TOPIC-THE IMPACT OF ILLEGAL AND UNJUSTIFIES USE OF

INSTRUMENTS OF ECONOMIC COERCION BY THE LABOUR AND

CAPITAL: A CRITICAL ANALYSIS FOR INDIAN LAW

Labour law -II

Assignment- II

Submitted by- Submitted to-

Rashi Jain 1713479 Mr. Pramod Kumar Sharma

Sunidhi Shah (1713493) (faculty of law)

-BBA.LLB 3rd Year

Akanksha Singh (1713504)

Prakshi Kushwah (1713531)

-B.Com LLB 3RD Year

BANASTHALI VIDYAPEETH (2019-2020)

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 ACKNOWLEDGEMENT

We will like to express our special thanks to our labour law sir for showing his support and
guiding us to complete our assignment on labour law; enforcement and implementation

We would also thank the faculty for providing usual the facilities so that we are able to
complete our given assignment in the time prescribed.

Date;7 MAR 2020

Prakshi Kushwah

Rashi jain

Sunidhi shah

Akanksha singh

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 INDEX

INTRODUCTION-12

TYPES OF STRIKE-6

RIGHT TO STRIKE -11

RIGHT TO LOCKOUT-12

JUSTIFIED STRIKE AND UNJUSTIFIED STRIKE -13

JUSTIFIED AND UNJUSTIFIED LOCKOUT-14

CONCLUSION-22-26

REFRENCES

https://indiankanoon.org/doc/1849142/

https://indiankanoon.org/doc/158779356/

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HE IMPACT OF ILLEGAL AND UNJUSTIFIES USE OF
INSTRUMENTS OF ECONOMIC COERCION BY THE LABOUR AND
CAPITAL: A CRITICAL ANALYSIS FOR INDIAN LAW
INTRODUCTION

STRIKE

Strike signifies stoppage of work by the workmen to pressurize their employers to accept
their demands. It is an instrument of economic coercion in the hands of workmen to ventilate
their grievances against their employer pertaining to service conditions the amelioration to
which loom large in their eyes. legally, it is defined as cessation of work by a body of persons
employed in an industry acting in combination or a concerted refusal of any number of
persons who are or who have been employed in and industry to continue to work or to accept
employment or a refusal under a common understanding of any number of persons who are
or have been employed in an industry to continue to work or accept the employment. It
follows that the work men must have been employed in an industry. As a part of a conceded
action, they must abstain from work to see that their employer concedes to their demands.
Mere cessation of work doesn’t amount to strike unless it is established that it is a means
adopted by the workmen under a common understanding for the enforcement of an industrial
demand. The duration of cessation is not contemplated under the definition that it is
immaterial. Cessation of work, howsoever for a short period even for a fraction of second is
suffice provided it fulfils other essential ingredients. Meer abstentions from work will not
tract the provision.

In Standard vaccum oil company madras VS gunasheelan, the workmen intending to

celebrate made a requested the employer to declare a holiday. They were preparing o work on
the Sunday on the immediately sucking Sunday. But the employer refused to declare made a
as a holiday. Dissatisfied by that decision the workmen en bolc applied for casual leave and
abstained from work. It was held that such in block casual leave did not constituted strike. It
is evident from the facts that there was a cessation of work under a concreted group action.
The purpose was not enforcement of any industrial demand but to enable them to celebrate
May Day in this regard the tribunal observed.

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“In making applications for leave, they were submitting themselves to the authority and
control of the company. They were expecting that the company would act reasonably and
would grant them the holiday in view of the past precedents.”

It is obvious from the above observations that submission to the authority and control of the
employer militates with the idea of concerted group action in violation of the authority of the
authority of an employer which constitutes the sine qua non of the concept of strike.
Evidently then the conduct of the workmen in the above case cannot be characterized as
strike except at a loss to understand the very notion of strike.

In Buckingham and carnatic mills ltd VS their workmen, The apex court took different
position. In that case the company had granted leave with pay to the day shift workmen to
witness solar eclipse. The afternoon shift workmen who come to work at 3 PM insisted the
company to extend them also leave with pay. On refusal, they want applied for leave en bloc
and abstained from work. On appeal, the Apex Court restoring the decision of the Tribunal
observed that was there was cessation of work consequent upon a concerted action, the
conduct of the workmen amounted to strike.

The facts of the above case squarely fit into the concept of strike. Mere abstention from work
under a common undertaking would not amount to strike unless it is used as a pressure tactic
to pressurize the employer to budge to the demands of the workmen, there is no substantial
difference between two case abstentions from work has been for May Day celebration and in
the other, to view the solar eclipse. The only difference is that in the latter case, the day shift
workmen had been granted leave with pay but not the afternoon shift workmen. Such
discrimination cannot be pressed into service to alter the legally accepted notion of strike.

Group action for any reason whatsoever culminating in cessation of work cannot be styled as
strike unless the latter is the direct purpose of the former. The inference is that any cessation
of work which is incidental to such direct purpose does not answer the description of strike.
Accordingly, when workmen run away from the place of work to protect themselves from
such natural calamity though results in cessation of work, such conduct does not go well with
the description of a strike.

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KINDS OF STRIKE

1) STAY-IN STRIKE, SIT-DOWN STRIKE, PEN DOWN STRIKE OR TOOL

DOWN STRIKE- All these expressions are synonyms with a common thread a cessation
work running through all of them but with the a variation in the modalities adopted. In stay in
strike the workmen enter into the workplace and stay without doing any work. Sit down strike
signifies workmen sitting down at place of work abstaining from work. Tool down and pen
down strike connotes that the workmen after entering into the place of work put down their
tools or pens as the case may be depending upon devices what they regularly use to discharge
their duties under the contract of employment. So in case of bank employees using
instruments, it can be tool down strike.

