Labour Law

Project on
Right to Strike by workman in the light of
Fundamental Rights
 INTRODUCTION

The term "strike" is almost two hundred years old. The first recorded use of the phase 'to strike
work' appeared in 1768 at the beginning of the Industrial Revolution in U.K1.The report of the
1867 Royal Commission on Trade Unions referred to workers having been "fined for going to
work in a shop that had been struck2, but it was some time before the more sensational
connotation of the word "strike" began to cloud the clarity of its metaphorical origins. In 1891,
the phrase "striking a firm" appeared; by 1910 the word "strike" was suggesting to a writer “the
blacksmith’s manner, the woodman’s axe, the patriot’s sword3; and the word maintained its
violent association throughout syndicalist era of great strikes which ended in 1926. The year
1926 did indeed mark the end of an era, an era which ended “not with a bang, but a whimper”.
The very term “strike” has been dissolving in a solution of official euphemism ever since: a
spade is a mere garden implement, starvation in malnutrition and a strike is an unofficial
stoppage. The word “strike” was originally used of both forms of industrial dispute which
involve a collective stoppage of work. The word “strike” has been describe as willful stoppage of
many kinds of activity; for instance hunger strike, rent strike, rate strike, debt strike, strikes of
capital, buyers’ strike, farmers’ strike, students’ strike etc.

Generally speaking, a strike must involve a group of employed workers; that is there must be a
definite employer-employee relationship between the parties involved in the dispute. Moreover,
official definitions usually exclude political strikes and are restricted to dispute concerning the
terms or conditions of employment.

1
Annual Register, 107 (may 9th, 1968).
2
Third report, 1867 at 27.
3
Crosby, Strikes: When to strike-How to strike(1910).
 WHAT IS STRIKE?

Strike, is a work stoppage caused by the mass refusal of employees to perform work. A strike
usually takes place in response to employee grievances. Strikes became important during the
industrial revolution, when mass labour became important in factories and mines. In most
countries, they were quickly made illegal, as factory owners had far more political power than
workers. Most western countries partially legalized striking in the late 19th or early 20th
centuries. Strike means a 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
employment8.

 RIGHT TO FREEDOMS: ARTICLE 19

Article 19 of the Indian Constitution, the rainbow of the fundamental rights, originally
guaranteed seven freedoms, one of which, the right to property, had been by the 44th
amendment4, made a constitutional right and had ceased to be a fundamental right. The unique
feature of the freedoms guaranteed by Article 19 is that they are not absolute terms and, and
clauses (2) to (6) provide for reasonable restrictions imposed on these freedoms. The restrictions
may be procedural or substantive, but both must satisfy the test of reasonableness. Whether a
restriction is reasonable or not is to be determined by the Court.
Reasonableness of the restriction means that “any limitation imposed on an individual in the
enjoyment of his right should not be arbitrary or of excessive nature, beyond what is required in
the interest of public.”
According to Bhagwati J. the principle of reasonableness which legally as well as
philosophically, is an essential element of equality and non- arbitrariness pervades Article 14
like brooding omnipresence of the procedure contemplated by Article 21 must answer the test of
reasonableness in order to be in conformity with Article 14. It must be right, just, fair, and not
arbitrary, fanciful or oppressive, otherwise it would be no procedure at all and the requirement of
Article 21 would not be satisfied5.

4 The Constitution (Forty-fourth Amendment) Act, 1978, (w.e.f. 20-6-1979).

5
Maneka Gandhi v. Union of India, AIR 1978 SC 59.
Article 19 guarantees the following freedoms:

1) Freedom of speech and expression.

2) Freedom to assemble peacefully and without arms.

3) Freedom to form association and unions.

4) Freedom to move freely throughout the territory of India.

5) Freedom to reside and settle in any part of the territory of India.

6) Freedom to practice any profession or to carry on any occupation, trade or business.

1) FREEDOM TO FORM ASSOCIATIONS AND UNIONS6

Social functioning of organized societies is based on multiplicity of associations and

organizations. No democracy can function without freedom to form associations and unions.
Political parties, trade unions, social and other organizations are part of democratic functioning
of the society and the government. Article 19(1) (c) guaranteed freedom to form associations and
unions, though reasonable restrictions on the freedom may be imposed in the interest of integrity
and sovereignty of India, public order and morality.

