LABOUR LAW- I

STRIKE AND LOCK-OUT

SUBMITTED BY

SNEHA

BALLB 3RD YEAR

SUBMITTED TO

ASST.PROF. DR. SINI JOHN

DATE- 25th September 2020

1
 CONTENTS

1. INTRODUCTION……………………………………………………………………..2

2. DEFINITION OF STRIKE……………………………………………………………3

3. HISTORICAL BACKGROUND………………………………………………………3

4. MEANING…………………………………………………………………………….4

5. CAUSES OF STRIKE…………………………………………………………………4

6. KINDS OF STRIKE……………………………………………………………………5

7. LOCKOUT- DEFINITION &MEANING……………………………………………..7

8. PROHIBITION OF STRIKES AND LOCK-OUTS…………………………………..8

9. GENERAL PROHIBITION OF STRIKES AND LOCK-OUTS…………………….8

10. ILLEGAL STRIKES AND LOCK-OUT……………………………………………….9

11. PROHIBITION OF FINANCIAL AID TO ILLEGAL STRIKES AND LOCK-OUTS..10

12. IMPACT OF ILLEGAL STRIKES& LOCKOUT……………………………………..11

13. CONCLUSION………………………………………………………………………..12

14. REFERENCES…………………………………………………………………………14

2
INTRODUCTION:

Strike and lock-out are two powerful weapons in the hands of the workers and the employers.
Strike signifies the suspension or stoppage of work by the worker while in case of lock-out
the employer compels persons employed by him to accept his terms or conditions by shutting
down or closing the place of business. Strike is recognized as an ordinary right of social
importance to the working class to ventilate their grievances and thereby resolve industrial
conflict. Skilful use of these weapons, whether threatened or actual, may help one party to
force the other to accept its demand or at least to concede something to them. But reckless
use of them results in the risk of unnecessary stoppage of work hurting both parties badly
creating worse tensions, frictions and violations of law and order. From the point of view of
the public, they retard the nation’s economic development. India cannot tolerate frequent
stoppage of work for frivolous reasons that often accompany it. For these reasons, the
Industrial Disputes Act seeks to regulate and restrict strikes and lock-outs so that neither the
workmen nor employers may hold the nation to ransom.

STRIKE:

Definitions:

Strike as defined in clause (q) of Section 2 of the Act means:

1. Cessation of work by a body of persons employed in any industry acting in combination;

or

2. A concerted refusal of any number of persons who are or have been employed in any
industry to continue to work or to accept employment; or

3. A refusal under a common understanding of any number of persons who are or have been
employed in any industry to continue to work or to accept employment. Thus the definition
given in the act postulates three main things or ingredients:

(a) Plurity of workmen;

(b) Combination or concerted action;

(c) Cessation of work or refusal to do work.

3
HISTORICAL BACKGROUND:

Strikes came into existence in the wake of the Industrial Revolution. With the invention of
machinery to supplant human labour, unemployment, lowering of wages in a competitive
market, supply of labour in excess of demand - became the order of the day. The first known
strike was in the 12th century B.C., in Egypt. Workers under Pharaoh Ramses III stopped
working on the Necropolis until they were treated better. 1 The use of the English word
‘strike’ first appeared in 1768 when sailors in support of demonstrations in London, “struck
or removed the topgallant sails of merchant ships at port thus, thus crippling the ships. 2 As
the 19th century progressed, strikes became a fixture of industrial relations across the
industrialized world, as workers organized themselves to bargaining for better wages and
standards with their employees. The 1974 railway strike in India was the strike by workers of
Indian Railways in 1974. The 20 days strike by 17 lakh workers is the largest known strike in
India. The strike was held to demand a raise in pay scale, which had remained stagnant over
many years, in spite of the fact that pay scales of other government owned entities had risen
over the years.3 Strikes became common during the Industrial Revolution, when mass labor
became important in factories and mines. In most countries, strike actions were quickly made
illegal, as factory owners had far more political power than workers. However, most western
countries partially legalized striking in the late 19th or early 20th centuries.

MEANING:

Strike means the stoppage of work by a body of workmen acting in concert with a view to
bring pressure upon the employer to concede to their demands during an industrial dispute.
Indian Iron & Steel ltd. v/s Its Workmen4

Held: Mere cessation of work does not come within the preview of strike unless it can be
shown that such cessation of work was a concerted action for the enforcement of an industrial
demand.

