Brief Overview
Right to strike is recognized globally. Article 19(1) the Constitution of India 1949 guarantees the protection of certain freedoms as fundamental rights.
All citizens shall have the right
- To freedom of speech and expression;
- To assemble peaceably and without arms;
- To form associations or unions;
- To move freely throughout the territory of India;
- To reside and settle in any part of the territory of India; and
- To practise any profession, or to carry on any occupation, trade or business
However, strike is not expressly recognized in the Constitution of India. The Supreme Court settled the Case of Kameshwar Prasad v. The State of Bihar on 7 July 1958 by stating that strike is not a fundamental right. Government employees have no legal or moral rights to go on strikes.
Industrial Disputes Act, 1947
India recognized strike as statutory right under Industrial Disputes Act, which came into force on April 1, 1947. Prior to Industrial Disputes Act, 1947, India had enacted its first industrial disputes legislation i.e. Employer & Workmen Disputes Act, 1869 and subsequently Trade Disputes Act, 1929 and Rule 81A of Defense of India Rules.
Experiences from Employer & Workmen Disputes Act, 1869 reveal that this act was much against the workers. Trade Disputes Act, 1929 had brought in a special provision of strikes, however, such legislation could not establish peace in the industries due to strike problems and disputes kept on continuing. Further to overcome this, Rule 81A of defense rule was brought in during the Second World War. After the Second World War Industrial Disputes Act, 1947 came into the picture to sort out the disputes in industries. Its applicability is extended to the whole of India. It is applicable to existing industry and not on dead industries.
Meaning of Strike
As per Cambridge Dictionary “Strike is to refuse to continue working because of an argument with an employer about working conditions, pay levels, or job losses”.
General Meaning
A strike is a powerful weapon used by trade unions or other associations or workers to put across their demands or grievances by employers or management of industries. In another way, it is the stoppage of work caused by the mass refusal in response to grievances. Workers put pressure on the employers by refusal to work till fulfilment of their demands. Strikes may be fruitful for workers’ welfare or it may cause economic loss to the country.
Legal Meaning
As per Section 2 (q) of the Industrial Disputes Act, 1947 “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.
Types of Strikes
Based on the phenomena of strikes around the world, strikes can be categorised into economic strike, sympathy strike, general strike, sit down strike, slow down strike, hunger strike and wildcat strike have been experienced.
Economic Strike – Such strike happens due to economic demands like increment of wages and allowances like house rent allowance, transport allowances, bonus etc.
Sympathy Strike – In such strike union or workers of one industry join the strikes already hailed by other union or workers.
General strike – This strike intended to increase the political pressure in the ruling party by all unions or members in a region or state.
Sit down strike – In such case, workers hold strikes at the workplace and none of the workers stays absent from duty but they all refuse to work till their demands are fulfilled.
Slow down strike – It means workers or unions don’t refuse to work but put pressure on industries to get their demand by reducing or restricting the output of the production of an industry.
Hunger strike – It is one of the painful strikes by the striker where workers go on strike without having food/water to redress the grievances. The employees of Kingfisher airlines went on hunger strikes for salary dues of several months.
Wildcat strike – Such strike happens by the workers without the consent of union and authority. In 2004, advocates went on wildcat strike at civil courts in Bangalore to protest the remarks allegedly made by an assistant commissioner against them.
However, if we see the history of strikes, it is found that strikes mostly occur due to issues related to wages by the employers to the workers.
Few Instances of Strikes in India
In March 2012, nurses employed by different hospitals in Chennai went on strike for 7 days demanding from hospital management hike of basic wages to Rs 15000/-, apart from leave benefits and annual increment. All the well-known hospitals like Apollo, Fortis, Max etc.came to a standstill because of the strike.
In January 2014, Kingfisher employees went on hunger strike due to non-payment of salary for 17 months.
In September 2016, tens of millions of Indian workers of public sector had gone on strike demanding higher wages. Banks, power stations were kept shut and public transportation systems froze in some of the states. Later the government considered their demands and increased the wages. It was the world’s largest-ever strike.
Role of Industrial Disputes Act
Industrial Disputes Act, 1947 plays a vital role to sort out the above dispute by conciliation or award. It is designed in a way to settle the disputes amicably between employees with the management of industries.
