Right to Strike

IS RIGHT TO STRIKE FUNDAMENTAL RIGHT?

The right to strike is not expressly recognized by the law. But the Trade union act for the first time provided limited right to strike by making legal certain activities of a registered trade union. The actions of a trade union in case of a trade dispute which otherwise would become breach of common economic law . Now, right to strike is recognized only to limited extent permissible under the limits laid down by the law itself under the trade union Act.

The right to strike by the worker or by the registered trade union is not a absolute right under the Indian constitution but it comes from the fundamental right to form a union. It is also subjected to a reasonable restriction. As stated by the court in case of All India Bank Employees Association v. IT, that “right to strike or lockout may be controlled 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." [1] So, we can put it into this way that there is a fundamental right to form an association or labour union but there is no fundamental right for right to strike.

PROVISIONS AND PROHIBITIONS-

Section 2(q) od the Industrial dispute act defines the term strike, according to which a strike is any 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 employment. To go on a strike, the employees have to follow certain procedures according to Section 22(1) of the Industrial Dispute Act, which lays down the ground and condition for the legal strike and if those provisions and conditions are not fulfilled then the strike will be termed as illegal.

Section 21 of the Industrial dispute Act lays down certain prohibitions on the right to Strike. It provides that no person employed in public utility shall go on strike in breach og contract:

• Without giving to the employer notice of strike.
• Within fourteen days of giving such notice.
• Before the expiry of the date of strike specified in any such notice as aforesaid
• During the pendency of any conciliation proceedings

It is to be noted that all these provisions are required to be fulfilled by the workmen but they do not prohibit them to go on a strike. Also these provisions only apply to the public utility services only.

Section 23 of the Industrial Dispute Act lays down general provisions and restrictions. It imposes general restrictions in declaring strike in breach of contract in both public and non-public utility services. Those restrictions are-

1. During the pendency of conciliation proceedings before a board and till the expiry of 7 days after the conclusion of such proceedings;

2. During the pendency and 2 month's after the conclusion of proceedings before a Labour court, Tribunal or National Tribunal;

3. During the pendency and 2 months after the conclusion of arbitrator, when a notification has been issued under sub- section 3 (a) of section 10 A;

4. During any period in which a settlement or award is in operation in respect of any of the matter covered by the settlement or award.

This is a general section, which means is applicable to all and it basically made to ensure a peaceful process of conciliation or arbitration proceedings.

ILLEGAL STRIKE-

In order to strike according to industrial dispute Act, a strike must be legal in nature. Section 24 of the Industrial Dispute Act provides when a strike will be illegal-

1. A strike or a lockout shall be illegal if,

1. It is commenced or declared in contravention of section 22 or section 23; or
2. It is continued on contravention of an order made under sub section (3) of section 10 or sub section (4-A) of section 10-A.

2. Where a strike or lockout in pursuance of an industrial dispute has already commenced and is in existence all the time of the reference of the dispute to a board, an arbitrator, a Labour court, Tribunal or National Tribunal, the continuance of such strike or lockout shall not be deemed to be illegal;, provided that such strike or lockout was not at its commencement in contravention of the provision of this Act or the continuance thereof was not prohibited under sub section (3) of section 10 or sub section (4-A) of 10-A.

3. A strike declared in the consequence of an illegal lockout shall not be deemed to be illegal.

Dismissal-

If the strike performed are of illegal in nature, there will be consequences and punishment that may be given to workmen. In, M/S Burn & Co. v. Workmen [2] supreme court stated that in case of illegal strike the only question that has to be looked is the quantum or kind of punishment. This has to be decides on the basis of violent strikers and peaceful strikers. In case of Punjab National Bank V. Employees [3] , court stated that an employer can stop the strikers to enter into the premises by adoption the effective and legitimate method. If the employees does not agree to that, then employer can suspend them from employment.

Wages-

In Cropton green ltd v. Workmen, [4] the court stated that for the workmen in order to be entitled for the wages during the strike period, the strike must be of legal nature. A strike to be when termed as illegal in nature has also been discussed by the court clearly in the case of Syndicate Bank v. Umesh Nayak, where supreme court stated that a strike will be illegal In nature if it contravenes the provision on section 22,23 or 24 of the Industrial Dispute Act. Also whether a strike in justified or unjustified, will be depending upon the nature of demands by the workmen that lead to strike.

• [1] All India Bank Employees Association v. IT (1961-62) 21 FJR 63
• [2] M/S Burn & Co. v. Workmen AIR 1959 SC 529.
• [3] Punjab National Bank V. Employees. AIR 1960 SC 160.
• [4] Cropton green Ltd v. Workmen (1978)3 SCC 155