This article is written by Adhoksha Sarode of 7th Semester of Adv. Balasaheb Apte College of Law Affiliated with Mumbai University, an intern under Legal Vidhiya
ABSTRACT
The industrial disputes act, 1947 makes provisions solely for investigation and for the settlement of the industrial disputes and for other varied purposes. It ensures progress of industry by bringing about harmony and cordial relationship between the employers and employees. Nonetheless, the disputes which arises in an establishment are stated herewith- strikes, lockouts, gherao, etc. Strike , lock-out and gherao are coercive measures resorted to by the employees and the employers, respectively, for compelling the employers and employees to accept their demands or conditions of service. It also states the provisions, penalties, prohibitions on all the varied topics along with.
Keywords – The Industrial Disputes Act, 1947, strikes, lockouts, gherao, employer-employee, penalties, prohibitions, provisions.
STRIKES
Strikes means suspension or cessation of work by a group of employees employed in any industry, acting in combination. Partial stoppage of work, hunger strike accompanied with cessation of work and sitting in strike are also held to be strike. A pen-down strike also falls within the definition of ‘strike’.
The term ‘strike’ owes its origin to old English word ‘strican to go’ which means ‘hit’, impress, occur to, to quit work on a trade dispute. According to G.M. Kothari it means stoppage of work or putting of work by employees in their economic struggle with capital, in simple words strike means an act by which workmen put an end to the work until and unless their just economic demands are satisfied, strike also means the stoppage of work by a body of workmen acting in connection with the employers to get their demands satisfied during any dispute. It should also be noted that the workmen must be employed in the said industry.
DEFINITION
Strike
Section 2(q) of The industrial disputes act, 1947 states strike as a “cessation of work by a group of persons employed in an industry which acts in combination, or a joint 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.”
ESSENTIAL OF STRIKE
According to the definition stated to constitute strike, the following are to be embedded together-
In one case it was held that the length of the time of strike has nothing to do with the meaning of strike, even stoppage or refusal to work for a short amount of time would amount to strike[1].
In another case, the supreme court stated that the right to strike is not a fundamental right, it is only a way of medium for the workmens to put forth their grievances in front of the employers and to get them resolved. [2]
TYPES OF STRIKES
1) Primary strike- These are strikes against the management.
2) Secondary strike- These are the kind of strikes which include hartals, political bandhs against the third party. The examples of secondary strike are as follows-
CLASSIFICATIONS OF PRIMARY STRIKES
1. Go-slow.
2. Legal and illegal strikes.
3. Justified and unjustified strikes.
4. When is a strike justified?
5. Illegal strike if justified.
1. Go-slow –
The go-slow strike means deliberate slowing down of work to make the employer on a specific demand. This form of strike is a task to prove as it involves elaborate and comprehensive enquiry in the process of production. The apex court in one case tried highlighting the plight of the employer but did not suggest any way out. In another case it was held that the ‘go-slow’ was a serious misconduct which was an insidious in its nature and cannot be countenanced[3].
2. Legal and Illegal strikes-
Any strike which falls within the ambit of the definition of the same is considered as a strike, if it doesn’t then it is not considered as a strike. A strike won’t be considered as a legal strike unless and until it falls the sections 10(3), 10(A), 4A, 22,23, 24, if it satisfies this condition then it would be termed as ‘deemed’ or ‘presumed’ to be a legal strike.
And in cases other than which fails to mentioned above would be termed as illegal strike, it is to be also observed that the strike maybe illegal and therefore it would be prohibited, when a strike is commenced without following the prescribed procedure, or when there is a defecting following the prescribed procedure, the illegality involved in the strike is referred to as the ‘procedural- illegality’. Whatever may be the nature of illegality , once it falls into the ditch of illegality, it will be an illegal strike, but if it does not fall into the ditch of illegality or if it comes out of illegality, it will be a legal strike.
3. Justified and unjustified strike- (Secondary strike)
Strike as stated is the legitimate weapon but its repercussions could cause a problem to the industrial development, which gives it the idea of the concept ‘unjustified strike’. In one case, the workmens went on a strike to press their demand for ex-gratia bonus, the strike, even if its legal would be considered as unjustified. But if the workmens demands are serious in nature then the workmens are justified to go on a strike which can be stated as a legal strike as well, thus a strike would be legal unless it invades any statutory provisions. Insert table if necessary
A strike would be justified when when it is non-illegal, When the reasons of going on strikes are neither perverse nor unreasonable.
A strike would be illegal when the reasons for it are wholly perverse of unreasonable , an aspect which would decide the same would be that of facts and circumstances.
