Introduction and basic issues

Strike means a cassation 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 accept employment1.
On 14th November, 1152 BC, artisans of Royal Necropolis at Deir el-Medina (Modern day Egypt), under
the rule of Pharaoh Ramses III, walked off from their duty as they were supposedly not provided with
shelter and food. The Egyptians later gave in on their demands. This marked the first ever recorded event
in the history which can be termed as a "strike". Ever since then, the industries have seen numerous
violent, non-violent, stay-in, sympathetic, work-to-rules, tools-down, pens-down and many other forms of
strikes. Strikes and lockouts are one of the most malignant tools in the weaponry of employees and
employers to get their demands fulfilled. Generally due to such events, the employees, the company, the
industry and the nation loses more than what might have been called for. Strikes cause an interruption in
normal work flow of a company, which not only hinders its production and hence profits, but also creates
problems in delivery schedule and business commitments. In common parlance, strikes hampers the
credibility and perception of a company in its customer/vendor market. On the other hand, lockouts may
disrupt the inflow wages for workmen most of whom live on marginal wages earned on daily basis. For
these labors a loss of a single days pay might lead to a considerable impact on daily life.
Some of the critical issues related to strikes and lockouts that have posed a matter of concern in India's
industrialization are as follows:
The biggest issue is to know whether a strike or a lockout is justified in the very first place. Issues
related to unfair labour practices, and improper compensation etc. should be resolved through
tribunals, and courts; hence, it is important to decide whether going on strike or declaring a lockout
should be, in any condition, legal or not?
Is right to strike or lockout a part of right to 'freedom of association'? Is it a part of demonstrative act
in freedom of speech. Hence, can a strike be illegal?
Different types of strikes have different impacts on business. Is there then a need for different
sections of law pertaining each of these strikes?
How to decide whether a strike or a lockout is/was for a justifiable reason or not?
Even if a strike or a lockout is found to be for a justified reason, should it be considered legal, if it has
created a considerable negative impact on parties not involved?
1 Section 2(q), Industrial Dispute Act, 1947

 Is a lockout as a consequence to a strike or a strike as a consequence to a lockout, legal? Does the

legality of the former matter while deciding on the legality of latter?
Should there be a prior notice mentioning a possibility of a future strike or a lockout? If yes, then
what should be a proper time-frame? Also, should there be necessity to resolve the issues as soon as
possible, once a notice is received by any party?
What is the role of a trade union in a strike and should an individual's opinion subside against the
decision of the union?
If the strike or lockout is found to be illegal, who should then pay for the loss of wages and loss of
business?
What should be the penalty for an illegal strike and lockouts, and should it remain same throughout
industries, or depend upon the pay scale of employees in case of a lockout and loss to company in
case of a strike?
All these and many other issues are to be taken care of for betterment of the relation between industry and
labour unions.

Statutes
In India strikes are not new the industries and even to the government. There are many legislative
attempts to solve the problem of strikes by introducing an amicable dispute resolution
mechanism, but the problem still stands unsolved. Following are few legal provisions dealing
with strikes.

Industrial Disputes Act, 1947

Section 2 states the definition of "strike" as 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. It states the definition of "lockout" as temporary dosing 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.
The definition of strike and lockout as per section 2 of ID Act, talks about any person working in
an "industry". However, the definition of industry as mentioned in section 2(j) of the same act,
says that 'it means any business, trade, undertaking, manufacture or calling of employees and
then goes on to say that it, includes any calling, services employment, handicraft or industrial
occupation or avocation or workmen.' The definition has been amended in section 2(j) of

