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Prohibition of Strikes and Lock Outs

Info: 3140 words (13 pages) Law Essay
Published: 8th Aug 2019

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Jurisdiction(s): Indian law

This section deals with employment in the public utility service and the requirement of due notice in writing for the commencement of a strike or a lock-out. The section prescribes six weeks notice and also time limits for actual commencement of strikes and lock-outs, as the case may be.

Pre-requisites for Section 22

To make out a case of breach of S. 22, two important requirements have to be set out and proved, namely:-

that the concern in which a strike took place is a ‘public utility service’ within the meaning of s. 2 (n) of the Act; and

that the strike is ‘in breach of a contract of service’ of the striking workmen.

It must be noted that every strike is not illegal and the workers enjoy the right to resort to strike, whenever they are so placed, in order to express their grievances. Strikes are illegal under the Indian Law only when they are in contravention of ss 22, 23 and 24 of the Act. The field of operation of ss 22 and 23 is different from ss 10 and 10A. While ss. 22 and 23 prohibit strikes at the beginning only, the other sections gives power to the government to restrict the continuance of a strike. [1]

Notice as condition precedent of strike

It has been expressly mentioned in S. 22 that it is necessary to give a notice of six weeks before initiating a strike or a lock-out, otherwise strike or lock-out in that public utility service will be declared as illegal. In Tata Iron and Steel Co Ltd v Workmen [2] , it was held that since Coal comes under a public utility service, so a notice under s. 22 was necessary for a lock-out. It was again held in Lakshmi Devi Sugar Mills Ltd v. PR Swarup [3] , that the tools-down strike which was resorted to by workers without npotice, was an illegal strike. The fact the at the strike was of short duration viz from 7 am till 10:30 am, would not exculpate the respondents from the consequences of having resorted to such an illegal strike.

Strike should be in ‘breach of contract of service of workmen’

The expression ‘breach of contract’ in s . 23 means breach of contract of service or employment and not a special contract not to go on strike. It is breach of contract of service only because if the breach referred to strike, then the provisions under s. 22 and 23 would be meaningless as there won’t be right to strike under any form.

If the employer is proving that the strike is illegal under s. 22, then he will have to prove that the strike is in breach of contract of service. He can prove this by showing the contract which binds employees to turn up for work every day and work for specified time every day.

Strike/Lock-Out during the pendency of Conciliation Proceedings

S. 22 1(d)- No person employed in a public utility service shall go on strike in breach of contract during the pendency of any conciliation proceeding before a conciliation officer and seven days after the conclusion of such proceedings. Similar are the wordings in s. 22 2 (d) but they are for lock-out.

In simple words, this provision means that if a conciliation proceeding is pending between one employer and the union, and it relates to matters concerning all the employees of the employer, the pendency of the said conciliation proceeding would be a bar against all th employees of the employer employed in a public utility service to go on a strike during the pendency of the said proceedings under s. 22 1(d). The reason for this seems that it is in interest of both employees and the employers to reach at a solution and providing peaceful environment without disturbances is required for reaching a solution.

If a concerns raised by employees of a trade union are under conciliation, then can another trade union raising same demands go on strike?

The answer is no. The other trade union can’t go a strike on same matter which is under conciliation. It would unnecessarily disturb industrial peace, if one union employed in public utility service was allowed to go on strike even though demands common tot ht e members of the said union as well as the rest of the workmen are being considered in conciliation proceeding between the said employer and the employees represented by another union. [4]

Section 23. General Prohibition of Strikes and Lock-Outs

The provisions of Industrial Disputes Act clearly brings out the elaborate nature of the proceeding in relation to conciliation, arbitration, settlement, inquiry and award. The intention behind having provisions of S. 23 is to settle issues between the employer and the employees in an amicable environment. The purpose is to give a chance for settlement of issues. It is to be noted that S. 23 envisages some prohibitions on strikes in both Public Utility Services and Non-Public Utility Services.

There are certain provisions under S. 23 like 23 (a), 23 (b) and 23 (c) which requires some elucidation.

The question is – Can a trade union strike on a matter which is unrelated to matter in consideration by the (a) Concilliation Board under S. 23 (b), Labour Court under S. 23 and (c)Settlement or Award Board under S.23 (c).

Pendency of Concilliation Proceeding – A literal interpretation of S. 23 (a) would mean that if the issues of employees are under consideration by a conciliation board, then the employees can’t go on a strike on an issue which is not under consideration.

