Constitutional Law Project on Right to Strike

SUBMITTED BY:- SUBMITTED TO:- HERA FATIMA Dr Mohammad Asad Malik

B.A. LLB (HONS.)4th SEMESTERJAMIA MILLIA ISLAMIA

ACKNOWLEDGEMENT

Any accomplishment requires the effort of many people and same is true about thisproject. This project is a result of collective effort. There are innumerous helping hands behind it who have guided me on my way.First and foremost I would like to thank my Constitutional Law professor for creating such an opportunity for the students to broaden their frame of skills. It was an interesting and informative topic and the project helped me in understanding the topic really well as well as various aspects of THE RIGHT TO STRIKE.I would also like to thank my friends who helped me in making this project and also the almightyThanking you Hera Fatima

TABLE OF CONTENTS

1) INDEX OF AUTHORITIES Cases Referred Treatises Statutes2) INTRODUCTION Development of Strike Changing Attitudes To Strike3) WHAT IS STRIKE? Right To Freedoms: Article 19 Strike :Legislative Provisions Notice Of Strike Consequences Of Illegal Strike4) INTERNATIONAL NORMS AND STANDARDS5) INDUSTRIAL DISPUTES ACT, 19476) STRIKE AS A FUNDAMENTAL RIGHT 7) STRIKE AS A LEGAL RIGHT8) STRIKE AS A STATUTORY RIGHT9) JUDICIAL INTERPRETATIONS OF RIGHT TO STRIKE 10) WEAPON OF LAST RESORT11) CONCLUSION

INDEX OF AUTHORITIES

CASES REFERRED1. All India Bank Employees' Association v. National Industrial Tribunal and others, 2(3) SCR 269. 2. Bangalore Water Supply & Sewerage Board v. A. Rajappa, AIR 1978 SC 548.3. Bank of India v.I.S.Kalewala4. Bidi Supply Co. v. Union of India, 1956 SCR 267. 5. Chandramalai Estate vs. Their Workmen (1960) 2 LLJ 243 (SC). 6. Communist Party of India (M) v. Bharat Kumar and others, 1998(1) SCC 201. 7. Crompton Greaves Ltd v. Workmen AIR 1978 SC 1489 8. Ex-Capt. Harish Uppal v. Union of India and Another, 2003(2) SCC 45: 2003(1) SCT 382 (SC).9. Gujarat Steel Tubes v. Its Mazdoor Sabha, (1990) Lab IC 389 SC 10. Himatlal v. Police Commissioner, AIR 1985 SC 229. 11. Kairbitta Estate v. Rajmanickam [1960] II L.L.J. 275 (S.C.)12. Kameshwar Prasad and others v. State of Bihar and another, 1962 Suppl.1 3 SCR 369 13. Karnal Leather Karamchari Sanghathan v. Liberty Footwear Co. [1990] Lab I.C. 301.14. Kesavananda Bharati v. State of Kerala, 1973(4) SCC 225. 15. L. Chandra Kumar v. Union of India and others, 1997(2) SCT 423 (SC). 16. M/S Burn & Co. Ltd. V, Their Workmen AIR 1957 SC 38.17. Management of Chandramalai Estate, Ernakulam v. Its workmen AIR 1960 SC 902 18. Maneka Gandhi v. Union of India, AIR 1978 SC 59.19. Mineral Miner Union v. Kudremukh Iron Ore Co. Ltd 1988 (3) KarLJ 162 20. Mineral Miner Union vs. Kudremukh Iron Ore Co. Ltd 1988 (3) KarLJ 16221. Punjab National Bank v. Their Employees 1953 SCR 686 22. Radhey Shyam Sharma v. The Post Master General Central Circle, Nagpur, 1964(7) SCR 403. 23. Romesh Thappar v. The State Of Madras 1950 SCR 40424. Rothas Industries v. Its Union AIR 1976 SC 42525. Sadual textile Mills v. Their workmen,1966 SCR (3) 55826. Syndicate Bank v. K. Umesh Nayak AIR 1995 SC 319 27. T K Rangarajan v. State of Tamilnadu, AIR 2003 SC 3032. 28. Workmen of Hindustan Lever Ltd. v. Hindustan Lever Ltd., [1984] Lab I.C. 276 (SC),

TREATISES1) H.L Kumar, Law Relating To Strike, Lock-Out, Ghero And Demolition, (2nd Edn,1992) Universal Book Traders.2) H.L. Kumar,Digest of Labour Law Cases.(7th Edn,2010),Universal Law Publishing Co.3) Malhotra, O.P, The Law of Industrial Disputes, Vol. I, 5th Ed., Universal Law Publishing Co.4) M.Y. Khan, A Study of Labour & Industrial Laws, (1992), Metropolitan5) S.N. Misra, Labour & Industrial Laws, 22nd Ed. (2006), Central Law Publication.

STATUTES1) Essential Services Maintenance Act, 1960. 2) Industrial Employment (Standing Order) Act, 19263) Labour Relations (Public Service) Convention, 1978. 4) Tamilnadu Government Servants Conduct Rules, 1973. 5) The Constitution of India, 1950. 6) The Industrial Disputes Act, 1947. 7) The Tamilnadu Essential Services Maintenance Act 2002.8) Trade Unions Act, 1926.

INTRODUCTIONThe term "strike" is almost two hundred years old. The first recorded use of the phase 'to strike work' appeared in 1768 at the beginning of the Industrial Revolution in U.K[footnoteRef:1].The report of the 1867 Royal Commission on Trade Unions referred to workers having been "fined for going to work in a shop that had been struck[footnoteRef:2], but it was some time before the more sensational connotation of the word "strike" began to cloud the clarity of its metaphorical origins. In 1891, the phrase "striking a firm" appeared; by 1910 the word "strike" was suggesting to a writer the blacksmiths manner, the woodmans axe, the patriots sword[footnoteRef:3]; and the word maintained its violent association throughout syndicalist era of great strikes which ended in 1926. The year 1926 did indeed mark the end of an era, an era which ended not with a bang, but a whimper. The very term strike has been dissolving in a solution of official euphemism ever since: a spade is a mere garden implement, starvation in malnutrition and a strike is an unofficial stoppage. The word strike was originally used of both forms of industrial dispute which involve a collective stoppage of work. The word strike has been describe as willful stoppage of many kinds of activity; for instance hunger strike, rent strike, rate strike, debt strike, strikes of capital, buyers strike, farmers strike, students strike etc. [1: Annual Register, 107 (may 9th, 1968).] [2: Third report, 1867 at 27.] [3: Crosby, Strikes: When to strike-How to strike(1910).]

