Labour law an analysis of illegal strikes
This paper will try to make an analysis of the understanding of illegal strikes as it has evolved over time and what its status is at present and to do this effectively, the researcher will be addressing a few issues distinctly. It will begin by briefly addressing strikes generally, before moving on to the specifics- what do we understand by illegal strikes? In this part the researcher will analyze Section 24 of the Industrial Disputes Act, 1947, to see how it covers the concept of illegal strikes. Along with that, she will refer to judicial decisions that have developed and built on the understanding of illegal strikes and the criteria to determine them, and the contradictions among these decisions. In addition to Section 24, Sections 22 and 23 will also be discussed in order to understand the scope of the prohibitions, that is, whether it is a blanket prohibition or they prohibit strikes under certain conditions. The next part of the paper will look at the standards set by the International Labour Organization which ought to determine, inter alia, rights of workers, which includes the right to strike. The researcher intends to analyze the parameters of a legal strike, and what would render a strike illegal, and whether the standards followed in India correspond to the international ones. She will also examine the recommendations and suggestions of the Second National Commission on Labour on legal and illegal strikes to determine how useful they would be, and whether they correspond to the ILO standards. Finally, the paper aims to see if the consequences of illegal strikes as provided under the Industrial Disputes Act, 1947, act as sufficient deterrents.
Section 2(q) of the Industrial Disputes Act, 1947 (hereinafter IDA unless stated otherwise), defines strike  , and the common idea of a strike is that there is stoppage of work for a period of time by the workers of an enterprise in order to make the management or employees accept their demands or come with a viable solution for the dispute.  There are various types of strikes, like, for instance, general strike, stay-in strike, go-slow strike, sympathetic strike and so on. 
There is no provision in the IDA which defines the legality or illegality of a strike, but Section 24 lays down conditions, which, if contravened, would make the strike illegal, like contravening provisions laid down in Sections 22-23, or Section 10(3) or 10A(4A) of the Act.  Section 24 provides for the conditions under which a strike will become illegal, and the two main clauses under this Section (with respect to strikes) say that a strike will be illegal if it in contravention of Sections 22 or 23 which lay down the grounds for prohibition of strikes.  This shows that a strike will be illegal if these statutory provisions are breached, and not so much the purpose of the strike, in India.  Section 10 of the IDA gives the appropriate authority power to determine whether a dispute is in the nature of an industrial dispute and then refer it accordingly, and this discretion or the factors which is used to determine the nature of the dispute cannot be questioned in a court of law.  An issue of some significance here is what is the scope of prohibition under Sections 22 and 23? In Section 22, which applies to public utility services specifically, clause (1) lays down a set of grounds which needs to be complied with necessarily, namely, giving the employer notice of such strike six weeks in advance, and not to be within fourteen days of such notice, the strike has to be before the expiry of date specified in the notice, and there can be no strike while conciliation proceedings are pending before a Conciliation Officer and up to seven days after the conclusion of such proceedings.  A possible explanation for this is that employers are going to get adequate time to prepare for the strike because of the notice, and it also allows some time to find an alternative solution to the dispute.  However, if there is a lockout already by employers, notice need not be given.  Section 23 refers to general prohibitions and broadly states that there would be a breach of contract of employment if a strike was called during pendency of dispute before a Board of Conciliation or Labour Court, Tribunal, Arbitrator etc., and for a period after conclusion of such proceedings.  The three main distinctions between Sections 22 and 23 is, first, that while the former deals specifically with public utility services, which makes conditions more stringent for them, the latter applies to all other establishments as well as public utility services, and second, providing notice under Section 22 is mandatory, while it is not so under Section 23, and finally, unlike Section 22, proceedings before a Conciliation Officer in the case of establishments other than public utility services will not bar the declaration of a strike. 
While Section 23(c) states that there is a prohibition on strikes with respect to matters pending for settlement or award, during the period of such pendency, Section 20 provides for the commencement and conclusion of settlement proceedings.  Therefore there are basically two broad types of establishments which are covered by these Sections, namely, Public Sector Utilities and all other establishments.
