Dr. B.R.

Ambedkar National Law University,

Sonepat, Haryana

CONCEPT OF STRIKES

-JUSTIFIED AND UNJUSTIFIED

STRIKES

SUBMITED BY- SUBMITTED TO-

Rohan Verma Dr. Renu Sharma
Section-A (Faculty- Labour Law)
Roll no. 2101058
Semester- V,
BA LLB (hons.)

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 ACKNOWLEDGEMENT

On completion of this project, it is my privilege to acknowledge my heartfelt gratitude and indebtedness

towards my teachers for their valuable suggestion and constructive criticism. Their precious guidance and
support kept me on the right path throughout while drafting this petition.

I wish to express my sincere gratitude towards my teacher Dr. Renu Sharma ma’am for her constant support
and guidance throughout. Without her support, I would have never been able to complete this
project/petition draft. Thank you ma’am .

I am also thankful to my institute for they have provided me with all the necessary E-books, journals and
articles via sources like Manupatra, SSC etc.

Thank you.

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1. Introduction

Various situations in the industrial sector can lead to disagreements between workers and employers,
giving rise to disputes stemming from diverse causes and resulting in volatile conditions. To address
these issues, employers and employees employ various methods such as collective bargaining and
strikes.

Employees and employers wield two powerful tools: strikes, where workers halt work, and lockouts,
where employers shut down their business to impose specific terms or conditions on employees. The
right to strike is recognized as a fundamental social right, enabling the working class to voice their
concerns and resolve industrial conflicts.

The strategic use of these tools, whether threatened or implemented, can compel one party to yield to
the other's demands or, at the very least, make concessions. However, their careless use could lead to
unwarranted work stoppages, causing harm to both parties and escalating tensions, conflicts, and
legal violations. From the perspective of the public, these actions hinder the country's economic
progress. India cannot afford frequent work stoppages over trivial matters, which often accompany
these disputes.

Therefore, the Industrial Disputes Act aims to regulate and limit strikes and lockouts, preventing
both workers and employers from holding the nation hostage to their conflicts.

Definition of strikes
In a lay man’s term strike is a period of time when people refuse to go to work, usually because they
want more money or better working conditions. According to the International Labour Organisation,
Strike action is one of the fundamental means available to workers and their organizations to
promote their economic and social interests. It is the most visible and controversial form of collective
action in the event of a labour dispute and is often seen as the last resort of workers’ organizations in
pursuit of their demands.

Strikes, however, should not be seen separately from the entire field of industrial relations. They are
costly and disruptive for employees, companies, and society at large, and when they happen, it is
because collective bargaining efforts to improve working conditions failed. In fact, more than any
other aspect of labour relations, strikes are frequently a symptom of wider, more complex problems.
As a result, even if a strike is forbidden by national law or a court order, it may still happen if the
economic and social pressures are great enough. The ILO's supervisory bodies recognise the right to
strike as an inherent corollary of the right to organise protected by Convention No. 87, resulting from

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the freedom of workers' organisations to design their activity plans in a way that advances and
defends the economic and social interests of their members. The ability to strike is not unrestricted,
though. (Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87),
Article 3; General Survey on Freedom of Association and Collective Bargaining, para. 151) It may
be subject to certain legal requirements or limits, and it may even be outlawed in exceptional cases.
The right to strike is also recognized in international and regional instruments, including
International Covenant on Economic, Social and Cultural Rights of 1966 (Article 8(1)(d)), the Inte
American Charter of Social Guarantees of 1948 (Article 27), the European Social Charter of 1961
(Article 6(4)) and the Additional Protocol to the American Convention on Human Rights in the Area
of Economic, Social and Cultural Rights of 1988 (Article 8(1)(b)).

Section 2(q) of the Industrial Disputes Act, 1947 defines a strike as “a group of workers in an
industry stopping work together, or a joint refusal by any number of workers, who are or have been
employed, to continue working or accept employment.”

The above definition can be analysed as follows:

1. There should be action by persons employed in industry. This means a strike can take place only
in an industry as defined in Section 2(j), Industrial Disputes Act. Further, the workmen going on
strike must be employed in that industry which means, there must be a contract of employment
between the employer and the workmen concerned.

