Strikes Lock-Outs Gherao and Bundh (393-444)

PARTVI
STRIKES, LOCK-OUTS, GHERAO AND BUNDH
I. STRIKES AND LOCK-OUTS

Broadly speaking while strike is labourer’s instrument o f economic coercion, lock
out is employer’s instrument o f economic coercion. While strike comprises o f ac
tions or omission, which inflict or threaten to inflict financial loss on the manage
ment with a view to coerce the management to concede industrial dispute demands
o f workers, lock-out seeks to deprive persons employed by him o f the opportuni
ties to work, diminishes their earning in the hope that resulting economic strain
would compel them to come round to employer’s point o f view.’
A strike, according to section 2 (q) o f the Industrial Disputes Act, is a cessa

tion o f work for any length o f time under a common understanding to put pressure
on an employer to accept their demands. Such a strike can exist even though it is
not part o f an industrial dispute in the technical sense.' A mere absence o f workers
from the factory^ or a concerted application for leave is not a strike, ût^bsence
fi-om work even on a holiday with the intention o f coercing the employer has been
called a strike.^
The so-called go-slow strike needs special coinment. It occurs when workers
attend to their work but do it slowly. This can cause heavy loss to an employer. One
peculiarly effective form o f go-slow strike, hard to deal with, is so-called work-to-
rule, resorted to by employees o f the telegraph department. This form o f strike
occurs, mostly in posts and telegraphs, banks, railways, and. so forth, when the
workmen, by invoking time-consuming rules that are usually ighqred, slow down
their work. This differs from the ordinary go-slow strike in that here, the workers
merely refuse to do more work than they should. It is sometimes very difficult,
however, to determine where work-to-rule ends and go-slow begins. Neither o f
these so-called strikes leads to “cessation o f work”. Therefore, it is debatable whether
' Suresh C. Srivastava, Industrial Disputes and Labour Management Relations in India.
Deep & Deep Publications, Delhi (1984) p. 131.
‘ O.D. Dahl V. Goodlass Wall Ltd., Bombay, (1956) IILLJ 278.
2 Ram Sarup v. Rex, [1949-50] I F.J.R. 113; AIR 1949 All. 218.
^ See Pipraich Sugar Mills Ltd. v. Their Workmen, [1956-57] 10 F.J.R. 413.
394 L abour L aw and L;JB0UR R e lations
they come within the A ct’s definition. A go-slow striice— presumably because o f
the serious financial injury it causes to an employer— has been held to be serious
misconduct.'* But can work-to-rule be similarly held to be misconduct ? The workers
say, on the contrary, that their conduct is unusually legal and correct.
Lock-out, as the antithesis o f strike, is temporary closure o f a place o f business
by the employer to bring pressure on his workmen to accept his terms. This is the
word’s usual meaning, although an inartistic definition o f lock-out in section 2 (1 )
seems to give a colour o f lock-out to any closure o f a place o f business, even one
caused by flood or fire or earthquake. The courts have had to clanfy that definition.
A permanent discontinuance o f business is not a lock-out, because a lock-out
is a temporary closure o f a place o f business, not a termination o f the business
itself^
After a declaration o f lock-out by an employer the workmen are not required to
present themselves for work. Therefore, if a lock-out is held to be unjustified, all
affected workmen are entitled to compensation.
Sections 22 to 24 o f the Industrial Disputes Act deal with prohibition on both
strikes and lock-outs. We shall briefly describe the limitations on strikes, which
limitations also apply, mutatis mutandis, to lock-outs.
The Act classifies industries into public-utility services and others, and it
prohibits strikes in the former more stringently than in the latter.
In a public-utility service a strike requires a notice o f not less than two weeks
and not more than six. Industries other than public-utility services do not need
such notices. In a public-utility service any strike pending conciliation is illegal.^ In
any other industry a strike pending conciliation is legal^—with the sole exception o f
one pending conciliation before a board.’ Regardless o f notice and in any industry,
a strike is illegal during a period o f adjudication, or within the effective period o f any
award or any settlement.
A strike or lock-out legally in existence at the time o f a reference to a tribunal,
or to a voluntary arbitrator, or to a board of conciliation is not made ipso facto illegal
by the reference.* But the appropriate government can by order prohibit such a
strike or lock-out’s continuance.^
The government holds one more weapon— an ultimate weapon— against strikes
and lock-outs. This is the Essential Services Act. Notwithstanding recognition by
all the above provisions o f the legality o f a particular strike or lock-out, a government
Vasant Gwlnd Madhwa Rao v. Gufarat Works Ltd., (1956) II LLJ 731 (LAT).
^ iaya Bhmat Tile Works v. State o f Madras. (1954) I LLJ 286.
®S. 22. Industrial Disputes Act, 1947.
Id, s. 23.
* Id, s. 24 (2).
’ W.,s. 10(3).
S t r ik e s , L o c k - o u t s , G h e r a o and B undh 395
may declare any business to be an essential service, and then ban any strike or
locic-out.
Strikes (legal or illegal) have been classified into justified and unjustified strikes.
Dismissals o f illegal strikers have sometimes been disapproved o f on the ground
that the strike, while illegal, was justified. Similarly, claim o f legal/strikers have
sometimes been dismissed on the ground that the strike, while legal, was not justi
fied. But it is now settled that an illegal strike cannot be a justified strike.
In deciding the question o f punishment o f strikers, a company must conduct
an enquiry to determine the role o f the strikers and must distinguish between
peaceful strikers and violent strikers. It may not punish all strikers indiscriminately.
Even peacefiil strikers on a strike that is legal and justified are strikers. Workers
have no absolute right to strike pay. But considering the economic disparity be
tween the employers and the workmen, and the unequal bargaining power o f the
workmen, wages for the period o f a strike, or part o f it, are usually awarded on
grounds o f social justice. In awarding such strike pay the courts consider the
status o f the strike not only at its commencement but also during its course later
on.''’
PUNJAB NATIONAL BANK v. THEIR EMPLOYEES

Supreme Court, ( J959) 2 LLJ 666
[The Bank dismissed 150 employees for taking part m a pen-down strike. The
Labour Appellate Tribunal reinstated 136 o f them. In these two civil appeals, one
the issues for decision by the Supreme Court was the propriety o f the award o f
reinstatement. Excerpts from the judgment delivered by GajendragadkarJ. follow:]
The first contention raised by the bank is in regard to the conduct o f the
employees in entering upon a pen-down strike and its effect on their claim for
reinstatement....
Is this pen-down strike a strike within S. 2 (q) o f the Act or not ? Section 2 (q)
defines a strike as meaning a cessation o f work by a body o f persons employed in
any industry acting in combination, or a concerted refusal, or a refusal uiKjer a
common understanding o f any number o f persons who are or have been so em
ployed to continue to work or to accept employment.... On a plain and grammatical
construction o f this definition, it would be difficult to exclude a strike where work
men enter the premises o f their employment and refuse to take their tools in hand
and start their usual work. Refusal under common understanding to continue to
work is a strike and if in pursuance o f such common understanding the employees
entered the premises o f the bank and refused to take their pens in their hands, that
D.D. Seth, Commentary on the Industrial Disputes Act, 1947 pp. 353-54 (1966).
396 L a b o u r L a w AND L a b o u r R e l a t i o n s
would no doubt be a strike under S. 2 (q)....

It was... urged [by the bank] that the entry o f the strikers in the premises o f the
bank amounted to civil trespass....[T]he decision o f this technical point would
depend on whether or not the employees are given a limited or conditional license
to enter the premises and [whether] if they have decided to go on strike the said
conditional or limited license is no longer available to them. We do not think it
necessary to consider this academic question in the present proceedings because,
in our opinion, the Appellate Tribunal was obviously right in holding that even if
civil trespass was involved in the conduct o f the employees, that by itself cannot
justify the rejection o f their claim for reinstatement. Incidentally we may add that
even in America “the simple act o f trespassing upon the employer’s property is no
bar to reinstatement nor is the act which is at most a civil tort.” (Ludwig Teller’s
"Labour Disputes and Collective Bargaining," Vol. II, p. 855)....
It is [next] argued that the conduct o f the employees amounts to criminal
trespass, which is an offence, and as such those who committed criminal trespass
would not be entitled to reinstatement. According to the bank the employees com
mitted criminal trespass inasmuch as they either entered unlawfiilly or having law
fully entered continued to remain there unlawfully with intent thereby to insult or
annoy their superior officers. It would be noticed that there are two essential ingre
dients, which must be established before criminal trespass can be proved against
the employees. Even if we assume that the employees’ entry in the premises was
unlawful or that their continuance in the premises became unlawful, it is difficult to
appreciate the argument that the said entry was made with intent to insult or annoy
the superior officers. The sole intention o f the strikers obviously was to put pres
sure on the bank to concede their demands. Even if the strikers may have known
that the strike might annoy or insult the bank’s officers, it is difficult to hold that
such knowledge would necessarily lead to the inference o f the requisite ‘intention.
In every case where the impugned entry causes annoyance or insult it cannot be
said to be actuated by the requisite intention....
In resisting the employees’ claim for reinstatement on the ground that partici
pation in a pen-down strike creates a bar against such a claim the bank has strongly
relied on the decision o f the Supreme Court o f America in National Labor Rela
tions Board v. Fansteel Metallurgical Corporation [306 U.S. 238 S.C.; 83 Law Ed.
627.].....It is, therefore, necessary to examine this case carefully. In this case, the
National Labor Relations Board had directed the reinstatement o f participants in a
sit-down strike whom, upon their refusal to leave the employer’s plant, the em
ployer declared to be discharged. The board had held that despite the illegal strike
and the consequent order o f discharge the status o f the employees continued.... It
had also taken the view that it had jurisdiction to direct reinstatement o f the said
employees.... with a view to effectuate the policies o f the Act. Both these conclu
S tr ik e s , L o c k - o u t s , G hera o and B undh 397
sions were reversed by the Supreme Court by a majority judgment. According to

the majority view, when the Congress enacted the National Labor Relations Act, it
“did not intend to compel employers to retain persons in their employ regard
less o f their unlawfijl conduct— to invest those who go on strike with an
immunity from discharge for acts o f trespass or violence against the employ
ers’ property, which they would not have enjoyed had they remained at work.”
It was also held that
“the Congress was intent upon protection o f employees’ right to self-organi
zation and to the selection o f representatives o f their own choosing for collective
bargaining without restraint or coercion.”
On the facts the conclusion o f the majority was that the strike was illegal in its
inception and prosecution. This was really not the exercise o f the right to strike to
which the Act referred. It was an illegal seizure o f the buildings in order to prevent
their use by the employer in a lawful manner, and thus by acts o f force and violence
compel the employer to submit. The conclusion, therefore, was that to provide for
the reinstatement or reemployment o f employees guilty o f the acts which even
according to the Board had been committed would, not only not effectuate any
policy o f the Act but would directly tend to make af>ortive its plan for peaceable
procedure....
In considering the question as to whether the principle underlying the majority
decision, should be applied to a pen-down strike in India, it is necessary to remem
ber that the pen-down strike properly so-called is recognised as a strike under S. 2
(q) o f the Act and so it would not be safe to extend the principles o f American
decisions bearing on this question without a careful scrutiny o f the relevant.prpvi-
sions o f the American statute and the facts on which the said decisions are bêd=
Let us then consider the facts on which the majority decision was based....
[The Court then narrated the facts o f the Fansteel case.]
A bare statement o f these facts would clearly bring out the true character o f the
strike with which the Supreme Court was dealing. It was not merely an illegal peace
ful strike; it was a strike which began with the wrongful seizure o f the employer’s
property and his exclusion from it; a strike accompanied by violence which led to
pitched battles between the strikers and the sheriff’s men; a strike continued by the
strikers even after they were formally discharged from the employment ^ d against
an order o f injunction by a competent court. It is difficult to accede to the arglirnent
that the majority decision in that case can be extended to the facts before us. As
Teller has observed
“the strike in question can be more accurately defined as a strike in the tradi
tional sense to which is added the element o f trespass o f the strikers upon the
property o f the employer.” (Ludwig Teller’s Labour Disputes and Collective Bar-
ga/m>7g.” V o l . I p . 3 1 1 , S . 106.)
398 L a b o u r L aw and L a b o u r R elations
Therefore, in our opinion, this decision does not assist the bank in support of
its case that mere participation in the illegal strike in the present case can by itself
defeat the claim o f the employees for reinstatement....Fortunately as the Indian
Trade Unions Act 16 o f 1926, the Industrial Employment (Standing Orders) Act XX
o f 1946 and the Industrial Disputes Act 14 o f 1947 show, our legislature has very
wisely benefited by the experiences o f other countries in the matter o f the develop
ment o f trade union movement, and has made progressive, just and fair provision
governing the important problems o f industrial relationships, the formation o f trade
unions, and the settlement o f industrial disputes. It can be justly claimed that
though we have witnessed capital labour conflicts in our country, on the whole
neither party has departed from the pursuit o f peaceful methods and both parties
submit their disputes to be resolved in accordance with the provisions o f the Act.
In dealing with industrial disputes like the present, yj/e must, therefore, primarily
consider the relevant statutory provisions and the material Indian decisions. Thus
considered, the conclusion is inevitable that the pen-down strike is a strike within
S. 2 (q) and so per se it cannot be treated as illegal; it has been found to be illegal in
this case because it was commenced in contravention o f S. 23 (b) o f the Act; but, as
has been held by this Court in Bum & Co., Ltd. v. Their Workmen and others
(1959— IL.L.J.450) mere participation in such an illegal strike cannot necessarily
involve the rejection o f the striker’s claim for reinstatement. As we have already
indicated, on the findings o f the Appellate Tribunal nothing more than such partici
pation has been proved against the employees whose reinstatement has been
ordered; and so, unless the said finding is reversed, the first contention raised by
the bank must fail.
It has been strenuously urged before us that in the case o f a bank which is a
credit institution a pen-down strike, if continued for a long period, is likely to affect
prejudicially the credit o f the bank. It is also pointed out that, even in regard to the
industrial concerns, if strikers.
NOTE
The Supreme Court in Bharat Sugar Mills Ltd. v. Jain Singh (1961)2 LLJ 644, held
that go-slow is a picturesque description o f deliberate delaying o f production by
workmen pretending to be engaged in the factory is one o f the most pernicious
practices that discontent or disgruntled workmen sometimes resort to. It would
note 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 o f work by strike. For, while during a strike much
o f the machinery can be fully turned off, during the go-slow the machinery is kept
going a reduced speed, which is often extremely damaging to the machinery parts.
For all these reasons go-slow has always been considered a serious type o f mis
conduct.
S tr ik e s , L o c k -o u ts , G h e r a o a n d B u n d h 399
The Second National Commission on Labour has recommended that the exist
ing definition o f ‘strike’ in the Industrial Disputes Act 1947 may stand, “go slow”
and “work to rule” are forms o f action which must be regarded as misconduct.
Standing Orders and Provisions relating to unfair labour practices already include
them and provide for action both in the case o f “go slow” and “work to rule”.
INDIAGENERALNAVIGATION AND RAILWAY CO. LTD. v. THEIR WORKMEN

