STRIKES AND LOCK-oUTS IN INDIA:
LAWAND POLICY *
Suresh C. Srivastava **
I. INTRODUCTION
With the .rapid industrialisation of the country the problems of
labour management relations concerning strikes and lock-outs have
multlplied. In many Industrially advanced countries the system of
collective bargaining has been adopted to resolve problems of wages
and to regUlate conditions of employment. India, which is passing through
a transition has adopted adjudication system as an alternative to
collective bargaining. Further the law relating to strikes and lock-outs is
regulated not only by what is generally known as labour legislation but
also by the provisions of the Constitution, the criminal law and other
statutes which aim at preserving law and order In the country.
2. Strikes result in work-stoppage which, in its tum adversely affects
production. The loss of production not only reduces the profit-making
capacity of the employer but also affects his delivery schedule and other
business commitments. Workers hope that the employer would concede
their demands In order to contain this resulting economic loss. At the
same time, under the principle "no work, no wages", the workers do
not earn wages for the strike period and this loss of earnings exerts
pressure on the workers themselves. because, in view of the general
pove/W and low level of wages, they seldom have any saVings for the
rainy day. In lock-out, it Is the employer who first draws the sword. But,
otherwlse,'the position Is exactly the same. Be that as it may, strikes and
lock-outs in public utility services Invariably Inconvenience public. Indeed
such Inconvenience Is a part ofthe objective of the combatants so as to
invite public condemnation of the alleged unreasonable attitude of the
opposite party and strengthen their own bargaining position.
3. Under the circumstances, the community cannot remain a silent
and helpless spectator In the economic warfare between employers and
workers. The extent and nature of community involvement, however,
varies not only from country to country but within the same country from
* The Paper presented at the 2nd International Seminar on labour law organised by
LAWASIA Standing Committee on Labour Lawat New Delhi on 28-30 Sept. 1990.
** LL.D. (Calcutta), Professor of Law, Kurukshetra University & U.G.C. National Fellow,
Formerly Dean, Faculty of Law, Kurukshetra University and University of Calabar,
Calabar (Nigeria).
12 CENTRALINDIA LAWQUARTERLY [Vol. 4:1
time to time. This paper seeks to critically examine the law relating to
strikes and lock-outs in India.
II. STATUTORY DEFINITION OF STRIKE
4. Section 2 (q) of the Industrial Disputes Act. 1947 defines "strike"
to mean:
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.
Judicial delineation of the aforesaid expression of "strike" is confusing,
inadequate and inapt. While some of these may be the result of
Imprecise legislative definition, ignorance of the facts of industrial life and
lack of policy oriented approach have also contributed to the prevailing
confusion.
A. The Element of Combination
5. The definition recognises concerted act jon under common
understanding on the part of strikers as an essential element of strike. The
expression "concerted" action has been planned, arranged, adjusted or
agreed on and settled between parties acting together pursuant to some
design or scheme 1SANJAY . The emphasis in strike is on acting together
and not on pre-planning or preamingiflg: the parties who resort to strike,
may come to a common understanding at the time in question without
any formal agreement or consultations but nevertheless the concerted
action must be collectively combined on the basis of spirit de corpse and
must be combined together by the community of demands and interest
with a view to compel employer. to accede to their demands of wages,
bonus, allowances, hours of workholidays and the like. 2 The length or
duration of the "concerted" action is immaterial. 3
B. Forms of Strike
6. Most of the cases present relatively simple instance of "cessation
of work" "refusal to continue to work" or "refusal to accept
employment." 4 while negotiating for settlement of an industrial dispute,
workmen may resort to the use of instruments of economic coercion to
1. Shamnagar Jute Factory v. Their Workmen,.(1950) 1L.L.J. 235(I.T.)
2. D.N. Banerjeev. P.R. MUkherJee, AIR(1953) S:C.58.
3. See Supra note 1.
4. DiamondMachinery Mfg. Works v. TheirWorkers, (1952) 1 L.L.J. 137.
1991 ) STRIKES AND LOCK-OUTS IN INDIA 13
get their points of viewaccepted by the management. The workmen may
remain at their respective home or at any place, other than the place of
their work or may even be present, at, near or within the premises or the
place of employment but not at their seats. However, difficult questions
arise when workmen deviate from traditional methods. What about
stay-in-strike, pen-down strike, tool-down strike, go-slow, hunger stike,
sympathetic strike, and work-to rule? Do they fall within the meaning of
the definition of strike 5 as defined in Section 2(q) of the IDA?
1. Stay-in-Strike: Sit"down Strike: Pen-Down Strike or
Tool-Down Strike
7. Decision makers 6 and writers 1 have used the expressions
"stay-in-strike," 8 sit-down strike",9 "pen-down strike" 10 and "tool
down strike" 11 as synonym of each other.
8. In the Punjab National Bank Ltd. v. Their Workmen 12 ,
one Sabbarwal, a typist and Secretary of the Punjab National Bank
5. The National Commission on Labour, while considering the adequacy or otherwiseof
the definition of "strike" under Section 2(q) of the IDA declined to include concerted
action such as "go slow" and "work-to-rule" in the definition of "strike." According
to the Commission the labour protest, such as "go-slow" and ''work-to-rule'' should
be "treated as misconduct or unfair labour practices under the standing orders" (See
the Report of the National Commission on Labour, 1969, p.483). The Industrial
Relations Bill, 1978also did not include the aforesaid forms of labour protest in the
definition of "strike" under Section 2(43). .
6. See Puntab National Bank ltd. v. Their Workmen, (1959) 2 L.L.J. 666 (S.C.) sadul
Textile Milia v. Their Workmen, (1958) 2 L.L.J. 628 (Rajasthan ); Howrah Foundry
Work. v. Their Workmen, (1955) 2 L.L.J. 97 (LT.): Shalimar Work. v. Their
Workmen, (1955) 2 L.L.J.95 (LAT.): Dalmla Cement Co. v. ThelrWorkmen, (1955)
2 L.L.J. 466 (LAT.)
7. These strikes were first used in the United Statesof America and France. They set
their foot on the Indiansoil in April, 1939.Thethen Congressgovernment washesitant
to declare them illegal. They attracted the attention of Indian Judiciary In 1952. Early
decision makers held that it was an invasion of the rights of the employer in the
property of the Mill. See generally .Dwarkadas KanJI, Forty Five years with
Labour, 1962, p.53. ~ t in Punjab Natlonall'ank Co. supra note 6 the Supreme
Court took a somewhat different view.
8. See Ludwig Teller, 1 Labour Disputeand Collective Bargaining 31 referredto and
approved in Punjab National Bank v. TheIr WOrkmen, op.clt, pp. 666-687. See
also Sadul Textile Mills v. their Workmen, supra note 6 at 628. Chelpark Co.
Ltd. v. eommla8loner of Police (1967) 2 L.L.J. 836 (Madras); Mysore Machinery
Mfg. Co Ltd. v, State of Mysor:e (1967) 2 L.L.J. 853, (Madras); Shalimar Works
ltd. v. Their Workmen, op.clt. P.363; indian Machinery Co. v. their Workmen,
(1957) LAC. 539; Dalmla cementUd. v. TheIr Workmen, (t967) 2 L.L.J. 56
(LAT.)
9. Ibid.
10. SeePunjab National Bank v, Their Workmen, (t959) 2 L.L.J. 666 (S.C.)
11. See for instance, Lakshmi Devi Sugar Mill v. Ram Swaroop (1957) 1L.L.J. 22 (S.C.).
12. Punjab National Bank Ltd. v. Their Workmen (1952) 1 L.L.J. 531 (T.T.) on appeal
(1952) 2 L.L.J. 648 and on special appeal (1959) 2 L.L.J. 666 (S.C.)
14 CENTRALINDIA LAWaUARTERLY [Vol. 4:1
Employees' Union of Delhi, applied for 7 days leave. The management
declined to grant him leave. Even so Sabbarwal absented himself from
duty. On resumption of duties, he was charge-sheeted for absence
without leave. However, Sabbarwal refused to accept the show-cause
notice. The management thereupon sent it to him by registered post and,
pending further enquiry, suspended him. The employees Union
instructed employees to stick 'to their seats and to refuseto work until
police intervened and threatened arrest or until orders of discharge or
suspension were served on them. This the co-employees of
Sabbarwal did. Meanwhile a turbulent crowd gathered outside the
premises of the Bank. Some of the persons in the crowd shouted slogans
in support of the action of the employees. The management suspended
60 of the aforesaid participating employees. This led to a near
industry-wide, strike in Delhi and State of Uttar Pradesh. The Bank gave
notice that unless the strikers resumed their duties by a specified date,
they would be treated as having voluntarily ceased to be employees
and ontheir failure, to report to duty on the specified date, terminated
the services of 150 of its emplyees after giving them another chance
to resume their duties.
9. On these facts. a question arose as to the nature of the
employees' activities in sticking to their seat but refusing to work. The
Supreme Court recognised that the main grievance of the bank was
that the employees not only sat in their places and refused to work but
they did, not vacate their seats when they were asked to do so by their
superior officers. However, it considered such' an "element of
insubordination to' be a different matter" and relevant for ,interpreting
the definition of "strike" and on a plain and grammatical construction of
the definition held.
Refusal under common understanding, to continue to
work is a strike and if in pursuance of ,such common
Understanding the employees entered the premises and
refused to take their pens in their hands, that would no
doubt be a strike under Section 2 (q) . 13, '
We believe that the emphasis on Ilterallnterpretation resulted in Ignoring ,
the conceptual understanding of the phenomenon known as strike
and in encouraging undesirable-,activit•.
13. Punlab NatIonal Bank Ltd. v. Their Workmen, op.cit., p,684.
1991 ]
2. Go-Slow
STRIKES AND L O C K ~ O U T S IN INDIA 15
.
10. Not frequently workers deliberately slow-down the pace of
production. There is no "cessation of work" or "refusal to continue to
work" or "refusal to accept employment." But, nevertheless, the
economic implications are very serious: the cost of production goes
up, delivery schedule gets upset and very often, raw material and
machinery are adversely affected. Workers adopt this practice to
circumvent the statutory restrictions 14 on strike. However, when they
are disciplined for misconduct, they assert that the practice amounts to
strike. 15 Obviously, they cannot be permitted to blowhot and cold at the
sametime. But, then the all important question is whether this practice,
popUlarly called, "go- slow" is strike? The definition of "strike" usesthe
phrases "cessation of work".. "refusal to continue to work" and "refusal
to accept employment." Tbsse phrases are not qualified by the
expression "total" or "partial." 16
11. In Bharat Sugar Mills Ltd. v. Jai Singh. 17 Justice Das
Gupta, speaking for the Supreme Court observed:
Go- slow which is a picturesque description of
deliberate delaying of production by workers pretending
to be engaged in the factory is one of the most pernicious
practices that discontented or disgruntled workmen
sometime resort .to. It would not be far wrong to call
this dishonest. For, while thus delaying production and
thereby reducing the output, the workmen claim to have
remained employed and thus to be entitled to full wages.
Apart from this also, 'go-slow' is likely to be much more
harmful than total cessation of work by strike. For, while
during a strike much of the machinery can be fully
turned off, during the "go-slow" the machinery is kept
going on at a reduced speed which is often extremely
damaging to machinery parts. For all these reasons
14 Sections22,23, &10 (3).
15 See for Instance, Firestone Tyre and Rubber Co. of India Ltd. v, B. Shetty. (1953)
1 L.L.J. 599. (LAT.); upheld by the Bombay High Court in (1954) 1 L.L.J. 281
(Bombay).
16 Clause 2(34) of the Industrial Relations Bill, 1978has defined "Strike," inter alia, to
mean: Total or partial cessationof work by abody of personsemployed in anyindustrial
establishment or undertaking .... (emphasis added)
17 Bharat Sugar Mills Ltd. v. Jal Singh, (1961) 2 L.L.J.
16 CENTRAL INDIA LAW QUARTERLY [Vol. 4:1
"go-slow" has always been considered a seridus type
of misconduct. 18
12. The expression "cessation of work", "refusal to continue to
work" and "refusal to accept employment" have been equated with
stoppage of work. But as the Labour Appellate Tribunal pointed out in
Fine Knitting Company Ltd. 19
It is not suggested anywhere in record that in this case
there was wort< stopped at any time. All that the
Company pleaded and that the Industrial Court has found
is that there was a slow - down. Hence there was no
strike (emphasis supplied) 20
3. Hunger Strike
13. Hunger strike is a strike with fasting by some or all strikers,21 0r
even outsiders 22 super added to exert moral force or, perhaps what
may be more aptly described as coercion, for acceptance of the
demands. Its usage, however, is complicated because, like the word
strike. it is used to describe all protest fasts. whether or not the
particular protest activity is in furtherance of an industrial dispute.
23
18 Ibid page 64.
19 Fine Knitting Company (1957) 1 L.l.J. 409. Seealso Firestone Tyre and Rubber
Co. v . Bhola Shetty, (1953) 2. L.L.J. 499 (LAT.) where the Labour Appellate
Tribunal also denouncedthe go-slowtechniqueandrefused to equateit with strike.
20 Fire Knitting Compeny Ltd., op. c"., pAl 1.
21 Plpralch Sugar Mills v. Their Workman, (1956-57) X FJR4113 (LAT.). Certain
workmenwho held key posts in the factorywent on a hunger strikeon a holiday at
the residence of the Managing Director of the factory and continued to do so on
other working days. Observed the Labour Appellilate Tribunal.
Themere fact that the hunger strikewas stagedon...... a holiday, does not reduce
the essential characteristics of strikefrom this hunger 'satyagraha' for the intention
of the·strikers was to continue it til.1 their demands were met or till they died of
starvation.
22 It is not claimed on behalf of those satyagrahi workers that they did present
themselves for their duty on the 2nd of April 1953. So it must be held that this
hunger strike "satyagrah" was continuing on 2nd April, 1955 and amounted to
"strike".
23 Thus, students are said to be on hunger strike to press their demands against
educational authorities, political leadersare said to be on hunger striketo compel
the government to redresstheir grievances and various Sections of community are
said to be on hunger strike in support of their stand against various authorities or
bodies.
1991 1 STRIKES AND LOCK-OUTS IN INDIA 17
4. Lightning or Wildcat Strike
14. The characterstic feature of this type. of withdrawal of labour is
that the workmen suddenly withdraw their labour and bargain
afterwards.
24
Such strikes are prohibited in public utility services under
the Industrial Disputes Act 1947 25 and all industrial establishments in
public utility services in U.P., Maharashtra , M.P. and GUjarat, where
notice is required to be given. Furtherthe standing'ordersof the company
generally require notice. Since no notice is required in industrial
establishments other than the public utility concern a question, therefore,
arises whether the act in such a situation would be a misconduct or
unjustitied. These questions have been subject- matter of judicial
'controversy.
15. In Swami Oil Mills v. Their Workers
26
certain workmen
resorted to sudden lightning strike allegedlyon failure of the Government
to refer the dispute to the Tribunal. The question for consideration with
respect to strike was whether it was either illegal or unjustified. The
Tribunal held that the strike was not illegal and unjustified. But observed:
"It must be conceded that a suddenlightning strike, such as
the one in question, without any previous notice to the
management, cannot be looked upon as quite proper....27
16. In Sadul Textile Mills v. Their Workmen 28 certain workmen
struck work as a protest against the lay-off and the transfer of some
workers from one shift to another without giving four day's notice
provided by standing order 23. On these facts the question arose
whether the strike was justified. The Industrial Tribunal answered it in
affirmative. Against this a writ petition was preferred in the High Court of
Rajasthan. Reversing the decision of the Tribunal Justice Wanchoo
observed:
......we are of opinion that what is generally known as a
lightning strike like this takes place without notice
provided by the standing orders and each worker striking
are gUiltyof misconduct under the standingorders ...... and
liable to be s ~ m m a r i l y dismissed; the strike cannot be
justified at all.
