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Lawyersclubindia Article : RIGHT TO STRIKE- A LEGITIMATE ILLEGALITY

RIGHT TO STRIKE- A LEGITIMATE ILLEGALITY


PRITISH KISHORE AND MARYADA SHARMA
CHANAKYA NATIONAL LA UNIVERSITY, PATNA

RIGHT TO STRIKE- A LEGITIMATE ILLEGALITY


INTRODUCTION
Widely known for patronizing democratic human rights and upholding their sacrosanct position, the apex court seems to be fascinated towards the glitter of the contemporary times. In one of the biggest democracies of the world, where the judiciary is one of those prime pillars, on which the edifice of the democracy is based, the apex court in itself commands respect. The history of labour struggle is nothing but a continuous demand for a fair return to labour expressed in varied forms i.e. (a ) Increase in wages, (b) Resistance to decrease in wages, and (c) grant of allowances and benefits etc. If a labourer wants to achieve these gains individually, he fails because of his weaker bargaining power, the management with the better economic background stands in a better position to dictate its terms. The article emphasizes on importance of right to strike in democratic society. For doing so its an attempt to rationally analyse the Supreme Court judgment of T.K.Rangarajan V. State of Tamil Nadu[1] .Taking the facts in to consideration, the action of the Tamil Nadu government terminating the services of all the
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Lawyersclubindia Article : RIGHT TO STRIKE- A LEGITIMATE ILLEGALITY

employees who have resorted to strike for their demands was challenged before the Honble High court of Madras, by writ petitions under Articles 226/227 of the constitution. On behalf of the government employees, writ petitions were filed challenging the validity of the Tamil Nadu Essential Services Maintainance Act (TESMA), 2002 and also the Tamil Nadu Ordinance 2 of 2003. The division bench of the court set aside the interim order, and pronounced that the writ petitions were not maintainable as the Administrative Tribunal was not approached. The division bench judgment was challenged before the Supreme Court and Shah J. started the judgment with the word "leave granted". The very first word of Shah J. gives the reader an impression that the Supreme Court has set a platform for another landmark judgment as a champion of democratic human rights. Ironically the apex court came out with a pronunciation, which reprimands the working community by saying that there is no fundamental, statutory, equitable/moral right to strike. The word strike was given its narrowest possible interpretation by the Honble Supreme Court. When workers resort to strike, they gamble with their own lives and also with that of their dependents. The Honble court would have made an effort to understand the situation of impasse which engulfs their own way of livelihood. The court stated that strike, as a weapon is mostly misused which results in chaos and maladministration, but the worker himself is the immediate victim of the strike with his only means of livelihood at stake. In addition to this there had been situations where they lose salaries, get imprisoned and some times shot dead. If the fundamental right of an individual or a group of individuals is violated, the rest of the society has a duty to support the fight for a remedy. Though the word strike is not mentioned anywhere in the constitution, as long as the strike remains peaceful, the society is duty bound to support the legitimate cause. If the slight ephemeral inconvenience caused to the society because of a strike, is a valid reason for declaring strike as an illegality then it is the high time for the adjudicative mechanism to wake up.

BACKGROUND The Supreme Court verdict in T.K. Rangarajan v. Govt. of Tamilnadu flies in the face of higher judicial precedent, as well as India's obligations under international covenants. It also threatens the stability of conciliatory and consultative arbitration procedures currently used to settle disputes. In T.K. Rangarajan v. Government of Tamilnadu and Others[2] (i), Justice M. B. Shah, speaking for a Bench of the Supreme Court consisting of himself and Justice A. R. Lakshmanan, said, "Now coming to the
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Lawyersclubindia Article : RIGHT TO STRIKE- A LEGITIMATE ILLEGALITY

question of right to strike - in our view no such right exists with the government employee." Even as early as 1961, the Supreme Court had held in Kameshwar Prasad v. State of Bihar[3] that even a very liberal interpretation of article 19 (1) (c) could not lead to the conclusion that the trade unions have a guaranteed fundamental right to strike. In All India Bank Employees' Association v. National Industrial Tribunal[4] (- the AIBE case) also it was contended that the right to form an association guaranteed by Article 19 (1) (c) of the Constitution, also carried with it the concomitant right to strike for otherwise the right to form association would be rendered illusory. The Supreme Court rejected this construction of the Constitution: "to read each guaranteed right as involving the concomitant right necessary to achieve the object which might be supposed to underlie the grant of each of such rights, for such a construction would, by ever expanding circles in the shape of rights concomitant to concomitant right and so on, lead to an almost grotesque result." It was a culmination of the ratios of the Kameshwar Prasad and the A.I.B.E. cases that resulted in the decision in the highly contentious Rangarajan case. In reliance of these judgments, the Apex court was correct in opining that there exists no fundamental right to strike. But in stating that Government employees have no "legal, moral or equitable right", the Court has evolved a new industrial jurisprudence unthought of earlier. It is true that the judgments mentioned above have rejected the right to strike as a fundamental right, but not as a legal, moral or equitable right. The question of 'strike' not being a statutory or a legal right has never even been considered in the court. Further the expression 'no moral or equitable right' was uncalled for. A court of law is concerned with legal and constitutional issues and not with issues of morality and equity. The Rangarajan case simply ignores statutory provisions in the Industrial Disputes Act, 1947 and the Trade Unions Act, 1926, and an equal number of case laws laid down by larger benches that have recognized the right to strike. It also fails to consider International Covenants that pave the way for this right as a basic tenet of international labour standards.

