JAMIA MILLIA ISLAMIA

New DeLhI

SubJect – LAbour LAw - I

topIc – StrIke AND Lock-out

Submitted to: - Submitted by:-

Prof. Dr. Nuzhat Parveen Khan PRASHANT KUMAR
Roll No. - 46
B.A. LL.B. (Hons.)
Self-Finance – 5th Semester
Student ID- 20188885
 TABLE OF CONTENT
INTRODUCTION......................................................................................................................... 3
STRIKE ......................................................................................................................................... 4
Meaning of Strike -.................................................................................................................... 4
TYPES OF STRIKE ..................................................................................................................... 5
1. General Strike: ................................................................................................................... 5
2. Stay-in-Strike: .................................................................................................................... 5
3. Go-Slow:.............................................................................................................................. 6
LOCK - OUT ................................................................................................................................. 7
Prohibition of Strikes and Lock-outs .......................................................................................... 8
General prohibition of Strikes and Lock-outs: .......................................................................... 9
ILLEGAL STRIKES AND LOCK-OUTS: .............................................................................. 10
PUNISHMENT FOR ILLEGAL STRIKES ............................................................................ 11
CONCLUSION ........................................................................................................................... 13
BIBLIOGRAPHY ....................................................................................................................... 14

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INTRODUCTION
In any industry, the two main pillars are employee and employer. The industry is running when
these two pillars coordinate with each other. But in some times there are clashes of interest between
employer and employee. For the benefit of the industry, it was necessary to resolve the conflict
between employer and employee. Because the work environment is affected due to conflicts. If we
provide a healthy environment then it will provide the benefit of the employer as well as the
employee.

Strike and lock-out are two powerful weapons in the hands of the workers and the employers.
Strike signifies the suspension or stoppage of work by the worker while in case of lock-out the
employer compels persons employed by him to accept his terms or conditions by shutting down
or closing the place of business. Strike is recognized as an ordinary right of social importance to
the working class to ventilate their grievances and thereby resolve industrial conflict.

Skillful use of these weapons, whether threatened or actual, may help one party to force the other
to accept its demand or at least to concede something to them. But reckless use of them results in
the risk of unnecessary stoppage of work hurting both parties badly creating worse tensions,
frictions and violations of law and order. From the point of view of the public, they retard the
nation’s economic development. India cannot tolerate frequent stoppage of work for frivolous
reasons that often accompany it. For these reasons, the Industrial Disputes Act seeks to regulate
and restrict strikes and lock-outs so that neither the workmen nor employers may hold the nation
to ransom.

Strike is legitimate and sometimes unavoidable weapon in the hands of labor and may be resorted
to for securing demands of workmen to improve their working conditions. But this weapon when
misused can lead to penal consequences. Section 24 of the Industrial Dispute Act, 1947 lays down
grounds which make the Strike and Lockout illegal.

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STRIKE

The right to strike by workers is a well-recognized weapon available to them to settle their
differences with the management and force the management to accept their demands. In our day-
to-day lives also, we often see news regarding worker unions resorting to strikes so that their
demands about their working conditions, for example, wages, benefits, holidays etc., are accepted
by their employer.

Strike is an important part of the bargaining process because it tests the economic bargaining power
of each side and forces both the parties to understand, realize, and evaluate the need it has for each
other’s contribution. As the strike progresses, both side face losses- the savings of the workers
continue to reduce, while the employer also faces losses as production stops.

This economic pressure results in offers, counter-offers, and ultimately agreements and
compromises. Even if a strike does not happen, it still plays a part in the bargaining process,
because the very prospect of hardship which the strike will result in, will often force a party to
compromise. Collective bargaining is a process of reaching agreement, and strikes are an integral
and frequently necessary part of that process.

Definition of Strike: - Section 2(q) of the Industrial Dispute Act 1947 defines “Strike” –

Strike means a cessation 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 to accept employment.
Thus the definition given in the act postulates three main things or ingredients:

a) Plurity of workmen;
b) Combination or concerted action;
c) Cessation of work or refusal to do work.