24 Kothari, Labour Lawand Practice, (1964), p. 66.
25 Section 22.
26 Swami Oil Mills v. Their Workers, (1953) 2 L.U. 785
27 Id. at 790.
28 Sadul Textile Mills v, Their Workmen, (1958). 2 L.L.J. 628 (Rajasthan).
29 !d. at 630.
18 CENTRAL INDIALAW QUARTERLY [Vol. 4:1
5. Work-to-Rule
17. In this form of concerted activity employees, though remaining on
job, do the work literally in accordance with rules or procedure laid down for
the purpose, decline to do anything not mentioned therein, take all
permissible time off the job, and do the work in such a manner that it results
in dislocation of the work. Usually rules of work are stretched and followed in
such a manner that under the shelter of complying with rules the very
purpose of these rules, namely, harmonious working for maximising
production, is frustrated. In these tactics the workers literally work according
to rules but in spirit therefore they work against; though they are called "work
to rule" tactics, in substance they amount to "work against rule tactics."
These tactics are generally employed as an alternative to traditional strike,
particularly, where traditional strike cannot be called. Whatever may be the
form of compliance with the rules and whatever may be the outward
manifestation, in substance, the conduct of employees amounts to
compliance in a manner not in conformity with the prevailing normal practice
and in harmony with expectation then entertained, it amounts to bringing
about linilateral changes in the working system by the employees and it is a
misconduetfor which the employer is justified in taking action.
18. In USA these tactics are recognised as a form of strike. But, in India
they are not covered by the definition Of"strike". Asin go-slow, so here; there
is no "stoppage" of work. Again for the very reason because of which we are
against extension of definition of "strike" to indude go- slow, we are also
against inclusion of work-to-rule within the ambit of "strike".
C. Why Workmen go on Strike?
19. We have already seen that the Industrial Disputes Act defines
"strike". A question arises whether strike is a means to achieve ends other
than getting time off or an end in itself i.e., to get time off on the very day
the workmen indulge in cessation of work. Further, if strike, is merely a
means to an end, whether the three forms of withdrawal of labour, viz.,
"cessation of work", "refusal to continue to work" and "refusal to accept
employment" are means to further "trade dispute objectives" of the
participants or even to achieve political and other non-trade dispute
objectives.
1991 ] STRIKES AND LOCK-OUTS IN INDIA
III. Lock-Out
19
20. The use of the term "lock-out" to describe employer's
instruments of economic coercion dates back to 186030 and is younger3
1
than its counterparts in the hands of workers, strike by one hundred
years. Formerly the instrument of lock-out was resortedto by an employer
or group of employers to ban union membership: the employers refused
employment to workers who did not sign a pledge not to belong to trade
union. later the lock-out was declared generally by a body of employers
against a strike at a particular work by closing all factories until strikers
returned to work.
32
India witnessed lock-out twenty-five years after the
"lock-out" was known and used in the arena of labour management
relations in industrially advanced countries. Karnik reports that the first
known lock-out was declared in 1895 In Budge Budge Jute Mills.
33
A. The Statutory Definition
21. Section 2(1) of the Industrial Disputes Act, 1947 defines
"Iock-out" to mean:
The temporary closing of employment or the suspension of
work, or the refusal by an employer to continue to employ
any number of persons employed by him.
34
A delineation of the nature of this weapon of industrial warfare requires
description of: (i) the acts which constitute it; (ii) the party who uses it; (iii)
the party against whom it is directed; and (iv) the motive which prompts
resort to it.
30 The first recorded use of the phrase "to strike work" occured in 1768, at the
begining of industrial Revolution see Knowles, Strikes • A Study of Industrial
Conflicts, 1952, p.p. 2-3.
31 see Encyclopaedia Brl1annica, (1959) p. 467.
32 Ibid.
33 V..B. Karnik, Strikes in india, 1967, pp. 13-14citing the Bengal Administration Report
(1995-96). Another Iock-out of which referenceis found is that of the one declared in
Buckingham and Carnatic Milia in 1968, see V.B.Karnikop. cI1.,p. 97.
34 The Industrial Disputes (Amendment) Act, 1982provides that in section 2(1) for.the
words "closing of a place of employment" the words "temporary closing of a place
of employment" be substituted.
20 CENTRAL INDIA LAWQUARTERLY [Vol. 4:1
B. Judicial Response
22. Early decision makers Oudicial and quasi-judicial) generally35
declined to treat lock-out merely as an Instrument of economic coercion.
They emphasised deliberate omission of the objective clause from the
defintion of lock- out and gave a catch-all meaning of Section 2(1) of
Industrial Desputes Act. However, there is a catena of cases in which
appropriate decision-makers stressed that lock-out is essentially an
instrument of economic coercion and the omission of the objective clause
did not change its meaning. The observation of the Labour Appelate
Tribunal in Presidency Jute Mills Co. Ltd.v. Presidency Jute Mills Co.
Employees Union
38
is significant:
The definition of strike as given in the(Industrial disputes)
Act is the same as that given in the Trade Disputes Act of
1929.Those definitions do not in expressterms refer to any
reason behind the concerted action of the workmen, but
the very conception of strike is that it is a recognised
weapon in the hands of the workmen for enforcing their
collective demands. The use of the term "strike"
necessarily implies that it has relation to a collective
demand which has not been acceded to by the employer.
Lock- out is the counter-part of strike, the corresponding
weapon in the hands of the employer to resist the
collective demands of workmen or to enforce his terms.
37
23. Earlier the Supreme Court in Kairbetta Estate v. Rajmanickam
38
upheld the interpretation given in the Presidency Jute Mills case. In ihe
instant case, the manager of the estate was assaulted by some of the
workmen as a result of which he sufferedfracture and was hospitalisedfor
a month. Other members of the staff were also threatenedand they wrote
to the management stating that they were afraid to go to the affected
division of the estate as their lives were in. danger. On receiving this
communication, the management notified that the affected division would
be closed until such time as workmen gave an assurancethat there would
35 Empire of India LIfe Insurance Co. Ltd. v, Their Empoloyees, Labour Gazette,
October, 1947 p.187, II, SUn Rolling Mill. v. Their Workmen, (1949) L.U. 696,
Ganges Jute Manufacturing Company Ltd. v. their Employees, (1950) LLJ.10;
Bengal Jute Mills v. Their Workmen, (1950) LL.J.437 (I.T.).
38 Presldeny Jute Milia Co. Ltd. v. Presidency Jute Mills Co. Employees Union,
(1952) 1 L.L.J. 796 (L.A.T.).
37 Id. at 799.
38 Kalrbetta Estate v. Rajmanickam, (1960) 2 L L J. 275 (S.C.).
1991 ] STRIKES AND LOCK-OUTS IN INDIA 21
not be any further trouble and that the members of the staff would not be
assaulted. In due course of time, on the intervention of Labour
Commissioner, the concerned workmen gave the requisite undertaking
and work was resumed. However, the affected workers claimed lay-off
compensation for the period they had been locked-out. The Industrial
Tribunal having granted the compensation, the management appealed to
the Supreme Court. Justice Gajendragadkar referred to the omission of
the objective clause from the 1947-definitionand added:
Even so, the essential chracter of a lock-out continues to
be substanially the same. Lock-out can be described as
the antithesis of a strike. Just as a strike is a weapon
available to the employees for enforcing their industrial
demands. In the struggle between capital and labour the
weapon of strike is availableto labour and is often used by
It, so is the weapon of lock-out available to the employer
and can be used by him. The use of both the weapons by
the respective parties must, however, be subject to the
relevant provisions of the (Industrial Disputes) Act.39
He concluded that this was a case of lock-out.
1. Disciplinary Measure not Lock-out
24. cases of indiscipline, misconduct and violation of the provision of
the certified standing orders frequently occur in Indian Industrial and
business undertakings. Disciplinary measures adopted by the
management range from adverse entry in the character roll to the
termination of employment. We are concerned here with only those
management actions which result in suspension of the concerned
workmen during the pendency of investigatory proceedings as a
punishment or otherwise either on payment of emoluments, or otherwise
and all other cases resulting into refusal by an employer to continue to
employ any number of persons employed by him such as orders
prohibiting late-coming workmen to resume work and marking them
absent for the day. The question here is whether these disciplinary
measures which come within the literal meaning of Section 2(1) of the
Industrial Disputes Act, amount to a lock-out or not.
25. In Ram Naresh Kumar v. State of West 8eng81,4O the
management found certain ash-coolies guilty of adopting go slow tactics,
39 Id. at 278.
40 Ram Naresh Kumar v. State of West Bengal (1958) 1 L. L. J. 667 (Calcutta).
22 CENTRALINDIA LAWQUARTERLY [Vol. 4:1
disobedience and assaulting the chief Engineer. Since an
adjudication proceeding was pending. the management suspended the
concerned workmen and applied to the Tribunal for permission to
terminate their services. The concerned ash-coolies claimed. in a writ
petition. that the suspension amounted to a lock-out. that such lock-out
was illegal under Section 23 and that the Tribunal had no jurisdiction to
entertain the application. However, theGalcutta High court rejected the
petition on the ground that suspension of workers in this case would not
amount to a lock- out.
2. Security Measure not Lock-out
26. Dicta in certain cases 41 indicate that "the 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" may be a
security measure and yet the conduct of the employer may fall within the
amibit of Section 2(1) of the Industrial Disputes Act, 1947. For instance. in
Lakshmi Devi Sugar Mills v. Ram Sar up42 Justice Bhaqwat],
summarising the views expressed by Labour Appellate Tribunal in Jute
Workers Federation v. Clive Jute Mills,43 observed that "lock-out is
generally adopted as a security measure."
27. This is unacceptable. Lock-out is an instrument ot economic
coercion and not a security measure. Lock-out is not an end in itself but a
means to an end. The particular means adopted are the putting of
economic pressures on recalcitrant workmen. Further, in harmony with
the view: "no work no pay", "the 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" is the means adopted to put
the requisite economic pressure. The emphasis here is due as much on
the means adopted as on the object sQught to be achieved.
Lay-off not Lock-out
28. In Prabhoo Pandey v. J.K. Jute MiHs Co. Ltd.
44
the Labour
Appellate Tribunal observed that:
41 SeeJute Workers Federation v, CliveJute Mills (1951) 1 L.L.J. 663. (L.A.J) Lakshml
Devl SUgar MRlsv. Ram "rup (1957) 1 L.L.J. 17 (S.C.); Lord KrIshna sugar Mills
ltd. v. State of Uttar Pradesh (1964) 2 L.L.J.76 (Allahabad).
42 Lakshmi Devi Sugar Mills v. Ram$erup, Optcit.
43 Jute Workers's Federation v. Clive Jute Mills, Optcit.
44 Prabhoo Pandey v. J.K. Jute Mills Co. Ltd. (1956) 1 l.L.J. 588 (LAT.).
1991 ] STRIKES AND LOCK·OUTS IN INDIA 23
The closure being only temporary and due to reasons
beyond the control of the management, namely, the
shortage of jute at the time as notified by the management.
it is clearly not a case of lock-out which ordinarily involves
an element of malice or iII_will
45
FolloWing Annamalal Timber Trust. v. V.P. Chakhu,46 it held that
temporary suspension of work for want of raw materials was not a
lock-out. The view of the Labour Appellate Tribunal that lock-out involves
an element of "malice or ill-will" is unacceptable. We have already
stressed that lock-out is an instrument of economic coercion and so long
as the management is acting with a view to achieve this objective by
putting economic pressure on its workmen it can hardly be said that they
are activated by "malice" or "ill-will."
29. The observation of Justice Aiyar in Shri Ram Chandra spinning
Mills Ltd. v. State of Madras 47 is more pertinent:
The lock-out 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 lock-out.
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 lock-out. 48
The Kalrbetta Estate Case
49
raisedthe reverse problem, namelywhether
lay-off included lock-out so that locked-out workmen could claim lay-off
compensation. The Supreme Court after discussing the scope of the
expression "any other reason" occurring in Section 2 (KKK) and the
provisions relating to lay- off compensation under Section 25C and
Section 25E (iii) of the Industrial Disputes Act observed:
45 Icl. at 590.
46 Anname'a' Timber Trust v. V.P. Chakhu. (1952) 2 L.L.J. 684 (LAT.).
47 Shri Ram Chandra spinning Mills Ltd. v. State of Madras (1957) 1 L.L.J. 90
(Madras)
48 Id. at 92-93.
49 Kalrbetta Estate cas. op. cit.
24 CENTRAL INDIA LAW QUARTERLY [Vol. 4:1
Stated broadly, lay-off generally occurs in a continuing
business, whereasa lock-out isthe closureof the business. In
the case of a lay-off owing to the reasonsspecified in Section
2(KKK) the employer is unableto give employment to one or
more workmen. In the case cj lock-out, the employer doses
the place of the business and Ioc\<s-out the whole body cj
workmen for reasons which have no relevance to causes
specifiedin section 2(kkk). 50
The court concluded that lay-off compensation could not be granted to
lock-out workmen.
3. Closure not Lock-out
30. In Express Newspaper Ltd. v. Industrial Tribunal 51 Justice
Gajendragadkar indicated that:
.,... the main point which the Tribunal will have to consider is
whether the strike of the (workmen) on 27th April 1959 was
justified and whether the action of the (management) which
followed the said strike is either a lock-out or amounts to a
closure. The (workmen) wDl contend that it is a lock-out which
is in the nature of an act of a reprisal on the part of the
(management) whereasthe (management) will contend that it
is nota lock-out but a closure, genuine and bonafide.
And such inquiry, his Lordship held, was within the competence of the
Industrial Tribunal.
31. The Supreme Court in General Labour Union (Red Flag) v. B.V.
Charvan 52 was invited to determine the distinction between lock- out and
closure. The court laid down the following tests
53
:-
(W)here the parties are at variance whether the employers
have imposed a lock-out or have closed the establishment
it is necessary to find out what was the intention of the
employer at the time when it resorts to lock-out or claims
to have closed down the industrial undertaking. It is to be
determined with accuracy whether the closing down of the
industrial activity was a consequence of imposing lock-out
50 Id. at 278.
51 Express Newspaper Ltd. v. Industrial Tribunal, (1962) 2 L.L.J. 227 (S.C.).
52 (1985) 1 L.L.J: 82
53 Id. at 83-84.
1991 ] STRIKES AND LOCK-OUTS IN INDIA 25
or the owner/employer had decided to close down the
industrial activity.
In lock-out the employer refuses to continue to employ the workmen
employed by him eventhough the businessactivitywas not closed down nor
intended to be closed down. The essence of lock- out is the refusal of the
employer to continue to employ workmen. There is no intentionto close the
industrial activity. Even if the suspension of work is ordered it would
constitute lock-out. On the other hand closure implies closing of industrial
activity as a consequence of which workmen are rendered lob-less.
4. Discharge of Lock-out
32. In Feroz Din v. State of West Bengal 54 Justice Sarkar who
delivered the jUdgment for the Supreme COL:rt observed:
.. the words 'refusal by an employer to continue to
employ any number of persons employed by him' in
Section 2(1) do not include the discharge of an employee.