Cessation of work or refusal to work is an essential element of strike. This is the most
significant characteristic of the concept of strike. There can be no strike if there is no
cessation of work. The cessation of work may take any form. It must however be temporary
1
Simple.wikipedia.org visited on 21/09/2020
2
En.wikipedia.org visited on 21/09/2020
3
En.wikipedia.org visited on 21/09/2020
4
4 (1967)I LLJ 381 (Pat).

4
and not forever and it mustbe voluntary. No duration can be fixed for this in fact duration for
cessation of work is immaterial. Cessation of work even for half an hour amounts to strike.

Buckingham & Carnatak Co. Ltd. v/s Workers of Buckingham& Carnatak Co. Ltd. 5 On the
1st November, 1948 night shift operators of carding ad spinning department of the Carnatak
Mill stopped work some at 4 p.m. some at 4:30 p.m. and some at 5 p.m. The stoppage ended
at 8 p.m. in both the departments. By 10 p.m. the strike ended completely. The cause for the
strike was that the management of the Mills had expressed inability to comply with the
request of the workers to declare 1st November, 1948 as a holiday for solar eclipse. Supreme
Court held it strike.

In B. R. Singh v/s Union of India6 it was held that the strike is a form of demonstration.
Though the right to strike or right to demonstrate is not a fundamental right, it is recognized
as a mode of redress for resolving the grievances of the workers. Though this right has been
recognized by almost all democratic countries but it is not an absolute right.

In T.K. Rangarajan v/s Tamil Nadu7 , the Tamil Nadu government terminated the services of
all employees who resorted to strike. The Apex Court held that Government staffs have no
statutory, moral or fundamental right to strike. In 2005, the Supreme Court reiterated that
lawyers have no right to go on strike or give a call for boycott and not even a token strike to
espouse their causes.

In Dharma Singh Rajput v/s Bank of India, it was held that right to strike as a mode of
redress of the legitimate grievance of the workers is recognized by the Industrial Disputes
Act. However, this right is to be exercised after complying with the conditions mentioned in
the Act and also after exhausting the intermediate and salutary remedy for conciliation.

CAUSES OF STRIKES:-

In the early history of labor troubles the causes of strikes were few. They arose chiefly from
differences as to rates of wages, which are still the most fruitful sources of strikes, and from
quarrels growing out of the dominant and servient relations of employers and employees.
While labor remained in a state of actual or virtual servitude, there was no place for strikes.
With its growing freedom "conspiracies of workmen" were formed, and strikes followed. The
scarcity of labor in the fourteenth century, and the subsequent attempts to force men to work

5
AIR 1953 SC 47
6
(1989) II Lab LJ 591 (SC)
7
(2003) 7 ACE 30

5
at wages and under conditions fixed by statute, were sources of constant difficulties, while
the efforts to continue the old relation of master and servant with its assumed rights and
duties, a relation law recognizes to this day, were, and still are, the causes of some of the
most bitter strikes that have ever occurred. Strikes are caused by differences as to8 :

1. Rates of wages and demands for advances or reductions i.e. Bonus, profit sharing,
provident fund and gratuity.

2. Payment of wages, changes in the method, time or frequency of payment;

3. Hours of labor and rest intervals;

4. Administration and methods of work, for or against changes in the methods of work or
rules and methods of administration, including the difficulties regarding labor-saving
machinery, piece-work, apprentices and discharged employees;

5. Trade unionism.

6. Retrenchment of workmen and closure of establishment.

7. Wrongful discharge or dismissal of workmen.

KINDS OF STRIKE:

There are mainly three kinds of strike, namely general strike, stay-in-strike and go slow.

1. General Strike: In General Strike, the workmen join together for common cause and
stay away from work, depriving the employer of their labour needed to run his
factory. Token Strike is also a kind of General Strike.
2. Stay-in-Strike: It is also known as ‘tools-down-strike’ or ‘pens-down-strike. It is the
form of strike where the workmen report to their duties, occupy the premises but do
not work. The employer is thus prevented from employing other labour to carry on his
business.
Mysore Machinery Manufacturers v/s State10, In this case held that where dismissed
workmen were staying on premises and refused to leave them, did not amount to
strike but an offence of criminal trespass.
3. Go-Slow: In a ‘Go-Slow’ strike, the workmen do not stay away from work. They do
come to their work and work also, but with a slow speed in order to lower down the
production and thereby cause loss to the employer.
8
Industrialrelations.naukrihub.com/strikes.html

