This article is written by Daisy Jain, from Nirma University. This is an exhaustive article which deals with the Essential Defence Services Ordinance, 2021 – right to strike of essential defence service employees.
The Essential Defence Services Ordinance, 2021, was promulgated by the President on 30th June 2021, in the exercise of the powers authorized under Article 123(1) of the Indian Constitution. Because Parliament is not in session and the President has determined that conditions present that necessarily require urgent action, the President has propounded an Ordinance under the provisions of Article 123, clause (1), of the Indian Constitution. According to the Ordinance, the government has the authority to help stop layoffs, strikes, and lockouts in defence-related organizations. As per the ordinance, the employees involved in the manufacturing of defence infrastructure and supplies, the operation or upkeep of armed forces industrial facilities, and employees involved in the repair and upkeep of defence products are all encompassed by the Ordinance.
Earlier in June, the government proposed a long-term plan to reinforce the Ordnance Factory Board, which currently runs 41 ammunition and military supplies, defence-related manufacturing facilities and has been in operation for nearly 200 years, into seven state-owned corporations to enhance transparency, effectiveness, and sustainability in the industry. Traditionally, workers have used their right to strike as a means of resolving disagreements with supervisors and compelling management to comply with their requests and demands. Every day, we encounter labor unions going on strike to seek that their demands for decent working conditions, such as a better wage, better benefits, and more vacation time, are accepted by their employers, and this is something we can all relate to. The right to strike has been recognized by many national and international legislations. This Ordinance is provided for the refurbishment of essential defence services to safeguard national security and to ensure the safety and assets of the wider populace. It also addresses issues relating to or inadvertent to these services.
Provisions related to strike
It wasn’t until 1926 that a law was passed to regulate industrial disputes. Bypassing the Trade Unions Act of 1926, the right to strike was formally recognized in a de facto manner. Members and employees of recognized labor unions were provided immunity. Sections 18 and 19 of the Trade Unions Act of 1926 recognize the right to strike. These sections protect from civil liability for trade unions that are on strike. When Chapter V of the Industrial Disputes Act of 1947 was passed, it recognized both the right of employees to go on strike and the right of employers to go on lockout. This right is not absolute and is subject to the restrictions imposed by the same Act. The definition of the phrase “strike” can be found in Section 2(q) of the Industrial Disputes Act, 1947. If an industrial dispute is referred to the Labour Court, the Labour Tribunal, or the National Tribunal, Section 10 (3) forbids a strike unless authorized by the relevant government. Section 10A (4A) deals with an order from the relevant authority forbidding a strike if an industrial dispute is submitted to arbitration. When a strike is extended in denial of such orders, it is deemed illegal.
The deduction or refusal of wages seems to be another direct result of an illegal strike. In Crompton Greaves v. the Workmen (1978), the Supreme Court held that “it is well established that a strike has to be both valid and defensible for the workers to be entitled to wages for the period during which they are absent from the workplace.” If a strike does not violate any existing legislation, it is considered legal. A strike cannot be deemed indefensible unless and until the reasons for it are entirely unreasonable or bizarre. A verifiable issue, whether a strike was justified or not, must be resolved based on the factual data and conditions of each case. Employees who used “force, aggression, or acts of sabotage” during the strike would be barred their wages for the period of the strike, it was also resolved.
In the case of Bank of India v. TS Kelawala (1990), the Supreme Court took a distinct standpoint on wages during the strike (1990). Workers are authorized compensation for lost wages during a strike, irrespective of whether the strike is legal or illegal. The possibility of losing wages does not render a strike as a weapon illegal, nor does it denude workers of their right to strike. When employees use it, they do so with full knowledge of the ramifications. Besides that, in the case of Syndicate Bank v. K. Umesh Nayak (1994), the Court held that employees who go on strike, whether legal or illegal, are authorized to pay wages for the duration of the strike. A cumulative reading of these judgments leads to the final result that if a strike does not violate existing laws, i.e., if it is justifiable and rational, the workers cannot be denied wages while on strike. Workers, on the other hand, are not authorized to receive any compensation while participating in an illegal and unjustified strike. As for the newly propagated Ordinance, which is known as the Essential Defence Services Ordinance 2021, it is an amendment to the International Labor Organization (ILO) Industrial Disputes Act, 1947, that includes crucial defence services under the interpretation of “public utility services” to resolve labor disputes.