Meaning of Strike - Strike means the stoppage of work by a body of workmen acting in concert
with a view to bring pressure upon the employer to concede to their demands during an industrial
dispute. Mere cessation of work does not come within the preview of strike unless it can be shown
that such cessation of work was a concerted action for the enforcement of an industrial demand.
Cessation of work or refusal to work is an essential element of strike. This is the most significant

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characteristic of the concept of strike. There can be no strike if there is no cessation of work. The
cessation of work may take any form. It must however be temporary and not forever and it must
be voluntary. No duration can be fixed for this in fact duration for cessation of work is immaterial.
Cessation of work even for half an hour amounts to strike. 1 In B. R. Singh v. Union of India2 it was
held that the strike is a form of demonstration. Though the right to strike or right to demonstrate is
not a fundamental right, it is recognized as a mode of redress for resolving the grievances of the
workers. Though this right has been recognized by almost all democratic countries but it is not an
absolute right.

In T.K. Rangarajan v. Tamil Nadu,3 the Tamil Nadu government terminated the services of all
employees who resorted to strike. The Apex Court held that Government staffs have no statutory,
moral or fundamental right to strike. In 2005, the Supreme Court reiterated that lawyers have no
right to go on strike or give a call for boycott and not even a token strike to espouse their causes.

TYPES OF STRIKE

There are mainly three kinds of strike, namely general strike, stay-in-strike and go slow.

1. General Strike: In General Strike, the workmen join together for common cause and stay
away from work, depriving the employer of their labour needed to run his factory. Token Strike
is also a kind of General Strike. Token Strike is for a day or a few hours or for a short duration
because its main object is to draw the attention of the employer by demonstrating the solidarity
and co-operation of the workers. General Strike is for a longer period. It is generally resorted
to when employees fail to achieve their object by other means including a token strike which
generally proceeds a General Strike. The common forms of such strikes are organized by
central trade unions in railways, post and telegraph, etc. Hartals and Bundhs also fall in this
category.
2. Stay-in-Strike: It is also known as ‘tools-down-strike’ or ‘pens-down-strike. It is the form of
strike where the workmen report to their duties, occupy the premises but do not work. The
employer is thus prevented from employing other labour to carry on his business. Where
dismissed workmen were staying on premises and refused to leave them, did not amount to

1
Indian Iron & Steel ltd. v. Its Workmen, (1967)I LLJ 381 (Pat).
2
(1989) II Lab LJ 591 (SC).
3
(2003) 7 ACE 30.

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 strike but an offence of criminal trespass.4 Refusal under common understanding to continue
to work is a strike and if in pursuance of such common understanding the employees entered
the premises of the bank and refused to take their pens in their hands would no doubt be a strike
under section 2(q).5
3. Go-Slow: In a ‘Go-Slow’ strike, the workmen do not stay away from work. They do come to
their work and work also, but with a slow speed in order to lower down the production and
thereby cause loss to the employer. Go-Slow strike is not a “strike” within the meaning of the
term in the Act, but is serious misconduct which is insidious in its nature and cannot be
countenanced.6

4
Mysore Machinery Manufacturers v. State, AIR 1966 Mys 51.
5
Punjab National Bank Ltd. v. Their workmen, AIR 1960 SC 160.
6
Sasa Musa Sugar Works Pvt. Ltd. v. Shobrati Khan & Ors, AIR 1959 SC 923.

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LOCK - OUT

Lockout is the antithesis of strike. Strike is a weapon in the hands of the labour to force the
management to accept their demands. Similarly, lockout is a weapon in the hands of the
management to coerce the labour to come down in their demands relating to the conditions of
employment. As in the case of a strike so also in the case of a lockout, there is no severance of the
relationship of employer and employee.

