Legality of the Right to Strike in India

Introduction

The ‘right to strike’ by workers is a recognised weapon available to workers to settle their differences with the management and achievement of their goal. It is adopted as a means to force the employer to enforce compliance with demands made by the employees.

In India, unlike the U.S.A., the right to strike is not expressly recognised by law. The right to strike in the Indian Constitutional set up is not an absolute right, but it flows from the fundamental right to form Unions. A number of restrictions are laid down by the Industrial Disputes Act on the right of the workers to go on strike. This article will examine the different kinds of strikes done by the workmen and their legality, various prohibitions laid down by the law on such strikes, the interplay of strikes in the workplaces designated as ‘essential services’, and the justifiability of legal and illegal strikes.

Definition of ‘Strike’

According to Webster’s Dictionary, ‘strike’ has been defined as “the act of quitting work done by mutual understanding by a body of workmen as a means of enforcing compliance with demands made on their employer; a stopping of work by workmen to obtain or resist a change in conditions of employment.”

Section 2(q) of the Industrial Disputes Act, 1947 defines a ‘strike’ as: A cessation of work by a body of persons employed in any industry acting in combination, or a concerted refusal, or 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.

According to the above definition, the essential ingredients of a ‘strike’ are:

Industry;
Cessation of work or refusal to do work in an industry by the workmen acting in a body or combination.
The relationship of employment. And
A concerted action.

The cessation of work, refusal to work, or discontinuance of work in combination is essential to constitute a strike. There cannot be a strike by a single individual. There can be no strike if there is no cessation of work. The duration of cessation of work is immaterial. Cessation of work even for half an hour amounts to a strike.

When several employees abstain from work, the test as to whether such abstention amounts to a strike or not would be found in the intention behind such abstention. If they intend to put pressure and if with that intention, they agree together to stay away from work, then there would be a strike, as held in the case of Shri Ramchandra Spinning Mills v State of Madras AIR 1956 Mad 241.

Further, mere cessation of work will not come within the purview of the definition of strike unless it can be shown that such cessation of work was a concerted action for the enforcement of an industrial demand. To constitute a strike, there must be some sort of defiance of authority. The purpose behind the combined action is not material under the scheme of the Act.

A concerted refusal under a common understanding of any number of employees to continue to work or to accept employment constitutes a strike. Unless “common intention” on several workmen is proved, it would not amount to a strike.

Kinds of Strike

There are mainly four kinds of strike, including: (1) general strike, (2) stay-in, sit-down, tool down, pen down strikes, (3) go slow strike (4) sympathetic strike.

General strike – The general strike is where the workmen join together for a common cause and stay away from work, depriving the employer of their labour needed to run his factory. Collective action on the part of the workmen for securing improvement in matters is the primary object behind such a strike. Strikes by the Central and State government employees fall in this category. Token strike, hartals, and bandhs are various kinds of general strikes.

Stay in, Sit down, Tool down, and Pen-down strikes – In such cases, the workmen report to their duties, occupy the premises, but do not work. The employer is thus prevented from employing other labour to carry on his business. Factory workers staying inside the premises and refusing to work is known as a ‘sit-down’ strike. Likewise, factory workers who refuse to work with their tools are known as ‘tool-down’ strikers.

The Supreme Court has held that refusal under common understanding not to continue work and if in pursuance of such common understanding the employees entered the premises of the Bank and refused to work would be classified as a is a strike under Section 2(q), as held in the case of Punjab National Bank v Their Workmen (1959) 1 LLJ 666. Such of strike is known as a pen-down strike.

Go-slow strikes – In the go-slow strikes, the workmen come to their work and work also, but at a slow speed to lower down the production and thereby cause loss to the employer. It is not a strike within the meaning of strike under Section 2(q), but is serious misconduct which is insidious and cannot be countenanced as held in the case of Sasa Musa Sugar Works (P) Ltd. v Shobrati Khan AIR 1959 SC 923.