Supreme Court, (\960) 1 LLJ 13
[The company carries on a business o f inland water transport. It maintains a huge

number o f wharves, jetties, godowns, etc., at different river stations in India. One
such station is at Dhubri in Assam, where many workmen are employed. These men
load and unload the Company’s vessels and help to tranship goods from railway
wagons to vessels and vice versa. Before May 1969 such workmen were employed
by a labour supply syndicate. They had two unions. Certain differences arose
between the syndicate and the workers and their unions.
In May 1954 the company agreed to abolish the contract labour system and to
establish stopgap system pending the outcome o f a tripartite conference to decide
the issue o f permanent direct employment o f the workers. The company also agreed
to maintain the workmen’s continuity o f service on existing terms. The tripartite
conference finally recommended permanent direct employment at all the transship
ment ghats o f Assam, to be adopted progressively, without prejudicing the agree
ment o f May 1969. But soon after the other differences arose, as a result o f which
the Company dismissed eight employees, on certain charges and after giving each
an opportunity to be heard..
On 21 June 1955, both unions served strike notices on the company. Concilia
tion proceedings failed and a large number o f workmen went on strike on 10th
August 1969. The company alleged that they forcibly entered the company’s jetties
and other working places, and obstructed the work o f loyal workmen. On 11 August
1969 the District Magistrate issued an order under the Code o f Criminal Procedure
to maintain law and order. The company declared a lock-out on the same day. On 19
August the unions called o ff the strike. The company lifted the'lock-out on 27
August. The company suspended those workmen whom it claimed^to have ob
structed the loyal workmen during the strike. On 8 September 37 employees were
convicted for violation o f the order o f the District Magistrate. On 9 September the
company dismissed them. Another 52 employees were convicted for such viola
tions on 17 February 1956.
On 13 September the Government o f Assam by notice constituted a Board of
Conciliation consisting o f the Labour Commissioner and representatives o f the
employees and o f the employers. The Board, by a majority, decided that the dis
missal o f 37 workmen on 8th September had occurred during conciliation proceed
ings, and so had violated the Industrial Disputes Act. This was because the Board’s
proceedings had begun on 26 August rather than on 13 September. The Board
refused permission, however, to dismiss 223 workmen who took part in the strike. It
believed that the strike, although illegal, was justified.* The employer member
dissented.
The Government o f Assam then referred the dispute for adjudication. The
Industrial Tribunal also held that the strike, although illegal, was justified,** and
that the company was not entitled to dismiss the workmen. It therefore directed
reinstatement o f 208 workmen, with full wages and allowances from August 1969 till
the date o f reinstatement and refused reinstatement to 52 workmen on the ground
that they had been convicted under the Indian Penal Code fo r using criminal
force. It reversed the dismissal order o f the 8 workmen who were dismissed before
July and reinstated them with back wages. The company appealed against the
award o f the tribunal by special leave to the Supreme Court. Excerpts from the
judgment o f the court delivered by Sinha CJ. follow:]
The first question that arises in this connection, is whether the strike was
illegal, ...as found by the tribunal. The learned counsel for the respondents [the
workmen] sought to reopen the finding about the illegality o f the strike, basing his
submissions mainly on the contention that there were no conciliation proceedings
pending either in fact or in law on the date o f the strike, and that, therefore, the
finding o f the tribunal was not correct ....It is enough to observe that under S. 20 o f
the Act, the conciliation proceedings must be deemed to have commenced on 26
July 1955 when the notice o f the strike was received by the conciliation officer, and
those proceedings shall be deemed to have concluded when the report o f the
conciliation officer is received by the Government. In this case, the report to the
Government was made by the conciliation officer on 8 August 1955. It is not abso
lutely clear as to when this report o f the conciliation officer was actually received
by the Government. It is clear, therefore, that the conciliation proceeding certainly
lasted between 26 July and 8 August 1955. The strike, having commenced on 10
August, was clearly illegal in view of the provisions o f S.. 22 [(l)(d)] ofthe Act. We
must, therefore, hold in agreement with the tribunal, that the strike was clearly
illegal.
The tribunal, having held that the strike was illegal proceeded to discuss the
question whether it was justified, and came to the conclusion that it was “p er
fectly justified." In the first place, it is a little difficult to understand how a strike in
respect o f a public utility service, which is clearly illegal, could at the same time be
characterized as “perfectly justified”. These two conclusions cannot in law exist.
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
* Four asserted facts thought to justify the strike are mentioned in a note inserted in the
judgment below. These facts are too complicated to permit detailed discussion. Eds.
** Ibid.
to be justifiable and one which is not justifiable. The distinction is not warranted by
the Act, and is wholly misconceived, specially in the case o f employees in a public
utility service. Every one participating in an illegal strike, is liable to be dealt
with departm ental^* o f course, subject to the action o f the department being
questioned before an industrial tribunal, but it is not permissible to characterize an
illegal strike as justifiable. The only question o f practical importance, which may
arise in the case o f an illegal strike, would be the kind or quantum o f punishment
and that, o f course, has to be modulated in accordance with the facts and circum
stances o f each case. Therefore, the tendency to condone what has been declared
to be illegal by statute, must be deprecated and it must be clearly understood by
those who take part in an illegal strike that thereby they make themselves liable to
be dealt with by their employer. There may be reasons for distinguishing the case of
those who may have acted as mere dumb-driven cattle from those who have taken
an active part in fomenting the trouble and instigating workmen to join such a
strike, or have taken recourse to violence.
[The Court then considered the reasons which had led the tribunal to find the
(illegal) strike justified. These were thatthe Tribunal thought the Company guilty of
bad faith because o f (a) the precipitate way in which,its joint agent had appealed for
police protection; (b) the failure o f the Company, as reported by the conciliation
officer, to give contractually-required leaves to five workmen, union officials, so as
to allow conciliation proceedings to go forward; (c) a conspiracy between the
Company and one o f the two Unions to oppose the strike in a manner amounting to
an unfair labour practice; and (d) continuance by the Company o f an unjustified
lock-out after the strike had ended and while disciplinary action was being started.
The details o f these claims are too complicated for detailed discussion heiBv^The
Court disagreed, on the facts, with each of these reasons. Its judgment continued.]
It was, in pursuance o f ...an order o f the joint agent postponing the end o f the
lock-out] that proceedings were taken against the so-called leading strikers leading
up to their dismissal. Those orders o f dismissal, to be presently discussed, are the
main points in controversy between the parties in this Court. But before those
orders o f dismissal were passed, the management issued a notice on 26 August
1955, lifting the lock-out with effect from the.next day. It required the employees to
report for duty to the joint agent personally, at his office between the hours o f 9 and
10 a.m. It also contained the threat that any employee who did not report for^,duty on
30 August “will, in the absence o f a letter o f explanation and good reason, be
treated as having voluntarily terminated his services.” R.N. Biswas was then ap
pointed the inquiry officer by the appellants, and he held the inquiry in batches....As
a result o f each one o f these inquiries, the inquiry officer, R.N. Biswas, reported that
the charge against each one o f the workmen had been proved to his satisfaction.
But before the inquiry was held, the joint agent, on 9 September 1955, informed the
I .e ., b y departm ental, or domestic enquiry. E ds.

402 L a b o u r L aw and L a b o u r R e latio ns
thirty-seven workmen who had been convicted as aforesaid o f the criminal charge
under S. 188 o f the Indian Penal Code, that their services were terminated from that
date, and that they were to call at his office by 15 o f the month to collect their dues
and to vacate the quarters o f the appellants. As regards the remaining two hundred
and twenty- three workmen, orders were passed on 16 September to the effect that
as the departmental inquiry made against them had resulted in the charges against
them being proved, they were dismissed from the service o f the appellants with
effect from 29 August 1955.... [Because o f the company’s realization that permis
sion was needed, however, the dismissals of the 37 workmen and the 223 workmen
were held in abeyance pending permission from the board o f conciliation. The
Board’s action has already been noted.]
As a matter o f fact, the tribunal has closely followed the findings o f the major
ity o f the board o f conciliation. But as we have already pointed out there can be no
question o f an illegal strike being justified. We have further held, in agreement with
the tribunal that the strike was illegal, and that it was not even justified— in dis
agreement with the tribunal— assuming that such a situation could be envisaged,
in accordance with the provisions o f the Act....
[The Court then proceeded to discuss the question “what punishment if any,
should be meted out to those workmen who took part in the illegal strike.” See the
decisions under “Termination o f Service and Domestic Enquiry’! especially the
Buckingham and Carnatic Mills case and the Bata Shoe Company case on this
point. Eds.]
[Appeal partly allowed.]
DELHI ADMINISTRATION v. WORKMEN OF EDWARD KEVENTERS

AIR 1978 SC 976
[Excerpts from the judgment o f Krishna Iyer J. follow ;]

A very short question as to the scope o f Section 10 (3) o f the Industrial Dis
putes Act, 1947, arises for consideration in this appeal by special leave. The appel
lant, Delhi Administration, was faced with the question o f referring several dis
putes, 16 in numbers, for adjudication under S. 10(1) o f the Act. The workmen had
raised all these disputes although many o f them were perhaps covered by an earlier
settlement. We are not concerned with the facts o f this particular case which have
been set out at some length by the High Court in its judgment, but with a narrow
issue as to when the power to prohibit a strike with which the State/appropriate
Government is armed under S. 10(3) o f the Act can be put into operation. This turns
on a reasonable construction o f the provision itself...
Two conditions are necessary to make Section 10(3) applicable. There must be
an industrial dispute existing and such existing dispute must have been referred to
a...Tribunal...under this section, namely. Section 10(1). Section 10 stands as a self
S t r ik e s , L o c k - o u t s , G he r a o and B undh 403
contained Code as it were so far as tiiis subject matter is concerned. The prohibi
tory power springs into existence only when such dispute has been made the
subject o f reference under S. 10(1). What then is such dispute ? The existence of the
dispute is abundantly brought out in the preceding portion o f the sub-section.
Clearly, there must be an industrial dispute in existence. Secondly, such dispute
must have been already referred for adjudication. Then, and then alone, the power
to prohibit in respect o f such referred dispute can be exercised.
There is a distinction between strikes being illegal under other sections o f the
Act and penalties being available against such illegal strikes on the one hand and
strikes being contrary to S. 10(3) o f the Act and liable to be prohibited thereunder.
This distinction once grasped, the baselessness o f the submission on behalf o f the
appellant necessarily follows.
Shri Aggarwal pressed before us a ruling reported in Keventers Karmachari
Sangh V. Lt. Governor o f Delhi, (1971)2L L J375, decided by the Delhi High Court,
Although the ratio there is contrary to the same High Court’s ruling, which is the
subject-matter o f the present appeal, we are obviously inclined to adopt the reason
ing of the judgment under appeal. Imagine twenty good grounds o f dispute being
raised in a charter o f demands by the workmen and the appropriate Government
unilaterally and subjectively deciding against th^ workmen on nineteen o f them
and referring only one for adjudication. How can this result in the anomalous
situation o f the workmen being deprived o f their basic right to go on strike in
support o f those nineteen demands. This would be productive not o f industrial
peace, which is the objective o f the Industrial Disputes Act, but counter-produc
tive o f such a purpose. If Government feels that'it should prohibit a strike under S.
10(3) it must give scope for the merits o f such a.dispute or demand beinggone into
by some other adjudicatory body by making a reference o f all those dem ands^der
S. 10(1) as disputes. In regard to such disputes as are not referred under S. 10(1), S.
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 adjudica
tion before a Tribunal will explode into industrial unrest and run contrary to the
policy o f industrial jurisprudence.
Thus, on principle and the text of the law, we are convinced that Sec. 10(3)
comes into play when the basis o f the strike is covered by Section 10(1). Reference
o f a dispute and Prohibition o f a strike on other demands is impermissible....
[Appeal dismissed]
CHEMICALS AND FIBRES OF INDIALTD. v. D.G BHOIR

Supreme Court, (1975) 2 LLJ 168
[There was a dispute between a workman and the management o f Chemicals and
Fibres Ltd., concerning the former’s dismissal. This “individual dispute” became an
“industrial dispute” in view o f the provision of section 2A o f the Industrial Dis

putes Act, 1947 and the Government referred the “industrial dispute” to a Labour
Court for adjudication. During the pendency o f adjudication proceedings relating
thereto, the management dismissed three other workmen.’ Thereafter the workmen
went on strike to protest against the dismissal o f the aforesaid three employees.
Was this strike prohibited under section 23 (b) o f the Act ? Excerpts from the
judgment o f the Court, delivered by Alagiriswami J. follow;]
....Section 23, in so far as it is relevant for the purposes o f this case, reads as
follows:
“23. No workman who is employed in any industrial establishment shall go on
strike in breach o f contract and no employer o f any such workman shall declare a
lock-out—
(a)* * ♦
(b)during the pendency o f proceedings before a Labour Court, Tribunal or
National Tribunal and two months after the conclusion o f such proceedings;
(bb) * * *
(c) during any period in which a settlement or award is in operation, in respect
o f any o f the matters covered by the settlement or award”.
The important words are “during the pendency o f proceedings”. Undoubtedly
a proceeding was pending before the Labour Court and that was in respect o f the
dismissal o f Bobhate. Did this make the strike by the workmen o f the appellant
illegal though at least in its origin the strike had nothing to do with Bobhate’s case
? It was common ground that even though the dispute between the employer and
the employees might relate to a case o f a single workman the provisions o f S. 23(b)
would apply if the single workman’s cause has been espoused by a labour union
which need not necessarily comprise o f all the employees o f the concerned em
ployer. The decisions o f some High Courts establish that even though the proceed
ings pending before the Labour Court, 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 (see Pravat Kumar Kar W.T.C. Porker, 1950 Cal. 116, dind State o f
Bihar v. Deodar Jha, AIR 1958 Patna 51). We express our agreement with this view.
But the question is : Does the fact that a proceeding is pending before a Labour
Court m respect o f an individual workman bar the other workers from resorting to a
strike ? Section 2A o f the Industrial Disputes Act, which came into effect on De
cember 1, 1965, reads as follow s;
[The Court then referred to the provisions o f sections 2A and 2 (k) o f the
Industrial Disputes Act.]
....It is in interpreting this clause [Section 2 (k)] that it has been held that even
where the dispute relates to a single workman it is an industrial dispute if that
S t r ik e s , L o c k - o u t s , G hera o and B undh 405
dispute is espoused by the general body o f the employees. Before the introduction
o f S. 2A an individual workman who-was discharged, dismissed or retrenched or
whose services were otherwise terminated and whose case was not espoused by
any labour union or by a substantial number o f workmen had no remedy. It was to
deal with that contingency that S. 2A was enacted. We would, therefore, be justi
fied in concluding that in enacting S. 2A the intention o f the Legislature was that an
individual workman who was discharged, dismissed or retrenched or whose ser
vices were otherwise terminated should be given relief without its being necessary
for the relationship between the employer and the whole body o f employees being
attracted to that dispute and the dispute becoming a generalised one between
labour on the one hand and the employer on the other. If this point o f view is kept
clear in mind the solution o f the problem before us becomes simple.
In the Statement o f Objects and Reasons o f the Bill which resulted in the
enactment o f S. 2A it is stated :
“2. In construing the scope o f industrial dispute. Courts have taken the view
that a dispute between an employer and an individual workman cannot per se
be an industrial dispute, but it may become one if it is taken up by a union or a
number o f workmen making a common cause with the aggrieved individual
workman. In view o f this, cases o f individual dismissals and discharges cannot
be taken up for conciliation or arbitration or referred to adjudication under the
Industrial Disputes Act, unless they are sponsored by a union or a number o f
workmen. It is now proposed to make the machinery under the Act available in
such cases”.
This is relied upon by the employer to contend that the whole o f the machinery,
under the Industrial Disputes Act is available even in the case o f a reference relat
ing to an individual workman. On the other hand it is urged on behalf o f the work
men that if the intention was to make the whole o f the machinery o f the Industrial
Disputes Act available even in the case o f pendency o f the case o f an individual
workman before a Labour Court or a Tribunal what would have been done is to add
the words “and includes any dispute or difference between a workman and his
employer connected with or arising out o f the discharge, dismissal, retrenchment or
termination of the services o f that workman notwithstanding that no otlier work
man nor any union o f workmen is a party to the dispute” to clause (k) o f S.'2'. It is
further contended that the dispute or difference between the individual workman
and his employer is only deemed to be an industrial dispute and that it is not in fact
an industrial dispute. It is contended on behalf o f the employer that once some
thing which is not an industrial dispute is deemed to be an industrial dispute all the
necessary implications o f such a deeming provision should be given effect to and
the mind should not be allowed to boggle in working out such implications (see
East End Dwellings Co. Ltd v. Finsbury Borough Council, [ 1952] A.C. 109 at p. 132
m dCom m issioner o f Income-Tax V . Teja Singh, [1959] 3 5 1.T.R. 408). On the other
hand, it is urged on behalf o f the workmen that in the case o f a deeming provision
406 L a b o u r L aw a n d L a b o u r R e la tio n s
no greater effect should be given to it tiian is necessary for the purpose for which
it is enacted. Both these contentions are amply supported by authority and the
duty o f this Court is to see what exactly are the necessary implications o f the
deeming provision. We should say, however, that it does not make any difference to
the decision o f this question whether the deeming provision is in the form o f a
separate section like S. 2A as in the present case or is part o f the definition o f the
industrial dispute itself as is suggested it should be on behalf o f the workmen....
[The Court then referred to the scheme o f the Act and the provisions o f sec
tions 3,4,6,7,7A7B, 10 lOA 12,13 14,15,18,22,23 and 24 of the A ct]
These provisions bring out the elaborate nature o f the proceedings relating to
conciliation, arbitration, settlement, inquiry and award. The intention behind all
these provisions is to avoid strikes and lock-outs as far as possible not only by
bringing the parties together but also by referring points o f dispute between them,
either voluntarily or otherwise, for decision by Labour Courts, Tribunals and Na
tional Tribunals. Strikes are not banned even in the case o f public utility services.
The ban on strikes is subject to certain limitations. There is no doubt that the Act
recognizes strikes as a legitimate weapon in the matter o f industrial relations. We
need not concern ourselves about aberrations like gheraos, or go-slow. The prohi
bition o f strikes during the pendency o f proceedings before a Labour Court, Tribu
nal or National Tribunal under S. 23 was, in the Act as originally enacted, confined
only to disputes between the employer and the general body o f employees and not
to individual workmen. It is in that context that S. 23 should be interpreted. In the
case o f an industrial dispute between an individual workman and the employer the
whole elaborate machinery earlier set forth in the Industrial Disputes Act may not
be necessary lest it would be like using a sledge-hammer to kill a flea. While there is
justification for preventing a strike when a dispute between the employer and
general body o f workmen is pending adjudication or resolution, it would be too
much to expect that the Legislature intended that a lid should be put on all strikes
just because the case o f a single workman was pending. That the general body of
labour should be prevented from resorting to strike where they had chosen to
espouse the cause o f a single workman is understandable and reasonable. It has
even been held that if the employer and workmen are parties to a reference the
decision therein binds them even though they may have said they were.not inter
ested in it (see Ballarpur Collieries v. Presiding Officer, [1972-2 LLJ 90]). But if
strikes are to be prohibited merely because the case o f an individual workman was
pending, whose case had not been espoused by the general body o f the workmen,
there can never be any strike even for justifiable grounds. A strike is a necessary
safety valve in mdustrial relations when properly resorted to. To accede to the
contention o f the employer in this case would be in effect acceding to a contention
that there should never be a strike. While we realise the importance o f the mainte
nance o f industrial peace, it cannot be secured by putting a lid on the legitimate
grievances o f the general body o f labour because the dispute relating to an uidi-
vidual workman under S. 2A is pending. That might mean that the boiling cauldron
might burst. In that case the general body o f workmen would be legitimately ag
grieved that they are prevented from striking because an individual’s case was
pending with which they were not concerned. It is not enough in this situation to
say that it is always open to the Government to make a reference under S. 10. It may
or may not happen. Furthermore, the matters that could be pending before a Labour
Court under S. 23 under the Second Schedule are :
1. The propriety or legality o f an order passed by an employer under the
standing orders;
2. The application and interpretation o f standing orders;
3. Discharge or dismissal o f workmen including reinstatement of, or grant o f
relief to, workmen wrongfully dismissed;
4. Withdrawal o f any customary concession or privilege;
5. Illegality or otherwise o f a strike or lock-out; and
6. All matters other than those specified in the Third Schedule.
The propriety or legality o f an order passed by an employer under the standing
orders very often might refer to an individual workman and that should not be made
the reason for preventing labour from giving vent to.its legitimate grievances in a
legitimate way.
Our attention is drawn to the contrast between els. (c) and (b) o f S. 23 and it is
argued that while under cl. (c) there is a limitation in'respect o f matters in relation to
which there cannot be a strike, there is no such limitation under cl. (b) and therefore,
cl. (b) provides a blanket ban on strikes if proceedings are pending. It is not pos
sible” to give such an extended meaning to that provision. As we have pointe3\»ut,,
even in respect o f cl. (b) some limitation should be read confining it to the parties to
the proceedings either actually or constructively, as in the case o f a union espous
ing the cause o f an individual workman. Nobody, for instance, can argue that
because proceedings are pending in relation to one industrial establishment owned
by an employer, there can be no strike in another industrial establishment owned by
that employer because there are no words o f limitation in cl. (b).>See Workmen o f
Dimakuchii Tea Estate v. Management ofDimakuchi Tea Estate, [19,58] 14 F.J.R.
41; AIR 1958 SC 353, where it was held, that the word “any person” caiihot be given
its ordinary meaning. See also Bombay Union o f Working Journalists v. '^Hindu ”,
S o m V [1961-1I L U 436],
We are, therefore, o f opinion that the proper point o f view from which to look
at the problem is to give limited application to the fact o f the introduction o f S. 2A
in the Industrial Disputes Act and to hold that the pendency o f a dispute between
an individual workman as such and the employer does not attract the provisions o f
S. 23.
[Appeals dismissed.]
408 L a b o u r L aw AND L a b o u r R elations
NOTE
1. Comment on the following observations o f the Supreme Court in Gujarat

Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha {19S0)\LLJ 137 at 164, per
Krishna Iyer J .:
“...[W]e must remind ourselves that the strike was illegal, having been launched
when another industrial dispute was pending adjudication. Section 23(a) appears,
at a verbal level to convey such a meaning although the ambit o f sub-cl, (a) may
have to be investigated fully in some appropriate case in the light o f its scheme and
rationale. It looks strange that the pendency o f a reference on a tiny or obscure
industrial dispute— and they often pendent too long— should block strikes on
totally unconnected yet substantial and righteous demands. The constitutional
implications and practical complications o f such a veto o f a valuable right to strike
often leads not to industrial peace buf to scathing unrest and lawless strikes. But in
the present case, both before the Arbitrator and the High Court, the parties have
proceeded on the agreed footing that the strike was illegal under S. 23(a).”
2. Consider the following recommendations of the (Second) National Commis
sion on Labour:
Strike could be called only by the recognised negotiating agent and that too
only after it had conducted a strike ballot amongst all the workers, o f whom at least
51 % support the strike. Correspondingly, an employer will not be allowed to declare
a lock'out except with the approval at the highest level o f management except in
cases o f actual or grave apprehension o f physical threat to the management or to
the establishment. The appropriate government will have the authority to prohibit
a strike or lock-out by a general or special order and refer for adjudication the issue
leading to the strike/lock-out. The general provisions like giving o f notice o f not
less than 14 days, not declaring a strike or lock-out over a dispute which is in
conciliation or adjudication and so on will be incorporated in the law. In this context
we also recommend that in illegal strike or illegal lock-out should attract similar
penalties. A worker who goes on an illegal strike should lose three days wages for
every day o f illegal strike, and the management must pay the worker wages equiva
lent to three days wages per day o f the duration o f an illegal lock-out. The union
which leads an illegal strike must be derecognised and debarred from applying for
registration or recognition for a period o f two or three years.
We, therefore, recommend that in the case o f socially essential services like
water supply, medical services, sanitation, electricity and transport, when there is a
dispute between employers and employees in an enterprise, and when the dispute
is not settled through mutual negotiations, there may be a strike, it should be taken
that the strike has taken place, and the dispute must forthwith be referred to com
pulsory arbitration (by arbitrators from the panel o f the Labour Relations Commis
sion (LRC), or arbitrators agreed to by both sides).
Govt, o f India, Report o f the (Second) National Commission on Labour
(2002).
CHANDRAMALAI ESTATE v. ITS, WORKMEN

[On 9 August 1955, the workers’ union submitted to the manager a memorandum
containing fifteen demands. The management agreed to some, but the main de
mands remained unsettled. On 29 August 1955, the labour officer advised negotia
tions but later he recommended conciliation. The conciliation officer’s efforts were
fhiitless. The last conciliation meeting was held on 30 November. On 1 December
the union gave a strike notice, and the workmen remained on a strike from 9 Decem
ber 1955 through 5 January 1956. The government referred five issues o f the dis
pute to the industrial tribunal for adjudication. The tribunal accepted the workmen’s
demands, in whole or in part, on all five. The management appealed the award on
three issues, the third being whether the workers were entitled to wages for the
strike period. On this point, excerpts from the judgment o f the court delivered by
Das Gupta J. follow:]
On the third issue, while the workmen pleaded that the strike was justified, the
management contended that it was illegal and unjustified. The tribunal held that
both parties were to blame for the strike and ordered the management to pay work
ers 50 per cent o f their total emoluments for the strike period....
It is clear that on 30 November 1955 the union knew that conciliation attempts
had failed. The next step would be a report by the conciliation and request that a
reference should be made to the industrial tribunal. The union, however, did not
choose to wait, and after giving notice on I December 1955 to the management that
it had decided to strike from 9 December 1955, actually started the strike from that
day. It has been urged on behalf o f the appellant that there was nothing inthe^
nature o f the demands to justify such hasty action and in fairness the union should
have taken the normal and reasonable course provided by law by asking the Gov
ernment to make a reference under the Industrial Disputes Act before it decided to
strike. The main demands o f the union were about the crumbly allowance [the
second issue, about which] they had said nothing since 1949 when it was first
•stopped till the union raised it on 9 August 1955. The grievance for collection o f
excess price o f rice [the first issue] was more recent but even so it was, not o f such
an urgent nature that the interests o f labour would have suffered irreparably if the
procedure prescribed by law for settlement o f such disputes through industrial
tribunals was resorted to. After all it is not the employer only who suffers if produc
tion is stopped by strikes. While on the one hand it has to be remembered that strike
is a legitimate and sometimes unavoidable weapon in the hands o f labour, it is
equally important to remember that indiscriminate and hasty use o f this weapon
should not be encouraged. It will not be right for labour to think that for any kind o f
demand, a strike can be ...[reasonably expected] to wait till after asking the Govern
ment to make reference. In such cases, strike even before such a request has been
made may well be justified. The present is not however one o f such cases. In our
opinion the workmen might well have waited for some time after conciliation efforts
failed before starting a strike and in the meantime have asked the Government to
make the reference. They did not wait at all. The conciliation efforts failed, and the
union made its decision on strike and sent the notice o f the intended strike from 9
December 1955, and on 9 December 1955, the workmen actually struck work. The
Government appears to have acted quickly and referred the dispute on 3 January
1956. It was after this that the strike was called off. We are unable to see how the
strike in such circumstances could be held to be justified.
The tribunal itself appears to have been in two minds on the question. Its conclu
sion appears to be that the strike, though not fully justified, was halfjustified and half
unjustified; we find it difficult to appreciate this curious concept o f half justification.
In any case, the circumstances o f the present case do not support the conclusion that
the strike was justified at all. We are bound to hold in view o f the circumstances
mentioned above that the tribunal erred in holding that the strike was at least partially
justified. The error is so serious that we are bound in the interests o f justice set aside
the decision. There is, in our view, no escape fi-om the conclusion that the strike was
unjustified and so the workmen are not entitled to any wages for the strike period. We
therefore, allow the appeal in part and set aside the award in so far as it directed the
payment of 50 per cent of the total emoluments for the strike period but maintain the
rest o f the award. There will be no order as to costs.
THE STATESMAN LTD. v. THEIR WORKMEN

[The respondent-workmen went on illegal and disorderly strike over the bonus
dispute following which the management declared a lock-out. Thereafter despite
the workmen’s assurance to peaceful resumption o f work the management declined
to lift the lock-out. The government referred the dispute to the industrial tribunal,
which resulted in the termination o f the strike and lock-out. The tribunal inter alia,
held that the blame for the strike and lock-out had to be apportioned and accord
ingly ordered payment o f half wages during the period o f lock-out. The manage
ment challenged this award under special leave. The relevant excerpts from the
judgment o f the court, delivered by Krishna Iyer J. follow:]
While Section 23 prohibits strikes and lock-outs when proceedings mentioned
there are under way, Section 24(3) absolves a lock-out o f illegality if it is caused by
an illegal strike. There surely was a pending industrial dispute when the Unions
sprang the strike. Being therefore illegal, the lock-out that followed became a legal,
defensive measure. So far is smooth sailing. But the management cannot behave
unreasonably merely because the lock-out is bom lawfully. If by subsequent con
duct, imaginatively interpreted, the Unions have shown readiness to resume work
peacefully, the refiisal to re-start the industry is not right and the initial legitimacy o f
the lock-out loses its virtue by this blemished sequel. Nor can any management
expect, as feelings run high, charge-sheets in criminal courts, are laid against work
ers and they are otherwise afflicted by the pinch o f unemployment, to get proof o f
good behavior beyond their written word. Nor can they realistically insist that they
abandon their demands for better benefits before the lock-out is lifted. In this
hungry world the weaker many cannot afford the luxury o f finery in speech which
the happier few can afford. In the rough and tremble o f industrial disputes concili
ation is a necessary grace the stronger party, the socially conscious management,
must cultivate and huff a flaw it must eschew. In the realistic temper o f bargaining
between two wings o f an industry— both managements and workers belong equally
to the industry, for if one owns the other produces— a feeling o f partnership must
prevail to persuade the two sides to trust each other rather than rush to find flaws
in the language used. Such is the spirit o f give and take, which must inform indus
trial negotiation if peace and production are the bona fide end and national devel
opment the great concern. This broad philosophical approach amply vindicates the
justice o f the Tribunal’s impugned award....
If the strike is illegal, wages during the period will ordinarily be negatived
unless considerate circumstances constrain a different course. Likewise, if the lock
out is illegal full wages for the closure period shall have to be forked out, if one may
use that expression. But in between lies a gray area, o f twilit law. Strictly speaking
the whole field is left to the judicious discretion o f the Tribunal. Where the strike is
illegal and the sequel o f a lock-out legal, we have to view the whole course o f
developments and not stop with examining the initial legitimacy. If one side or other
behaves unreasonably or the over all interests o f good industrial relations warrant
the Tribunal making such directions regarding strike period wages as will meet with
justice, fairplay and pragmafic wisdom, there is no error in doing so. His power is
flexible.
We are heartened and strengthened in our approach by the decision in India
Marine Service,... (A.I.R. 1963 SC 528). There the Court noted that “the attitude o f
the company was a reasonable 'one and that it even proposed to the union and
through it to its workmen that work should go on, that the dispute should be taken
before the Conciliation Officer for conciliation and that in the meanwhile they were
prepared to grant some interim relief to the workmen.” “In our opinion”, added the
Court:
“While the strike was unjustifiable, the lock-out when it was ordered on No
vember 13,1958 was justified: It seems to us, however, that though the lockrout was
justified at its commencement its continuance for 53 days was wholly unreasonable
and, therefore, unjustified. In a case where a strike is unjustified and is followed by
a lock-out which has, because o f its long duration, become unjustified it would not
be a proper course for an industrial tribunal to direct the payment o f the whole o f
the wages for the period o f the lock-out. We would like to make it clear that in a case
where the strike is unjustified and the lock-out is justified the workmen would not
be entitled to any wages at all. Similarly where the strike is justified and the lock-out
is unjustified the workmen would be entitled to the entire wages for the period o f
412 L a b o u r L aw and L a b o u r R e latio ns
strike and lock-out. Where,, however, a strike is unjustified and is followed by a

lock-out which becomes unjustified a case for apportionment o f blame arises. In our
opinion in the case before us the blame for the situation which resulted after the
strike and the lock-out can be apportioned roughly half and half between the com
pany and its workers. In the circumstances we therefore direct that the workmen
should get half their wages from November 14,1958 to January 3, 1959 (both days
inclusive)”.
Having regard to the circumstances o f the case, it is proper to direct that the
appeal be dismissed but the parties will bear their respective costs.
[Appeal dismissed.]
CROMPTON GREAVES LIMITED v. THEIR WORKMEN

AIR 1978 SC 1489
[Certain workmen went on a strike in protest o f management’s order o f retrench

ment o f workmen. On reference o f the dispute relating to wages for the period o f
strike the tribunal upheld the claim o f workmen for wages for the period o f strike.
The management then filed an appeal by special leave before the Supreme Court.
Excerpts from the judgment o f Jaswant Singh J. follow ;]
It is well settled that in order to entitle the workmen to wages for the period o f
strike, the strike should be legal as well as justified. A strike is legal if it does not
violate any provision o f the statute. Again, a strike cannot be said to be unjustified
unless the reasons for it are entirely perverse or unreasonable. Whether a particular
strike was justified or not is a question o f fact, which has to be judged in the light of
the facts and circumstances o f each case. It is also well settled that the use o f force
or violence or acts o f sabotage resorted to by the workmen during a strike disentitles
them to wages for the strike period....
N o specific provisions o f law has been brought to our notice on behalf o f the
appellant which rendered the strike illegal during the period under consideration.
The strike cannot also be said to be unjustified as before the conclusion o f the talks
for conciliation which were going on through the instrumentality o f Assistant
Labour Commissioner, the company retrenched as many as 93 o f its workmen with
out even intimating to the Labour Commissioner that it was carrying out its pro
posed plan o f effecting retrenchment o f the workmen. Point No. I, therefore, is
answered in the negative....
U.P. STATE BRIDGE CORPN. LTD. v. U.P. RAJYA SETU NIGAM S.

