By : Rajat Manan Rajinder

Strike
Section 2 (q) of the Industrial Disputes Act. 1947 -

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 have been so employed to continue to work or to accept employment

Lockout
Lockout is a weapon in the hands of employer similar

to that of strike, used for compelling the persons employed by him to accept his terms or conditions of or affecting employment. In a lockout the employer shut down his place of business as a result of reprisal or as a instrument of coercion.

Section 22- Prohibition of Strikes & Lockout

This section does not absolutely prohibited strikes but

there are certain requirements to be fulfilled before restoring strike or lockout This is to protect sudden outbreak of strikes and lockouts.

Section 22(1)
No person employed in a public utility service shall go

on strike, in breach of contract (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

Section 22(1) cont

(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 22(2)
No person employed in a public utility service shall go

on lockout, in breach of contract (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

Section 22(2) cont

(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 22(3)
NO notice of strike is necessary where there is already

in existence a lockout in the public utility service and vice versa. The employer shall send information to specified authority on the day when strike or lockout is declared

Section 22(4)referred to in sub-section (1) shall The notice of strike

be given by such number of persons to such person or persons and in such manner as may be prescribed.

Section 22(5)
The notice of lock-out referred to in subsection (2) shall be given in such manner as may be prescribed.

Section 22(6)
If on any day an employer receives from any person

employed by him any such notices as are referred to in sub-section (1) or gives to any persons employed by him any such notices as are referred to in sub-section (2), he shall within five days, thereof report to the appropriate Government or to such authority as that Government may prescribe the number of such notices received or given on that day.

Section 23
General prohibition of strikes and lock-outs
No workman who is employed in any industrial establishment shall go on strike in breach of contract and no employer of any such workman shall declare a lock-out. (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 1[a

Labour Court, Tribunal or National Tribunal] and two months, after the conclusion of such proceedings [(bb) 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 sub-section (3A) of section 10A; or]

(c) 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.

Case
U.B. GADHE & ORS. ETC.ETC V. G.M., GUJARAT AMBUJA CEMENT PVT. LTD

Features of case
Appellants call in question the judgment rendered by a

learned Single Judge of the Gujarat High Court allowing the Special Civil Applications filed by the respondent (hereinafter referred to as the 'employer') The respondent had filed the applications questioning correctness of the award dated 31.12.2004 passed by the Labour Court By the said award the workmen were directed to be reinstated in service with continuity but without back wages

History of case
Respondent is involved in providing public utility

services. In the year 1989-1990, there were certain disputes between the management and the employees disciplinary action against the striking employees. Eventually, eight workmen were dismissed from the service

 Earlier once the references were disposed of by the

Labour Court by an award dated 23.04.1999. The workmen concerned were directed to be reinstated in service with full back-wages from the date of dismissal till reinstatement. The employer challenged the award Remanded back to the Labour Court by High court

 After remand, the Labour Court took up the

proceedings afresh, recorded the evidence and passed the awards on 31.12.2004. The question relating to legality of the departmental proceedings was examined first. The Labour Court held that the enquiry conducted was legal and proper, but the Labour Court found that some of the charges were not proved. It was held that so far as the strike is concerned it was established that the workmen were not justified in going on strike.

 Accordingly, the Labour Court had held that denial of

back wages for a period of 14 to 15 years for which the concerned workmen remained out of employment would be sufficient punishment for the misconduct proved against them. The High Court held that once the charges have been proved, the Labour Court ought not to have interfered with the quantum of punishment.

Judgment
Accordingly, the employer's Special Civil Applications

were allowed and those filed by the workmen were dismissed

Section 24- Illegal Strikes & Lockout

A strike or lock-out shall be illegal if In contravention of Section 22 of this Act. In contravention of Section 23 of this Act. In contravention of order made by Appropriate govt. under Section 10(3) or of Section 10-A of the Act. As per section 10(3) & 10-A an appropriate govt can

prohibit a strike or a lockout if there is an dispute and the dispute has already been referred for adjudication.

Section 24(2)
Where a strike or lock-out in pursuance of and has

already commenced and is in existence at the time of reference of the dispute to a Board, an Arbitrator, a Labour court, Tribunal or National Tribunal, the continuance of such strike shall not be deemed to be illegal provided that such strike or lock-out was not in contravention of the provisions of this act.

Section 24(3)
Following is not deemed to be illegal A lock-out declared in consequence of an illegal strike. A strike declared in consequence of an illegal lock-out.

Punishment for Illegal strikes

Illegal strikes are of two types 1. Illegal but justified strike 2. Illegal and unjustified strike Reasons for unjustified strikes Demands may be unreasonably high. Demands may be made with extraneous motives. Steps taken by employer to redress the alleged grievances through negotiation or conciliation. Behavior of workmen is violent.

 For deciding punishment a clear distinction has to be

made between Violent strike : in defiance of law and order Peaceful strike : silent participators

For first case punishment of dismissal, discharge or

termination could be imposed. No workmen can be dismissed or terminated for taking part in illegal but justified strike.

 Right of striking workmen to reinstatement after

termination of strike. Right of employer to compensation for loss caused by illegal strike. Strike by Government Servants.

Section 25- Prohibition of financial aid to illegal strikes and lockouts

No person shall knowingly spend or apply any money

in direct furtherance or support of an illegal strike or lock-out.

Spending or applying money. Direct furtherance or support. Illegal strike or lock-out. Knowledge on the part of the person

Section 26- Penalty for illegal strikes and lock-out

Section 26(1)- Illegal strike Imprisonment extending to one month or Maximum fine of Rs 50 or Both Section 26(2)- Illegal lockout Imprisonment extending to one month or Maximum fine of Rs 1000 or Both

Section 27- Penalty for instigation

Following acts are punishable Instigation to others to take part in an illegal strike/lockout. Incitement to others to take part in illegal strike or lockout. Acting in furtherance of illegal strike or lockout. 6 month imprisonment or fine extending to Rs 1000 or

both.

Section 28- Penalty for giving financial aid to illegal strike and lockouts.
6 month imprisonment or fine extending to Rs 1000 or both.

Background of the Case

Industrial peace till 1997.
Since 1997 union/misguided employees have been

holding gheraos, demonstration, assault, tool-down strike. Union resorted Strike from 23rd April 1997 to 22nd August 1997. Stone pelting, braking of glass of factory, scooter, cars, machinery on 28th Oct 1997. Tool-down strike without notice from 21st to 31st Jul 1998.

 Union observed Janamashtami as holiday on 14th Aug

1998. Again a tool-down strike on 8th Nov 1998 without any notice. Union went on strike from 13th Dec 1999 & it involved assault of officers & gherao. During all this Company wrote more than 10 letters to Labour Commissioner informing them about all the problems it was facing.

CASE OUTLINE
Company declared Lockout from 13th Jan 2000. Informed Labour Commissioner about the lockout. Company received show-cause notice on 17th Jan 2000. Company responded the reason to be immense danger to life and property, and no improvement in situation. Secretary, Labour passed order under Section 10(3) prohibiting the continuance of the lockout on 10th Feb 2000. Petitioner moved to Delhi High court against this order.

Allegations were of violation of Section 24. Conciliation proceedings for the dispute were pending.

 It was alleged that petitioner was trying to retrench 156 workmen. Also it was alleged that petitioner did no participated in conciliation proceedings.

The court observed that Section 10(3) was not attracted at all. The lockout was not in connection with the dispute.

Rather it was in connection with indiscipline, abusing, gherao etc. Reference to Workmen of Edward Keventers v Delhi Administration 1969.

Order of single learned judge was set aside. Reference to Express Newspaper v. Their Workers.