We feel no difficulty in taking this view, for it does not seem
to us that the words "refusal to continue to employ" in
Section 2(1) plainly include a discharge. These words have
to be read with the rest of the definition and also the word
"Lock-out". The other parts of the definition contemplate
no severance of the relation of employer and employee.55
and held that discharge was not covered in Section 2(1) of the Act.
iv. RIGHT TO STRIKE
A. No Fundamental Right to Strike
33. Article 19(1) (c) of the constitution declares that:
All citizens shall have a right ..... to form associations or unions.
This right, however, is not absolute. Clause 4 of Article 19 provides that:
Nothing in Sub-clause (c) of the said clause shall affect the
operation of any existing law in so far as it imposes, or··
prevents the state from making any law imposing, in the
interests of the sovereignty and integrity of India or public
54 Feroz Din v. State of West Bengal, (1960) 1 L.L.J. 244 (S.C.)
55 Id.249. .
26
CENTRAL INDIA LAW QUARTERLY [Vol. 4:1
order or morality, reasonable restrictions on the exercise of
the right conferred by the said sub-clause.
I n All India Bank Employees Association v. National Industrial
Tribunal,56 the Supreme Court considered the aforesaid provisions. It,
inter alia, ruled that:
..... even a very liberal interpretation of subclause (c) of
Clause (1) of Article 19 cannot lead to the conclusion that
the trade unions have a guaranteed right to .... strike, either
as part of collective bargaining or otherwise. 57
B. Right to Strike under the Industrial Disputes Act
34. Though, the right to strike is not a fundamental right as such, it is
open to a citizen to go on strike or withhold his labour. The right to strike
has been recognised under the Industrial Disputes Act by defining the
circumstances under which a strike is to be regarded as illegal.58 Judicial
and quasi-judicial decisions
59
indicate that "workmen have, after a long
struggle, succeeded in establishing that in proper cases the weapon of strike
is open to them. Whatever may be the value of strike judged by common
standards, it has, in certain circumstances, been recognised as a legitimate
weapon of tneworkmen for the purpose of ventilating their demands." 60 The
workers' right to strike was explained by the Labour Appellate Tribunal in
RamKrishna Iron Foundry v. Their Workers: 61
The right to strike has been recognised by necessary
implication in the industrial legislation in India and express
statutory provisions have been made for the purpose of
56 All India Bank Employees Association v. NationallnduBtrlal Tribunal, A.I.A. 1962
S.C. 171.
57 Id at 181.
58 Gwallor Ravon Silk Mfg. Co. v. District Collector (1982) 1 LLJ. 356 (Kerala);
Buckingham and Carnatic Mills Ltd. v. Their Workmen, (1951) 2 LLJ. 314-316
(LA.T.); Amalendu Gupta v. LtC. (1982) 2 LLJ. 332 (calcutta).
59 See. for instance, Buckingham earn.tic MUla v. Their Workers, (1951) 2 L.L.J.
314, Bihar Fire Works v. Its Workmen (1953) 1 L..L.J. 49.
60 Bihar Fire Works v. Its Workmen op. elt., supra, p. 52.
61 Ram Krishna Iron Foundry v. Their Workers, (1954) ~ L.L.J. 372 (L.A.T.).
---- --- - - -- - - -- - --
--- -- -- -- -- -
1991 ] STRIKES AND LOCK-OUTS IN INDIA 27
regulating it. It is thus a recognised weapon of the
workmen to be resorted to by them for asserting their
bargaining power and backing up their collective demands
on an unwilling employer. 62
Thus the common law right to strike 63 cannot be taken away even if there
is a standing order abrogating their rights. 64 To hold otherwise would be
to interfere with fundamental right of employees to resort to strike as a
means to enforce their demands which falls within the subject of industrial
disputes. 65
35. Again in G. R. S. M. (W) Co. Ltd. v. District Collector 66 the
Kerala High Court summarised the legal position of the worker's right to
strike in the following words:
Though under the ConstItution of India, the right to strike is
not a fundamental right as such, It is open to a citizen to go
on strike or withhold his labour. Every strike is not illegal
and the workers in any democratic state have the right to
resort to strike whenever they are so pleased in order to
express their grievances or to make certain demands. A
strike in the circumstances is a necessary safety valve in
. industrial relations when proper1y resorted. It is a legitimate
weapon in the matter of industrial relations.
In Gwalior Rayon Silk Manufacturing (Weaving) Co. v. District
Collector 67 the first petitioner had applied to the High Court for a writ of
mandamus directing the government to grant adequate police protection
to remove the goodS from the premises in the second petitioner's factory.
A labour dispute was on between the second petitioner and the workmen
and the workmen had resorted to a strike as per the provisions of the
Industrial Disputes Act.The Kerala High Court relying upon its ear1ier
decision in C. Kannan v. Superintedent of Police 68 held that the court
should exercise great caution in dealing with an application for police
62 Id. at 373.
63 "There is nothing inherently unlawful or illegal in a strike..... common law permitted
an employer to stop work if he so desired." SeeRaja Bahadur Motllal Poona Mills
Y. Mill Mazdoor Sabha (1954) 1 L.L.J. 124. .
64 Smtih Stalnstreet and Co. Ltd. Y. Workers Union (1953) 1 L.L.J. 67 (LAT.).
65 Id. at 71.
66 (1982) Lab. J.e. 367. See also Colmbatore P.D.M. Sangam Y. Mis SIYakumar
Transport, 1986 Lab. I.e. 1012 (Madras).
67 (1982) 1 L.L.J. 359
68 1974 Ker. L.T. 516.
28 CENTRAL INDIA LAWQUARTERLY [Vol. 4:1
protection. Managements placed under very trying circumstances may
have to seek the assistance of the court in obtaining orders for police
protection. However, such orders should not interfere with the rights of
workers to carry on their agitation peacefully. In this connection the court
under-lined the need for adopting Mahatma Gandhiji's method of
resistance:
Mahatma Gandhi's methods of resistance to what one
sincerely considers wrong or evil is fully relevant even in an
independent country in a democratic set up. Gandhian
methods are in perfect consonance with a democratic
society as a means for effecting social change. If in any
circumstances ordinary methods are found to be of no
avail and violence had to be prevented; one cannot find
fault with social engineers if they go back to Gandhiji and
his methods of fighting the evil. It is true, no doubt, that
during the post-independence period the weapon of
resistance to Government or to any other constitutional
authority has come to be misused. Any disobedience of
law whether evil or unevil is wrongly termed satyagraha
now. But that is no reason Why Gandhian methods should
be considered to be against law. 69
The court in the instant case pointed out that if the Government decided
not to step in the labour dispute with its police power "to tilt the balance
in favour of the capital the court shall not act as a spoke in the wheel to
interfere with such policy." 70 At the same time the court cautioned that
the police could not. be told that they should not take action when an
offence was committed. The police officer was answerable to law and to
the law alone. If in the gUise of peacefUl satyagraha or strike. cognizable
offences were sought to be committed and violence was resorted to, the
police should interfere. Police should certainly Interfere if there was any
imminent danger or peril to life and property.
36. But the right to strike conferred by the Act cannot be extended to
non-workmen because that would result in anarchy in the Industrial
society:
Even if it is assumed without deciding that as far as the
dispute in question there is community of interest between
69 (1982) 1 L.L.J. 359 at 360-361.
70 Id. at 361.
1991 ] STRIKES AND LOCK-OUTS IN INDIA 29
the workmen of the Board and the petitioners- Assistant
Engineers, it cannot be said that tne Assistant Engineers
could join the strike. If they could not join the strike they
cannot take shelter under the Act when the Board takes
action against them for their unauthorised absence from
duty.7
1
Strike has, however, an adverse effect upon production and upon the
Industry. It is, therefore, desirable that it should be used "as a last resort
when all other avenues for settlement of industrial disputes, have proved
futile."72 The Supreme Court in Chandramalai Estate v. Their
Workmen
73
recognised that "strike is a legitimate and sometimes
unavoidable weapon in the hand of labour."
v. RIGHT TO LOCK-OUT
37. Since 1950 the Constitution guaranteedthe right to acquire, hold
and dispose of property. The Constitution also guarantees the right to
carry on any occupation, trade or business. Is the employer's right to
lock- out workmen guaranteed under any or both of these Constitutional
provisions (with the result that a law regulating lock-out) violates the
Constitutional guarantee unless it imposes reasonable restrictions in the
interest of general public? This question was answered in negative by the
Andhra Pradesh High Court, in A. P. E;lectrical Equipment Corporation
v. Its Staff Union. 74 The Court observed:
...... the right to lock-out is now controlled by Sections [(10)
(3)], 10-A (4A) ..... 22 and 23 of the Act and the penal
action is engraftedfor disobedience of the prohibition of
lock-out u/s 24. If it is held that the petitioner has a
fundamental right to declare lock-out, then natLirally the
provisions referred to earlier would be rendered atiose.7
5
The Court accordinagly held that right to lock-out is a statutory right
controlled by the relevant provisions of the Act and must be exercised in
conformity therewith.
71 Kera_a StIlte Electrlcl1y Workers Federations v. Kerale S1ate Electricity Board,
(1983) 1 L.L.J. 435, 442 (Kera/a).
72 See Ram Krishna .Iron Foundry v. Their Workers (1954) 2 L.L.J. 516,520 (LAT.);
See also Chandramalai Estate v. Their Workmen, (1960) 2 L.L.J. 243 (S.C.).
73 Chandramalal Estate v. Their Workmen, op. cit.
74 1986 Lab. I.C. 1851.
75 Id. at 1857.
30 CENTRAL INDIA LAWQUARTERLY [Vol. 4:1
VI. REGULATION OF STRIKES ANDLOCK-OUT
A. General Prohibition of Strikes and Lock-outs
38. Section 23 prohibits 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 workmen shall declarea lock-out,
(a) during the pendency of conciliation proceedings before
a Board and seven days after the conclustlon of such
proceedings;
(b) during the pendency of proceedings before a labour
Court, Tribunal or National Tribunal and two months
after the conclusion of such proceedings;
(c) 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
(d) 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 aforesaid provisions do not limit illegality only to strikes (or lock-out)
which cover demands which are the subject-matter of the pending
proceedings. Thus, a strike (or lock-out) which is called during the
pendency of conciliation proceedings or a reference is illegal, although it
is in respect of demands which are not covered by conciliation
proceedings.
76
.
2. Curtailment of Scope of General Prohibition
39. In Chemicals and Fibres of India ltd. v. D.C. Shoir n there was
a dispute between a workman and the employer concerning the former's
dismissal. This "individual dispute" became an "industrial dispute"
because of the provisions of Section 2A of the IDA and the Government
referredthe "industrial dispute" to a labour Court for adjudication. During
the pendency of adjudlcatlon proceedings relating thereto, the
management of MIS Chemicals and Fibres ltd., dismissed three other
76 Balmer Lawrie It Co. Ltd. v, hs Employee's Union Lab. I.e. 88 (Bombay).
n Chemicals and Fibres of India ltd. v, D.C. Sholr, (1975) 2 L.l.J. 168 (S.C.).
- --- -- - --- ---------------
1991 ] STRIKES AND LOCK-OUTS IN INDIA 31
workmen. Thereafter the workmen of MIS Chemicalsand Fibres Ltd., went
on strike to protest against the dismissal of the aforesaid three
employees. Was this strike prohibited under Section 23 (b)? The Suprme
Court ruled:
Even in respect of clause(b) some limitations should be
read confining it to the parties to the proceedings either
actually at constructively, as in the case of the Union
espousing the cause of an individual workman. 78
The Court held that the prohibition contained in Section 23 did not apply
to the workmen employed in Chemical and Fibres of India trd., even
though they went on strike, and matters relating to the dismissal of a
single workman of that establishment were pending adjudication before a
Labour Court. At the same time, the SupremeCourt widened, in a different
direction, the scope of the prohibition imposed by Section 23 when it
approved the High Court decisions Which established:
....... that even though the proceedings pending before the
Labour Co.urt, Tribunal or National Tribunal might relate to
certain matters, only, there cannot be a strike or lock-out
even in relation to matters other than those which are
pending before the Labour Court; Tribunal or National
Tribunal. 79
Among the decisions cited and approved by the Supreme Court is the
decision of the Calcutta High Court In Provat Kumar Kar v, W.T.
Parkar.
80
40. In view of Its approval of the principle established in Prowt
Kumar Kar's Co. Ltd., the Supreme Court did not advert to the question
whether the subject matter of the impugned strike arose out of, or was
connected with or was relevant to, the subject matter of pending
adjudication proceedings. The Court proceeded on the basis, (as decided
in that case), that the general prohibition contained in Section23 did not
cover workmen employed in establishments which were not concerned in
the adjudication proceedings. It addressed itself to a limited question: did
the prohibition affect all workmen employed In the establishment or
establishments involved In the pending adjudication proceedings, or only
78 Id. at 173.
79 Id. at 170.
80 Prov8t Kumar Kar v. W.T. Parkar, AIR 1950 Calcutta, 116; The Supreme Court
also approved the decision of state of Bihar v. Deodhar Jha, AIR1958 Patna 51.
32 CENTRALINDIA LAWaUARTERLY (Vol. 4:1
those workmen who were parties to the proceeding? Having reached the
conclusion that the general prohibition imposed by Section 23{b) affected
only those workmen who were parties to the adjudication proceedings.
the Supreme Court went on to assert that, since the pending adjudication
proceeding related to an "individual dispute", other workmen of the
establishment were not affected by the general prohibition.
B. Additional Restrictions on Strikes and Lock-out in
Public Utility Services
41. Strikes and lock-outs adversely affect the interest of the
community in maintaining a high level of production and uninterrupted
public utility services. Section 22, which regulates strikes and lock-outs in
public utility services. inter alia, directs:
(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
(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.
(2) No employer carrying on any public utility service shall
lock-out any of his workmen:
(a) without giving them notice of lock-out as hereinafter
provided. within six weeks before lock-out; or
(b) within fourteen days of giving such notice; or
(c)-before the expiry of the date of lock-out specified in any
such notice as aforesaid; or
(d) during the pendency of any conciliations proceedings
before a concUiation officer and seven days after the
conclusion of such proceedings.
42. The Act8
1
adopts a two pronged approach to prevent the use of
81 Section22.
1991 } STRIKES AND LOCK-OUTS IN INDIA 33
instruments of economic coercion in public utility concerns and thereby
to maintain continuity of production or services. First, the Section
postpones the imptementation of the decision to use the instruments of
economic coercion by prescribing a statutory requirement of notice.
Second, Section 22 read with Section 12ensured "peace making" efforts
by imposing a statutory duty on conciliation officers to hold conciliation
proceedings and direcUng the parties not to resort to the use of
instruments or economic coercion during the pendency of such
proceedings.
C. Prohibition on the Continuance of Strike and Lock·out
1. Legislative Measures:
43. suo-secnon (3) of Section 10 provides:
Where an industrial dispute has been referred to Board,
Labour Court, Tribunal or National Tribunal under this
Section the appropriate Government may by order prohibit
the continuance of any strike or lock-out in connection with
such dispute which may be in existence on the date of the
reference. .
The discretion to issue prohibitiory order where an industrial dispute has
been referred to Arbitrator under Section lOA, however, is SUbject to
additional restrictions. Sub-Section (4A) of Section lOA lays down:
Where an industrial dispute has been referred to arbitration
and a notification has been issued under Sub- Section
(3-A), the appropriate Government may, by order, prohibit
the continuance of any strike or lock-out in connection with
such dispute which may be in existence on the date of the
reference.
