UNFAIR LABOUR PRACTICES: A CRITICAL ANALYSIS VIS-À-VIS

ILLEGAL STRIKES

ABSTRACT
In today’s industrial world, industrial disputes between the employers and their employees are
a widely pervasive phenomenon. The maintenance of good-spirited industrial relations between
employers and their employees is, therefore, one of the most sought-after objectives. Collective
Bargaining, which is a process of negotiation between the workers, represented by trade
unions, and the employers for the formulation of such working conditions for the former that is
favourable for everyone, proves to be a great help in achieving the aforementioned. In India,
however, while various codes regulating and organising the industrial world were formulated
after independence, none of them dealt with unfair labour practices. The Indian Parliament
decided to enlist two sets of Unfair Labour Practices, one set with reference to the employers
and the other with reference to Trade Unions of workmen, via the Trade Unions (Amendment)
Act, 1947, though, these could not be enforced. Further, the Code of Discipline, 1958, which
was ratified by the Central bodies of workers and employers in the sixteenth edition of the
Indian Labour conference, enlisted certain unfair labour practices that were to be avoided. The
success at enforcing a specific legal enactment prohibiting ULPs was first achieved by the
Government of Maharashtra when it introduced the Maharashtra Recognition of Trade Unions
and Prevention of Unfair Labour Practices Act in the year 1971. However, the said law being
state legislation was only in force in Maharashtra. The National Commission on Labour in
1969, in its first report, recommended for the enactment of a law enlisting and imposing fitting
punishments on ULPs.

Keywords: Unfair, Labour, Strikes, Employers, Employees, Unions

1
THE INDUSTRIAL DISPUTES (AMENDMENT) ACT, 1982

India did not have any central legislation dealing with unfair labour practices until 1984 when the Industrial
Disputes (Amendment) Act, 19821 inserted the provisions defining and prohibiting ULPs in the 1947 Act.
The amendments, inter alia, inserted Sections 25T and 25U, specifying prohibition and penalty on the
ULPs, respectively.
Section 25T states that any employer, worker, or trade union (both registered and unregistered) must not
engage in unfair labour practices. 2 Section 25U goes on to impose a fine up to Rs 1000, or imprisonment
for a maximum term of 6 months, or both on the person committing any ULP. 3
Further, Section 2 (ra) and the fifth Schedule were also introduced through the 1982 amendment and they,
when read together, define the ULPs both on the part of the employers, and the workers and their trade
unions. Section 2 (ra) defines ULPs as the practices specified in the Fifth Schedule. The fifth Schedule is
then divided into two parts, wherein the first part enumerates a list of activities on the part of the employer
and the trade unions of employers that qualify as ULPs and the second part puts down those activities that
become ULPs on committed by the employees and their trade unions.
Since the central theme of this paper is unfair labour practice in relation to illegal strikes, the author would
like to only discuss those ULPs that are the subjects of concern. These are as follows-
i) Under Part I of the fifth Schedule, Item 4(b) defines the act of discharging or dismissing a
workman for having taken part in a strike as one of the ULPs on the part of the employer or the
trade union of employers. However, the aforementioned ULP does not extend to cases where
any discharge or dismissal takes place owing to the nature of the strike being illegal. 4
ii) Item 1, Part II defines any act in the nature of advice, active support, and/or instigation to an
illegal strike, defined under Section 24 read with Sections 22 and 23 of the impugned Act, to be
a ULP on the part of the worker or a trade union of workers.5
Under Section 22 of the Industrial Disputes Act, 1947, (hereinafter referred to as IDA) whose operation is
only limited to employees of a public utility service (those that provide services necessary for society like,
water, oil, electricity, etc.), workmen or their Trade unions are mandated to follow a comprehensive system
of serving notice to the employers before going on a strike. Non-compliance with the aforementioned
makes the strike illegal under Section 24 and the employees not only end up committing an unfair labour
practice under Item 1, Part II of the fifth Schedule, but they could also be dismissed or discharged for the
same as dismissal or discharge of employees engaged in illegal strikes is not a ULP under Item 4(b), Part I
of the same Schedule.

