GENERAL PROHIBITION OF STRIKES AND LOCKOUTS

This article is written by Nanditha K S of 2^nd year of IIFM Law School, an intern under Legal Vidhiya

Abstract

Strike and lockout are two instruments at the hands of employees and employers to negotiate the demands of the labor conditions. Both are powerful tools having the potential to disrupt the economic and social state of both the employees and employers. To promote peaceful conciliation between the two without such drastic measures certain prohibition exists under the Industrial Disputes Act of 1947 (hereinafter; the Act). The current Article tries to explain the meaning of strike and lockout and the general prohibition on them under the Act. Further, the article also discusses illegal strikes and lockouts and penalties following it.  

Keywords

Strike, Lockouts, General Prohibition of Strikes and Lockouts, Illegal Strike and Lockout, Justified and unjustified Strike & Lockouts, Industrial Disputes Act.

GENERAL MEANING OF STRIKES AND LOCKOUTS

Strikes are mass refusal to work by a group of employees or by a trade union. A refusal is a form of protest demanding the employer or employers to fulfill their request. The request might vary from wage increase to other working conditions. In contrast, lockouts are refusal by the employer to continue to employ the employees. Lockouts are temporarily shut down of the industry as a response to a labor dispute. Lockouts are the antithesis of Strikes. Both tools are used as last resort as they can create affect both the employer and the employee financially. 

DEFINITION OF STRIKE AND LOCKOUT UNDER THE ACT 

Section 2(q) of the Industrial Disputes Act of 1947 defines “strike” as “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.”[1]

The following are the essentials of a strike: 

1. Cessation or stoppage of work.
2. The stoppage of work must be due to the common understanding of the employees.
3. The establishment should be an ‘industry’ within the meaning of the Act.

In the case of Standard vacuum oil co. Madras V Gunaseelam M. G[2], the company’s employees wanted to observe “May Day.” They requested that day be declared as a holiday by the employers. They were also willing to work on a Sunday to make up for the losses. The workforce as a whole took leave after the company failed to recognize “May Day” as a holiday. The court determined that the employees’ collective decision to apply for casual leave did not constitute a strike and there was neither stoppage of work nor concerted refusal to work.

According to Section 2(l) of the Act, “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.”[3] 

The following are the essentials of a lockout: 

• It should not be a permanent dismissal or termination or discharge or retrenchment. 
• Refusal to employ is temporary in nature.
• Not a closure of the industry
• Employees get back their jobs after the completion of the lockouts.  

In the case of Tata Iron and Steel Company, Ltd. vs Its Workmen and Ors[4]; it was held that it is true that a simple refusal to hire someone may not constitute a “lockout” unless it was done to force the employees to accept the employer’s demands and see things from his perspective through coercion. A lockout is the opposite of a strike and is a tool in the hands of the employer used to enforce a demand.

RIGHT TO STRIKE 

In Kameshwar Prasad v. The State of Bihar[5], the Apex Court has held that the right to strike is not implicitly covered under Article 19(1)(c) and is not a fundamental right. Also, in T.K. Rangarajan v. Government of Tamil Nadu[6], the court held that the Government employees do not have any legal or moral rights to go on strikes. A strike is an effective measure of collective bargaining and a statutory right[7]. 

RIGHT TO LOCKOUT  

In AP Electrical Equipment Corporation v. Their Staff Union[8], held that the provisions of the Industrial Disputes Act that grant power and impose restrictions on the employers to carry out lockout would become meaningless if the petitioner’s right to lockout is deemed to be a fundamental right. 

PROHIBITION OF STRIKES AND LOCKOUT

Strikes and lockouts are effective tools that employers and employees use to negotiate collectively. Nevertheless, they cause deterrence to industries in that they hamper production, manufacturing, and the output of the industries negatively. Strikes and lockouts are therefore subject to certain restrictions under the Act to minimize their potential impact on the economy. Section 22 of the Act puts forth the conditions to be met while carrying out Strikes and Lockouts in public utility services (Section 2(n) defines public utility services[9]).

Section 23 of the Act provides for the general prohibition of strikes and lockout to minimize the convenience the public will experience. The Section provides that the employees shall not conduct any strike by breaching the contract of services. The employee shall give notice prior to 6 weeks of the Strike and shall not commence the strike within 14 days of the issuance of the notice or after the expiry of the notice. A strike shall not be commenced when the matter is before the conciliation officer or after 7 days of such conciliation. A similar procedure should be followed by the employer during and before the declaration of the lockout.  

