CONSEQUENCES IN ILLEGAL STRIKE AND LOCKOUT

BASIL SHIBU

BC0170013

INTRODUCTION

In an industrial endeavor co-operation of Labour and capital is quite essential for its success, in
which both the parties to the dispute have interest contrary to each other. They are vested with
various strategies and weapons to ventilate the grievances and mainly to safeguard the interest of
the parties.1Strike and lock-out are considered as two powerful weapon that is vested in the
hands of workers and the employers. If a work is holded-up or is stopped by the workers is said
to be Strike. If an employer forces a person to obey his rules and conditions by shutting down the
business is stated as lock-out. Strike is done in order to accept the demands of the other party. Is
considered as an ordinary right to the working class to ventilate their grievances and to solve the
conflict between the parties. Uncontrollable use of this weapons would result in risk of work.
Country like India cannot tolerate regular walkout of work for frolicsome factors that often
accompany it.

Illegal strikes are those strike that are commenced or declared contravention to the public utility
services or on an industrial establishment. The right to strike or lockout is been predictable in a
democratic societies with reasonable restraints on their use. The freedom for practicing strike
under social, economic and political variants in the system. To safeguard the public interest, the
option to strike and lock-out and it duration are subject to the rules and regulations either that is
voluntarily agreed upon by the parties or else which is imposed by the statutory. Basically the
state’s democratic ideals thwart from abridging individual freedom. The socialist objective of the
state rationalizes the government regulation of some freedom to harmonies in a reasonable
manner involving the interest of the society. The right to strike is a democratic right which
cannot be taken away from a working class in a constitutional set up. Right to strike is a mode is
which the parties are entitle for legitimate grievance that is documented by the Industrial Dispute
Act.

1 th
Dr. V. G. GOSWAMI, LABOUR & INDUSTRIAL LAWS 1008 (10 ed. 2015)
STRIKE AND LOCKOUT

As per Section2(q) of the Industrial Dispute Act, strike is a cessation of work by a group of
people in an industry Acting in combination, or a concerted refusal or a refusal made under a
common understanding, of any number of persons who have been employed to continue to work
or to accept employment. Under Section2(l) of the Industrial Dispute Act, lock-out is the
temporary closing of 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.

ILLEGAL STRIKES AND LOCKOUTS

If a strike is occurred when the “right to strike” is denied or when an occurrence is suspended or
subject to certain formalities, any strike that take part under this is considered to be illegal. If a
strike or lockout is in contravention of Section22 and 23 shall be illegal i.e., if a person employed
in a public utility services cannot go for a strike without the consent and accruing the
proceeding that is to be fulfilled in the provision. 2

If a strike or lock-out is in contravention of an order made under Section10(3) which provides,

where an industrial dispute is referred to a Board, Labour Court, Tribunal or National Tribunal
under this the appropriate government is vested with the right to take order against the strike or
lock-out that is conducted by the employees or the employers, shall be considered as illegal. If
an order is made by the government to prohibit the strike or lockout, even if the strike is being
continued such lock-out or strike are consider to be illegal. 3

GROUNDS ON WHICH ILLEGAL STRIKE AND ILLEGAL LOCK-OUT ARISE

 Is said to be illegal it it is contravening Section22(prohibition of strike and lockout) in a

public utility service
 If it is commenced in contravention of Section23(general prohibition of srike and
lockout) in any industrial establishment.

2 th
Dr. V. G. GOSWAMI, LABOUR & INDUSTRIAL LAWS 1029 (10 ed. 2015)
3
Ballarpur Colieries Co. v. The Presiding Officer, Central Government Industrial Tribunal, AIR 1972 SC 1216
  If it is continued to contravention of an order passed by the appropriate government under
Section10(3) or Section10-A(4-A) of the Act

PROCEDURE FOLLOWED IN CASE OF AN ILLEGAL STRIKE

Sometimes the Union won’t take up the Strike, if the union undertakes, as soon as it had
knowledge of such Action, to denounce and urge its publicity and urge in immediate cessation by
the press, radio and other means of public communication to minimize its duration. General
slow-down of work or concerted stoppage off work should take place in the like time of the
agreement, such that the union will be liable against the company for all damages which the
company suffers. In such case of illegal stoppage of work the employer should, first approach the
union too publicly also urges an immediate cessation.4

Is to be advised by the Minister of Labour and the Secretary of Labour Relations Board by a
notice. The notice should be handed over as soon as the cessation of work takes place by
mentioning the whole facts of the stoppage of work. The notice must also request to take
immediate Action in-order to stop the illegal Action. The company should sent a request to the
Labour Relations Board demanding the revocation of the certification of the union. It does not
applies to public utilities. So there is nothing which the slightest implication is drawn on other
punishment which is intended to be permitted by the boards that has encompassed other
punishment that are compared with the pecuniary penalties authorized, through substantial, are
insignificant.