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Lawyersclubindia Article : RIGHT TO STRIKE- A LEGITIMATE ILLEGALITY

STRIKE AS A LEGAL RIGHT The working class has indisputably earned the right to strike as an industrial action after a long struggle, so much so that the relevant industrial legislation recognizes it as their implied right (iv). Striking work is integral to the process of wage bargaining in an industrial economy, as classical political economy and postKeynesian economics demonstrated long ago in the analysis of real wage determination. A worker has no other means of defending her/his real wage other than seeking an increased money wage. If a capitalist does not grant such an increase, s/he can be forced to come to a negotiating table by striking workers. This s/he can do because the earnings of the capitalist are contingent upon the worker continuing to work. The argument is drawn from Ricardian and Marxian classical political economy that shows how the employer's income is nothing other than what is alienated from the worker in the process of production. When workers stop working, capitalists stop earning. The same applies to government servants as well. When they strike work, it is not the authorities who suffer a loss of income or disruption of their income generating process but the general public. Here, authorities come to a negotiating table mainly under political pressure or in deference to public opinion. The right to strike is organically linked with the right to collective bargaining and will continue to remain an inalienable part of various modes of response/expression by the working people, wherever the employeremployee relationship exists, whether recognized or not. The Apex court failed to comprehend this dynamic of the evolution of the right to strike. In B.R. Singh v. Union of India[5], Justice Ahmadi opined that "The Trade Unions with sufficient membership strength are able to bargain more effectively with the management than individual workmen. The bargaining strength would be considerably reduced if it is not permitted to demonstrate by adopting agitational methods such as 'work to rule', 'go-slow', 'absenteeism', 'sit-down strike', and 'strike'. This has been recognized by almost all democratic countries". In Gujarat Steel Tubes v. Its Mazdoor Sabha[6], Justice Bhagwati opined that right to strike is integral of collective bargaining. He further stated that this right is a process recognized by industrial jurisprudence and supported by social justice. Gujarat Steel Tubes is a three-judge bench decision and cannot be overruled by the division bench decision of Rangarajan. In the Rangarajan case the court had no authority to wash out completely the legal right evolved by judicial legislation.

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Lawyersclubindia Article : RIGHT TO STRIKE- A LEGITIMATE ILLEGALITY

STRIKE AS A STATUTORY RIGHT The scheme of the Industrial Disputes Act, 1947 implies a right to strike in industries. A wide interpretation of the term 'industry'[7] by the courts includes hospitals, educational institutions, clubs and government departments. [8]Section 2 (q) of the Act defines 'strike'. Sections 22, 23, and 24 all recognize the right to strike. Section 24 differentiates between a 'legal strike' and an 'illegal strike'. It defines 'illegal strikes' as those which are in contravention to the procedure of going to strike, as laid down under Sections 22 and 23. The provision thereby implies that all strikes are not illegal and strikes in conformity with the procedure laid down, are legally recognized. Further, Justice Krishna Iyer had opined that "a strike could be legal or illegal and even an illegal strike could be a justified one"[9]. It is thus beyond doubt that the Industrial Disputes Act, 1947 contemplates a right to strike. The statutory provisions thus make a distinction between the legality and illegality of strike. It is for the judiciary to examine whether it is legal or illegal. Is the total ban on strikes post- Rangarajan not barring judicial review which itself is a basic structure of the Constitution? Further, Sections 22, 23 and 24 of the Act imply a right to strike for workers and a right to lock-out for the employers. In Kairbitta Estate v. Rajmanickam[10], Justice Gajendragadkar opined: "In the struggle between the capital and labour, the weapon of strike is available to labour and is often used, as is the weapon of lock-out available to the employer and can be used by him"[11]. The workers' right to strike is complemented by the employers' right to lock-out, thus maintaining a balance of powers between the two. However, the Rangarajan judgement, by prohibiting strikes in all forms but leaving the right to lock-out untouched, tilts the balance of power in favour of the employer class.
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Lawyersclubindia Article : RIGHT TO STRIKE- A LEGITIMATE ILLEGALITY

