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Contents
Industrial Disputes Act Clarifies the Prohibition of strikes................................................................................................. General prohibitions of illegal strikes................................................................................................................................. Right to strike is not fundamental right under the constitution of India........................................................................... International law recognizes the right to strike................................................................................................................ Suggestion and conclusion................................................................................................................................................ Reference...........................................................................................................................................................................
Analysis of the provision for the right to strike of workers under
the industrial dispute act 1947 and other provisions of laws
The Industrial Dispute Act 1947 has offered option to each specialist's I: e Right
to Strike. The Act was indicated that each worker's organization and managers
reserve the option to participate in aggregate haggling. As indicated by the
Industrial debate Act, it uncommonly ordered to gives the impact to one side to
strike and furthermore set out the methodology by the path for the activity this
right. As indicated by this Act, it doesn't accommodate the obligation to deal.
There is a specific issue, which is at least two things have been an impact on
one another between the laborers and the business. This paper attempts to
examine about a portion of the determinants of modern questions, for example,
the Right to strikes is the essential criticalness of settling or limiting such
clashes.
Catchphrases: established rights, work law, modern questions act, option to
strike, aggregate bursting
Presentation
The Industrial Disputes Act, 1947, appeared in 1947, and it was authorized to
make arrangements for examination, settlement of Industrial Disputes, and
accommodating certain shields to the laborers. To break down the different
arrangement of law and to decide the right lawful situation of the privileges of
laborers to picket. It is important to consider a portion of the fundamental
definitions given by the Industrial debate act and a portion of different
arrangements of law. According to Section 2(k) of Industrial Disputes Act,
1947, a modern question is characterized as mechanical debate to implies any
contest or contrast among representatives and bosses, or among businesses and
laborers, or among workers and which is associated with the work or Non-work
or the terms of business or with the states of work, of any individual. The
meaning of Industrial Disputes might be characterized as a contention or
distinction of feeling among the executives and laborers on the standing of
work. It is a difference between a business and the workers' agent. At the point
when a mechanical contest happens, both the gatherings, that is the
administration and the laborers, attempt to pressurize one another. The
occasion. They were likewise prepared to make up for the loss of work by
chipping away at a Sunday. On the organization's exclude a strike where workmen
enter the premises of their employment and refuse to take their tools in hand and start their usual work. So, the pen-down strike cannot be treated as illegal, but if it is found to be illegal because it was commenced in contravention of section 23(b), mere participation in such an illegal strike cannot necessarily involve the rejection of the strike’s claim for reinstatement. The general hypothetical consideration that pen down strike may in some cases lead to rowdy demonstration or result in disturbance or violence or shake the credit of the employer would not justify the conclusion that even if the strike are peaceful and non-violent and have done nothing more than occupying their seats during office hours, their participation in this strike would by itself disqualify them from claiming reinstatement. Whereas the secondary strike is also called the sympathy strike.
Industrial Disputes Act Clarifies the Prohibition of strikes
The Industrial dispute act 1947 under Section 22 deals with the prohibition of strikes. Similarly, the Strikes deal with the industries caring for Public Utility Services. The Strike is not wholly prohibited but certain requirements that need to be fulfilled by the workmen before resorting to a strike have been laid down. It also laid down the conditions under section 22(1) that need to be met in case of a strike for Public Utility Services. The legislature also laid down certain kinds of situations, which was to provide sufficient protection against unexpected strikes for Public Utility Services which would also result in considerable inconvenience not only to the industry but also to the general public and society at large.protest similarly Section 22(1) No person employed in a public utility service shall go on strike, in breach of contract-(a) Without giving to the employer notice of strike, as hereinafter provided, within six weeks before striking; or(b) Within fourteen days of giving such notice; or(c) Before the expiry of the date of strike specified in any such notice as aforesaid; or(d) During the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings^1. It pretends to be noted that these provisions do not prohibit a workman from going on a strike but are conditions required to be fulfilled before striking. Where a strike has commenced during to pendency of conciliation proceedings, and the workmen, pleaded that the strike was provoked by the employer, it was held that the fact that the strike or lockout was provoked by the opposite party will not absolve the person, going on strike or lockout of the duty of complying with the requirements of section 22 and section 23 of the act’ 2. The workmen went on a strike without serving a notice under section 22. They claimed wages for the national holidays which fell within the strike period. The supreme court held that they were not entitled to wages because they brought about the situation by going on a strike without serving a notice whereby the management was deprived of their Right to take work from them”^3. The court viewed the provisions of section 22 are mandatory and it should be specified the date in the notice on which the workmen proposed to go on strike. In case the date of the strike is expiring, fresh notice is to be given. (^1) Ibid 4 at 289 (^2) Colliery Mazdoor congress v Beerbhum coal co [1952 LAC 29(LAT)] (^3) Madurai coats ltd v Inspector of factories Madurai [(1981) 1 LLJ 255 (SC)]
They further held that the deduction of wages for the days of an illegal strike would be justified^4. The Bombay High Court held that once the strike is held to be illegal the question of justifiability does not arise and the workmen in Public Utility service are not entitled to seek wages for the strike period unless they prove the strike legal and justifiable^5. It was further stated that the strike is a form of demonstration and right to strike or right to demonstration is not a fundamental right. It is recognized as a mode of redress for solving the grievances of the workers. It is not an absolute right and is restricted by the provisions of the Industrial Dispute Act 1947^6.