Definition: - Section 2(l) of the ID Act defines lock-out as follows:

“Lock-out means the temporary closing of a place of employment, or the suspension

of work, or the refusal by an employer to continue to employ any number of persons
employed by him.”
Lock-Out is the keeping of labour away from works by an employer with a view to resist their
claim. There are four ingredients of Lock-Out: -

1. (i) temporary closing of a 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 acts of the employer should be motivated by coercion.
3. An industry as defined in the Act; and
4. A dispute in such industry.

Lock-Out has been described by the Supreme Court as the antithesis of strike. If the employer
shuts down his place of business as a means of reprisasl or as an instrument of coercion or as a
mode of exerting pressure on the employees or generally speaking when his act is what may be
called an act of belligerency there would be a lock-out. 7

In case of Lock-Out the workmen are asked by the employer to keep away from work, and,
therefore they are not under any obligation to present themselves for work. So also Lock-Out is
due to and during an industrial dispute.

7
Shri. Ramchandra Spinning Mills v. State of Madras, AIR 1956 SC Mad 241.

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Prohibition of Strikes and Lock-outs

Section 22 of the Industrial Disputes Act, 1947, deals with the prohibition of strikes and lock-outs.
This section applies to the strikes or lock-outs in industries carrying on public utility service. Strike
or lock-out in this section is not absolutely prohibited but certain requirements are to be fulfilled
by the workmen before resorting to strike or by the employers before locking out the place of
business. Conditions laid down in section 22(1) are to be fulfilled in case of strike and conditions
as laid down in section 22(2) are to be fulfilled in case of any lock-out by the employer. The
intention of the legislature in laying down these conditions was to provide sufficient safeguards
against a sudden strike or lock-out in public utility services lest it would result in great
inconvenience not only to the other party to the dispute but to the general public and the society.

Section 22(1): - No person employed in public utility service shall go on strike in breach of
contract:

a) Without giving to the employer notice of strike within six weeks before striking; or
b) Within fourteen days of giving such notice; or
c) Before the expiry of the date of strike specified an any such notice as aforesaid; or
d) During the pendency of any conciliation proceedings before a Conciliation Officer and
seven days after the conclusion of such proceedings.

These provisions do not prohibit the workmen from going on strike but require them to fulfill the
conditions before going on strike. These provisions apply to a public utility service only and not
to a non- public utility service.

With regards to Notice of Strike, notice within six weeks before striking is not necessary where
there is already a lock-out in existence. Secondly, notice may be given by the Trade Union or
representatives of the workmen to do so. Thirdly, a notice of strike shall not be effective after six
weeks from the date it is given. The strike can take place only when 14 days have passed but before
6 weeks have expired after giving such notice.

Section 22(2): No employer carrying on any public utility service shall lock-out any of his
workmen: a) Without giving them notice of lock-out as herein after provided within six weeks
before locking out; or b) Within fourteen days of giving such notice; or c) Before the expiry of the
date of lock-out specified in any such notice as aforesaid; or d) During the pendency of any

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conciliation proceeding before a Conciliation Officer and seven days after the conclusion of such
proceedings.

Section 22(3): Notice of strike or lock-out as provided by sub-sections (1) and (2) many in certain
cases be dispensed with. (1) No notice of strike shall be necessary where there is already in
existence a lock-out in the public utility service concerned. (2) No notice of lock-out shall be
necessary where there is already in existence a strike in the public utility service concerned.

Sub-section (3) is in the nature of an exception of sub-sections (1) and (2) of section 22. Posts and
Telegraphs Department, being Public Utility Service, cannot declare lock-out without notice and
that the employees of the department cannot go on strike without notice. 8

Section 22(4): Notice of strike shall be given by such number of persons to such person or persons
in such manner as may be prescribed. The object of giving notice of strike is to enable the other
party to make amends or to come to terms or redress the grievance or to approach the authorities
to intervene and stop, if it is possible the threatened action.

Section 22(5): Notice of lock-out shall be given in such manner as may be prescribed.