1
Industrial Disputes (Amendment) Act 1982
2
Industrial Disputes Act 1947, s 25T
3
Industrial Disputes Act 1947, s 25U
4
Industrial Disputes Act 1947, sch. V, part I, item no 4(b)
5
Industrial Disputes Act 1947, sch. V, part II, item no 1
2
With the introduction of the Industrial Relations Code 2020, the definition of ULPs, herein incorporated
under the second schedule, has remained unchanged, both on the part of employers and their trade unions,
and the workers and their trade unions; the said Code has expanded the scope of illegal strikes (as will be
discussed in the subsequent chapter) as compared to the one given under Section 22 of the IDA. And as a
consequence of the same, the ULPs that are the subject matters of this paper and are mentioned hereinabove
have witnessed an augmentation in their scope too.
The questions the author will try to answer in the paper are as follows-
i) Whether the absolute exclusion of dismissal of workmen participating in an illegal strike from
the purview of ULP under Item 4(b), Part II justified?
ii) Whether the newly enacted Industrial Relations Code, 2020 is detrimental to workmen insofar
as it augments the scope of Unfair Labour Practice in relation to illegal strikes on the part of the
workmen and the trade unions?
JUSTIFICIABILITY OF THE EXCLUSION OF DISMISSAL OR DISCHARGE UPON
PARTICIPATION IN ILLEGAL STRIKES FROM THE PURVIEW OF ULPs

Before coming to the justifiability of dismissal of workmen upon participation in illegal strikes per se and
the exclusion of the same from the purview of ULP, let us first discuss whether the right to strike is a
fundamental right or not?
I. KAMESHWAR PRASAD V/S STATE OF BIHAR6 1962
Facts of the Case:
The Governor of Bihar, by way of a notification, introduced the Bihar Government Servants' Conduct
Rules, 1956. Rule 4A of the impugned Rule put a blanket ban on the participation of government servants
in any form of demonstration or strike summoned to protest against their conditions of service.
The said rule drew flak from many corners leading the appellants to file a writ petition in the High Court of
Patna under Article 226 of the Indian Constitution. They challenged the constitutional validity of the said
Rule on the ground of it being violative of the fundamental rights guaranteed under Article 19 (1)(a),
19(1)(b), and 19(1)(c) viz. freedom of speech and expression; peaceful assembly without the use of arms;
and formation of unions and associations. The appellants contended that the citizens of India have a
fundamental right, flowing from the aforementioned, to organise demonstrations and strikes. The High
Court ruled that government servants don't have the FR to go on a strike or launch a demonstration under
Article 19(1) (a) and 19(1)(b) of the Constitution. The appellants then approached the Supreme Court on
being granted permission by the High Court under Article 132.
Legal principle:
Here, the five-judge constitution bench held that the High Court was wrong insofar as it excluded only
government servants. Article 19 uses the term “citizens” which is applicable to government servants also.

6
1926 AIR 1166
3
The SC thus stated that every citizen has a fundamental right to hold a demonstration under the said
provisions of Article 19 including the government servants. The SC, however, held that the right to go on a
strike is not a fundamental right.
Ruling:
The SC struck down Rule 4A, however, only partially insofar as the prohibition on demonstration was
imposed. It stated that the rule cannot be struck down for prohibition of holding strike as the same is not
violative of any fundamental right.