Generally speaking, a strike must involve a group of employed workers; that is there must be a definite employer-employee relationship between the parties involved in the dispute. Moreover, official definitions usually exclude political strikes and are restricted to dispute concerning the terms or conditions of employment. Development of Strike Until the beginning on the 19th century, the relation between the management and workers were governed by what is known as the doctrine of Laissez Faire which gave the management unbridled power over their workmen whom they could freely hire and fire as they pleased and sweat and exploit on the strength of the so-called sanctity of contract. The reason was that the labour was unorganized and commanded no bargain power to fight for better terms from their management. Even the very innocent and legitimate grievances of the working class were suppressed by the management.However, the struggle went on and the working classes suffered untold hardships but they continued their efforts to grow united and organized. It was this unity, spirit of organization and the conscience of common suffering which placed into the hands of the working called what is known as the weapon of collective bargain. So , what the working classes could not claim in law, they tried to get it in fact by organizing and controlling the supply of labour to the employers. Thus the doctrine of Laissez Faire received a rude shock and gradually became inoperative in the face of the organized labour. In our country also, the legal right tot organize themselves into trade union for collective bargaining was recognized when the Trade Union Act, 1926 was passed and brought into force with effect from 1st June 1927. To make this weapon really effective for its use, the legislature subsequently provided a sharp edge to it by giving the industrial workers the right to strike, subject to certain restriction and limitation. Another welfare legislature in India resulted in the passing of the Industrial Employment (Standing Order) Act, 1926. The model standing orders defined the terms of employment and also spelt out what type of conduct could amount to misconduct entailing punishment of fine, suspension and dismissal. This concept began gradually to be transformed into one of industrial employment. The law of master and servant fell essentially in the domain of the private law of contract. The law of industrial employment was, therefore, another step in the transition towards the public law which was regulated the relations between the employer and the employee on the basis of statuary regulations rather than by the terms of private contract. This process was rather strengthened by the passing of the Industrial Dispute Act, 1947. The industrialization afforded opportunities to the workers to unite in order, to assert their rights and to protect against the inferior working conditions and terms of employment. Thus after a long struggle the workers succeeded in establishing that the weapon of strike was open to them and the strike was recognized as a legitimate weapon in the armory of the workers for the purpose of ventilating their grievances. Now the strongest weapon with which the law has armed workmen in any industrial establishment, for collective bargaining, is the power to go on strike and it is often accelerates settlement by the employers and employees. The strike is itself a past of the bargaining process. It tests the economic bargaining power of each side and forces each to face squarely the need it has for the others contribution. As a strike progresses, the workers savings disappears, the union treasury dwindles, and the management faces mounting process. Demands are tempered, offers are extended, and compromises previously unthinkable become acceptable. The ever economic pressure of the strike is the catalyst which makes agreement possible, for the very prospect of the hardship which the strike will bring provided a prod to compromise. Collective bargaining is a process of reaching agreement and strikes are and integral and frequently necessary part of the process. That is how the development of strike took place. Now whatever may be the value of strike judged by common standards, it has, in certain circumstances, been recognized as a legitimate weapon of the workmen for the purpose of ventilating the demands. Now a day the weapon of strikes which use to be the last recourse of the labour, has become the first choice of the workers.Changing Attitudes To StrikeNaturally, strikes bear very different characters at different times, and popular attitudes to strikes- that is shared by many of the workers, themselves change also. In the first part of the 19th century, strikes, as a blind revolt against the laissez faire were considered conspiracies against the laws of the god as well as of man. Industrial revolution brought economic prosperity in UK and the establishment of stronger trade unions was reflected in the policy of New Model Unionism and modified The Great Depression and the growth of socialist propaganda bodies, developed a greater degree of self consciousness in strikers and aroused considerable public sympathy on there behalf, while the political implications of workers militancy were largely unrecognized. But from the end of the first decade of the 20th century, when events had forced the trade unions decisively into parliamentary politics, syndicalist agitation gave the strike movement a political colour. In the world at large, Britain was beginning to face an economic showdown; at home, the supply of good tempered, cheap labour upon which the fabric of our contemporary case and comfort is erected is given out. The workers in beginning now to strike for unprecedented ends against the system, against the fundamental conditions of labour, to strike for no define ends at all, perplexingly and disconcertingly the old fashioned strike was a method of bargaining, clumsy and violent perhaps, but bargaining still the new fashioned strike is far less of a haggle, far more of a display of temper.[footnoteRef:4] [4: H.G. Wells, in 1913.]

The outbreak of the war merely checked the unrest, the armistice released it; inflation, Russian intervention and slump inflamed it. In the words of Trade Union representatives in 1919, the fundamental cases of labour unrest were to be found rather in the growing determination of labour to challenge the whole existing structure of capitalist industry than in any of the more special and smaller grievances which came to the surface at any particular time.[footnoteRef:5] [5: Memorandum on the causes of labour unrest, presented by the Trade Union representatives on the joint committee at the national industrial conference, February 27th 1919.]

Revolution in Europe develop the self consciousness or class consciousness of both sides; but it accidently depended on the split between left and right in the trade union movement, which appeared very clearly in 1926 brought about new attitudes, not only the general strikes but to all strikes. This change cannot be attributed wholly to the onset of a greater depression and greater war, or to the elaboration of strike preventing machinery and to postwar full employment. Strikes today are very different from what they were 50 years ago. Yesterday they were battles; today few of them are more than protest demonstrations. The concept of social justice in a dynamic society sees justice as a matter of right and obligations considered together as a whole. Therefore, in order to achieve social justice, contractual procedure should be arranged in such a way that conditions are fair for the workers, and that at the same time, the stability and evolution of society is guaranteed. The responsibility for this rests mainly on those in position of public power, and also on all citizens.The strike phenomenon expresses a challenge to the employers power, and the emergence of the workers power not only to their economic power as their labour force, but also their political power, defined as the coordination of individual forces with the aim of struggling for recognition of the social personality of the group. This group draws its strength not only from its members but also for the community for the purpose of its members. Trade unionism coincides with the strike and hence comes into conflict not only with the employer but also with the public authorities[footnoteRef:6]. [6: H.L Kumar, Law Relating To Strike, Lock-Out, Ghero And Demolition, (2nd Edn,1992) Universal Book Traders.]

WHAT IS STRIKE?

Strike, is a work stoppage caused by the mass refusal of employees to perform work. A strike usually takes place in response to employee grievances. Strikes became important during the industrial revolution, when mass labour became important in factories and mines. In most countries, they were quickly made illegal, as factory owners had far more political power than workers. Most western countries partially legalized striking in the late 19th or early 20th centuries.Strike means a cassation of work by a body of persons employed in any industry acting in combination, or a concerted refusal, or a refusal, under a common understanding of any number of persons who are or have been so employed to continue to work or accept employment8.

RIGHT TO FREEDOMS: ARTICLE 19

Article 19 of the Indian Constitution, the rainbow of the fundamental rights, originally guaranteed seven freedoms, one of which, the right to property, had been by the 44th amendment[footnoteRef:7], made a constitutional right and had ceased to be a fundamental right. The unique feature of the freedoms guaranteed by Article 19 is that they are not absolute terms and, and clauses (2) to (6) provide for reasonable restrictions imposed on these freedoms. The restrictions may be procedural or substantive, but both must satisfy the test of reasonableness. Whether a restriction is reasonable or not is to be determined by the Court. [7: The Constitution (Forty-fourth Amendment) Act, 1978, (w.e.f. 20-6-1979).]

Reasonableness of the restriction means that any limitation imposed on an individual in the enjoyment of his right should not be arbitrary or of excessive nature, beyond what is required in the interest of public.According to Bhagwati J. the principle of reasonableness which legally as well as philosophically, is an essential element of equality and non- arbitrariness pervades Article 14 like brooding omnipresence of the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be right, just, fair, and not arbitrary, fanciful or oppressive, otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied[footnoteRef:8]. [8: Maneka Gandhi v. Union of India, AIR 1978 SC 59.]

Article 19 guarantees the following freedoms:

1) Freedom of speech and expression.

2) Freedom to assemble peacefully and without arms.

3) Freedom to form association and unions.

4) Freedom to move freely throughout the territory of India.

5) Freedom to reside and settle in any part of the territory of India.

6) Freedom to practice any profession or to carry on any occupation, trade or business.