Sympathetic strikes – Under a sympathetic strike, the workmen resort to be in sympathy with striking workmen to extend moral support to them. Where workers in concert absent themselves out of sympathy to some cause wholly unrelated to their employment or about the condition of employment of other workers in other industry under other management, such absence could not be held to be a strike, as the essential element of the intention to be against the management is absent. Such a strike is an unjustified invasion on the right of employers and is, therefore, unjustified. The management would be entitled to take disciplinary proceedings against the workmen for their absence on the ground of breach of condition of service as held in the case of Kambalingam v Indian Metal & Metallurgical Corp. (1964) 1 LLJ 881.

In addition to these common forms of strike, a few more may be noted:

Hunger strike – Under a hunger strike, the workmen adopt coercive methods to achieve a purpose. Fasting by itself is neither wrong nor punishable under law, but when undertaken to a point of death, it amounts to an offence. Under certain circumstances, this method was held to be a ‘strike’. In the case of Pipraich Sugar Mills Ltd. v Their Workmen (AIR 1960 SC 1258), certain key workmen went on hunger strike at the residence of Managing Director, with the result that other workmen who did not come to work could not be given work. It was held that the concerted action of workmen who went on hunger strike amounted to ‘strike’ within the meaning of Section 2(q).

Work to rule strike – Work to rule strike is resorted to by the workmen to circumvent provisions of law governing their service conditions. The employees strictly adhere to rules while performing their duties. The strict observance of rules often result in slowing down the pace of work, causes inconvenience to the public, and embarrassment to the employer. It is not considered as a strike because there is no stoppage of work at all.

Gherao — Gherao refers to “surround”, “confine”, or “to seize.” There is a physical blockade of a target either by encirclement or forcible occupation. Gherao is addressed as a criminal offence, and is not covered by the term ‘strike’ under Section 2(q).

Prohibition of Strikes

Section 22 lays down restrictions on the right to strike in the public utility services, e.g., railway, transport, power, water, sanitation, post, telephone, etc., and an industry declared to be in ‘public utility service’ by the government under Section 2(n) of the I.D. Act. Strike in this section is not prohibited, but certain requirements are to be fulfilled by the workmen before resorting to strike. The intention of the legislature in enacting this section was that there should be enough safeguards in matters of public utility services, as otherwise it would result in great inconvenience to the general public and society.

Section 22(1) provides that no person employed in public utility service shall go on strike in breach of contract of services unless:

A notice of strike has been given to the employer. The notice should be given within 6 weeks before striking. In other words, the strike should take place within 6 weeks of the giving of notice. After the expiry of 6 weeks, a fresh notice is required.

A minimum period of 14 days should have expired between the giving of notice and the date of strike.

The strike shall not be resorted to before the date of strike specified in the notice.

The strike shall not be resorted to in the period during which any conciliation proceedings are pending and even after the conclusion of proceedings during a further period of 7 days.

Thus, a strike can take place only when 6 weeks’ notice has been served and 14 days have expired after serving the notice. The 14 days are meant to give the employer and the government time to explore the possibility of averting the strike. Any strike commenced within the prohibited period is illegal.

General Prohibition of Strikes

The provisions of Section 23 are general. The Section imposes general restrictions on declaring strikes in breach of contract in both public utility as well as non-public utility services under certain circumstances. No workman who is employed in any industrial establishment shall go on strike in breach of contract.

During the pendency of conciliation proceedings before a conciliation officer and till the expiry of 7 days after the conclusion of such proceedings.
During the pendency and 2 months after the conclusion of proceedings before a Labour Court, Tribunal, or National Tribunal.
During the pendency and 2 months after the conclusion of arbitration proceedings before an arbitrator, where a notification has been issued under sub-section (3-A) of Section 10A.
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.

The principal object of this section seems to ensure a peaceful atmosphere to enable a conciliation or adjudication, or arbitration proceeding to go on smoothly. This section, because of its general nature of prohibition, covers all strikes irrespective of the subject-matter of dispute pending before the authorities.

It is noteworthy that a conciliation proceeding before a conciliation officer was no bar to a strike under Sections 2,3, and such a strike was justified in the case of Churakulum Tea Estate v Workmen (1969) ISJ 391.

