This article is written by Gaurav Kumar.  

Introduction

Strikes and lockouts have been one of the most common resorts for the labors to coerce their employer for the fulfillment of demands and vice versa. However, recent times has seen various factors and motives working behind these “hartals” being called out, leaving a significant impact over the country.

The legal position of strike and lockout has remained contentious till date. Amid the ongoing trend of Flash Strikes, the Kerala HC recently ruled that no strike can be called in the state without prior notice of at least seven days. The ruling came after over 35 trade organizations came together against rampant strike calls by various political parties in the state and decided to observe 2019 as an ”anti-hartal year”. The court agreed that Strike is a matter of right for the Employers, but it cannot intervene with the Fundamental Rights of the citizens, nor can it be allowed to impact the economy negatively.

The Industrial Dispute, 1949

The advocates of it try to locate the validity of Strikes under Article 19 of the Constitution of India whereas it is criticized for its ill effects on the economy in total. In order to regulate these, keeping in mind the interest of all the stakeholders, Industrial Dispute Act, 1949 (“The Act”) was enacted.

The Act defines strike as a cessation of work by a body of persons employed in any industry[1]. Lockouts, under the Act, mean a 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.[2] The Statue provides a space for strikes and lockouts provided that it is in accordance with law, peaceful, and does not affect public order. The ID Act further lays down the circumstances wherein they can be held valid or invalid. It sets out the prohibition on Strikes and Lockouts without prior notice for a specific period and for a matter which is under trial.[3] These regulations for the strike are applicable to a person employed in public utility service. Section 23 provides general prohibitions on Strikes and Lockouts workmen employed in any industrial establishment, be it public utility services and non-public utility services. Any Strike or Lockout which is in contradiction of these provisions is held illegal.[4] Individuals who do not confirm with these, are subject to punishments and penalties and the consequences apply to both the employers and the employee.

Recognition of a Strike as a Right

In 2005[5], Delhi High Court recognized it as a legitimate right of the workers to put forth their demands in a lawful manner when they are not met and for this, they can even go on a strike as a matter of right recognized under Labor law. However, in exercise of such a right unions/employees cannot disrupt the functioning of the employer or obstruct willing workers from performing their duties. Further they cannot indulge in acts of violence, physical assault, intimidation, threats etc.[6] Therefore, it appears that a right to Strike is protected as a statutory right. However, the Courts have denied it to be a fundamental right under Article 19[7].

In a 2003 Judgement[8], the Supreme Court again denied any recognition to a fundamental right to strike as such. It held that Art 19(1)(c) only guarantees a right to the associations or unions but in no manner provides an absolute right to strike. In All India Bank Employees Association v. National Industrial Tribunal[9], the Supreme Court said that “even a liberal interpretation of sub-clause (c) of clause (1) of article 19 cannot lead to the conclusion that the trade unions has a guaranteed right to strike.”

Conclusion

Given the nascent industrial setup in the context of a developing economy, the smooth functioning of the industries is very necessary. Any form of censure of work in the industries certainly hinders the productivity of a nation altogether. Furthermore, non-payment of wages for the period of a strike has always remained an issue. In Bank of India v T.S. Kelawala[10], the Supreme Court held that if the contract or service order is silent regarding wages for the period of the strike, it is within the power of the employer to deduct wages for the same irrespective of the legality of the strike. There is no legal right as such provided in any statute which would ensure wages and therefore any relief which is to be granted to the workers can only be relied upon the principle of equity and social justice.

A developing nation widely relies upon its manpower. When the men are at a halt the economy of the country largely suffers and apart from the employer and employee, it is the consumer who becomes the victim of this turmoil. And the more ceasure of work is related to some essential commodity the more hardship consumers face. The consequences of non-operation in the unit further extends to suppliers to that industry as well and depending upon the scope of the industry, the encompassment of these related entities further expands. Similarly, in situations of the lockout, workers face unemployment and instability and insecurity grows among them.

Clearly, an economy, which is in its developing stage, cannot withstand so much of turbulence nor can it afford unrest among the worker because of its stringent measures. A balance has to be maintained between the workers’ right to show dissatisfaction by way of peaceful means and ensuring economic growth of the nation, which can only be achieved with a strategic approach to keep up with different classes in the industry. The recent High Court order of banning flash strikes and mandating 7-day prior notice also tries to prevent political misuse of Hartals, while protecting the rights of the workers at the same time. However, effective implementation of the same is still to be seen in the near future.

[1] Section 2 (q), Industrial Dispute Act, 1949.

[2] Section 2 (l), Industrial Dispute Act, 1949.

[3] Section 22, Industrial Dispute Act, 1949.

[4] Section 24, Industrial Dispute Act, 1949.

[5] Vidya Sagar Institute of Mental Health and Neuro Sciences v. Vidya Sagar Hospital Employees Union, 2005 SCC OnLine Del 975.

[6] Ibid para 14.

[7] Kameshwar Prasad and Ors v. The State Of Bihar and Anr, AIR 1962 SC 1166.

[8] T.K. Rangarajan v. Gov. Of Tamil Nadu, (2003) 6 SCC 581.

[9] All India Bank Employees v. National Industrial Tribunal, 1962 SCR (3) 269.

[10] Bank of India v T.S. Kelawala,1990 SCR (3) 214.