An Assessment of Strike and Lockout Laws in India

    In a country like India where slavery has flourished for centuries, it can be a long row to recognize the rights of every individual who may stand last on the receiving end. The Legal system in India has come a long way and provides protection to millions of workers engaging in various industrial activities from any possible exploitation. In pursuance of that many statutes such as the Industrial Disputes Act, 1947(herein referred to as “The Act”) was framed which deals with any dispute in the industry between workmen and the employer, employer and employer and workmen and workmen. Through this Act, validation is provided to demonstrations and protests or strike undertaken by the workers in lieu of their grievances. Also, the issues of the employers are provided for and they are entitled to present their side of the bargain as well.  

    STRIKE

    The Act defines “Strike” as 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”[1].  Sections 10(3), 10A(4A), 22 and 23 of the Act lay down the provisions on strike.

    As per the common understanding if a combination of workers with the same intention chooses to refuse to work, it will amount to strike. It shall be in respect of lawful work expected to be performed out of them. 

    As noted in Express Newspaper (P) Ltd. v. Michael Mark[2], even in the case of an illegal strike, the relationship between workers and employers does not cease to exist, although the employer can take disciplinary action against the workers. 

    Strikes are a well recognised form of expression of discontent and protest and it is duly recognised as a legal right. Though, Right to Strike is not considered a fundamental right under Article 19, it is curtailed or controlled by different industrial legislations.  

    FORMS OF STRIKE

    The various forms of strikes include:

    Hunger Strike

     When a small batch of workers or the union leader displays their protest against the employer by means of holding a fast. It is a symbol of moral force to bring their end of the bargain possible. 

    Sympathetic Strike

    When the workers of one industry go on strike in support of the demands of workers of another industry who are already on strike. This is symbolic of unity among workers of various fields. For example, the workers of the jute industry go on strike in support of the workers of the cotton industry. 

    Primary Strikes

    Stay in, sit down, pen down or tool down strikes are all Primary strikes. In all of these the workers after taking their seats refuse to do work. Punjab National Bank Ltd. v. All India Punjab National Bank Employees’ Federation [3]  elucidates the fact that coming to a common understanding of stoppage of work amounts to strike so, if the workers under such understanding enter the premises and refuse to pick up their tools it will be a strike. 

    Go slow Strike

    When the workers deliberately slow down the pace of production, it is called go slow strike. It is a serious weapon in the hands of the workers as it directly affects the cost of production, machinery, raw materials etc. In the case of Bank of India [4] it was observed: “go-slow is a serious misconduct being a convert and a more damaging breach of the contract of employment. It is an insidious method of undermining discipline and at the same time a crude device to defy the norms of work. It has been roundly condemned as an industrial action and has not been recognized as an legitimate weapon of the workmen to redress their grievance.” 

    JUSTIFIABILITY OF STRIKE

    The justifiability of strike doesn’t have to be in consonance with its legality. It is more often decided as a question of fact depending on the circumstances of each individual case and the reasonableness of the demands made by the workers. It is a possibility that even in the case where the Strike is illegal, it may be justified as it is a result of the bona fide demands of the workers which was noted in the case of Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Majdoor Sabha [5]. 

    LOCKOUT

    As defined in Section 2(i) of the Act, “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. The first ever lockout was declared in 1895 in Budge Budge Jute Mills. [6] 

    Just as the workers of any industry have their weapons for coercing and bringing the employer to bargain, lockout is one such weapon in the armoury of the employer. Lockouts act as a force which has a serious impact on the Company’s finances as well as on the finances of workmen. This aspect of this weapon makes it imperative that the employer use it only after serious conditions and as a weapon of last resort.

    As elaborated in the case of Shri Ram Chandra Spinning Mills Ltd [7],“The lockout is the corresponding weapon in the armoury of the employer. If an 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 the employees or, generally speaking, when his act is that may be called an act of belligerency, there would be a lockout. If, on the other hand, he shuts down his work because he cannot for instance get raw materials or the fuel or the power necessary to carry on his undertaking or because he is unable to sell the goods he has made or because his credit is exhausted or because he (is) losing money, that would not be a lockout.”

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    JUSTIFIABILITY OF LOCKOUTS

    As noted earlier, a lockout merely as an act of belligerence cannot be a justified lockout. A principle of relevance is the time duration of lockout, if it extends to an elongated period of time for no good reason then even if is in its initial stage to be justified, it becomes unjustified later on.(India Marine Service Pvt. Ltd. vs Their workmen) [8]. 

    CONSTRAINTS ON STRIKE & LOCKOUT

    The constraints on strikes & lockouts are categorized into two:

    (i)  The establishments related to public service utility,

    (ii) The industrial establishments.

    Section 22 of the Act puts out conditions to be fulfilled before resorting to strike or lockout by establishments of public service utility as following: 

    1. A notice of the strike/lockout has to be mandatorily provided to the employer/workmen respectively at least within six weeks before striking.
    2. After handing out any such notice, no strike/lockout can be carried for 14 days period.
    3. In the case where the date is specified for the strike/lockout, before the expiry of such date it cannot be undertaken. 
    4. In the case where conciliation proceedings are pending before the conciliation officer, no strike/lockout are permissible  and 7 days after the conclusion of such proceedings.

