STRIKES:

LEGALITY
Presented by Nikita Begum Talukdar
 01
Legality
 Introduction

• As per the Industrial Disputes Act 1948 it provided for strike provisions
under Section 22- 25.
• The provision regarding notice was applicable only for the public utility
service.
• Public utility services included: Railways, ports, telegraph, telephone
service, industry which supplies power/water/light to public,
 Changes brought by Code with respect to
Strikes

• The IR code 2020 has brought several changes in the provisions with respect
to provisions of Legality of a Strikes and Lockout.
• The most important change is now in every industrial establishment
(irrespective of the fact whether public utility or not No term such as
public utility has been used under the Code), no person will resort to strike in
breach of a contract, without giving a notice.
• When a notice is given the strike must be held within 60 days. Earlier it
was 6 weeks.
 Think!!
Earlier why only in Public
Utility Services strike
Notice was Mandatory?

Is it now justified that

strike notice be served in
every industry?
• Other changes are such as:
• Earlier no strike was to be resort during the pendency of
proceedings before a Labour Court, Tribunal or National Tribunal,
Arbitration and within two months of conclusion of such
proceedings.
• The present code provides for the period during which no strike be
resorted is during such proceedings and within 60 days of
conclusion of such proceeding
 Provisions with respect to strike under the IR
Code 2020

• Section 62- 64 of the Industrial Relations Code 2020 provides

about Provisions regarding legality and illegality of strikes.
• S. 62 provides for Prohibition of strikes and lock-outs. Provision is
regarding the procedures of legal strikes and lockout.
• S. 63 provides for illegal Strikes and lockouts.
• We shall discuss each of the provisions in detail.
 Section 62(1) IR Code 2020: Prohibitions on Strike

Strike Notice: 60 days before striking (i.e, after notice, strike to be within 60
days)

NO STRIKE: within 14 days of giving Notice

NO STRIKE: before the expiry of date of strike mentioned

NO STRIKE: During pendency of Conciliation proceeding before CO and

within 7 days of conclusion of proceedings

NO STRIKE: During pendency of proceeding before Tribunal or National

Tribunal and within 60 days of conclusion of proceedings

NO STRIKE: During pendency of proceeding before Arbitrator and within 60

days of conclusion of proceedings

NO STRIKE: During any period in which a settlement or award is in operation

 How and when to strike?

Notice of Strike in No strike within 14

every establishment Days of Notice

01 02 03 04

Strike to be Strike should be on the

resorted within 60 date mentioned in
days of notice notice or afterwards but
not before
 Prohibition of strike during the following:

During Conciliation
and within 7 days of Arbitration
Conclusion

01 02 03 04

During Tribunal
proceedings and During Settlement
within 60 days of /Award in operation
conclusion
Case Law
 Bharat Petroleum Corporation Limited Vs. Respondent:
Petroleum Employees' Union and Ors. (2001)

• The Appellant is an industry engaged in the manufacture of petroleum products

including (LPG).
• The Appellant Corporation, a Government Company, had entered into a long term
settlement (of 5 years) prescribing the conditions of service of its workmen.
• This long term settlement was to last for five years from 1st June, 1993 to 31st
May. 1998.
• After expiry of the said settlement, the Respondent Unions, which represent the
workmen of the Appellant, submitted a fresh Charter of Demands.
• There was a series of meetings to negotiate the demands put forward by the
workmen, but no settlement could be finalized.
• On 13th October, 2000 the Respondent Unions issued a strike notice
under Section 22(1) of the Industrial Disputes Act, 1947 informing the
Appellant that the Respondent Unions will resort strike on the expiry of the
14th day from service of the notice.
• This strike notice was received by the Appellant on 17th October, 2000. A
copy of the strike notice was sent to Central Government Conciliation
Officer.
• The conciliation officer issued a letter calling upon the Respondents to
restrain the workmen from proceeding on any strike as their demands
were under conciliation.
• On 19th October, 2000, the Respondent Unions and its members went on a

flash strike at all the locations as a consequence of which the supply and

distribution of petroleum products was disrupted resulting in inconvenience

to the public.

• A suit was filed before the Bombay H.C by the appellants (Company) to declare

the strike to be illegal and unjustified and to restrain the workers to resort to

strike or any other activity also fine of 1 lakh rupees.

 Issue?

