International Journal of Law

International Journal of Law

ISSN: 2455-2194
Impact Factor: RJIF 5.12
www.lawjournals.org
Volume 4; Issue 5; September 2018; Page No. 25-30

Analysis the provision for right to strike of workers under the industrial dispute act 1947 and other
provisions of laws
Vijay M Gawas
Assistant Professor, Department of Social Exclusion and Inclusive Policy, Goa University, Taleigao Plateau, Goa, India

Abstract
The Industrial dispute Act 1947 has given right to every worker’s i:e Right to Strike. The Act was specified that every trade unions
and employers has right to engage in the collective bargaining. According to the Industrial dispute Act, it specially enacted to gives
the effect to the right to strike and also lay down the procedures by way for the exercise this right.
According to this Act, it does not provide for the duty to bargain. There are certain issue which are two or more things have been
effect on each other between the workers and the employer. This paper tries to discuss about the some of the determinants of
Industrial disputes, such as Right to strikes is the vital significance of resolving or minimizing such disputes.

Keywords: constitutional rights, labour law, industrial disputes act, right to strike, collective barging

1. Introduction undergoing constant transformation around the basic concept

The Industrial Disputes Act, 1947 came into existence in of stoppage of work or putting of work by employees in their
1947, and it was enacted to make provisions for investigation, economic struggle with capital. The term strike has been
settlement of Industrial Disputes and providing for certain defined in a wide variety of branches of human knowledge,
safeguards to the workers. In order to analyze the various viz. etymology, sociology, political economy, law and
provision of law and to determine the correct legal position of political science. According to Webster’s dictionary defines
the right’s of workmen to go on strike. It is necessary to the term strike as “the act of quitting work done by mutual
consider some of the vital definition given by the Industrial understanding by a body of workmen as a means of enforcing
dispute act, and some of the other provision of law. As per compliance with demands made on their employers; a
Section 2(k) of Industrial Disputes Act, 1947, an industrial stopping of work by workmen in order to obtain or resist a
dispute is defined as industrial dispute to means any dispute or change in condition of employment” [3].
difference between employees and employers, or between The Right to Strike to the workmen is to help them in
employers and workmen, or between workmen and which is negotiating and getting their demands fulfilled by the
connected with the employment or Non- employment or the employer. It also helps the trade unions and workers union to
terms of employment or with the conditions of labour, of any fight for the rights of their workmen and get justice for
person [1]. themselves in case of violation of their rights. Therefore, the
The definition of Industrial Disputes may be defined as a Strike is an important weapon in the hands of the workmen
conflict or difference of opinion between management and and Strike could also be to compel the employer to get
workers on the terms of employment. It is a disagreement economic concessions such as higher wages, better working
between an employer and employees' representative. When an conditions, shorter hours etc.
industrial dispute occurs, both the parties, that is the As per Section 2(q) strike has been defined under Industrial
management and the workmen, try to pressurize each other. Disputes Act, 1947, that strike means a cessation of work by a
The management may resort to lockouts while the workers body of persons employed in any industry acting in
may resort to strikes, picketing or gheraos. combination, or a concerted refusal, or a refusal under a
Strike is one of the oldest and the most effective weapons of common understanding, of any number of person who are or
labour in its struggles with capital for securing economic have been so employed to continue to work or to accept
justice. The word of strike derived in origin to old English employment [4].
words “strican to go”. In common parlance it means hit, The workmen must be employed in any industry. The
impress, and occur to, to quit work on a trade dispute. In fact, stoppage of work by workers individually does not amount of
the meaning is traceable to 1768 and later on it varied to strike strike. The cessation of work by a body of persons employed
of work [2]. The definition and use of the word strike has been in any industry in combination is a strike. It also pointed out in
this clause a cessation of work or refusal to work is an
essential element of strike. There can be no strike, in case if
1
Dr. V.G. Goswami, (Ninth Edition 2011), Labour and Industrial Law, Vol-
2,(Law of Industrial Relations in India)published by central Law Agency,
3
Aallahabad-2, at p.212 Ibid
2 4
Ibid 1 at 276 Ibid 3 at 277