In Punjab national bank ltd VS their workmen, the bank employees resorted to pen down
strike at the instance of the union as a protest against the suspension of a fellow employee
who absented from duty defying the decision of the management who declined to grant him
leave. Inter-alia the question before court was whether pen down strike amounted to strike
under the industrial disputes Act, 1947.

“Refusal under common understanding to continue work is a strike and in pursuance of such
common understanding, the employees entered the premises and refused to take their pens in
their hands that would no doubt be a strike”.

An analogical extension of the above observation to other similar forms of pressure tactics
like stay-in, sit-down and tools down bring them into the fold of the definition of a strike as
the difference is only that of form and not of substance.

Stay-in, stay-down, pen-down and tool-down strike though gives rise to civil trespass it
cannot be a justification for terminating the workmen from service. It cannot be a justification
for terminating the workmen from service. It cannot defeat the claim of workmen for re-
instatement. Nor they give rise to criminal trespass as the very purpose of entering into the
premises is not to annoy or insult the superior officers even though they get annoyed and
insulted when they see the workmen sticking on their seats sitting idle.

a) HUNGER STRIKE- A glance of the words manifests that the term ‘strike’ is
qualified by an adjective viz. hunger it follows that the modus-operandi is fasting by
the workmen under a common understanding superadded by some other persons, for
the purpose of pressing their demands leading to cessation of work. Fasting must be
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 resorted to as a pressure tactic in protest to refusal by the employer to accept their
demands.
b) GENERAL SRTIKE- It is a kind of strike where workmen come together for a
common cause and abstain from work as a mark of protest, depriving thereof their
labour to run the industry. It is a form of collective action taken recourse by the
workmen in the pursuit of settlement of an industrial dispute.
c) SYMPATHETIC STRIKE- this kind of strike is called as a mark of sympathy to
others for indirectly aiding them that striking workmen have no demand or grievance
of their own. The strike so called has no direct nexus with the advancement of the
interest of the strikes. It does not fit into the description of strike as there is no
interference with the business of the employer for which he is entitled to take
disciplinary action against the employees.

OTHER PRESSURE TACTICS IN THE ARMOURY OF WORKMEN

1. GO-SLOW STRIKE:-It is a misnomer. By usage it has obtained that nomenclature.

In go –slow tactics workmen work but slowly without any cessation of work that it
does not answer the nomenclature of strike the workmen pretended as if they are fully
employed and claim wages accordingly, in breach of the contract of employment. The
plants are run at a lower speed, which causes serious damage to them that outright
stopping of plants does not cause such damage. It is precarious position of an
employer that he is exposed to double hardship by way of both damage to the plant
and reduced output of products. In effect, it is legally considered as a serious type of
misconduct.
In Bharath sugar mills Ltd. VS jai Singh, the supreme court observed “go slow
which is picturesque description of deliberate delaying of production by workmen
pretending to be engaged in the factory is one of the most pernicious practices that
discontented or disgruntled workmen some time resort to. It would not be for wrong
to call this dishonest. For while they are delaying production and thereby reducing the
output, the workmen claim to have remained employed and thus to be entitled to full
wages. Apart from this also, go slow is likely to be much more harmful than total
cessation of work by strike. For while during a strike much of the machinery can be
fully turned off, during the go-slow, the machinery parts. For all these reasons, go-
slow has always been considered a serious type of misconduct.”
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 It is evident from the above observation that go-slow is very grave misconduct of a
covert nature leading to a more serious breach of contract of employment.
Consequently, it insidiously undermines discipline as a crude device of defying the
norms of work. It has never received the stamp of being a legitimate weapon of
workmen to ventilate their grievances against the employer.

2. LIGHTENING OR WILD CAT STRIKE- Strike generally in the aftermath of

failure of collective bargaining. Lightning or wild cat strike signifying a sudden strike
where strike is antecedent to bargaining is diametrically opposed to the above
proposition. The workmen call on strike suddenly without any notice. Such strikes are
prohibited in public utility service undertaking where mandatory notice is insisted for.
Though they are not prohibited in non-public utility service undertaking in question
arises whether it can be considered an unjustified act depriving the employer an
opportunity of being heard is given. On the other hand, the workmen failing to
exhaust all the possible remedies plunging into a serious action like a lightning strike
close the doors of the possible amicable settlement of the issue abruptly. The judicial
opinion regarding the legal position of lightening strike is divided.
In Swami Mills VS Their Workmen, The Tribunal laid down a conflicting position
by holding that such strikes are neither illegal nor justified but cannot be considered
as quite proper.
In Sadul Textile Mills VS Their Workmen, The Rajasthan High Court said relaxing
the rigidity created by the above decision held that such strikes could not be justified
at all and the striking workmen were summarily liable to be dismissed as their act
amounted to misconduct under the Standing Order. It is submitted that this decision
has laid down a sound proposition of law in the light of the reasons pointed out above.
3. WORK TO RULE- It is a concerted action on the part of the workmen who work in
accordance with strict adherence to the rule by putting into oblivion anything which is
not mentioned therein. It results in a callous approach towards the very spirit of the
rule which focuses on the harmonization of work and maximization of product. The
tactics of work to rule gratifies discontentment of workmen towards their employer
that they will have that mental satisfaction of teaching a lesson to their employer. But
that contentment is not long lasting. Being transient and non-enduring, along with the
employer, they fall into their self-created trap in the long run. The worst suffers will