The Court, in opining that strikes 'hold the society at ransom', should have taken into account that the number of man days lost due to strikes has gone down substantially during the last five years. Whereas there has been a steep rise in the man days lost due to lock-outs, due to closures and lay-offs (Annual Report of the Union Labour Ministry (2002-03). In 2001, man days lost due to lock-outs were three times more than those due to strikes. In 2002 (January-September) lockouts wasted four times more man days than strikes. Who is holding the production process to ransom? Definitely, not the workers. The Apex court preferred to overlook the recent strike by the business class against the value added tax and also the transport companies' strike against the judicial directive on usage of non-polluting fuel, both of which created much more chaos and inconvenience to the common people. It is submitted that the court came to a conclusion without looking at the industrial scenario in the present times. Should the apex court not consider banning closures, lock-outs, muscle-flexing by the business class etc., which not only put people to inconvenience but also throw the workers at risk of starvation?[12] Besides the Industrial Disputes Act, 1947, the Trade Unions Act, 1926 also recognizes the right to strike. Sections 18[13] and 19[14] of the Act confer immunity upon trade unions on strike from civil liability.

RIGHT TO STRIKE: CONSTITUTIONAL REALM

The Administrative Tribunals may act as speedy machinery for redressal of the grievances of the employees in the service matters, but when 1,70,000 employees are dismissed en masse ,as in T.KRangarajan v. State of Tamil Nadu[15] ,it is not a trivial service matter but a matter relating to right to life, that is a fundamental right guaranteed under Article 21 of the constitution. It becomes obligatory on the constitutional courts, which exercise the writ jurisdiction to embroil themselves in to the grave situation. Moreover the administrative tribunals are quasi judicial bodies which some times act according to the executive whims and fancies rather than judicial principles. Article 19 (c) of the Constitution of India provides freedom to form associations and unions. The term unions also include trade unions. The conditions of service of the central government employees are governed by the rules made by the president under Article 309 of the constitution or under the Act of the parliament enacted under the same rule. In Union of India v. Tulsi Ram Patel it was stated that the opening words of article 309 "subject to the provisions of the constitution" make it clear that the conditions of service, whether laid down by the legislature or prescribed by the rules, must confirm to the mandatory provisions of the constitution.
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Lawyersclubindia Article : RIGHT TO STRIKE- A LEGITIMATE ILLEGALITY

Article 43-A of the constitution speaks about the participation of workers in management of industries. It says that the state shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organizations engaged in any industry. If the workers require supporting their stand in parlance with the management an effective action like the right to strike needs to be at their reach. In Radhe Shyam Sharma v. Post Master General it was stated that Article 43-A of the Constitution clearly states that the State shall take steps by suitable legislation or in any other way to secure the participation of workers in the management of undertakings, establishments or other organisation engaged in any industry. The High-powered Expert Committee on Companies and MRTP Acts headed by Rajinder Sachar J. of the Delhi High Court has also made certain recommendations about provisions to be made for workers' participation in management of companies . Ahmadi J. in B.R. Singh v. Union of India observed: "The right to form associations or unions is a fundamental right under Article 19 (1) (c) of the Constitution. Section 8 of the Trade Unions Act provides for registration of a trade union if all the requirements of the said enactment are fulfilled. The right to form associations and unions and provide for their registration was recognized obviously for conferring certain rights on trade unions. The necessity to form unions is obviously for voicing the demands and grievances of labour. Trade unionists act as mouthpieces of labour. The strength of a trade union depends on its membership. Therefore, trade unions with sufficient membership strength are able to bargain more effectively; reduced if it is not permitted to demonstrate. "Strike in a given situation is only a form of demonstration. There are different modes of demonstrations, e.g., go-slow, sit-in, work-to-rule, absenteeism, etc., and strike is one such mode of demonstration by workers for their rights. The right to demonstrate and, therefore, the right to strike is an important weapon in the armoury of the workers. This right has been recognised by almost all democratic countries. Though not raised to the high pedestal of a fundamental right, it is recognised as a mode of redress for resolving the grievances of workers". It has become a ubiquitous practice to blame the workers for the man days lost due to the strike, but why arent the employers blamed for the lock outs? The industrialists according to their profit motive end up the lives of the dependent workers in enigma. The recent statistics show that the numbers of man days lost due to lock outs are more than that of strikes.