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International Journal of Law

there is no cessation of work. However, it must be proved that 2. Industrial Disputes Act Clarifies the Prohibition of
there was a cessation of work or stoppage of work under strikes
common understanding or it was a concerted action of the The Industrial dispute act 1947 under Section 22 deals with
workers or there was cessation of work by workers acting in the prohibition of strikes. Similarly, the Strikes deal with the
combination is a strike. Therefore, it mere absence from work industries caring on Public Utility Services. The Strike is not
is not enough, but there must be a concerted action for refusal completely prohibited but certain requirements which needs to
to work, to constitute a strike. be fulfilled by the workmen before resorting to a strike have
In this case the workers of a company wanted to celebrate been laid down
“May Day”. They requested the employers to declare that day It also laid down the Conditions under section 22(1) need to
a holiday. They were also ready to compensate the loss of be fulfilled in case of strike for Public Utility Services. The
work by working on a Sunday. On the company’s failure to legislature also laid down certain types of conditions, which
declare “May Day” as a holiday the workers as a whole was to provide sufficient safeguards against sudden strikes for
applied for a leave. It court was held that there was no Public Utility Services. The legislature also laid down certain
cessation of work or a concerted refusal to work and the action types of conditions, which was to provide sufficient
of the employees to apply for casual leave as a whole did not safeguards against sudden strikes for Public Utility Services
amount to strike” [5]. The strike occur for number of reason which would also result in great inconvenience not only to the
such as dissatisfaction of company policy, working hours. industry but also to the general public and society at large.
Generally, the Strikes occur for a number of reason regarding Similarly Section 22(1) No person employed in a public utility
the dissatisfaction with company policy, Salary, incentive service shall go on strike, in breach of contract-(a) Without
problems, Increment not up to the mark, Wrongful discharge giving to the employer notice of strike, as hereinafter
or dismissal of workmen, Withdrawal of any concession or provided, within six weeks before striking; or(b) Within
privilege, Hours of work and rest intervals, Leaves with wages fourteen days of giving such notice; or(c) Before the expiry of
and holidays, Bonus, profit sharing, Provident fund and the date of strike specified in any such notice as aforesaid;
gratuity, Retrenchment of workmen and closure of or(d) During the pendency of any conciliation proceedings
establishment [6] and Dispute connected with minimum wages. before a conciliation officer and seven days after the
Whereas, the strike have classified into two types i.e. primary conclusion of such proceedings [8]. It pretends to be noted that
strike and secondary strike. There are various types of strike these provisions do not prohibit a workmen from going on a
i.e. stay-away strike, stay-in, sit-down, pen down or tools- strike but are conditions required to be fulfilled before
down, go-slow and work-tot-rule, token or protest strike, cat- striking.
call strike, picketing or boycott. The strike are name are given Where a strike has commenced during to pendency of
on various circumstance. In such strike, workmen peacefully conciliation proceedings, and the workmen, pleaded that the
enter the premises of establishment or the office without strike was provoked by the employer, it was held that the fact
indicating their indication to go on strike. that the strike or lockout was provoked by the opposite party
But having the entered the premises, they generally stay at will not absolve the person, going on strike or lockout of the
their places of work or sit down there. When clerical workmen duty of complying with the requirements of section 22 and
refuse to do their work, such refusals generally known as pen section 23 of the act’ [9]. The workmen went on a strike
down strike. The court held that a pen down strike falls within without serving a notice under section 22. They claimed
the ambit of the definition of strike in the act [7]. On a plain wages for national holiday which fell within the strike period.
and grammatical construction of definition in section 2(q) it The supreme court held that they were not entitled to wages
would be difficult to exclude a strike where workmen enter because they themselves brought about the situation by going
the premises of their employment and refuse to take their tools on a strike without serving a notice whereby the management
in hand and start their usual work. was deprived of their Right to take work from them” [10].
So the pen down strike cannot be treated as illegal but if it is The court view the provisions of section 22 are mandatory and
found to be illegal because it was commenced in it should be specified the date in the notice on which the
contravention of section 23(b), mere participation in such an workmen proposed to go on strike. In case, the date of strike is
illegal strike cannot necessarily involve the rejection of the expires, fresh notice has to be given. Further held that
strike’s claim for reinstatement. The general hypothetical deduction of wages for the days of illegal strike would be
consideration that pen down strike may in some cases lead to justified [11]. The Bombay High Court held that once the strike
rowdy demonstration or result in disturbance or violence or is held to be illegal the question of justifiability does not arise
shake the credit of the employer would not justify the and the workmen in Public Utility service are not entitled to
conclusion that even if the strike are peaceful and non-violent seek wages for the strike period unless they prove the strike
and have done nothing more than occupying their seats during legal and justifiable [12]. It was further stated that the strike is a
office hours, their participation in this strike would by itself form of demonstration and right to strike or right to
disqualify them form claiming reinstatement. Whereas, the demonstration is not a fundamental right. It is recognized as a
secondary strike are also called the sympathy strike.
8
Ibid 4 at 289
9
Colliery Mazdoor congress v Beerbhum coal co [1952 LAC 29(LAT)]
5 10
Standard vacuum oil co. Madras V Gunaseelam M.G (1954) 11 LLJ 1956 Madurai coats ltd v Inspector of factories Madurai [(1981) 1 LLJ 255 (SC)]
11
(LAT) Mineral Minors Union v Kudremukh Iron Ore Co Ltd [(1988) 1 lab LJ 277
6
See http://www.whatishumanresource.com/strikes dated 12/08/2018 (karn)]
7 12
In the case of Punjab National Bank Ltd v. their workmen AIR1960 SC160. ANZ Grindlays Bank v SN Khatri and Others [(1995) 11 LLJ 877 (BOM)]