Right to strike and its constitutional validity
Disputes over the interpretation of Article 19 of the Indian Constitution have existed since its inception. Many times, the Supreme Court of India has construed the Article in a widespread manner and expanded the scope of its implementation. Several rights, such as the right to non-violent protest, freedom of the press, the right to information, and the right to access the internet have been added to Article 19 throughout its existence. Article 19 (1)(c) of the Constitution, which bestows the right to freedom of association, has, on the other hand, often been a cause of concern. Article 19 (1) of the Indian Constitution grants all citizens the right to “form associations and unions.” However, this right does not have an absolute scope, and it is subject to certain rational limitations outlined in Article 19 (4) of the Indian Constitution.
The few exceptions are India’s sovereignty and territorial integrity, as well as public order and moral code. These limitations could be of a procedural or substantive nature, respectively. In many cases, the Supreme Court has been requested to rule on whether the right to strike is a fundamental right under Article 19(1)(c) of the Constitution. According to the Supreme Court, even a very broad interpretation of Article 19(1)(c) cannot direct to the final result that trade unions have an assured right to effective collective bargaining or the right to strike. It was contended that “collective bargaining must be binding to be successful, with labor withholding its integration from the employer, and thus there is a fundamental right to strike, which is thus a primal exemption from the right to form unions guaranteed by Article 19(1)(c).”
According to the ruling in Bharat Kumar v. State of Kerala (1997), no political group or organization has the authority to call for a bandh. A Full Bench of the Kerala High Court stated that they are not allowed to prevent people who do not express their perspective from exerting their fundamental rights or carrying out their responsibilities for their own or the state’s profit. They are also not allowed to discriminate against people who do not express their viewpoints. As a result, while Indian citizens have the freedom to form organizations and unions, the right to strike is not recognized as a fundamental right under Article 19(1)(c) of the Constitution. The right to form associations or unions is granted to citizens under Article 19(1)(c), but they do not have the right to strike under this provision.
Both special and common law courts in India have ruled that a person’s right to strike does not constitute a fundamental and absolute right. While workers have historically used strikes to accomplish their goals and objectives, halts or stops in production, whether caused by employees or employers, are detrimental to the economy and society as a whole. However, while there have been instances in which the right to strike has been mistreated, it has also been demonstrated to be efficacious in safeguarding workers’ socioeconomic rights in the workplace. As part of the right to collective bargaining, employees, workers, and laborers will continue to use the right to strike as a way to convey or react to their concerns, among other things.
The Essential Defence Service Ordinance, 2021
To ensure the continuation of essential defence services, the President promulgated the Essential Defence Services Ordinance, 2021 on June 30th. It enables the central government to restrict strikes, lay-offs, and lock-outs in units that provide essential defence services, as provided by the ordinance.
Essential defence services
Any service in the following categories is considered essential defence services:
- Any institution or undertaking engaged in the manufacture of goods or equipment needed for defence-related uses, or
- Any military or defence establishment, or any establishment associated with the armed forces or defence. These also entail services that, if discontinued, would have a negative impact on the security of the establishment providing the services or the employees who work there.
The government may also proclaim any service as an essential defence service if the discontinuance of that service would have a detrimental effect on any of the factors listed below.
- The production of defence-related equipment or products.
- In addition, the functionality and upkeep of industrial establishments or units that are involved in such manufacturing.
- Products connected with the defence industry are repaired or maintained as part of their regular routine maintenance.
According to the Ordinance, a strike is described as the discontinuation of work by a group of people acting as a whole. It involves the following actions:
- large scale casual leave;
- synchronized refusal of any number of people to proceed working or approve employment;
- refusal to work extra hours when such work is required for the upkeep of essential defence services; and
- any other act that results in, or is likely to result in, disturbance of work in essential defence services.