6
 Sasa Musa Sugar Works Pvt. Ltd. v/s Shobrati Khan & Ors 9 Held: Go-Slow strike is
not a “strike” within the meaning of the term in the Act, but is serious misconduct
which is insidious in its nature and cannot be countenanced.
In addition to these three forms of strike which are frequently resorted to by the
industrial workers, a few more may be cited although some of them are not strike
within the meaning of section 2(q).
i. Hunger Strike: In Hunger Strike a group of workmen resort to fasting on or
near the place of work or the residence of the employer with a view to coerce
the employer to accept their demands.
Piparaich Sugar Mills Ltd. v/s Their Workmen 10 Certain employees who held
key positions in the mill resorted to hunger strike at the residence of the
managing Director, with the result that even those workmen who reported to
their duties could not be given work. Held: That concerted action of the
workmen who went on Hunger Strike amounted to “strike” within the
meaning of this sub-section
Sympathetic Strike: A Sympathetic Strike is resorted to in sympathy of other
striking workmen. It is one which is called for the purpose of indirectly aiding
others. Its aim is to encourage or to extend moral support to or indirectly to
aid the striking workmen. The sympathizers resorting to such strike have no
demand or grievance of their own.
ii. Work to rule: Here the employees strictly adhere to the rules while
performing their duties which ordinarily they do not observe. Thus strict
observance of rules results in slowing down the tempo of work causes
inconvenience to the public and embarrassment to the employer. It is no strike
because there is no stoppage of work at all.

LOCK-OUT

Definition:

9
AIR 1959 SC 923
10
AIR 1960 SC 1258

7
 “Lock-Out” has been defined in section 2 (1) to mean the 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.

BACKGROUND:

India witnessed lock-out twenty-five years after the "lock-out" was known and used in the
arena of labour management relations in industrially advanced countries. The first known
lock-out was declared in 1895 in Budge Budge Jute Mills11.

MEANING:

Strike is a weapon in the hands of the labour to force the management to accept their
demands. Similarly, Lock-Out is a weapon in the hands of the management to coerce the
labour to come down in their demands relating to the conditions of employment. Lock-Out is
the keeping of labour away from works by an employer with a view to resist their claim.

There are four ingredients of Lock-Out:-

1. (i) temporary closing of a place of employment by the employer, or

(ii) suspension of work by the employer, or
(iii) refusal by an employer to continue to employ any number of persons employed
by him;

2. The above mentioned acts of the employer should be motivated by coercion.

3. An industry as defined in the Act; and

4. A dispute in such industry

Lock-Out has been described by the Supreme Court as the antithesis of strike. Shri.
Ramchandra Spinning Mills v/s State of Madras12 Held: If the employer shuts down his place
of business as a means of reprisasl or as an instrument of coercion or as a mode of exerting
pressure on the employees or generally speaking when his act is what may be called an act of
belligerency there would be a lock-out

CAUSES

11
http://www.legalserviceindia.com
12
AIR 1956 SC Mad 241

8
 A lockout is generally used to enforce terms of employment upon a group of employees
during a dispute. A lockout can act to force unionized workers to accept changed conditions
such as lower wages. If the union is asking for higher wages, or better benefits, an employer
may use the threat of a lockout or an actual lockout to convince the union to back down. 13
Lock-Outs may be caused by internal disturbances, when the factory management goes in to
financial crisis or got succumbed into financial debts, disputes between workers and workers,
disputes between workers and management or may be caused by illtreatment of workers by
the management. Sometimes lockouts may be caused by external influences, such as
unnecessary political parties involvement in management of workers, union may be provoked
for unjustified demands that may be unaffordable by the management, which may ultimately
lead to lockout of the factory.14

1. Disputes or clashes between workers and the management.

2. Unrest, disputes or clashes in between workers and workers.

3. Illegal strikes, regular strikes or continuous strikes by workers.

4. Continuous or accumulated financial losses of factory or industry.

5. If any company involves in any fraudulent or illegal activities.

6. Failure in maintaining proper industrial relations, industrial peace and harmony.

PROHIBITION OF STRIKES AND LOCK-OUTS:

Section 22 of the Industrial Disputes Act, 1947, deals with the prohibition of strikes and
lock-outs. This section applies to the strikes or lock-outs in industries carrying on public
utility service. Strike or lock-out in this section is not absolutely prohibited but certain
requirements are to be fulfilled by the workmen before resorting to strike or by the employers
before locking out the place of business. Conditions laid down in section 22(1) are to be
fulfilled in case of strike and conditions as laid down in section 22(2) are to be fulfilled in
case of any lock-out by the employer. The intention of the legislature in laying down these
conditions was to provide sufficient safeguards against a sudden strike or lock-out in public
utility services lest it would result in great inconvenience not only to the other party to the
dispute but to the general public and the society.