The objective of the act is to investigate and settle industrial disputes in an expeditious and amicable manner. The apex court has refused to entertain fresh cases of industrial disputes as the act empowers the Industrial Disputes Tribunals to address the same.
Section 22 of Chapter V of Industrial Disputes Act clarifies the Prohibitions on right to strike
It states that no person employed in a public utility service shall go on strike in breach of contract –
- without giving to the employer notice of strike, as hereinafter provided, within six weeks before striking; or
- within fourteen days of giving such notice; or
- before the expiry of the date of strike specified in any such notice as aforesaid; or
- during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.
Significance of section 22 are as follows
- It must be noted that above regulations for strike are applicable for employees who work for public utility service in Industry.
- It is mandatory to give employer notice with or without strike date.
- In case date of strike is not mentioned in the notice, then such notice will be valid for six weeks only from the date of notice. If the employees do not go on strike within the 6 weeks, then it is necessary to give fresh notice of strike by the employee if they are willing to go on strike.
- In case the date of strike is mentioned in the notice then employees cannot go on strike before the expiry of 14 days from the date of the notice.
- Employee cannot go on strike during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings
Points a) and b) of section 22 clarify that employee who works in public utility service can go on strike at least after 14 days. It is important to note that generally, 14 days is the consideration period in which employer can consider their employee demands.
Section 23 – General prohibition of strikes and lock-outs
Section 23 deals with General prohibitions of strikes it is applicable for public utility services and non-public utility services. It gives the general guidelines for prohibitions of strike however section 22 deals only with services related to public utility.
No workman who is employed in any industrial establishment shall go on strike in breach of contract and no employer of any such workman shall declare a lock-out—
(a) during the pendency of conciliation proceedings before a Board and seven days after the conclusion of such proceedings;
(b) during the pendency of proceedings before a Labour Court, Tribunal or National Tribunal and two months after the conclusion of such proceedings;
(bb) 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 (3A) of section 10A; or
(c) during any period in which a settlement or award is in operation, in respect of any of the matters covered by the settlement or award.
Section 24. Illegal strikes and lockouts
(1) A strike or a lock-out shall be illegal if—
(i) It is commenced or declared in contravention of section 22 or section 23; or
(ii) It is continued in contravention of an order made under sub-section (3) of section 10 or sub-section (4A) of section 10A.
(2) Where a strike or lock-out in pursuance of an industrial dispute has already commenced and is in existence at the time of the reference of the dispute to a Board, an arbitrator, aLabour Court, Tribunal or National Tribunal, the continuance of such strike or lock-out shall not be deemed to be illegal, provided that such strike or lock-out was not at its commencement in contravention of the provisions of this Act or the continuance thereof was not prohibited under sub-section (3) of section 10 or sub-section (4A) of section 10A.
(3) 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.
Section 24 differentiates between a legal strike and an illegal strike. It states that legal strikes are those strikes in which procedures for going on strikes as laid down in section 22 or section 23 are followed. However, illegal strikes will not be in conformity with sections 22 or 23.
Section 26. Penalty for Illegal strikes and lockouts
This section prescribes penalties for conducting an illegal strike. As per the act any workmen who were involved or interested in strikes which were illegal, will get punishment as well imprisonment for a term and same will be extended to one month, or they have to pay with fine up to fifty rupees, or both. Its main aim is to establish the balancing situation among industries, workers or unions.
Common Reasons for Strike
Strikes generally occur in industries due to disputes between employees and employers, employees and employees or among employers and employers mostly due to the following issues:
- Working hours
- Working Conditions
- Salary, Incentive etc
- Time payment of wages
- Reduction in salary/wages
- Issue related Minimum wages
- Leave/Holidays
- Dissatisfaction with the company policy
- PF, ESI, Profit Sharing etc
- Retrenchment of workmen and closure of establishment
- Any other issue.
Conclusion
It is observed that strike is not a fundamental right in India and government employees have no right to go on strikes. Industrial Disputes Act, 1947 limits the rights of strikers and given the legal right of going on strikes as stipulated in sections 22, 23 and 24, right to strike under Industrial Disputes Act, 1947 is very much limited and regulated.
The post Right to strike under Industrial Dispute Act, 1947 appeared first on iPleaders.