Where a strike has commenced during the pendency of conciliation proceedings, and the workmen pleaded that notice was not given by the employer, it was held in the case of Colliery Mazdoor Congress v. Beebrum Coal Co. 1952 LAC 29 (LAT), that the fact that the strike was provoked by the opposite party will not absolve the person going on strike of the duty of complying with the requirements under Sections 22 and 23. Mere breach of standing order cannot render strike illegal as held in the case of Balllyore Collieries Co. v. Presiding Officer (1972) 2 SCC 27.

To ensure compliance with a settlement or award in the period during which it is in operation, a strike in respect of any matter covered by the settlement or award is prohibited. A strike in respect of matter not covered by settlement or award is not prohibited under Section 23(c). However, the other clauses of Section 23 enact absolute prohibition against strike, whether in respect of the matters pending for conciliation, adjudication, or arbitration, or not connected at all with any such matter.

Sections 22 and 23 compared –

Section 22 applies to public utility concerns only, whereas Section 23 applies to both public utility as well as non-public utility concerns.
Section 23 does not prohibit strikes during the pendency of conciliation proceedings before a Conciliation Officer, but Section 22 does so.
Under Section 22, notice of strike is necessary; under Section 23, it is not. Thus, in a non-public utility concern, a sudden strike is permissible.

Case Law: Ramnagar Cane & Sugar Co. V Jatin Chakravorty [Air 1960 Sc 1021]

The construction and effect of the provisions of Section 22(1)(d) were brought in this case of Ramnagar Cane & Sugar Co. V Jatin Chakravorty. The appellant in the case, Ramnagar Cane and Sugar Company Ltd., was declared a public utility concern by a notification. A majority of the workmen had gone on strike. There were two unions which presented, separately, a similar charter of demands to the appellant. The appellant and the Employers Union settled with a conciliation officer. The Workers Union, which was aware of conciliation proceedings, commenced a strike while the proceedings were taking place. The question was whether the strike was illegal given the provisions of Section 22(1)(d).

Section 22(1)(d) lays down that no person employed in a public utility concern shall go on strike in breach of contract during the pendency of any conciliation proceedings before a conciliation officer and 7 days after the conclusion of such proceedings. The effect of this provision was clear. If a strike was declared in a public utility service during the pendency of a conciliation proceeding, it would be illegal.

The Court in this case observed that when the said provisions refer to the pendency of any conciliation proceedings, it must reasonably be construed to mean any conciliation proceeding which may lead to a settlement before the conciliation proceeding and which may bind all the workmen concerned. In other words, if a conciliation proceeding is pending between one union and the employer and it relates to matters concerning all the employees of the employer, the pendency of the said proceeding would be a bar against all the employees of the said employer employed in a public utility service to go on a strike during the pendency of proceedings under Section 22(1)(d).

In the present case, two unions made similar demands, and a settlement was reached between the appellant and Employees Union, which also benefited the members of Workers’ Union as much as those of Employees Union. Thus, the strike in question was declared illegal and unjustified.

Right to Strike and the Essential Services Maintenance Act, 1981

Essential Services Act, 1981, was an Act intended to provide for the maintenance of certain essential services and the normal life of the community. “Essential services” refer to services that are crucial for maintaining public life and welfare, and whose disruption would cause significant hardship or inconvenience to the community. These services are defined in the Act and include, but are not limited to, postal, telegraph, telephone, railway, transport, and defence services, as well as services connected with the operation of aerodromes, ports, and customs.

Power to prohibit strikes in certain employments:

If the Central Government is satisfied that in the public interest it is necessary or expedient so to do, it may, by general or special Order, prohibit strikes in any essential service specified in the Order.

Such Order shall be in force for six months only, but the Central Government may, by a like Order, extend it for any period not exceeding six months if it is satisfied that in the public interest it is necessary or expedient so to do.

Upon the issue of such an order, no person employed in any essential service to which the Order relates shall go or remain on strike, and any strike declared or commenced, whether before or after the issue of the Order, by persons employed in any such service shall be illegal.

Dismissal of employees participating in illegal strikes:

Any person who commences a strike which is illegal under the Essential Services Act, 1981 Act or goes or remains on, or otherwise take part in, any such strike, or instigates or incites other persons to commence, or go or remain on in any such strike, shall be to disciplinary action (including dismissal) by the provisions of the Act. The provisions are applicable to take such disciplinary action (including dismissal) on any other ground under the terms and conditions of service applicable to him regarding his employment.