A strike or lock-out shall be illegal if "It is continued in contravention of an
order made under Sub-Section (3) of Section 10 or Sub-Section 4A of
Section lOA. The reason underlying the prohibition is that industrial
disputes should be tried in. a spirit of amity and no party should be in
postition to coerce the other during the pendency of such proceedings. It
is for this reason that the appropriate Government has been empowered
by Section 10(3) of the IDA in case of strikes or lock-out declared before
the commencement of such procee(:lings to prohibit their continuance
while the dispute Is being adjudlcated.
82
The discretion gi'{en to the
82 (1986) 1 LL.J.204 (Karanataka).
- - - ~ - - ----
----
34 CENTRAL INDIA LAWQUARTERLY. [Vol. 4:1
appropriate government to make a prohibition order has to be exercised
in accordance with the object and purposes of the Act: There cannot be
any 'absolute rule obl.iging the appropriate Government to prohibit
continuance of strike during the pendency of proceedings because in
some cases strike may not affect production or injure the community in
general and. in such cases, the appropriate Government may not. in the
exercise of its discretion. prohibit such continuance. 83 However, the
exercise of this unfettered discretionary power has been attacked by
opposition political parties. and perhaps not always without reason.
2. Whether Section 10(3) or 10A (4A)
is Mandatory? Judicial Approach
44. The judicial interpretation has also raised several problems. (i)
whether courts can quash the order where the very nature of
management action Is in dispute? (Ii) Whether Section 10(3) violates
Article 14 of the Constitution? (Iii) Whether strike can be prohibited where
one or more and not all the demands were referredfor adjudication? (iv)
Whether workman should be given an opportunity of show cause before
strike is prohibited?
(a) Nature of the order of prohibition
45. In Express Newspapers Ltd. 84 the Court held that the
management could Ignore the prohibitory order with impunity and, while
remanding the case to Tribunal to determine whether there was lock-out
or closure, refused to quash the order. The decision raises at least two
problems. (1) What if the Tribunal holds the management conduct to be a
lock-out? 85 (2) can the Government issue the prohibitory order where
the very nature of management's action Is in dispute?
(b) Can Government issue Prohibitory orders
where some and not all demands were referred
46. Prior to 1978. the decisions In Workmen of Edward Keventers
(P) Ltd. v. Delhi Administration 86 and Keventers Karmacharisangh v.
Lt. Governor Delhi 87 were divided on the issue whether strike could be'
prohibited where one or more and not all the demands were referred for
83 Keventera Karmacharl 5angh v. Lt. Governor, DeIhl, 39 FLR211 (1971).
84 Expr... N._papers Ltd., (1962) 2 L.L.J. 227 (S.C.).
85 Meghr.j Klahangarh Milia Ltd., (1953) 2 L.L.J. 214
86 Workmen of Edward Kevente,. (P) Ltd. v. Deihl Admlnl.,-8tlon, I.L.R. 1969,
Delhi 767.
87 Keventera Karmacharl 5angh v. Lt. Governor DeIhl, (1971) 2 L.L.J. 375.
1991 J STRIKES AND LOCK-OUTS IN INDIA 35
adjudication? In the former case a Division Bench of the Delhi High Court
took the view that If out of several demands only some were referred for
adjudication, the continuance of strike could be prohibited only regarding
the dispute with respect to the matter which had been referred to
adjudication and prohibition of the continuance of strike with respect to
the matter which had not been to adjudiction was unwarranted. In
the latter case another Division Bench of the same High Court was of the
opinion that even if one of the demands connected with strike had been
referred as Industrial dispute the strike would be in connection with such
dispute and the power to prohibit the continuance of strikes could be
exercised. This conflicting opinion even among the two benches of the
same High Court provided an opportunity to the Supreme Court in Delhi
Administration v. Workmen of Edward Keventera and others, 88 to
express its opinion on the aforesaid issue. Speaking for the Supreme
Court Justice Krishna Iyer observed: .
Two 'conditions are necessary to make Section 10(3)
applicable. There must bean industrial dispute existing and
such existing dispute must have been referred to a Board,
Labour Court, Tribunal or National Tribunal under this
Section, namely, Section 10(1). Section 10 stands as a self
contained code as It were so far as this subject-matter is
concerned. Secondly, such dispute must have been
already referred, for adjudication. Then, and then alone, the
power to prohibit in respect of such dispute can be
exercised.
But haVing said so his Lordship framed an enquiry,
Imagine twenty good grounds of dispute being raised in a
charter of demands by the workmen, and the appropriate
Government uniraterany and subjectively deciding against
the workmen on nineteen of them and referred only one for
adjudication, how can this result in anomalous situation of
the wol"kl1len being deprived of their basic right to go on
strike in support of those nineteen demands?
and came to the conclusion:
This would be productive not of industrial peace, which is
the' object of the Industrial Disputes Act but
counter-productive of such a purpose. If Government feels
88 DeIhl v. Workmen of EdWardKeventer. (1978)2 L.L.J. 209 (S.C.).
36 CENTRAL INDIA LAWQUARTERLY
[Vol. 4:1 .
that it should prohibit a strike under Section 10(3) it must
give scope for the merits of such dispute of demand being
gone into by some other adjudicatiory body by making a
reference of all those demands under Section 10(1) as
disputes. In regard to such disputes as are not referred
under Sction 10(1), Section 10(3)' cannot operate. This
stands to reason and justice and a demand which is
suppressed by a prohibitory order and is not allowed to be
ventilated for adjudication before a Tribunal will explode
into industrial unrest and run contrary to the policy of
industrial jurtsprudence. 89
(c) No requirement to give show cause notice
47. The High Courts are divided on the issue whether the
Government is bound to give show cause notice to the affected parties.
Thus, the Kerala High Court in A. K. Kalippa Chettiar & Sons v. State of
Kerala 90heldthat power exercised under Section 10(3) is a quasi-judicial
power and an order thereunder cannot be passed without a reasonable
opportunity to all those who would be affected by the order to state and
establish their case. On the other hand the High Courts of Andhra
Pradesh, Karnataka and Bombay took the opposite view. Thus in Eenadu
Press Workers Union v. Government of .Andhra Pradesh 91 and A.P.
Electricals Equipment Corporation v. Its Staff Union 92 the Andhra
Pradesh High Court held that it was not necessary that the Government
should issue a show cause notice to the affected parties before issuing
the prohibitory order under Section 10 and it would not violate the
principles of natural justice. According to the Court the action under 10(3)
is only preventive one, and if prior opportunities and hearing 15 given
before invoking Section 10(3), the object of restoring industrial peace and
harmony would be jeopardlsed and a self defeating one. Similar view was
expressed by the Karnataka High Court in Mysore City Powerloom and
General Worker's Association v. State of Karnataka. In this case the
petitioner challenged the validity of the. order issued by the Government of
Karnataka under Section 10(3) prohibiting the continuance of strikes and
lock-outs on the ground that the appropriate Government had failed to
provide opportunity of being heard and, therefore, the order was violative
89 Id. at 209.210
90 (1970) 1 L.L.J. 97 (kerala).
91 1979Lab. I.e. 330 (Andhra Pradesh).
92 1986Lab. I.e. 1851 (Andhra Pradesh).
1991 ] STRIKES AND LOCK-OUTS IN INDIA 37
of the principles of natural justice. The Court rejectedthe contenation and
observed:
(H)aving regard to the nature and purpose of the power
conferred under sub-Sectlon(3) of Section 10 ..... by
necessary implication the application of rules of natural
justice stands eXcluded. The power conferred under the
Sub-Section Is such as would call for an immediateaction,
on the part of the Government in order to ensure
industrial peace. of prohibiting a lock-out or strike, as the
case may be, when the dispute, Inconnection with which
the lock-out or strike was resorted to, had been referred
by the appropriate government for industrial adjudication.
To Insist on compliance with the Rule of audi alteram
partem before passing an order under Sub-Sectlon(3) of
Section lOis plainly contrary to the common sense of
the situation and would make the provision lifeless and
would defeat the purpose of the provision.
The aforesaid view was followed and adopted by the Bombay High Court
in H.B. Khaitan. v. State of Maharashtra.
93
(d) Whether Section'10(A) Is mandatory:
48. Section lOA (3A) empowers the appropriate G o ~ e r n m e n t where:
(I) an industrial dispute has been referredto arbitration; and
(Ii) it is satisfied that the persons making a reference represent
the majority of each party, to issuea notification within a period of one
month with a view to provide an opportunity to those who are not
parties to arbitration agreement but are concerned in the dispute to
present their case before the arbitrator or arbitrators. Is the aforesaid
provision mandatory or directory? One confronts with the divergence
of judicial opinion onthis question. The Madras High Court in Madras
Machine Tools Manufactures v. Special Deputy commissioner of
Labour 94 has held the provisions of Section 10A (3A) to be
mandatory because:
If Section lOA (3A) Is not complied with we fail to
93 1987Lab. I.C. 836 (Bombay).
94 Madra. Machine Tools Manufactures v. Special Deputy Commissioner of
Labour (1979) 2 L.L.J. 331.
38 CENTRAL INDIA LAWQUARTERLY • [Vol. 4:1
understand how an award could ever be characterised as
valid. There is an important legal consequence if Section
10A(3A) is not compiled with. No notification under
Section 10A(4A) can be issued prohibiting the
continuance of the strike or lock-out, 95
Which not only would jeopardise the peace and harmony but divert the
Government from issuing a notification under Section 1-A (4A).
However, this aforesaid decision runs contrary to the views expressed
by the Madhya Pradesh High Court in Singh (K.P.) v. Gokhale (S.K.)96.
Here the Court has held that the procedural requirement in Section
10A(3A) is directory and is dependent on the satisfaction of the
appropriate Government.
VII. ILLEGAL STRIKE$ AND LOCK-OUTS
49. Section 24 of the Industrial Disputes Act. 1947 defines "illegal
strikes and lock-outs." Sub-Section (1) provides that a strike or a
lock-out shall be illegal if.
(i) it is commenced or declared in contravention of Sec-
tion 22 or 23;
(Ii) it is continUed in contravention of prohibitory order is-
sued under Section 10(3) or Section 10A(4A).
Further, SUb-Section(2) says that where a strike or lock-out in
pursuance of an industrial dispute has already commenced and is in
existence at the time of the reference of the dispute to adjudication or
arbitration authorities, the continuance of such strike or lock-out "shall
not be deeemed to be illegal", if:
(i) such strike or lock-out was not at its commencement
in contravention of the provision of the Industrial Dis-
putes Act, 1947.
(Ii) the continuance of such strike or lock-out was not
prohibited under .Sub-Section (3) of Section 10.or
Sub- Section 4A of Section 10Aof the Act.
Under Sub-Section (3) of Section 24 a lock-out is not illegal if it is
declared in consequence of 'an illegal strike. Similarly, a strike is not
illegal if declared in consequence .of an illegal lock-out.
95 Ibid.
96 K.P. Singh v, S.K. Gokhale (1970) 1 L.L.J. 125.
1991 ] STRIKES AND l O C K ~ O U T S IN INDIA
39
VIII. SANCTION AND CRIMINALPROCEEDINGS.
A. Sanction
1. For Declaring Illegal Strikes and lock-Outs
SO. Section 26(1) prescribes punishment to a workman for
commencing. continuing or otherwise acting in furtherance of a strike
which a "illegal" under Section 24 of the IDA. The penalty in case of
participation in an illegal strike is imprisonment for a term which may
extendto one month or with a fine which may extend upto fifty rupees
or with both. Thus , in order to convict a person under the Act it is
necessary to prove that:
(i) the accused Is a "workman";
(Ii) the accused commenced, continued or otherwise
acted in furtherance of a strike; and
(iii)the accused had the knowledge that the strike in
question was illegal. likewise Section 26 (2)
prescribes punishment to employers for commecing
continuing or otherwise acting in furtherance of a lock-
out which is Illegal under Section24. The employerIs
punishable with Imprisonment for a term which may
extend upto one month, or with fine upto one
thousand rupees or with both for commencing, con-
tinuing or otherwise acting in furtherance of illegal
lock-out.
51. A perusal of the aforesaid provision reveals: that (i) the
co-relation between Imprisonment and fine is missing. Whereas Section
26(1) prescribes the ratio 'of one month Imprisonment and/or fifty
rupees fine Section 26(2) provides one month imprisonment and\or
one thousand rupees fine; (Ii) the penalties under the Section are
different from penalties mentioned in ·Sectlon 31 for contravention of
Section 33;97. and (iii) the duties Imposed by Section 26 are
statutory duties owned by the workmen or employers to the public,
which could, solely be enforcedby criminal procedure.
2. For Instigating or Inciting Illegal Strikers or Lock-Out
52. Section 27 unlike Section 26 (which is limited to workmen and
97 Sun Roiling Mills v. Their Workmen (1949) LL.J. 382.
40 CENTRAL INDIA LAW QUARTERLY [Vol. 4:1
employers) is wide enough to cover all persons. Section 27 provides
for imprisonement for a term which may extend to six months or with a
fine which may extend to one thousand rupees or with both for
"JfIstigation and incitement of any strike or lock-out which is illegal under
the I.D.A" In order to bring the activities of a person within the mischief
of Section 27, two conditions must be satisfied: (i) the particular strike
complained of is itself illegal, and (Ii) the strike for which he incited the
workers to take part in is to his knowledge illegal.98
53. The vires of this provision was challenged in Raja Kulkarni and
Other. v. State of B o m ~ y . 9 9 The Supreme Court upheld the validity
of the Section and observed that the industrial Disputes (AppeUate
Tribunal ) Act, 1950 imposed no restriction either upon the
freedom of speech and expression of the textile workers or their right to
form associations or unions. Hence Section 27 of the Act was not void
as being opposed to the fundamental rights under Article 19 (1) (a) and
(c) of the Constitution. In Deshpande v. Ferro Alloy corporation, 100
the management and workmen (represented by the office-bearers of
the union) entered into a settlement qn 30 September, 1959. Such a
settlement was arrived at in the course of conciliationproceeding. Two
persons (non-workmen and officer of trade union) who were fully aware
of the settlement incited the workmen to go on strike in breach of
settlement with effect. from 24 September to 2 October, 1960. A
prosecution was launched aqainst these two offlcersc(non-workmen) of
trade unions. The Magistrate convicted the accused under Section 27 of
IDA. The decision was upheld by the Session Judge. Then the
concerned accused filed. a petition before the Andhra Pradesh High
Court. Justice Kumarayya observed:
In fact the wokers have a fundamenJal right to launch a
strike, and, any instigation or incitement to stage a strike
would not therefore be illegal, unless the partiCUlar strike
complained of itself is illegal under the Act. The person
instigating would be guilty only when it is Hlegal under
the Act. The person instigating would be gUilty only
when it is established that the strike which he incited the
workers to take part in is to his knowledge illegal.'O'
98 De8hpandev. Ferro Alloy corporation (1964) 1 L.L.J. 613.
99 Raja Kulkarnland others v. State of Bombay, AIR 1954SC73.
100 De8hpandev. Ferro Alloy Corporation, op. cit.
101 Id. 619.
1991 ] STRIKES ANDLOCK-OUTS IN INDIA 41
The Court accordingly upheld the order of conviction of Lower Court
and.held that .non-workmen, inciting workmen bound by settlement to
go on illegal strike. were liable under Section27.