13
6 En.wikipedia.org visited on 23/09/2020
14
whatishumanresource.com visited on 23/09/2020

9
General prohibition of Strikes and Lock-outs: The prohibition against strikes and lock-out
contained in Section 23 is general in nature. It applies to both public utility as well as non-
public utility establishments. A strike in breach of contract by workmen and lock-out by the
employer is prohibited in the following cases:

(i) During the pendency of conciliation proceedings before a Board and seven days
after the conclusion of such proceedings;
(ii) During the pendency of conciliation proceedings before a Labour Court, Tribunal
or National Tribunal, and two months after the conclusion of such proceedings;
(iii) 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 (3-A) of section 10-A, or
(iv) During any period in which a settlement or award is in operation in respect of the
maters covered by such settlement or award.

The provisions of section 23 shall apply to all industrial establishments. Section 23

applies to both public utility service as well as non-public utility service, while Section 22
applies to public utility service alone. Section 23 does not prohibit a strike or lock-out
during the pendency of conciliation proceeding before a conciliation officer, Section 22
does so.

ILLEGAL STRIKES AND LOCK-OUTS:

According to Section 24(1) Strike or lock-out shall be illegal if it is:

(1) Commenced or declared in contravention of section 22 in a public utility service;

(2) Commenced in contravention of section 23 in any industrial establishment (including

both public utility and non-public utility service);

(3) Continued in contravention of an order made by the appropriate Government under

section 10(3) or sub-section (4-A) of section 10-A of the Act.

Strike or lock-out in contravention of the provisions of Section 22 or Section 23 of the

Act is declared illegal by Section24 of the Act. A strike or lock-out which commenced as
legal under Section 22 & 23 can be continued unless an order under Section 10(3) has
been passed prohibiting the continuance of an existing strike or lock-out.

10
 Sub-section (2) of Section 24 of the Act lays down that continuance of strike or lock-out
is deemed to be illegal only if an order prohibiting it is passed under Section 10(3). Sub-
section (3) of Section 24 of the Act provides that 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. Thus Strike and lock-out shall not be deemed to be illegal if:-

(i) At the commencement they are not in contravention of the provisions of this Act;
(ii) Their continuance has not been prohibited by the appropriate Government under
section 10(3) of the Act;
(iii) A lock-out is declared in consequence of an illegal strike or vice versa.
Maharashtra General Kamgar Union v/s Balkrishna Pen P. Ltd. 15 Held: when a
strike is commenced before the expiry of14 days notice, it will be illegal but only
for the unexpired notice period and thereafter, the strike would be legal.

PROHIBITION OF FINANCIAL AID TO ILLEGAL STRIKES AND LOCK-OUTS:

Section 25 of the Act prohibits financial aid to illegal strikes and lock-outs. The provisions
of this section are attracted only if the strike or lock-out is illegal and not otherwise. It says
that no person shall knowingly spend or apply any money in direct furtherance or support of
an illegal strike or lock-out. This section has the following ingredients:

(i) Spending or applying money;

(ii) Money spent or applied in direct furtherance or support of an illegal strike or
lock-out;
(iii) The strike or lock-out must actually be illegal;
(iv) Knowledge on the part of the person expending or applying money that the strike
or lock-out is illegal.

Thus for prosecuting a person for the contravention of Section 25, the prosecution must
prove:-

(a) That the strike or lock-out was illegal;

(b) That the accused had the knowledge that the strike or lock-out was illegal and that the
money spent by him was direct furtherance or support of the same.

(c) That the money was spent by the accused.

15
(1989) 1 Lab LJ 319 (Bom).

11
It is only spending of money in support of a strike which is prohibited under this section.
Therefore, helping the strikers by way of providing clothes or any other sort of help is not
punishable under this Act. Section 28 provides penalty for giving financial aid to illegal
strikes and lock-outs. Punishment may extend to six months’ imprisonment or one thousand
rupees fine or both.