GENERAL PROHIBITION OF STRIKES AND LOCKOUT

While Section 22 is exclusively applicable to industries of public utility services; Section 23 is applicable to all industries including public utility services. Section 22 states that neither employee nor employer shall commence strike or lockout during the following scenarios:

(a) when the matter is before the conciliation board or Labor Court Tribunal or National Tribunal or before Arbitration Board.

 (b) also, 7 days after the completion of the proceedings before the Conciliation Board or 2 months after the completion of the proceedings before the Labor Court Tribunal or National Tribunal or before the Arbitration Board.

(c) also, during the period of any kind of settlement or award in operation.   

The same levels of a strike were also emphasized in the case of Management, Essoripe Mills Ltd v. Presiding Officer, Labor Court[10]. In the case of Mineral Minister’s Union v. Kudremukh Iron Ore Co Ltd,[11] the court held that a fresh notice of strike has to be issued to the employer after the expiry of the given notice on the failure of the conciliation and settlement. The notice served should be within the prescribed format under Labor Court (Practice and Procedure) Rules, 1975 and it is immaterial whether the notice is served through post or by hand; the main essential is to serve the notice[12].

ILLEGAL STRIKE AND LOCKOUT 

Section 24 of the Act enlists illegal strikes and lockouts. The circumstances below shall be considered illegal strike/lockout. 

(a)  any strike or lockout held in contravention of Sections 22 and 23 

(b) continual the strike/lockout in contravention of the order made under Section 10(3). 

(c)  any ongoing strike/lockout existing before referring the dispute to the Conciliation Board or Arbitrator or Labor Tribunal or National Tribunal given such strike/lockout is in accordance to law. 

(d)  Any strike/lockout in response to illegal strike/lockout.  

Section 25 of the Act enunciates that no individual shall financially aid an illegal strike/lockout knowingly. In Jayanth Bhagwantrao Satram v. State of Maharashtra[13], the court held that Strike commenced after 14 days of notice but before 6 weeks of giving notice would be considered an illegal strike. 

PENALTY FOR ILLEGAL STRIKE AND LOCKOUT

Chapter VI of the Act furnishes the penalty with matters related to strike and lockout.

• PENALTY FOR ILLEGAL STRIKES AND LOCKOUTS: Section 26 specifies that any employee involved in an illegal strike will be punishable, which may be increased to one month or a fine of 50 rupees or both.  
• PENALTY FOR INSTIGATION: any person instigating or inciting an illegal strike/lockout shall be punishable with a term which may be extended up to 6 months or with a fine of thousand rupees or shall be punishable with both, according to Section 27. In Deshpande v. Ferro Alloy Corporation,[14] in order to attract Section 27 it should satisfy two conditions: firstly the strike should be illegal and secondly the person inciting the strike to his knowledge should be illegal. 
• PENALTY FOR GIVING FINANCIAL AID TO ILLEGAL STRIKES AND LOCKOUTS: any person infringing Section 25 of the Act will be punishable for a period which might be extended to 6 months or with a fine of a thousand rupees or with both.   
• PENALTY FOR BREACH OF SETTLEMENT OR AWARD: any person who violates the settlement conditions shall be punishable for 6 months or a fine or punishable with both. The court might impose a fine of rupees 200 in continuance of the violation of terms even after imposing a penalty. The fine might be given as compensation to the aggrieved party upon the Court’s direction. 

JUSTIFIED AND UNJUSTIFIED STRIKES

Strikes carried out to press the employees right or as a result of illegal lockout are justified. Any strike to intimidate the employer or for any unreasonable grounds. In Model Mills v. Dharma Das[15], the court held that the law does not provide for any classification such as justified and unjustified strike except for the classification as a legal and illegal strike. Further, the court held that an illegal strike cannot be justified.    

JUSTIFIED AND UNJUSTIFIED LOCKOUTS 

Lockouts as a result of illegal strikes, concerted refusal of work, and during go slow strikes are justified. Whereas, in the case of India Marine Service Pvt Ltd v Their Workmen[16],  it was held strike that a strike conducted by the employees in response to the demand of additional work in contravention to the law will not amount to strike. Thus, lockout in response to it will be an illegal lockout and the employees will be eligible for the wages.

CONCLUSION

Though strikes and lockout are a tool for negotiation between employer and employee; other peaceful measures such as conciliation and arbitration are encouraged under the statute. The Industrial Disputes Act, 1947 is now subsumed under the new Industrial Relations Code, 2020. In summary, the strike and lockout provisions under the law are important because they provide a legal framework for resolving disputes between employers and employees, protect the rights and interests of both parties and prevent disruption to the economy and society. 