KARAMCHARISANGH
(2004) 4 s e e 268
[Excerpts fi-om the judgment o f the Supreme Court on the issue whether illegal
strike can be said to be “authorized absence” or abandonment o f service under
S t r ik e s , L o c k - o u t s , G h e r a o and B undh 4 13
Section 25B o f the Industrial Disputes Act, 1947 o f the Court delivered by Ruma Pal
J. follow:]
... The respondent has contended that the illegal strike cannot amount to
abandonment o f servjce for the purpose o f clause L-2.12 o f the Standing Orders
(CSO). But was there a strike at all ? Or was it mass absenteeism unconnected with
the terms and conditions o f service ?
Besides the submission that a person on illegal strike does not abandon his job
is erroneous. An illegal “strike” cannot by definition be “authorized absence”. It
would be a contradiction in terms. We may also draw support from Section 25-B
which defines “continuous service” as
“uninterrupted service, including service which may be interrupted on account of
sickness or authorized leave or an accident or a strike which is not illegal, or a
lockout or a cessation o f work which is not due to any fault on the part of the
workman”. [Emphasis supplied.]
The specific exclusion o f persons on illegal strike plainly means that the period
a person is on illegal strike does not amount to service. Different considerations
would no doubt prevail where the strike is legal. Workers on strike continue to be in
service although they may have ceased work. It the strike is a legal one such
cessation o f work or refusal to continue would be absence authorized by law. Under
CSO L-2.12 a presumption is to be drawn against an erfiployee if such employee is
unauthorizedly absent. Clearly, a person on illegal strike and a person on legal strike
are both “absenf, but the absence o f the first is unauthorized and the second is
not. CSO L-2.12 raises a presumption against the erhployee and it is for the em
ployee to rebut that presumption by adducing the evidence. It is, therefore, impera
tive that the factual basis is determined by the appropriate forum. In any eventjhe
decisions cited by the learned counsel for the respondent as noted earlier, ar5"
factually distinguishable. In Express Newspaper (AIR 1963 SC 1141) there was no
condition o f service similar to Certified Standing Order L-2.12. The fact o f strike was
also not in dispute. The management had issued notice terming the strike as unau
thorized abandonment. In other words, abandonment was pleaded as a fact on the
basis o f the strike. The contention o f the employer was that there was no order of
termination o f service by the employer but a relinquishment o f service by the
workmen. The submission was not accepted because the respondents by going on
strike clearly indicated that they wanted to continue in their employment but were
only demanding better terms. Such an attitude, far from indicating abandonment o f
employment, emphasized the fact that the employment continued as far as they
were concerned. The management could not, by imposing a new term o f employ
ment, unilaterally convert the absence from duty o f striking employees into aban
donment o f their employment. (AIR p. 1143, paras 5 & 6).
The fact o f strike was also admitted in G 7^L a d [{\9 19) 1 SCC 590], Here again
there was no condition o f service similar to CSO L-2.12. The management had
issued a notice calling upon the workmen to report within a specified period
414 L a bo u r L aw and L a b o u r R e latio ns
otherwise it would be construed as abandonment; The workmen failed to report

within the aforesaid period. The management struck out the names o f the workers
fi-om the rolls on the ground that the workmen were not interested in service and
had totally abandoned it. This court held that the abandonment was not a ques
tion o f fact which was required to be proved. Where the only evidence was
absence because o f strike, there was no abandonment. It was also held, following
Express N ew spaper that it was not open to the company to introduce such
changed terms and conditions o f service pending an industrial dispute.
D.K. Yadov [(1993) 3 SCC 259] is an authority for the proposition that the
principles o f natural justice would have to be read in the standing orders. That
was a case where there was a standing order similar to CSO L -2.12 except that 8
days margin was granted within which the workmen was required to return and
satisfactorily explain the reasons for his absence or inability to return after the
expiry o f leave. This view was reiterated in the later decision o f this court in
Lakshmi Precision Screws Ltd. v. Ram Bahagat (2002) 6 SCC 552: (2002) SCC
(L&S) 926 where it was held that the element o f natural justice was an inbuilt
requirement o f the standing orders.
In this case, the appellant corporation had issued two notices calling upon
the workmen represented by the respondent to return to duty. The workmen did
not respond to either o f the notices. As we have noted it was not pleaded that the
advertisement did not sufficiently comply with the principles o f natural justice.
The notice was issued giving an opportunity to the respondent to show cause
why the presumption should not be drawn under CSO L -2.12. The respondent did
not show cause. In the circumstances, the management draw the presumption in
terms o f the CSO.
The respondent said that the notice was invalid because it did not otherwise
comply with CSO L-2.12 because o f the shortening o f the period o f absence. This
was not an issue raised at any stage. In any event, we do not see how the notice
is not in compliance with the Certified Standing Orders as quoted earlier.
The final submission o f the respondent was that U.P. IDA provided for
penalty after a departmental enquiry, in respect o f the workman who may have
gone on illegal strike and, therefore, there could be no termination o f services on
account o f illegal strike. The submission is unacceptable, as we have said that
there is no proof that the respondents were on strike at all. Besides, merely
because the action is punishable does not mean that the consequence o f an
unauthorized absence is not available under the Certified Standing Orders if it so
specifically provides.
In the circumstances, we have no hesitation in setting aside the decision o f
the High Court in dismissing the writ petition. This order will, however not pre
clude the respondent union if it is otherwise so entitled to raise' an industrial
dispute under U.P. IDA.
The appeals are allowed but without any order as to costs.
Questions
1. Whether issuance o f notice in newspaper complies with the principles o f

natural justice?
2. Can the presumption be drawn against the workmen that they have aban
doned the services under the relevant Standing Orders if they do not report
for duty even after notice giving an opportunity to report for duty?
KAIRBETTA ESTATE, KOTAGIRI v. RAJAMANICKAM

Supreme Court, (1960) 2 L U 276; [ 1960] 18 FJR 241
[Some workers assaulted the company’s manager. He suffered six fractures and was
hospitalized for over a month. Some members o f another division o f the company’s
staff were also threatened. As a result they wrote to the company expressing their
inability to work there because their lives were in danger. They complained o f
threats o f murder. On receiving this communication the company on the same day
closed that division until further notice. The division continued to be closed till the
workers assured the company o f no further trouble. But they claimed lay-off com
pensation for the period during which the division remained closed. They filed a
complaint before the labour court staling that the company refiised them work, and
that they should be paid lay-off compensation. The labour court directed the com
pany to pay lay-off compensation for the period in question. The Company ap
pealed the order by special leave o f the Supreme Court. Excerpts from the judgment
o f Gajendragadkar J. follow :]
[The workers]... have admitted that the said closure is a lock-out but'they^ve
added that a lock-out falls within the definition o f lay-off and that is the basis for
their claim for lay-off compensation. The question, which thus arises for our deci
sion i s : Does a lock-out fall under S. 2(kkk) which defines a lay-off?
Section 2(kkk) defines a lay-off as meaning the failure, refusal or inability o f an
employer on account o f shortage o f coal, power or raw materials or the accumula
tion o f stocks or the breakdown o f machinery or for any other reason to give
employment to a workman whose name is borne on the muster r^ ls o f his industrial
establishment and who has not been retrenched.. . . “Any other reason” to which
the definition refers must, we think, be a reason, which is allied, or analogous to
reasons already specified....
Let us now consider what a lock-out means under the Act. Section 2(1) defines
a lock-out as meaning closing o f a place o f employment, or the suspension o f work
or the refusal by an employer to continue to employ any number o f persons em
ployed by him. It may be relevant to point out that the definition o f lock-out con
tained in S. 2(e) o f the f rade Disputes Act, 1929 (VII o f 1929) had, in addition to the
present definition under S. 2(1), included an additional clause describing a lock- out
which provided that:
416 L a b o u r L aw and L a b o u r R elatio ns
“Such closing, suspension or refusal occurs in consequence o f a dispute and is

intended for the purpose o f compelling those persons or o f aiding another em
ployer in compelling persons employed by him to accept terms or conditions o f or
affecting employment.”
This clause has now been deleted. Even so, the essential character o f a lock
out continues to be substantially the same. Lock-out can be described as the
antithesis o f a strike. Just as a strike is a weapon available to the employees for
enforcing their industrial demands, a lock-out is a weapon available to the employer
to persuade by a coercive process the employees to see his point o f view and to
accept his demands. . . . The use o f both the weapons by the respective parties
must, however, be subject to the relevant provisions o f the Act. Chapter V which
deals with strikes and lock-outs clearly brings out the antithesis between the two
weapons and the limitations subject to which both o f them must be exercised. Thus
the concept o f lock-out is essentially different from the, concept o f lay-off, and so
where the closure o f business amounts to a lock-out under S. 2(1) it would be
impossible to bring it within the scope o f lay-off under S. 2(kkk)....
According to the dictionary meaning lock-out means : “a reflisal by the em
ployer to furnish work to the operatives except on conditions to be accepted by the
latter collectively.”
Stated broadly, lay-off generally occurs in a continuing business, whereas a
lock-out is the closure o f the business. In the case o f a lay-off owing to the reason
specified in S. 2(kkk) the employer is unable to give employment to one or more
workmen. In the case o f a lock-out the employer closes the business and locks out
the whole body o f workmen for reasons which have no relevance to causes speci
fied in S. 2(kkk). Thus the nature o f the two concepts is entirely different and so are
their consequences. In the case o f a lay-off the employer may be liable to pay
compensation... but this liability cannot be invoked in the case o f a lock-out. The
liability o f the employer in cases o f lock-out would depend upon whether the lock
out was justified and legal or not; but whatever the liability, the provisions appli
cable to the payment o f lay-off compensation cannot be applied to the cases o f
lock-out. Therefore, we hold that the lock-out in the present case was not a lay-off,
and as such the respondents are not entitled to claim any lay-off compensation
fi-om the appellant. Incidentally we would like to add that the circumstances o f this
case clearly show that the lock-out was fillly justified. The appellant’s manager had
been violently attacked and the other members o f the staff working in the lower
division were threatened by the respondents. In such a case if the appellant locked
out his workmen, no grievance can be made against its conduct by the respon
dents.
In the result the appeal is allowed, the order passed by the labour court is set
aside and the complaint filed by the respondents under S. 33C is dismissed. There
will be no order as to costs.
LAXMI DEVI SUGAR MILLS LTD. v. RAM SWARUP

Supreme Court, (1957) ILLJ 17
[The company, a sugar mill, classified as a public-utility service dismissed one o f its
workers. As a result 76 others on 27 May, 1952 resorted to a ‘tools-down’ strike.
The management failed to persuade them to return to work; then informed them of
their suspension by noon on the same day. But when the gates opened at I p.m.,
these 76 workmen, in spite o f the warnings o f the gatekeepers and jamadar, rushed
into the mills and adopted a threatening attitude. The maijagement framed charges
against them under the standing orders o f the company, for misconduct and willfiil
insubordination, and held an enquiry. The workmen did not attend the enquiry;
they demanded investigation by an impartial tribunal.
Since an appeal in an industrial dispute was already pending at that time before
the Labour Appellate Tribunal, the Company applied to that Tribunal for permis
sion to dismiss the 76 workmen. The workmen complained that the company had
resorted to an illegal lockout for an indefinite period without obtaining the permis
sion o f that Tribunal. The tribunal held the dismissal invalid and ordered reinstate
ment o f dismissed workers. The company appealed that order to the Supreme Court.
Excerpts from the judgment o f the court delivered by Bhagwati J. follow:]
The Appellate Tribunal was o f opinion that the conduct o f the appellant in
preventing the workmen from continuing work after I p.m. on 27 May, 1952 came
within the definition o f a lockout and the workmen being employed in a public
utility concern such lockout would be illegal without a proper notice. It was further
o f opinion that this conduct amounted to punishment o f a worker whether by
dismissal or otherwise and was, therefore, in contravention o f S. 22(b) ofîs-Act_^
The conclusion o f the Labour Appellate Tribunal was, in our opinion, based on a
misapprehension o f the whole position___ We have been taken through the whole
evidence by the learned counsel for the appellant and there is clear documentary
evidence to show that the 76 workmen resorted to a tools-down strike from 7 a.m. on
27 May 1952. . . . [I]t is abundantly clear on the documentary evidence above
referred to that, the 76 workmen resorted to a tools-down strike from 7 a.m. on the
morning o f 27 May 1952, that they were suspended till further orders immediately
after the receipt by the general manager o f the first series o f reports from the section
engineers, that they were prevented from entering the premises at I p.m. But entered
the same threatening violence. If this is the true position it follows that there no
lockout declared by the appellant, much less an illegal lockout. The workmen had
resorted to an illegal strike and the general manager rightly ordered that the work
men indulging in such strike should be suspended pending further orders which
obviously meant pending enquiry into their conduct and the obtaining o f the per
mission to dismiss them as a result o f such enquiry if the management thought fit.
It there was thus no illegal lockout at all, the conclusion reached by the Labour
Appellate Tribunal in that behalf was absolutely unjustified. Even if there had been
418 L abour L aw and L a b o u r R elations
a lockout as concluded by the Labour Appellate Tribunal the same was in conse
quence o f the illegal strike which had been resorted to by these workmen and could
not by virtue o f S. 24(3) o f the Act be deemed to be illegal.
There is, however, a more fundamental objection that, even if the appellant be
held responsible for having declared an illegal lockout, the lockout would not come
within the ban o f S. 22 o f the Act. . . . [The Court then referred to some earlier
decisions o f the Labour Appellate Tribunal, holding that a lockout does not amount
to a discharge, punishment, or a change in the conditions o f service, and therefore,
no permission is required for its declaration.]
We agree with the reasoning adopted in the aboye cases and are o f opinion
that a lockout is neither an alteration to the prejudice o f the workmen o f the condi
tions o f service applicable to them within the meaning o f Cl. (a) nor a discharge or
punishment whether by dismissal or otherwise o f the workmen within the meaning
o f Cl. (b) o f S. 33 o f the Industrial Disputes Act, 1947, or,S. 22 o f the Industrial
Disputes (Appellate Tribunal) Act, 1950, and that, therefore, no permission o f the
conciliation officer, board or tribunal as the case may be is necessary to be obtained
before a lockout can be declared. If the lockout is legal no question can at all arise.
If, on the other hand, the lockout is illegal, a remedy is provided in S. 26 o f the
Industrial Disputes Act, 1947. The employees affected by a lockout would in any
event be entitled to refer the industrial disputes arising between themselves and
the employer for adjudication by adopting the proper procedure in regard thereto.
[The Court reversed the decision o f the Labour Appellate Tribunal and granted
the permission to discharge the respondents.]
FEROZ DIN V. STATE OF WEST BENGAL