Illegal Strikes

Under the Industrial Disputes Act 1947, only prohibited strikes, for which penalties have been imposed, are considered an illegal strike. Section 24 of the Act lays down the grounds which make the strike illegal:

A strike shall be illegal if it is commenced or declared in contravention of Sections 22 or 23.
A strike shall be illegal if it is continued in contravention of an order made under Section 10(3) or under sub-section (4A) of Section 10A of the Act [Sec. 24(1)].

A strike shall not be deemed to be illegal if:

at its commencement, not in contravention of the provisions of the Act, or
Its continuance was not prohibited under Section 10(3), or
It is declared in consequence of an illegal lockout.

Consequences of Illegal Strikes:

The question arises whether the workmen who resorted to an illegal strike are entitled to wages for the strike period and whether the employer can take disciplinary action against defaulting workmen.

Wages – The Supreme Court has held that if the strike is legal as well as justified, the workmen are entitled to wages for the period of strike. On the other hand, if the strike is illegal, the workmen are not entitled to wages for the strike period. The use of force, violence, or acts of sabotage resorted to by workmen during a strike period, which were illegal, would disentitle them to wages for the strike period, as held in the cases of Churakulam Tea Estate v Workmen (1969) 1 SCR 931 and Crompton Greaves Ltd. v Workmen (1978) 3 SCC 155.

This position of law continued up to 1990. In the case of Bank of India v T.S. Kelawala (1990) 4 SCC 744, the Supreme Court invoked the doctrine of ‘no work, no pay’. It held that: “whether the strike is legal or illegal, the workers are liable to lose wages for the period of strike and the liability to lose wages does not either make the strike illegal as such or deprive the workers of it.”

However, with time, the courts gave a different view from Kelawala Case. In ANZ Grindlay Bank v. V. S.N. Khartri (1995) 2 LLJ 877, the Bombay High Court held that once the strike is held to be illegal, the strike period is not to be paid for, and the employees in public utility service were not entitled to wages for the strike period unless they prove the strike was legal and justified. Similarly, in the case of H.M.T. Ltd v. H.M.T. Head Office Employees Assn. (AIR 1997 SC 585), it was held that an illegal strike, even if justified, does not entitle the workman to wages.

Dismissal of workmen – Normally, a strike may turn out to be illegal, or a strike may amount to misconduct on the part of the workmen for which the employer is free to punish dismissal.

In Model Mills Ltd. v Dharmodas (1958) 1 LLJ 539 (SC), the Supreme Court upheld the right of the employer to dismiss from service the workmen participating in an illegal strike under the provisions of the Standing Orders of the company.

However, in Indian General Navigation & Rail Co v Their Workmen (AIR 1960 SC 219), the Apex Court held that mere taking part in an illegal strike without anything further would not necessarily justify the dismissal of all the workmen taking part in the strike and that it was necessary to hold a regular enquiry after furnishing charge sheet to each of the workmen sought to be dealt with for his participation in the strike.

It was further observed by the court in the above case that in case of an illegal strike, the only question of practical importance was the quantum of punishment, and to decide it, a clear distinction should be made between violent and peaceful strikers. The violent strikers are to be dealt with more severely, and the punishment of dismissal, discharge, or termination has to be imposed on them. It would neither be in the interest of the employer nor the workmen to effect wholesale dismissal of all striking workmen.

In case of Punjab National Bank v Their Workmen AIR 1960 SC 160, it was held that in a strike, the employer may bar the entry of the strikers within the premises by adopting legitimate methods in that behalf. He may call upon the employees to vacate, and, on their refusal to do so, take due steps to suspend them from employment. He has to then proceed to hold proper inquiries according to the Standing Orders and pass proper orders against them. However, under the Standing Orders, the management can, if the strike is illegal, take disciplinary action against the workers. But the management must comply with the terms of the Standing Orders.