1) FREEDOM OF SPEECH AND EXPRESSION[footnoteRef:9] [9: Article 19(1)(a) ]

A suppression of speech, in its most painful consequence would be mental sterilization. Freedoms of speech are comprehensive, and include freedom of expression concerning both public and private affairs. In guaranteeing the freedom of speech and in subjecting it to reasonable restrictions, our Constitution has to resolve the dilemma, since the choice is not between order and liberty; it is between liberty and anarchy.

Restrictions on freedom of speech may be imposed in the interests of the sovereignty and integrity of India, the security of State, friendly relationship with foreign sates, public order, decency and morality in relation to contempt court, defamation or incitement of an offence.

2) FREEDOM TO ASSEMBLE PEACEFULLY AND WITHOUT ARMS[footnoteRef:10] [10: Article 19(1)(b) ]

Democracy would have no meaning if freedom to assemble is not guaranteed. Thus, public meetings in open spaces and public streets have formed part of our national life and people have come to regard it as part of their privileges and immunities. Similarly, the right to take out a procession on the highways and Public Street is part of the right to assemble which the people have regarded as part of Indian law, even before the commencement of Constitution[footnoteRef:11]. Reasonable restrictions may be imposed in the interests of the sovereignty and integrity of India or public order. [11: Himatlal v. Police Commissioner, AIR 1985 SC 229. ]

3) FREEDOM TO FORM ASSOCIATIONS AND UNIONS[footnoteRef:12] [12: Article 19(1) (c) ]

Social functioning of organized societies is based on multiplicity of associations and organizations. No democracy can function without freedom to form associations and unions. Political parties, trade unions, social and other organizations are part of democratic functioning of the society and the government. Article 19(1) (c) guaranteed freedom to form associations and unions, though reasonable restrictions on the freedom may be imposed in the interest of integrity and sovereignty of India, public order and morality.

STRIKE - LEGISLATIVE PROVISIONS

In India unlike America right to strike is not expressly recognized by the law. The trade union Act, 1926 for the first time provided limited right to strike by legalizing certain activities of a registered trade union in furtherance of a trade dispute which otherwise breach of common economic law. The Trade Unions Act, 1926 also recognizes the right to strike. Sections 18 and 19 of the Act confer immunity upon trade unions on strike from civil liability. Now days a right to strike is recognized only to limited extent permissible under the limits laid down by the law itself, as a legitimate weapon of Trade Unions.

The scheme of the Industrial Disputes Act, 1947 implies a right to strike in industries. A wide interpretation of the term industry by the courts includes hospitals, educational institutions, and clubs and government departments. Section 2 (q)[footnoteRef:13] of the Act defines 'strike'. Sections 22[footnoteRef:14], 23[footnoteRef:15], and 24[footnoteRef:16] all recognize the right to strike. Section 24 differentiates between a 'legal strike' and an 'illegal strike'. [13: "strike" means a cessation of work by a body of persons employed in any industry acting in combination or a concerted refusal, or a refusal under a common understanding, of any number of persons who are or have been so employed to continue to work or to accept employment] [14: Prohibition of strikes and lock-outs. ] [15: General prohibition of strikes and lock-outs. ] [16: Illegal strikes and lock-outs. ]

It defines 'illegal strikes' as those which are in contravention to the procedure of going to strike, as laid down under Sections 22 and 23. The provision thereby implies that all strikes are not illegal and strikes in conformity with the procedure laid down, are legally recognized. Further, Justice Krishna Iyer had opined that "a strike could be legal or illegal and even an illegal strike could be a justified one" in Gujarat Steel Tubes v. Its Mazdoor Sabha,[footnoteRef:17] is thus beyond doubt that the Industrial Disputes Act, 1947 contemplates a right to strike. [17: (1990) Lab IC 389 SC ]

The statutory provisions thus make a distinction between the legality and illegality of strike. It is for the judiciary to examine whether it is legal or illegal and not to declare that there exists no right to strike.Article 8 (1) (d)[footnoteRef:18] provides that the States Parties to the Covenant shall undertake to ensure: "the right to strike, provided that it is exercised in conformity with the laws of the particular country. Article 2 (1)[footnoteRef:19] of the Covenant provides: "Each State Party to the present Covenant undertakes to take steps, ... with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures". [18: The International Covenant of Economic, Social and Cultural Rights (ICESCR).] [19: Ibid.]

India is a signatory to the Covenant and is therefore bound under Article 2 (1) to provide for the right to strike as enshrined in Article 8 (1) (d), through legislative measures or by other appropriate means.

NOTICE OF STRIKE

Notice to strike within six weeks before striking is not necessary where there is already lockout in existence. In Mineral Miner Union vs. Kudremukh Iron Ore Co. Ltd[footnoteRef:20]., it was held that the provisions of section 22 are mandatory and the date on which the workmen proposed to go on strike should be specified in the notice. If meanwhile the date of strike specified in the notice of strike expires, workmen have to give fresh notice. It may be noted that if a lock out is already in existence and employees want to resort to strike, it is not necessary to give notice as is otherwise required. In Sadual textile Mills v. Their workmen[footnoteRef:21] certain workmen struck work as a protest against the lay-off and the transfer of some workmen from one shift to another without giving four days notice as required by standing order 23. On these grounds a question arose whether the strike was justified. The industrial tribunal answered in affirmative. Against this a writ petition was preferred in the High Court of Rajasthan. Reversing the decision of the Tribunal Justice Wanchoo observed: [20: 1988 (3) KarLJ 162 ] [21: 1966 SCR (3) 558 ]

....We are of opinion that what is generally known as a lightning strike like this take placewithout notice.....And each worker striking......(is) guilty of misconduct under the standing

orders ........and liable to be summarily dismissed.....(as).....the strike cannot be justified at

all. "

CONSEQUENCES OF ILLEGAL STRIKE

Dismissal of workmen-

In M/S Burn & Co. Ltd. V, Their Workmen[footnoteRef:22], it was laid down that mere participation in the strike would not justify suspension or dismissal of workmen. Where the strike was illegal the Supreme Court held that in case of illegal strike the only question of practical importance would be the quantum or kind of punishment. To decide the quantum of punishment a clear distinction has to be made between violent strikers and peaceful strikers. [22: AIR 1957 SC 38.]

In Punjab National Bank v. Their Employees[footnoteRef:23] , it was held that in the case of strike, the employer might bar the entry of the strikers within the premises by adopting effective and legitimate method in that behalf. He may call upon employees to vacate, and, on their refusal to do so, take due steps to suspend them from employment, proceed to hold proper inquires according to the standing order and pass proper orders against them subject to the relevant provisions of the Act. [23: 1953 SCR 686.]