JUDICIARY ON RIGHT TO STRIKE A series of judicial decisions emphasized on the legality or the illegality of the strike, but did not impose a ban on the right to strike. In Management of Kairbeta Estate, Kotagiri v.Rajamanickan the full bench observed that, just as a strike is a weapon available to the employees for enforcing their individual demands, a lockout
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is a weapon available to the employer to persuade by a coercive process the employees to see his point of view and to accept his demands. In the struggle between the capital and the labour, the weapon of strike is available with the labour. It was also held that, strike a weapon to force the employer to accede to employees demand and to give them the legitimate dues is a strike which is recognised under the Industrial Disputes Act as defined in Sec 2 (q) . In Bank of India v.I.s.Kalewala the constitutional bench held that, whether the strike is legal or justified is question of fact to be decided with the help of the evidence on record. In Crompton Greaves Ltd v. Workmen the division bench held it that a strike is legal if it does not violate any provision of the statute. Again a strike cannot be said to be unjustified unless the reasons for it are entirely perverse and unreasonable. Whether a particular strike was justified or not is a question of fact which has to be justified in the light of the facts and circumstances of each case. In the case concerning Management of Chandramalai Estate, Ernakulam v. Its workmen a division bench judgment, there was a dispute between the management and the workers and the labour minister decided to arbitrate the matter. In this case it was held that the strike in protest of the recalcitrant attitude of the management in boycotting the conference, held on 23rd November, 1961 by the labour minister of the state was not unjustified. It was also held in this case that strike is legitimate and sometimes an unavoidable weapon in the hands of the workers. There may be cases where the demand is of such an urgent and serious nature that it would not be reasonable to expect labour to wait till after the government takes notice. In such cases, strike even before such a request has been made may well be justified.

RIGHT TO STRIKE: INTERNATIONAL PERSPECTIVES AND COLLECTIVE BARGAINING.

The rights of the workers to negotiate and collective bargain are won after a struggle for three centuries right from the beginning of the industrial revolution in 1765. ILO (International Labour Organization) guarantees these rights and many other labour rights with the help of international conventions. India is a founding member of the ILO and it is naturally expected that it doesnt violate the international labour standards. The two most important conventions in relation to right to strike are convention no. 87 (Freedom of Association and Protection of the Right to Organise Convention, 1948) and 98 (Right to Organise and Collective Bargaining Convention, 1949). Even though the convention does not refer to the right of strike, the ILO committee on experts has been regarding it as an essential part of the basic right to organize. In the opinion of the ILO committee of experts so long as a suitable and effective alternate remedy for dealing with the demands of the employees is made available there would be no objection to the right of strike being restricted. The scheme of the joint consultative Machinery which is at present functioning for dealing with the grievances of the Central government covers mainly class III and class IV employees of the central government. The scope of national and departmental council set up under the scheme includes all matters
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relating to conditions of service and work, welfare of the employees and improvement of efficiency . The convention No. 87 had been ratified by 144 countries and the convention No. 98 had been ratified by 154 countries . India has ratified neither of these two conventions. The main reason for our not ratifying these two Conventions is the inability of the Government to promote unionisation of the Government servants in a highly politicised trade union system of the country. Freedom of expression, Freedom of association and functional democracy are guaranteed by our constitution. The Government has promoted and implemented the principles and rights envisaged under these two Conventions in India and the workers are exercising these rights in a free and democratic society. Our Constitution guarantees job security, social security and fair working conditions and fair wages to the Government servants. They have also been provided with alternative grievance redressal mechanisms like Joint Consultative Machinery, Central Administrative Tribunal etc . Even though, these conventions were not ratified, the requirement was not felt prior to the Supreme Court judgment banning the right to strike. The principal objects of the Industrial Disputes Act 1947, as analysed by the Supreme Court in the case of Workmen of Dimakuchi Tea estate v. Management of Dimakuchi Tea Estate (1) promotion of measures for securing amity and good relations between the employer and the workmen. (2) relief to workmen in the matter of lay off, retrenchment and closure of an undertaking. (3) collective bargaining.