Supreme CoMrt, (1960) ILLJ 244; [1959] 17FJR370
[The company, a public-utility service, owns a factory at Bumpur near Asansol. Its
workers resorted to a slow-down strike in the hot mill section to enforce their
demands. The management, thereupon issued charge sheets to some o f them for
taking part in the slow-down strike and for instigating others to join it, and dis
missed four workers after an enquiry. On such dismissal the slow-down, strike
gained in strength. Thereupon, on the 8th April 1953, the company issued a notice
to the workers o f the hot mill that unless within two days they “record their willing
ness to operate the plant to its normal capacity they will be considered to be no
longer employed by the company...”
Only forty workers recorded their willingness. The rest, about 300 in number,
did not make any response. On the 1 Ith April all workers went on a sit-down strike,
which lasted till the 20th April 1953.
On the '25th April 1953, the company issued another notice that the workers
who did not respond were no longer employed; that their formal discharges had
S t r ik e s , L o c k - o u t s , G h e r a o An d B u n d h 419
been kept pending; but that their “discharge will become fully effective” if they
should fail to record their willingness by the 28th April. After this notice the work
ers struck work on the 27th April 1953 for twenty-two hours.
On the 19th May 1953, the company filed a complaint under section 27 o f the
Industrial Disputes Act against some workers for instigating illegal strikes. The
Magistrate convicted the four dismissed employees and one other person. The
workers’ appeals in the Sessions Court and their subsequent petitions for revision
in the Calcutta High Court failed. They then appealed to the Supreme Court, by
special leave. Excerpts from the judgment o f SarkarJ. fo llow :]
Section 27 o f the Act provides that a person who instigates or incites others to
take part in, or otherwise acts in furtherance o f a strike, which is illegal under the
Act, commits an offence. The respondent’s (the Government o f West Bengal’s]
case is that the strikes were illegal under S. 24 (1) o f the Act which provides that a
strike or a lockout shall be illegal if it is commenced or declared in contravention o f
S. 22. There is no dispute that the strikes were in contravention o f S. 22 [that section
requires a notice before a strike]. The appellants rely on S.24 (3) o f the Act under
which a strike declared in consequence o f an illegal lock-out shall not be deemed to
be illegal and say that the strikes had been in consequence o f an illegal lockout by
the Company o f the three hundred workers o f the hot mill by the notices o f 8 and 25
April. It is clear that if there was such a lockout, it was illegal under S. 24 (1), for it
would be clearly in contravention o f S. 22.
The question then is : Was there a lockout by the company? The learned
advocate for the appellants first contends that the notices use the same words as
are used in the definition o f a lockout in S. 2 (1) o f the Act and therefore by these
notices the company locked-out the men. We think that this argument is unfounBed^
The definition reads:.
“Lockout means...the refusal by an employer to continue to employ any num
ber of persons employed by him.”
In the notices the words are “considered to be no longer employed” while the
definition uses the words “refusal by the employer to continue to employ.” There
fore the words are not the same. Furthermore the words used in the notices and in the
definition have to be read in their respective contexts. For reasons to appeal later, the
words used in the notices meant a discharge o f the employees fi-om service -^vhile the
words used in the definition do not contemplate such a discharge o f the workmen.
The Courts below have come to the finding that by these notices the three
hundred workers of the hot mill were discharged on 10 April 1953, and had not been
locked out. The learned advocate for the appellants says that in this the Courts
were wrong. He .puts his arguments in two ways. First, he says that the notices did
not effect a discharge till 28 April 1953, and they had in the meantime resulted in a
lockout o f the workers from 10 April 1953, in the sense that their services had not
been terminated but they had not been allowed to attend to their duties. Then he
420 L a b o u r L aw and L a b o u r R ela t io n s
says that even if the notices effected a discharge, then also there was a lockout, for
a discharge is equally a lockout within the meaning o f its definition in the Act as the
prevention by an employer o f the workers from attending to their duties without
discharging them is.
Did the notices then affect a discharge ? We agree with the Courts below that
they did. The learned advocate for the appellants contends that the two notices
taken together make it perfectly clear that there was no discharge o f any employee
prior to 11 a.m. o f 28 April 1953. He says that the notice o f 25 April shows that the
notice o f 8 April did not effect any discharge, for, the first-mentioned notice says
that the formal discharge had been kept pending and it also required the workers to
record their willingness to operate the plant to its normal capacity by 11 a.m. on 28
April, and further stated that failing this their names-would be removed from the
company’s roil and their discharge would become fully effective.
We are unable to read the notices in the way suggested. The notice o f 8 April
clearly stated that unless the workers notified their willingness to operate the plant
to its normal capacity by 2 p.m. on 10 April they would be considered to be no
longer in the employment o f the company, It plainly meant that on their failure to
record the willingness by the time mentioned, the workers would cease to be in the
employment o f the company, that is, in other words, discharged. Taken by itself, we
do not think it is capable o f any other meaning. We are also unable to agree that
there is anything in the notice o f 25 April, which would show that a different
meaning ought to be put on the words used in the notice o f 8 April than they
normally bear. The later notice also states that the workers had been considered to
be no longer employed from 10 April Hence it maintains that the workers had been
discharged on 10 April. It no doubt says that the formal discharge had been kept
pending but that only means, as is clear from the last paragraph o f the notice, that
the names o f the workers had not been removed from the company’s roll. The word
“formal” must have its due meaning, it emphasizes that the real discharge had
already taken place. We may also state that it has not been contended before us
that there can be no discharge till a worker’s name is removed from the roll and
without more, we do not think that we would have accepted that contention if made.
The removal o f the name o f a worker from the roll follows his discharge and that is
what was meant by the statement in the notice “that the formal discharge had been
kept pending”.
The circumstances which led to the issuing o f the notice o f 25 April also show
that the workers had actually been discharged on 10 April. What had happened
was that the Labour Minister o f the Government o f West Bengal had intervened in
the dispute between the company and its workers. He met the workers and on 21
April 1953, that is, after the termination o f the first o f the two strikes, suggested
certain terms for the settlement o f the dispute. His suggestion was that:
“If the workers o f the hot mills, who stand discharged from 2 p.m. o f 10 April
1953, as a consequence o f their disregarding the notice issued on 8 April 1953,
report themselves for duty immediately and record their willingness to operate the
plant to its normal capacity the Government would recommend their reinstatement
to the management.”
A copy o f this suggestion was forwarded to the company by the Government
with a request to implement the recommendations contained in it with a further
request to give the suggestions a wide publicity. The company circulated the Labour
Minister’s suggestion among the workers and to comply with his request to imple
ment it, it issued the notice o f 25 April, to which a copy o f the suggestion was
attached. It is, therefore, clear that all that the company intended to do by the notice
of 25 April was to comply with the Government’s suggestion and so to cancel the
discharge o f the workers o f the hot mill which had already taken effect and reinstate
them in their former employments if the workers carried out their part o f the sugges
tion. This notice, therefore, does not support the contention that the workers had
not been discharged till 28 April, 1953.
We may also state that there is no evidence that prior to 2 p.m. o f 10 April 1953
any employee had been prevented by the company from attending to his duty.
The next question is whether a discharge of employees by an employer amounts
to a lockout. It is said that the words used in the definition o f a lockout, namely, “the
refusal by an employer to continue, to employ any number o f persons employed by
him” cover the discharge o f employees by an employer. The contention so raised
was rejected by the Labour Appellate Tribunal in Presidency Jute Mills Company,
Ltd. V. Presidency Jute Mills Employees’Union {1952-1 LLJ 796). We are in entire
agreement with the view there expressed.
It seems to us that to construe the definition as including a discharge would be
against the meaning o f a lockout as understood in industrial relations.
By virtue o f S. 22 o f the Act, in a public utility service no worker can go on
strike nor can an employer lockout his workmen without giving notice o f strike or o f
lockout within six weeks before the strike or lock- out as the case may be or within
fourteen days o f such notice or before the date fixed in such notice or during the
pendency o f any conciliation proceedings before a conciliation officer and seven
days after the conclusion thereof. Section 23 prohibits strikes and lockouts in other
industrial establishments during the pendency o f conciliation prbceedings before a
board and for seven days thereafter. Section 24 (1) makes a strike and a lockout in
contravention o f Ss. 10, 22 and 23, illegal. Section 24 (2) provides that a strike
declared in consequence o f an illegal lockout and a lockout declared m .conse
quence o f an illegal strike shall not be illegal. Section 25 prohibits the spending of
money on illegal strikes and lockouts.
The Act, therefore, treats strikes and lockouts on the same basis; it treats one
as the counterpart o f the other. A strike is a weapon o f the workers while a lockout
that of the employer. A strike does not, o f course, contemplate the severance of the
relation o f employer and employed; it would be strange in these circumstances if a
lockout did so.
Under the provisions o f S. 22, a lockout cannot be declared in a public utility

service immediately; it can be declared only after the date fixed in the notice and
cannot be declared within fourteen days o f the giving o f the notice. Now, if a
discharge is included in a lockout, an employer in such a service cannot discharge
his employee, except after the time specified. Now, that would often make it impos
sible for the employer to carry on his business. It is conceivable that an employee
may be guilty o f such misconduct that his immediate discharge is essential. Indeed,
there is no reason to think that such cases would be very infrequent. In such a case
if an employer is prevented on pain o f being made criminally liable under S. 27 from
discharging the employee forthwith, irreparable mischief may be caused to his
works or serious personal injury to himself or his other employees. We have no
reason to think that the Act intended such a result.
Again, if a lockout included a discharge, then there would be a conflict be
tween Ss. 22 and 23 on the one hand and S. 33 on the other. As has already been
stated, Ss. 22 and ,23 prohibit a lockout o f workers during the pendency o f the
conciliation proceedings, therein mentioned, and seven days thereafter. According
to the interpretation suggested by the learned advocate for the appellants, during
this time no worker could at all be discharged for a lockout includes a discharge, it
being remembered that the prohibition in the section is absolute. Under S. 33,
however, an employer is prohibited during the pendency o f a conciliation proceed
ing, from discharging a workman concerned in the dispute for any misconduct
connected with such dispute save with the express permission o f the authority
before whom the proceeding is pending. So, if a lockout includes a discharge, under
Ss. 22 and 23 there can be no discharge during conciliation proceedings while
under S. 33 there could be one with the permission o f the authority conducting the
proceedings. If a discharge amounted to a lockout, an absurd result would thus be
produced.
By an amendment made on 2 October 1953, certain provisions have been intro
duced into the Act which would show clearly that a lockout as defined in S. 2(1),
which section has been left unaltered by the amendment, was never intended to
include a discharge o f workmen. We refer first to S. 2(00) by which a new definition
was introduced in the Act which, so far as is necessary for the present purpose, is
in these words : “Retrenchment means the termination by the employer o f the
service o f a workman for reason whatsoever otherwise than as a punishment in
flicted by way o f disciplinary action.”
If lockout includes a discharge, then retrenchment as defined in S. 2(00) would
also clearly be a lockout. Obviously, if that were so, then refrenchment would not
have been separately defined. Again, under S. 25F, also introduced into the Act by
the amendment, a workman may be retrenched by paying him wages for a month,
the compensation provided, and on notice to the Government. If retrenchment was
a form o f lockout, then there would clearly be a conflict between Ss. 22 and 23 on the
•one hand and S. 25F on the other. Sections 2(00) and 25F were, no doubt, not in the
Act at the date o f the notices with which we are concerned, but since S. 2(1) was not
amended, it must be taicen that its meaning remained after the amendment what it
was before. Since the amendment made it clear that S. 2(1) did not include a re
trenchment, it follows that, that definition did not include a retrenchment prior to
the amendment. If it did not then include a retrenchment, neither could it include a
discharge, for, plainly, a retrenchment is but one form o f discharge.
It, therefore, seems to us that the words “reftisal by an employer to continue to
employ any number o f persons employed by him” in S. 2(1) do not include the
discharge o f an employee. We feel no difficulty in taking this view, for it does not
seem to us that the words “reftisal to continue to employ” in S. 2(1) plainly include
a discharge. These words have to be read with the rest o f the definition and also the
word “lock-out.” The other parts o f the definition contemplate no severance o f the
relation o f employer and employee. The word “lockout” as stated in the Presidency
Jute Mills Company case, 1952— 1 LLJ 796, (supra) in its dictionary sense means
refiisal on the part o f an employer to fijmish work to his operatives except on
conditions to be accepted by the latter collectively. Therefore, in our opinion, the
rules o f interpretation do not prevent us from giving to the words used in the
definition the meaning “a reftisal by the employer to allow any number o f persons
employed by him to attend to their duties without effecting a termination o f ser
vice”, as was done in the Presidency Jute Mills ‘Company case ... {supra) which
would avoid one part o f the Act coming in conflict with another.... We feel, there
fore, that the appeal must fail. We think it right however in the circumstances o f this
case, and in view o f the long lapse o f time since the case started, to modify the
sentence passed. In our view, a sentence o f sirnple imprisonment for the period
already served and a fine o f Rs. 100 with simple imprisonment for a period o f fifteen
days in default o f payment o f the fine for each appellant will be sufficientlfrthis
case and we order accordingly.
Subject to this modification of the sentence, this appeal is dismissed.
II. RIGHT TO STRIKE
ALL INDIA BANK EMPLOYEES ASSOCL\TION v

NATIONAL INDUSTRIAL TRIBUNAL
AIR 1962 SC 171
[The principal issues before the Supreme Court in this case were whether the right
to form a union guaranteed by article 19 (1) (c) o f the Constitution by implication
confers a right on the workers or unions to go on strike, and a right to undertake
collective bargaining for wages, conditions o f service and the like. The Supreme
Court held that article 19 (1) (c) does not extend its guarantees to those additional
rights. Excerpts ft-om thejudgment delivered by N. RajagopalaAyyangarJ. follow:]
The point for discussion could be formulated thus : When sub-cl, (c) o f Cl. (I)
o f Art. 19 guarantees the right to form associations, is a guarantee also implied that
424 L a b o u r L aw and L a b o u r R e la t io n s
the fulfillment o f every object o f an association so formed is also a protected right,

with the result that there is a constitutional guarantee that every association shall
effectively achieve the purpose for which it was formed without interference by law
except on grounds relevant to the prevention o f public order or morality set out in
CL (4)* o f Art. 19 ? Putting aside for the moment the case o f Labour Unions... if an
association were formed, let us say for carrying on a lawful business such as a joint
stock company or a partnership, does the guarantee by sub-el, (c) o f the freedom to
form the association, carry with it a further guaranteed right to the company or the
partnership to pursue its trade and achieve its profit-making object and that the
only limitations which the law could impose on the activity o f the association or in
the way o f regulating its business activity would be those based on public order
and morality under cl. (4) o f Art. 19 ? We are clearly o f the opinion that this has to
be answered in the negative....
The acceptance o f any such argument would mean that while in the case o f an
individual citizen to whom a right to carry on a trade or business or pursue an
occupation is guaranteed by sub-cl (g)** o f Cl. (1) o f Art. 19, the validity o f a law
which imposes any restriction on this guaranteed right would have to be tested by
the’ criteria laid down by CL (6) o f Art. 19, if however he associated with another
and carried on the same activity— say as a partnership, or as a company, etc., he
obtains larger rights o f a different content and with different characteristics which
include the right to have the validity o f legislation restricting his activities tested by
different standards, viz., those laid down in Cl. (4) o f Art. 19.... As the stream can
rise no higher than the source, associations o f citizens cannot lay claim to rights
not open to citizens, or claim freedom from restrictions to which the citizens com
posing it are subject.
Applying what we have stated earlier to the case o f a labour union the position
would be thus: while the right to form a union is guaranteed by sub-el, (c), the right
o f the members o f the association to meet would be guaranteed by sub-el, (b), their
right to move from place to place within India by sub-el, (d), their right to discuss
their problems and to propagate their views by sub-cl (a), their right to hold prop
erty would be that guaranteed by sub-cl (f) and so on— each o f these freedoms
being subject to such restrictions as might properly be imposed by Cl. (2) to (6) o f
Art. 19 and as might be appropriate in the context. It is one thing to interpret each o f
the fi-eedoms guaranteed by the several Articles in Part ill in a fair and liberal sense;
it is quite another to read each guaranteed right as involving or including concomi
tant rights necessary to achieve the object which might be supposed to underlie
the grant o f each o f those rights, for that construction would, by a series o f ever
expanding concentric circles in the shape o f rights concomitant to concomitant
It specifies the grounds on the basis of which the state may impose reasonable restrictions
on the freedom of association Eds.
’ It specifies the grounds on the basis of which the state may impose reasonable restrictions
on the freedom of occupation guranteed in article 19(i)(g) Eds.
rights and so on, lead to an almost grotesque result....

Besides it may be pointed out that both under the Trade Unions Act as well as
under the Industrial Disputes Act the expression ‘union’ signifies not merely a
union o f workers but includes also unions o f employers. If the fulfillment o f every
object for which a union o f workmen was formed were held to be a guaranteed right,
it would logically follow that a similar content ought to be given to the same free
dom when applied to a union o f employers which would result in an absurdity. We
are pointing this out not as any conclusive answer, but to indicate that the... (argu
ment that the) right to form unions... carries with it a fundamental right in the union
so formed to achieve every object for which it was formed, with the legal conse
quence that any legislation not falling within Cl. (4) o f Art. 19 which might in any
way hamper the fulfillment o f those objects, should be declared unconstitutional...
is not a proposition which could be accepted as correct....
[T]he contents o f Cl. (4) o f Art. 19 throw considerable light upon the scope o f
the freedom, for the significance and contents o f the grants o f the Constitution are
best understood and read in the light o f the restrictions imposed. If the right guar
anteed included not merely that which would flow on a literal reading of the Article,
but every right which is necessary in order that the association brought into exist
ence fulfils every object for which it is formed,'the qualificationstherefore would be
not merely those in cl. (4) o f Art. 19 but would be more numerous and very different,
restrictions which bore upon and took into, account the several fields in which
associations or unions o f citizens might legitimately engage themselves. Merely by
way of illustration we might point out that jeamed Counsel admitted that though
the freedom guaranteed to workmen to form labour unions carried with it the con
comitant right to collective bargaining together with the right to strife,’-still the
provision in the Industrial Disputes Act forbidding strikes in protected industries
as well as in the event o f a reference o f the dispute to adjudication under S. 10 o f the
Industrial Disputes Act was conceded to be a reasonable restriction on the right
guaranteed by sub-cl. (c) o f clause (1) o f Art. 19. It would be seen that if the right to
strike were by implication a right guaranteed by sub-el, (c) o f cl. (1) o f Art. 19, then
the restriction on that right in the interests o f the general public, viz., o f national
economy while perfectly legitimate if tested by the criteria in'-clause (6) o f Art. 19
might not be capable o f being sustained as a reasonable restriction^mposed for the
reasons o f morality or public order. On the construction o f the Article, therefore
apart from the authorities to which we shall refer presently, we have reached the
conclusion that even a very liberal interpretation o f sub-cl (c) o f cl. (1) o f Art. 19
cannot lead to the conclusion that the trade unions have a guaranteed right to ^
effective collective bargaining or to strike, either as part o f collective bargaining or
otherwise. The right to strike or the right to declare a lock-out may be controlled or
restricted by appropriate industrial legislation, and the validity o f such legislation
would have to be tested not with reference to the criteria laid down in cl. (4) o f Art.
19 but by totally different considerations. We have, therefore, reached the conclu
sion that the right guaranteed by sub-cl. (c) o f Cl. (1) o f Art. 19 does not carry with
it a concomitant right that the unions formed for protecting the interests o f labour
shall achieve the purpose for which they were brought into existence....
KAMESHWAR PRASAD v. STATE OF BIHAR