General prohibitions of illegal strikes
General provisions on the prohibition of the strike are mentioned in section 23 of the Industrial dispute Act. It provides that no worker who is employed in any industrial establishment shall go on strike in breach of a contract and no employer of any such workmen shall declare a lockout is prohibited in the following cases:(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;(b) 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^7. According to section 24 of the Industrial dispute act, provides that a strike and lockout shall be illegal^8. The workers have a right if not a fundamental right, to go on strike. The penalties are contained in sections 26 to 29 of the Industrial disputes act, 1947 9. Even in case of illegal strikes, a distinction has been attempted to be made between illegal but justified strike and illegal and unjustified strike. The effect of an illegal strike on the demand of workmen to wages or compensation and their liability to punishment according to one view is based on the strike being justified. Mere illegality of a strike does not matter. It means if the strike is illegal and at the same time unjustified the workmen have no claim to wages and must also be punished. If the strike is justified, they have the right to claim wages. The Right of striking workmen to reinstatement after the termination of strike: If the strike is the result of unfair labour practice on the part of the employer, the workmen have a right to be reinstated. If the employer is not guilty of unfair labour practice and he has also engaged other workmen in the interim period to continue the work, the striking employees have no right to reinstatement. In the former case, the employer must put his employees back to their work after the strike. The Right of employer to compensation for loss caused by an illegal strike in the case of Supreme Court held that the remedy for illegal strike has to be sought exclusively in section 26 of the Act. The award granting compensation to the employer for the loss of business through an unlawful strike is illegal because such compensation is not a dispute within the meaning of section {2(k)} of the act^10. The rights of a government servant to go on a strike are different from the workmen (^4) Mineral Minors Union v Kudremukh Iron Ore Co Ltd [(1988) 1 lab LJ 277 (karn)] (^5) 2 ANZ Grindlays Bank v SN Khatri and Others [(1995) 11 LLJ 877 (BOM)] (^6) B.R Singh v Union of India [(1989) 11 lab LJ 591 (SC)] (^7) Ibid 8 at 297 (^8) Ibid 14 at 307 (^9) Ibid 15 at 317 (^10) Rohtas Industries v Its Union {(AIR) 1976 SC 425}
employee^14. According to the court observed that the right to strike is central to collective bargaining. It further stated that the right to strike is a legal right though not elevated to the status of a fundamental right^15. The court held that there is no fundamental right for workers to go on strike”^16. It was held that the right to form association guaranteed under Article 19(1) (c) of the Constitution, also carried with it the right to strike otherwise the right to form association would be rendered illusory. The Supreme Court is many of the cases that have recognized the right to strike of the workers as a legal right but has not said that it is a fundamental right”^17. The right to protest is a fundamental right that was specified under Article 19 of the Constitution of India. Similarly, the Right to strike not recognized as a fundamental right in the Indian constitution but it is recognized as a legal right. According to the Industrial Dispute Act 1947, the right to strike is attached to statutory restrictions. In the case, the court observed that the significance of the right to strike is the core of significance to the principle of collective bargaining of each worker^18. According to Justice Krishna Iyer view that the strike could be legal or illegal and even an illegal strike could be justified one 19. The court view that the right to go on peaceful strikes but this right cannot be interfered with except on sufficient grounds. The workers have the right to make legitimate demands, which, if not met to go on legal but peaceful strike. Trade unions also have the right to pursue their trade union activities in peaceful methods^20. A strike is a form of demonstration and every Worker has a right to demonstrate, but the right to strike cannot be done anyway. The strength of the trade unions depends on its membership and able to bargain more effectively with the management rather than the individual. The bargaining strength depends upon demonstrating by way of adopting agitation by workers such as a strike. Thus, from the cases discussed and judgments delivered it is very much evident that the right to strike is available to the workers as a legal right and they can resort to peaceful strikes if the management does not fulfill their demands. The courts have also said that the right to strike and collective bargaining go hand in hand as it persuades the mighty and the rich, powerful employer to come in common terms and negotiate with the working class. But the right to strikes as a fundamental right still remains a controversy and the Indian constitution does not recognize the right to strike as a fundamental right^21. The Right to strike is an implied, statutory right which has various limitation and it must be used as a weapon of the last resort.