The provisions of Section 20 has been given a restrictive interpretation, that only on receipt of conclusion report by the Central Government will it be assumed that settlement proceedings have concluded. In the case Workmen v. Industrial Colliery  there was a delay in receipt of the conclusion report by the Central Government which the Trade Union did not know about, and it declared a strike. The Court held this to be an illegal strike on the basis of a strict interpretation of Section 20. 
Also, the Court has held in Ramnagar Cane and Sugar Co. v. Jatin Chakrabarty  that conciliation proceedings between one Union and the employer will act as a bar against all other Unions striking on the matter.  But on the question of striking during conciliation proceedings on separate issues altogether, there have been slight contradictions. Justice Krishna Iyer in Gujarat Steel Tubes v. G.S.T. Mazdoor Sabha  by obiter said that it would be unreasonable to assume that a strike on an unrelated matter should be barred because there is conciliation proceedings going on regarding another matter altogether.  However, the Patna High Court and the Calcutta High Court have said that Section 23 prohibits strikes on all issues, whether related, or unrelated, when there are proceedings going on before a Conciliation Officer, Board of Conciliation or any Industrial Tribunal. 
Another dimension of importance is how the courts have looked at justification of strikes, and that has mostly been used to determine whether and in what situations should striking employees be entitled to payment of wages for the period. Justification as a concept, or a measure, is alien to the Industrial Disputes Act and more popular in civil and criminal law to determine severity of an act or its consequences.  And yet the courts have tried to define the concept of justification of a strike. In Chandramalai Estate, Ernakulam v. Its Workmen  the court observed that though a strike is legitimate action on the part of the labour, it cannot be used indiscriminately. Still, there may be situations of emergency when there may not be time to wait for references and in such instances a strike will be justified.  This was added on to in a number of other cases where they said that the justifiability of a strike would depend on whether the intentions were bona fide, and justifiability would be viewed as to whether the demands are fair and reasonable, and in various situations strikes have been held to be justified, like in an instance of using strike as a method of protest against unreasonable attitude of the management and so on. 
The researcher believes that introducing the concept of justifiability of a strike makes the situation even more subjective than it already was because no court has been able to give a standard definition of the term, and it has been interpreted differently in various circumstances. The very terms used to authenticate justifiability themselves are subjective terms like ‘fairness’ and ‘reasonableness’ of demands, and the courts will have to first look into them. Also, this means that the courts are now bringing in the intention of the striking party, thus moving away from strikes being determined solely by adherence to statutory provisions, which one can safely assume was the legislative intent behind enacting the IDA, given the provisions it contains.
In Crompton Greaves Ltd. v. Workmen  , the court said that whether a strike is justifiable or not depends on the facts of the case and has to be determined on a case to case basis. It then went on to say that a strike cannot be said to be unjustified unless its reasons are entirely perverse or irrational.  So on one hand the court says that it has to be determined on a case to case basis depending on the facts, yet on the other, in the same decision the court lays down a parameter that justifies pretty much all strikes except those which on the face of it would be of entirely perverse intentions. In yet another case, India General Navigation and Railways Co. Ltd. v. Their Workmen  , the Supreme Court, no less, declared a public utility services strike to be illegal, then proceeded to discuss whether it is justifiable or not, and held it to be ‘perfectly justified’!  So certain decisions appear to have bordered on the ridiculous when courts have gone into the discussion of justifiability of strikes. While it can be argued based on the earlier parameters of justifiability that though a strike has contravened statutory provisions such a situations may have arisen which necessitates a strike, thus making it justifiable, but the researcher is of the opinion that the whole reason behind putting in stricter pre-conditions for a strike by employees of any public utility service is so that the common man’s well-being is not jeopardised, and justifying illegal strikes by employees of such services cannot be validated.