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International Journal of Law

mode of redress for solving the grievances of the workers. It is Central government employees are governed by the central
not an absolute right and is restricted by the provisions of civil service (conduct) Rules, 1955. The Industrial dispute act
Industrial Dispute Act 1947 [13]. 1947 under Section 25 of the Act prohibits financial Aid to
illegal strikes. It has been provided under section 25 of the Act
3. General prohibitions of illegal strikes that no person shall knowingly expend or apply any money in
General provisions on the prohibition of strike are mentioned direct furtherance or support of any illegal strike or lockout. It
in section 23 of the Industrial dispute Act. It provides that no means that financial aid is prohibited in direct furtherance of
workman who is employed in any industrial establishment illegal strike and lockouts [18]. The important element here is
shall go on strike in breach of a contract and no employer of mens rea. The person spending or applying money should
any such workmen shall declared a lockout is prohibited in the have the knowledge that the strike is illegal. Punishment for
following cases:(a) During the pendency of conciliation violation of the provision is provided in section 28 of the Act.
proceedings before a Board and seven days after the It also specified penalty for Financial Aid to Illegal Strikes
conclusion of such proceedings;(b) During the pendency of under Section 28 imprisonment for a term which may extend
proceedings before [a Labour Court, Tribunal or National to 6 months or with a fine which may extend to thousand
Tribunal] and two months, after the conclusion of such rupees or with both [19]. It is only the spending of money in
proceedings;(b) During the pendency of arbitration support of strike which is prohibited under the section.
proceedings before an arbitrator and two months after the Therefore, assistance for the strikers in any other form, for
conclusion of such proceedings, where a notification has been example supplying them with clothes, food, etc. is not
issued under sub-section (3A) of section 10A; or(c) During prohibited under section 25 of the Act.
any period in which a settlement or award is in operation, in
respect of any of the matters covered by the settlement or 4. Right to strike is not fundamental right under
award [14]. constitution of India
According to section 24 of the Industrial dispute act, provides The Right to strike is universally recognized as fundamental
that a strike and lockout shall be illegal [15]. The workers have human right, but Indian constitution has not recognized as
a right if not a fundamental right, to go on strike. The fundamental right. The right to strike has not been specifically
penalties are contained in section 26 to 29 of the Industrial covered by any of the entries in the seven scheduled of the
disputes act, 1947 [16]. Even in case of illegal strikes a Indian constitution. It makes reference to some of the
distinction has been attempted to be made between illegal but provision in this context.
justified strike and illegal and unjustified strike. The government of Indian Act, 1935, entry 29 in list III,
The effect of an illegal strike on the demand of workmen to (Concurrent list) of the VIIth schedule, empowered the central
wages or compensation and their liability to punishment as well as the provincial and presidency legislatures to
according to one view is based on the strike being justified. legislate on trade unions, industrial and labour dispute.
Mere illegality of a strike does not matter. It means if the Besides, Indian constitution the entry 55 in list-I (union list) of
strike is illegal and at the same time unjustified the workmen the VIIths scheduled, empowers the parliament to legislate on
have no claim to wages and must also be punished. If the the subject of Regulation of labour and safety in mines and oil
strike is justified they have the right to claim wages. field; entry No.61, deals with the industrial disputes,
The Right of striking workmen to reinstatement after concerning union employee; entry 97 gives the residuary
termination of strike: If the strike is the result of unfair labour power to the parliament to legislate on any other matter, Not
practice on the part of the employer, the workmen have a right enumerated in the list II or III.
to be reinstated. If the employer is not guilty of unfair labour In the state list (II) does not contain any entry pertaining to
practice and he has also engaged other workmen in the interim labour or Industrial dispute. According to concurrent list it
period to continue the work, the striking employees have no specified that the trade Union, Industrial and Labour disputes
right to reinstatement. In the former case the employer must related to entry 22; entry 23 deals with social security and
put his employees back to their work after the strike. social insurance, employment and unemployment and entry 24
The Right of employer to compensation for loss caused by deals with welfare of labour, including condition of work,
illegal strike in the case of Supreme Court held that the provident funds, employers liability, workmen’s compensation
remedy for illegal strike has to be sought exclusively in etc..Thus, both the parliament and legislature have the
section 26 of the Act. The award granting compensation to competence to legislate on this subject.
employer for the loss of business through illegal strike is Similarly, article 19(1) the constitution of India guarantees the
illegal because such compensation is not a dispute within the protection of certain freedoms as fundamental right. The
meaning of section {2(k)} of the act [17]. constitution of Indian has specified that all citizen shall have
The rights of a government servant to go on a strike are the right i: e, To freedom of speech and expression, To
different from the workmen employed in Private concerns. Assemble peaceable and without arms, To from associations
There are different rules which prohibit him to go on strike. or union, To move freely throughout the territory of India, To
reside and settle in any part of the territory of India, and to
practise any professional, or to carry on any occupation, trade
13
B.R Singh v Union Of India [(1989) 11 lab LJ 591 (SC)] or business. However, strike is not expressly recognized in the
14
Ibid 8 at 297
15
Ibid 14 at 307
16 18
Ibid 15 at 317 Ibid 16 at 318
17 19
Rohtas Industries v Its Union {(AIR) 1976 SC 425} Ibid 18 at 317