Wages-

In Cropton Greaves Ltd. v. Workmen[footnoteRef:24], it was held that in order to entitle the workmen to wages for the period of strike, the strike should be legal and justified. A strike is legal if it does not violate any provision of the statute. It cannot be said to be unjustified unless the reasons for it are entirely perverse or unreasonable. Whether particular strike is justified or not is a question of fact, which has to be judged in the light of the fact and circumstances of each case. The use of force, coercion, violence or acts of sabotage resorted to by the workmen during the strike period which was legal and justified would disentitle them to wages for strike period. [24: AIR 1978 SC 1489 ]

The constitutional bench in Syndicate Bank v. K. Umesh Nayak[footnoteRef:25] decided the matter , the Supreme Court held that a strike may be illegal if it contravenes the provision of section 22, 23 or 24 of the Act or of any other law or the terms of employment depending upon the facts of each case. Similarly, a strike may be justified or unjustified depending upon several factors such as the service conditions of the workmen, the nature of demands of the workmen, the cause led to strike, the urgency of the cause or demands of the workmen, the reasons for not resorting to the dispute resolving machinery provided by the Act or the contract of employment or the service rules provided for a machinery to resolve the dispute, resort to strike or lock-out as a direct is prima facie unjustified. This is, particularly so when the provisions of the law or the contract or the service rules in that behalf are breached. For then, the action is also illegal. [25: AIR 1995 SC 319]

Right of employer to compensation for loss caused by illegal strike-

In Rothas Industries v. Its Union[footnoteRef:26], the Supreme Court held that the remedy for illegal strike has to be sought exclusively in section 26 of the Act. The award granting compensation to employer for loss of business though illegal strike is illegal because such compensation is not a dispute within the meaning of section 2(k) of the Act. [26: AIR 1976 SC 425]

INTERNATIONAL NORMS AND STANDARDSArticle 8 (1) (d) of the International Covenant of Economic, Social and Cultural Rights (ICESCR) provides that the States Parties to the Covenant shall undertake to ensure: "the right to strike, provided that it is exercised in conformity with the laws of the particular country. Article 2 (1) of the Covenant provides: "Each State Party to the present Covenant undertakes to take steps, ... with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures".India is a signatory to the Covenant and is therefore bound under Article 2 (1) to provide for the right to strike as enshrined in Article 8 (1) (d), through legislative measures or by other appropriate means. Thus, the aforesaid domestic laws are the by-products of the international obligations and cannot be read casually as has been done in theRangarajancase.The blanket ban on the right to strike also transgresses the limits of the Conventions of the International Labour Organization (ILO). Convention 87 relates to Freedom of Association and Protection of the Right to Organize. Convention 98 refers to the Right to Organize and Collective Bargaining. Both Conventions have been ratified by 142 and 153 nations respectively including Australia, France, Germany, Italy, Japan, Pakistan, Sri Lanka, Pakistan and the United Kingdom. Both the conventions, along with eight other conventions, have also been identified by the ILO's Governing Council to be its core conventions.Convention 154 is the Collective Bargaining Convention, 1981. The Preamble to this Convention reaffirms the provision of the Declaration of Philadelphia recognising "the solemn obligation of the International Labour Organisation to further among the nations of the world programmes which will achieve ... the effective recognition of the right of collective bargaining". Further the Convention is not restricted to labour trade unions. Article 1 of the Convention states "Convention shall apply to all branches of economic activity". Public employees are also not exempted from the above. Convention 151 is the Labour Relations (Public Service) Convention, 1978. Article 9 of the Convention provides: "Public employees shall have, as other workers, the civil and political rights which are essential for the normal exercise of freedom of association, subject only to the obligations arising from their status and the nature of their functions".Though India is not a signatory to any of the above-mentioned ILO Conventions, it has been a member of the ILO since 1919. The ILO Declaration on Fundamental Principles and Rights at Work states: "The International Labour Conference, ... Declares that all Members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of membership in the Organization, to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions, namely: freedom of association and the effective recognition of the right to collective bargaining".Therefore, by virtue of being a member of the ILO, India is under obligation to satisfy at least the fundamental rights promoted by the Conventions, irrespective of it having ratified them or not. Further, India is not an ordinary member of the ILO, but one of the founding members of the Organization. After 85 years of this relationship that India has had with the Organization, our Apex court has refused to adhere to the fundamental tenets of the ILO.

INDUSTRIAL DISPUTES ACT, 1947The Industrial Disputes Act, 1947 refrains generally the Trade Unions from going on strike. Its focal thrust is on more efficient alternative mechanisms for dispute settlement, such as, reference to Industrial Tribunals, compulsory adjudication, conciliation, etc. In fact the very intention behind its enactment as illustrated in the Statement of Objects and Reasons, was to overcome the defect in the Trade Unions Act, 1926, which was, that it imposed restraints on the right to strike but did not provide for alternative settlement of the disputes.The Statement further reads as under: "The power to refer disputes to Industrial Tribunals and enforce their awards is an essential corollary to the obligation that lies on the Government to secure conclusive determination of the disputes with a view to redressing the legitimate grievances of the parties thereto, such obligation arising from the imposition of restraints on the rights of strike and lock-out, which must remain inviolate, except where considerations of public interest override such right".Thus, the concept of alternative settlement mechanisms in industrial disputes was statutorily ushered in the Act with a view to providing a forum and compelling parties to resort to the forum for arbitration so as to avoid confrontation and dislocation in industry, that a developing country like India can ill-afford. Peace and harmony in industry and uninterrupted production being the demand of the time, it was considered wise to arm the Government with the power to compel the parties to resort to arbitration and a necessary corollary to avoid confrontation and trial of strength which are considered wasteful from national and public interest point of view[footnoteRef:27]. [27: Workmen of Hindustan Lever Ltd. v. Hindustan Lever Ltd., [1984] Lab I.C. 276 (SC), per Desai, J]

Sections 4, 5, 6, 7, 7A, 7B, 9, 10 and 10A of the Industrial Disputes Act, 1947 provide alternative measures for settlement of industrial disputes elaborately. Section 4[footnoteRef:28] of the Act provides for a diplomatic procedure which endeavours to settle a controversy by assisting parties to reach a voluntary agreement and the ultimate decision is made by the parties themselves[footnoteRef:29]. The conciliation machinery provided for in the Act, can take note of the existing as well as apprehended disputes either on its own or on being approached by either of the parties. Since the final decision is with the parties themselves, they cannot complain that their practical freedom has been impaired or that they have been forced into a settlement which is unacceptable to them[footnoteRef:30]. [28: .Conciliation Officers.- (1) The appropriate Government may, by notification in the Official Gazette, appoint such number of persons as it thinks fit, to be conciliation officers, charged with the duty of mediating in and promoting the settlement of industrial disputes.] [29: Malhotra, O.P., The Law of Industrial Disputes, Vol. I, 5th Ed., Universal Law Publishing Co., Delhi, 1998 at p. 12.] [30: Note- One of the most important Section are, 10 and 10A, which talk about references of Disputes to Boards, Courts or Tribunal. Section 10(1) states: Where the appropriate Government is of the opinion that any Industrial Dispute exists or is apprehended, it may at any time, by order in writing, Refer the dispute to the Board for promoting a settlement thereof. Refer any matter appearing to be connected with or relevant to the dispute to a court for inquiry. Refer the dispute to a Labour Court. Further Section 10A talks about voluntary reference of disputes to Arbitration. Section10 A (1) states that "Where any industrial dispute exists or is apprehended and the employer and the workmen agree to refer the dispute to arbitration, they may at any time before the dispute has been referred to under Section 10, by a written agreement refer the dispute to arbitration and the reference shall be to such person or persons as an arbitrators as may be specified in the arbitration agreement".]

Section 6 provides for the constitution of a Court of Inquiry, that enquires into the merits of the issues and prepares a report on them that is "intended to serve as the focus of public opinion and of pressure from Government authorities"[footnoteRef:31]. Section 10 A provides for voluntary arbitration. Voluntary arbitration seems to be the best method for settlement of all types of industrial disputes. The disputes can be resolved speedily and is less formal than trials. The greatest advantage of arbitration is that there is no right of appeal, review or writ petition. Besides, it may well reduce a company's litigation costs and its potential exposure to ruinous liability apart from redeeming the workmen from frustration[footnoteRef:32]. Apart from these, Sections 7, 7A and 7B deal with the constitution of adjudicatory authorities, viz., Labour Courts, Tribunals or National Tribunals, respectively. [31: International Encyclopedia of Social Sciences, Vol. 8, p. 508.] [32: Karnal Leather Karamchari Sanghathan v. Liberty Footwear Co. [1990] Lab I.C. 301 at 307 (SC), per Jagannatha Shetty, J.]