Section 22(6): Deals with intimation of notices given under sub-section (1) or (2) to specified
authorities. If on any day an employer receives from any person employed by him any such notice
as is referred to in sub-section (1), he shall within five days report to the Appropriate Government
or to such authority as that Government may prescribe, the number of notices received on that day.
Similarly, if any employer gives any notice as is referred to in subsection (2), to any person
employed by him, he shall report this fact within five days to the to the Appropriate Government
or to such authority as that Government may prescribe.

General prohibition of Strikes and Lock-outs:

The prohibition against strikes and lock-out contained in Section 23 is general in nature. It applies
to both public utility as well as non-public utility establishments. A strike in breach of contract by
workmen and lock-out by the employer is prohibited in the following cases:

8
Bhaskaran v. Sub-Divisional Officer, (1982) II LLJ 248 (Ker).

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 (i) During the pendency of conciliation proceedings before a Board and seven days after the
conclusion of such proceedings;
(ii) During the pendency of conciliation proceedings before a Labour Court, Tribunal or
National Tribunal, and two months after the conclusion of such proceedings;
(iii)During the pendency of arbitration proceedings before an arbitrator and two months after
the conclusion of such proceedings, where a notification has been issued under sub-section
(3-A) of section 10-A, or
(iv) During any period in which a settlement or award is in operation in respect of the maters
covered by such settlement or award.

The object of these provisions seems to ensure a peaceful atmosphere to enable a conciliation or
adjudication or arbitration proceeding to go on smoothly. This section because of its general nature
of prohibition covers all strikes and lock-outs irrespective of the subject-matters of dispute pending
before the authorities. However a conciliation proceeding before a conciliation officer is no bar to
a strike or lock-out under this section, it is only a conciliation proceeding before a Board which is
mentioned in this Act.

The provisions of section 23 shall apply to all industrial establishments. Section 23 applies to both
public utility service as well as non-public utility service, while Section 22 applies to public utility
service alone. Section 23 does not prohibit a strike or lock-out during the pendency of conciliation
proceeding before a conciliation officer, Section 22 does so.

ILLEGAL STRIKES AND LOCK-OUTS:

According to Section 24(1) Strike or lock-out shall be illegal if it is: (1) Commenced or declared
in contravention of section 22 in a public utility service; (2) Commenced in contravention of
section 23 in any industrial establishment (including both public utility and non-public utility
service); (3) Continued in contravention of an order made by the appropriate Government under
section 10(3) or sub-section (4-A) of section 10-A of the Act.

Strike or lock-out in contravention of the provisions of Section 22 or Section 23 of the Act is

declared illegal by Section24 of the Act. A strike or lock-out which commenced as legal under
Section 22 & 23 can be continued unless an order under Section 10(3) has been passed prohibiting
the continuance of an existing strike or lock-out.

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Sub-section (2) of Section 24 of the Act lays down that continuance of strike or lock-out is deemed
to be illegal only if an order prohibiting it is passed under Section 10(3).

Sub-section (3) of Section 24 of the Act provides that a lock-out declared in consequence of an
illegal strike or a strike declared in consequence of an illegal lock-out shall not be deemed to be
illegal.

Thus Strike and lock-out shall not be deemed to be illegal if:-

(i) At the commencement they are not in contravention of the provisions of this Act;
(ii) Their continuance has not been prohibited by the appropriate Government under
section 10(3) of the Act;
(iii) A lock-out is declared in consequence of an illegal strike or vice versa.

When a strike is commenced before the expiry of 14 days notice, it will be illegal but only for the
unexpired notice period and thereafter, the strike would be legal. 9

PUNISHMENT FOR ILLEGAL STRIKES

If a strike is illegal the party guilty of the illegality is liable to punishment under Section 26 of the
Act. Section 26(1) prescribes penalty which can be imposed on any workman who commences,
continues or otherwise acts in furtherance of a strike which is illegal under this act. Thus to penalize
a workmen under Section 26(1) two conditions must be fulfilled, namely,-

(1) A workman must commence, continue or in some other manner act in furtherance of a
strike ; and
(2) Such strike must be illegal under the act.