Prohibition on strikes, lock-outs, and lay-offs
The central government may restrict strikes, layoffs, and lockouts in units providing essential defence services under the Ordinance. The restriction order will be in effect for six months, with the possibility of a six-month extension. The government may execute such an order if it is required for India’s integrity and sovereignty, any state’s safety, law and order, social etiquette, or morality. Strikes and lockouts that are proclaimed after the restriction order has been issued, or that have already started before the restriction order has been issued, shall be illegal. Layoffs caused by a power shortage or natural disaster, as well as layoffs of interim or occasional workers, will be exempt from the restriction.
Punishment for illegal strikes, lay-offs, and lock-outs
Employers who violate the restriction order by engaging in illegal lockouts or layoffs will be subject to a maximum one-year jail term or a fine of Rs 10,000, or both. The punishment for those who initiate or participate in illegal strikes may range from one-year confinement to a Rs 10,000 fine, or both, depending on the circumstances. People who incite, instigate, or take actions to resume illegal strikes, as well as those who intentionally provide money for such uses, will be penalized with up to two years jail term or a fine of Rs 15,000 or both. An employee who violates the terms and conditions of his or her employment will also be subject to disciplinary action, which may include rejection. In such cases, if it is not sensibly feasible to conduct an investigation, the responsible authority may reject or expel the employee without holding a hearing. All offenses punishable by the Ordinance will be cognizable and non-bailable.
Public utility service
The Industrial Disputes Act, 1947 is amended by the Ordinance to involve essential defence services under the definition of public utility services. A six-week declaration must be given in the scenario of public utility services before employees of such services go on strike in violation of contract or employers who provide such services engage in lock-outs.
Objectives of the Ordinance
The proposed law is primarily intended to help stop employees of government-owned ordnance factories from going on strike. There are 41 ordnance factories located throughout the country, employing approximately 70,000 people. Specifically, according to the Ordinance’s “Statement of Objects and Reasons,” “the ordnance factories form an interconnected base for native Indian manufacturing of defence hardware and machinery, with the main goal of soul dependence in assisting the military services with state of the art battle-field machinery.” Considering that it is “absolutely requisite” that an undisturbed production of ordnance products to the armed forces be sustained, particularly in light of what is currently taking place on the country’s northern front, it was deemed important that the government is given the authority to guarantee the continuation of essential defensive services at all institutions attached with defence, whether in the public’s life and welfare or the interest of national security.
Powers in the Ordinance
The Ordinance gives the government the authority to proclaim services listed in it as essential defence services if they “would have a detrimental effect on the manufacturing of defence equipment or commodities; or the function or upkeep of any industrial establishment or unit involved in the manufacturing of commodities or equipment required for any reason associated with defence; or the restoration or upkeep of products.” Strikes and lockouts are also prohibited in any industrial establishment or unit engaged in essential defence services.
Whom will it impact
The envisaged legislation has a significant effect on the approximately 70,000 employees of ordnance factories, who are concerned that the corporatization of OFB will have an effect on their working and retirement situations. Defence Minister Rajnath Singh has guaranteed the public that this will not be the case, noting that the Cabinet note, through which the proposal was approved by the government, specifically stated that there should be no alteration in the service circumstances of the employees. Last year, when the government declared that it would begin the procedure of corporatization of the OFB, the employee unions and organizations were confronted to go on strike as a result of the announcement. As stated in the legislation, “the mediation hearings introduced by the Government at the level of Chief Labour Commissioner were unsuccessful at the general meeting held on June 15, 2021. “
The statute provides for the maintenance of essential defence services in order to protect national safety, the lives and property of the wider populace, as well as the administration of matters correlated with or extrinsic to those services. Because parliament was not in session and the President was pleased that situations appeared that entailed a prompt response, the president is satisfied to affirm the ordinance in the exercise of the powers bestowed by Article 123(1) of the Constitution. Pertinent governing bodies of the Ordnance Factory Board (OFB) have announced that they will go on an unspecified strike on July 26, 2021, in protest of the government’s proposal to divide the Board into seven different corporations. Additionally, employees working in the defence manufacturing industry must be given an equal opportunity to express their dissatisfaction with the Centre’s policy decisions.
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