INTERNATIONAL TREATIES

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Article 8 (1) (d) of the International Covenant of Economic, Social and Cultural Rights (ICESCR) provides that the States Parties to the Covenant shall undertake to ensure: "the right to strike, provided that it is exercised in conformity with the laws of the particular country. Article 2 (1) of the Covenant provides: "Each State Party to the present Covenant undertakes to take steps, ... with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures". India is a signatory to the Covenant and is therefore bound under Article 2 (1) to provide for the right to strike as enshrined in Article 8 (1) (d), through legislative measures or by other appropriate means. Thus, the aforesaid domestic laws are the by-products of the international obligations and cannot be read casually as has been done in the Rangarajan case. The blanket ban on the right to strike also transgresses the limits of the Conventions of the International Labour Organization (ILO). Convention 87 relates to Freedom of Association and Protection of the Right to Organize. Convention 98 refers to the Right to Organize and Collective Bargaining. Both Conventions have been ratified by 142 and 153 nations respectively including Australia, France, Germany, Italy, Japan, Pakistan, Sri Lanka, Pakistan and the United Kingdom. Both the conventions, along with eight other conventions, have also been identified by the ILO's Governing Council to be its core conventions. Convention 154 is the Collective Bargaining Convention, 1981. The Preamble to this Convention reaffirms the provision of the Declaration of Philadelphia recognising "the solemn obligation of the International Labour Organisation to further among the nations of the world programmes which will achieve ... the effective recognition of the right of collective bargaining". Further the Convention is not restricted to labour trade unions. Article 1 of the Convention states "Convention shall apply to all branches of economic activity". Public employees are also not exempted from the above. Convention 151 is the Labour Relations (Public Service) Convention, 1978. Article 9 of the Convention provides: "Public employees shall have, as other workers, the civil and political rights which are essential for the normal exercise of freedom of association, subject only to the obligations arising from their status and the nature of their functions". Though India is not a signatory to any of the above-mentioned ILO Conventions, it has been a member of the ILO since 1919. The ILO Declaration on Fundamental Principles and Rights at Work states: "The International Labour Conference, ... Declares that all Members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of membership in the Organization, to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions, namely: freedom of association and the effective recognition of the right to collective bargaining". Therefore, by virtue of being a member of the ILO, India is under obligation to satisfy at least the fundamental rights promoted by the Conventions, irrespective of it having ratified them or not. Further, India is not an ordinary member of the ILO, but one of the founding members of the Organization. After 85 years of this relationship that India has had with the Organization, our Apex court has refused to adhere to the fundamental tenets of the ILO.
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LEGAL INTERPRETATION COVENANTS

TO

BE

IN

CONSONANCE

WITH

INTERNATIONAL

Of the Directive Principles of State Policy enshrined in Part IV of the Constitution, Article 51(c) provides that the State shall endeavour to foster respect for international law and treaty obligations in the dealings of organized people with one another. Article 37 of Part IV reads as under: :Application of the principles contained in this Part.- The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws". A conjoint reading of Articles 51(c) and 37 implies that principles laid down in international conventions and treaties must be respected and applied in governance of the country. In Vishaka v. State of Rajasthan[16] Justice Verma opined that any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. This is implicit from Article 51(c) and the enabling power of Parliament to enact laws for implementing the international conventions and norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution. In People's Union for Democratic Rights v. Union of India[17], the Court followed the International Covenant of Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Universal Declaration of Human Rights (UDHR) and International Labour Organization's conventions, to interpret and expand the ambit of Article 21 of the Constitution. In Life Insurance Corporation of India v. Consumer Education and Research Centre[18] it was held that fundamental rights are subject to the directives enshrined in Part IV of the Constitution, the UDHR, the European Convention of Social, Economic and Cultural Rights, and other international treaties such as the Convention on Rights to Development for Socio-Economic Justice.
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It is thus settled that the raison d' etre of Article 51(c) is to introduce and implement various international instruments particularly the UDHR, ICCPR and the ICESCR in the interpretation of fundamental and legal rights[19]. Therefore, the right to strike as contemplated by these Covenants and by the ILO conventions is well within the ambit of constitutional (Articles 19 & 21) as well as legal provisions (Trade Unions Act, 1926, & Industrial Disputes Act, 1947). Thus, the decision in Rangarajan stands in disrespect to the provisions of international law.

MISAPPLICATION OF HARISH UPPAL CASE AND BHARAT KR. PALICHA CASE The Rangarajan case relies on a number of case laws dating back to the 1960s (Kameshwar Prasad & AIBE Association). The only recent judgments that the Court relied upon - namely, Harish Uppal[20] and Bharat Kr. Palicha[21] - to demonstrate that there is no right to strike seem to have been misapplied, contrary to their letter and spirit. In Harish Uppal the court held that advocates have no right to strike. However the court also opined "in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day". The court, therefore, acknowledges that the right to strike exists and which can be exercised if a rare situation demands so. The apex court has only tried to restrict the right to strike of advocates with regards to the significant role they play in the administration of justice. For all others' this sacred right holds good force. The judgment especially recognizes the right with regard to industrial workers where it states that advocates
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do not have a right to strike as "strike was a weapon used for getting justice by downtrodden, poor persons or industrial employees who were not having any other method of redressing their grievances". In Communist Party of India (M) v. Bharat Kumar and others[22], the apex court has held 'bundhs' to be unconstitutional. The same is relied upon in the Rangarajan case. However the court failed to notice that the judgment does not keep a 'bundh' and a general strike on the same pedestal. Where, on the one hand, a 'bundh' is unconstitutional, a 'hartal' or a general strike is very much legal. The Rangarajan case suffers from an illegality insofar as it attempts to place a blanket ban on all kinds of strikes irrespective of whether they are 'hartals' or 'bundhs'. The same difference was lucidly explained in Bharat Kr. Palicha, where Justice Balasubramanyan opined: "Bundh" is a Hindi word meaning "closed" or "locked". The expression therefore conveys an idea that everything is to be blocked or closed. Therefore, when the organisers of a bundh call for a bundh, they clearly express their intention that they expect all activities to come to a standstill on the day of the bundh. A call for a bundh is obviously distinct and different from the call for a general strike or the call for a hartal. The intention of the callers of the bundh is to ensure that no activity either public or private is carried on on that day. Thus, it is sought to suggest that a right to strike is a recognized legal right and the Rangarajan case is per incuriam on the above mentioned grounds. It is indisputable that there exists a right to strike. In support of this , we put forth two hypothesis: 1) That the main object of the Industrial Disputes Act, 1947 is to promote alternative mechanisms for dispute settlement as against strikes. 2) Strike is a 'weapon of last resort' and must be sparingly used.