It is submitted that these alternative machinery for settlement of industrial disputes are proving to be highly effective. Report of the National Commission on Labour[footnoteRef:33], according to which "during the years 1959-66, out of the total disputes handled by each year, the percentage of settlements had varied between 57 and 83. The remaining disputes, it is reported, were settled mutually referred to voluntary arbitration or arbitration under the Act or to adjudication or were not pursued by the parties. During the period 1965-67, the percentage of settlements reached in Bihar ranged from 51 to 86, in Assam from 65.5 to 92.3. In U.P., Punjab and Delhi, in the year 1966, the percentage of disputes settled was 60, whereas in Kerala it ranged around 80 per cent. The statistics for settlement of disputes by alternative mechanism are greater those for that by strike where the disputes are mainly left unresolved. [33: Chapter 3.- Industrial Relations-1, under the heading 'Conciliation', para 23, 16 at p. 322]

The provision of such an elaborate and effective mechanism for settlement of industrial disputes, along with a reading of the Statement of Objects and Reasons, is a definitive indication of the fact that the statute enshrines a preference to these alternative mechanisms over strikes.

STRIKE AS A FUNDAMENTAL RIGHT

Trade Unionswith sufficient membership strength are able to bargain more effectively The bargaining strength would be considerably reduced if it is not permitted to demonstrate by adopting agitational methods such as sit-down strike, and strike. This has been recognized by almost all democratic countries.As the statement of theIndian Supreme Courtquoted above indicates, the ability to go on strike is perhaps the labour class most effective weapon in its struggle to convince employers to heed its demands , and a key element of their bargaining power. Despite recognizing this fact, the Supreme Court displayed a very different attitude to the right to strike when confronted by this issue again.In T.K. Rangarajan vs. Government of Tamil Nadu and Others (the Tamil Nadu Government Employees Case[footnoteRef:34]), Justice M.B. Shah, speaking for a Bench of the Supreme Court consisting of himself and Justice A.R. Lakshmanan, said, "Now coming to the question of right to strike whether fundamental, statutory or equitable moral right to strike in our view no such right exists with the government employee." [34: AIR 2003 SC 3032]

Even as early as 1961, the Supreme Court held that even a very liberal interpretation of Article 19 (1)(c) cannot lead to the conclusion that the trade unions have a guaranteed right to strike as part of collective bargaining or otherwise[footnoteRef:35].In support of the theory of "concomitant right" to collective bargaining, reliance was placed on Romesh Thapparv. The State Of Madras[footnoteRef:36] where it was observed, "There can be no doubt that freedom of speech and expression includes freedom of propagation of ideas and that freedom is ensured by the freedom of circulation." It was argued if freedom of speech and expression "in Article 19 (1) (a) was given the liberal construction so as to effectuate the object for which the freedom was conferred, a similar construction should be adopted regarding the freedom of association guaranteed under Article 19 (1) (c)." [35: All India Bank Employees Association v. National Industrial Tribunal [1962]3 SCR 269] [36: 1950 SCR 404]

The Supreme Court observed, "There was no analogy between the two cases", that it was "one thing to interpret each of the freedoms guaranteed liberally" but it was another "to read each guaranteed right as involving the concomitant right necessary to achieve the object which might be supposed to underlie the grant each of such rights, for such a construction would, by ever expanding concentric circles in the shape of rights concomitant to concomitant right and so on, lead to an almost grotesque result."The Supreme Court in the instant case also referred to Kameswar Prasad v. State of Bihar[footnoteRef:37] in holding there is no fundamental right to strike. The Supreme Court was perhaps therefore right in following its earlier judgments that there is no fundamental right to strike. [37: (1962) Supp 3 SCR 369]

The Supreme Court referred to Tamil Nadu Government Servants Conduct Rules 1973 where Rule 22 provides that no Government employee shall engage himself in strike or in incitements thereto or in similar activities. In view of this rule the Supreme Court was right in holding that the strike was illegal. It is not known whether other Government Servants Conduct Rules contain a similar provision.Earlier, before referring to the Tamil Nadu Rules, the Supreme Court gave the reason for holding the strike as illegal that there is no legal/statutory right to go on strike. The Supreme Court was evidently referring to the case of the Tamil Nadu Government employees with which it was concerned, for there are statutory provisions like the Industrial Disputes Act, which gives the right to strike to certain categories of employees.Even if the judgment refers to the absence of statutory provision in the case of Tamil Nadu Government employees, it is respectfully submitted that no statutory provision is needed to enable employees to go on strike. If the right of an employee is denied by the employer or is interfered with, he has the right not to do work, i.e., to go on strike. If it is denied to a group of employees or all the employees, all of them can refuse to work for the employer (or go on strike) and a union representing the employees may ask them to go on strike.As Soli Sorabjee, the Attorney-General, pointed out, the right to strike is a valuable right. In B.R. Singh v. Union of India[footnoteRef:38], Justice Ahmadi observed that the right to strike is an important weapon in the armour of workers as a mode of redress. Therefore, no statutory provision is needed to confer on the employees the right to strike. [38: (1990) Lab IC 389 SC.]

It is quite another matter if any statute or rule makes it illegal for the employees to go on strike unless and until the statue or rule is struck down.Unfortunately, the Supreme Court goes further and says that there is no moral or equitable justification to go on strike. Though broadly worded as if to apply to every employee, it is clear from the sentence that follows, viz., "Government employees cannot claim that they can take the society at ransom by going on strike," that the Supreme Court refers to the moral right of Government employees.Even so, it is respectfully submitted that the Supreme Court is not right in saying that Government employees have no moral right to strike. There may be many instances when the employees may be harassed and all avenues of their rights being recognised are closed, in which case the employees may have no other course than to go on strike.Evidently, the Supreme Court was carried away by the fact that nearly two lakh Government employees went on strike in the instant case and the Government machinery came to a standstill. It seems to have also been influenced by the fact stated by senior counsel for the State Government, K.K. Venugopal, that 90 per cent of the State's revenue in Tamil Nadu is spent on salaries of Government servants.It is true that Government employees everywhere are paid better salaries and enjoy more privileges and amenities than other employees. The public sympathy is generally against Government employees who go on strike. But that is no justification for the Supreme Court to say that Government employees have no moral justification to go strike in every case.Not stopping with the case of Government employees, the Supreme Court refers to several categories of employees in the following words, "In case of strike by a teacher entire educational system suffers... In case of strike by doctors innocent patients suffer; in case of employees of transport services entire movement of the society comes to a standstill; business is adversely affected and number of persons find it difficult to attend to their work, to move from one place to another or from one city to another. On occasion public properties are destroyed... "It is respectfully submitted that there was no necessity for this extreme reaction against all cases of employees when the Supreme Court was dealing with the strike by Tamil Nadu Government employees. The Supreme Court must be certainly aware that in certain States teachers are not paid salaries for several years. Doctors, especially junior doctors, have on many occasions genuine grievance against the Government or other employers. Destruction or damage of public property is not always the result of strikes. It is true that in some cases the right to strike is being misused but that is no reason why all strikes should be condemned as immoral.There seems to be some move to have the judgment of the Supreme Court reviewed. As far as the Tamil Nadu Government is concerned, the Supreme Court, perhaps having in mind the judgment of Justice V.R. Krishna Iyer that even illegal strikes need not attract dismissal (vide Gujarat State Steel Tube Case), directed that all employees who were suspended except those who resorted to violence should be reinstated if they apologise and that direction has been complied with. So there is no need for review in their case.In case of other employees, the strong opinions expressed against strikes by other categories of employees is not evenobiter dictumand is the mere expression of personal views of the two judges concerned and there is no need to ask for any review except as regards theobiter dicta that there can be no strike if there is no legal/statutory right to do so.