At the international level, the body working on freedom of association and collective bargaining for workers worldwide has been the International Labour Organization, founded in 1919 whose main objective is to promote opportunities for productive work with dignity in equitable and secure environments.  No international convention explicitly recognizes the right to strike, but it has been referred to and such a right could be implied from some of the provisions of two major international conventions, namely, Convention No. 87 which is the Abolition on Forced Labour Convention, 1957 and Convention No. 98 which is the Right to Organize and Collective Bargaining Convention, 1949.  These two conventions largely intend to give workers security through the right of collectivism, by allowing workers to join trade unions with very minimum requirements for membership, Convention 87 has the right to strike as an inherent element  , and Convention 98 builds on the scope of protection extended to the workers and labour unions.  India has not ratified either of the conventions, and optimists say that non-ratification is not proof of the nation not adhering to the core labour standards, and it could simply mean that there is a different mechanism of protection in place and substantive or procedural technicalities may prevent such incorporation in the national legal system, or even that while the standards are implemented the nation just chooses to not undergo the costs of ratification.  Unfortunately, experience has shown that more often than not, even the developing countries which have actually ratified the conventions not conformed to the standards, leave alone those who have not. 
The Committee on Freedom of Association has accepted seven major guidelines that would demarcate the legal strikes from the illegal ones, and failure to abide by these guidelines would render a strike illegal.  These guidelines are, first, the union has to mandatorily give notice prior to the strike, second, as long as conciliation, mediation, and voluntary arbitration proceedings are fair and both parties have adequate representation and participation, and it is speedy, the employees are obligated to first try these measures before declaring a strike.  Before striking, the decision should be taken by the majority of a pre-decided quorum, and the decision should be by secret ballot, and also, there should be adequate measures taken to prevent accidents, because the ILO principles recognize the right of non-strikers to work and this guideline is to ensure that they are allowed to do so, and violent reactions to this are prevented.  The guidelines also talk about establishing a minimum safety service in some cases, that is, a certain minimum level of production is to be maintained so that there is no damage to materials and machinery which may happen when they are left unused for periods of time, and the determination of minimum service is to be done by taking into considerations not just governmental stand, but also the views of the public. 
In India, as discussed earlier in the paper, the Industrial Disputes Act of 1947 provides for conditions to validate a strike as legal. While a lot of these principles and those provided in the Act are more or less the same, there are some very prominent distinctions. One is with respect to compulsory arbitration, where the difference is that in India if conciliation, arbitration, etc. doesn’t work out, a failure report is sent to the government which can make a reference to an appropriate court or tribunal, but the position of ILO is that no such compulsory modes of adjudication can be imposed in the initial stages before a strike is to be called, unlike India where failure to follow the conciliation and mediation procedures would render a strike illegal.  However, in the case of essential services, such an imposition would not be invalid, and in all instances when such compulsory adjudication has been imposed, it has to be speedy and just.  In Nirmala Textile Finishing Mills Ltd. v. Second Punjab Tribunal  it was observed that the court cannot scrutinise the grounds of reference, but only whether it was in keeping with the objectives of the IDA and whether it was for the benefit of industrial peace and harmony.  Cases have set this precedent, and still others have reiterated this standpoint.  Another distinction with respect to ILO standards is that while they accept that government employees can go on strike, in India, striking is applicable only to workers and government servants are excluded because of the nature of their work, and according to the policy-makers, if they were to go on strikes it would be against the sovereign which should not be allowed as it may not only not affect the government, it may end up affecting the general public.  Another reason may well be that the amount of control and authority that public servants have in their work, in comparison to the ‘workmen’ as defined by IDA and interpreted by the judiciary is a lot more. A third divergence has been with respect to Essential Services Management Act (ESMA), 1981 by which strikes are banned completely in a number of public utility services, though strikes in this field have already been made difficult by the provisions of the IDA,  and the ILO has been trying to bring about some compromise on that ground by making a distinction between essential services and public services, and their stand on the matter states the need for a speedy and effective dispute resolution mechanism, but it does not appear to have been very effective.  The researcher agrees with the stand of the ILO and the Committee of Freedom of Association (CFA) on this ground because extremely harsh penalties to striking would only be acting like a festering wound, rather than resolving the dispute, and it may lead to tyrannical behaviour from the government which is not prevented from including many more services as part of ‘essential services’ thus acting against the interest of the workers and their right to collective bargaining. The final difference is with respect to consequences of the strikes. While the CFA does not recommend sanctions for strike action as it will only further impede industrial relations,  the IDA provides for penalties in the form of imprisonment and fines for illegal strikes and for financing or furthering illegal strikes. 
