Strike - A Collective bargaining in its own respect

Sharika Gupta

The article explains the legal propositions relating to strike, the classification of strikes by the courts in terms of justifiability & legality and the kinds of strike. The author has made extensive use of legal pronouncements and laws to explain the intricacies of strike. Also dealing with the economic aspect of strike, the paper concludes with the changing face of strikes in the increasingly competitive environment. Read on...

INTRODUCTION

Strike is a weapon of collective bargaining. According to Lord Denning, M.R., "the nature of the right to strike is such as in my view cannot be taken away or abridged save in strict conformity with the provisions of the statute providing for such abridgment or taking away. The English law defines strike as "A simultaneous cessation-of work on the part of the workmen". The American jurisprudence has defined strike in a wider term as - " A strike is the act of quitting work by a body of workmen for the purpose of coercing their employer to accede to some demands they have made upon him, and which he has refused; but it is not a strike for workmen to quit -work either singly or in a body, when they have quitted (sic) without intention to return to work, whatever may be the reason that moves them to do so".

The general meaning, which is also accepted by Indian courts, is that strike means ceasing work or downing tools.

­Both the Indian and English Courts have recognized the importance of strike as a weapon of col1ective bargaining. It is usually the last step that is taken by the workmen to force the employer; who is belligerently stuck to his stand and not conceding to the workers' demand. No doubt, such action on the part of the workmen causes great harm to the peace of the society in general and the industrial peace in particular. However, it is pertinent to note that in contract of employment, where the bargaining power between the employer and the employee is always unequal, the doctrine of public policy demands that the legislature as well as the courts are required to strengthen the hands of the 'have-nots'. The turbulent 80s and the early part of 90s witnessed large scale striking of work, thereby leading to huge loss of man-days and industrial output. Successive competitive environment has ensured that strike is on the decline in the last decade. This economic aspect will be dealt at the end of this Article.

This article limits itself to the legal propositions relating to strike, the classification of strikes by the courts in terms of justifiability and legality and the kinds of strike. It concludes with the changing face of the strikes in the increasingly competitive environment.

DISCUSSION

Section 2(q) of the Industrial Disputes Act, 1947 (in short "the Act") defines strike as ­

"Strike means a cessation of work by a body of persons employed in any industry acting in combination, or a concerted refusal, or a refusal under a common understanding, of any number of persons who are or have been so employed to continue to work or to accept employment.

An analysis of the above definition provides for the following ingredients to constitute a strike:  

1. There must be a body of persons.

2. They must be employed.

3. Such employees should be employed in all industry.

4. The industry must be existing.

5. They must refuse to accept employment either in combination.

6. All employees of the industry need not join the strike.

­The word 'industry' though defined in a very vague inclusive way under section 20), the definition of the term 'industry' is well settled by the decision of the Hon'ble Supreme Courts. In this case the Supreme Court has held that to be an industry where there is ­-

(i) Systematic activity

(ii) Organized by co-operation of employer and employees

(iii) For the production of goods or rendering of services

In recognizing whether a particular set-up is an industry or not, the dominant nature of the undertaking should be taken into account. Absence of profit motive is not a criterion for recognizing a particular set up as a non-industry. The Hop'b1e Supreme Court's definition containing the triple test and the dominant nature of undertaking has taken almost the entire workforce of the country unclear the ambit of the term 'industry'. Logically this flows to ensure that the entire workforce of the country can resort to strike to press for their demands. However, it is pertinent to note that the. employees cannot go on strike if they are pot engaged in employment in that particular industry.

It is interesting to note that though the general understanding is that strike is always resorted to in order to press for the demands by the workmen against their employees, the definition under 2(q) is surprisingly silent on this aspect, thus leaving the field wide open to the workmen to resort to strike for any reason whatsoever. This has often led to unpalatable situation where "the workmen have resorted to strike even over an issue like quarrel with rival unions, Of course, in order to overcome this difficulty and in order to bring about objectivity and purpose the Hon'ble Supreme Court has brought in the concept of justifiability of strike, which will be dealt later in this article.

The following are some of the illustrations, held as strikes ­

1. A pen down strike; by the workmen of a bank

2.  Stoppage of work by workmen for two to four hours and their refusal to resume work is a result of the refusal of the employer to declare the forenoon of a particular day as             holiday for solar eclipse.

3. Stoppage of work by the workmen with a view to enforcing their demand of removal of the weakling master and his favorite workmen in a textile mill.