2. “Cessation of work or refusal to work” means, the workers on strike must act in combination and
together they must have a common understanding to refuse to work. The expressions cessation of
work, refusal to continue to work or refusal to accept employment, all means the same thing, i.e.
those who are expected to work do not intend to continue to work because their demands have
not been met. It must be remembered that it should not be any fancy demand. The demand should
be connected with their work. In other words, it should be an industrial demand. It is only when a
demand is made pertaining to employment, terms of employment or conditions of labour and the
employer has refused to agree, that the stoppage of work or refusal to work will come within the
definition of strike.

Is right to strike: A fundamental Right?

Under the Constitution of India, under Article 19(1)(c), the workers are guaranteed the right to form
unions or associations to pursue their objectives. The question arose as to whether the right to strike
is also guaranteed under Article 19(1)(c) of the Constitution. It was assumed by the workmen and by

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their trade unions that right to form unions includes a concomitant right to also go on strike. If this
was not so, they argued, how could unions fight without the weapon of right to strike?

This argument was not accepted by the Supreme Court in India Bank Employees’ Assn. v. National
Industrial Tribunal. In this case, under Section 34-A, Banking Regulation Act, it was provided that
no banking company shall be compelled to produce or give inspection of its books of accounts or
other documents or furnish or disclose any statement or information when the banking company
claims that such document, statement or information is of a confidential nature and the production of
which would involve disclosure of information relating to any reserves not shown in the published
balance sheet or any particulars declared as bad and doubtful debts. The trade unions argued that
Section 34-A contravened the fundamental rights guaranteed to trade unions by Article 19(1)(c) of
the Constitution as it prevented them from effectively exercising the concomitant right of collective
bargaining in respect of wages, bonus, etc. by denying them information. The court held that Section
34-A, Banking Act was constitutionally valid. This provision did not affect the right of trade unions
for collective bargaining. The right guaranteed by Article 19(1)(c) of the Constitution does not carry
with it the concomitant right that unions formed for protecting the interest of workman shall achieve
their object. The right under Article 19(1)(c) extends only to the formation of an association or
union. As regards the steps which the union might take to achieve its object, the court declared that
they are subject to such laws as may be framed and such laws cannot be tested under Article 19(4) of
the Constitution. Further, the exclusion of Reserve Bank of India from the operation of Section 34-
A(2) also does not amount to discrimination. From the above, we can conclude that, while trade
unions have the right to organise and make demands on behalf of their members, they do not have
the right to strike. This has hampered the collective bargaining process and left unions disappointed
that the right to strike cannot be exercised. Considered to be a fundamental right. In some countries
around the world. The right to strike is a fundamental right in many countries, including Germany,
and these countries have recognised it as such. Fundamental right for workers to engage in collective
bargaining.

Illegal Strikes

Certain strikes are declared illegal under Section 24 of the Industrial Disputes Act, and these are:

1. If they begin or are declared in violation of Section 22, i.e. in a public utility service

2. Began or declared a violation of Section 23 in any industrial establishment.

3. Continued in defiance of an order issued by the appropriate government under Section 10(3) of the
Industrial Disputes Act, which states that when a dispute is referred to the Labour Court, Tribunal, or

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National Tribunal, the appropriate government may, by order, prohibit the continuation of any strike
in connection with such dispute that is in existence on the date of the reference.

4. Persisted in defiance of an order issued by the appropriate government under Section 10-A
subsection 4-A and a notification.

Justified Strikes:

Although a strike is a legitimate and, in some cases, unavoidable weapon in the hands of workers and
their unions, may be used to secure their demands and improve their working conditions, but the
justifiability of a strike must be assessed in terms of the fairness and reasonableness of the demands
made by workers, not just because they have exhausted all other legal options means they have
options for getting their demands met. However, in Gandhiji's opinion, a general strike of inevitable,
must be called out following negotiations for the resolution of workers' just demands have collapsed,
and the demand for arbitration has been denied or the arbitration has been terminated turned down or
the arbitration has failed should meet the following criteria:

In Chandramalai Estate, Ernakulum v. its workmen K.C. Gupta J. stated that while on the one hand it
has to be remembered that strikes is a legitimate and sometimes unavoidable weapon in the hands of
labour, it is equally important to remember that indiscriminate and hasty use of this weapon should
not be encouraged. It will not be right for labour to think that for any kind of demands a strike can be
commenced with impunity without exhausting reasonable avenues for peaceful achievement of their
objects. There may be cases where the demand is of such an urgent and serious nature that it would
not be reasonable to expect labour to wait till after asking the Government to make a reference. In
such cases, strike even before such a request had been made, may well be justified.