II. T.R RANGARAJAN V/S GOVERNEMNT OF TAMIL NADU7

Facts of the Case:
The State Government of Tamil Nadu dismissed all the workers, almost 2 lakh in number, for going on a
strike for the meeting of their demands. The matter went to the Madras High Court by the filing of a writ
petition under Article 226 of the Constitution. The High Court of Madras dismissed the petition stating that
there existed an alternative remedy of going before the industrial tribunal in this case before approaching
the HC directly. The petitioners then filed a petition before the Supreme Court under Article 32 challenging
the dismissal and the constitutional validity of the Tamil Nadu Essential Services Maintenance Act, 2002
and Tamil Nadu Ordinance, 2003.
Ruling:
The Apex Court in this judgment ruled that the employees don’t have either any fundamental right to go on
a strike under Part III of the Constitution nor do the Government employees of Tamil Nadu have any legal
or statutory right to do so. The Apex Court went on to say that instances of government servants going on a
strike would only cause disturbance and great inconvenience to the public and therefore it is morally and
equitably unjustifiable for them to do the same. The Court observed that India is a welfare state and by
virtue of the same, the government employees must, instead of going on a strike, opt for a statutory remedy
available to them and get redressed for any injustice caused to them. Strikes would only lead to chaos and
disorder.
The Supreme Court stated that the employees must be reinstated as most employees are often dragged to
strikes without their free volition. Sometimes they just blindly follow the leaders without thinking twice.
Since the government agree to do the same, the SC did not delve further into the case and did not look into
the constitutional validity of the State legislation and the ordinance in question.
Now that we know that the right to strike is not an FR, let us examine its statutory or legal status. Under the
IDA, 1947, there is a restriction on illegal strikes, meaning thereby that the said Act recognises the
employees’ right to strike so long as the nature of a strike does not fall within the restrictions imposed
under Sections 22, 23 and 24. If it does, dismissal or termination of the service of the workmen who engage

7
(2003) 6 SCC 581
4
in such strikes, as mentioned before, would not be termed as an unfair labour practice on the part of the
employers or their trade unions.

III. ALL INDIA BANK EMPLOYEES’ ASSOCIATION V/S NATIONAL INDUSTRIAL

TRIBUNAL & ORS.8
Facts of the case:
The Constitutional validity of Section 34A was challenged by the appellants, which was introduced via the
1960 amendment in the Banking Companies Act of 1949, that gave the banking companies the power to not
produce and give for inspection those documents and records of transactions that are considered
confidential.
The appellants argued that the said provision is a violation of Part III of the Constitution as it does not
allow them to exercise their right to collective bargaining in relation to their salary, additional bonus, etc.
which is a right naturally flowing from the fundamental right of formation of trade unions guaranteed under
Article 19(1)(c).
Ruling:
The Court upheld the constitutional validity of Article 34A of the impugned act and stated that it was not
violative of Article 19(1) (c) as in the Court’s opinion there is no concomitant right of collective bargaining
mentioned by the appellants flowing from the said fundamental right. The implication of this ruling was the
right to go on a strike, which is the essence of Collective bargaining, is also not a fundamental right.
The Apex Court stated that since the right to go on a strike is not a fundamental right under Article
19(1)(c), any regulation or restriction on the same need not be justified on the grounds of the reasonable
restrictions mentioned under Article 19(4) but by entirely diverse considerations. Therefore, the legislators
are free to provide for regulation and restriction on the right to go on a strike via the industrial statutes
without keeping article 19(4) in mind.
The ruling of the Supreme Court in the All India Bank Employees’ Assn., case, in a way justified the
limited restrictions imposed on strikes in the IDA, 1947.
Now coming to the moot question as to how justifiable the dismissal of workers engaged in illegal strikes
is, let us observe the following cases-

IV. INDIAN GENERAL NAVIGATION AND RLY. CO. LTD V/S THEIR WORKMEN9
Facts of the case:
One of the labour unions of the employees of a public utility organisation served notice upon their
employers on 21st July to go on a strike on 11th August if their certain demands were not met. In the process
to resolve the dispute, the Conciliation Officer held conciliation proceedings on 6 th August; however, the
same did not lead to any fruition. The union then went on a strike on the stipulated date. However, clause