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 be the workmen as the employers are relatively more resistant to ill effects of
reduction in production
4. GHERAO-The term gherao etymologically signifies “encirclement”. The target of
encirclement is the managerial personal that the workmen surrounded them in such a
way that egress ‘from’ and ‘to’ are blocked accompanied at times with offences like
criminal intimidation and assault they are neither allowed to consume food nor even
to attend natures call though the workmen simply encircle the premises of managerial
staff without doing anything, ipso facto it culminates in perpetration of offences of
wrongful confinement and wrongful restrain.
5. PICKETING-It is the form of protest by group of people called as picketers who
congregate outside a place of work or an event in order to dissuade others from going
in. It is resorted to draw public attention to a cause. It is the common tactic used by
the trade unions during strikes to prevent dissident members of the union or workmen
who are not members of any union from working.
In Vimal Kishore Malhotra VS State of Uttar Pradesh, Some workers of Kanpur
Textile Mills called on a strike which spanned for several weeks. It was proved that
the petitioner in the course of picketing uttered the following words to the strikers
directed against the non-strikers “these men they are rebels. They will not listen to
verbal persuasions until their hands and feet are broken. The court concluded that
these words amounted to criminal intimidation under Section 506 of IPC.

LOCKOUT

It is an antithesis of strike. It is a missile used by the employer by way of closing the place of
employment so as to make the workmen to retreat from their demands and come to terms
with him. The employees repose confidence in the fact that the unemployment consequent
upon the closing of the factory/industry will have a strong relenting influence on the
workmen that they eventually cannot help but to submit to the will of the employer.

It is legally defined to mean, “The temporary closing of a place of employment or the

suspension of work, or the refusal by an employer to continue to employ any number of
persons employed by him”.

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The above definition indicates that permanent closure of an undertaking does not constitute
lockout which signifies only a temporary closure of the place of employment, it is further
made categorical by the words “suspension of work” which manifests its temporary nature.
The last chunk of the definition must be read ejusdem generis. In toto, the quintessence of the
definition is a situation of temporary unemployment brought about by a positive act of the
employer. Even though the definition is silent about the reason behind such temporary
unemployment occasioned by the employer, the available literature on the subject suggests
that it is coercive measure employed by the employer to see that his workmen accept his
viewpoint or abandon their employment demands.

It is obvious from the above discussion that a lockout cannot be declared for any reasons
whatsoever. Refusal to give employment does not encompass all situations that bring about
unemployment. Accordingly it was held that discharge does not mount to lockout and so does
dismissal. However, an employer is permitted to temporarily close down the place of
employment for security reasons.

In Kairbetta Estate Kotagiri vs. Raja Manickam, the workmen had violently attacked the
manager of the estate. Some persons employed in another division were also threatened. They
expressed their liability to work as their lives were in danger. They complained threats of
murder. Taking cognizance of their appalling situation the company closed that division as
measures of security until further notice. It was held that circumstances of the case obviously
justified lockout. The interference of the ratio of the case is that an employer can declare
lockout as a measure of security. It marks a departure from the traditional connotation of
lockout as described above. Adherence to formalism and strict letter of law would put the
spirit of law into oblivion exposing the employer to undue hardship. The decision I n the
above case upholds the spirit of law to do justice to the employers too. It should be noted that
otherwise no persons would come forward to undertake an industrial activity that sufferer
would be the society at large and especially the persons who otherwise would have been
employed to out their daily bread and butter. Refusal to give employment to any number of
persons by an employer as a part of pressure tactics amounts to lockout. The term persons
imply refusal to give employment to a single workman does not fall within the purview of
lockout.

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RIGHT TO STRIKE

Right to form trade unions is a fundamental right. But the concomitant right to strike and
collective bargaining are not fundamental rights.

In All India Bank Employees Association VS National Industrial Tribunal, in regard to

upper views Supreme Court observed that, “ it is one thing to interpret each of the freedoms
guaranteed by the several articles in Part III in a fair and liberal sense; it is quite another thing
to read each guaranteed right as involving or including concomitant rights necessary to
achieve the object which might be supposed to underlie the grant of each of those rights, for
that constructions would by a series of expanding concentric circles in the shapes of rights
concomitant to concomitant rights and so on, lead to an almost grotesque result.”

Right to workmen to call on a strike, though not a fundamental right, it is impliedly

recognized as a statutory right under the ID Act. But the right of workmen to go on strike is
circumscribed by the prohibitions contemplated therein for the application of which industrial
undertakings are bifurcated as public utility and non- public utility services undertakings. A
workman who is employed in any industrial establishments shall not go on strike in breach of
the contract of employment during the pendency of conciliation proceedings before a board
and within seven days of conclusion of such proceedings, during the pendency of any
proceedings before a labour court, tribunal or national tribunal and within two months of the
conclusion of such proceedings, during the pendency of any arbitration proceedings before an
arbitrator and within two months after the conclusion of such proceedings, where a
notification has been issued under the act or during the operation of any settlement or award
with respect to any matters covered therein.

The term ‘any industrial establishment’ implies both public utilities service and non- public
utility service undertakings. In effect, the above prohibitions are applicable to all the
undertakings. Additionally, certain other restrictions are imposed on public utility service
undertakings. Accordingly a workman employed in a public utility services undertaking shall
not go on strike in breach of contract without giving notice within six weeks before striking,
within fourteen days of such notice, before the date of strike specified in such notice or
during the pendency of any conciliation proceedings before a conciliation officer and within
seven days after conclusion of such proceedings.

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On a peripheral reading of the above discussion, it appears on fulfilment of those conditions,
workmen are free to go on strike. But on a careful scanning of the provisions of the ID act in
it’s entirely makes it clear that the privilege which is given by one hand is snatched by the
other even without the knowledge of the workmen. The appropriate government may at any
time on apprehension or existence of an industrial dispute, may refer the matter to the
adjudicating bodies. On reference, the appropriate government may prohibit the continuance
of any strike or lockout.