3. For Aiding Illegal Strikes or Lock"()uts:
54. Whereas Section 25 prohibits financial aid to illegal strikes
and lock-outs Section 26 provides penaltytherefor. The fatter Section
reads: .
(Any) person who knowingly expends or applies any
money in direct furtherance or support of any illegal strike
or lock-out shall be punishable with imprisonment for a
term which may extend to six months. or with fine which
may extendto one thousand rupees or both.
It is clear from the aforesaid provisions that the person spending or
applying money must know that the strike or lock-out is illegal. Thus,
mens rea is a necessary element of an offence under this Section. The
provisionsof this Section are attractedif the strike or lock-out is heldto
be illegal and not otherwise.
B. Criminal Proceedings
1. Perml8sion of the Government
(a) Legislative respol"ase
55. Sub-Section(1) of Section34 of the IDA. provides:
No court shall take cognizance of any offence
punishable under this Act or of the abetment of any such
offence saveon complaint made by or under the authority
of the appropriate Government.
It follows that Section 34(1) empowers the appropriate Government
(i) to make a complaint, and (Ii) to authorise someone else to file a
complaint. The object of the Section is to prevent a frivolous
complaint 102 being filed.
2. Court of Competent Jurisdiction
102 See State of Kerele v. Chako, (1961) 2L.L.J. 569(Kerala).
42 CENTRAL INDIALAWQUARTERLY [Vol. 4:1
56. Section 34(2) of the IDA provides that no court, inferior to that
of Presidency Magistrate or Magistrate of the First Class Is competent to
try an offence punishable under IDA.
C. Protection toPersone Refusing to take
Part in an Illegal Strike and Lock-out
57. The Industrial Disputes Act 103 protects persons refusing to
take part in an illegal strike or lock-out from (i) expulsion from any
trade union or society or (ii) to any fine or any penalty or (iii) to
deprivation of any right or benefit to which.he or his legal representative
would otherwise be' entitled or from (iv) liability to be placed in any
respect either directly or indirectly under the disability or to any
disadvantage as compared with other members of union or society. The
immunity under this Section is to prevail notwithstanding any thing
contrary in the rules of the trade union or society.
IX. JUSTIFICATION OF STRIKE AND LOCK-OUT
A. Justified Strike and Lock-Qut.
58. In collective bargaining, the question of employment of striking
employees and wages for the strike or lock-out period can form the
subject of negotiation in the settlement of a dispute. In adjudication
systemthat possibility being closed, refusal to award wages for strike or
lock-out period might lead to further unrest. To avoid this unhappy
situation and at the same time to protect the interest of working class
and industry, Tribunals and Courts have evolved the concept of
"justified" and "unjustified" strike and Jock-out. In a seriesof decisions
the Courts and Tribunals have provided guidelines for determining
whether a strike or lock-out is justified or not.
1. Justified Strike
59. A strike has been held to be justified, when it was resorted to, (i)
after eXhausting the remedles provided In the IDA and these being
proved futile. 104 (Ii) against unfair labour practice or victimisation on the
part of the management .105 (iii) to press reasonable. demands of
103 Section 35.
104 Seefor instance, Swadeshllndustrles ltd. v. their Workmen, (1955) 2 L.L.J. ('85
(LAT.) Swami 011 Mills v. their Workmen (1953) 2 L.L.J. 785 (I.T.) Crompton
Greaves Ltd. v. their Workers, (1978) 36 F.L.R. 329 (S.C.)
105 See F.W. Hellgers and Co. Ltd. v. Its Workmen, 1950 LL.J. 231 (I.T.); Amblka
Jute Mills, v. their Workers, (1954) 1 L.L.J.835 (I.T.) Seealso Indllln Machinery
Mazdoor Unoln v.lndlan Machinery Co. Ltd. (1956) 2 L.L.J. 408 (L.A.J.)
1991) STRIKES ANDLOCK-OUTS,IN INDIA 43
workmen in a peaceful manner, 106 (iv) due to provocation of the
other party, 107 (v) as a measure of protest against retrenchment
of workmen.. 108 (vi) as a measure of protest against suspension of
fellow workmen, 109 (Vii) discharge of union officials,110 (Viii) refusal to
recognise the union, 111 (ix) against employer's refusal to pay
advance wages, 112 (x) advance for festival holidays 113 or against
Government's refusal to refer the dispute for adjUdication. 114
2. Justified lock-out
60. A lock-out is held to be justified if :(i) it was neither actuated
nor occasioned by any unfair labour practice on the part of
employer;115 (ii) it was adopted due to security measure; 116 (iii) it
was necessitated by the conduct of the workmen, 117 (iv) it was in
consequence of strike which was unreasonable, 118 (v) was declared
after a tool down strike was staged. 119
b. Unjustified Strike and l,.ock-out
1. Nature and Concept
61. The concept of unjustified strike seems to be based upon the
principle that in their dealings with the management the workers
should be considerate, loyal and disciplined. The workers realisethat the
capacity to pay is dependent upon the economic situation of the
industry. In any case they should adopt peaceful and orderly method for
106 Vellanlkara and Thunle Rubber Estate v, Its Employees quoted inIndustrial Awards
in India, 1959. p. 113.
107 Indian Cycle Mfg. Co. Ltd. v. Their workers, (1951) 1L.L.J. 390 (I.T.) Certain
Banks In the State of Punjab and Deihl v. their Workmen, (1950), L.L.J. 425 (I.T.).
108 Dalmla Cement (Bharat) Ltd. v. their Workers, (1955) 2L.L.J. 466 (LAT.)
Standard Mills Ltd. v. Their Workmen, (1953) 2 L.L.J. 135 (I.T.); See also
Crompton Greaves Ltd. v. Its Workmen, op. cit. supra note 83
109 Union Tile Works v, their Employees, (1954) 2L.L.J. 103 (I.T.) .
110 Indian Cycle Mfg. Co. v, their Workers, (1952) 2LW 390 (I.T.)
111 Associated Cement Co. v. their Workmen (1952) 2LW 225 (I.T.)
112 Bihar Fire Works and Potteries Ltd.. (1953) 1LW 49 (LAT.)
113 Caltex Ltd. v, their Workmen, (1954) 2LW 51.
114 Swami 011 Mills v, TheIr Workers, (1953) 2LW 785 (tT.).
115 Amblka Jute Mills v. their Workers, (1954). 1LW 835 (LAT)
116 Hanuman Juta Mills v. their Workmen (1953) 2LW684 (LAT) Govlnd Sheet Metal
Works and Foundary,. (1956) F.J.R. 363 (LAT)
117 Mahalaxml Cotton Mills v. their Workmen, (1952) 1LLW 68.
118 See also Highway Group of Estates. v. Industrial Tribunal (1978) 2 LW 251 (I.T.)
Certain Tailoring Concern, (1950) LLW 280 (I.T)
119 Pioneer Match Factory v. Their Workmen, (1951) 1LW 43 (L.T.)
44 CENTRAL INDIA LAWQUARTERLY [ Vol. 4:1
ventilating their grievances.. Similarly. the concept of the unjustified
lockout is based on the principle that it should not be declared in haste or
by way of reprisal or victimisation etc. In short the strike and lock-out
should be declared as a last resort after all available remedies. formal or
informal. have been exhausted. When a strike or lock-out situation is
brought before the Tribunal or Court there is a tendency on the part of
both workers and management to blame for the strike rests with the
workers in unjustified lock-out the blame for lock-out rests with
employers.
2. Factual Analysis
62. like Justified strike or lock-out an unjustified strike or lock-out
is a varying concept. No attempt has been made to give an exhaustive
description of the situation which would give rise to an "unjustified"
strike or lock-out.
(a) Unjustified strike
A strike is held to be "unjustified" if it was resorted to: (i) to press the
demands of workers which according to community standards are
unreasonably high.
12O
(ii) immediately on failure of conciliation
proceedings without waiting for reference 121 . (iii) without exhausting
the remedies provided under the IDA. 122 (iv) as a measure of protest
against the assault of co-workers by the officer of the company, even
after the assurance given by the management to inquire into the incident
of assault 123 or any other grievance of the workmen. (v) even when
the management was prepared from the beginning to settle the dispute
through the conciliation. adjudication or arbitration.
124
(vi). to force
arbitration,125 (vii) as a measure of protest against the transfer of the
President of the Union.
126
(viti) when the workers did not cooperate
120 Ram Krishna Iron Foundary v. Their Workmen, (1951) 2LW 372 (LA.T);
Chandramalai Estate service v. Its Workers, (1960) 2. L.L.J. 243 (S.C.); Indian
Marine Service v.lts Workers, (9163) 1L.L.J. 122 (S.C.); Vlrl,l Bhal Laxman Bhal
v. New Commercial Mills Co. (1958) Born. Ind. Ct. Rep 1153.
121 Chandramalal Estate v. Its Workers,op cit. p. 243.
122 Hoplngs and Williams Travancore Ltd. v. Minerai COmpanies Staff Association
(1955) 2L.L.J. 293 (LT.)
123 Jeypore Sugar Co. Ltd. v. Their Employees, (1955) 2L.L.J. 444 (LAT.).
124 Dlgvl'ay Cement Co. Ltd. v. Their Workmen, (1951) 1L.L.J. 236 (I.T.); M/SPlerce
Leslie" Co. Ltd. published in Kerala Gazette, No. 43 dt.3rd November 1959, p./13.
Ashok Textiles pvt. Ltd. case, keralaGazette October 13, 1959.
125 Lakshml Vilasam Tile Works Kerala, Gazette No. 501 eft. 22nd December 1959, p. 7.
126 Certain Banks In the State of Pun,ab and Deihl v. Workmen, 1950 L.L.J. 245 (I.T.)
1991] STRIKESAND LOCK-OUTS IN INDIA 45
with the authorities for peaceful solution,127 (ix) when the staff
association was hasty,128, (x) by using violence or acts of sabotage. 129.
(b) Unjustified lock-out.
A Look-out was held to be unjustified if ; it was with a view to
oblige workmen to accept the lower wages130. or the management
refused to allow workers to enter the factory131 or it was declared on
account of an unfair labour practice on the part of the management
132
or it was not inevitable and was unjustified. 133
C. Determination of "justified" or "unjustified" Strike
and Lock-out
1. Reasonableness of Demand
63. Justified or unjustified strike or lock-out, we have already seen,
determines whether workmen are entitled to wages for the period of
strike or lock-out. The question, therefore, arises; how to ascertain the
justification or otherwise of strike or lock-out? First reading of
Associated Cement Co. Ltd. v. Their Workmen134 leaves an impression
that "reasonableness of demand" is determinative. Observed the
Industrial Tribunal:
I am of opinion (that) it was a legitimate and proper
demand, that is to say, as a demand it was proper
and such as required due consideration... (The)
demand was one which the management should have
given due consideration and in respect of which the
workmen were left without remedy.
and held that workmen had reasonable and justifiable cause for
strike and hence workmen were entitled to wages for such a period.
Even independently of this decision, other decisions of the Tribunals
and Courts have also accepted the test of reasonableness of demand.
2. Bonafides of Strike or Lock-out
127 . Ashok Textile Pvt. Ltd. v. Their Employees, Published in Kerala Gazette,
October 13, 1959, p. 13.
128 MIS Pierce Leslie andCo, Ltd. Alleppey v. Their Workmen published inKerala
Gazette, No. 43, 3rd November 1959·2 L.L.J. 1959 p. 13.
129 Crompton Greaves Ltd. v. Its Workmen op. cit.
130 Shrl Ram SilkMillsv. Their Workmen, (1952) 2L.L.J. 862 (I.T.)
131 Bharat Barrel and Dr.um mfg. Co. v. Their Workmen, (1952) 2 L.L.J. 532 (I.T.)
132 Indian Machinery Co. Ltd. (1956) eL.L.J. 408 (L.A.T.).
133 Poineer Match. Factory v. theirWorkmen (1951) 1L.L.J. 43 (I.T.).
134 Associated Cement Co. Ltd. v. Their Workmen, (1952)2 L.L.J. 255 (I.T.).
46 CENTRAL INDIALAWQUARTERLY ( Vol. 4:1
64. Reasonableness of demands is not the only relevant factor to
arrive at a conclusion whether a strike or lock-out is justifiedor not. The
bonafide of the strike or lock-out should be the most important factor
for deciding the issue, it is necessary, therefore, to describeunder what
circumstances a strike or lock-out can be deemedto be bona fide. Thus.
when a strike is resorted to without exhausting the remedies
available to workmen under the IDA or without waiting for the result of
the conciliation officer's report sent to the Government or if it is not
inevitable or if the strike is continued even after the assurance given
by the management or the preparedness of the management to settle
the dispute by direct negotiations or adjudication or when it is
resorted to frequently and frivolously predominant motive being to ruin
the industry we may say it is not a bona fide strike. The Labour
Appellate Tribunal in Ram Krishna Iron Foundry v. Their Wor-kers135
has held that a strike is normally a weaoonto lodge a protest and as
such it is unobjectionable unless it is used for a purpose other than
of giving an expression to the grievances of the workers. A strike would
be normally deemed to be justified unless the reasons for it are
absolutely perverse and unsustainable.
l 36
.
65. Similarly, a lock-out may be deemedto be bona fide, if it is
adopted as a security measure to protect the personnel and property,
or if it is in consequence of strike which is unreasonable or if it is
launched after remedies provided in the IDAproved futile, or when it is
declared if the workmen do not show their willingness to settle the
dispute through negotiation. However, it might be mentioned that the
illustrations given are not exhaustive but illustrative. It is hoped that it
would tessen the uncertaintiesconnected with classification of a strike
or lock-out.
3. Can an illegal strike be justified
66. Even though the legislature has not provided for any
classification of illegal strike into justified and unjstified strike the
jUdiciary has examined this question while dealing with the cases of
dismissal of strikers and wages for the period of strikellock-out. The
question came up for interpretation before the Supreme Court for the
first time in Indian General Navigation of Railway Co. ltd. v. Their
Workmen. 137 The Supreme Court r U I ~ that a strike which is illegal
135 Ram Krl.hna Iron Foundry•. v Their Worker., (1954) 2 L.L.J. 372 (LAT.).
136 The same view was expressed by the Full Bench of the Labour Appellate
Tribunal in RamKrl8hna Iron Foundry, op. cl1.
137 Indian General Navigation of Railwayco. Ltd. v. TheirWorkmen, (1960) 1 L.L.J.
13 (S.C.).
1991] STRIKES AND LOCK-OUTS ININDIA 47
cannot be characterised as "perfectly justified" and these two
conclusions cannot in law co-exist. The Court reasoned that:
The law has made a distinction between a strike
which is illegal and one which is not, but it has not
made any distinction between an illegal strike which
may be said to be justifiable and one which is not
justifiable. 138
The Court accordingly deprecated the tendency to condone
illegal act in the' statute. An attempt to re-open the question was
negatived in Model Mills v. Dharam Das139 wherein the Supreme
court held that even though the reasons for going on strike may be
completely justified, yet the illegal strike would be totally unjustified.
Likewise, when a strike is illegal. the questionwhether it is provoked or
not is immaterial. 140
67. However, majority decision in Gujarat Steel Tubes v. Gujarat
Steel Tubes Mazdoor $abha
141
shakened the foundation laid in
Indian General Navigation and ruledthat" mereillegality of strike does
not per se spell unjustifiability." It visualised that "between perfectly
justified and unjustified the neighour-hood is distinct," In support of the
aforesaid observation the Court heavily relied upon its earlier
decision in Crompton Greaves Ltd. v. Their Workmen.