INDUSTRIAL DISPUTES ACT, 1947 The Industrial Disputes Act, 1947 refrains generally the Trade Unions from going on strike. Its focal thrust is on more efficient alternative mechanisms for dispute settlement, such as, reference to Industrial Tribunals,
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Lawyersclubindia Article : RIGHT TO STRIKE- A LEGITIMATE ILLEGALITY

compulsory adjudication, conciliation, etc. In fact the very intention behind its enactment as illustrated in the Statement of Objects and Reasons, was to overcome the defect in the Trade Unions Act, 1926, which was, that it imposed restraints on the right to strike but did not provide for alternative settlement of the disputes. The Statement further reads as under: "The power to refer disputes to Industrial Tribunals and enforce their awards is an essential corollary to the obligation that lies on the Government to secure conclusive determination of the disputes with a view to redressing the legitimate grievances of the parties thereto, such obligation arising from the imposition of restraints on the rights of strike and lock-out, which must remain inviolate, except where considerations of public interest override such right". Thus, the concept of alternative settlement mechanisms in industrial disputes was statutorily ushered in the Act with a view to providing a forum and compelling parties to resort to the forum for arbitration so as to avoid confrontation and dislocation in industry, that a developing country like India can ill-afford. Peace and harmony in industry and uninterrupted production being the demand of the time, it was considered wise to arm the Government with the power to compel the parties to resort to arbitration and a necessary corollary to avoid confrontation and trial of strength which are considered wasteful from national and public interest point of view[23]. Sections 4, 5, 6, 7, 7A, 7B, 9, 10 and 10A of the Industrial Disputes Act, 1947 provide alternative measures for settlement of industrial disputes elaborately. Section 4[24] of the Act provides for a diplomatic procedure which endeavours to settle a controversy by assisting parties to reach a voluntary agreement and the ultimate decision is made by the parties themselves[25]. The conciliation machinery provided for in the Act, can take note of the existing as well as apprehended disputes either on its own or on being approached by either of the parties. Since the final decision is with the parties themselves, they cannot complain that their practical freedom has been impaired or that they have been forced into a settlement which is unacceptable to them[26]. Section 6 provides for the constitution of a Court of Inquiry, that enquires into the merits of the issues and prepares a report on them that is "intended to serve as the focus of public opinion and of pressure from Government authorities"[27]. Section 10 A provides for voluntary arbitration. Voluntary arbitration seems to be the best method for settlement of all types of industrial disputes. The disputes can be resolved speedily and is less formal than trials. The greatest advantage of arbitration is that there is no right of appeal, review or writ petition. Besides, it may well reduce a company's litigation costs and its potential exposure to ruinous liability apart from redeeming the workmen from frustration[28]. Apart from these, Sections 7, 7A and 7B deal with the constitution of adjudicatory authorities, viz., Labour Courts, Tribunals or National Tribunals, respectively. It is submitted that these alternative machinery for settlement of industrial disputes are proving to be highly effective. Report of the National Commission on Labour[29], according to which "during the years 1959-66, out of the total disputes handled by each year, the percentage of settlements had varied between 57 and 83. The remaining disputes, it is reported, were settled mutually referred to voluntary arbitration or arbitration under the Act or to adjudication or were not pursued by the parties. During the period 1965-67, the percentage of settlements reached in Bihar ranged from 51 to 86, in Assam from 65.5 to 92.3. In U.P., Punjab and Delhi, in the year 1966, the percentage of disputes settled was 60, whereas in Kerala it ranged
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Lawyersclubindia Article : RIGHT TO STRIKE- A LEGITIMATE ILLEGALITY

around 80 per cent. The statistics for settlement of disputes by alternative mechanism are greater those for that by strike where the disputes are mainly left unresolved. The provision of such an elaborate and effective mechanism for settlement of industrial disputes, along with a reading of the Statement of Objects and Reasons, is a definitive indication of the fact that the statute enshrines a preference to these alternative mechanisms over strikes.