REFERENCES

• Srivastava S. C, Industrial Relations and Labor Law, (7^th ed., 2020)
• Strikes and Lockouts-a Contemporary Analysis, legalserviceindia, https://www.legalserviceindia.com/legal/article-2083-strikes-and-lockouts-a-contemporary-analysis.html  last seen on 12/05/2022.
• Strikes and Lockouts in Labour Laws (Industrial Disputes Act), Law Guide, https://www.lawguide.in/2022/02/strikes-and-lockouts-in-labour.html last seen on 12/05/2022.
• Vijay M Gawas, Analysis the provision for right to strike of workers under the industrial dispute act 1947 and other provisions of laws| International Journal of Law| Page No. 25-30, (2018)

CASE CITED

All India Bank Employees Association v. National industrial tribunal, 1962 AIR 171

AP Electrical Equipment Corporation v. Their Staff Union, (1986) Lab. IC  1851

Deshpande v. Ferro Alloy Corporation, AIR 1964 AP 471

Essoripe Mills Ltd v. Presiding Officer, Labor Court, CASE NO.: Appeal (civil) 2567 of 2006

Gujarat Steel Tubes Ltd vs Gujarat Steel Tubes Mazdoor Sabha, 1980 AIR 1896

India Marine Service Pvt Ltd v Their Workmen, (1963) 3 SCR 575

Jayanth Bhagwantrao Satram v. State of Maharashtra, (2017)4 LLJ 740 at 744-45

Kameshwar Prasad v. The State of Bihar, 1962 AIR 1166

Mineral Minister’s Union v. Kudremukh Iron Ore Co Ltd, ILR 1988 KAR 2878

Model Mills v. Dharma Das, Civil Appeals Nos. 464-472 of 1957

Savitha Chemicals (Pvt) Ltd v. Dyes and Chemical Workers Union, 1992 2 SC 143.

Standard vacuum oil co. Madras V Gunaseelam M.G, (1954) 11 LLJ 1956 (LAT)

T.K. Rangarajan v. Government of Tamil Nadu, CASE NO.: Appeal (civil) 5556 of 2003

Tata Iron and Steel Company, Ltd. vs Its Workmen and Ors, (1967) ILLJ 581 Pat

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[1] Section 2(q), The Industrial Disputes Act, 1947

[2]  Standard vacuum oil co. Madras V Gunaseelam M.G (1954) 11 LLJ 1956 (LAT)

[3] Ibid

[4] Tata Iron and Steel Company, Ltd. vs Its Workmen and Ors, (1967) ILLJ 581 Pat

[5] 1962 AIR 1166, All India Bank Employees Association v. National industrial tribunal 1962 AIR 171

[6] CASE NO.: Appeal (civil) 5556 of 2003

[7] Gujarat Steel Tubes Ltd vs Gujarat Steel Tubes Mazdoor Sabha, 1980 AIR 1896

[8] (1986) Lab. IC  1851

[9]“public utility service” means- (i) any railway service 5 or any transport service for the carriage of passengers or goods by air; (ia) any service in, or in connection with the working of, any major port or dock; (ii) any section of an industrial establishment, on the working of which the safety of the establishment or the workmen employed therein depends; (iii) any postal, telegraph or telephone service; (iv) any industry which supplies power, light or water to the public; (v) any system of public conservancy or sanitation; (vi) any industry specified in the 7[First Schedule] which the appropriate Government may, if satisfied that public emergency or public interest so requires, by notification in the Official Gazette, declare to be a public utility service for the purposes of this Act, for such period as may be specified in the notification: Provided that the period so specified shall not, in the first instance, exceed six months but may, by a like notification, be extended from time to time, by any period not exceeding six months, at any one time, if in the opinion of the appropriate Government, public emergency or public interest requires such extension. 

[10] CASE NO.: Appeal (civil) 2567 of 2006

[11] ILR 1988 KAR 2878

[12] Savitha Chemicals (Pvt) Ltd v. Dyes and Chemical Workers Union, 1992 2 SC 143.

[13] (2017)4 LLJ 740 at 744-45

[14] AIR 1964 AP 471

[15] Civil Appeals Nos. 464-472 of 1957

[16] India Marine Service Pvt Ltd v Their Workmen[16], (1963) 3 SCR 575