142
But it may
be pointed out that the Supreme. Court misread the decision of
Crompton G ~ v e s ltd. case when it said that:
even ifstrike is illegal. it cannot be castigated as
unjustified, unless the reasons for it are entirely
perverse or unreasonable. 143
Indeed, what it said was:
....in order to entitle the workmen to wages for the
period of strike. the strike should be legal as weill as
justified. A strike is legal if it does not violate any
138 ld. at 22.
139 Model MIll., v. Dharam 0... AIR1958 (SC) 311' See also C8ltex India Ltd.
Madr.. v, Their Workmen, (1955) 2 L.L.J. 693 (LAT.).
140 See Colliery Mazdoor congress v, New Vlrbhoom Coal co. ltd. (1952) LAC.
219 Mahalaxml Cotton Mills Ltd. v. Their Workmen (1952) 2 L.L.J. 635. 640
(L.A.T.).
141 Gularat Steel Tubes v, Gularat Stee' Tubes Mazdoor Sabha (1980) 1 L.L.J.
137 (S.C.).
142 Crompton Greaves Ltd. v. their Workmen, (1978) 2 L.L.J. SO(S.C.)
143 Supra note 140 at 168.
48 CENTRAL INDIALAW aUARTERLY [Vol. 4:1
provision of the statute. Again, a strike cannot be
said to be unjustified unless the reasons for it are en-
tirely perverse or unreasonable.
144
A survey of the aforesaid decisions. therefore leads us to the
conclusion that the observation of majority judgement hasleft the issue
whether illegal strike per se is unjustified wide open and introduces
uncertainty.
X. DISMISSAL OF STRIKERS
68. The problems of dismissal of strikers . has assumed great
significance in India since the adoption of adjudication system. In the
absence of any specific statutory provisions in the Industrial legislation,
the Supreme Court has faced the problems relating to dismissal of
strikers. In deciding the questions of legality of management's action to
dismiss strikers. the Courts have not been solely governed by the
legality or illegality of the strike. According to the Court neither il/egal
strike .authorises the management to terminate the services of strikers
nor the legal strike disallows the management to terminate their
service. In such a situation.the Supreme court has made a significant
contribution to the Industrial Jurisprudenceby evolvinga multifaced and
highly complex concept of "justified" and "unjustified" striketo decide
the issue. The Court has laid down the following grounds for
intervention by Tribunals for the purpose of giVing relief to the workers
against wrongful dismissal:
(i) when there is want of good faith,
(ii) When there is victimization or unfair labour practice,
(iii) When the management has been guilty of a basic
error or violation of principles of natural justice. and
(iv) When on the materials the finding is completely
baseless or perverse. 145 .
Where the order terminating services of workmen was held illegal the
Courts have generally...,pirected reinstatement of workmen with or
without wages. ",.
69. The aforesaid norms have been formulated by the Supreme
Court on, at least, three important conditions. First, that the
144 Id. at 82 (Emphasis added).
145 Indian Iron & S1eel Co. v. Their Workmen, AIR 1958 SC 130.
1991] STRIKES AND LOCK-OUTS IN INDIA 49
industrial worker must be placed in such a position that security of his
service may not depend upon the caprice or arbitrary will of the
employer. Second, that the industrial peace should be maintained.
Lastly, the industry should be efficiently managed.
146
70. Tribunals and Courts haveruled that workers participating in a
legal and justified strike cannot be dismissed because if this is
permitted the statutory right of strike would become ineffective even
in a reasonable and bonafide situation. The court also ruled that
workers participating in a legal and justified strike cannot be denied
reinstatement simply on the ground that their placeswere filled by other
persons.
147
While laying down these rules the Court was cautious in
maintaining industrial discipline when it hetd that such a rule was
applicable only to peaceful strikers.
71. The legal and unjustified strike raises more complex issues.
It has been recognised by the Court that merely because the strike
has been held to be legal it does not foreclose the possibility of
dismissal of strikers. This line of thinking has been adopted in viewof
the fact that sometimes the conduct of strikers has been
objectionable, or they have been qUilty of serious misconduct or
intentional damage to' the property of concern or they have inflicted
personal injuriesto the employees of the concern. It is also found that
strike is sometimes resorted to in haste. In the aforesaid situationthe
Courts haveevolvedthe following ruleto regulate management's power
to dismiss strikers in a legal and unjustified strike:
1. A Workman cannot be dismissed for joining a strike which is
not illegal but which is simply unjustified;
2. The employer however, will have the right to dismiss a
workman joining an unju,stified strike:
(a) Whenthe strike itself was not bona fide or
146 See Smith Stain Street .and Co. v. smith Stain Street Worker's Union,
(1953) 1L.L.J. 67 (LAT.); See also SwalBWOlI Mills v. Their Workmen,
(1953) 2 L.L.J. 785; Swadeshl Industries v.'" Workers, (1955) 2 L.L.J. 785
(LAT.).
147 Ibid.
50 CENTRALINDIA LAWQUARTERLY [ Vol. 4:1
(b) When it was launched on other extraneous con-
siderations and not solely with a view to better the
conditions of labour.
148
It has been settled in view of the Supreme Court decision in National
Transport General CO.v. Workmen 149 and Punjab National Bank v.
Their Employees150 that workers wrongfullydismissed for paticipating in
a legal but unjustified strike are normally entitled to reinstatement
notwithstanding the fact that their placeswerefRied by other personsduring
the strike. Further, workers are entitledto reinstatement if they participated
in a strike which was occasioned on account of any Unfair labour practice
or vietimisation on the part of the employer. But it is exceedingly doubtful
in view of the decision in Spencer and Co. Ud. v. Their Workmen,151
Swadeshmirtran and Co. Ltd. v. Their Workmen
152
and Banglore
Silk Throwing Factory v. Their Workmen
153
if the workmen
participating in a legal and unjustified strike (who were substituted by
other persons) provided unfair labour practice is absent, can claim
reinstatement. It is equally doubtful if the workmen can claim
reinstatement for participating in an Olegal strike for non observance of
the provisions of certified standing orders. It has also been well
established that mere participation in an illegal strike would not
justify the dismissal of strikers.
72. The ruling of the Supreme court In Model Mills v. Dharam
Das
154
and I.M.H. Press Delhi v. Addl. TribunaP55 suggests that
the management can dismiss the strikers participating in an illegal strike
according to the rules of standing orders of the company. The Court,
however, pointed out that even in this situation the rules of natural
justice must be followed. This view raisestwo significant questions.
148 Ram Krishna Iron Foundry. v, Their workmen, (1954) 2 L.L.J. 372. 375
(LAT.).
149 Civil Appeal NO. 312 of 1956 decided by the Supreme Court on 2nd January
1957.
150 Punjab National Bank v, Their Employees, (1959) 2L.L.J. 666 (S.C;).
151 Spencer and Co. Ltd. v. Thel. Workmen. (1956) 1L.L.J. 714 (LAT.).
152 Swadeshmlrtran and Co. Ltd. v, their Workmen, (1952) 1L.L.J. 479 (I.T.).
153 Bangalore Silk throwing Factory v, their Workmen, (1957) 1 L.L.J. 435
(L.AT.)
154 Model Mills. v.Dharam Oas, AIR 1958 SC 311.
155 I.M.H. Pr... Deihl v. Addle. Tribunal, (1961) 1L.L.J. 499 (S.C.)
I. A. S. t. _.tAW UIUI'f. ~ ...
aIlS •.~ ",_ ,- -..•.....,.-...,... ...
• TRI oIi:- •••••••_-.'..,.. -
.-- --_ -_ , ...
1991} STRIKES AND LOCK-OUTS IN INDIA 51
First , is it desirable in the interest of industry to allow wholesale
dismissal of strikers? Second, whether the rule equally applies to
peaceful strikers as against violent strikers? Indeed, the view taken by
the Court in the. above case in not in conformity with its decision in
Punjab National Bank v. Their Workmen
156
and Indian General
Navigation v. Their Workmen.
157
The end of justice would be
served if a lesser punishment is given to strikers participating in an
illegal strike where their conduct has been peaceful. The Supreme
Court in Bum and Co. ltd. v. Their Workmen
158
has depricated
the tendency of the management to discriminate among strikers while
terminating their services in the absence of clear distinction. It has to
be proved in each case that certain strikerswho havebeensingledout
for disciplinary action can be treated differently on rational and
reasonable consideration. The Supreme Court159 has adopted a
pragmatic approach in dealing with the question of management's
power to dismiss peaceful .strikers even though they happen to
participate in an illegal strike. tt has distinguished between peaceful
and violent strikers. It ruled that the punishment of dismissal may be
imposed on violent strikers. But, where the strikers, remained peaceful
such extreme punishment of dismissal would not be justified. Further,
it would not be in the interest of industry and workers themselves.
73. The process of distinguishing one case from the other is best
depicted in Bata Shoe· Co. v. D.N. Gangull
160
and I.M.H. press v.
Addl. Tribunal 161 wherein the Court in its anxiety to ensure security
of tenure of strikers observed that the peaceful strikers should not be
subjected to extreme penalty of dismissal as it would lead to mass
dismissal of workers. However, the Court at the same time ruled that
in the process of distinguishing the case the context in which
judgements were given should. always be kept in mind. The
Supreme court
162
has consistently held that the order of dismissal
of strikers by the management in violation of Section33 is illegal. In
156 Punjab National Bank v. Their workmen , op cit.
157 Indian General Navigation v. Their Workmen, (1960) 1 L.L.J. 13 (S.c.).
158 Burn and Co Ltd. v. Their Workmen (t956) 1 L.L.J. 450 (S.C.).
159 See Indian General Navigation and Rly ;co. v. Their Workmen op. cit. of
Gujarat Steel Tubes v. Gujarat Steel Tubes Mazdoor Sabha. (1980) 1
L.L.J.187. (S.C.).
160 Bata Shoe Co. v. D.N. ;Gangull,AIR 1961 SC 1158.
161 LM.H. Press v, Add!. Tribunal, op cit.
162 See Puntab National Bank v. Their Workmen,·Op. cit. Shalimar Works Ltd. v.
Workmen, AIR 1959SC 1217.
52
....,-. ,
CENTRAL INDIA LAWQUARTERLY [ Vol. 4:1
such situation they are entitled to reinstatement. The Supreme
Court
163
has given due importance to the observance of the provisions
of standing Orders of the Company. It the dismissal was found to be in
accordance with the principles of natural justice the Court refused to
interfere in the management's meter of dismissal of strikers. The only
exception to this rule has been the case in which a striker is dismissed for
participating in a legal and justified strike. The Supreme Gourt
164
has
consistently held that one of the functions of the Industrial Tribunal is to
scrutinise the action taken by the management in dismissing the strikers
in order to satisfy itself that proper domestIc enquiry has been held and
the principles of natural justice have been complied with. Thus, Lord
Hewart's verdict that "justice should not only be done but must he seen
to have been done" is regarded to a considerable extent in matters of
dismissal of strikers. It has now been settled through the decisions of the
Supreme Court
165
that normal relief incases .of wrongful dismissal is
reinstatement. But in so ordering the Tribunal is expected to be inspired
by a sense of foul play towards the employees on the one hand and
consideration of discipline on the other. The relief or reinstatement is
granted on the:basis of social justice.
XI. WAGES FORSTRIKE AND LOCK-OUT PERIOD
74. There is no specific provision either in the Industrial Disputes Act,
1947 or in other labour legislation for determining the question of wages
for the period of strike or lock-out. In the absence of such provision the
judiciary has evolved certain norms to fill this gap. In Statesman Ltd. v.
Their Workmen,166 certain workmen went on an·illegal strike, thereupon
the management declared a lock-out. The question arose whether the
workmen are entitled to wages for the period of illegal strike/legal
lock-out? The Supreme Court observed:
If the strike is illegal wages during the period will ordinarily
be negatived unless consderate circumstances constrain a
different course.- Like-wise, if the lock-out is illegal full
wages for the closure period have to be "forked out", if
one may use that exopression. But, in between lies a grey
163 See Model Mills Ltd. v. Dharam Das, op. cit . Bata Shoe Co. (Pvt) Ltd. v.
D.N. Ganguli, op. cit.
164 See Indian General NaVigation and Rly. Co. v. Their Workmen, op. cit.
165 See BUkingham and Carnatic Mills Co. Ltd. v. Their workmen, (1951) 2. L.L.J.
314 (LAT); Punjab National Bank v. Their Workmen op.cit.; M.L Bose and Co.
(Pvt.). Ltd. v. Its Employees (1961) 2 L.L.J. 107 (S.C.).
166 (1976) 1 L.L.J. 484 (S.C.).
_1991 ] STRIKES AND LOCK-OUTS IN INDIA 53
area of twilight law. Strictly speaking. the whole field is left
to the judicious discretion of the Tribunal. Where the strike
is illegal and the sequeal of lock-out legal, we have to take
a view of the whole course of developments and not stop
with examining the initial legitimacy. If one side or other
behaves unreasonably or the over all interests of good
industrial relations warrant the Tribunal making such
directions regarding strike period wages as will meet with
justice, fair play and pragmatic wisdom. there is no error in
doing so. His power is flexible.
From the aforesaid observation it is evident that irrespective of the
illegality of strike. the Tribunal has a discretion to pass such order
regarding wages during the strike period as "justice, fair play and
pragmatic wisdom" dictate. This decision was of a bench of three jUdges.
In the later decision in Crompton Greaves Ltd. v. Workmen167 a bench
of two jUdges of the Supreme Court without referring to its judgement in
Statesman Ltd. supra has observed that in order to enable the workmen
to wages for the period of the strike. the strike should be legal as well as
justified. Krishna Iyer J. was a party to both decisions. Yet no attempt has
been made in the later case to explain the earlier observations.
B. Effect of Illegality ofLock-out on Payment of Wages
75. The Courts168 have held that. If the lock-out is illegal full wages for
the period of lock-out shall have to be paid to workers.
C. Effect of Justification of Strike on Wages
76. No doubt strike Is a l e g i t ~ m a t e weapon in the armoury of working
class but it should be sparingly used depending upon the exigencies of
the case particularly in the conditions prevailing in our country. With a
view to discouraging the misuse of the weapon of strike the Tribunal and
Courts have applied the concept of "justified" and "unjustified" strike in
cases where strike is legal. They held that in case of unjustified strike
workmen were not entitled to wages.
1. Strike Declared Against Unfair Labour Practice
of Victimisation on the Part of Management
77. The Courts and Tribunals while deciding the question of wages
for the period of strike have generally taken into account the fact whether
167 (1978) 2 L.L.J. SO.
168 See Statesman Ltd. v. Their Workmen, (197) 1 L.L.J. 484 (S.C.), North Brook Jute
Co. Ltd. v. Their Workmen, (1960) 1 L.L.J. 4SO (S.C.).
54 CENTRAL INDIA LAW QUARTERLY [Vol. 4:1
such strike was. occasioned due to unfair labour practice on the part of
employer. In such cases the workmen have been allowed wages for the
period of strike.
2. Strike Declared to Press Reasonable
Demands of Workmen in a peaceful Manner
78. The' general policy of the tribunal and courts
169
while dealing with
the question of strike has been to take into account the undoubted right of
workers to resort to strike for redressal of their genuine grievances. In
tackling such questions Tribunals emphasised that strike is justified if it is
resorted to in a peaceful manner. Where these conditions are satisfied
Tribunals and Courts have awarded wages for the period of strike.