WAGES FOR STRIKE PERIOD
In one case it was decided in two-member bench of the supreme court of India that the workers won’t be entitled to any wages if fail to work and go on a strike.[4] But the earlier bench of the supreme court held quite the contrary. [5]
STRIKE NOTICE
Sub section (1) requires a 14 days strike notice in public utility services. It states that-
1. No person employed in the public utility services can go on a strike related to the breach of contract.
2. Without giving a notice.
3. Within 6 weeks of giving any notice.
4. During the time period of 14 days of giving that notice.
5. before the expiry of the date of strike as specified in notice.
6. During pendency of a conciliation proceedings and 7 days after conclusion of such proceedings.
MANNER OF NOTICE–
Section 22 sub section (4), (5), (6) deals with procedural aspect of service of notice which is referred in section 22 sub section (1)(2) of the act.
Sub section (4) says that the strike notice will be given in such manner as may be prescribed, rule 76 specifies the procedure of how a notice is to be given to the union which exist. If not then five duly elected representatives of the workman have to give such notice, also date of meeting of workmen in which they were elected should be specified, copies of the notice must be sent to the conciliation of the area and to the officers specified in the form.
LOCKOUT
Section 2(I) of The Industrial disputes act, 1947 defines lockout as a “temporary closing place of employment, suspension of work, or the refusal to work by the employer to continue to employ any number of persons employed by him during his course of employment.” Lockout is temporary shutting or closing place of business by the employer. It differs from the closure of the undertaking as well. Prior to the period of 1860, lockout was termed as “turn-off” . Lockout is the corresponding weapon of employer , as strike is to the workmen.
ESSENTIALS OF LOCKOUT
The following is to be satisfied to constitute a lockout-
1.(i) Temporary closing of place of employment by the employer or,
(ii) Suspension of work by the employer or,
(iii) Refusal by an employer to continue to employ any number of persons employed by him.
2. the above mentioned should be motivated by coercion.
3. an industry as per defined in the act.
4. a dispute in the industry.
WAGES FOR ILLEGAL LOCKOUT
In one case it was held that if the workmen have worked or has reported to the duty then he will be liable for wages during his course of work even when the period of lockout was illegal. [6] but if it is a case of ascertainment it needs to be specified in the settlement.
WHEN IS A LOCKOUT IS LEGAL?
It is same as to why the strike is not legal and why it has been banned, in one case, the Bombay high court held that it is permissible for the employer to prove misdemeanor and misconduct of employees sufficient to absolve him from the lockout liability to pay wages for the period of illegal lockout, so just because the lockout is illegality will not ipse -dixit result in payment of wages to the workmen but the employer can take the opportunity to prove disentitlement of workmen in a case of reference made to industrial tribunal for adjudication on a demand for wages for the period of lockout[7].
GENERAL PROHIBTION OF STRIKES AND LOCKOUTS (Section 23)
It applies to industrial establishments in general including public utility services. A strike in breach of contract by workmen and a lockout by the employer is prohibited as follows-
The difference between sec 22(1) and (2) and sec 23 Is that in case of former, notice of strike or lockout is necessary whereas in the later sec 23 it is not necessary.
ILLEGAL STRIKES AND LOCKOUTS Section 24
According to Sec 24(1), a strike or a lockout shall be stated as illegal when[8].-
PROHIBITION OF FINANCIAL AID TO ILLEGAL STRIKES AND LOCKOUTS (Section 25)
No person shall knowingly expand to apply any money in direct furtherance of support of any illegal strike and lockout.
PENALTY FOR ILLEGAL STRIKES OR LOCKOUTS (Section 26-31)
Section 26 prescribes penalty for both strike as well as lockout. However, before a punishment is imposed under this act or rather under this section, it must be prescribed beyond all reasonable doubt that-
An employer chargesheeted all the workmen who had participated in illegal strike on the allegation of misconduct of instigation and participation in illegal strike. Some of the workmens justified their act whereas the others apologized for the same, the workmen sent letters of warning to those who had apologized, and didn’t fire them whereas he fired those who didn’t seem to apologies to The apex court stated that the workmens can’t be dismissed taking into view that the workmens did not stand on the same footing so the same view can’t be applied The respondents justified the same.[9] In one case when the workmen establishment went on a strike and when at the intervention of the authorities were referred to the tribunal of adjudication, the said workmen were chargesheeted with objections such as using ill-faceted language and violent acts, in a domestic injury they were held guilty and then were dismissed . The employer went for seeking approval under section 33(2) of the act but it was rejected by the tribunal, later the high court of Karnataka held that the use of ill-faceted language was not in relation of the strikes or any matter connected and the application was rejected and was remanded for a fresh consideration[10] .
PENALTY FOR INSTIGATION (Section 27)
Any person who instigates or lures, incites other person to take part in strikes or lockout which is illegal is said to commit a crime and is punishable with imprisonment for a period which may go up until six months, or with fine which may extend to one thousand rupees, or both.