• In this case since a civil suit was filed before HC, the question

which arose was whether such suit filed by the company is

maintainable as the Trade union Act provides for certain

immunities to trade union and against them no civil/criminal case be

filed.
 Court held:
• A civil Suit to restrain the employees from going on a strike, irrespective of
whether the proposed strike is legal or illegal under a special statute, cannot be
brought in a Civil Court.
• The only manner in which the statute contemplates the enforcement of
obligations provided under ID ACT, is indicated in Section 26 of the Act which
prescribes a penalty for any workman who commences, continues or otherwise
acts in furtherance of a strike which is illegal under the Act (the penalty being
imprisonment for a term which may extend to one month or with fine which may
extend to fifty rupees, or with both.
• The Court found no substance in the Appeal. Appeal was accordingly
dismissed
 Other important Provisions of strike procedure

Section 62 (3) of code

The notice of strike or lock-out under this section shall not be
necessary where there is already in existence a strike or, as the
case may be, lock-out, but the employer shall send intimation of
such lock-out or strike on the day on which it is declared, to such
authority as may be specified by the appropriate Government either
generally or for a particular area or for a particular class of services.
 Other important Provisions of strike procedure

62 (4) IR Code 2020: who shall give strike Notice?

The notice of strike referred to in sub-section (1) shall be given by

such number of persons to such person or persons and in such

manner, as may be prescribed.

 Section 62 (6) IR Code 2020
If on any day an employer receives from any person employed by
him any such notices as are referred to in sub-section (1) or gives to any
person employed by him any such notices as are referred to in sub-
section (2), he shall within five days thereof report to the appropriate
Government or to such authority as that Government may prescribe
and to the conciliation officer, the number of such notices received or
given on that day.
Illegal strikes
(S. 63)
 When is a strike Illegal (S. 63)

• Firstly if it commenced or declared in contravention of section 62

(Sub-section 1(i) of S. 63)
• We discussed in S. 62 that strike procedure as mentioned has to be
followed only then the strike will be considered as legal. If such
procedure not followed it is considered as illegal as per S.63 (1) (i).
• Secondly, if it is continued in contravention of an order made under
sub-section (7) of section 42. ((Sub-section 1(ii) of S. 63)
 • What does Section 42(7) provides?
• To understand this it is necessary to know that parties are free to refer their industrial
disputes to arbitration through an arbitration agreement which shall be signed by the
parties and be sent to the appropriate govt.
• The govt. on receiving such agreement will issue a notification of the same.
• When such notification is issued by the government the government may pass an
order prohibiting the continuance of any strike in connection with such dispute
which may be in existence on the date of reference. ss
• So, if any workers even after passing of such order by government continues the
strike, such strike shall be illegal as per S. 63 (1) (ii)
• S. 42 (7) thus applies when there is strike going on and then matter is referred to
arbitration and govt. orders such prohibition of strikes and then continuance of such
strike shall be illegal.
(2) Where a strike or lock-out in pursuance of an industrial dispute has

already commenced and is in existence at the time of the filing of the

application relating to such industrial dispute in the Tribunal or of the reference
of such industrial dispute to an arbitrator or a National Industrial Tribunal, the
continuance of such strike or lock-out shall not be deemed to be illegal,
provided that such strike or lock-out was not at its commencement in
contravention of the provisions of this Code or the continuance thereof was not
prohibited under sub-section (7) of section 42.
• Lets discuss this in detail.
• This provision is kind of benefitting the workers who are already on strike and
the matter is referred to tribunal/arbitration later on.
• If Such strikes procedure followed initially and then the matter is referred
to tribunal/arbitration, the continuance of such strike shall be legal.
• Thus in short workers CAN CONTINUE STRIKE if matter has been referred to
tribunal/Arbitration at a later date, when they are already striking.
• But, if a matter is first referred to such tribunal/arbitration and then workers has
to conduct strike it must follow section 62.
• We already saw no strike can be conducted when a decision is pending
before arbitration/tribunal and within 60 days of conclusion of proceeding.
• However, we have an exception to S. 63(2).
• With respect to arbitration we saw that as per S. 42 (7) if govt.
passes an order to prohibit such strikes when it is referred to
arbitration, workers have to stop striking and if they continue striking
such strike will be illegal.
• This will apply only when govt. passes such order.
• If no such order is passed by govt. worker can continue such
strikes during arbitration proceeding (if strike was initiated first
and referred to arbitration later).
• So after analysing section 62 and 63 we can conclude that: the legality/illegality of
strikes, depends when does a worker strikes.
• If they are striking and mater is referred to arbitration/tribunal later on, they have
to follow the following points and continuance of strikes during tribunal/
arbitration proceeding will be valid in such cases.