3. Strike Due to Provocation of the other Party
79. Another consideration taken into account by the Tribunals and
Courts
170
in deciding the question of payment of wages for the strike
period is whether the strike was provoked by the action of the other party.
In such a situation the Tribunals and Courts granted wages for strike
period if the strike was provoked as a consequence of unreasonable
stand adopted by the management in relation to worker's demand.
provided of course the strike was not illegal.
4. Strike as a Measure of Protest
Against Retrenchment of Workmen
80. Tribunals and Courts171 have recognised that strike is a weapon
to register a protest including a protest against retrenchment and it
cannot be said to be unjustified unless the reasons for it are absolutely
perverse or unreasonable.
169 See Veltanlkara and Thutll Rubber Estate v. Its Employees, quoted in
Goverment of India, Industrial Awards in India; P.S.N. Motors Ltd. v. Their
Workmen, 12 F. J.R. 192.
170 India Cycle Mfg. Co.Ltd. v. Their Workers, (1951) 1 L.L.J. 390 (!.T.) of Certain
Banks In the State of Punjab and Deihl v. Their Workmen, (1950) L.L.J. 425 (I.T.).
171 See Dalma Cement Ltd. v. Ther Workers, (1955) 2 L.L.J. 466 (LAT.), Standards
Mills Ltd. v. Their Workmen, (1953) 2 L.L.J. 135.
----- --- -- - -- - ---- ------- -'-
1991] STRIKES AND LOCK-OUTS IN INDIA 55
D. Effect of Legal but Unjustified Strike on Wages
1. Strike to Press the Demands of Workers which
According to Community Standards are Unreasonably High
81. One of the important considerations which has been taken into
account by Tribunals and Courts in reaching the conclusion that a strike
is 'unjustified' is quality of demands made by the workers. If the demands
of the workers are unreasonably high or frivolous with the dominant
nature to ruin the industrial establishemnt, the strike)s held to be
unjustified and the workers have been refused wages for the strike
period.172
2. Strike Resorted Immediately After the Failure of
Conciliation Proceedings without waiting for Refernce
82. In order to bring about settlement of disputes, the Conciliation
Officer is enjoined under the IDA(i) to expeditiously investigatethe dispute
and all matters affecting the merits and the right settlement thereof; and
(ii) to do all such things as he thinks fit for the purpose of inducing the
parties to come to a fair and amicable setttement of the dispute. With a
view to give time to the Government to make a referencethe Courts have
held that strike resorted to immediately after the failure of conciliation
proceeding without waiting for reference to be made to the Tribunal is
unjustified, and accordingly workers would not be entitled for wages for
strike period. .
83. In Chandramalai Estate v.lts Workmen
173
the union of workmen
of the Estate raised certain demands. The conciliation proceedings in
respect of these items of the dispute ended in failure on 30 November
1955. Without waiting further and without asking the State Government to
make a reference under Section 10 of th IDA, the workmen went on strike
from 9 December, 1955. and the strike was withdrawn on 5 Junuarym
1956, the day the dispute was referred to Industrial Tribunal for
adjudication. One of the questions for determination before the Industrial
Tribunal was whether the strlkers.were entitled to wages? The Industrial
Tribunal granted fifty per cent of the total emoluments for the strike
period. Aggrieved by the order of the Tribunal, the management preferred
an appeal before the Supreme Court: Speakingfor the Court. Justice Das
observed:
172 Ram Krishana Iron Foundry v, Their Workers, (1954) 2 L.L.J. 572 (LAT.)
Vlrjebhai Lakshmlbhai v. New Commercial Mfg. Co. (1958) I.C.R. Bombay, 1153.
173. Chandramal.1 Estate v. 11s Workmen, (1960) 2 L.L.J. 243 (S.C.).
56 CENTRAL INDIA LAWQUARTERLY [ Vol. 4:1
3.
In our opinion the workmen might well have waited for
some time after conciliation efforts failed before starting a
strike and in the meantimeto have asked the Government
to make the reference. They did not wait at all. The
conciliation efforts failed on 30 November, 1955 and on the
very next day the union made its decision on strike and
sent the notice of the intended strike from 9 December,
195, and on 9 Dacember, 1955 the workmen actually
struck work. The Government appears to have acted
quickly and referredthe dispute on 3 January, 1956. It was
after this that-the strikewas called off. Weare unableto see
how the strike in such circumstances could be held to be
justified.174
The Court accordinqly held that workmen were not entitled to
wages for such period.
Strike Declared without exhausting
the Remedies Provided under the Act
84. It has been observed elsewhere that strike is a recognised
weapon of the workmen to be resorted to by them for asserting their
bargaining power for backing up their collective demands upon an
adamant employer. But in order to avoid themisuse of the weapon the
Court175 cautioned that it should be used as a last resort when all other
avenues for settlement of industrial dispute, as provided under the IDA
have been exhausted and proved futile.
4. Strike Resorted to in Haste
85. The Tribunals and Courts
176
have deprecated the tendency of
workers to resort to strike in haste.
5. Use of Violence During Strike
86. It has now been settled that the use of force or violence or act of
sabotage resorted to by the workmen would disentitle them for wages.
Thus, in Crompton Greaves ltd. v. Its Workmen, the Supreme Court
174 Id. at 246.
175 Hopkings and William (Travancore ltd. v. Mineral Companies Staff
Assoclaltion, (1955) 2 L.L.J. 293 (I.T.).
176 See MIs Pierce Leslie and Co. Ltd. v. Their Workmen, published in Kerata Gazette
110.43 November, 1959, p. 13, quoted in Goovernment of India, Supplement to
industrial Awards in India, 80 (1961), Ashok Textiles Pvt. Ltd. v. Their Employees,
pUblished in the Kerala Gazette. October 13. 1959, p.3.
1991] STRIKES AND LOCK-OUTSIN INDIA 57
E.
F.
ruled, that the use of force or violance or acts of sabotage resorted to by
the workmen during a strike would disentitle them to wages for the strike
period. 177
Effect of Legal but Unjustified
Lock-out on Payment of Wages
87. Tribunals and Courts have generallly awarded wages to workmen
when a lock-out was legal but unjustified. In Bharat Barrel and Drum
Mfg. Co. v. Their Workmen
178
certain workmen turned up for work at the
appointed hour on a certain date. Finding the doors locked, waited half an
hour and then left. Thereupon the management locked its door and
demanded explanation from workmen for not attending the work on
concerned day. The Tribunal hetd that workmen were entitled to wages
for the lock-out period. The Labour Appellatd Tribunal in ltalkholic Tea
Estate v.. Their Workmen
179
decided that workmen cannot be denied
wages on the ground of their failure to report for work every day during
the lock-out period. According to the Labour Appellate Tribunal:
"Lock-out implies that the employer would not allow the workmen
concerned in the dispute to work. That the act of the employer, in
declaring lock-out amounted to an anticipatory breach of contract on his
part. The workmen thereafter were not under any obligation to present
themselves for work."180
The problem of Unjustified Lock-out
Following Unjustified Strike and Vice-Versa
88. Tribunals and Courts are often faced with the situation where
unjustified strike was followed by unjustified lock-out, and vice versa.
Faced with this stuation the Superme Court in India Marine Service Pvt.
Ltd. v. Their Workmen181 evolved the doctrine of "apportionment of
blame." To quote the Supreme Court:
Where, however. a strike is unjustified and is followed by a
lock-out which becomes unjustified a case of
apportionment of blame arises.
177 Crompton Greaves ltd. v. Its Workmen, (1978) 2L.L.J. SO, 82 (S.C.).
178 Bharat Barrel and Drum Mfg. Co. v. Their Workmen, (1952) 2L.l.J. 532 (I.T.)
179 Italkhoollc Tea Estate v. Their Workmen, (1954) 2 L.L.J. 717 (LAT.).
180 Ibid., p. 718.
181 India Marine Service pvt. Ltd. v. Their Workmen, AIR 1963SC 528.
58 CENTRALINDIA LAWQUARTERLY [ Vol. 4:1
This view was followed in Northern Dooras Tea Company v.
Workmen of Oem Dima Tea Estate.
182
G. Other Problems
89. The Calcutta High Court in Amlendu Gupta v. Life Insurance
Corporation of India183 found itself faced with two problems, namely, (i)
whether justifiability of strike is a pure question of fact which can be
decided in a writ petition? and (ii) whether the High Court can mandate
the Life Insurance Corportation (L.I.C.) to pay the striking employees their
wages for the period of strike and also not to give effect to the impugned
circulars? The Court answered both the question in the affirmative.
90. In this case class III and IVemployees of the L.I.C. went on a legal
and justified strike to press their demands for the payment of bonus under
the settlement. The strike was lifted when the issue of bonus was finally
settled by the Supreme Court. The corporation, however, issued circulars
to the effect that the period of strike would be treated as unauthorised
absence on loss of pay and salary for the strike period would be deducted
on a proportionate basis from the salary, and provident fund contributions
and the house rent allowance would also be adjusted for the said period.
AggrieVed by the circulars the employees moved a writ petition under
Article 226. On the first issue the Court held that the Tribunal was entitled
to decide the question whether the strike was justified or not. As regards
the second issue the Court observed:
If I refuse to exercise my powers under Art. 226 of the
Constitution and to deny the reliefs prayed for in this
petition, the employess of the respondent No.1, who have
been affected by the impugned circulars and who I
understand, will number about 45,000will haveto fall back
on other remedies which may be available to them under
the law..... When the respondent No.1 and the Central
Goverment took recourse to various measures in order to
prevent the employees form getting the bonus in terms of
the settlement, it is unlikely that the workmen will get a
quick or efficacious relief by taking recourse to the
remedies available to them under the Act. In my view, the
workmen have already been driven from pillar to post
182 Northen Dooras Tea Company v. Workmen of Oem Dima Tea Estate. (1964) 1
L.L.J. 436 (S.C.); Seealso Pradip Lamp Works v. Their Workmen, (1969) 38 F.J.R.
20 (S.C.); Statesman Ltd. v. Their Workmen, (1976) 1 L.L.J. 484 (S.C.); Highway
Group of Estates v. Industrial Tribunal, (1978) 2 L.L.J. 251 (Mad)
183 (1982) 2 L.L.J. 332.
---- ---- -
--- - ------ --
1991] STRIKES AND LOCK-OUTS IN INDIA 59
ar'ld inspite of repeated orders of the highest Court of the
land, the respondent No.1 did not pay them the bonus to
which they were legally entitled, till they resorted to the
striKe. It must also be borne in mind that the workmen
immediately called off the strike on 15.4.81 on receiving an
assurance from the respondent No.1 that the bonus will be
paid.184 .
Swastlc Textile Engineers P.Ltd. v. Rajan Singh Sant Singh
185
raises
three issues namely; (i) Whether deduction of wages after withdrawal of
illegal strike amounts to a penalty? (ii) Whether deduction of wages after
withdrawal of strike amounts to change in conditions of service? (iii)
Whether insistence on workmen to execute.a written ,undertaking not to
go on strike in future and seek pardon is valid? In this case certain
workmen went on an alleged illegal strike. After termination of strike the
management asked them to give an undertaking that they would go on
such strike. However, the concerned workmen refused to furnish such
statements, and therefore they were not allowed to resume their duties.
On failure of conciliation proceedings the aggrieved workmen filed a
complaint under Section 34A. Further, the management deducted their
wagesfor the strike period. Thetribunal held that the strikewas not illegal.
It accordingly held that each of the concerned workmen was entitled
to wages for the period of strike. The tribunal further held that it was
neither fair nor legal on the part of the management to insist that its
workmen should execute an unconditional apology and an
execution of such writing amounted to change in the conditions of
service. Against this order the management filed a petition under
Article 227 challenging the order of the tribunal in regard to wages
for the period of strike. The Gujarat. High Court held that (i)
insistence upon execution of the writing amounted to a change in
the conditions of service of workmen because they were not bound
to execute such writing; (ii) deduction of wages amounted to a
change in the conditions of service because employer had no right
to deduct wages; and (iii) with-holding of wages amounted to
imposition of penalty under the standing orders.
184 Id. at 341.
185 (1984) 2 LL.J. 97.
60 CENTRAL INDIA LAWQUARTERLY [ Vol. 4:1
XII. PROTECTION OF CONCERTED LABOUR ACTIVITY
A. IMMUNITY FROM CRIMINAL CONSPIRACY
91. Section 17 of the (Indian) Trade Union Act, 1926 (hereinafter
referred to TUA) seeks to insulate trade union activity from liability for
criminal conspiracy :
No office-bearer or member of a registered trade union
shall be liable to punishment under sub-Section (2) of
Section 120-8 of the Indian Penal Code (45 of 1860), in
respect of any agreement made between the members for
the purpose of furthering any such object of the Trade
Union as is specified in Section 15, unlessthe agreement is
an agreement to commit an offence. The immunity is,
however, available only:
(i) to office bearer and members of registered trade unions,
(ii) for agreements:
(a) in futherance of any such trade union object as is
specified in Section 15 of the Act, and
(b) which are not agreementsto commit offences.
The first of these limitations, confines the protection to a small
section of labour force.
B. IMMUNITY FROM CIVIL ACTIONS
92. Section 18(1) of the TUA grants immunity to registered trade
unions as well as office bearers and members thereof from civil actions.
This Section does not afford immunity to a trade union or an office bearer
thereof for an act of deliberate tresspass. The immunity will not, however,
be taken away for the reason that the workers participated in an illegal
strike. This is supported by the decision of the Supreme Court in Rohtas
Industries Staff Union v. State of Bihar. In this case the workmen Went
on illegal and unjustified strike. The question arose whether the employers
had any right of civil· action for damages against the strikers. The
arbitrator held that the workers who participated in an illegal and
unjustified strike, were jointly and severally liable to pay damages. On a
writ petition the Patna High Court quashed the award of the arbitrator and
held that 'employers have no right of civil action for damages against the
employees participating, in an illegal strike within the meaning of Section
24 of the Industrial Disputes Act, 1947." This view was upheld by the
Supreme Court. It isalso evident from thisdecision that Section18 affords
civil immunity in case of strike by the members of trade union.
1991] STRIKES AND LOCK-OUTS IN INDIA 61
XIII. CONCLUSIONS
93. India in the present context of economic development
programmes cannot afford the unqualified right to the workers to strike or
to the employer to lock-out. Compulsory arbitration as an alternative of
collective bargaining has come to stay. The adoption of compulsory
arbitration does not, however, necessarily mean denial of the right to
strike or stifling of trade union movement. If the benefits of legislation,
settlements and awards are to reach the individual worker, not only the
trade union movement has to be encouraged and its outlook broadened
but the laws have atso the be suitably tailored.
94. The existing legislation and [udlcial pronouncements lack breadth
of vision. Indeed, the statutory definitions of "strike" and "lock-out" have
been rendered worse by a system of interpretation which is devoid of
policy-oriented approach and which lays undue stress on semantics. The
discussion of the concepts and definition of strike has sought to establish
that legalistic consideration has frequently weighed with the court in
interpreting and expounding the said statutory definition: We believe that
emphasis on literal interpretation resulted in ignoring the ordinarily
understood connotation of the term "strike" and in encouraging
undesirable activity.
95. We now pass on to acts which constitute strike. Unlike the
Industrial Relations B i I ~ , 1978 the three phrases used in the definition of
"strike" in IDA are not qualified by the expression "total" or "partial".
Further, they do not specifically take into account go-slow. The Courts
have accordingly excluded go-slow from the purview of "strike".