8
1962 AIR 171
9
1960 AIR 219
5
(d) of Section 22(1) of the IDA mandated the workmen to refrain from going on a strike either during the
conciliation proceeding or within seven days after its end. Following this, the employers after holding an
enquiry suspended, seeking dismissal, and in some cases dismissed in all two hundred-odd workers. Many
were arrested under Sections 143 and 188 of the IPC. The matter when it approached the Industrial tribunal
led to the Tribunal ordering reinstatement of 208 out of 260 employees who were either dismissed or
sought to be dismissed, these 208 included those workers too that were convicted under S. 188 of the IPC.
The Tribunal observed that the strikes although illegal were justified. (Justified strikes are those strikes that
are said to be convened for presenting legitimate and reasonable demands of the workers, otherwise, they
are said to be unjustified.) The tribunal did not order reinstatement of those 52 employees who had been
found guilty under S. 143 of the IPC. The employers then appealed before the SC by filing a special leave
petition for appeal under Article 136 of the Indian Constitution.
Ruling:
The SC stated that when it comes to illegal strikes, the IDA does not make any difference between justified
and unjustified strikes. An illegal strike, whether justified or not, remains illegal.
However, the Supreme Court further held that not every workman who is a part of an illegal strike can be
dismissed as doing it would not only be detrimental for the workers but also the employers. The Court said
the kind of punishment meted out must be determined after holding a proper enquiry and a charge sheet
must be produced for every individual. Further, every worker must be given a fair chance of explaining
themselves. It is only after this that the employers can dismiss an employee based on the findings of the
enquiry establishing the magnitude of their involvement.
The Court set aside the Tribunal’s order insofar as it had ordered the reinstatement of those workmen who
were convicted under S. 188 of the IPC. The SC further reduced the wages of the workers reinstated to half
for the period in question.

V. EXPRESS NEWSPAPERS (P) LTD. V/S MICHAEL MARK AND ANR.10

Facts of the case:
The employees, the respondents, went on a strike to get their demands addressed. A day after this the
employers issued 3 notices asking them to join back or they would be considered to have left the job on
their own and the employers would issue vacancies for their posts. The Respondents, however, did not
deter and when the strike was called off after two months, they found they had been replaced by new
workers. They then demanded payment of wages under Standing Order 25(1) which stated that the
employers had the power to end the term of service of employees after giving a month’s notice to them.
And if the employers fail to give the said notice, they were obligated under the aforementioned order to pay
them a month’s wage. They argued that since the employers did not give them a month’s notice, they are
bound to pay the terminated employees wages. However, the authority established under the Payment of

10
1963 AIR 1141
6
Wages Act11 dismissed their application upon which the workers filed a writ petition before the High Court
of Bombay under Article 226 of the Constitution. Their petition was allowed. The appellants thus
approached the SC challenging the order of the HC via an SLP for appeal.
Ruling:
The appellants pleaded that the strike was illegal and that by not returning from the strike even after three
notices indicated that the employees who had gone on the illegal strike had terminated their employment on
their own. The appellants stated that because of the foregoing reason, the respondents must not be given
wages under Standing Order 25(1) as the operation of the same extended only up to those cases where the
employers terminate employment and not the employees.
The SC rejected the contention and stated that workers going on a strike, whether legal or illegal, could not
be said to be abandoning their employment rather they go on a strike to improve their employment
conditions. Therefore, it would be flawed reasoning that the respondents ended their employment on their
own volition.
The Court said that in case of an illegal strike, the employers have the right to conduct an enquiry against
the workmen under the standing order and then dismiss them without paying wages. However, in the
present case, the facts are different. The Court, therefore, rejected the appeal and asked the appellants to
pay the wages.
From the series of judgments discussed above, it can be contended that the right to go on a strike, by virtue
of not being an FR, can be regulated and restricted by specific industrial legislations without having to meet
the requirements of them being reasonable restrictions under Article 19(4) of the Constitution. Thus, the
certain restrictions imposed on the workmen’s and their trade unions’ right to strike to prevent them from
being termed illegal is not invalid. However, the provision of Item 4(b) Part I of the fifth schedule (second
schedule under the Industrial Relations Code, 2020) that imputes that a worker who has participated in an
illegal strike can be dismissed by stating that the same is not an unfair labour practice seems wrong. It
would be a matter of grave injustice if every workman is dismissed even if they just participated in an
illegal strike without really actively engaging in the same. Coming to the rescue of workers, the Supreme
Court through a series of judgments, some mentioned above, held that mere participation is no ground. An
enquiry, giving them an adequate opportunity of being heard is required and determining the extent of their
participation by issuing a charge-sheet for each individual, is necessary for the determination of the nature
and extent of punishment.
However, the author believes that to purport better clarity, item 4(b) of Part I must be amended to insert a
clause stating that even dismissing or discharging workmen, if done without enquiry, for participation in
illegal strikes classifies as a ULP on the part of the employer.
Thus, in answer to the first question, the author would like to state that though the Supreme Court has by
way of a series of judgments in this regard established that a worker cannot be dismissed without enquiry,