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International Journal of Law

constitution of India. In the case of kameshwar Prasad v. The rich powerful employer to come in common terms and
state of Bihar [20], the court held that the strike is not negotiate with the working class. But the right to strikes as a
fundamental right government employees have no legal or fundamental right still remains a controversy and the Indian
moral right to go on strike. Similarly, the Court view that right constitution does not recognise the right to strike as a
to strike is an important weapon in the armory of employees fundamental right [28]. The Right to strike is an implied
as a mode of redress. It is a right earned by the employees as statutory right which ahs various limitation and it must be
form of direct action during their long struggle. It is a weapon used as a weapon of the last resort.
to safeguard and preserve the liberty. It is an inherent right of
every employee [21]. According to court observed that the right 5. International law recognises as right to strike
to strike is central to collective bargaining. It further stated The international labour organisation was come into existence
that right to strike is a legal right though not elevated to the in 1919, the recommendation and conventions of the ILO
status of a fundamental right [22]. The court held that there is form a part of the international labour law. In the conventions
no fundamental right for workers to go on strike” [23]. It was of the International labour organisation every member were
held that the right to form Association guaranteed under obliged to adhere, the provisions of such conventions by
Article 19(1) (c) of the Constitution, also carried with it the virtue of their membership. However, in the convention the
right to strike otherwise the right to form association would be International labour organisation passed the freedom of
rendered illusory. The Supreme Court is many of the cases has Association and protection of the Right to workers [29]. There
recognised the right to strike of the workers as a legal right but are several others conventions also promote the right to
has not said that it is a fundamental right” [24]. organize and collective bargaining [30] of such association;
The right to protest is a fundamental right was specified under provide the labour Regulation (public service) [31] and
the Article 19 of the Constitution of India. Similarly, the Right collective Bargaining [32].
to strike not recognized as fundamental right in the Indian The Universal declaration of Human right have provisions to
constitution but it is recognized as a legal right. According to protect the interest of workers and it stated that everyone has
Industrial Dispute Act 1947, the right to strike are attached in the right to work, to free choice of employment, to just and
statutory restrictions. In the case the court observed that the favourable condition of work to protection against
significance of right to strike is core of significance to the unemployment. Similarly, everyone has the right to form and
principle of collective bargaining of each worker [25]. to join trade union for protection of his interest [33]. It means
According to the Justice Krishna Iyer view that the strike the right has recognized the right to form trade Union of the
could be legal or illegal and even an illegal strike could be working class, and the right to go on strike for the purpose of
justified one [26]. The court view that the right to go on securing proper working conditions si the sequel of the right
peaceful strikes but this right cannot be interfered with except to form association.
on sufficient grounds. The workers have right to make The International Covenant of Economic, Social and Cultural
legitimate demands, which if not met to go on legal but Rights (ICESCR)1966, that the state parties to present the
peaceful strike. Trade unions also have the right to pursue its covenant that recognizes the right of everyone to enjoyment of
trade union activities in peaceful methods [27]. just and favourable condition of work [34] and it also ensure the
The strike is a form of demonstration and the every Worker right to strike provided that it is exercised in conformity with
has a right to demonstrate but right to strike cannot be done the laws of the particular country [35].
anyway. The strength of trade union depends on its The country like Indian had ratified an obligation to respect