 STRIKE - LEGISLATIVE PROVISIONS

In India unlike America right to strike is not expressly recognized by the law. The trade union
Act, 1926 for the first time provided limited right to strike by legalizing certain activities of a
registered trade union in furtherance of a trade dispute which otherwise breach of common
economic law. The Trade Unions Act, 1926 also recognizes the right to strike. Sections 18 and
19 of the Act confer immunity upon trade unions on strike from civil liability. Now days a right
to strike is recognized only to limited extent permissible under the limits laid down by the law

6
Article 19(1) (c)
itself, as a legitimate weapon of Trade Unions.

The scheme of the Industrial Disputes Act, 1947 implies a right to strike in industries. A wide
interpretation of the term „industry‟ by the courts includes hospitals, educational institutions,
and clubs and government departments. Section 2 (q)7 of the Act defines 'strike'. Sections 228,
239, and 2410 all recognize the right to strike. Section 24 differentiates between a 'legal strike'
and an 'illegal strike'.

It defines 'illegal strikes' as those which are in contravention to the procedure of going to strike,
as laid down under Sections 22 and 23. The provision thereby implies that all strikes are not
illegal and strikes in conformity with the procedure laid down, are legally recognized. Further,
Justice Krishna Iyer had opined that "a strike could be legal or illegal and even an illegal strike
could be a justified one" in Gujarat Steel Tubes v. It’s Mazdoor Sabha,11 is thus beyond doubt
that the Industrial Disputes Act, 1947 contemplates a right to strike.

The statutory provisions thus make a distinction between the legality and illegality of strike. It is
for the judiciary to examine whether it is legal or illegal and not to declare that there exists no
right to strike.

Article 8 (1) (d)12 provides that the States Parties to the Covenant shall undertake to ensure: "the
right to strike, provided that it is exercised in conformity with the laws of the particular country.
Article 2 (1)13 of the Covenant provides: "Each State Party to the present Covenant undertakes to
take steps, ... with a view to achieving progressively the full realization of the rights recognized
in the present Covenant by all appropriate means, including particularly the adoption of
legislative measures".

7
"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
8
Prohibition of strikes and lock-outs.
9
General prohibition of strikes and lock-outs.
10
Illegal strikes and lock-outs.
11
(1990) Lab IC 389 SC
12
The International Covenant of Economic, Social and Cultural Rights (ICESCR).
13
Ibid.
India is a signatory to the Covenant and is therefore bound under Article 2 (1) to provide for the
right to strike as enshrined in Article 8 (1) (d), through legislative measures or by other
appropriate means.

 NOTICE OF STRIKE

Notice to strike within six weeks before striking is not necessary where there is already lockout
in existence. In Mineral Miner Union vs. Kudremukh Iron Ore Co. Ltd14., it was held that
the provisions of section 22 are mandatory and the date on which the workmen proposed to go
on strike should be specified in the notice. If meanwhile the date of strike specified in the notice
of strike expires, workmen have to give fresh notice. It may be noted that if a lock out is already
in existence and employees want to resort to strike, it is not necessary to give notice as is
otherwise required. In Sadual textile Mills v. Their workmen15 certain workmen struck work
as a protest against the lay-off and the transfer of some workmen from one shift to another
without giving four days notice as required by standing order 23. On these grounds a question
arose whether the strike was justified. The industrial tribunal answered in affirmative. Against
this a writ petition was preferred in the High Court of Rajasthan. Reversing the decision of the
Tribunal Justice Wanchoo observed:

“....We are of opinion that what is generally known as a lightning strike like this take place
without notice..... And each worker striking...... (is) guilty of misconduct under the standing
orders ........ and liable to be summarily dismissed..... (as)..... the strike cannot be justified at
all. "

14
1988 (3) KarLJ 162
15
1966 SCR (3) 558
 STRIKE AS A FUNDAMENTAL RIGHT

Trade Unions with sufficient membership strength are able to bargain more effectively … The
bargaining strength would be considerably reduced if it is not permitted to demonstrate by
adopting agitational methods such as … ‘sit-down strike’, and ‘strike’. This has been recognized
by almost all democratic countries.”
As the statement of the Indian Supreme Court quoted above indicates, the ability to go on strike
is perhaps the labour class’ most effective weapon in its struggle to convince employers to heed
its demands , and a key element of their bargaining power. Despite recognizing this fact, the
Supreme Court displayed a very different attitude to the right to strike when confronted by this
issue again.