WEAPON OF LAST RESORT While on the one hand it has to be remembered that a strike is a legitimate and sometime unavoidable weapon in the hands of labour, it is equally important that indiscriminate and hasty use of this weapon should not be encouraged. It will not be right for labour to think that any kind of demand for a 'strike' can be commenced with impunity without exhausting the reasonable avenues for peaceful achievement of the objects. There may be cases where the demand is of such an urgent and serious nature that it would not be reasonable to expect the labour to wait after asking the government to make a reference. In such cases the strike, even before such a request has been made, may very well be justified[30]. In Syndicate Bank v. K. Umesh Nayak [31], Justice Sawant opined: "The strike, as a weapon, was evolved by the workers as a form of direct action during their long struggle with the employer, it is essentially a weapon of last resort being an abnormal aspect of employer-employee relationship and involves withdrawal of labor disrupting production, services and the running of enterprise. It is a use by the labour of their economic power to bring the employer to meet their viewpoint over the dispute between them. The cessation or stoppage of works whether by the employees or by the employer is detrimental to the production and
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Lawyersclubindia Article : RIGHT TO STRIKE- A LEGITIMATE ILLEGALITY

economy and to the well being of the society as a whole. It is for this reason that the industrial legislation, while not denying for the rights of workmen to strike, has tried to regulate it along with the rights of the employers to lockout and has also provided a machinery for peaceful investigation, settlement arbitration and adjudication of dispute between them. The strike or lockout is not be resorted to because the concerned party has a superior bargaining power or the requisite economic muscle to compel the other party to accept its demands. Such indiscriminate case of power is nothing but assertion of the rule of 'might is right'". Thus, initially, employees must resort to dispute settlement by alternative mechanisms. Only under extreme situations when the alternative mechanisms have totally failed to provide any amicable settlement, can they resort to a strike as a last resort. CONCLUSION In Kameshwar Prasad the Apex court had settled that the right to strike is not a fundamental right. But time and again the Court has also settled that the right to strike is a legal right, one that is recognized by most democratic countries of the world. In ignoring this, Rangarajan is a mere passionate rendering of a judge's personal views. It is said that law is 'reason without passion'. And Rangarajan fails to scintillate our reason. Evidently, the Supreme Court was carried away by the fact that merely two lakh Government employees went on strike in the instant case and the Government machinery came to a standstill. It seems to have also been influenced by the fact stated by senior counsel for the State Government, K. K. Venugopal, that 90 per cent of the State's revenue in Tamilnadu is spent on salaries of Government servants[32]. The court was, thus, swayed by liberal economics. It is true that Government employees everywhere are paid better salaries and enjoy more privileges and amenities than other employees. The public sympathy is generally against Government employees who go on strike. But that is no justification for the Supreme Court to say that Government employees have no moral justification to go on strike in every case[33]. In any event, when an action can be justified in law, there is no need to invoke morality and equity. At the same time it is also avowed that an unrestricted right to strike is unsought for. Therefore, it is important to pursue strengthening of alternate mechanisms for dispute settlement on the lines of the Industrial Disputes Act, 1947. For government servants[34] also efforts were made to establish a Joint Management Council to act as an alternative mechanism for settlement of disputes. It was a good attempt in this direction and needs to be revived. Only under extreme circumstances and when these alternate mechanisms have failed to render an amicable solution, must the right to strike be used as a weapon of last resort. Unless the strike is banned with in the meaning of Sec 22 (1) of the Industrial Disputes act, the same cannot be termed as illegal attracting Sec 24 of the Act. Section 22(1) provides that no person employed in public utility service shall go on strike in breach of contract : (a) without giving to the employer notice of the strike 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 afore said ; or (d) during the pendency of any conciliation proceeding before a conciliation officer and seven days after the
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Lawyersclubindia Article : RIGHT TO STRIKE- A LEGITIMATE ILLEGALITY

conclusion of such proceedings. This legislation makes a point clear that the courts presumed the right to strike as a legally justifiable right. The point in which the courts were traditionally interfered was with the legality of the strike and not the right to strike. For a worker the right to strike is fundamental as it is intertwined with very source of livelihood. It is expedient on the judiciary, at least the apex judiciary to recognise this right for the working class to survive in a mixed economy. Even though there is no express statement in our constitutional law incorporating in it the doctrine of separation of powers, in the interpretation of the Constitution, this Court has broadly adopted the said doctrine in Indira Nehru Gandhi v. Shri Raj Narain and others . Even though by virtue of its powers by interpretation of law the court in an indirect way is making law, it should be stated that there are well recognised limitations on the power of the court making inroads into the legitimate domain of the legislature. If the legislature exceeds its power, this Court steps in. If the executive exceeds its power, then also this Court steps in. If this Court exceeds its power, what can people do ? Should they be driven to seek an amendment of the law on every such occasion ? The only proper solution is the observance of restraint by this Court in its pronouncements so that they do not go beyond its own legitimate sphere . It is expedient on this court to recognise the right to strike in this context to provide the legitimate locus for the workers.