membership and able to bargain more effectively the the law of international provisions related to protection
management rather than the individual. The bargaining interest of workers. Even after India Being a member to the
strength depend upon demonstrate by way of adopting above mentioned International conventions and treaties India
agitation by workers such as strike. has still refused to accept the right to strike as a fundamental
Thus from the cases discussed and judgements delivered it is right even though the preamble of the ILO places great
very much evident that the right to strike is available to the importance on the right to strike as being fundamental to
workers as a legal right and they can resort to peaceful strikes collective bargaining power of the workers.
if their demands are not fulfilled by the management. The As per the international conventions the right to life should
courts have also said that the right to strike and collective have been a fundamental right in India. According to the
bargaining go hand in hand as it persuades the mighty and the Supreme Court decision of the various cases well point out to
the fact the international law should be abided with and
20
respected and the constitutional laws should also be such that
AIR 1962 SC1166
21
B.R. Sing case, (19900Lab IC 389:air 1990sc1 they are abided.
22
T.K. Rangarajan v Government of Tamil Nadu {2003(6) SCALE 84} In fact, the right to form Association and Right to
23
In Radhey shyam sharma v Post Master General central circle Nagpur
{1965 AIR 311, 1964 SCR (7) 403}
24 28
All India Bank Employees Association v National Industrial Tribunal and B.R. Singh v Union of India(1990) Lab.IC 389 SC 396
29
others {AIR 1962 SC 171} Convention No.87 ILO
25
Andhra State Road Transport corporation employees’ union v the Andhra 30
Convention No.98 ILO
31
State Road Transport Convention No.151 ILO
26 32
Gujarat steel tubes Ltd v. Gujarat steel tubes Majdoor {AIR 1980 SC Convention No.154 ILO
33
1896} Article 23 of the Universal Declaration on Human Right.
27 34
Indian Express Newspapers (Bombay) Pvt.ltd. v. T.M. Nagarajan{1987 Article 7
35
(15) DRJ 212, 1988 LablC 1067, 1988 RLR 194} Article 8(1)

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International Journal of Law

demonstration being part of the fundamental human right, but The violation of any of the provisions would make the strike
the Indian law does not recognise the right to strike as a illegal. Therefore, the right to strike is not fundamental right
fundamental right. It need to take the certain steps towards in India. Similarly the Government employee have no right to
bringing about reconciliation between the international law go on strike. According to the industrial dispute Act, 1947 has
and the India law on this matter and the balance lies in given the legal right of going on strikes as stipulated in section
recognising the right to strike as a legal Right. 22, 23, and 24. Hence, the rights of strikes under industrial
This is implicit from Article 51 (c) and the enabling power of dispute Act, 1947 is very much limited and regulated because
Parliament to enact laws for implementing the international this act, has limits of rights to strikers.
conventions and norms by virtue of Article 253 read with
Entry 14 of the Union List in Seventh Schedule of the Reference
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19. https://www.google.co.in/amp/s/blog.ipleaders.in/need-kn
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23/08/2018
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dated 23/08/2018
22. http://lex-warrier.in/2012/05/right-to-strike-and-indian-
constitution/ dated 25/08/2018
23. https://www.vakilno1.com/bareacts/industrialdisputesact/i
ndustrialdisputesact.html dated 25/08/2018
24. https://www.lawteacher.net/free-law-essays/employment-
law/labour-law-and-right-to-strike-employment-law-
essay.php dated 26/08/2018
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SY-Lab-1-Samatina.pdf dated 26/08/2018
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30/08/2018
28. http://fra.europa.eu/en/charterpedia/article/28-right-
collective-bargaining-and-action dated 30/08/2018
29. https://www.law.utoronto.ca/documents/conferences2/Stri
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671000.htm dated 03/09/2018

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