Strikes And Lockouts: Concept, Explanation and Case Laws

Strikes And Lockouts: Concept, Explanation and Case Laws | Overview

• Strikes – Introduction
• Types of Strikes
• Important case laws
• Lockout
• Prohibition of Strikes and Lockouts in Public Utilities
• General Prohibition of Strikes and Lockouts
• Illegal strikes and Lockouts

This article deals with the concept of strikes and lockouts that are essential weapons of the Industry. They provide a means of communication during the time of disagreements and differences in opinions. A vital role is played by such devices as they also provide a source for the accomplishments of basic rights.

I. Strikes – Introduction

The right to strike by workers is a well-recognised weapon available to them to settle their differences with the management and force the management to accept their demands. In our day-to-day lives also, we often see news regarding worker unions resorting to strikes so that their demands about their working conditions, for example, wages, benefits, holidays etc, are accepted by their employer.

Strike is an important part of the bargaining process because it tests the economic bargaining power of each side and forces both the parties to understand, realise, and evaluate the need it has for each other’s contribution. As the strike progresses, both side face losses- the savings of the workers continue to reduce, while the employer also faces losses as production stops.

This economic pressure results in offers, counter-offers, and ultimately agreements and compromises. Even if a strike does not happen, it still plays a part in the bargaining process, because the very prospect of hardship which the strike will result in, will often force a party to compromise. Collective bargaining is a process of reaching agreement, and strikes are an integral and frequently necessary part of that process.[1]

Strikes as defined in the Industrial Disputes Act 1947 and Essential Elements

In the Industrial Disputes Act, 1947 (hereinafter referred to as the “ID Act”), strikes have been defined in Section 2(q) 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.”

Thus, simply put, strike means the stoppage of work by a body of workmen employed in an industry acting in concert. Duration of the cessation of work or refusal to work is immaterial.

From this definition, the essential ingredients of a strike can be culled out as follows:

1. The strike must be in an establishment which falls under the definition of “industry” as given in Section 2(j) 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.

Types of Strikes

The different types of strikes can be understood as follows[2]:

1. A General Strike is one where the workmen join together for a common cause and stay away from work, depriving the employer of their labour to run the industry. General strikes are usually of a longer period, and are resorted to when the employer does not accept the demands of the employees by other means, such as a token strike. A “token strike”, which is of a short duration, such as a few hours, and whose main objective is to draw the attention of the employer by demonstrating the solidarity and co-operation among the employees, precedes the general strike. However, a token strike can also be considered to be a kind of general strike as well.
2. Some variants of strikes resorted to by workmen under different circumstances are stay in, sit down, tools down, and pen down strike. In these strikes, the workmen do enter and come into their place of work and report to their duties, however, they do not do any work.
3. A hunger strike is when a group of workmen resort to fasting on or near the place of work or the residence of the employer with a view to coerce the employer to accept their demands. It is not really a strike but rather a coercive method to achieve a certain objective. However, under certain circumstances, it can amount to a strike under Section 2(q), as was seen in the Piparich Sugar Mills Case, which will be discussed in the next section.

The following are not considered to be strikes within the meaning of Section 2(q)[3]:

1. A sympathetic strike resorted to, in sympathy of other striking workmen to encourage or to extend moral support to them is covered within the meaning of Section 2(q) as here the workmen do not have any demand or grievance of their own. In Kambalingam v. Indian Metallurgical Corporation, Madras,[4] 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.
2. A “go-slow” is where the workmen come to their place of work and do work, but with a slow speed in order to lower down the production and thereby cause loss to the employer. This is not considered to be a strike within Section 2(q), and is rather a misconduct, as can be seen from the Supreme Court judgement of Bharat Sugar Mills Ltd. v Jai Singh[5] where it was held that go-slow is a dishonest practice.
3. A work to rule is where the workmen circumvent the provisions of law governing their service 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).
4. A gherao, which in vernacular language means “to surround/confine”, in terms of labour strikes translates to a wanton disregard of the law, and does not fall under Section 2(q), but is rather a criminal offence.

Important case laws

In TISCO Ltd v. Workmen[6] it was held 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.

In North Brook Jute Co. Ltd. v. Their Workmen[7] it was held that when a rationalisation 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”.

In Punjab National Bank v. All India Punjab National Bank Employees’ Federation[8] it was held 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.

In T.K. Rangarajan v Government of Tamil Nadu[9] it was held 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 recognised in B.R. Singh v Union of India[10] as well.

II. Lockout

Lockout is the antithesis of strike. Strike is a weapon in the hands of the labour to force the management to accept their demands. Similarly, lockout is a weapon in the hands of the management to coerce the labour to come down in their demands relating to the conditions of employment. 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.