[1] 2003 SOL Case No. 429. [2] (1962) Supp 3 SCR 369 [3] AIR 1962 SC 171 [4] Bank of India v. T.S. Kelawala, 1990 (4) SCC 744. [5] [1990] Lab I.C. 389 (396) (S.C.) [6] AIR 1980 SC 1896 [7] Bangalore Water Supply & Sewerage Board v. A. Rajappa, AIR 1978 SC 548 [8] It was held that the right to strike as a mode of redress of the legitimate grievances of the workers and the employees
is expressly recognized under the ID Act. 1979 Lab IC 1079 (1084) (DB) (Punj) [9] Gujarat Steel Tubes v. Its Mazdoor Sabha, AIR 1980 SC 1896. [10] [1960] II L.L.J. 275 (S.C.) [11] Id. at 278 [12] Sen, Tapan, Right to Strike is Inalienable, People's Democracy, Vol. XXVII, No. 35, Aug. 31, 2003 [13] S. 18 provides for immunity from legal proceedings in respect of any act done in contemplation or furtherance of any trade dispute on the sole ground of inducing person to break a contract of employment.

[14] Enforceability of agreements.- Notwithstanding anything contained in any other law for the time being in force, an agreement between the members of a registered trade Union shall not be void or voidable merely by reason of the fact that any of the objects of the agreement are in restraint of trade.
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[15] supra [16] (1997) 6 SCC 241 at 249 [17] AIR 1982 SC 1473 at 1487 [18] (1995) 5 SCR 482 [19] Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526; Mackinnon Mackenzie and Co. Ltd. v. Andrey D' Costa,
(1987) 2 SCC 469; Sheela Barse v. Secy., Children's Aid Society, (1987) 3 SCC 50, 54; Vishakha v. State of Rajasthan, (1997) 6 SCC 241; People's Union for Civil Liberties v. Union of India, (1997) 3 SCC 433; D.K. Basu v. State of W.B., (1997) 1 SCC 416, 438; Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759. [20] Ex. Capt. Harish Uppal v. Union of India, AIR 2003 SC 43.

[21] Bharat Kumar K. Palicha v. State of Kerala, 1998 (1) SCC 202. [22] (1998) 1 SCC 201 [23] Workmen of Hindustan Lever Ltd. v. Hindustan Lever Ltd., [1984] Lab I.C. 276 (SC), per Desai, J [24] 4. Conciliation Officers.- (1) The appropriate Government may, by notification in the Official Gazette, appoint such
number of persons as it thinks fit, to be conciliation officers, charged with the duty of mediating in and promoting the settlement of industrial disputes.

[25] Malhotra, O.P., The Law of Industrial Disputes, Vol. I, 5th Ed., Universal Law Publishing Co., Delhi, 1998 at p. 12.

[26] Note- One of the most important Section are, 10 and 10A, which talk about references of Disputes to Boards, Courts
or Tribunal. Section 10(1) states: Where the appropriate Government is of the opinion that any Industrial Dispute exists or is apprehended, it may at any time, by order in writing, Refer the dispute to the Board for promoting a settlement thereof. Refer any matter appearing to be connected with or relevant to the dispute to a court for inquiry. Refer the dispute to a Labour Court. Further Section 10A talks about voluntary reference of disputes to Arbitration. Section10 A (1) states that "Where any industrial dispute exists or is apprehended and the employer and the workmen agree to refer the dispute to arbitration, they may at any time before the dispute has been referred to under Section 10, by a written agreement refer the dispute to arbitration and the reference shall be to such person or persons as an arbitrators as may be s[specified in the arbitration agreement".

[27] International Encyclopedia of Social Sciences, Vol. 8, p. 508. [28] Karnal Leather Karamchari Sanghathan v. Liberty Footwear Co. [1990] Lab I.C. 301 at 307 (SC), per Jagannatha
Shetty, J.

[29] Chapter 3.- Industrial Relations-1, under the heading 'Conciliation', para 23, 16 at p. 322 [30] Chandra Malai Estate, Ernakulum v. Its Workmen31, per Das Gupta, J.

[31] . [1994] II L.L.J 836 (SC)


[32] A. Kuppuswami, The Right to Strike, The Hindu, Sep 10,2003,at 10. [33] Id.

[34] See also Article 8 of Convention 151 of the ILO - Labour Relations (Public Service) Convention, 1978, that provides:
The settlement of disputes arising in connection with the determination of terms and conditions of employment shall be sought, as may be appropriate to national conditions, through negotiation between the parties or through independent and impartial machinery, such as mediation, conciliation and arbitration, established in such a manner as to ensure the confidence of the parties involved.

Source : NONE - NONE

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