4. Refusal to work by workmen on a listed holiday for which the management had offered compensatory holiday in accordance with their prior agreement between the management and  the union

5. Refusal of workers to resume work on account of the sudden death of a worker acting in concert.

However, where two workmen were absent from duty on a particular day and there was no evidence to show that the absence was due to concert between the two workmen and other persons or that there was a common understanding between them and other persons or that they would not continue to work or there would be a refusal to work, it was held that their absence did not constitute strike".

By the above discussion, it can be inferred that industrial environment being a dynamic sphere of activity, the strike can take many shapes and forms and for multifarious reasons. However, the judicial decisions have classified the following as some of the important types of strike:

1. Primary Strike, which is aimed against the employer. This can take many forms such as pen down, sit-down, tool-down, boycott, black-ban, etc.

2. Secondary strike is a coercive measure adopted by workers against an employer connected by product or employment with alleged unfair labour conditions or practices.

Other than the above two common types of strike there are either coercive tactics which are as such not termed as strikes but a serious invasion of the rights of the employer. Popular amongst them are:

1. Sympathetic strike called for the purpose of indirectly aiding others, while the striking employees have no demands of their own and the strike has no relation to the advancement of the interest of the

strikers.

Under the American jurisprudence, a sympathetic strike is unlawful and the striking workmen are liable to pay damages.

2. Go-slow is a picturesque description of deliberate delaying of production by workmen prete­nding to be engaged in the factory is one of the most pernicious practices that discontented or disgruntled workmen sometimes resort to. It would not be far wrong to call this dishonest. For, while thus delaying production and thereby reducing the output, the workmen claim to have remained employed and thus are entitled to full wages. Apart from this also, ‘go-slow' is likely to be much more harmful than total cessation of work by strike. While, during a strike much of the machinery can be turned off, during the go-slow, the machinery is kept going, on reduced speed which is often extremely damaging to the machinery parts. For all these reasons, ‘go-slow' has always been considered a serious type of misconductI7. Further, go-slow has also been made misconduct under the Model Standing Orders appendea to the Industrial Employment (Standing Orders) Act, 1946.

Apart from the above, it is not -that workmen can go on strike as they wish. The provisions of the Act govern the commencement, continuation and the stoppage of strike. In particular section 22 and section 23 impose many restrictions on the commencement and continuation of strikes and lockouts.

It is to be noted that the right to strike is not one of the fundamental rights recognized under the constitutional. ­However, the right to strike has been implicitly recognized by the Act. The legality or otherwise of the strike has to be decided by application of the provisions of the contained more particularly in section 10(3), 10A(4A), 22 and 23 of the Act. While section 23 imposes general restriction on commencement or continuation of strike, section 22 imposes stringent restrictions on the workmen and the management of the public utility concerns while resorting to strike or lock out. These provisions are an attempt to finely balance the implied right of the workmen to strike and the management to lock out belligerent workmen as an antithesis to strike on the one hand and also to ensure the objectives of the Act are met namely promotion of industrial peace and harmony on the other.

The important question that arose before the courts time and again was whether the strike or lock out was justified. Since the Act is totally silent on this aspect, the Supreme Court has laid down certain salutary principles in this matter. Justifiability or otherwise is purely a question of fact which has to be decided on a case-by-case basis. An illegal strike is always unjustified. There cannot be an illegal strike, which can be justified by any stretch of imaginationl9. However, where the strike is legal and justified at the beginning but thereafter, the workmen resort to violence, then such strike becomes illegal.

The true premise of the justifiability of the strike is that if the workmen resort to strike for pressing their legitimate demands and in a peaceful manner, such a strike is justified21 Where however, the workmen resort to strike, which is, justified and the management resort to lock out, which is also justified, then the situation becomes tricky. In order to resolve such an impasse, the Supreme Court has evolved the doctrine of apportionment of blame, where only half the wages for the strike period will be awarded.

The justifiability of the strike or otherwise is a question of fact, which has to be decided by the Tribunal. Such question cannot be ordinarily decided as a writ under Article 226 of the Constitution. Only if the finding of the Tribunal is erroneous or perverse, that an appeal before the High Court lies. However, in a recent case, the Hon'ble Supreme Court has held that where there is a grave and urgent situation exists, the High Court can entertain a writ petition under Article 226 of the Constitution.

The effect of strike is that the employer - employee relationship or the contract of employment does not get terminated but it is under a belligerent suspension.