RIGHT TO LOCKOUT

The Constitution guarantees every citizen a fundamental right to carry on any occupation,
trade or business subject to the qualification of reasonable restrictions in the national interest.
The crucial question is whether an employer can claim right to lockout as a fundamental
right. No fundamental right is absolute. It is subject to reasonable restrictions which are
envisaged in the AD act itself. In effect, no employer can claim right to lockout as a
fundamental right.

In A.P Electrical Corporation vs. Its staff Union, In above regard the Andhra Pradesh HC
observed that “the right to lockout is now controlled by sections 10(30), 10 (A), 22 and 23 of
the act and the penal action is section 24. If it is held that the petitioner has a fundamental
right to declare lockout, then naturally the provision referred to earlier would be rendered
otiose”

If follows from the observed that right to lockout is only a statutory right this can be inferred
from the scheme of the ID Act. An employer can declare lockout subject to the restriction
which are discussed in the context of strike. But the right to lockout also rests on the sweet
will of the appropriate government for reasons discussed above in the context of strike.

It is not out of context here to link on legal and illegal strikes and lockouts and justified and
unjustified strikes and lockouts which are the offspring of judicial decisions, as they have an
impact on the right of workmen to claim wages for the period of strikes and lockouts,
alternatively the right of an employer to refuse to pay wages for the period of strikes and
lockouts

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LEGAL AND ILLEGAL STRIKES AND LOCKOUTS

A strike or lockout becomes illegal when it is called on or declared as the case may be, in
contravention of the restriction discussed above or continued in contravention of an order of
the appropriate government prohibiting it. Therefore the inference is that a strike or lockout
which is called on or declared in compliance with the provision of the ID Act is legal. A
strike or lockout existing at the time of reference of disputes to the adjudicating bodies ipso
facto does not become illegal strike is legal. Logically, a strike which is declared in
pursuance of an illegal lockout becomes legal. Logically, a strike which is declared in
pursuance of an illegal lockout becomes legal.

The aftermath of strikes and lockouts gives rise to two very consequential questions
pertaining to continuation of employment and wages for the period of strike and lockout ,
which if remains unresolved causes further unrest aggravating the already strained labour and
capital relationship. Tacking stock of the situation, the courts and the tribunals have evolved
the concept of justified and unjustified strikes and lockouts in the interest of both labour and
capital in order to adders the above issues.

JUSTIFIED STRIKES

The courts and the tribunals held that the strike is justified when it was restored to after the
exhaustion of all remedies under the ID Act which provided to be futile, as a reaction against
the unfair labour practises or union officials victimization on the part of the management,
urges the reasonable demands of workmen in a reasonable manner, in persuasion of
provocation on the part of the employer, in protest of retrenchment of fellow workmen, on
discharge of , on refusal to recognize the union, on refusal by the employer to pay advance
wages, on refusal by the appropriate government to refer the dispute.

UNJUSTIFIED STRIKES

A strike has been held unjustified when it was restored to without exhausting all remedies
envisaged under the ID Act or to press demands which are perverse or are unreasonably high
according to the Community Standards or immediately after the failure of conciliation
proceeding without awaiting for reference or in protest or assault of fellow workmen by the
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managerial personnel, in spite of assurance by the management to conduct an inquiry into the
same or even though the management was right from the inception inclined to settle the
dispute by the way of conciliation ,arbitration or settlement or adjudication or insist
arbitration, or in protest of the transfer of the president of the union or hostility or by using
violence or acts of sabotage.

JUSTIFIED LOCKOUT

A lockout is held to be unjustified if it was not an outcome of unfair labour practise restored
to by the employer or was restored to as a part of security measure or it was necessitated by
the conduct of workmen or it was declared consequent upon an unreasonable strike or a tool
down strike by workmen.

UNJUSTIFIED LOCKOUT

A lockout is held to be unjustified if it was actuated by an unfair labour practise on the part of
an employer or declared in order to pressurise the workman to accept lower wages or restored
to prevent the entry of work into the factory premises or when it was not inevitable

The list of the circumstances envisaged above which brings the strike and lockout into the
arena of justifiability and unjustifiability is not exhaustive. It cannot be put into a rigid
mould. It should be determined on a factual case by case basis.

In Indian General Navigation of Railway Company Ltd Vs. their workmen, One
controversial question which demands a clarification is whether an illegal strike can be
justified to answer this the Apex Court concluded that an illegal strike could not be
characterized as a perfectly justified strike as these two concepts run parallel to each other
that they cannot co-exist. It is true that anything that is illegal does not justify itself, as deep
rooted value of obedience towards law has a superior claim than any other competing value
of reasonableness. Anything illegal cannot be reasonable. There are instances where the
courts have moved away from the letter of law in order to uphold the spirit of law in the
pursuits of avoiding miscarriage of justice. The question in hand does not warrant such a
departure.

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In Gujarat Steel Tubes VS Gujarat Steel Tubes Mazdoor Sabha, Surprisingly the apex
court broke away from the above decision to state that mere illegality of a strike does not per
se spell unjustifiable, unless the reasons for it are entirely perverse or unreasonable. In effect,
it has created two types of illegal strikes viz. one justifiable and the other unjustifiable.
According to the court, an illegal strike can be castigated as unjustifiable only when reasons
are totally preserve. Then barring that under all other circumstances an illegal strike deserves
to be designated as justifiable one which goes counter to the position taken by the courts in
the past. Therefore, it is submitted that an illegal strike should not be considered as justifiable
as otherwise it amounts to blowing hot and cold in the same breath.