As far as the Second National Commission on Labour’s recommendations on legal and illegal strikes are concerned seems to be fairly controversial in some respects. They recommend that in essential services strikes cannot be called without a strike ballot in which there is at least a 51 percent majority, and it can only conducted by the recognised negotiating agency who is also supposed to be the only recognized body to call for such a strike, and the ballot would be supervised a hierarchy of officers headed by the Registrar.  The difference with respect to ILO standards is that they advocate secret ballot but the labour commission decided on having a check-off ballot instead, and this was in spite of most of the recognised labour unions wanting a secret ballot as well.  Another problem that emerges is that now the system is a lot more complex and time consuming, and it would require a significant amount of co-ordination. Also, surely there are concerns about the negotiating agent,  like if the government is the recognizing body, and there is only one such agent does it not become sort of like a trade union of trade unions? This would simply be inserting a middleman and increasing transaction costs. Most of the above-mentioned procedure also applies in the case of general strikes, that is for non-essential services, except, the negotiating agent shall send notice of such strike to the labour commissioner and conciliation officer and the procedure would be the same then as it exists now.  The Commission recommends that Section 66 would deal with illegal strikes  and penalties for the same.  First, to be valid, a strike cannot in be in contravention of the earlier two Sections 63 and 64, next, three days wages shall be deducted for each day of the illegal strike by each striking worker, and finally, any Trade Union leading such illegal strikes would be derecognised and the office bearers of that union will not be allowed to hold any other office for any other union for three years.  This seems to be an inordinately harsh measure, especially when one compares it to the existing provisions in the IDA  and it is very much in contradiction to ILO standards, which prescribe that it is best for industrial peace and harmony if sanctions are not imposed at all. 
The Commission appears to have taken into consideration that there was a bit of confusion with respect to payment of wages during the strike period which required the justification of the matter looked into, and these provisions ensure that if a strike is illegal by failing to comply with statutory provisions, wages will be deducted. Perhaps the penalties are supposed to act as much as a deterrent as a punishment, but it seems more like a method to strangle the right to freedom of association and collective bargaining because these harsh measures would ensure that unions and workers think twice before declaring a strike, and if they are to follow the new complicated and time consuming provisions, especially with respect to essential services, to the ’t’, they will probably never get around to actually going on strike! As far as the adequacy of the consequences for illegal strikes under IDA is concerned, they do not appear to be too serious, but they are not entirely inadequate either. Though it makes prosecution difficult because prior permission of the government has to be sought, the penalty may be in terms of imprisonment or a fine or both.  While at first glance it may appear that a fifty rupees fine in today’s age and a one month imprisonment is peanuts, for an industrial worker, even today, that would be quite a bit. To send across a stronger message perhaps it can be amended to be slightly more forceful, a longer period of sentence perhaps, but not to such an extent that it hinders the process of collective bargaining altogether.
To conclude, the researcher has in this paper dealt with the understanding of illegal strikes by analyzing Section 24 of the Industrial Disputes Act, 1947, and consequentially, Sections 22 and 23 of the same through judicial decisions. The researcher then proceeded to look at the core ILO labour standards, and tried to understand how far they are followed in the Indian scenario, and what the major distinctions are between the two, and with this as the backdrop she discussed the Second National Labour Commission’s recommendations and suggestions on illegal strikes and its penalties in its 2002 report. Finally, she addressed the issue of adequacy of the already existing provisions with respect to penalties for illegal strikes in the IDA, 1947.