STRIKE AS A LEGAL RIGHTThe working class has indisputably earned the right to strike as an industrial action after a long struggle, so much so that the relevant industrial legislation recognizes it as their implied right[footnoteRef:39]. Striking work is integral to the process of wage bargaining in an industrial economy, as classical political economy and post-Keynesian economics demonstrated long ago in the analysis of real wage determination. [39: Bank of India v. T.S. Kelawala, 1990 (4) SCC 744.]

A worker has no other means of defending her/his real wage other than seeking an increased money wage. If a capitalist does not grant such an increase, s/he can be forced to come to a negotiating table by striking workers. This s/he can do because the earnings of the capitalist are contingent upon the worker continuing to work. The argument is drawn from Ricardian and Marxian classical political economy that shows how the employer's income is nothing other than what is alienated from the worker in the process of production. When workers stop working, capitalists stop earning. The same applies to government servants as well. When they strike work, it is not the authorities who suffer a loss of income or disruption of their income generating process but the general public. Here, authorities come to a negotiating table mainly under political pressure or in deference to public opinion.The right to strike is organically linked with the right to collective bargaining and will continue to remain an inalienable part of various modes of response/expression by the working people, wherever the employer-employee relationship exists, whether recognized or not. The Apex court failed to comprehend this dynamic of the evolution of the right to strike.InB.R. Singh v. Union of India[footnoteRef:40], Justice Ahmadi opined that "The Trade Unions with sufficient membership strength are able to bargain more effectively with the management than individual workmen. The bargaining strength would be considerably reduced if it is not permitted to demonstrate by adopting agitational methods such as 'work to rule', 'go-slow', 'absenteeism', 'sit-down strike', and 'strike'. This has been recognized by almost all democratic countries". [40: [1990] Lab I.C. 389 (396) (S.C.)]

InGujarat Steel Tubes v. Its Mazdoor Sabha[footnoteRef:41], Justice Bhagwati opined that right to strike is integral of collective bargaining. He further stated that this right is a process recognized by industrial jurisprudence and supported by social justice.Gujarat Steel Tubesis a three-judge bench decision and cannot be overruled by the division bench decision ofRangarajan. In theRangarajancase the court had no authority to wash out completely the legal right evolved by judicial legislation. [41: AIR 1980 SC 1896]

STRIKE AS A STATUTORY RIGHTThe scheme of the Industrial Disputes Act, 1947 implies a right to strike in industries. A wide interpretation of the term 'industry'[footnoteRef:42] by the courts includes hospitals, educational institutions, clubs and government departments. Section 2 (q) of the Act defines 'strike'. Sections 22, 23, and 24 all recognize the right to strike. Section 24 differentiates between a 'legal strike' and an 'illegal strike'. It defines 'illegal strikes' as those which are in contravention to the procedure of going to strike, as laid down under Sections 22 and 23. The provision thereby implies that all strikes are not illegal and strikes in conformity with the procedure laid down, are legally recognized. Further, Justice Krishna Iyer had opined that "a strike could be legal or illegal and even an illegal strike could be a justified one" (ix). It is thus beyond doubt that the Industrial Disputes Act, 1947 contemplates a right to strike. [42: Bangalore Water Supply & Sewerage Board v. A. Rajappa, AIR 1978 SC 548.]

The statutory provisions thus make a distinction between the legality and illegality of strike. It is for the judiciary to examine whether it is legal or illegal. Is the total ban on strikes post-Rangarajannot barring judicial review which itself is a basic structure of the Constitution? Further, Sections 22, 23 and 24 of the Act imply a right to strike for workers and a right to lock-out for the employers. InKairbitta Estate v. Rajmanickam[footnoteRef:43],Justice Gajendragadkar opined: "In the struggle between the capital and labour, the weapon of strike is available to labour and is often used, as is the weapon of lock-out available to the employer and can be used by him"[footnoteRef:44]. The workers' right to strike is complemented by the employers' right to lock-out, thus maintaining a balance of powers between the two. However, theRangarajanjudgement, by prohibiting strikes in all forms but leaving the right to lock-out untouched, tilts the balance of power in favour of the employer class. [43: [1960] II L.L.J. 275 (S.C.)] [44: Id. at 278]

The Court, in opining that strikes 'hold the society at ransom', should have taken into account that the number of man days lost due to strikes has gone down substantially during the last five years. Whereas there has been a steep rise in the man days lost due to lock-outs, due to closures and lay-offs (Annual Report of the Union Labour Ministry (2002-03). In 2001, man days lost due to lock-outs were three times more than those due to strikes. In 2002 (January-September) lockouts wasted four times more man days than strikes. Who is holding the production process to ransom? Definitely, not the workers. The Apex court preferred to overlook the recent strike by the business class against the value added tax and also the transport companies' strike against the judicial directive on usage of non-polluting fuel, both of which created much more chaos and inconvenience to the common people. It is submitted that the court came to a conclusion without looking at the industrial scenario in the present times. Should the apex court not consider banning closures, lock-outs, muscle-flexing by the business class etc., which not only put people to inconvenience but also throw the workers at risk of starvation?[footnoteRef:45] [45: Sen, Tapan, Right to Strike is Inalienable, People's Democracy, Vol. XXVII, No. 35, Aug. 31, 2003]

Besides the Industrial Disputes Act, 1947, the Trade Unions Act, 1926 also recognizes the right to strike. Sections 18[footnoteRef:46] and 19[footnoteRef:47] of the Act confer immunity upon trade unions on strike from civil liability. [46: S. 18 provides for immunity from legal proceedings in respect of any act done in contemplation or furtherance of any trade dispute on the sole ground of inducing person to break a contract of employment.] [47: 19. Enforceability of agreements.- Notwithstanding anything contained in any other law for the time being in force, an agreement between the members of a registered trade Union shall not be void or voidable merely by reason of the fact that any of the objects of the agreement are in restraint of trade.]