The aftermath of strikes, lockouts and other pressure tactics giving rise to certain complicated
legal issues requires a careful examination in the light of maintaining a harmonious and
healthy industrial relation. They can be discussed under the following heads.

(1) RIGHT OF WORKMEN TO CLAIM WAGES FOR THE PERIOD OF STRIKE

AND LOCKOUT: The real blame game starts after the culmination of strike and lockout
with the workmen and employer passing the buck to each other in their bid to claim wages
and refuse to pay wages respectively. The workmen are entitled to claim wages for the period
of strike provided strike is legal and justified, it forfeits the right of workmen to claim wages
for the period of lockout. If the lockout is illegal full wages for the period of lockout need to
be paid. The workmen forfeit their right to wages if they take recourse to strike hastily.

In Chandarmal Estate VS Its Workmen, the union placed a charter of demands. The
conciliation proceedings with respect to the same having culminated in failure on 30 th
November, 1955, the workmen without awaiting further and asking the government to make
a reference of the dispute under the ID Act, went on strike from 9 th December, 1955 to 5th
January 1956, the day on which the matter was referred to the Industrial Tribunal. Eventually,
the strike was also withdrawn on the day of reference. The workmen claimed wages for the
period of strike. The Industrial Tribunal granted 50% of total wages for the period of strike.
Aggrieved by this award, the management preferred an appeal to the Supreme Court. A
verdict was recorded in favour of the management. It was held that the workmen were not
entitled for wages for the period of strike by reason of their haste in calling on strike. But it
does not mean that the Union cannot take recourse to a strike in haste at all. There may be
cases where the demand is such an urgent and serious nature that it is unreasonable to expect
the union to wait until asking the government to make reference of the dispute. In such a

15
situation, if a strike is called in haste, it cannot be castigated as unjustified. It will be so where
the union can be expected to wait until a reasonable time after asking for reference is made
today and the union expects a positive response from the government immediately. Even after
waiting for a reasonable time if no positive response is forthcoming on the part of the
government, the workmen are justified in taking resort to a strike. The inference is that the
justifiability or unjustifiability of a strike depends on the question whether solution of an
industrial dispute can brook delay and await a solution through the mechanism contemplated
under law, contract or service rules. If so strike is castigated as unjustified one.

A strike which is prompted by the decision of the management to retrench workmen during
the pendency of conciliation proceedings without any information of the same to the
conciliation officer falls into the category of justified strike.

In Crompton Greaves Ltd VS Their Workmen, the company in contemplation of its

proposed plan of retrenchment, retrenched as many as 93 workmen in spite of a conciliation
proceeding pending in that regard without any intimation to the conciliation officer. In protest
of the management’s order of retrenchment, the workmen went on strike. A question arose
whether workmen were entitled for wages for the period of strike, It was held that strike was
justified as it was the result of unilateral decisions of the management to effect the
retrenchment in question without keeping the conciliation officer in loop and there was
nothing on record to press into service on behalf of the employer to prove that the strike was
illegal. Accordingly, the claim of the workmen for wages for the period of strike was upheld.
The court made it categorical that in order to entitle the workmen to wages for the period of
strike, the strike must be legal and justified and any use of force, violation and any act of
sabotage on the part of the workmen eclipses such entitlement.

The employer has statutory right to deduct wages for absence from work. As strike results in
absence from work, a question arises whether an employer is entitled to deduct wages for the
period of strike under the Payment of Wages Act, 1936 or any other legislation.

In Bank of India VS T.S Kelawala and Others the Supreme Court answered the question
in affirmative. In that case, the employees of all banks gave a call for countrywide strike in
pursuance of their demand for wage revision. Bank of wages of such employees for the days
on which they are not on strike. Two days before the strike, the bank issued an administrative
circular to the effect that any participation in strike would result in breach of contract of
service that in consequence, the employees would deprived of their working hours on that
16
day, In defiance of the circular the employees called on strike for four hours during the
banking hours. Subsequently they resumed duty, that the bank did not prevent them from
doing so. But for the full day. The employees challenged the decision of the management by
way of writ petition and eventually the matter came before the Supreme Court. It was held
that the bank was entitled to deduct wages for full day and even not bound to pay wages on
pro-rata basis for the rest of the hours during which employees remained in the work place of
work was neither warranted under the contract of service nor happened at the direction of the
bank.

It follows from the above proposition that an employer can deduct wages for the full day,
even through the employees resume work after strike. If such resumption of duty is either at
the instance of the employer or the employer acquiesces in it, the employees are entitling to
claim wages on pro-rata basis for the rest day. But in the above case, the management has
made it very clear that after the striking hours, they need not resume duty. In an establishment
like bank, after the banking hours, work does not amount to resumption of work. Under that
circumstance, to acquiescence on the part of the bank as to resumption of duty for the rest of
the day after the striking hour would result in acquiescence on his part entitling the
employees to claim proportionate wages for the rest of the day.

In the above case, court observed. “Whether the strike is legal or illegal the workers are liable
to lose wages for the period of strike. The liability to lose wages does not either make the
strike illegal as a weapon or deprive strikes of it. When workers resort to it, they do so
knowingly fully well aware of its consequences. During the period of strike the contract of
employment is continuous but the workers withhold their labour. Consequently, they cannot
expect to be paid.”

It is evident from the above observation that for the period of strike, the question of
employees’ entitlement for wages does not arise as there is absence from work in breach of
the contract of employment. Therefore, legality or illegality, justifiability or unjustifiability of
a strike is not at all an issue to be examined in connection with wages for the period of strike,
principle of “no work, no wages’ nullifies the well-established rule that workmen are entitled
for wages if strike is legal and justified. The negative impact of the principle is that it
castigates the right of workmen to call on strike making them dare not to take the weapons in
their hands for the fear of loss of wages which further fortifies the already soaring
bargaining power of the employer.