Industrial Disputes (Amendment) Act, 1982, with a more pragmatic, comprehensive and realistic
definition.
The following case shows the importance of the definition of "Industry" in case of labour
disputes and strikes/lockouts:
Secretary, Madras Gymkhana Club Employees' Union Vs Management of the Gymkhana Club,
October, 19672: The employees of Madras Gymkhana Club asked the management for a bonus,
which was denied and the case was taken up in the Supreme Court of India. The court, on 3rd
October, 1967 held that the management of Madras Gymkhana Club was not liable to pay bonus
to its workmen, as the club, as per the definition of "Industry" section 2, ID Act, 1947, was not
an industry. As per the court, the respondent is a non-proprietary members' club. It is organized
on a vast scale with multifarious activities providing a venue for sports and games, and facilities
for recreation, entertainment and for catering of food and refreshment. Guests are admitted but
on the invitation of members. It has 194 employees with a wage bill between one lakh and two
lakh rupees. As per the definition, Industry means any 'trade, business, undertaking, manufacture
or calling of employers', and neither of these is being carried out by respondents. Hence, no
charge of Industrial dispute can be levied as the respondent is not an Industry.
Sub-section (3) of section 10: Where an industrial dispute has been referred to a Board,[Labor
Court, Tribunal or National Tribunal] under this section, the appropriate Government may by
order prohibit the continuance of any strike or lock-out in connection with such dispute which
may be in existence on the date of the reference.
Sub-section (3A) of section 10A: Where an industrial dispute has been referred to arbitration
and the appropriate government is satisfied that the persons making the reference represent the
majority of each party, the appropriate government may, within the time referred to in subsection (3) (one month), issue a notification in such manner as maybe prescribed; and when any
such notification is issued, the employers and workmen who are not parties to the arbitration
agreement but are concerned in the dispute, shall be given an opportunity of presenting their case
before the arbitrator or arbitrators.
Sub-section (4A) of section 10A: Where an industrial dispute has been referred to arbitration
and a notification has been issued under sub-section (3A), the appropriate government may, by

2 AIR 1968 SC 554

order, prohibit the continuance of any strike or lock-out in connection with such dispute which
maybe in existence on the date of the reference.
Section 22 states the clauses applicable to prohibit employees and employers of public utility
service companies (def. of public utility service as per section 2) from going on strike and
lockout. According to sub-section (1) and (2) of section 22, No employee or employer of a public
utility service shall go on strike or declare lockout,
a) without giving to the employer notice of strike, as hereinafter provided, within six weeks
before striking; or
b) within fourteen days of giving such notice; or
c) before the expiry of the date of strike specified in any such notice as aforesaid; or
d) during the pendency of any conciliation proceedings before a conciliation officer and
seven days after the conclusion of such proceedings.
Section 23 states the clauses applicable to prohibit employees and employers of any industrial
establishment from going on strike and lockout. It says that, No employee or employer of any
industrial establishment shall go on strike or declare lockout,
a) during the pendency of conciliation proceedings before a Board and seven days after the
conclusion of such proceedings;
b) during the pendency of proceedings before a Labor Court, Tribunal or National Tribunal
and two months, after the conclusion of such proceedings;
c) during the pendency of arbitration proceedings before an arbitrator and two months after
the conclusion of such proceedings, where a notification has been issued under subsection (3A) of section 10A (Industrial Disputes Act 1947);
d) during any period in which a settlement or award is in operation, in respect of any of the
matters covered by the settlement or award.
Section 24: A strike or lock-out shall be illegal if(i)
(ii)

it is commenced or declared in contravention of section 22 or section 23; or

(ii) it is continued in contravention of an order made under sub-section (3) of section
10 or sub-section (4A) of Section 10A.

Where a strike or lock-out in pursuance of an industrial dispute has already commenced and
is in existence at the time of the reference of the dispute to a Board, an arbitrator, Labor
Court, Tribunal or National Tribunal, the continuance of such strike or lock-out shall not be
deemed to be illegal, provided that such strike or lock-out was not at its commencement in

contravention of the provisions of this Act or the continuance thereof was not prohibited
under sub-section(3) of section 10 or sub-section (4A) of section 10A.
A lock-out declared in consequence of an illegal strike or a strike declared in consequence of
an illegal lock-out shall not be deemed to be illegal.
Section 25: No person shall knowingly expend or apply any money in direct furtherance or
support of any illegal strike or lock-out.
Section 26 states the penalty which shall be levied on anyone for going on illegal strike or
declaring illegal lock out. The penalty can be imprisonment up to one month, and/or a fine of
rupees fifty, in case of a strike; and rupees one thousand, in case of a lockout.