AIR 1962 SC 1166
[The issue before the Supreme Court in this case was whether the rule in the Bihar
Government Servant’s Conduct Rules, prohibiting strikes and demonstrations, in
fringed freedom o f speech, freedom o f assembly and freedom o f association, as
those are guaranteed in article 19 (1) (a) (b) and (c) o f the Constitution. The court
held that the rules prohibiting demonstrations contravened freedom o f speech and
freedom o f assembly, but that the rule prohibiting strikes was valid inasmuch as
article 19(1) (c) did not guarantee a right to strike.
Excerpts from the judgment delivered by N. Rajagopala Ayyangar J. follow:]
The first question that falls to be considered is whether the right to make a
“demonstration” is covered by either or both o f the two freedoms guaranteed by
Art. 1 9 (l)(a )a n d l9 (l)(b )...
[The Court noticed two dictionary definitions o f “demonstration.”] Without
going very much into the niceties o f language it might be broadly stated that a
demonstration is visible manifestation o f the feelings or sentiments o f an individual
or a group. It is thus a communication o f one’s ideas to others to whom it is
intended to be conveyed. It is in effect therefore a form o f speech or o f expression,
because speech need not be vocal since signs made by a dumb person would also
be a form o f speech. It has however to be recognised that the argument before us is
confined to the rule prohibiting demonstration which is a form o f speech and ex
pression or o f a mere assembly and speeches therein and not other forms o f demon
stration which do not fail within the content of Art. 19 (1) (a) or 19 (1) (b). A demon
stration might take the form o f an assembly and even then the intention is to
convey to the person or authority to whom the communication is intended the
feelings o f the group which assembles. It necessarily follows that there are forms o f
demonstration which would fall within the freedoms guaranteed by Art. 19 (1) (a)
and 19 (1) (b). It is needless to add that from the very nature o f things a demonsfra-
tion may take various forms; it may be noisy and disorderly, for instance stone
throwing by a crowd may be cited as an example of a violent and disorderly demon
stration and this would not obviously be within Art. 19 (1) (a) or (b). It can equally
be peaceful and orderly such as happens when the members o f the group merely
wear some badge drawing attention to their grievances.
If thus particular forms o f demonstration fall within the scope o f Art. 19 (1) (a)
or 19(1) (b), the next question is whether R. 4-A insofar as it lays down an embargo
on any form o f demonstration for the redress o f the grievances o f Government
employees, could be sustained as falling within the scope o f Art. 19 (2) and (3).
If one had to consider the propriety o f the rule as one intended to ensure
proper discipline apart frqm the limitations on law-making, in a Government servant
and in the context o f the other provisions made for the making o f representations
and for the redress o f service grievances, and apart from the limitations imposed by
the Constitution there could be very little doubt nor would it be even open to
argument that the rule now impugned was both reasonable and calculated to en
sure discipline in the services and in that sense conducive to ensure efficiency in
the Service. Based on this aspect of the function o f the rule the argument as regards
Art. 19 (2) and (3) was put on a two-fold b asis: (1) that the maintenance o f public
order was directly dependent upon the existence o f a body o f Government servants
who were themselves subject to strict discipline.... (2) The other aspect in which it
was presented was the negative o f the one just now mentioned that if Government
servants were ill-disciplined and were themselves to agitate in a disorderly manner
for the redress o f their service grievances, this must lead to a demoralisation o f the
public and would be reflected in the disappearance o f public order.
We find ourselves unable to uphold the submission on behalf o f the State. In
the first place, we are not here concerned with any rule for ensuring discipline
among the police force which is the arm o f the law primarily charged with the
maintenance o f public order. The threat to public order should therefore arise from
the nature o f the demonstration prohibited. No doubt, if the rule were so framed as
to single out those types o f demonstration which were likely to lead to a distur
bance o f public tranquility or which would fall under the other limiting criteria
specified in Art. 19 (2) the validity o f the rule could have been sustained. The vice
o f the rule, in our opinion, consists in this that’it lays a ban on every type o f
demonstration— ^be the same however innocent arid however incapable o f causing
a breach o f public tranquility and does not confine itself to those forms o f demon
stration which might lead to that result.
We would therefore allow the appeal in part and grant the appellants a declara
tion that R. 4-A in the form in which it now stands prohibiting “any form o f demon
stration” is violative o f the appellants’ rights under Art. 19 (1) (a) and (b) and
should therefore be struck down. It is only necessary to add that the rule in-so-far
as it prohibits a strike, cannot be struck down since there is no fundamental right to
resort to a strike. As the appellants have succeeded only in part, there will be no
order as to costs in the appeal.
TK. RANGARAJAN v. GOVERNMENT OF TAMIL NADU'

2003(6) SCALE 84
[In this case the government employees (including teachers o f the government
aided schools and colleges) went on an indefinite strike in pursuance o f their
demands relating to pension benefits that had been curtailed on grounds o f a
resource crunch. The government o f Tamil Nadu first invoked the Tamil Nadu
Essential Services Maintenance Act (TESMA), 2002 and then promulgated an ordi
nance empowering the government to summarily dismiss the employees en masse,
without giving them an opportunity to be heard. As a result the government of
Tamil Nadu summarily dismissed about 1.70 lakh government employees (including
teachers) for participating in the strike. The employees were also prevented from
resuming their duties. Quite apart from this, 2211 employees and their leaders were
arrested and FlRs were registered against them for inciting the strikers or indulging
in violence. Aggrieved employees then filed a writ petition under articles 226/227 o f
the Constitution in the Madras High Court. A single judge o f the court by an interim
order directed the State o f Tamil Nadu, inter alia, (i) to keep in suspense the
dismissal order issued against the striking government employees until fiirther
orders; and (ii) to permit the employees to resume duties forthwith in view o f their
undertaking to withdraw the strike. Aggrieved by this order the State o f Tamil Nadu
filed an appeal before the division bench challenging the interim order. A public
interest litigation was also filed on behalf o f government employees wherein the
validity o f the Tamil Nadu Essential Services Maintenance Act, 2002 and Tamil
Nadu Ordinance No. 3 o f 2003 was challenged. The division bench o f the High
court set aside the interim order and held that without exhausting the alternative
remedy o f approaching the administrative tribunal, writ petitions were not maintain
able. Thereupon the appellant-employees filed an appeal by special leave before
the Supreme Court. Excerpts from the judgment o f the court delivered by Shah J.
follow:]
At the outset, it is to be reiterated that under Article 226 o f the Constitution,

the High court is empowered to exercise its extraordinary jurisdiction to meet un
precedented extraordinary situation having no parallel. It is equally true that ex
traordinary powers are required to be sparingly used. The facts o f the present case
reveal that this was most extraordinary case, which called for interference by the
High Court, as the State Government had dismissed about two lacs employees for
going on strike.
It is true that in L. Chandra Kumar v. Union o f India and others [(1997) 3 SCC
261], this court has held that it will not be open to the employees to directly ap
proach the High Court even where the question o f vires o f the statutory legislation
is challenged. However, this ratio is required to be appreciated in context o f the
question which was decided by this Court wherein it was sought to be contended
that once the Tribunal are established under Article 323-A or Article 323-B, jurisdic
tion o f the High Court would be excluded. Negativing the said contention, this
Court made it clear that jurisdiction conferred upon the High Court under Article
226 o f the Constitution is a part of inviolable basic structure of the Constitution and
it cannot be said that such Tribunals are effective substitute office High Courts in
discharging powers o f judicial review. It is also established principle that where
there is an alternative, effective, efficacious remedy available under the law the
High Court would not exercise its extraordinary jurisdiction under Article 226 and
that has been reiterated by holding that the litigants must first approach the Tribu
nals which act like courts o f first instance in respect o f the areas o f law for which
they have been constituted and therefore, it will not be open to the litigants to
directly approach the High Court even where the question o f vires office statutory
legislation is challenged.
There cannot be any doubt that the aforesaid judgment o f larger Bench is
binding on this Court and we respectfiilly agree with the same. However, in a case
like this, if thousands o f employees are directed to approach the Administrative
Tribunal, the Tribunal would not be in a position to render justice to the cause.
Hence, as stated earlier because o f very exceptional circumstance that arose in the
present case, there was no justifiable reason for the High Court not to entertain the
petitions on the ground o f alternative remedy provided under the statute.
Now coming to the question o f right to strike— whether Fundamental, Statu
tory or Equitable/Moral Right— in our view, no such right exists with the govern
ment employees.
(A) There is no fundamental right to go on strike:
Law on this subject is well settled and it has been repeatedly held by this Court
that the employees have no fundamental right to resort to strike. In Kameshwar
Prasad and others v. State o f Bihar and another [(1962) Suppl. 3 SCR 369] this
Court (C.B.) held that the rule in so far as it prohibited strikes was valid since there
is no fundamental right to resort to strike.
In RadheyShayam Sharma v. The Post Master General Central Circle, Nagpur
[(1964) 7 SCR403), the employees o f Post and Telegraph Department o f the Govern
ment went on strike from the midnight o f July 11, I960 throughout India and peti
tioner was on duty on that day. As he went on strike, in the departmental enquiry,
penalty was imposed upon him. That was challenged before this Court. In that
context, it was contended that Sections 3 ,4 and 5 o f the Essential Services Mainte
nance Ordinance No. I o f 1960 were violative o f fundamental rights guaranteed^y
clauses (a) and (b) o f Article 19(1) o f the Constitution, The Court (C.B.) considered
the Ordinance and held that Sections 3,4 and 5 o f the said Ordinance did not violate
the fundamental rights enshrined in Article I9(l)(a) and(b) o f the Constitution. The
Court further held that a perusal o f Article 19(1) (a) shows that there is no
fundamental right to strike and all that the, Ordinance provided w aj with respect
to any illegal strike. For this purpose, the Court relied upon the earlier decision in
All India Bank E m ployees’ Association v. National Industrial Tnbjunal and oth
ers [(1962) 3 SCR 269] wherein the Court (C.B.) specifically held that even very
liberal interpretation o f sub-clause (C) o f clause (1) o f Article 19 cannot jfead to the
conclusion that trade unions have a guaranteed right to an effective collective
bargaining or to strike, either as part o f collective bargaining or otherwise.
In Ex-Capt. Harish Uppal v. Union o f India and Another [(2003) 2 SCC 45], the
Court (C.B.) held that lawyers have no right to go on strike or give a call for boycott
and even they cannot go on a token strike....
In Communist Party o f India (M) v. Bharat Kumar and others [(1998)] SCC
201], a three-Judge Bench o f this Court approved the Full Bench decision o f the
Kerala High Court by holding thus:
There cannot he any doubt that the fundamental rights o f the people as a
whole cannot be subservient to the claim o f fundamental right o f an individual or
only a section o f the people. It is on the basis o f this distinction that the High Court
has rightly concluded that there cannot be any right to call or enforce a “Bandh”
which interferes with the exercise o f the fundamental freedoms o f other citizens, in
addition to causing national loss in many ways. We may also add that the reason
ing given by the High Court particularly those in paragraphs 12, 13 and 17 for the
ultimate conclusion and directions in paragraph 18 is correct with which we are in
agreement”.
The relevant paragraph 17 o f Kerala High Court judgment reads as under:
“ 17... No political party or organisation can claim that it is entitled to paralyse
the industry and commerce in the entire State or nation and is entitled to prevent the
citizens not in sympathy with its viewpoints, from exercising their fundamental
rights or from performing their duties for their own benefit or for the benefit o f the
State or the nation. Such a claim would be unreasonable and could not be accepted
as a legitimate exercise o f a fiindamental right by a political party or those compris
ing it.”
(B) There is no legal/statutory right to go on strike.
There is no statutory provision empowering the employees to go on strike.
Further, there is prohibition to go on strike under the Tamil Nadu Government
Servants Conduct Rules, 1973 (hereinafter referred to as “the Conduct Rules”).
Rule 22 provides that “no Government servant shall engage himself in strike or in
incitements thereto or in similar activities.” Explanation to the said provision ex
plains the term ‘similar activities’. It states that “for the purpose o f this rule the
expression ‘similar activities’ shall be deemed to include the absence from work or
neglect o f duties without permission and with the object o f compelling something
to be done by his superior officers or the Government or any demonstrative fast
usually called “hunger strike” for similar purposes. Rule 22 A provides that “no
Government servant shall conduct any procession or hold or address any meeting
in any part o f any open ground adjoining any Government Office or inside any
Office premises— (a) during office hours on any working day; and(b) outside office
hours or on holidays, save with the prior permission o f the head o f the Department
or head o f office, as the case may be.
(C) There is no moral or equitable justification to go on strike. Apart from
statutory rights. Government employees cannot claim that they can take the soci
ety at ransom by going on strike. Even if there is injustice to some extent, as
presumed by such employees, in a democratic welfare State, they have to resort to
the machinery provided under different statutory provisions for redressal o f their
grievances. Strike as a weapon is mostly misused which results in chaos and total
maladministration. Strike affects the society as a whole and particularly when two
lakh employees go on strike enmasse, the entire administration comes to a grinding
halt.* In the case o f strike by a teacher, entire' educational system suffers; many
students are prevented from appearing in their exams which ultimately affect their
whole career. In case o f strike by Doctors, innocent patients suffer; in case o f strike
by employees o f transport services, entire movement o f the society comes to a
stand still; business is adversely affected and number o f persons find it difficult to
attend to their work to move from one place to another or one city to another. On
occasions, public properties are destroyed or damaged and finally this creates
bitterness among public against those who are on strike.
Further Mr. K.K. Venugopal learned senior counsel appearing for the State of
Tamil Nadu also submitted that there are about 12 lacs Government employees in
the State. Out o f the total income from direct tax, approximately 90% o f the amount
is spent on the salary o f the employees. Therefore, he rightly submits that in a
Society where there is a large-scale unemployment and number o f qualified persons
are eagerly waiting for employment in Government Departments or in public sector
undertakings, strikes cannot be justified on any equitable ground.
We agree with the said submission. In the prevailing situation, apart from
being conscious o f rights, we have to be fully aware o f our duties, responsibilities
and effective methods for discharging the same.. For redressing their grievances,
instead o f going on strike, if employees do some more work honestly, diligently and
efficiently, such gesture would not only be appreciated by the authority but also by
people at large. The reason being, in a democracy even though they are Govern
ment employees, they are part and parcel o f governing body and owe duty to the
Society.
We also agree that misconduct by the government employees is required to be
dealt with in accordance with law. However, considering the gravity o f the situation
and the fact that on occasion, even if the employees are not prepared to agree w fh
what is contended by some leaders who encourage the strikes, they are forced to
go on strikes for reasons beyond their control. Therefore, even though the provi
sions o f the Act and the Rules are to be enforced, they are to be enforced after
taking into consideration the situation and the capacity o f the employees to resist.
On occasion, there is tendency or compulsion to blindly follow the others. In this
view o f the matter, we had suggested to the learned senior counsel Mr. Venugopal
that employees who went on strike may be reinstated in service and,that sugges
tion was accepted by Mr. Venugopal after obtaining instructions from^^he State
Government. Hence, on 24.7.2003, we had passed the following order;
1. The State Government will reinstate all the govenmient employers who are
dismissed because they had gone on strike, except (i) 2,200 employees who had
been arrested and (ii) employees against whom FIR had been lodged.
2. This reinstatement in service would be subject to unconditional apology as
well as undertaking to the effect that employees would abide by Rule 22 o f the Tamil
Nadu Government Servants Conduct Rules 1973 which provides as under:
'"Strikes: No Government servant shall engage himself in strike or in incite

ments thereto or in similar activities.”
Explanation: For the purpose o f this rule the expression ‘similar activities’
shall be deemed to include the absence from work or neglect o f duties without
permission and with the object o f compelling something to be done by his superior
officers or the Government or any demonstrative fast usually called “hunger strike”
for similar purposes.
It is also stated that Government will proceed under the Disciplinary Rules
only against those employees who had indulged in violence and who had incited
the other employees to go on strike.
From 25th July such employees would be reinstated in service subject to their
giving unconditional apology for resorting to strike and also an undertaking to the
effect that in future he would abide by Rule 22.
He also states that for the employees who would be reinstated in service with
regard to the period for which they remained absent appropriate order would be
passed by the State Government for regularizing their absent. However, this would
not be treated as a break in service.
Ordered accordingly.
For further orders and directions list the matter on 31.7.2003.”
On 31 St, number o f affidavits were filed contending that large number o f em
ployees are not reinstated in service despite the assurance given by the State
Government. Matter was adjourned at the request o f learned counsel for the re
spondent for verification of the said contention. After verification, additional affi
davit has been filed by Secretary to Government, Personnel and Administrative
Reforms Department. Secretariat, Chennai, revealing the exact figures with regard
to dismissed and reinstated employees.
For the categories (b) and (c), i.e.. Secretarial staff o f 2215 and 534 officers
holding higher positions, it is agreed and made clear that they would be treated as
suspended instead o f dismissed. Remaining 8063 employees, as stated above, will
be reinstated in service (w.e.f. 25th July, 2003) on their tendering unconditional
apology for resorting to strike and also an undertaking to abide by Rule 22 of
Conduct Rules in future. He further makes a statement that with regard to the
representations which are made or are to be made by the employees who are in
category (a), (b), (c) and (d), the same would be considered by three retired High
Court Judges to be named by the Chief Justice o f the High Court o f Madras. Each
Judge would decide approximately representations o f 2000 employees within a
period o f one month or thereabout from the date o f allocation o f representations.
For this purpose, a convenient place for their office work and the secretarial staff
would be made available to all the three Judges by the State Government within a
period o f seven days from today without fail. The concerned Judges would decide
the representation o f the employees without taking into consideration Section 7 o f