IMPACT OF ILLEGAL STRIKE & ILLEGAL LOCK-OUT:-

1. Wages during illegal strike: - The effect of an illegal strike is that the workmen cannot
claim wages for the period during which an illegal strike continues. It is pointed out that
if the strike is legal the workmen are entitled to wages,
M/s Crompton Greaves v/s The Workers The Supreme Court has observed that it is well
settled that in order to entitle the workmen to wages for the period of the strike, the strike
should be legal as well as justified.
A strike is legal if it does not violate any provision of the statute. Again a strike cannot be
said to be unjustified unless the reasons for it are entirely perverse or unreasonable. It is
also well settled that the use of force or violence or acts of sabotage resorted by the
workmen during a strike disentitles them to wages for the strike period.
2. Trade Union Immunities and illegal strikes: - The illegality or unjustifiability or
unreasonableness of the strike will not deprive the labour union of its immunities granted
by the Trade Union Act as was clearly held in Rohtas Industries Ltd., v/s Rohtas
Industries Staff Union.16
3. Whether workers are entitled to wages during illegal lock-out: - In Krishna Sugar Mills
v/s State of U.P., this questioned was discussed. The mill was closed for two days
consequent to the alleged assault of officers by some workmen who created a panicky
situation. The Tribunal held that the closure was lock-out which was illegal and
unjustified and so workers are entitled to wages during the lock-out period.
4. Can the employer dispense with the service of workers consequent to a strike: - The
employer-employee relationship is not terminated by participation in strike or by
declaration of lock-out. The purpose of strike is to redress the legitimate grievance of the
strikers.
5. Disciplinary action against striking workmen: - Normally participation in illegal strike
amounts to misconduct on the part of the workmen for which even punishment of
16
AIR 1976 SC 425

12
 dismissal can be given. In Model Mills Ltd., v/s Dhermodas, the Supreme Court upheld
the right of employer to dismiss from services the workmen participating in illegal strike
under the provisions of the standing orders of the company.

CONCLUSION

Though under the Constitution of India, the right to strike is not a fundamental right as such,
it is open to a citizen to go on strike or withhold his labour. It is a legitimate weapon in the
matter of industrial relations. In both lock-out and strike, a labour controversy exists which is
deemed intolerable by one of the parties, but lock-out indicates that the employers rather than
the employees have brought the matter in issue. Strike may be justified or unjustified, legal
or illegal. It depends on the circumstances of each case. It is usually associated with
collective bargaining by workers and is permissible under Industrial dispute Act, 1947.

Lock-out is a weapon of coercion in the hands of the employer with a motive to coerce the
workmen which is due to an industrial dispute and continues during the period of dispute.
However strikes and lock-outs are prohibited during the pendency of conciliation
adjudication and arbitration proceedings. Strikes are said to be revolutionary as it seeks to
obtain better living conditions for the workers who form the majority in the industrial
community. Better wages, better homes and healthy living condition better education—these
are the healthy objectives for the attainment of which labour resorts to strikes.

Hence, strikes may justly be described as contributing towards a revolutionary process in

man's progress towards social order. 'Lock-outs', on the contrary, are reactionary by any
measures; because their object is to frustrate this progressive tend in human affairs. To hold
down wages to a minimum, workers denied of equal opportunities for the education of their
children, and no savings to fall back upon in evil times, is surely unjustifiable, and may be
rightly called reactionary. A strike signals the transfer of power from the employer to the
union. While the employer has a right to employ and retrench workers, in the case of a strike,
the right to not come to the place of work is with the union. This transfer of right also means
higher bargaining power for the union.

A strike is also used by the union to unite its 25 members and send a strong signal to the
management. In this case, strike also becomes an effective tool for the union to regain any
lost support among the workers. A lockout declared because of the poor financial condition

13
of the company has an obvious advantage for the employer because it lets him cut his
financial losses. During this period, an employer does not have to pay the labour costs and
other variable costs.

However A lockout is the last step an employer would take. This is because a lockout means
loss of production, which in turn means financial losses for the company. So except it is a
case of financial distress, the employer would like to continue working.

REFERENCES

1. Chaturvedi S. M. Labour and Industrial Laws Thirteenth Edition, Central Law Agency.

2. Dr. Singh Avtar Introduction to Labour and Industrial Law Second Edition 2008, Lexis
Nexis Butterworths Wadhwa Nagpur.

3. Mishra S. N. Labour and Industrial Law 24th Edition, Central Law Publications.

4. Pillai K. M Labour and Industrial Laws 11th Edition 2007, Allahabad Law Agency.

5. www.econlib.org

6. www.legalserviceindia.com

14