In T.K. Rangarajan vs. Government of Tamil Nadu and Others (the Tamil Nadu
Government Employees Case16), Justice M.B. Shah, speaking for a Bench of the Supreme
Court consisting of himself and Justice A.R. Lakshmanan, said, "Now coming to the question of
right to strike — whether fundamental, statutory or equitable moral right to strike — in our view
no such right exists with the government employee."

Even as early as 1961, the Supreme Court held that even a very liberal interpretation of Article
19 (1)(c) cannot lead to the conclusion that the trade unions have a guaranteed right to strike as
part of collective bargaining or otherwise17.In support of the theory of "concomitant right" to
collective bargaining, reliance was placed on Romesh Thappar v. The State Of Madras18
where it was observed, "There can be no doubt that freedom of speech and expression includes
freedom of propagation of ideas and that freedom is ensured by the freedom of circulation." It
was argued if freedom of speech and expression "in Article 19 (1) (a) was given the liberal
construction so as to effectuate the object for which the freedom was conferred, a similar
construction should be adopted regarding the freedom of association guaranteed under Article 19
(1) (c)."

16
AIR 2003 SC 3032
17
All India Bank Employees Association v. National Industrial Tribunal [ 1962] 3 SCR 269
18
1950 SCR 404
The Supreme Court observed, "There was no analogy between the two cases", that it was "one
thing to interpret each of the freedoms guaranteed liberally" but it was another "to read each
guaranteed right as involving the concomitant right necessary to achieve the object which might
be supposed to underlie the grant each of such rights, for such a construction would, by ever
expanding concentric circles in the shape of rights concomitant to concomitant right and so on,
lead to an almost grotesque result."

The Supreme Court in the instant case also referred to Kameswar Prasad v. State of Bihar19 in
holding there is no fundamental right to strike. The Supreme Court was perhaps therefore right in
following its earlier judgments that there is no fundamental right to strike.

The Supreme Court referred to Tamil Nadu Government Servants Conduct Rules 1973 where
Rule 22 provides that no Government employee shall engage himself in strike or in incitements
thereto or in similar activities. In view of this rule the Supreme Court was right in holding that
the strike was illegal. It is not known whether other Government Servants Conduct Rules contain
a similar provision.

Earlier, before referring to the Tamil Nadu Rules, the Supreme Court gave the reason for holding
the strike as illegal that there is no legal/statutory right to go on strike. The Supreme Court was
evidently referring to the case of the Tamil Nadu Government employees with which it was
concerned, for there are statutory provisions like the Industrial Disputes Act, which gives the
right to strike to certain categories of employees.

Even if the judgment refers to the absence of statutory provision in the case of Tamil Nadu
Government employees, it is respectfully submitted that no statutory provision is needed to
enable employees to go on strike. If the right of an employee is denied by the employer or is
interfered with, he has the right not to do work, i.e., to go on strike. If it is denied to a group of
employees or all the employees, all of them can refuse to work for the employer (or go on strike)
and a union representing the employees may ask them to go on strike.

19
(1962) Supp 3 SCR 369
As Soli Sorabjee, the Attorney-General, pointed out, the right to strike is a valuable right. In B.R.
Singh v. Union of India20, Justice Ahmadi observed that the right to strike is an important
weapon in the armour of workers as a mode of redress. Therefore, no statutory provision is
needed to confer on the employees the right to strike.

It is quite another matter if any statute or rule makes it illegal for the employees to go on strike
unless and until the statue or rule is struck down.

Unfortunately, the Supreme Court goes further and says that there is no moral or equitable
justification to go on strike. Though broadly worded as if to apply to every employee, it is clear
from the sentence that follows, viz., "Government employees cannot claim that they can take the
society at ransom by going on strike," that the Supreme Court refers to the moral right of
Government employees.

Even so, it is respectfully submitted that the Supreme Court is not right in saying that
Government employees have no moral right to strike. There may be many instances when the
employees may be harassed and all avenues of their rights being recognised are closed, in which
case the employees may have no other course than to go on strike.