Pendency of Labour Court Proceedings – Even though the proceddings pending before the labour court , tribunal or national tribunal might relate to certain matters only, there cannot be a strike or a lock-out even in matters other than those which are pending before the labour court, tribunal or National tribunal. [5]

It must be noted that once the proceedings commence, then even if the employer or the employee wants to withdraw proceedings, they can’t do that. It is because, the proceedings before the industrial tribunal are not disputes between two private parties but they involve larger public interest. [6]

© Pendency of a Settlement or an Award – Giving a literal interpretation to S. 23©

means that the employees cannot go on strike on any of the matters pending before

the Settlement or Award Board. Here, the word ‘in any matter’ has been

specifically used, when means that the if the employees go on a strike on a matter

which was no pending before the award or settlement board, then it is not illegal

under S. 23©.

This is different from S. 23 (a) and S. 23 (b), which prohibits all kinds of strikes if matter is pending before Conciliation Board or National Tribunals and Labour Courts.

The researcher is not sure about the reason why strikes are allowed on a different subject than under settlement or award board under S. 23 © and disallowed under S. 23 (a) and (b). Although S. 23 covers both strikes and lock-outs, but since strikes are most common and occur frequently, so the present position seems to favour the employers to a great extent. Under S. 23 (a) and S. 23 (b), the workers will be disallowed to go on strike on a metter which is more serious than a matter under consideration by the conciliation board or Labour Court or National tribunal. This is wrong because, it can be used as a ploy to restrict the workers to protest on a serious issue by taking cognizance of a small issue. The researcher believes that it could not have been the intention of the legislators of the Act to put absolute prohibition on strikes and lock-outs while a matter is pending under S. 23 (a) and (b) and allow for strikes and lock-out when matter is pending under S. 23 (c). So, the courts should apply a purposive interpretation and allow strikes and lock-outs on matters which are not under consideration by the conciliation Board or labour courts and national tribunals. This would be in interest of both employers and the employees as both are covered under S. 23. The process of collective bargaining which has become a recognized right should not be held hostage to the ambiguous provisions of s. 23 (a) and s. 23 (b).

Section 24 – Illegal Strikes and Lock-Outs

Strikes when Illegal

Under s. 24, a strike will be illegal only if it is commenced or declared in contravention of s. 22 or 23, or is continued in contravention of an order made under s. 10(3) or 10A(4A) of the ID Act.

Under s. 20(2)(b) of the Act, the conciliation proceedings held by the Regional Labour Commissioner concluded only on 17 November, when his report was received by the Central Government, and as the appellants went on strike before that date, it was a strike during the pendency of conciliation proceedings and therefore, illegal under s. 22 (1)(d) of the act. [7] A strike during the pendency of an appeal would be illegal strike under S. 24 of the ID Act, even though appeal is not a valid or competent one.

There is a distinction between a strike envisaged by s . 23© in respect of a matter covered by a settlement and a strike in breach of a settlement envisaged by s. 29. A strike in breach of a contract during the operation of a settlement and in respect of a matter covered by that settlement falls under s. 23 © and is illegal under s. 24. But whereas s. 26 punishes a workman for going on an illegal strike or for any act in furtherance of such a strike , s. 29 lays down the penalty for a person, not necessarily a workman, who commits breach of a term of settlement which is binding under the Act.

To entitle the workmen to the wages for the strike period, the strike has to be both legal and justified. If the strike is both legal and not justified or if a strike is illegal though justified, the workers are not entitled to wages for the strike period.

Lockout when illegal

A lockout declared without notice in a public utility services would be illegal under s. 24. In anillegal lock-out, the sole object is to compel the workmen to accept the terms of th employer which the workers consider unreasonable and oppressive. A lock-out can be declared for reasons similar to those described in the present notice of lockout. In that case, although it will be lock-out in another sense, it may not be a lock-out within the maning of s. 24(3) of the Bombay Industrial Relations Act similar to s 2(1) of the Industrial Disputes Act. That kind of lockout with the avowed objective of preventing violence and threat to life and property may be justified on facts in given case.