Any workman found guilty of participating in an illegal strike shall be punishable with
imprisonment of a term which may extend to one month or with a maximum fine of rupees fifty
or with both.

Section 26(2) provides that an employer shall be punishable with imprisonment extending to one
month or with a maximum fine of rupees one thousand or with both if,

(1) Such employer commences, continues or otherwise acts in furtherance of a lock-out; and

9
Maharashtra General Kamgar Union v. Balkrishna Pen P. Ltd., (1989) 1 Lab LJ 319 (Bom).

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 (2) Such lock-out is illegal under the act.

Even though the workers have a right to go a strike but it is not their fundamental right. In case of
illegal strike the guilty party has to undergo punishment. A distinction has been tried between
illegal but justified strikes and illegal and unjustified strikes. For instance a strike may be illegal
but it might have been taken recourse for good reasons and carried on in orderly and peaceful
manner. It was held that the workers will be entitled to wages for the strike period when the strike
is legal as well as justified.10

Strike is the last weapon. There may, however, be the circumstances where the demand is of such
urgent nature that it cannot be reasonably expected from the workmen to wait till after asking the
Government to make a reference; in such a case the strike even before such request has been made
will be justified.11

Strike for securing improvement on matters relating to wages, dearness allowance, bonus,
provident fund, gratuity, leave and holiday may prima facie be considered to be justified because
it is the primary object of a Trade Union to secure better conditions of employment of the
workmen.12

10
Crompton Greaves v. The Workers, AIR 1978 SC 1489.
11
Chandramalai Estate Ernakulam v. Its Workmen, (1960) II LLJ 243.
12
Swadeshi Industries Ltd. v. Their Workmen, (1960) II LLJ 78 (SC).

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CONCLUSION

Though under the Constitution of India, the right to strike is not a fundamental right as such, it is
open to a citizen to go on strike or withhold his labour. It is a legitimate weapon in the matter of
industrial relations. In both lock-out and strike, a labour controversy exists which is deemed
intolerable by one of the parties, but lock-out indicates that the employers rather than the
employees have brought the matter in issue.

Strike may be justified or unjustified, legal or illegal. It depends on the circumstances of each case.
It is usually associated with collective bargaining by workers and is permissible under Industrial
dispute Act, 1947.

Lock-out is a weapon of coercion in the hands of the employer with a motive to coerce the
workmen which is due to an industrial dispute and continues during the period of dispute. However
strikes and lock-outs are prohibited during the pendency of conciliation adjudication and
arbitration proceedings. Strikes are said to be revolutionary as it seeks to obtain better living
conditions for the workers who form the majority in the industrial community.

‘Lock-outs’, on the contrary, are reactionary by any measures; because their object is to frustrate
this progressive tend in human affairs. To hold down wages to a minimum, workers denied of
equal opportunities for the education of their children, and no savings to fall back upon in evil
times, is surely unjustifiable, and may be rightly called reactionary.

A strike signals the transfer of power from the employer to the union. While the employer has a
right to employ and retrench workers, in the case of a strike, the right to not come to the place of
work is with the union. This transfer of right also means higher bargaining power for the union.

A lockout also means deterioration in the relationship between the employer and the
union/workmen. If the workmen decide to contest the reasons on which the employer has declared
a lockout, there are chances that the employer might have to end up paying wages for the period
of lockout along with other benefits which will have a huge financial implication on the company.

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BIBLIOGRAPHY

1. Mishra, S.N, Labour and Industrial Laws (29th Edn. Central Law Publications,
Allahabad).
2. Dr. V.G. Goswami, Labour & Industrial Laws, (8th Ed., Central Law Agency,
Allahabad)
3. Dr. Avtar Singh & Dr. Harpreet Kaur, Introduction to Labour & Industrial Law,
(2nd Ed., 2008, Lexis-Nexis Butterworths Wadhwa Nagpur)
4. Chaturvedi S. M, Labour and Industrial Laws, (13th Edn., Central Law Agency,
Allahabad)

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