In this country, the question of payment of wages during periods of strike is not covered by
legislation nor is there an accepted code of jurisprudence in this regard. The points generally
considered by adjudicator in awarding a strike pay is whether the strike was legal or whether the
strike was in consequence to an unfair labour practice on the part of the employer. Sections 22 to 24
of the Industrial Disputes Act, 1947 describe the circumstances under which a strike or lock-out is
illegal and fifth schedule section 2 of the act gives a list of unfair labour practices on the part of the
employer as well as the employees. From trend of general arguments advanced by adjudicators it
would appear that only in exceptional cases, should the workers be awarded wages during the
periods of strike. The board determining principle is no work - no wage. When a strike has been
occasioned by the employment of an unfair labour practice by the management or where the
employees had been always willing to submit to arbitration which the management has not agreed to,
it would be open to an Industrial court to award strike pay if the strike had been legal and had been

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 conducted peacefully. The first and foremost important consideration taken into account by the
adjudicators, Industrial Tribunals in deciding the issue of payment of wages during a period of strike.
The legality concept has to be determined taking into view the relevant provisions of the Industrial
Disputes Act 1947. If the strike is found to be illegal, the strikers would have no claim for pay during
the period of strike. The next consideration is was the strike Justified.

Unjustified Strikes:

It should be noted that a strike can be perfectly legal and still be unjustified; for example, a strike
started not to secure improvements on issues of basic industrial interest to labour, but to embarrass
management, could not be justified. In West Bangal Flour Mills Mazdoor Congress v. Hooghly Flour
Mills Co. Ltd. 10, the Labour Appellate Tribunal held that if workmen went on strike despite the
management's conciliatory attitude and without exhausting all other available legal means of
resolving the dispute, the strike would be unjustified and the workers would not be entitled to claim
wages for the strike period.

1. The demands may be unreasonable,

2. The employer may have taken a reasonable stance by attempting to resolve the alleged grievance
through negotiation or conciliation; or

3. The demands were made for ulterior motives, i.e., to embarrass the employer

If it is discovered that the strike is not genuine, the employer has the right to take action against the
workers who have joined the strike. There would be no bonafide strike if:
(a) the strike is called under the guise of supporting a current demand but with the real goal of
compelling the employer to reopen a demand that has already been adjudicated upon; or
(b) the strike is called frivolously or frequently with the intent of destroying the factory or is called
for extraneous reasons.
The conduct of the employer is also a relevant and important factor in resolving the question
of justification or otherwise of a strike. A strike may be held to be justified if it was occasioned
by the employment of unfair practices by the employer or may be held to be unjustified if it
resorted to despite employer's willingness to settle the dispute through conciliation, unjustified
where the employer decided to closed down the undertaking and sell its assets but with the
assurance of the new company with continuity of service. The Supreme Court in Management
of the Fertilizer Corporation of India Ltd. v.11 The Workmen was emphatic that the launching
of the tike was unjustified with inspite of the fact that the management was prepared to pay

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bonus as per the Bonus Act, had announced a production bonus scheme and had made some
proposals in the course of conciliation with the workmen and yet the workmen were not
prepared to put off the strike even by one day and decided to go on strike. On the other hand,
when workmen went on strike as a protest against the recalcitrant attitude of the managements,
in boycotting the conference called by the labour minister or failure or conciliation, the strike
was held to be not 32 unjustified.

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 References

I. International Labour Organization,

https://www.ilo.org/static/english/dialogue/ifpdial/llg/ch5/ex2.htm (Accessed on
October 1, 2023)

II. Natioanl Labor Relations Board https://www.nlrb.gov/strikes (Accessed October

1, 2023)

III. Legal Service India https://www.legalserviceindia.com/legal/article-1135-

stikes.html (Accessed on 3 October, 2023)

IV. V.B. Couthino, Lectures on Labour Law (Eastern Book Comapany, Lucknow, 1st
Edn., 2019)

V. World Wide Journals, https://www.worldwidejournals.com/international-journalof-scientific-

research-(IJSR)/article/strikes-justified-andunjustified/MTIzMzI=/?is=1 (Accessed on 3 October,
2023)

VI. P.L. Malik, Industrial Law (Eastern Book Comapany, Lucknow, 25thEdn., 2021)

VII. White Human Resource, https://www.whatishumanresource.com/strikes