the Ordinance and as far as possible in accordance with the Conduct Rules and
equity. Retired-Judges to be paid honorarium at the rate of Rs. 50000/- per month.
All the three Judges are requested to evolve a common procedure for disposing of
the representations. The decision o f the Judge on the representation would be
binding to the State Government and the State Government would act in accor
dance with the same. However, if any office employee' is aggrieved, it would be
open to such employee to challenge the same before an appropriate forum.
Finally, it is made clear that employees who are reinstated in service would take
care in future in maintaining discipline as there is no question o f having any funda
mental, legal or equitable right to go on strike. The employees have to adopt other
alternative methods for redressal of their grievances. For those employees who are
not reinstated in service on the ground that FIRs are lodged against them or after
holding any departmental enquiry penalty is imposed, it would be open to them to
challenge the same before the Administrative Tribunal and the Tribunal would pass
appropriate order including interim order within a period o f two weeks from the date
o f filing o f such application before it. It is unfortunate that the concerned authori
ties are not making the Administrative Tribunals under the Administrative Tribunal
Act, 1985, functional and effective by appointing men o f caliber. It is for the High
Court to see that if the Administrative Tribunals are' not functioning, justice should
not he denied to the affected persons. In case, if the Administrative Tribunal is not
functioning, it would be open to the employees tO'approach the High Court.
Lastly, we make it clear that we have not at all dealt with and considered the
constitutional validity o f Tamil Nadu Essential Services Maintenance Act, 2002
and the Tamil Nadu Ordinance No. 3 o f 2003 or interpretation o f any o f the p iw i-
sions thereof, as the State Government has gracefully agreed to reinstate most oF
the employees who had gone on strike. For this, we appreciate the efforts made and
the reasonable stand taken by the learned Counsel for the parties. Further, we have
not dealt with the grievances o f the employees against various orders issued by the
State Government affecting their service benefits. We hope that Government would
try to consider the same appropriately.
The Appeals and Writ Petitions are disposed o f accordingly. There shall be no
order as to costs.
B.R.SINGH V. UNION OF INDIA

Supreme Court, (1989) 2 LLJ. 591
[The workers o f the Trade Fair Authority o f India, (TFAI) a non-public utility con
cern, went on strike in protest against the management’s failure to implement the
assurances given to them in respect to their long standing demands regarding revi
sion o f wages, regularisation o f services o f casual labour and housing facilities etc.
Neither any conciliation or adjudication proceedings were pending nor any settle
ment or award was in operation. However, the management immediately on receipt of
434 L a b o u r L aw and L a b o u r R e latio n s
strike notice suspended the office-bearers and members o f executive of the union
and latter terminated the service o f al 1the 12 office-bearers and executive committee
members and denied employment to several casual or daily rated workers. Ag
grieved by this order workers union and some o f the workers challenged the afore
said action o f the management under article 32 o f the Constitution. The Supreme
Court was, inter alia, called upon to decide the legality of strike and justification o f
management’s action. Excerpts from the judgment of the court by Ahmadi J. follow:]
Counsel for TFAI also strongly contended that since the strike was illegal the
workers are not entitled to any relief We see no merit in this submission. The right
to form associations or unions is a fundamental right under Article 19(1) (c) o f the
Constitution. Section 8 o f the Trade Unions Act provides for registration o f a trade
union if all the requirements o f the said enactment are fijlfilled. The right to form
association and unions and provide for their registration was recognized obviously
for conferring certain rights on trade unions. The necessity to form unions is obvi
ously for voicing the demands and grievances o f labour. Trade unionists act as
mouthpieces o f labour. The strength o f a trade union depends on its membership.
Therefore, trade unions with sufficient membership strength are able to bargain
more effectively with the managements. This bargaining power would be consider
ably reduced if it is not permitted to demonstrate. Strike in a given situation is only
a form o f demonstration. There are different modes o f demonstrations, e.g., go slow,
sit-in, work-to-rule, absenteeism, etc., and strike is one such mode o f demonstration
by workers for their rights. The right to demonstrate and, therefore, the right to
strike is an important weapon in the armory o f the workers. This right has been
recognized by almost all democratic countries. Though not raised to the high ped
estal o f a fundamental right, it is recognized as a mode o f redress for resolving the
grievance o f workers. But the right to strike is not absolute under our industrial
jurisprudence and restrictions have been placed on it. These are to be found in
Sections 10(3), lOA (4A), 22 and 23 ofthe Industrial Disputes Act, 1947 (T.D. Act’
for short). Section 10(3) empowers the appropriate Government to prohibit the
continuance o f a strike if it is in connection with a dispute referred to one o f the fora
created under the said statute. Section lOA (4A) confers similar power on the
appropriate Government where the industrial dispute which is the cause o f the
strike is referred to arbitration and a notification in that behalf is issued under
Section 10(3 A). These two provisions have no application to the present case since
it is nobody’s contention that the union’s demands have been referred to any forum
under the statute.
The field o f operation o f Sections 22 and 23 is different. While Section 10(3)
and section lOA (4A) confer power to prohibit continuance o f strike which is in
progress. Sections 22 and 23 seek to prohibit strike at the threshold. Section 22
provides that no person employed in a public utility service shall proceed on strike
unless the requirements o f clauses (a) to (d) o f sub-section (1) thereof are fulfilled.
The expression ‘public utility service’ is defined in Section 2(n) and indisputably
S t r ik e s , L ock - o u t s , G hera g and B undh 435
TFA\ does not fall within that expression. Section 23 next imposes a general restric
tion on declaring strikes in breach o f contract during pendency o f (i) conciliation
proceedings (before the Board o f Conciliation), (ii) proceedings before Labour
Court, Tribunal or National Tribunal, (iii) arbitration proceedings and (iv) during the
period o f operation o f any settlement or award. In the present case no proceedings
were pending before any o f the aforementioned fora nor was it contended that any
settlement or award touching these workmen was in operation during the strike
period and hence this provision too can have no application. Under Section 24 a
strike will be illegal only if it is commenced or declared in contravention o f Section
22 or 23 or is continued in contravention o f an order made under Section 10(3) or
lOA (4A) o f the I.D. Act. Except the above provisions, no other provision was
brought to our attention to support the contention that the strike was illegal. We,
therefore, reject this contention.
In the result all the writ petitions are allowed and the rule is made absolute in
each case to the extent indicated hereinafter. The management will prepare a list of
casual- daily rated workers who were its employee prior to the strike on January 21,
1987 in accordance with their seniority. If such a list does not exist, TFAI will
provide them work on the same basis on which they were given work prior to the
strike. After the seniority list is prepared TFAI will absorb 85 o f the seniormost
casual workers in regular employment pending fm'alisation o f the regularisation
scheme. TFAI will complete the regularisation process within a period o f 3 months
from today. TFAI will determine the number o f casual employee who would have
been employed had they not proceeded on strike. The wages payable to such
casual employees had they been employed for the period o f 6 months immediately
preceding the date o f this order will be worked out on the basis o f actual hbour
employed and the amount so worked out will be distributed amongst the ca'Sttal--
employees who report for work in the next three months after TFAI resumes work to
casual labour. Peon Umed Singh, Security Guard Bansi Dhar and Driver Raju will
also be reinstated in service forthwith. They too will be paid back wages (less
suspension allowance, if any) for a period o f 6 months immediately preceding this
order. So far as Driver Raju is concerned he will be absorbed in regular service as per
the offer made in the letter o f July 4,1986 disregarding the subsequent communica
tion o f July 25,1986. The Security Guard Vipti Singh will also be reinstated in service
but without back wages. In the case o f the 12 dismissed workers we are, or^he facts
placed before us, o f the view the circumstance did not exist for the exercise of
extraordinary powers under Rule 32 o f the Rules. The orders terminating the ser
vices o f the 12 union representatives are therefore set aside and they are ordered to
be reinstated in service forthwith with back wages covering a period o f 6 months
immediately preceding the date o f this order. They should be reinstated forthwith.
In view o f the above direction no further order is required on the C.M.P. TFAI will
pay Rs. 5000/- in all by way costs to the Union.
III. GHERAO
Gherao literally means “encircle” or ‘surround’. It is to industrialists a terrifyingly

powerful weapon-somewhat, perhaps, as is a hydrogen bomb to mankind at large.
A gherao occurs when the workmen, in order to force an employer to accept their
demands, surround his office or residence, or that o f his executive. They block
ingress and egress. They sometimes cut off electricity, telephones, even food and
water. A gherao is usually short; but may last some days.
A peaceful gherao involves crimes like wrongful restraint and criminal tres
pass. A violent gherao poses a threat to life and property too.
JAY ENGINEERING WORKS LTD. v. STATE OF WEST BENGAL

AIR 1968 Cal. 407
[Excerpts from the judgments o f the Court follow:]

Per Sinha, CJ.i On the 27th January 1967, at about 1 p.m. the employees [re
trenched by the management] along with 70 others blockaded the said corporation’s
premises, completely obstructing the passage o f personnel and goods, including
food stuffs for the barricaded persons inside, who were wrongfully confined therein.
The blockade was lifted at 3 a.m. on 28th January 1967 after police intervention. On
the 1st March 1967, the present Government in West Bengal came into office. On
2nd March, 1967 the retrenched workers together with other employees numbering
about 200 persons gheraoed the manager (petitioner No. 2) and other officers at the
office premises from 1 p.m. and the gherao continued for 33 hours, being lifted at 10
p.m. on 3rd March 1967. It is said that the said persons confined the manager, the
petitioner No. 2 and the other officers, namely, the petitioners Nos. 3 to 7, tampered
with the company’s property, spoiled the wall and continuously shouted insulting
and humiliating slogans against the confined persons. Supply o f food to those
confined persons was not permitted except for a nominal quantity at the will o f the
besiegers. Information was given to the police authorities at Hare Street Police
Station, but no action was taken.
On the 17th April, 1967 at 2 a.m. the said retrenched workers, together with
other employees numbering about 10010150 persons gheraoed the manager and
other officials at the said office and kept them under wrongful confinement. The
besiegers, trespassed into the office, tampered with property and shouted insulting
and humiliating slogans against the confined persons. Only a minimal amount of
food was allowed to be taken in, at the will o f the besiegers. Information was given
to the police but no action was taken. Subsequently, an application was made
before the Chief Presidency Magistrate, Calcutta under Section 100 o f the Criminal
Procedure Code, who ordered the officer-in-charge. Hare Street Police Station to
search and rescue the confined persons and produce them before him. The con-
fiped persons were accordingly rescued at about 10 p.m. on 18th April, 1967. Again
on 29th May 1967, the Manager and other officers were gheraoed and wrongfully
confined in the office for over 5 hours, from 10.30 a.m. to 3.30 p.m. Information was
given to the police but no action was taken.
The rule in this case was issued on 8th June 1967 and an interim injunction was
issued directing that no effect should be given to a circular issued by Government
dated 27th March 1967. It is the common case o f the petitioners in this series o f
gherao cases, that the primary reason for the total inaction o f the police, lies in the
fact that the State Government, through its Joint Secretary, in its Home and Political
Department, has issued two circulars as follows;
1. No. 513 P.C. Dt. 28th March 1967, addressed to all District Officers and the
Commissioner o f Police, Calcutta.
2. No. P-914 P.S. Dt. 12th June 1967, and it is by reason ofthese two circulars
that the police have been reduced to total inaction. These two circulars,
together with the Cabinet decisions upon which they are based, as also a
previous circular, beingMemo No. 138— P.S. Dt. 7th February, 1956 will be
considered presently. It will be appropriate to mention here that the learned
Advocate General, appearing for the State Government and other officials
has taken up a strictly proper attitude throughout the trial, in keeping with
the traditions o f his high office and has piade it clear that in a case o f such
public importance, he does not wish to indulge in petty technical objections
and will not withhold from the Court, any papers or documents that it wants.
I
Upon these facts the following questions 'have been raised :

1. What is a ‘gherao’?
2. Is ‘gherao’ as practiced in this case lawful ?
3. Are the circulars dated 22nd March 1967 and 12th June 1967 and/or the
decisions, if any, upon which they are based lawful o f competent ?
4. Did the respondents 6 and 7 fail to perform their legal duties either in obedi
ence to the said circulars or otherwise ?
5. To what relief are the petitioners entitled to ?
A ‘gherao’ is the physical blockade o f a target, either by encirclement or forc
ible occupation. The ‘target’ may be a place or a person or persons, usually the
managerial or supervisory staff o f an indusfrial establishment. The blockade may
be complete or partial. If it is accompanied by wrongful restraint, and/or'wrongfijl
confinement or accompanied by assault, criminal trespass, mischief to person or
property unlawful assembly and various other criminal offences, used as a coercive
measure to controllers o f industry to force them to submit to the demands o f the
blockaders, such a gherao is unconstitutional, that is to say violative o f the provi
sions o f the Constitution, and unlawful, that is to say, violative o f the laws o f the
land. In the instant case we are not concerned with a peaceful gherao but with a
gherao o f the latter kind.
A ‘gherao’ is not an offence as such mentioned in the Indian Penal Code. But
it is an act indulged by labour against the management and where it is accompanied
by confinement, restraint or other offences under the criminal law o f the land, the
fact that it is done by members o f a Trade Union, and used as an instrument o f
collective bargaining, gives rise to no special treatment or exemption from liability
under the law. All workmen, guilty o f wrongfully restraining any person belonging
to the management, or wrongfully confining him, during a gherao are guilty under
Section 339 or 340 o f the Indian Penal Code and have committed cognizable of
fences for which they are liable to be arrested without warrant and punishable with
simple imprisonment for a term which may extend to one month or with fine which
may extend to five hundred rupees or with both, for wrongful restraint and for
imprisonment o f either description for a term which may extend to one year or with
fine which may extend to one thousand rupees or both, for wrongful confinement,
where the confinement extends to three or more days the punishment is imprison
ment o f either description for a term which may extend to two years or with fine or
with both. Where the confinement is for ten or more days the punishment is impris
onment o f either description for a term which may extend to three years. There is a
further liability to fine. Where there is a concerted intention to commit an offence, it
amounts to criminal conspiracy under Section 120 A o f the Indian Penal Code and
is not saved by Section 17 o f the Trade Unions Act, 1926.
Where there is a gherao, accompanied by the commission o f an offence, e.g.
wrongflil confinement, the executive government has no power to give directions,
pass orders or issue circulars to the police or, the magistracy to the effect that the
procedure to be followed by them should be in any way different from or at variance
with what has been laid down by the Criminal Procedure Code or the Police Acts or
any other law governing such procedure.
A direction that, in the case o f gherao with wrongful confinement which is a
cognizable offence under Section 340 o f the Indian Penal Code, no action should be
taken by the police except after obtaining direction from the labour minister, is
utterly unlawful and not warranted by the law. The labour minister has no power or
authority under the law, to give directions to the Police before taking action where
such an offence has been committed or is said to have been committed. The action
that the police or magistrate shall take under such circumstances is provided for in
the Criminal Procedure Code and the relative Police Acts. By executive fiat such
procedure cannot be altered or supplemented or varied.
What is legitimate trade union law, is contained in the Trade Unions Act 1926.
Neither Section 17 or 18 o f the said Act exempts a person who commits an offence
under the Criminal Laws, save and except under Section 120 A o f the Indian Penal
Code under circumstances mentioned in Section 17 from being proceeded against
according to law.
S tr ik e s , L o c k -o u ts , G h e r a o a n d B u n d h 4j y
Therg is no special procedure that should be adopted when an offence is

committed by members o f a Trade Union, even in an attempted enforcement o f their
power o f collective bargaining. The procedure applicable is the ordinary procedure
to be adopted in the case o f such infraction outside the Trade Unions Act. The
executive government has no power, jurisdiction or authority to add to or detract
from such laws or give executive directions that the procedure should consist o f
any kind or special investigation, which must be done, at a stage not contemplated
by the Criminal Procedure Code.
The two circulars dated 27th March 1967 and 12th June 1967, mentioned above
are contrary to law, without jurisdiction and must be declared to be invalid and be
quashed.
Before I conclude, I have to relate with great regret and a feeling o f horror,
certain things which took place in this Court while we were actually hearing the
gherao cases. While hearing arguments to the effect that gheraos did not exist in
West Bengal, or if they existed at all, were peacefiil and non-violent, we suddenly
witnessed with astonishment the sight o f a gherao taking place in the High Court
itself Violent crowds invaded the precincts o f the court and a band o f organised
demonstrators stood underneath our windows, shouting deprecatory slogans to
the effect that the Constitution should be scrapped, that gheraos will continue
whether the court decrees it or not and various other slogans which need not be
repeated here. Things came to such a pass that 1 had to ddjoum the court and to get
in touch with the Chief Minister and to tell him that if this sort o f thing continued I
would close the courts sine die. I record with pleasure that the Chief Minister at
once took steps to protect the courts from such unseemly invasions but it has been
found necessary to keep a large posse o f police to p?^vent another breach o f the
peace. Orders under Section 144 had to be promulgated in the roads surrounding
the High Court. Such a thing has never happened in this Court during its hundred
years o f existence and I do not think it has happened anywhere else in India. We
have, therefore, had a visual demonstration o f what a gherao means and what it can
achieve. If a group o f militant trade unionists could dare to terrorize the courts in
this fashion, it can well be as imagined as to the depths to which we have been
degraded and to the utter helplessness into which industries have been thrown, as
a result o f these lawless activities....
Per Banerjee, J.; For the sake o f convenience, we decided that thfe ,following
points should be specifically dealt with in this Rule, namely,
1. What is Gherao ?
2. Is Gherao, as practiced in this case, lawful ?
3. Are the circulars dated 27th March 1967 and 12th June 1967 and/or the
decisions, if any, upon which they are based lawfiil ?
4. Did the respondents Nos. 6 and 7 fail to perform their legal duties either in
obedience to the circulars or otherwise ?
5. To what reliefs are the petitioners entitled ?