Constitutional Perspective of Strikes

Article 1914 of the Indian Constitution, the rainbow of the fundamental rights, originally guaranteed
seven freedoms, one of which, the right to property, had been by the 44th amendment3, made a
constitutional right and had ceased to be a fundamental right. The unique feature of the freedoms
guaranteed by Article 19 is that they are not absolute terms and, and clauses (2) to (6) provide for
reasonable restrictions imposed on these freedoms. The restrictions may be procedural or substantive, but
both must satisfy the test of reasonableness. Whether a restriction is reasonable or not is to be determined
by the Court4.
Reasonableness of the restriction means that any limitation imposed on an individual in the enjoyment of
his right should not be arbitrary or of excessive nature, beyond what is required in the interest of public.
According to Bhagwati J. the principle of reasonableness which legally as well as philosophically, is an
essential element of equality and non- arbitrariness pervades Article 14 like brooding omnipresence of the
procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity
with Article 14. It must be right, just, fair, and not arbitrary, fanciful or oppressive, otherwise it would be
no procedure at all and the requirement of Article 21 would not be satisfied5.
Article 19 guarantees the following freedoms:
a) Freedom of speech and expression.
b) Freedom to assemble peacefully and without arms.
3The Constitution (Forty-fourth Amendment) Act, 1978, (w.e.f. 20-6-1979).
4State of Madras v. V G row, AIR 1952 SC 196
5 Mrs. Maneka Gandhi v. Union of India, AIR 1978 SC 59

c)
d)
e)
f)

Freedom to form association and unions.

Freedom to move freely throughout the territory of India.
Freedom to reside and settle in any part of the territory of India.
Freedom to practice any profession or to carry on any occupation, trade or business.

Freedom of Speech and Expression

A suppression of speech, in its most painful consequence would be mental sterilization. Freedoms of
speech are comprehensive, and include freedom of expression concerning both public and private affairs.
In guaranteeing the freedom of speech and in subjecting it to reasonable restrictions, our Constitution has
to resolve the dilemma, since the choice is not between order and liberty; it is between liberty and
anarchy.
Restrictions on freedom of speech may be imposed in the interests of the sovereignty and integrity of
India, the security of State, friendly relationship with foreign sates, public order, decency and morality in
relation to contempt court, defamation or incitement of an offence.

Freedom to Assemble Peacefully and Without Arms

Democracy would have no meaning if freedom to assemble is not guaranteed. Thus, public meetings in
open spaces and public streets have formed part of our national life and people have come to regard it as
part of their privileges and immunities. Similarly, the right to take out a procession on the highways and
Public Street is part of the right to assemble which the people have regarded as part of Indian law, even
before the commencement of Constitution6. Reasonable restrictions may be imposed in the interests of
the sovereignty and integrity of India or public order.

Freedom to Form Associations and Unions

Social functioning of organized societies is based on multiplicity of associations and organizations. No
democracy can function without freedom to form associations and unions. Political parties, trade unions,
social and other organizations are part of democratic functioning of the society and the government.
Article 19(1) (c) guaranteed freedom to form associations and unions, though reasonable restrictions on
the freedom may be imposed in the interest of integrity and sovereignty of India, public order and
morality.

6 Himatlal v. Police Commissioner, AIR 1985 SC 229

Right to Strike - Judicial Interpretations

The right to strike in the Indian constitution set up is not absolute right but it flow from the fundamental
right to form union. As every other fundamental right is subject to reasonable restrictions, the same is also
the case to form trade unions to give a call to the workers to go on strike and the state can impose
reasonable restrictions.
In All India Bank Employees' Association v. National Industrial Tribunal and others 7, the Court
specifically held that even very liberal interpretation of sub-clause (C) of clause (1) of Article 19 i.e. Right
to form associations or unions, cannot lead to the conclusion that trade unions have a guaranteed right to
an effective collective bargaining or to strike, either as part of collective bargaining or otherwise.
Thus, there is a guaranteed fundamental right to form association or Labour unions but there is no
fundamental right to go on strike. Under the Industrial Dispute Act, 1947 the ground and condition are
laid down for the legal strike and if those provisions and conditions are not fulfilled then the strike will be
illegal.

7 (1962) 3 SCR 269