Strike Notice: 60 days before striking (i.e, after notice, strike

to be within 60 days)

NO STRIKE: within 14 days of giving Notice

NO STRIKE: before the expiry of date of strike mentioned

NO STRIKE: During pendency of Conciliation proceeding

before CO and within 7 days of conclusion of proceedings

NO STRIKE: During any period in which a settlement or award is in

operation
• But if a matter is referred to tribunal/ arbitration first and workers want to
strike after such reference: they must follow the following points too in addition
to strike notice etc.:

NO STRIKE: During pendency of proceeding before

Tribunal or National Tribunal and within 60 days of
conclusion of proceedings

NO STRIKE: During pendency of proceeding before

Arbitrator and within 60 days of conclusion of
proceedings
 LOCK OUT

(u) "lock-out" means 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;
• Employer must follow the provisions under Section 62.
• lockout must be legal
 Section 62(2)

(2) No employer of an industrial establishment shall lock-out any of his workers—

(a) without giving them notice of lock-out as hereinafter provided, within sixty days
before locking-out; or
(b) within fourteen days of giving such notice; or
(c) before the expiry of the date of lock-out specified in any such notice as aforesaid;
(d) during the pendency of any conciliation proceedings before a conciliation officer
and seven days after the conclusion of such proceedings; or
(e) during the pendency of proceedings before a Tribunal or a National Industrial
Tribunal and sixty days, after the conclusion of such proceedings; or
(f) during the pendency of arbitration proceedings before an arbitrator and sixty days
after the conclusion of such proceedings, where a notification has been issued
under sub-section (5) of section 42; or
(g) Settlement or award in operation
 Section 62(2) IR Code 2020: No employer of an industrial
establishment shall lock-out any of his workers—

Lockout Notice: 60 days before locking out (i.e, after notice, lockout to be
within 60 days)

NO Lockout: within 14 days of giving Notice

NO Lockout: before the expiry of date of lockout mentioned

NO Lockout: During pendency of Conciliation proceeding before CO and

within 7 days of conclusion of proceedings

NO Lockout: During pendency of proceeding before Tribunal or National

Tribunal and within 60 days of conclusion of proceedings

NO Lockout: During pendency of proceeding before Arbitrator and within 60

days of conclusion of proceedings

NO Lockout: During any period in which a settlement or award is in operation

 02
Punishment for Illegal strikes
[S. 86 (13)]
 Section 26 of ID Act. Penalty for illegal strikes and lock-outs.—
(1) Any workman who commences, continues or otherwise acts in furtherance of,
a strike which is illegal under this Act, shall be punishable with imprisonment for
a term which may extend to one month, or with fine which may extend to fifty
rupees, or with both.
SECTION 86 (13) OF IR CODE:
Any worker who commences, continues or otherwise acts in furtherance of a
strike which is illegal under this Code, shall be punishable with fine which shall
not be less than one thousand rupees, but which may extend up to ten
thousand rupees or with imprisonment for a term which may extend to one
month, or with both.
 03
LEGAL ILLEGAL, JUSTIFIED
AND UNJUSTIFIED STRIKES
• A strike may be legal yet unjustified, or it may be illegal
but justified.
• Illegal strikes are those that are prohibited under Sections
62, 63, 42(7) of the Code 2020.
• All other strikes are considered legal.
• The distinction between justified and unjustified strikes is
complex.
• Likewise, if the employer discharges union officers, or causes a
union official to be assaulted, the resultant strike is considered
justified.
• Refusal to recognize a union or to consult with it are considered
justified reasons to strike.
• When the demands of the labor are considered to be unreasonably
high or are not bonafide, or when the motive is embarrassment of the
employer in spite of his reasonable attitude, a strike is held to be
unjustified.
 Consequences of Justified Strikes:
• A strike, legal or illegal, justified, or unjustified, does not dissolve the
employer-employee relationship.
• In the case of a justified strike the employee must be reinstated in his
previous job without loss of continuity of service.
• Tribunals and courts have ruled that workers participating in legal
and justified strikes cannot be dismissed coz if this is permitted the
statutory right to strike would become ineffective even in a reasonable
and bonafide strike. This rule applies only to peaceful workers.
 • Consequences of Unjustified Strikes:
• The legal and unjustified strike raises more complex issues.
• Court has evolved the rule that: a workmen cannot be dismissed for joining a
strike which is legal but which is simply unjustified.
• These strikers are not entitled to get wages for the strike period.
• Strikes which are illegal or unjustified may be considered to be unprotected
strikes.
• The Industrial Disputes Act/IR Code2020 does not discuss the general
consequences of an illegal strike on employer-employee relations.
  Right to discharge strikers:
 An illegal strike does not automatically put an end to the employer-employee
relationship.
 An employer does not have unfettered right to dismiss a worker due to his mere
participation in such a strike.
 The worker cannot be discharged if he participated in technically illegal strike,
but he did so because of bona fide and legitimate issues, and did not commit
any act of violence or subversive activity.
 Of course, if the standing orders of the employer specifically make
participation in an illegal strike to be a misconduct, under penalty of
dismissal, then the employer is within his rights to dismiss the participants.
 Wages for the strike period:

• Participants of an illegal strike are not entitled to the wages for the
strike period. In the case of Mahalaxmi Cotton Mills, the Appellate
Tribunal observed:
“The right of the workmen to get pay for the period of the strike depends
on the question whether the strike was legal or illegal…”
 Crompton Greaves V. The Workmen (AIR 1978 SC 1489)