The position of law, therefore, seems to be clear: that if there are Standing Orders providing for dismissal, the striking workmen may be dismissed in accordance therewith. But in the absence of such orders, for punishing dismissal, it would be necessary to serve the individual workmen with a charge-sheet and then to hold a regular enquiry to determine whether they were peaceful or violent strikers. Therefore, a workman found guilty of misconduct after proper enquiry can be dismissed.

Justifiability of a Legal/Illegal Strike

There are provisions under the Industrial Disputes Act, 1947, stipulating ‘justified’ or ‘unjustified strikes’. The concept has been developed by the judiciary on the principle that the workers should resort to strike only when all other available remedies to arrive at a peaceful settlement with the management have been exhausted.

The question of justifiability or otherwise of a strike would depend upon whether the demands are reasonable or bona fide for the betterment or any ulterior purpose. Strikes resorted to for serious economic conditions like wages, dearness allowance, bonus, loan, and holiday would prima facie make it justifiable, as held in the case of Sasaediti Industries Ltd. v. Workmen (1960) II LLJ 78 (SC). A strike cannot be said to be unjustified unless the reasons for it are entirely perverse or unreasonable. Whether a particular strike was justified or not is a question to be judged in the light of the facts and circumstances in each case, as held in the case of Titaghur Paper Mills Ltd. v. Workmen (1978) II LLJ 80 (SC).

Legal strike may be justified or unjustified:

A strike may be legal if it is commenced without contravening the statutory provisions, and it may be ‘justified’ if it is bona fide resorted to for the betterment of service conditions of workers. A strike may be both legal and justified at the commencement, but as it progresses, the strikers may resort to acts of violence and sabotage. Then the strike may not become illegal, but it will certainly become unjustified with the resort to such acts on the part of the workmen.

Illegal strike cannot be justified:

Even in case of illegal strikes, an attempt has been made to distinguish between (i) illegal but justified strike, and (ii) illegal and unjustified strike.

It is said that a strike may be technically illegal because it is a contravention of the provisions of this Act, but because the causes that led to a strike are often, mixed question of legal and illegal demand, a strike may not be unjustified, as the conduct of the workmen may be objectionable or their behaviour may be violent. On the other hand, a strike may be illegal, but it might have been taken recourse to for good reasons and carried on in an orderly and peaceful manner. It is for these reasons that even illegal strikes are classified as justified and unjustified by the courts.

It may be noted that in Crompton Greaves Ltd. v Workmen (AIR 1978 SC 1489), the Supreme Court held that even if a strike be illegal, it cannot be castigated as unjustified, unless the reasons for it are entirely perverse or unreasonable, an aspect which has to be decided on the facts and circumstances of each case.

In the case of Gujarat Steel Tubes v G.S.T. Mazdoor Sabha (1980) 1 LLJ 137 (SC), before the conclusion of the talks for conciliation (via Assistant Labour Commissioner), the company retrenched 93 of its workmen without even intimating to the Labour Commissioner, and the court said that the strike cannot be said to be unjustified strike.

Conclusion

The right to strike in India, while not an absolute fundamental right, is a recognized and powerful instrument available to the workforce. Governed by the comprehensive framework of the Industrial Disputes Act, 1947, strikes are usually defined by their concerted nature and connection to industrial employment. The Act imposes stringent prohibitions, particularly in public utility services under Section 22, and general restrictions under Section 23, aimed at preserving industrial peace during ongoing conciliation, adjudication, or arbitration proceedings. The Essential Services Maintenance Act, 1981, further empowers the government to prohibit strikes in critical sectors, underscoring the State’s interest in maintaining public welfare.

The legal consequences of strikes, especially illegal ones, are significant, impacting entitlement to wages and the employer’s right to take disciplinary action. While the ‘no work, no pay’ principle generally applies to illegal strikes, the judiciary has consistently emphasized the need for due process in imposing penalties, distinguishing between peaceful and violent conduct. Furthermore, the concept of ‘justifiability’ allows the courts to assess the underlying reasons and conduct of a strike, even if technically illegal, in light of broader principles of social justice and the bona fide demands of workmen. Such an intricate legal framework reflects a continuous effort to balance the legitimate aspirations of labour with the imperatives of industrial harmony and public interest.

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