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In Syndicate Bank VS V.K Umesh Nayak , the bank appellant in this case postponed the
implementation of settlements regarding certain conditions of work from time to time by
citing the reason that it required approval from the central government. Eventually, In
accordance with the notice given earlier the employees went on a strike for one day. In reply
to the strike notice the management had sent a circular to effect that in case if employees
resorted to strike, their wages would be deducted for that. The employees of the bank
challenged the validity of this circular by way of writ petition in the High Court. The bank
contended that as the conciliation proceeding was pending the strike was illegal that the bank
was justified in deducting wages for the period of strike. On appeal, the division bench
reversed the decision to hold that as there was no industrial dispute warranting conciliation
proceeding and the question of pendency of conciliation proceeding would not arise to
characterize the strike as illegal that the employees were entitled o claim wages for the period
of strike. The bank preferred an appeal to the Supreme Court. Setting aside the decision, the
Supreme Court held that the High Court erred in assuming jurisdiction to decide whether
strike was legal and justifies as it was a question to be answered by the Industrial adjudicator.
Accordingly, a direction was given to the central government to refer the matter to the
appropriate authority.

In the above case, the Supreme Court did not advert its mind to the proposition laid down in
Kelawala to the effect that the workman is not entitled for wages for the period of strike
whether it’s legal or illegal. The question was kept open by Supreme Court by observing that
its earlier decisions t the effect that if the strike was legal and justified the workmen were
entitled for wages were not cited in Kelawala and the justifiability of strike was not agitated.

A bank essentially falls under the public utility service undertaking where the labour is
organised and enjoys better service conditions. But what is put into oblivion in this country is
the pathetic situation of workmen in unorganised sector, millions of people who are either
unemployed or underemployed or if employed it is at starvation wages. The public sector
undertakings should realize that the social resources should not be fritted away rather they
should be utilized for the maximum good of the society. They should not hold the society to
the ransom by taking resort to indiscrete use of strikes and lockouts. There is remarkable
change in the old balance of economic power between the management and employees in
these undertaking where strictly speaking there is no management and employees that both
are employees expected to promote the social interest. The factors have become instrumental
in bringing strikes and lockouts in public sector undertaking under the tight scanner of
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Supreme Court dispensing with the earlier policy of viewing things in a conventional lens. In
this regard, it is observed that the justness otherwise of the action of the employer or the
employee has, therefore to be examined on the anvil of the interests of society which such
action tends to effect.

Sometimes, it may so happen that a national holiday for which workmen are entitled to claim
wages with leave may fall within the period of an illegal strike. A question arises whether the
workmen are entitled to claim wages for that holiday.

In Madura coats Ltd VS the Inspector of Factories, Madura, and Supreme Court
answered the question negatively. In this case, the workmen of Madura Coats, a public utility
service undertaking called on a strike without serving notice to the management. Hence, the
strike is illegal which cannot be justified. Therefore, entitlement of workmen for wages for
the period of strike is out of question as the workmen themselves had brought about such a
situation that they have to blame themselves for such an eventuality. But the question is
whether workmen were entitled for wages for the intervening holiday on count of Republic
Day. As contemplated under the Tamil Nadu Industrial Establishment (National and Festival)
Holidays Act, 1958, every employee is inter alia entitled for a holiday on January 26th. But it
is further provided therein that the employer by serving a notice to the employees before 24
hours of such holiday may require him to work on that day subject to payment of twice the
wages or wages for such day with a holiday either 3 days immediately preceding or
succeeding the day on which he works. The question before the court was whether the right
of an employer to insist so has an overriding effect on the right of an employee to claim
holiday with wages when it intervenes the period of an illegal strike. Recording a verdict in
favour of the management, the court concluded that the right of an employer had an
overriding effect on the right of the employees that the latter by taking recourse to an illegal
striker deprived the former of its right resulting in their disentitlement for wages.

It follows from the decision that the right of an employer under the above Act is co-extensive
with the right of the employees. Therefore, when employees by their illegal and unjustifiable
act of striking deprive the employer of his right, they cannot claim wages. But such
deprivation, if it is the result of a legal and justifiable strike, the claim of employees for
wages has an overriding effect on the right of an employer over the right of employees under
the aforesaid Act that the right of the former to claim wages remains undisturbed.

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Sometimes workmen may go on strike for the reason that the employer has not paid their
wages that it turns into arrear for which that latter takes the exception of financial constraint.
The employer being under an absolute liability to pay wages from time to time as
contemplated by law, not allowed to take such exception as a matter of policy rather than
principle as otherwise it would open the paradox ad’s box of self-inflicted bankruptcy.
Therefore, strike to claim arrears of wages justifies itself and if otherwise is legal and
justified on other grounds, the right of the workmen to claim wages for the period of strike
remains intact.

A strike should be either exclusively justified or unjustified. There cannot be a third category
of half-justified and half un-justified strike. Instead the courts have evolved the principle of
apportionment of blame between the workmen and employers were both are at fault calling
on strike and declaring lockout respectively. Such apportionment has a scaling down effect
on the quantum of wages for the period of strike and lockout. A lockout which is declared in
pursuance of an illegal strike is legal and a strike which is declared consequent upon an
illegal lockout s legal. But the initial legality is not a license either to the workmen or the
employer to perpetuate the strike or lockout as the case may be to its illogical end. If they do
so, the aforesaid principle of apportionment of blame is applied to determine the respective
claims of workmen and employer for and against the payment of wages for the strike and
lockout.