FACTS :
• SLP was filed before the SC by the company Crompton Greaves against
the order passed by the Industrial Tribunal of West Bengal.
• In its order the tribunal directed the appellant to pay striking
workmen their wages, for a portion of the strike period viz. from
January 11, 1968 to the end of February, 1968.
• In this case the company decided to retrench its workers in the
Calcutta branch on ground of severe recession of business.
• Apprehending mass retrenchment of the workmen who
numbered 353, the Trade Union sought the intervention in the
matter of the Minister in charge, Labour, and the Labour
Commissioner.
• Thereupon, there Assistant Labour Commissioner arranged
joint conferences to explore avenues for conciliation and
amicable settlement.
• The Assistant Labour Commissioner, however, continued to use his
good offices to bring about an amicable settlement through another
joint conference which was scheduled for January 12, 1968.
• On the afternoon of January 10 1968, the Company without
informing the Labour Commissioner that it was proceeding to
implement its proposed scheme of retrenchment, hung up a notice
retrenching 93 of its Workman belonging to its Calcutta Office.
• Treating the step taken by the Company as pretty serious demanding urgent
attention and immediate action, the workmen resorted to strike with effect
from January 11. 1968 after giving notice to the appellant and the Labour
Directorate and continued the same up to June 26, 1968.
• In the meantime the industrial dispute in relation to the justification of the
aforesaid retrenchment was referred by the State Government to the
Industrial Tribunal on March 1, 1968 and regarding the issue of the workmen
entitlement to wages for the strike period from January 11, 1968 to June 26,
1968 govt. referred to tribunal in December 1968 for adjudication.
• The Industrial Tribunal acceded to the workmen's demand for
wages for the period commencing from January 11, 1968 to the
end of February, 1968 but rejected their demand for the remaining
period of the strike observing that the redress for retrenchment
having been sought by the Union itself through the Tribunal, there
remained no justification for the workmen to continue the strike.
  ISSUES:
Whether Wages for the period of strike can be given in cases of
illegal strikes or unjustified strikes?
  HELD BY THE COURT:

• It is well settled that in order to entitle the workmen to wages for the period of
strike, the strike should be legal as well as justified.
• A strike is legal if it does not violate any provision of the statutes.
• Again, a strike cannot be said to be unjustified unless the reasons for it are
entirely perverse of unreasonable.
• Whether a particular strike was justified or not is a question of facts which has
to be judged in the light of the facts and circumstances of each case.
• It is also well settled that the use of force or violence or acts of sabotage
resorted to by the workmen during a strike disentitles them to wages for
the strike period.
• The appeal was thus dismissed as there was no merit in the case and held
the decision of tribunal as justified.
 Refer Cases

• Bank of India v. T.S kelawala (1990) (no work no pay. strikes

legal or justified doesn’t matter )

• Syndicate Bank v. K. Umesh Nayak (1994) (Kela wala case

juddgement negative in this case. Held: wages are payable only

if strikes are legal and justified.

Facts
Facts
Bank issued Circular
 FACTS:
• Certain settlements were entered into between the Union of the Workmen
and the manager of the Bank under the ID Act, the bank however did not

forward the copies of memorandum of settlements to the authorities .

• The settlements therefore were not implemented by the Bank, on the
plea that the implementation of the settlement required the government’s
approval which was in process.
• The union issued a strike notice to the Bank, demanding an immediate
implementation of the settlements and the payment of the arrears of pay
and allowances, pursuant to them.
• Subsequently the bank issued a circular notice stating that it would be
deduct salary for the days the employees go on strike, on the principle of
“no work no pay”.
• In spite of the circular, the employees went on a strike (4 hours) and fIled
a writ petition in the High Court on the issue of challenging the circular
which threatening to deduct the salary for the days of strike.
• HC Held that the workmen were entitled to wages for the period of strike as
the strike was legal and justified
• The bank filed appeal through the Special Leave petition
before the Supreme Court but the apex court set aside the
decision of the High Court and court also directed high court as
being beyond the writ jurisdiction to decide the dispute and it
should be vested in the industrial adjudicator.
 • SC held that:
• The Bank was not liable to pay either full day's salary or even the pro
rata salary for the hours of work that the employees remained in the
Bank premises without doing any work.
• It is not a mere presence of the workmen at the place of work but the
work that they do according to the terms of the contract which
constitutes the fulfilment of the contract of employment and for which
they are entitled to be paid.
• Strike is legal or illegal, the employees are not entitled to wages for
period of strike.
 Syndicate bank v. K.umesh Nayak (1994):

• Overruled TS Kelawala judgement.

• Wages to be paid for strikes when legal and
justified.
thanks Do you have
! any
questions?
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