Consequences of Illegal strike

AN illegal strike is acreation of the Industrial Disputes Act and the remedy for the liiegal strike has to be sought within the stateute itself and not outside it. In the case of Bharat Bank Ltd v. Employees Union [8] , it was stressed that the consequences of an illegal strike are spelt out in the Act itself, and, nowhere does the Act state that the employees involving themselves in an illegal strike cannot be reinstated.

The duty imposed by ss 22, 23 and 24 of the Act are statutory duties owed by the employees, not to the employers concerned, but duties owed to the public which can be solely enforced by criminal prosecution under s. 26(1) of the Act.

It follows, therefore, that the employers have no right of civil action for damages against the mployees participating in an illegal strike within the meaning of s. 24 (1) of the Industerial Disputes Act. The constitution of India guarantees the right to form associations to effectively fight for the redressal of the grievances of the working class and it is against the basic principles of Indian law to award civil compensation to the employer even where the loss is caused to him as a consequence of an illegal strike. [9]

Committee On Freedom of Association – Prohibitions on Strike

Strikes constitutes one of the most complex areas in the study of labour law. This is because its legality or illegality is contingent upon the cross-political structures which are different in different regions. Allowance of strike is deeply connected with the political questions of ramifications because of allowing those strikes. [10]

Strikes are of different nature and the legitimacy attached to strikes varies depending upon the countries. A country like Sweden allows strikes only by trade union whereas France allows strikes by individuals also without the trade union.

Strikes Recommended by Committee on Freedom of Association(CFA) of ILO

The Convention No 87 of CFA gives the right to trade union to protect the occupational interests of the workers (Article 10). The trade unions have been given the right to formulate programmes and policies to defend their occupational interests (Article 3). These two articles 10 and 3 form the basis on which it is inferred that Right to Strike is one of the important rights available to workers for protection of their occupational interests. [11] It is to be noted that Convention No. 87 on Freedom of Association and No. 98 on the right to organize and collective bargaining, 1949 of the International Labour Organization (ILO) does not have any direct provisions on strikes. But, we read strikes as an acceptable way of furthering and protecting workers interests.

The important word in the present discussion is ‘occupational interest’. Trade Unions are allowed to go on strike on only those matters which are related to issues of direct labour welfare like wages, working condition etc and not on issues of government’s economic and social policies. However many scholars like J-M Servais are of the view that trade unions should have recourse to protest strikes aimed at criticizing a government’s policy and social policy. Their objective transcend the concern for better working conditions and demand answers to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and standards of living.

Prohibitions and Restrictions

There are certain situations in which a general ban can be imposed on strike. For instance,- According to CFA of ILO, employees of a Public Utility Services can be prohibited from going on a strike. There is great controversy regarding what all constitutes ‘Public Utility Services’? The various ILO representative bodies have not been able to come up with a clear answer to this question and often, they have relied upon the particular fact-situation to determine the answer. However, there is unanimity about the view that ‘Public Utility Services’ should be given a strict meaning so that workers of many organizations are not deprived of their right to strike. The broad definition on which the ILO body has relied is Public Utility Services are those services where if strike occurs, then affect might fall upon life, health or personal liberty of the people.

The following has been considered to be public services: the police and armed forces: the hospital and health sectors; the fire fighting services; public or private prison services; water supply and electricity services; the telephone services. [12]

However, the following have not been considered as public services: radio and television; the education sector (except principals and vice principals), petroleum sector, airlines pilots; postal services etc.

The researcher shares the viewpoint of others scholars like J-M Servais that an outright ban on strikes in public utility services is detrimental to the occupational interests of the workers. So, the researcher thinks that rather than imposing a complete ban on strikes a system of minimum services in public utility services should be put in place. The logic is all aspects of public utility services are not equally necessary for the public welfare so only the core functions of the services should be put under the restrictions of strike. [13]

It must be noted that the ILO position on issue of strikes in Public Utility Services is not in conformity with the Indian position. The Indian law does not put an absolute ban on strikes in public utility services but only presupposes certain conditions which must be followed if there is a strike in [14] a public utility services.

However, there are some provisions under Committee on Freedom of Association which are similar to Indian position. For instance- The obligation to give prior notice to the employer before calling a strike does not undermine the principles of freedom of association. The same committee also stated that if a strike is suspended for a period when the conciliation or arbitration is pending, then it is not in violation of principles of freedom of association.

However, the Committee on Freedom of Association hold the view that a minimum quorum should be observed if a strike has to take place, otherwise, the strike will loose its legitimacy.

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