In Statesman Ltd VS Their Workmen, a lockout was declared on November 14th 1958, by
the management following an illegal strike by the workmen in connection with a dispute
pertaining to bonus. It continued up to January 3rd 1959. In spite of assurance by the workmen
as to peaceful resumption of work the management resorted to a recalcitrant stand as to not to
lift he lockout. On reference of dispute by the government, both strike and lockout got
terminated and the work resumed. But conflict arose between the management and workmen
regarding the wages for the period of strike of strike and lockout each slinging mud on the
other. The tribunal apportioning the blame between the workmen and management ordered
the latter to pay wages for the period of lockout. The management referred an appeal to the
Supreme Court, Dismissing the appeal; the court apportioned the blame equally and directed
the management to pay half wages for the period of lockout. It follows that the management
cannot act unreasonably to derive undue advantage by reason of lockout being born lawfully.
In this regard the court observed:

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“In the rough and tremble of Industrial disputes, conciliation is a necessary grace the stronger
party, the society conscious management must cultivate and huff a flaw it must eschew.”

In the above case even though the workmen gave a written undertaking as to proof of their
good conduct, the management did not act socially conscious management as it declined to
lift the lockout. Nothing more could be expected by the workmen who are already afflicted
by the pinch of unemployment. Taking into consideration the original legitimacy of lockout
the court directed the management to pay only half the wages for the period of lockout to
swing the balance equally in favour of the management and the workmen whose illegal strike
became the cause of lockout. In the meantime, the court made the employers realize that the
original legitimacy loses its value by a blemished sequel.

Workmen are entitled to claim wages for the period of lockout only when it is illegal and
unjustified. If lockout is legal and justified, a claim for wages for the period of lockout does
not arise.

In Kairbetta Estate, Kotagiri VS Rajamanickam , as a measure of security the

management declared lockout of a division. The court upheld the decision of the management
to close the division on security reason. The workmen had claimed compensation for lay-off.
They were refused lay-off compensation as the situation did not fall under lay-off and it was
an instrument of lockout. As the lockout was legal and justified the workmen could get
nothing. Even though wages for the period of strike was not the specific issue before the
court, what follows from the decision is if lockout is legal and justified, the workmen forfeit
their right to wages for the period of lockout.

(2) DISCHARGE OF WORKMEN CONSEQUENT UPON STRIKE: Strike whether

legal or illegal, keeps the contract of employment in abeyance. On calling off the strike the
contract of employment revives. Therefore, it cannot be said that the workmen by calling on
strike abandon their employment. If strike is legal the management resorting to disciplinary
action against the participators by way of discharge or dismissal depends upon the way in
which they participated in an illegal strike. Some workmen may be silent participators and
others might be indulged in violence, sabotage, tempering with the property of the
management etc. The former cannot be subjected to disciplinary action regard.

In Indian General Navigation and Railway Co. Ltd. Vs. Their Workmen , Supreme
Court observed: “There may be reasons for distinguishing the case of those who may have

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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.”

(3) PUNISHMENT FOR ILLEGAL STRIKE AND LOCKOUT: Participation in illegal

strike invites punishment under the ID Act. But while imposing punishment the above
observation of the Supreme Court should be kept in mind. The employer does not have a
claim of damages against the workmen for loss of production whether the strike is legal or
illegal. The justification is that a legal strike is permitted under the Act whereas an illegal
strike culminates in the punishment of the strikers.

Likewise, an illegal strike, an illegal lockout invites penal liability under the Act.

(4) STRIKES AND TRADE UNION IMMUNITIES: The trade union are not ipso facto
deprived of their immunities from civil and criminal liability for mere participation in an
illegal strike. The immunity ceases only in case the members take recourse to violence,
tampering and causing damage to the employer’s property, criminal intimidation, etc.

CONCLUSION

It is evident from the above discussion that the use of instrument by the labour and capital for
the attainment of their respective goals is beset with far fetching the consequences both on
them and the society of which they are part in the longer run boomeranging them as they do
not constitute a class by themselves. Consequently, they must sparingly use the weapons of
economic coercion reckoning the dire consequences on the consumer interest vis-à-vis
greater social interest law and courts intervene to examine the legality and justifiability of
these instrument some of which are permissible and some prohibited by law. The weapons
which the law seriously intends to curb are wild cat strike, go slow tactics and gherao. Strikes
and lockouts are the permissible weapons that they cannot be totally wiped out from the
statue book a democratic society that both, labour and capital can air their genuine grievances
through them, the former being a weapon of labour to make the deaf employer to keep open
his ears to their genuine demands and of the latter being a chink in the oven of the employer
to keep in awe the overactive workman. They have counter balancing effect on both the
labour and the capital respectively.

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At the outset, it should be noted that the definition of strike lacks legislative clarity that it
spells only a cession of work caused by a concerted action of workmen without an iota of
inking on the purpose for which it can be resorted to. The legislative gap is filled by the
judicial pronouncements which are categorical in the core area to make it unequivocal to
mean that it should be used as a means in pursuance of an industrial dispute. However, there
are conflicting decisions to depict that the term strike has a hazy marginal sense. For
example, there are conflicting decisions to show that en bloc leave application as amounting
and not amounting to strike. A legislative clarification is required on the concept of strike to
address certain legal issues especially the right of workmen to receive wages for the period of
strike. The above discussion with equal force applies to the legislative definition of strike and
lockout must be suitably amended for the proper addressing of the issues arising aftermath.