However, the exclusion of go-slow from the ambit of "strike" throws them
open to the third party suits for damages. However, the lneluslon of
go-slOW in the definition of "strike" will not solve the problem unless at the
same time, Section 24 of the IDA is suitably amended to include go-slow
within the category of illegal strikes. Unless both the suggestions are
incorporated employers would be in a worse position because if go-slow
becomes a legal strike, employer's right to take. disciplinary action would
be severaly curtailed.
96. Likewise the definition of "strike" does not specifically include
stay-in, sit down, pen down or tool down strikes and the emerging
posltion is far from satisfactory. However, the Supreme Court has held
that pen-down strike is a "strike" under Section 2(q). The decision, it is
submitted, ignores policy considerations and does not adequately
analyse the legal implication of Including the same in "strike". We believe
that the question whether the so-called pen-down or stay-in strike should
be treated as covered by traditional definition of strike as given in Section
62 CENTRAL INDIALAWQUARTERLY [ Vol. 4:1
2(q) of the IDAis basically a question for policy decision and presumably
invites a decision-maker to choose between industrial peace and
industrial indiscipline. In our opinion sit-down strike includes not only
trespass but frequently intimidation and wrongful restraint. It also attracts
the property right of the employer. In view of this it is suggested that
Parliament should suitably amend the IDAto exclude stay-in,sit down or
pen-down strike.
97. Similarly, the definition of "strike" also does not Include "hunger
strike", but the Coutrs havebrought it withinthe ambit of "strike". We are
of the view that the fasting part should be outlawed from hunger strike .
properly so-called. It is possible that Section 7 of the Criminal Law
Amendment Act, 1932 could be applied to several species of hunger
strikes. However we are not in favour of taking resort to that provision
because it applies not only to hunger strike but also to strike. The
work-to-rule tactics have also not been included in "stn1<e" under Section
2(q). It is submitted that it should be regarded as a problemof indiscipline
and adequate disciplinary measures should be made available to
employers.
98. Law must be changed to keep pace with scientific and
technological development. It will be an anachronlsm to assert that in the
present age of automation stress should still be made on element of
combination. Thus, the requirement of combination in "strike" which
ignores the importance of individual workers in the present age of
automation should be dispensed with and the definition of "strike" may
accordingly be amended to meet the needs of the modern time. The
concluding part of the definition of "strike" namely, "refusal to accept
employment" is inarticulately phrased. In our opinion this must be
interpreted to mean "accept a particular assignment in pursuance of a
subsisting contract of employment."
99. Lastly, eventhough the definition of strike does not specifically
include purpose-Clause, a perusal of the policy considerations. the
legislative intent, the legislative history of the word "strike", the scheme
and statutory provisions of the IDA, the provisions of the TUAand some
of the decided cases may well leadto the inevitable conclusionthat strike
is a coercive measure in labour management relations. Moreover, in
several industrially advanced countries the statutory definition of "strike"
specifically inctudes the purpose clauseand wherever the definitiondoes
not include such clause the courts have generally read the
purpose-clause to fill in the gap in the definition of strike. However,
tribunals and courts, which had opportunities to interpret the statutory
definition of "strike" generaUy adopted literal interpretation. Such
1991] STRIKES AND LOCK-OUTS IN INDIA 63
interpretation, it may be submitted, has failed to take into account the
ordinary meaning of the word "strike" as understood in the arena of
labour management relations. This approach of decision-makers Oudicial
and quasi-judicial) was conditioned partly by the legal nature of their
training and partly by the ignorance of the facts of industrial life they
suffered from. Unaware of Indian conditions and in the absence of Indian
literature in the early years, they tried to learn the dimensions of the
concept of strike and lock-out from such widely different foreign statutes
such as the Wagner and Taft Hortley Acts in the United Statesof America
and Commonwealth Conciliation and Arbitration Acts of Australia. Thefact
that Government spokesmen emphasisethe need of collective bargaining
on the American model and that the IDA is partly based on English,
Australian and Swedish statutes has only encouraged this tendency of
judicial interpretation. However, it need hardly be emphasised that the
lobour laws of a country are to be viewed in the context of its culture and
history, including political, economic and legal. Indian conditions are
totally different from those of the countries on the laws of which our
decision-makers are relying. It is submitted that time has come to
abandon this type of interpretation. Under the circumstances unless the
Supreme Court reverses its stand we suggest the incorporation of a
purpose-clause, namely:
"Where such cessation or refusal by the employees
occured in consequence of industrial dispute and is
intended for the purpose of compelling their employer or
aiding the employees of any other establishment to compel
their employees to accept terms or conditions of or
affecting employment,"
in Section 2(q) of the IDA.
100. Like "strike", there is nothing inherent in the concept of
"Lock-out" to suggest that its object is other than a coercive measure. On
the contrary, legislative enactments in several other countries specifically
define "lock-out" to be a weapon in the hands of employer to coerce
workmen to accept his terms and demands. Next, the policy
consideration reveal that the measures adopted by the management to
discipline workmen,protect property and personnel, transfer business or
close the uridertaking do not amount to lock-out. Further, the scheme of
the IDA is so arranged that it deals separately with the preventive measure
and dispute settlement procedure. If "lock-out" were to include
disciplinary, security or enconomy measure the entire scheme of the
statute would be thrown out of gear. Moreover, the statutory provision of
the IDAwould not be reconciled. The emphasis on "objective" of the IDA
64 CENTRAL INDIA LAWQUARTERLY [Vol. 4:1
further confirms that "lock-out" is a coercive measure and not a
disciplinary, security or an economy measure. Thus, the policy
considerations and legal materials suggest that disciplinary measures,
security measures or economy measures adopted by the management
are not lock-outs. Indeed, there are number of decisions in which the
Courts have specifically held that lock-out is a coercive measure. But by
holding in some cases that a disciplinary measure adopted by the
management is included within the definition of "lock-out", the Courts
defeated the very purpose of the IDA, namely to keep the wheels of
industry moving besides rendering part of Section 33 useless. Next, to
hold that the fact situation in' Lakshmi Devi Sugar Mills,186 Hanuman
Jute Mills187 and Ambika Jute Mills188 amount to a lock-out is to ignore
the coercive element of lock- out. These decisions are tantamount to
asking the management to choose betweenthe devil and the deep sea. If
it chooses not to close the business, there is a danger of unruly and
excited mob taking the possession of the property and destroying the
sameand endangering the safety of personnel and property. On the other
hand, if it closes "the place of employment" he will be liable to the
punishment provided under Section 26 of the IDA. Further, the Supreme
Court decision in Express Newspapers Ltd.
189
not only ignored the
policy considerations, the scheme of the Act, the statutory provisions of
the IDA and the management's right ter close the business but also
completely lost sight of the coercive element of "lock-out." However, the
pendulam swung in the other direction in Tea District Labour
Association190 Andhra Prabha Ltd.
191
Kalipon Tubes Ltd.
192
and
Tatanagar Foundry CO.
193
wherein the Supreme Court held that "the
motive behind closure (was) immaterial and what should be seen (was)
whether it was an effective one." These decisions finally exploded the
judicial myth.
101. Nevertheless, the off shoots of a thinking process cultivated and
nourished judicially, rationalised to meet the predisposition of
decision-makers and refined to distinguish the usually undistinguishable
over the past several years are of varied and far-reaching consequences.
Unless appreciated and changed, it will render the recent attempts to
186 (1957) 1L.L.J. 17 (S.C.).
187 (1953) 2 L.L.J. 684 (LAT.).
188 (1954) 1L.L.J.835 (I.T.).
189 (1962) 2 L.L.J. 227 (S.C.).
190 (1960) 1L.L.J. 802 (S.C.).
191 (1968) 1 L.L.J. 15 (S.C.).
192 (1969) 1 L.L.J. 557 (S.C.).
193 (1970) 1L.L.J.348 (S.C.).
1991] STRIKES AND LOCK-OUTS IN INDIA 65
discard motive behind closure futile, besides giving rise to cancers in
unpredictable places. In the circumstnces our suggestion would be in the
favour of a reapprisal of the Supreme Court decisions by the Supreme
Court itself whenever a future occasion demands. But, if that is not
possible, we suggest an immediate legislative intervention for including
purpose clause in Section 2(e) of the IDA which occured in Section 2(e)
of the IDA.
102. Proceeding from the area of statutory interpretation to that of
right to strike and lock-out, we find that it is difficult to reconcile policy
statements with statutory provisions. Government spokesmen, for
instance, are generally agreed that "workers" right of association,
organization and collective bargaining is to be accepted as a fundamental
basis of mutual relationship between lobour and management, and that
collective bargaining can derive reality only from organized strength of
workers." Yet apart from granting immunity from criminal and civil
conspiracies and restraint of trade, the provisions of TUA do little to
strengthen trade union movement and right to strike. Indeed, the IDA
which permits right to strike in a certain situation has not, on the whole,
delivered the goods.
103. Coming to the constitutional interpretation of Article 19(1) (c) we
find that the Supreme Court in All IndiaBankEmployees Association194
has excluded right to strike form its ambit. Supreme Court's reasoning is,
however, involved, inconsistent and at variance with principles laid down
in other decisions. Further, the interpretation does not promote the
community's interest in either trade union or even in functioning of the
parliamentary form of government, and in fact, frustratesthe very purpose
of guaranteeing the right to from associations or unions. In our opinion
the Founding Fathers recognised that trade unionism could not be
ensured by merely securing to the citizens the right of forming
associations or unionsbut alsothey shouldhavethe right of collective action.
But, at the sametime, they alsorecognised that collective actionmight, (even
if individual action did not), endanger "publlc order or morality". They,
therefore. provided that, subject to the right of the State to protect those
interests, a citizen might do collectively what he could do individually.
104. We believe that an act which is illegal, if done by an individual
continues to be illegal when doen by two or more persons acting in
combination. Article 19(1) (c) does not grant a charter of liberty to the
194 A.I.A. 1962 S.C. 171.
66 CENTRALINDIA LAWQUARTERLY [ Vol. 4:1
citizens to collectively do that which they cannot do individually. On the
other hand, an act which is legal if done by an individual may become
illegal when done by two or more persons acting in combination. Article
19(4) indicates the permissible area of State regulation of combination as
an element of liability. With respect to the right to lock-out we are inclined
to believe that the employer has a constitutional right to lock-out; the right
is not absolute and the restrictions imposed by the IDAare reasonable in
the interests of general public.
105. Having discussed the conclusion emerging from right to strike
and lock-out we can now turn to draw conclusion from the discussion of
the regulation of instruments of economic coercion in part four. The
statutory provisions and also judicial response to problems connected
with regulation of strikes and lock-outs leavemuch to be desired. It is true
that Parliament cannot anticipate and provide for all potential difficulties,
but can certainly react to such as appear through case law. The general
scheme of regulation of strikes and lock-outs in pubnc utility services is
somewhat satisfactory. However, there is no provision in the IDA for
"strike ballot" even in public utility service. The absence of such a
provision is likely to result in misuse of the weapon, particularly when
there are multiple unions in the same industry/unit. It is, therefore,
suggested that the IDA should be amended to provide for "strike ballot"
before the workmen go on strike in publtc utility service as provided in
Section 90 of the Industrial Relations Bill, 1978. Further, two trends of
judicial interpretation apparently pulling in the opposite directions may be
noted here. The non-pubtlc utility concerns unlike the public utility
services do not require notice of strike of lock-out to be given to the
opposite party. This is likely to lead to lightening strikes and lock-out. In
view of this it is suggested that Section 23 of the IDA may be amended
requiring the parties concerned to give minimum period of notice of
strike/lock-out to the other party concerned.
106. The judicial interpretation of Section 23 reveals mutually
conflicting reasoning and lack of appreciation of both, the facts of
industrial life as well as the law. Neither the additional limitation placed by
the Supreme Court, nor the original limitations imposed by the Calcutta
High Court, on the scope of the general prohibition is sound in principle
and in law. We believe that the criterion of connection or relevance is
more in accord with the facts of industrial life and the provision of IDA. It
is, therefore, suggested that during the pendency of proceeding before
the. Board of Conciliation or adjudicating authorities there should be no
1991] STRIKES AND LOCK-OUTS IN INDIA 67
ban on matters unconnected with such proceeding. Section 23 of the IDA
may accordingly be amended.
107. Section 24 which defines illegal strikes and lock-outs is
inadequate. inasmuch as there is no provision in the IDA which prohibits
sympathetic and general strikes and lock-outs. In view of this it is
suggested that there should be a provision similar to Section 16 of the IDA
to regulate sympathetic or general strikes/lock-out. A strike is not illegal
even if it is commenced or continued only for the reason that the
employer has made an illegal change. This is likely to affect industrial
peace. It is. therfore. suggested that such a strike should be treated as
illegal under Section 24 of the IDA. Further a strike or lock-out should be
illegal if it is resorted to due to unfair labour practice or victimization on
the part of trade unions or employers. A clause to this effect should be
added in Section 24.
108. The co-relation between imprisonment and fine is missing:
Whereas Section 26(1) prescribes ratio of one month imprisonment
and/or fine of rupees fifty Section 26(2) provides one month imprisonment
and one thousand repees fine. Legal sanctions against illegal strikes and
lock-outs lack in enforcement. It is, therefore. suggested that not only
legal sanctions prescribed in the IDA should be adequately enforced but
the IDA should be amended to provide more deterrant punishment.
109. Now coming to the effect of use of instruments of economic
coercion on right to terminate employment relationwe find that there is no
provision in the IDAto regulate the same. To bridge this gulf tribunals and
courts have tried to formulate various norms. In this process judiciary has
tried to maintain a balance between the needfor discipline in industry and
securing adequate security of tenure to the workmen. The task has been
extremely difficult one in view of sharply divided and vociferously pressed
conflicting claims. Thus, the courts held that legality of management's
action to dismiss strikers the Court has solely been gUided by the legality
or illegality of the strikes. According to the Courts neither illegal strike
authorises the management to terminate the services of strikers nor the
legal strike. disallows the management to terminate their services. In such
a situation the judiciary has made a significant contribution to the
Industrial jurisprudence by evolving a highly complex concept of
"justified" and "unjustified" strike to decide the issue. Although the Court
has evloved principles relating to the regulation of management's power
to dismiss strikers. these suffer from the normal vices which were usually
found in judicial legislation. In any case the matter which has come up
before the Court has thrown sufficient light on the nature of problems
68 CENTRAL INDIA LAWQUARTERLY [ Vol. 4:1
relating to dismissal of strikers. The time is ripe that the principles laid
down by the Court and the suggestions outlined above need be put in the
form of statute book in order to put an end to controvercies which have
arisen and are likely to arise in the matter of dismissal of strikers. .
110. This brings us to the last point namely, effect of instruments of
economic coercion on wages. A survey of decided cases reveals
adequate judicial awarencess of the need to provide wages for the period
of strike and lock-out, in certain circumstances. The discussion also
indicates that problems are arising faster than judiciary can solve them. It
is also observed that the concept of claim of wages for strike or lock-out
period are undergoing change. In this regard the principles of "no-work
no wages" is being whittled down to provide for wages to strikers or
locked- out employee in certain circumstances. Thus. the decisions in this
area demonstrate the vital role of judicial process in formulating the
norms.
111. In the end, we may say that it is high time to review the entire
legislation and judicial pronouncements relating to instruments of
economic coercion. It is hoped that the suggestions outlined above would
go a long way in maintaining industrial peace and harmony.

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