JUDICIAL INTERPRETATIONS OF RIGHT TO STRIKEStrike is a temporary stoppage of work by a group of employees in order to express a grievance or to enforce a demand concerning changes in work conditions. Strike is neither an act of war against the industry nor against the employer. It is basically a weapon of self-defense against the arbitrary and unjust policy of the management. It is a social necessity for promoting or defending the just economic interest of the working class.The right to strike has acquired an implied authorization from Articles 23, 24 and 25 of the Universal Declaration of Human Rights (1948). In India the Trade Unions Act, 1926 for the first time provided limited right to strike by legalizing certain activities of a registered trade union. 1 Further, the Industrial Disputes Act, 1947 recognized that the workers have the right to strike in certain circumstances other than those prohibited.26 The Supreme Court in Chandramalai Estate vs. Their Workmen[footnoteRef:48], recognized that strike is a legitimate and sometimes unavoidable weapon in the hands of labourers. [48: (1960) 2 LLJ 243 (SC). ]

In the Indian Constitutional set up the right to strike is not an absolute right but it flows from the fundamental right to form union and is subject to reasonable restrictions. The question, whether the right to strike is a fundamental right came up for consideration in All India Bank Employees' Association v. National Industrial Tribunal[footnoteRef:49], where the Supreme Court observed: [49: AIR 1962 SC 171. ]

"Even a very liberal interpretation of sub-clause (c) of clause (1) of Article 19 cannot lead to the conclusion that the trade unions have a guaranteed right to strike either as part of collective bargaining or otherwise......The right to strike or the right to declare lock-out may be controlled or restricted by appropriate industrial legislation, and the validity of such legislation would have to be tested not with reference to the criteria laid down in clause (4) of Article 19 but by totally different considerations."The right of Government Servants to form associations, hold demonstrations and strikes has been debated since long. The position is somewhat anomalous. On the one hand, government servants like industrial workers have the guaranteed fundamental right to form association or union and to demonstrate for redressal of their grievances, on the other hand, unlike industrial workers, government servants generally are charged with onerous responsibilities for operating essential and vital services to the community. As such they are expected to behave in a responsible manner without resorting to concerted activity on the ground that strike would be tantamount to disloyalty to the nation and the public. Government has tried to regulate strikes by the government servants through the Government Servants Conduct Rules, Essential Services Maintenance Ordinances, etc. and withdrawal of recognition of union formed by government servants. Rule 4A of the Central Civil Services Conduct Rules, 1955 reads:No Government servant shall participate in any demonstration or resort to any strike in connection with any matter pertaining to his conditions of service The Supreme Court in Kameshwar Prasad v. State of Bihar[footnoteRef:50] held that a person did not lose his fundamental rights by joining government services. Article 33 of the Constitution provides that fundamental rights of the members of the Armed Forces, etc. can be abridged or abrogated by law, thus implying that fundamental rights of other government servants cannot be abridged. Rule 4A was held to be valid so far as it referred to strikes, and void in so far as it referred to demonstrations because it violated the fundamental right of speech and expression. In T.K. Rangrajan v. Government of Tamil Nadu[footnoteRef:51] the Supreme Court held that the government employees have no fundamental, legal, moral or equitable right to go on strike even for a just cause. [50: 1962 SCR 369. ] [51: 1962 SCR 369. ]

Recently, in April, 2011, several members of Indian Commercial Pilots Association went on strike resulting in six pilots being sacked by State owned Air India thereby derecognizing their Association. Hon'ble Justice Geeta Mittal of the Delhi High Court asked the 800 pilots to call off their agitation, barring the pilots from resorting to any kind of demonstration and asked them to resume work in the larger public interest and declared the strike illegal, as it was against the commercial interest of the public airline as well as against the larger public interest.[footnoteRef:52] [52: The Hindu, New Delhi, April 27, 2011 ]

To conclude, strike as a weapon has to be used sparingly for redressal of urgent and pressing grievances when no other means are available or when available means have failed to resolve a dispute. Every dispute between an employer and employee has to take into consideration the third dimension, viz. the interest of the society as a whole. However, the workers must have the right to strike for the redress of their grievances and they must be paid wages for the strike period when the strike is legal and justified. The right to strike in the Indian constitution set up is not absolute right but it flow from the fundamental right to form union. As every other fundamental right is subject to reasonable restrictions, the same is also the case to form trade unions to give a call to the workers to go on strike and the state can impose reasonable restrictions.In All India Bank Employees' Association v. National Industrial Tribunal and others[footnoteRef:53], the Court specifically held that even very liberal interpretation of sub-clause (C)[footnoteRef:54] of clause (1) of Article 19 cannot lead to the conclusion that trade unions have a guaranteed right to an effective collective bargaining or to strike, either as part of collective bargaining or otherwise. [53: (1962) 3 SCR 269 ] [54: Right to form associations or unions]

Thus, there is a guaranteed fundamental right to form association or Labour unions but there is no fundamental right to go on strike. Under the Industrial Dispute Act, 1947 the ground and condition are laid down for the legal strike and if those provisions and conditions are not fulfilled then the strike will be illegal.It was also held that, strike a weapon to force the employer to accede to employees demand and to give them the legitimate dues is a strike which is recognized under the Industrial Disputes Act as defined in Sec 2 (q).In Bank of India v.I.S.Kalewala the constitutional bench held that, whether the strike is legal or justified is question of fact to be decided with the help of the evidence on record.In Crompton Greaves Ltd v. Workmen[footnoteRef:55]t he division bench held it that a strike is legal if it does not violate any provision of the statute. Again a strike cannot be said to be unjustified unless the reasons for it are entirely perverse and unreasonable. Whether a particular strike was justified or not is a question of fact which has to be justified in the light of the facts and circumstances of each case. [55: AIR 1978 SC 1489 ]

In the case concerning Management of Chandramalai Estate, Ernakulam v. Its workmen [footnoteRef:56]a division bench judgment, there was a dispute between the management and the workers and the labour minister decided to arbitrate the matter. In this case it was held that the strike in protest of the recalcitrant attitude of the management in boycotting the conference, held on 23rd November, 1961 by the labour minister of the state was not unjustified. It was also held in this case that strike is legitimate and sometimes an unavoidable weapon in the hands of the workers. There may be cases where the demand is of such an urgent and serious nature that it would not be reasonable to expect labour to wait till after the government takes notice. In such cases, strike even before such a request has been made may well be justified [56: AIR 1960 SC 902 ]

WEAPON OF LAST RESORTWhile on the one hand it has to be remembered that a strike is a legitimate and sometime unavoidable weapon in the hands of labour, it is equally important that indiscriminate and hasty use of this weapon should not be encouraged. It will not be right for labour to think that any kind of demand for a 'strike' can be commenced with impunity without exhausting the reasonable avenues for peaceful achievement of the objects. There may be cases where the demand is of such an urgent and serious nature that it would not be reasonable to expect the labour to wait after asking the government to make a reference. In such cases the strike, even before such a request has been made, may very well be justified[footnoteRef:57]. [57: Chandra Malai Estate, Ernakulum v. Its Workmen31, per Das Gupta, J.]

InSyndicate Bank v. K. Umesh Nayak[footnoteRef:58], Justice Sawant opined: "The strike, as a weapon, was evolved by the workers as a form of direct action during their long struggle with the employer, it is essentially a weapon of last resort being an abnormal aspect of employer-employee relationship and involves withdrawal of labor disrupting production, services and the running of enterprise. It is a use by the labour of their economic power to bring the employer to meet their viewpoint over the dispute between them. The cessation or stoppage of works whether by the employees or by the employer is detrimental to the production and economy and to the well being of the society as a whole. It is for this reason that the industrial legislation, while not denying for the rights of workmen to strike, has tried to regulate it along with the rights of the employers to lockout and has also provided a machinery for peaceful investigation, settlement arbitration and adjudication of dispute between them. The strike or lockout is not be resorted to because the concerned party has a superior bargaining power or the requisite economic muscle to compel the other party to accept its demands. Such indiscriminate case of power is nothing but assertion of the rule of 'might is right'". [58: [1994] II L.L.J 836 (SC)]

Thus, initially, employees must resort to dispute settlement by alternative mechanisms. Only under extreme situations when the alternative mechanisms have totally failed to provide any amicable settlement, can they resort to a strike as a last resort.CONCLUSIONStrike is a weapon that empowers the disempowered to fight in oppressive cases when no constructive option is left. It is a weapon of the last resort taken out of exasperation. It is this weapon, which provides an opportunity for collective bargaining. The modern form of strikes had its origin in the era of industrial revolution and assumed its multifarious forms and dimensions during the Indian national movement varying from bandh, hartal, and protestation to hunger strike, Satyagraha, non-co-operation and civil disobedience etc., it was considered inalienable right and duty of a patriot to protest against the mighty colonial rule. People who took part in protests were regarded as patriots. Paradoxically, after 50 years of Independence the act of participation in a strike even for a good cause is considered illegal.