Evidently, the Supreme Court was carried away by the fact that nearly two lakh Government
employees went on strike in the instant case and the Government machinery came to a standstill.
It seems to have also been influenced by the fact stated by senior counsel for the State
Government, K.K. Venugopal, that 90 per cent of the State's revenue in Tamil Nadu is spent on
salaries of Government servants.

It is true that Government employees everywhere are paid better salaries and enjoy more
privileges and amenities than other employees. The public sympathy is generally against
Government employees who go on strike. But that is no justification for the Supreme Court to
say that Government employees have no moral justification to go strike in every case.

Not stopping with the case of Government employees, the Supreme Court refers to several
categories of employees in the following words, "In case of strike by a teacher entire educational

20
(1990) Lab IC 389 SC.
system suffers... In case of strike by doctors innocent patients suffer; in case of employees of
transport services entire movement of the society comes to a standstill; business is adversely
affected and number of persons find it difficult to attend to their work, to move from one place to
another or from one city to another. On occasion public properties are destroyed... "

It is respectfully submitted that there was no necessity for this extreme reaction against all cases
of employees when the Supreme Court was dealing with the strike by Tamil Nadu Government
employees. The Supreme Court must be certainly aware that in certain States teachers are not
paid salaries for several years. Doctors, especially junior doctors, have on many occasions
genuine grievance against the Government or other employers. Destruction or damage of public
property is not always the result of strikes. It is true that in some cases the right to strike is being
misused but that is no reason why all strikes should be condemned as immoral.

There seems to be some move to have the judgment of the Supreme Court reviewed. As far as
the Tamil Nadu Government is concerned, the Supreme Court, perhaps having in mind the
judgment of Justice V.R. Krishna Iyer that even illegal strikes need not attract dismissal (vide
Gujarat State Steel Tube Case), directed that all employees who were suspended except those
who resorted to violence should be reinstated if they apologise and that direction has been
complied with. So there is no need for review in their case.

In case of other employees, the strong opinions expressed against strikes by other categories of
employees is not even obiter dictum and is the mere expression of personal views of the two
judges concerned and there is no need to ask for any review except as regards the obiter dicta
that there can be no strike if there is no legal/statutory right to do so.
 CONCLUSION

Strike is a weapon that empowers the disempowered to fight in oppressive cases when no
constructive option is left. It is a weapon of the last resort taken out of exasperation. It is this
weapon, which provides an opportunity for collective bargaining. The modern form of strikes
had its origin in the era of industrial revolution and assumed its multifarious forms and
dimensions during the Indian national movement varying from bandh, hartal, and protestation to
hunger strike, Satyagraha, non-co-operation and civil disobedience etc., it was considered
inalienable right and duty of a patriot to protest against the mighty colonial rule. People who
took part in protests were regarded as patriots. Paradoxically, after 50 years of Independence the
act of participation in a strike even for a good cause is considered illegal.

To avoid strikes is everyone's responsibility. But to assert that strikes under any circumstances
are illegal, immoral, inequitable and unjustified is contrary to our law and industrial
jurisprudence. Striking work is integral to the process of wage bargaining in an industrial
economy, as classical political economy and post-Keynesian economics demonstrated long ago
in the analysis of real wage determination. A worker has no other means of defending her/his
real wage other than seeking an increased money wage.

In B.R. Singh v. Union of India21 Justice Ahmadi opined "The Trade Unions with sufficient
membership strength are able to bargain more effectively with the management than individual
workman. The bargaining strength would be considerably reduced if it were not permitted to
demonstrate by adopting agitation methods such as 'work to rule', 'go-slow', 'absenteeism', 'sit-
down strike', and 'strike'. This has been recognized by almost all democratic countries".

In Gujarat Steel Tubes v. Its Mazdoor Sabha22, JUSTICE Bhagwati opined that right to strike
is integral of collective bargaining. He further stated that this right is a process recognized by
industrial jurisprudence and supported by social justice.

21
(1990) Lab IC 389 SC.
22
AIR 1980 SC 1896.
Bibliography
BOOKS & STATUTES

1. TAXMANN (Labour laws)

2. P. K. PADHI (Labour and industrial laws)

Statutes:-

1) Essential Services Maintenance Act, 1960.

2) Industrial Employment (Standing Order) Act, 1926
3) Labour Relations (Public Service) Convention, 1978.
4) The Constitution of India, 1950.
5) The Industrial Disputes Act, 1947.
6) Trade Unions Act, 1926.