    Section 22(3) of the Act lays down that in the case where a strike is already in place, handing out a notice is not mandatory for carrying out lockout/strike. Though an intimation shall be given on the date when such strike/lockout is declared to any such authority prescribed by appropriate government for general or any particular area. 

    Section 23 of the Act lays down the provisions for general prohibition on Strike & Lockout.

    1. No strike/lockout can be undertaken in the case where a conciliation proceeding is pending before a conciliation officer and seven days after the conclusion of such proceedings.
    2. No strike/lockout can be undertaken in the case where proceedings are pending before the labour court, tribunal or national tribunal and two months after conclusion of such proceedings. Also, if any arbitration proceedings are pending before the arbitrator and two months after conclusion of such proceeding, no strike/lockout can be carried out.
    3. No strike/lockout can be undertaken in the period where a settlement or award is in operation in the matters covered by settlement or award.

    The Right to Strike/lockout is a right recognised in many democratic countries as a means of bargaining and settling any dispute but it is not absolute. It is attached with punishments meted out in Section 26 of the Act.

     Section 24 of the Act lays down the conditions which renders any strike/lockout illegal and hence liable to be punished. According to it, the strike/lockout will be illegal if:

    1. It is commenced in contravention to Sections 22 and 23 of the Act and is commenced in contravention of an order made under Section 10(3) or Section 10A(4A).
    2. In case a strike/lockout is already in place for an industrial dispute at the time it is referred to to a board, and arbitrator, tribunal, labour court , it shall not be deemed as illegal as it was already in place and thereby not in contravention to Sections 10(3) and 10A(4A).
    3. In the case where a strike is declared as a reaction to illegal lockout and a lockout  is declared as a reaction to illegal strike, one that is declared shall not be deemed to be as illegal.

    CHANGED SCENARIO

    The Pandemic of Covid-19 has left India and the world economy in a sinking boat. A large no. of layoffs, dismissal by the companies have resulted in unemployment and is a cause of distress for the general people . The labour force in India was the most affected by these circumstances. The migrant workers were dismissed from their jobs and set off on foot to their hometown resulting in an upheaval. 

    Uncalled times demand Uncalled for solutions. The Industrial Relations Code (herein referred to as “IRC”), 2020 was a step of Indian government to ensure a more secure working condition for the workmen. [9] The  IRC amends the following Acts, 

    1. The Industrial Disputes Act, 1947;
    2. The Trade Unions Act,1926; and
    3.  The Industrial Employment(Standing Orders) Act, 1946.

    Among the various other changes made to the ID Act, the provisions relating to the Strikes & Lockouts have also been amended. Following changes have been made:

    • The ambit of  definition of Strike under the ID Act has been increased to include concerted casual leave within it.
    • The highlight of these provisions are the steps taken against arbitrary strikes & lockouts by the workers and employers respectively. While the ID Act held establishments engaged in public utility services to provide intimation before going on strike, after IRC all establishments have to provide a notice before 60 days of going on a strike or within 14 days of handing out a notice or before the expiry of the date prescribed in the notice.
    • There shall be no strike during any conciliation proceedings and 7 days after the conclusion of such proceedings and during the ongoing proceedings before an industrial tribunals and 60 days after the conclusion of such proceedings.

    CONCLUSION

    In conclusion, it can be said that strike and lockout are instruments of coercion. They facilitate a healthy mechanism to bargain, if used wisely. Inorder to curb the misuse of it and its usage on petty circumstances, the legislation has settled a course to be followed before resorting to strike or lockout. Any departure from the legal provisions can result into punishments under the Act.

     

    REFERENCES

    [1] The Industrial Disputes Act,1947,s.2(q).

    [2] 1962-II, L.L.J. 220 S.C.

    [3] AIR 1960 SC 160.

    [4] 1990 2 RSJ I at 15(SC).

    [5] AIR 1980 SC 1896.

    [6] Labour, Laws & Practice, ICSI, available at: https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.icsi.edu/media/webmodules/Labour_Laws%26_Practice.pdf&ved=2ahUKEwiS_NymsNrsAhVs6nMBHcnSApUQFjAAegQIARAB&usg=AOvVaw1nMyYbnpTSwEblc3vL57rM

    [7] 1957 1 LLJ 90(Madras).

    [8] 1963 SCR (3) 575.

    [9] K. Venkataramanan, What does the new Industrial Relations Code say, and how does it affect the right to strike?,  The Hindu, 27th September, 2020 available at:

    https://www.google.com/amp/s/www.thehindu.com/news/national/the-hindu-explains-what-does-the-new-industrial-relations-code-say-and-how-does-it-affect-the-right-to-strike/article32705599.ece/amp/.


    BY MUSKAN SHARMA | GLA UNIVERSITY

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