International law recognizes the right to strike
The international labour organization came into existence in 1919, the recommendation and conventions of the ILO form a part of the international labour law. In the conventions of the International labour organization, every member was obliged to adhere, the provisions of such agreements by virtue of their membership. However, in the convention, the International labour organization passed the freedom of Association and protection of the Right to (^14) B.R. Sing case, (19900Lab IC 389: air 1990sc (^15) T.K. Rangarajan v Government of Tamil Nadu {2003(6) SCALE 84} (^16) In Radhey shyam sharma v Post Master General central circle Nagpur {1965 AIR 311, 1964 SCR (7) 403} (^17) All India Bank Employees Association v National Industrial Tribunal and others {AIR 1962 SC 171} (^18) Andhra State Road Transport corporation employees’ union v the Andhra State Road Transport (^19) Gujarat steel tubes Ltd v. Gujarat steel tubes Majdoor {AIR 1980 SC 1896} (^20) Indian Express Newspapers (Bombay) Pvt.ltd. v. T.M. Nagarajan {1987 (15) DRJ 212, 1988 Lab lC 1067, 1988 RLR 194} rich (^21) B.R. Singh v Union of India (1990) Lab.IC 389 SC 396
workers^22. There are several other conventions that also promote the right to organize and collective bargaining 23 of such association; provide the labour Regulation (public service) (^24) and collective Bargaining (^25). The Universal Declaration of Human right have provisions to protect the interest of workers, and it stated that everyone has the right to work, to free choice of employment, to just and favourable condition of work to protection against unemployment. Similarly, everyone has the right to form and to join trade unions for the protection of his interest^26. It means the a has recognized the right to form the Trade Union of the working class, and the right to go on strike to secure proper working conditions is the sequel of the right to form an association. The International Covenant of Economic, Social and Cultural Rights (ICESCR)1966, that the state parties to present the covenant that recognizes the right of everyone to enjoyment of just and favourable condition of work^27 and it also ensures that right to strike provided that it is exercised in conformity with the laws of the particular country^28. The country like Indian had ratified an obligation to respect the rule of international provisions related to the protection interest of workers. Even after India Being a member of the above-mentioned International conventions and treaties India has still refused to accept the right to strike as a fundamental right even though the preamble of the ILO places great importance on the right to strike as being necessary to the collective bargaining power of the workers. As per the international conventions, the right to life should have been a fundamental right in India. According to the Supreme Court decision of the various cases well point out to the fact the international law should be abided with and respected, and the constitutional laws should also be such that they are abided. In fact, the right to form an Association and Right to the demonstration being part of the fundamental human right, but the Indian law does not recognize the right to strike as a fundamental right. It needs to take certain steps towards bringing about reconciliation between the international law and the Indian law on this matter and the balance lies in recognizing the right to strike as a Legal Right. This is implicit from Article 51 (c) and the enabling power of Parliament to enact laws for implementing the international conventions and norms under Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution^29. Similarly, the Court must follow the norms of International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Universal Declaration of Human Rights (UDHR) and International Labour Organization’s Conventions, to interpret and expand the ambit of Article 21 of the Constitution^30. The court was held that fundamental rights are subject to the directives enshrined in Part IV of the Constitution, the UDHR, the European Convention of Social, Economic and Cultural Rights, and other international treaties such as the Convention on Rights to Development for Socio-Economic Justice. It is thus settled that the raison deter of Article 51 (c) is to introduce and implement various international instruments, particularly the UDHR, ICCPR, and the ICESCR in the interpretation of fundamental and legal rights. (^22) Convention No.87 ILO (^23) Convention No.98 ILO (^24) Convention No.151 ILO (^25) Convention No.154 ILO (^26) Article 23 of the Universal Declaration on Human Right. (^27) Article 7 (^28) Article 8(1) (^29) Vishaka v. State of Rajasthan [(1993) 6 SCC 241 P. 249] (^30) In People’s Union for Democratic Rights v. Union of India [AIR 1982 SC 1473 P. 1487]
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