The employer must attain injunction right after requesting the decertification of the union
through the Board, the alternative way to attain injunction against the union is available in case
of illegal strike or lock-out. The provisional measures of injunction is attained with the request
that is given to a judge of a Superior Court and supported by an affidavit or preferably, several
affidavits.

IMPLICATION OF ILLEGAL STRIKE AND LOCK-OUTS

Wages cannot be claimed by the workmen in case of illegal strike:-

4
André Blanchet, Illegal Strikes, Laws and Procedures, https://www.erudit.org/fr/revues/cd1/1958-v3-n6-
cd5000710/1004123ar.pdf
In the case of Management of the Fertilizer Corporation of India Ltd. V. The Workmen 5in which
the workmen conducted strike in order to receive bonus and the management had also promised
to pay the bonus to the employees. They had also announced the production bonus scheme and
had also proposed it to the union and the representatives had promised to discuss it with the
workmen’s. The Supreme Court held that in all the circumstances the demand for the ex gratia
bonus cannot be considered to be an urgent and serious in nature and the way in which it was
launched the strike was justified.6 The court held that the workmen are not entitled for any wages
for the period of strike.

In Krishna Sugar Mills v. State of UP.7 In this case the tribunal had held that the closure was
lock-out which is considered to be illegal and unjustified and in this case the workers are entitled
to wages during the lock-out period. It was further appealed to the High Court in which it was
stated that lock-outs at most of the times are not connected to economic demands. Is it is resorted
to be a security measure. In this case notice was not given so that it is unjustifiable and is also
considered to be a retaliatory measure. So the company was entitled to pay wages during the
Lock-out period.

Whether an employer can dispense with the service of workers consequent to a strike?

An employee-employer relation cannot be terminated by participating in a strike or by declaring

a lock-out.8The main purpose of a strike is to redress the legitimate grievance of the strikers. This
right is recognized by the law and the violation of this right cannot put an end to the contrAct of
employment by a unilateral process. If the employees are absent by themselves from the work as
because they have gone on strike with the specified object of enforcing the acceptance of their
demands, they cannot be deemed to have abandoned their employment. 9

Disciplinary Action taken against the striking workmen.

Participating in an illegal strike amounts to misconduct on the part of the workmen for which
even punishment of dismissal can be given. The matter of judicial controversy arises when the

5
AIR 1970 SC 867.
6 th
Dr. V. G. GOSWAMI, LABOUR & INDUSTRIAL LAWS 1030 (10 ed. 2015).
7
(1960) II LLJ 79 (SC) .
8 TH
Prof. K.M.PILLAI, LABOUR & INDUSTRIAL LAWS 157(6 ed. 2015).
9
Express Newspapers Ltd. V. Michael Mark, (1962) II LLJ 220 at 223 (SC).
employer is free to inflict dismissal punishment. In Modern Mills Ltd. V. Dhermodas10, the
employer is vested with the right to dismiss from services then workmen participating in illegal
strike under the provisions of the standing orders of the company.

As merely taking part in an illegal strike would not amount to dismissal of all the workmen
without anything further would not justify the dismissal of all the workmen taking part in the
strike.11 So the Supreme Court draws a distinction between the employees who Actively
participated in the strike and who all does not Actively participated in the Strike. As Acting in
defiance of law and order and those workers who were more or less silent participants of such
strike. It is also necessary to hold a regular enquiry after furnishing charge-sheet to each of the
workmen sought to be dealt with for his participation in the strike.12

PENALTIES FOR ILLEGAL STRIKE OR LOCKOUTS

The workers are vested with the right to strike, even though it is not a fundamental right. If the
strike is illegal then the party is guilty of the illegality and is also liable for punishment under
Section26 of the Act. A distinction is hence made between the illegal strike as to, illegal but
justified strike or else illegal and unjustified strike.

How an illegal strike be justified at the same time?

A strike is said to be technically illegal because it is contravention of the provision of this Act
but because the causes that lead to a strike are depended on both legal and illegal demands, a
strike will not be justified but a conduct of workmen may be considered to be objectionable, or
their behavior may turn into violent. Some strike may be illegal but the course in which it is
carried on for good reason and is carried up in a peaceful manner.13

In Crompton Greaves v. the Workmen,14 The court held that in order to the entitlement of wages
for the period of strike, the strike should be legal and it should be justified. A strike is not said to
be unjustified unless the reason for it are entirely perverse or unreasonable. The use of force or