My answers to the above points are herein below set out:
1. Etymologically, “Gherao” means encirclement. Encirclement by a crowd may
be due to various reasons, say for example, there may be encirclement o f a
popular leader by an admiring crowd, the leader himself enjoying this form
o f demonstration. Encirclement may also be made by a hostile crowd say o f
workmen, who elect wrongftjlly to confine the management, so as to coerce
them to concede to their demands. “Gherao” as such, that is to say simple
encirclement, is no offence under the Criminal Law o f this country. But a
“Gherao” accompanied by violence and diverseforms o f crimes resulting in
wrongful confinement or wrongful restraint o f the encircled person or per
sons, is a criminal activity not because it is encirclement but it is encircle
ment “with more”. The form o f “Gherao” that I have to consider is encircle
ment “with more”, which is criminal and punishable under the law.
2. The Gherao as practiced in this case, I find on the materials on the record,
was unlawful.
3. The circulars, dated March 27 and June 12,1967, and the Cabinet decisions
upon which they are based are unlawful. There is no legislative authority
behind the executive action. The action was discriminatory in so far as it
denied to wrongfully confine or wrongfully restrained managerial staff o f
industrial establishments, prompt police intervention as provided for by the
law o f the land. In so doing the executive violated its duties under Article
256 o f the Constitution.
4. The respondents police officers failed to perform their legal duties in trying
to obey the impugned circulars.
5. I agree with the form o f relief indicated inthejudgmentbymy Lordthe Chief
Justice and need not repeat the same. This Rule should be made absolute to
the extent indicated in the judgment o f His Lordship the Chief Justice and I
express my agreement with him.
Per Ray, J.: I agree with the judgment and order passed by my Lord the Chief
Justice.
IV. BUNDH
BHARAT KUMAR K. PALICHA AND ANOTHER v. STATE OF

KERALA AND OTHERS
AIR 1997 Ker 291
[ Several petitions were filed by different group o f society to declare “bundh” as

unconstitutional. The original petitions sought the relief o f a declaration that the
calling for and the holding.of “bundh” is unconstitutional and is hence illegal. The
second petition is filed by two citizens who are generally carrying on their avoca
tion in Cochin. The third petition is filed by the various Chambers o f Commerce in
the State.- The fourth petition is sought for declaration o f bundh as especially
violative o f articles 19 and 21 o f the Constitution and also in contravention o f the
Directive principles o f State Policy embodied in the Constitution and the Funda
mental Duties enumerated in the Constitution. Among the consequential reliefs
sought for in the original petitions, a declaration is also sought that the calling for
and holding a bundh is also a penal offence under the Indian Penal Code and is
liable to be declared as such. In the fourth petition in addition to the State and the
Director General o f Police, five registered all India political parties are also imp-
leaded as respondents. The respondents in the third petition are the political par
ties except that the Indian Union Muslim League is also impleaded therein as a
respondent. The President o f the National Organisation for Consumer Eduction
and Research was subsequently impleaded as an additional respondent in the
original petition. The judgment o f the Full. Bench o f the court delivered by
Balasubramanyan J. follow;]
Before proceeding to consider the constitutional issues sought to be pro
jected before us, we think that it is necessary to understand what is a “bundh”.
“Bundh” is a Hindi word meaning “closed” or “locked”. The expression therefore
conveys an idea that everything is to be blocked oc closed. Therefore, when the
organisers of a bundh, call for a bundh, they clearly express their intention that they
expect all activities to come to a standstill on the day o f the bundh. A call for a
bundh is obviously distinct and different from the call for a general strike or the call
for a hartal. The intention o f the callers o f the bundh is to ensure that no activity
either public or private is carried on that day. It is also clear from their further
statements, sometimes made, that the newspapers, hospitals and the milk supplyjs
excluded from the bundh. This clarification obviously implies that otherwise the
intention is that those services are also to be affected. If the intention is to prevent
the milk supply, prevent the distribution of newspapers, prevent people going to
the hospitals for treatment, prevent the people from traveling and to generally
prevent them from attending to their work either in service o f the State or in their
own interest, that obviously means that it amounts to a negation o f the rights o f the
citizens to enjoy their natural rights their fiindamental freedoms an^ the exercise of
their fiindamental rights. It is no doubt true that while calling for a bundh it is not
also announced that any citizen not participating in the bundh will be physically
prevented or attacked. But experience has shown that when any attempt is made
either to ply vehicles on the day of the bundh or to attend to one’s own work, or to.
open one’s shop to carry on trade, it has resulted in the concerned person being
threatened with consequences if he took out his vehicle, if he went for his work or
if he kept his shop open. The leaders o f the political parties who call for the bundh
cannot escape by saying that they are not directly telling the citizens not to do
these things under threat but if some o f the participants in the bundh indulge in
such activities, they cannot be held responsible. Obviously, they can with reason
442 L abo u r L aw and L a b o u r R e lations
able intelligence foresee the consequences o f their action in calling for the bundh.
Nor can they pretend that the consequences that arise out o f the calling for a
bundh, is too remote or does not have reasonable proximity to the call they have
made. Learned counsel appearing for the political parties contended that this Court
cannot take note o f what actually happens when a bundh is called, but this Court
can only go by the call for the bundh itself which does not involve the call for
violence or forceful prevention o f people from going about their avocation. We do
not think that we would be justified in adopting such an ostrich like policy. We
cannot ignore the reality o f what is involved when a bundh is called.
It is true that there is no legislative defmition o f the expression ‘bundh’ and

such a definition could not be tested in the crucible o f constitutionality. But does
the absence o f a defmition deprive the citizen o f a right to approach this Court to
seek relief against the bundh if he is able to establish before the Court that his
fundamental rights are curtailed or destroyed why the calling o f and the holding o f
a bundh? When Article, 19 (1) o f the Constitution guarantees to a citizen the
fundamental rights referred to therein and when Article 21 confers a right on any
person — not necessarily a citizen — not to be deprived o f his life or personal-
liberty except according to procedure established by law. Would it be proper for the
court to throw up its hands in despair on the ground that in the absence o f any law
curtailing such rights, it cannot test the constitutional o f the action? We think not.
When properly understood, the calling o f a bundh entails the restriction o f the free
movement o f the citizen and his right to carry on his avocation and if the Legislature
does not make any law either prohibiting it or curtailing it or regulating it, we think.
That it is the duty o f the court to step in to protect the rights o f the citizen so as to
ensure that the freedoms available to him are not curtailed by any person or any
political organisation. The way in this respect to the courts has been shown by the
Supreme Court in Bandhua Mukti Morcha v. Union o f India [(1984) 3 SCC 161:1984
s e e (L&S) 389: AIR 1984 SCC 802].
It is argued on behalf o f the respondents that a bundh could be peacefril or
violent and even if the court were to act. It could act only to curtail violent bundhs
and not peaceful bundhs. It is contended that the court cannot presume or generalise
that the calling o f a bundh always entails actual violence or the threat o f violence
for not participating in or acquiescing in the bundh. The decision in Kameshwar
Prasadw. State o f Bihar, M K 1962 SC 1166 : (1962) LLJ2941 is referred to in that
context. This theoretical aspect expounded by the counsel for the respondents
does not appeal to us especially since as understood in our country and certainly
in our State, the calling for a bimdh is clearly different from a call for a general strike
or a hartal. We have already noticed that a call for a bundh holds out a warning to
the citizen that if he were to go out for his work or to open his shop, he would be
prevented and his attempt to take his vehicle on to the road will also be dealt with.
It is true that theoretically it is for the State to control any possible violence or to
ensure that a bundh is not accompanied by violence. But our present set-up, the
reluctance and sometimes the political subservience o f the law enforcing agencies
and the absence o f political will exhibited by those in power at the relevant time, has
really led to a situation where there is no effective attempt made by the law- enforc
ing agencies either to prevent violence or to ensure that those citizens who do not
want to participate in the bundh are given the opportunity to exercise their right to
work, their right to trade or their right to study. We cannot also ignore the increas
ing frequency in the calling, holding and enforcing o f the bundhs in the State and
the destruction o f public and private property In the face o f this reality, we think
that when we consider the impact o f a bundh on the freedom o f a citizen, we are not
merely theorising but are only taking note o f what happens around us when a
bundh is called and a citizen attempts either to defy it or seeks to ignore it. We are
not in a position to agree with counsel for the respondents that there are no suffi
cient allegations either in OP 7551 o f 1994 or in OP 12469 o f 1995, which would
enable us to come to such a conclusion. In fact, the uncontroverted allegations in
OP 12469 o f 1995 are specific and are also supported by some newspaper clippings
which though could not be relied on as primary material could be taken note o f as
supporting material for the allegations in the original petition.
No political party or organisation can claim that it is entitled to paralyse the
industry and commerce in the entire State or nation and is entitled to prevent the
citizens not in sympathy with its viewpoint, from exercising their fundamental rights
from performing their duties for their own benefit or for the benefit of the State or
the nation. Such a claim would be unreasonable and could not be accepted as a
legitimate exercise o f a fundamental right by a political party or those comprising it.
The claini for relief by the petitioners in these original petitions will have to be
considered in this background.
The contention that no relief can he granted against the political parties in
these proceedings under Article 226 o f the constitution cannot be accepted in its
entirety. As indicated already, this Court has ample jurisdiction to grant a declara
tory relief to the petitioners in the presence o f the political party respondents. This
is all the more so since the case o f the petitioners is based on their fiindamental
rights guaranteed by the Constitution. The State has not taken any sêps to control
or regulate the bundhs. The stand adopted by the Advocate General is that the
Court cannot compel the State or the Legislature to issue orders or make law in that
regard. As we find that organised bodies or associations or registered ^ litica l
parties, by their act o f calling and holding bundhs, trample upon the rights o f the
citizens o f the country protected by the Constitution, we are o f the view that this
Court has sufficient jurisdiction to declare that the calling o f a “bundh” and the
holding o f it is unconstitutional especially since, it is undoubted that the holding o f
“bundhs” are not in the interests o f the nation, but tend to retard the progress o f
the nation by leading to national loss o f production. We cannot also ignore the
destruction o f public and private property when a bundh is enforced by the politi
444 L a b o u r L aw and L a b o u r R e l a t io n s
cal parties or other organisations We are inclined to the view that the political
parties and the organisations which call for such bundhs and enforce them are
really liable to compensate the Government, the public and the private citizen for
the loss suffered by them for such destruction. The State cannot shirk its responsi
bility o f taking steps to recoup and o f recouping the loss from the sponsors and
organisers o f such bundhs. We think that these assets justify our intervention
under Article 226 o f the Constitution....
COMMUNIST PARTY OF INDIA (M) v. BHARAT KUMAR

(1998)1 s e e 201
[Excerpts from the order o f the Supreme Court passed in an appeal filed by commu
nist party against the decision o f the Kerala High Court in Bharat Kumar Palicha
v. State o f Kerala follow:]
On a perusal o f the impugned judgment o f the High Court, referring to which
learned counsel for the appellant pointed out certain portions, particularly in paras
12, 13, 17 and 18 including the operative part in support o f their submissions, we
find that the judgment does not call for any interference. We are satisfied that the
distinction drawn by the High Court between a “Bundh” and a call for general strike
or “Hartal” is well made out with reference to the effect o f a “Bundh” on the
fijndamental rights o f other citizens. There cannot be any doubt that the fundamen
tal rights o f the people as a whole cannot be subservient to the claim o f fundamen
tal right o f an individual or only a section o f the people. It is on the basis o f this
distinction that the High Court has rightly concluded that there cannot be any right
to call or enforce a “Bundh” which interferes with the exercise o f the fundamental
freedoms o f other citizens, in addition to causing national loss in many ways. We
may also add that the reasoning given-by the High Court,, particularly those in
paragraphs 12,13 and 17 for the ultimate conclusion and directions in paragraph 18
is correct with which we are in agreement We may also observe that the High Court
has drawn a very appropriate distinction between a “Bundh ” on the one hand and
a call for general strike or “Hartal on the other. We are in agreement with the view
taken by the High Courts.
The apf)eals are dismissed accordingly. No costs.

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PARTVI

STRIKES, LOCK-OUTS, GHERAO AND BUNDH

I. STRIKES AND LOCK-OUTS

A strike, according to section 2 (q) o f the Industrial Disputes Act, is a cessa­

PUNJAB NATIONAL BANK v. THEIR EMPLOYEES

would no doubt be a strike under S. 2 (q)....

sions were reversed by the Supreme Court by a majority judgment. According to

INDIAGENERALNAVIGATION AND RAILWAY CO. LTD. v. THEIR WORKMEN

[The company carries on a business o f inland water transport. It maintains a huge

I .e ., b y departm ental, or domestic enquiry. E ds.

DELHI ADMINISTRATION v. WORKMEN OF EDWARD KEVENTERS

[Excerpts from the judgment o f Krishna Iyer J. follow ;]

CHEMICALS AND FIBRES OF INDIALTD. v. D.G BHOIR

“industrial dispute” in view o f the provision of section 2A o f the Industrial Dis­

1. Comment on the following observations o f the Supreme Court in Gujarat

CHANDRAMALAI ESTATE v. ITS, WORKMEN

THE STATESMAN LTD. v. THEIR WORKMEN

strike and lock-out. Where,, however, a strike is unjustified and is followed by a

CROMPTON GREAVES LIMITED v. THEIR WORKMEN

[Certain workmen went on a strike in protest o f management’s order o f retrench­

U.P. STATE BRIDGE CORPN. LTD. v. U.P. RAJYA SETU NIGAM S.

otherwise it would be construed as abandonment; The workmen failed to report

1. Whether issuance o f notice in newspaper complies with the principles o f

KAIRBETTA ESTATE, KOTAGIRI v. RAJAMANICKAM

“Such closing, suspension or refusal occurs in consequence o f a dispute and is

LAXMI DEVI SUGAR MILLS LTD. v. RAM SWARUP

FEROZ DIN V. STATE OF WEST BENGAL

Under the provisions o f S. 22, a lockout cannot be declared in a public utility

II. RIGHT TO STRIKE

ALL INDIA BANK EMPLOYEES ASSOCL\TION v

the fulfillment o f every object o f an association so formed is also a protected right,

rights and so on, lead to an almost grotesque result....

KAMESHWAR PRASAD v. STATE OF BIHAR

TK. RANGARAJAN v. GOVERNMENT OF TAMIL NADU'

At the outset, it is to be reiterated that under Article 226 o f the Constitution,

'"Strikes: No Government servant shall engage himself in strike or in incite­

the representation o f the employees without taking into consideration Section 7 o f

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Gherao literally means “encircle” or ‘surround’. It is to industrialists a terrifyingly

JAY ENGINEERING WORKS LTD. v. STATE OF WEST BENGAL

[Excerpts from the judgments o f the Court follow:]

Upon these facts the following questions 'have been raised :

Therg is no special procedure that should be adopted when an offence is

5. To what reliefs are the petitioners entitled ?

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[ Several petitions were filed by different group o f society to declare “bundh” as

It is true that there is no legislative defmition o f the expression ‘bundh’ and

COMMUNIST PARTY OF INDIA (M) v. BHARAT KUMAR

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