Section 2(l) of the ID Act defines lock-out 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.”

This definition has the following three ingredients of a lockout:

1. Temporary closing of a place of employment; or
2. suspension of work, or
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 Shri Ramchandra Spinning Mills v. State of Madras[11] it was observed 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.

In Lord Krishna Sugar Mills Ltd., Saharanpur v. State of U.P.[12] 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.

In Lakshmi Devi Sugar Mills Ltd. v. Ram Sarup[13] it was held that in case of lockout there is neither alteration to the prejudice of workmen of the conditions of the service application to them nor a discharge or punishment whether by dismissal or otherwise.

III. Prohibition of Strikes and Lockouts in Public Utilities

Section 22 of the Act deals with the prohibition of Strikes and lockouts in industries carrying public utility service. The Strikes and lockouts in public utility services are not absolutely prohibited but certain conditions are to be fulfilled by the workmen before resorting to strike or by the employers before resorting to a lockout. The intention of the legislature in enacting the section was to provide sufficient safeguards in matters of public utility services, otherwise it would result in great inconvenience to the general public and the society.

Strike in a public utility can take place only when 6 weeks notice has been served and 14 days have expired after serving the notice. According to Section 22(3), a notice of strike (within 6 weeks before striking) is not necessary when there is already a lock-out in existence in the public utility concerned.

Further, the employee should not go on strike before the expiry of the 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.

Section 22 (2) lays down similar conditions which an employer must fulfil before resorting to lock-out. It provides that,

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

Section 22 (3) provides that no notice of lockout is necessary where there is already in existence a strike in the public utility service concerned. Further, the employer shall send intimation of lockout or strike on the day on which it is declared, to such authority as may be specified by the appropriate Government either generally or for a particular area or for a particular class of public utility services.

In Ramnagar Cane and Sugar Co. Ltd. v. Jatin Chakravarty[14] it was held 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.

In India General Navigation and Railway Co. Ltd. v. Workmen[15] 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.

IV. General Prohibition of Strikes and Lockouts

The prohibition of Strikes and lockouts contained in Section 23 is general in nature which applies to both public utility as well as to non-public utility establishments. The object of these provisions is to ensure a peaceful atmosphere to enable a conciliation or adjudication or arbitration proceeding to go on smoothly. It may be noted that conciliation proceeding before conciliation officer is no bar to a strike or Lock-out under this section.

In Chemical and Fibres of India Ltd. v. D.G. Bhoir[16] it was held that pendency of a dispute between an individual workman as such and the employer does not attract the provisions of Section 23.

In Workmen v. Motor Industries Co. Ltd[17] it was held 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).

V. Illegal strikes and Lockouts

Section 24 provides that a strike or Lock-out in contravention of Section 22 and Section 23 is illegal. In Chandramalai Estate v. Workmen[18], it was held 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.

In Management of Charukulam Tea Estate (P) Ltd. v. Workmen[19], it was held that workmen were entitled to wages for the strike period as their strike was not unjustified. It was further held in this case that the 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 Crompton Greaves Ltd. v. Workmen[20] it was held 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.

In M/s Burn & Co. Ltd. v. Their Workmen[21] it was laid down that mere participation in the strike would not justify suspension or dismissal of workmen. In Gujrat Steel Tubes v. Gujarat Steel Tubes Mazdoor Sabha[22] 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 a proper enquiry being held.

By – Nitya Bansal

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[1] Kahn-Freund’s Labour and the Law, Davies & Freedland, Third Edition, Hamlyn Lecture Series 1983.

[2] Types of Strikes Regarding Industrial Disputes in India, Shrikant Malegaonkar, International Journal of Management and Humanities, Volume 4 Issue 1 2019, available at http://www.ijmh.org/wp-content/uploads/papers/v4i1/A0363094119.pdf.

[3] Id.

[4] 1964-I LLJ 81.

[5] 1961-II LLJ 664.

[6] AIR 1972 SC 1917.

[7] AIR 1960 SC 879.

[8] AIR 1960 SC 160.

[9] AIR 2003 SC 3032.

[10] (1989) 4 SCC 710.

[11] AIR 1956 Mad 241.

[12] 960-11 LLJ 76.

[13] 1957-1 LLJ 17 SC.

[14] AIR 1960 SC1012.

[15] AIR 1960 SC 219.

[16] AIR 1975 SC 1660.

[17] AIR 1969 SC 1280.

[18] AIR 1960 SC 902.

[19] (1969).1 SCR 931.

[20] (1878) 3 SCC 155.

[21] AIR 1956 SC 529.

[22] AIR 1980 SC 1860.

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1. Right to Strike and Constitutional Validity
2. Rights and Liabilities of a Registered Trade Union Explained