PENALTY FOR GIVING FINANCIAL AID TO ILLEGAL STRIKES AND LOCKOUTS (Section 28)
Any person who instigates, lures, incites other person to take part in strikes or lockout which is illegal is said to commit a crime and is punishable with imprisonment for a period which may go up until six months, or with fine which may extend to one thousand rupees or both.
PENALTY FOR OTHER OFFENCES (Section 31)
In one case, the high court of madras that the parties to the contract were binded by a conciliation proceeding and therefore had to wait for a decision to arrive on, as the conciliation proceedings were pending the prohibition in section 22(1)(d) of the industrial disputes act, 1947 came into operation and as such the strike by the respondent was illegal in the view of section 24.[11]
The supreme court in one case held that when there is strike and when it is illegal the workmens would not be liable for any wages or compensation and they would be liable for punishment by way of discharge or dismissal.[12]
GHERAO
Gherao means to surround, it is a method in which the group of workers initiate collective action, aiming at preventing members of the management from leaving the office, the activity can be carried out outside the factory premises as well. The person who is considered as a ‘gherao’ are not allowed to move for a long time, sometimes they even have to go without food and water.
The national commission on labour has stated that the gherao tend to inflict physical duress on the persons and also put danger to the industries as well.
DEFINITION
Gherao means “encirclement” which is used by the activists and the union leaders in India. It usually also means that the people would surround the building of the government or a politicians until their demands are met or till when they are answered.
It amounts to criminal conspiracy under section 120-A of the Indian penal code and is not saved by section 17 of the trade unions act. The said principle was introduced as a formal means of protest in the labour sector by Subodh Banerjee, labor minister in 1969 united front governments of west Bengal. Gherao can be punishable under sections 147, 148, 342, 506 of the IPC if it involves threat, violence.
Gherao is usually short and also might land for a few days, a peaceful gherao consists crimes whereas violent gherao posses a threat to the well-being and the prop. [13] A peaceful gherao is also called as a legal gherao and a violent gherao is also called as an illegal gherao.
CONCLUSION-
The Industrial Disputes Act, 1947 is an Act to make provision for the investigation and settlement of industrial disputes and for certain other purposes. The industrial dispute connotes a real and substantial difference between employers and employers or between employer and workmen, or between workmen and workmen, having some difficulties until the problem is resolved which in the tension of the problem disrupt the ambience of the industrial community. It also talks about the instances when a strike or lockout can be lawfully looked into, or when they can be called illegal or unlawful, dismissing a workman, circumstances under which an industrial establishment which will be closed related to other matters of industrial employees and employers.
REEFRENCES
1) Scribd Strikes lockouts gherao and bundh (393-444), https://www.scribd.com/document/515154682/6-Strikes-Lock-Outs-Gherao-and-Bundh-393-444 last seen on 13/08/2023.
2) Arts.brainkart.com Gherao-Industrial Disputes Act, 1947 https://arts.brainkart.com/article/gherao-industrial-disputes-act,-1947-329/ last seen on 13/08/2023.
3) I.A.Saiyed, Labour law, 70-83, (4th ed, 2015).
4) Ajay Garg, Nabhi’s labour laws, 155-158, (26th ed, 2010).
5) Pro.Dr. Rega Surya Rao, Lectures on labour & industrial law, 59-72, (2017 ed) .
6) Dr. Avtar Singh and Prof. Dr. Harpreet Kaur Introduction to Labour and industrial laws, 213-228, (4th 2017).
[1] State of Bihar vs. Deodas Jha (AIR 1958, Pat. 51)
[2] Kameswar prasad vs. State of Bihar (AIR 1962, SC 1166)
[3] Sasa Musa sugar works (P) ltd. vs. Shobarti khan, 1959 II LLJ 644.
[4] Bank of India vs. T.S. kalawalla, 1990 ICLR 748.
[5] India general navigation and railways ltd. vs. their workman, 1960 I LLJ 13.
[6] Hindustan fasteners (P) ltd. vs. Nasik workers union, (2007) 11 SCC 660.
[7] Engineering mazdoor Sabha vs. Taki bilgrami, 1971 I LLJ 71.
[8] Bharat petroleum corpn ltd vs. Z. Petroleum employee’s union, 2003(3) LLN 634.
[9] Madurantakam co-op sugar mills vs. Vishwanathan, (2005) 3 SCC 193.
[10] Mgmt. Oriental Tpt. Ltd vs. S. T. Ramkrishna, 2006I LLN 598.
[11] Bharat Petroleum Corporation Ltd. vs. Petroleum employee’s union and others, (2003) III L.L.J.229(Mad)
[12] India general navigation and railway company Ltd, and another vs. Their workmen (AIR 1960, SC 219)
[13] Jay Engineering Works Ltd. vs. State of West Bengal. AIR 1968.
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