10
(1958) I LLJ 539 SC
11
Indian General Navigation and Rilway Company v. Their Workmen, AIR 1960 SC 219.
12 TH
Prof. K.M.PILLAI, LABOUR & INDUSTRIAL LAWS 158(6 ed. 2015).
13 th
S.N. MISRA, LABOUR & INUSTRIAL LAWS 200 (27 ed. 2014)
14
AIR 1978 SC 1489.
violence or Acts of sabotage resorted to by the workmen during a strike disentitle them to wages
for the strike period. 15

In Bharat Petroleum Corporation Ltd. v. Petroleum Employees Union and Others16, the court
held that, it appeared in the record that the respondent and the appellant were in an agreement of
conciliation which was pending. Both the parties are bound by the conciliation and had to wait
for the final decision. The issue was whether the strike was given by the respondent union.
Section 22(1) (d) of the Industrial Dispute Act was prohibited as the operation of strike was
illegal under Section24.17 Hence mere illegality of the strike does not end the matter. It means if
the strike is illegal and at the same time justified, the workmen have no claim to wages and has
to be punished under Section 26.

Whether the employer can dismiss a workman for joining a strike which is not illegal but
justified?

In this case the right to strike is recognized by implication. A strike may be justified

 As the demands of the employer or the employee is unreasonable high

 As when the demand made is with a extraneous motives
 Steps that is taken by the employer to redress the alleged grievances through negotiation
or conciliation

In Punjab National Bank Ltd. v. Its workmen18, the court observed that the strike does not create
an end an employee and employer relationship, nor an employer discharge a workman for the
participation in a strike which is not considered to be illegal, or in an illegal strike in which no
appropriate provision in the standing orders. If in an contract the standing orders or the service
regulations are silent on the issue of workers is entitled to wage during the period of strike, also
the management is vested with the right to deduct wages for the absence from the duty when an

15 th
S.N. MISRA, LABOUR & INUSTRIAL LAWS 200 (27 ed. 2014)
16
(2003) III LLJ 229(Mad.)
17 th
S.N. MISRA, LABOUR & INUSTRIAL LAWS 201 (27 ed. 2014)
18
(1952) II LLJ 648 (LAT).
concerted action is being on the part of the employee and the absence I not disputed, irrespective
whether the strike was illegal or legal.19

Whether rights are conferred upon the employer to compensation for loss caused by illegal
strike?

The remedy for illegal strike has to be sought exclusively in Section 26 of the Act. If an
employer is granted with compensation for the loss of business through an illegal strike is illegal
because such compensation is not a dispute within the meaning of Section 2(k) of the Industrial
Dispute Act.20

PROTECTION OF PERSONS WHO REFUSES TO TAKE PART IN AN ILLEGAL STRIKE OR LOCK-OUT:

Section 35 of the Industrial Dispute Act contributes protection to the persons who refuses to
participate in any illegal strike, no person who refuses to take part in the strike or to continue to
take part in the strike or lock- out that is illegal under the Act shall by reason of such an refusal
or by reason of any action taken by him under this section, is said to be expelled from the trade
union or society or to any fine or penalty or to deprivation of any rights and benefits to which he
or his legal representatives are held liable. Is also held liable if any think is contrary to the trade
union rules or the society notwithstanding.

19
Bank of India v. T.S.Kelewala (1990) 4 SCC 744.
20
Rohtas Industries v. Its union, AIR 1976 SC 425.
CONCLUSION

Right to strike is not a fundamental right, strike and lock-out are considered to be a powerful
weapon that is vested in the hands of employees and employers in order to fulfill their demands.
If a work is holed-up or is stopped by the workers is said to be Strike. If an employer forces a
person to obey his rules and conditions by shutting down the business is stated as lock-out. Strike
is done in order to accept the demands of the other party. Is considered as an ordinary right to the
working class to ventilate their grievances and to solve the conflict between the parties.
Uncontrollable use of this weapon would result in risk of work. Country like India cannot
tolerate regular walkout of work for frolicsome factors that often accompany it.
REFERENCE

Books Referred

 S.N.MISRA, LABOUR & INDUSTRIAL LAWS, 27TH EDITION

 Prof. K.M.PILLAI, LABOUR & INDUSTRIAL LAWS, 16th EDITION
 Dr. V.G.GOSWAMI, LABOUR & INDUSTRIAL LAWS, 10TH EDITION

Articles Referred

 STRIKES AND LOCKOUTS, Monthly Labor Review, Vol. 11, No. 5 (NOVEMBER,
1920), pp. 216-217, https://www.jstor.org/stable/41827802
 B. P. Rath and B. B. Das, Right to Strike: An Analysis, Indian Journal of Industrial
Relations, Vol. 41, No. 2 (Oct., 2005), pp. 248-260 (13 pages),
https://www.jstor.org/stable/27768011

Statutes Referred

 Industrial Dispute Act, 1947

 Trade Union Act, 1926