11
Payment of Wages Act 1936
7
an express provision, maintaining that the non-compliance of the same is a ULP on the part of the employer
under Item 4(b) of Part I, would provide more clarity which the outright exclusion does not.
The second question is discussed in the following chapter-

WHETHER THE NEWLY ENACTED IRC 2020 AUGMENTS THE SCOPE OF ULP VIS -À-
VIS ILLEGAL STRIKES?

Section 22(1) of the Industrial Disputes Act 194712 prescribed employees or the trade union of employees
working for public utility service to follow certain norms before going on a strike. This was done with the
thoughtfulness that any interruption in the working of a public utility organisation would cause major
inconvenience to society.
Now, however, with the introduction of the Industrial Relations Code 2022, the workmen and their trade
unions, irrespective of the nature of the organisation where they are employed, need to follow all guidelines
enumerated in Section 62(1) (which is a merger of Sections 22(1) and 23 with slight modifications 13).
The consequent effect of the aforementioned changes is that earlier the restriction under Section 22(1)
being only for employees of public utility organisations imposed a limited and fair restriction on the right to
go to a strike. When a worker from an industrial establishment, other than a public utility organisation, had
to go on a strike, the procedure was simple and favourable.
Now, with the introduction of IRC 2020, the restriction imposed on the right to go on a strike has not only
been widened, but the same also results in an increase in the ambit of Item 1, Part II which states that any
workmen or trade unions for workmen actively supporting, advising and instigating an illegal strike are said
to be committing a ULP.
We need to understand that the right to go on a strike, though, not an FR, is the essence of collective
bargaining. The workmen and their trade unions are less powerful, influential, and affluent than the
employers and the trade unions of employers, in such a scenario the threat to go on a strike always plays
out as a powerful tool in the hand of the former to get their demands addressed. Now, with the increase in
the ambit of an illegal strike, the process of going on a strike has been rendered comprehensive and
complex for workers of every industrial establishment and thus making the said right difficult to exercise.
Thus the one significant power available to the workers for effective collective bargaining has been
effectively snatched away from them by making it difficult to be exercise, not to mention that such right if
exercised but found to be illegal under the new definition, will lead to it being considered an unfair legal
practice on the part of workmen and invite punishment under Section 84 of the IRC.
Therefore, yes, I believe that the newly enacted Industrial Relations Code, 2020 is detrimental to workmen
insofar as it augments the scope of Unfair Labour Practice in relation to illegal strikes on the part of the
workmen and the trade unions.

12
Industrial Disputes Act 147, s 22(1)
13
Industrial Relations Code 2020, s 62
8
 CONCLUSION
The Industrial Disputes Act of 1942, as modified in 1982, is the principal legislation for investigating and
resolving all industrial disputes. It contains rules for unfair labour practises by employers as well as
employees, as well as their respective trade unions. Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971 is another essential state legislation that gives significant
legal protections for workers against victimhood and oppression at the hands of their employer, as well as
protection against numerous unfair labour practises.
Furthermore, in India, the term "unfair labour practises" hasn't always been used to refer to simply
behaviours that obstruct the smooth operation of collective bargaining. The term is used in a broader sense
in court decisions as well as legislation to encompass unfair dismissals, promos without significance, and
any other form of victimhood. It also serves as a foundation for employer-employee interactions in India
and encourages collective bargaining by defining certain activities as unfair labour practises. The need to
broaden the scope and accessibility of central law remedies appears to be a pressing necessity, as greater
casualization of the workforce, both in the organised and informal sectors, and a diminished role for trade
unions has paved the way for an increase in the incidence of unfair labour practises.
A perusal of my analysis of the said questions would give the answer to my thesis in the affirmative and
establish that-
The Unfair Labour Practices vis-à-vis illegal strikes on the part of the workmen and their trade unions are
detrimental to their welfare and have become more so after the introduction of the Industrial Relations
Code 2020.