuring economic justice to workers but at the same time it also has its own some negative
implications on government, political parties and relevant stakeholders. The case remains
similar with lockout. So, we can conclude by saying that strikes and lockouts must be refrained
from and dispute resolution should be the top most priority in order to avoid the negative
implications that it brings upon on all the stakeholders. Similarly, the employers are expected
to refrain from unlawful lockouts and the same applies to the union in order to avoid economic
loss and to meet our country’s economic goals.

21
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2 Sumeet Malik, P.L. MALIK, INDUSTRIAL LAW, 25th ed. 2020, Eastern Book Company,
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S.N. Mishra, LABOUR & INDUSTRIAL LAWS, 29th ed. 2019, Central Law Publication,
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Shrikant Malegaonkar, Types of Strikes Regarding Industrial Disputes in India, 4 IJMH, 55,
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