To avoid strikes is everyone's responsibility. But to assert that strikes under any circumstances are illegal, immoral, inequitable and unjustified is contrary to our law and industrial jurisprudence. Striking work is integral to the process of wage bargaining in an industrial economy, as classical political economy and post-Keynesian economics demonstrated long ago in the analysis of real wage determination. A worker has no other means of defending her/his real wage other than seeking an increased money wage.

If a capitalist does not grant such an increase, he/she can be forced to come to a negotiating table by striking workers. This he/she can do because the earnings of the capitalist are contingent upon the worker continuing to work. The argument is drawn from and Marxian classical political economy that shows how the employer's income is nothing other than what is alienated from the worker in the process of production. When workers stop working, capitalists stop earning. The same applies to government servants as well. When they strike work, it is not the authorities that suffer a loss of income or disruption of their income generating process but the general public. Here, authorities come to a negotiating table mainly under political pressure or in deference to public opinion.If a capitalist does not grant such an increase, he/she can be forced to come to a negotiating table by striking workers. This he/she can do because the earnings of the capitalist are contingent upon the worker continuing to work. The argument is drawn from and Marxian classical political economy that shows how the employer's income is nothing other than what is alienated from the worker in the process of production. When workers stop working, capitalists stop earning. The same applies to government servants as well. When they strike work, it is not the authorities that suffer a loss of income or disruption of their income generating process but the general public. Here, authorities come to a negotiating table mainly under political pressure or in deference to public opinion.

In B.R. Singh v. Union of India[footnoteRef:59] Justice Ahmadi opined "The Trade Unions with sufficient membership strength are able to bargain more effectively with the management than individual workman. The bargaining strength would be considerably reduced if it were not permitted to demonstrate by adopting agitation methods such as 'work to rule', 'go-slow', 'absenteeism', 'sit-down strike', and 'strike'. This has been recognized by almost all democratic countries". [59: (1990) Lab IC 389 SC. ]

In Gujarat Steel Tubes v. Its Mazdoor Sabha[footnoteRef:60], JUSTICE Bhagwati opined that right to strike is integral of collective bargaining. He further stated that this right is a process recognized by industrial jurisprudence and supported by social justice. [60: AIR 1980 SC 1896. ]

Justice Shah's judgment in Rangarajan case does not seem to be right when saying: "There is no statutory provision empowering the employees to go on strike." Going further, the judge then declared that there was "no moral or equitable justification to go on strike. This observation does ignore the legal provisions under the Indian Law and International conventions.

The scheme of the Industrial Disputes Act, 1947 implies a right to strike in industries. A wide interpretation of the term industry by the courts includes hospitals, educational institutions, and clubs and government departments. Section 2 (q)[footnoteRef:61] of the Act defines 'strike'. Sections 22[footnoteRef:62], 23[footnoteRef:63], and 24[footnoteRef:64] all recognize the right to strike. Section 24 differentiates between a 'legal strike' and an 'illegal strike'. It defines 'illegal strikes' as those which are in contravention to the procedure of going to strike, as laid down under Sections 22 and 23. The provision thereby implies that all strikes are not illegal and strikes in conformity with the procedure laid down, are legally recognized. [61: strike" means a cessation of work by a body of persons employed in any industry acting in combination or a concerted refusal, or a refusal under a common understanding, of any number of persons who are or have been so employed to continue to work or to accept employment] [62: Prohibition of strikes and lock-outs ] [63: General prohibition of strikes and lock-outs. ] [64: Illegal strikes and lock-outs ]

Further, Justice Krishna Iyer had opined that "a strike could be legal or illegal and even an illegal strike could be a justified one" in Gujarat Steel Tubes v. Its Mazdoor Sabha[footnoteRef:65], is thus beyond doubt that the Industrial Disputes Act, 1947 contemplates a right to strike. [65: AIR 1980 SC 1896.]

The statutory provisions thus make a distinction between the legality and illegality of strike. It is for the judiciary to examine whether it is legal or illegal and not to declare that there exists no right to strike.

Besides the Industrial Disputes Act, 1947, the Trade Unions Act, 1926 also recognizes the right to strike. Sections 18 and 19 of the Act confer immunity upon trade unions on strike from civil liability.

Article 8 (1) (d)[footnoteRef:66] provides that the States Parties to the Covenant shall undertake to ensure: "the right to strike, provided that it is exercised in conformity with the laws of the particular country. Article 2 (1)[footnoteRef:67] of the Covenant provides: "Each State Party to the present Covenant undertakes to take steps, ... with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures". [66: The International Covenant of Economic, Social and Cultural Rights (ICESCR) ] [67: Ibid.]

India is a signatory to the Covenant and is therefore bound under Article 2 (1) to provide for the right to strike as enshrined in Article 8 (1) (d), through legislative measures or by other appropriate means.

The blanket ban on the right to strike also transgresses the limits of the following Conventions of the International Labour Organization (ILO): Freedom of Association and Protection of the Right to Organize[footnoteRef:68]. The Right to Organize and Collective Bargaining[footnoteRef:69]. Collective Bargaining Convention, 1981[footnoteRef:70]. Labour Relations (Public Service) Convention, 1978[footnoteRef:71]. [68: Convention 87.] [69: Convention 98.] [70: Convention 154.] [71: Convention151.]

Article 9[footnoteRef:72] of the Convention provides: "Public employees shall have, as other workers, the civil and political rights which are essential for the normal exercise of freedom of association, subject only to the obligations arising from their status and the nature of their functions". [72: Ibid.]

By virtue of being a member of the ILO, India is under obligation to satisfy at least the fundamental rights promoted by the Conventions, irrespective of it having ratified them or not. With the Rangarajan verdict, the Apex court has refused to adhere to the fundamental tenets of the ILO.

Further, the right to strike being well recognized under the scheme of central legislation i.e. the Industrial Disputes Act, and forming an inalienable part and parcel of the same, could not be taken away by way of enacting legislation by the state assembly or by merely issuing a notification or any other executive action which necessarily involves but only a subordinate, delegated or residue jurisdiction and capacity, inferior to that of the central legislature in any case, and as such is incapable of overreaching the rights created or recognized by the central legislature.

The provisions of the enactment passed by the state legislature TESMA, the service rules, specifically Rule 22 of the Conduct Rules and the Ordinance of 2003, imposing a ban on the right to strike, all belong to such category of inferior legislation and thus as far as they subvert or even restrict the sweep of the right to strike available to the employees under the central legislation Industrial Disputes Act, are all illegal, ultra virus to the legislature and should have been struck down on this ground alone.

In a state of conflict between recognition of such rights by central legislation and their

abrogation by the state legislation through TESMA or rules framed under the residue power of the executive like the conduct rules, the provisions of the central legislation would doubtlessly hold the ground. As such, the rights, benefits, protection accruing under the Industrial Disputes Act including the right to strike are doubtlessly available to the government employees, and their status of being under the employment of the government neither has any relevance nor makes a difference for the purpose of availability of such right.