Go-slow tactics is yet another pressuring weapon taken resort to by the workmen which has
more serious ramification from the point of view of an employer as he is compelled to pay
full wages even though the workmen do not turnout the output as contemplated in the
contract of services. It cause double jeopardy to an employer by the way of unnecessary drain
on his financial resources and damage to the plants as they are not turned on to their full
capacity. An employer under all circumstances cannot figure out the go-slow tactics where
the target output is not something physically does not permit calculation or measurement that
it will be a sheer instance of hoodwinking the employer. There are decided cases where the
courts have scaled down the wages of workmen reckoning the actual number of hours which
the workmen have been on actual work. Go-slow amounts to a serious misconduct foe which
the employer must be allowed to take proper disciplinary action by way of either discharge or
dismissal of such workmen. It is submitted that law should handle the go-slow tactics with
iron fist.

Gherao is a very diabolic and pernicious measure that is adopted by the workmen to subdue
the management. By itself it amounts be to an offence. It is usually accompanied by certain
offences as discussed above. The lynching of H.K. Maheswari, the CEO of North Brook Jute
Co. bears testimony to the fact of to what monstrous height the workmen can take up the
issues. Undoubtedly, the law will take its own course to punish the culprits. But certainly
such instances would leave unfathomable ill consequences on a society like India that no
employers would come forward to take any industrial activity which will add up to the
misery of ever burgeoning youth population already reeling under the heat of unemployment.
The whole incident reminds us trade unionism of dark ages which no civilized society can
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approbate- that it should be condemned by the whole mankind in one unanimous voice. As
the legal position stands now, gherao is not an independent offence under the Indian Penal
Code.

The other pressure tactics used by the workmen are work to rule and disobedience of lawful
order of the employer. They certainly result in breach of contract of employment leading to
misconduct. It also should be dealt sternly for the reason that the workmen having initially
accepted the condition make a ‘U’ turn latter. For example, the standing order requires them
to do overtime work to meet the exigencies. But they refuse to do. The eventual sufferer is
the society at large.

One loophole in the restriction pertaining to strike is absence of legal requirement of notice in
case of non-public utility service undertaking which facilitates wild cat strike not leaving any
clue to the employer who is deprived of an opportunity to look at things on a positive notes.
Though wild cat strike is legal, but it cannot be justified, tested on the anvil of one of the
principle of natural justice which contemplated of an opportunity should be given to a person
before proceeding against him. Therefore, it is submitted that even in non-public utility
services undertakings, the requirements of mandatory notice before strike must be insisted, if
there is a wild cat strike, there can be a wild cat lockout also in a non-public utility service
undertakings. Therefore, for the reasons stated above, notice of lockout must be insisted in
case of non-public utility services undertakings also.

A stringent view of strikes and lockouts must to be taken in case of public sector
undertakings where labour is very well organized unlike non public sector undertaking. The
service condition enjoyed by the workmen in these undertaking in no way be compared with
those unfortunate lots in the unorganized sectors. Life is a paradise or these workmen viewed
from the perspective of the lame table poverty stricken and unemployed lots. The
management in these undertaking is nothing but the individuals representing the state,
therefore mere employees like the workmen. The national resources are placed at their
disposal to be channelized for the maximum benefit of the society at large that both should
act as trustee of public interest. In those regard, the view was taken by the Supreme Court in
Umesh Nayak deserves appreciated as it calls for a sterner approach regarding strikes and
lockouts in public sector undertakings

Collective Bargaining is a double edged sword which can be both constructive as well as
destructive for the reason that it is backed up by the weapons of strike which shows the path
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to employers to snub the workmen by restoring to lockout whittling down the economic
growth of the country. That is why, the ID Act was enacted in such a way to enable to a great
extent state intervention in the regulation of industrial relation without leaving it absolutely to
the employers and workman for setting it by the way of collective bargaining . Totally,
collective bargaining is not discoloured that strikes and lockouts are not in common in India.
The right to strike and lockouts are recognized subject to the restriction. The employer and
workmen must realise that strikes and lockouts should be an exception rather than a routine to
flaunt their respective bargaining power epitomizing ‘might is right’. Therefore, sporadic use
of weapons of strikes and lockouts must be recognized whereas indiscrete use must be
condemned.

The most controversial issue in the whole structure of legal regime relating to strike is the
right of workmen to receive wages for the period of strike. The Industrial Disputed Act, 1947
is silent in this regard. The Supreme court in Kelawa to the effect that workmen are not
emitted for wages irrespective of strike being legal or illegal which has given currency to the
principal of ‘ no work, no wages’ . The above discussed two propositions militate with each
other. The principal of ‘ no work, no wages’ to put it shortly, would have a deterring effect on
the workmen which makes them abstain from the strike even in genuine cases also for the
fear of loss of wages. The unscrupulous employers will undoubtedly take an undue advantage
of the situation to perpetuate their so called deafness unabatedly. Therefore , it is submitted
that a balance must be struck between the two proposition by laying down ‘no work’ , yet
wages if strike is legal and justified which will act as a medicine to check the self-imposed
deafness of employers swinging the pendulum on both the sides to bring about an equilibrium
between the labour and capital

Courts have intervened the doctrine of apportionment of blame where both workmen and
employer are at fault to bring a temporary closures to the place of employment as a result of a
lockout declared as a sequel to an illegal strike is prolonged unjustifiable by the employer in
spite of the workmen rendering an assurance of good contact with a preparedness for
resumption of work. The callous attitude of employer to continue the lockout in such a
situation eats away its initial legitimacy. The employer also needs to be blamed for the
eventuality. The blame for illegal strike fails on the workmen for which they are not entitled
for wages. To the extent of original legitimacy employer is not at fault. He invites the blame
for supervening unjustifiable suspension of work. Therefore demands apportionment of
blame that workmen are not entitled for full wages for the period of lock. Wages will be
25
proportionately reduced to the extent of their fault. The principle of ‘no work, no wages’
cannot be applied where employer is at fault for the cessation of work.

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