CONCLUSION

The genesis of the strike can be traced back to the Industrial England where the workers started organizing themselves to demand better wages and service conditions- With the emergence of Karl Marx, the founding of the International Labor Organisation (ILO) and the trade union movement particularly during the world wars, have legitimized the workers' right to strike. The collective bargaining process has often lead to the change in the course of our history; be it the May day revolution or the experiments of Mahatma Gandhi with truth in his first, but less quoted Textile Mills strike in Ahmedabad upon his return to India in 1919.

However, in the recent past, owing to freeing up of the economy, strikes have started becoming few and far. The effect of opening of our economy is: such that the licensing for industry which ensured that there is no competition from within coupled with high import duties, which further bolstered the chance of non-competition virtually ensured that the workmen can go on strike for any number of days and come back to see the industry's market share unchanged26. However, with the opening of the economy, the captive market share the entrepreneurs enjoyed without any let in the protected economy is no longer present. This was realized by the trade unions much before the management realized. The only areas where we still witness frequent strikes are in the sectors which are still protected by the Government namely PSUs, Banks, etc.. This economic reality if properly adopted in our policies and regulations will lead to a situation where strike becomes a 'really' legitimate weapon in the armory of the workmen, to be used only in the rarest of the circumstances.

REFERENCES

1 Morgan v:Fry P968] 3 W.L.R 506 (516)

2 Farrer v. Close (1869) LR4 Q.B. 602 (6l2) per Hannen,J

3 U den v. Schaeffer no Wash 391

4 Australian Commonwealth Shipping Board v. Federated Seaman's Union 35 CLR 462 (483) per Higgins, J

5 Bangalore Water Supply and Sewerage Board v.Rajappa AIR 1978

6. Ram Naresh KumaT v. State of West Ben­gal [1958] 1 LLJ 567 (570) (CaI.) (D B) per Guha Ray,

7 See generally, Sirka Colliery Ltd. v. South Karampura Coal (1951) II LLJ 52 (LAT).

8 Punjab Natiomi.l Bank v. Their workmen [1959] II LLJ 666 (684) (S.C) per Gajendragadkar, J.

9 Buckingham & Carnatic Co. Ltd. v. Their Workmen [1953] I_ LLJ 181(183) (S.C) per Mahajan, J.

10 Rastriya Mill Mazdoor Sangh v. Crown Spinning and Manufacturing Co. Ltd. [1954] LAC401

11 Upper India Coope:r Paper Mills Co. Ltd. v. Theirworkers [1954] II kLJ 347 (L.A.T)

12 NationalTextile Workers Union v. Sree Meenakshi Mil_[1951] II LLJ 516 (L.A.T)

13 Ram Sarupv. Rex AIR 1949 All. 218, per Chandirantani, J

14 Ludwig Teller, Labor Disputes and Col­lective Bargaining, Vol. I p298 5.103

15 Dorchy v. Kanasas 7-1 L. Ed .248 {261)

16. 31 American Jurisprudence (First Edi­tion) s.390 pp.718-719

17 BharatSugar Mills Ltd v. Jai Singh [1961J n LLJ 644 (647) (S.C) per Das Gupta, J

18 All India Bank Employees Association v. National Industrial Tribunal [1961] II LLJ, 385 (398) (S.C) per Rajagopal Ayyangar, J.

19 India General Navigation and Railways and Co. Ltd. v. Their Wo_kmen [1960] I LLJ 13 (22) (S.C) per Sinha, CJ.

20 [1978] II LLJ 80 (82) per J aswant Singh, J

21 Swadeshi Industries Ltd. v. Its workmen (1960) II LLJ 78(81) (S.C) per Das Gupta, J. 22 [1994] II LLJ 836 (849) Lab. I.C

23 Rangarajan T.K. v. Government of Tamilnadu and others [2003] LLJ 275.

24 Ludwig Teller, Labor Disputes & CoIlec­tive Bargaining VoLl, p.237, S.78

25 See Generally, 'Gandhi's Truth' by Erik Erikkson.

26 See Generally, 'In Praise of Selfishness' by Bhanusimha S, 'Rapport', In house magazine of Dynamatic Technologies Lim­ited 1999.

27 See Generally, Raghavan's Committee Report on Competition Law, 2002. .

Sharika Gupta,
E-Commerce, MCSE, MBA, Phd (Pursuing),
Rai Business School, Rai University
Phone: 26959000 (Extn: 336)
Personal Ph: 9811093921
Personal e-mail: sharika_gupta@hotmail.com