AMITY LAW SCHOOL - 2

Labour Law
Case Study

Submitted by:

Submitted to:

Akansha Singh Chaudhary

Mr. Amit Dhall

BA.,LLB (H)
SEM-5
SEC-C
A11911113161

ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude of my teacher Mr. Amit

Dhall who gave me the golden opportunity to do this wonderful project . This
project also helped me in doing a lot of Research and I came to know about so
many new things I am really thankful to him.

Secondly I would also like to thanks my parents and friends who helped me a lot in
finalizing this project within the limited time frame.

TABLE OF CONTENTS

STRIKES
INGREDIENTS
CONCERTED ACTION
NOTICE OF STRIKE
GENERAL PROHIBITION
ILLEGAL STRIKE
CONSEQUENCES
LOCKOUT
LEGALITY
DEFINITION
PROHIBITIONS
CASE STUDY

Strike

Strike is one of the oldest and the most effective weapons of labor in
its struggle with capital for securing economic justice. The basic
strength of a strike lies in the labors privilege to quit work and thus
brings a forced readjustment of conditions of employment. It owes
its origin to old English words Striken to go. In common parlance it
means hit, impress, and occur to, to quit work on a trade dispute.
The latter meaning is traceable to 1768. Later on it varied to strike
of work. The composite idea of quitting work or withdrawal of work
as a coercive act could be gathered in the use of word as a verb as
well as adjective. The definition and use of the word strike has
been undergoing constant transformation around the basic concept
of stoppage of work or putting of work by employees in their
economic struggle with capital.
The term strike has been defined in a wide variety of branches of
human knowledge, viz. etymology, sociology, political economy, law
and political science
Strike has been defined in Section 2 (q) of the Industrial Disputes
Act as under
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.

The analysis of the definition would show that there are the following
essential requirements for the existence of a strike:
(1) There must be cessation of work.
(2) The cessation of work must be by a body of persons employed in
any industry;
(3) The strikers must have been acting in combination;
(4) The strikers must be working in any establishment which can be
called industry within the meaning of Section 2(j); or
(5) There must be a concerted refusal; or
(6) 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;
(7) They must stop work for some demands relating to employment,
non-employment or the terms of employment or the conditions of
labour of the workmen.

Ingredients of Strike
Cessation of Work:This is most significant characteristic of the concept of strike. It has
been variedly expressed as abandonment, stoppage, omission of
performance of duties of their posts, hampering or reducing
normal works, hindrance to the working or suspension of work,
discontinuing the employment or breaking their contract of service
or refusing or failing to return to or resume employment or refusing
or failing to accept engagement for any work which they are usually
employed for. Thus what required for strike is that there must be
stoppage of work or there must be refusal to continue to work or to
accept employment by any number of persons employed for the
work but the refusal must be concerted or under a common
understanding. The cessation of work may take any form. It must,
however, be temporary and not for ever and it must be voluntary. No
duration can be fixed for this. If the cessation of work is as a result
of renunciation of work or relinquishment of the strikers status or
relationship, it is not strike. Permanent cessation of work would
result in termination of the contract of work which is alien to the
underlying sanction of strike retaining contractual relationship
during the strike periods. Cessation of work is not a cessation of
contract of employment.

Concerted action
Another important ingredient of the strike is a concerted action. The
workers must act under a common understanding. The cessation of
work by a body of persons employed in any industry in combination
is a strike. Thus in a strike it must be proved that there was
cessation of work or stoppage of work under a common
understanding or it was a concerted action of the workers or there
was cessation of work by workers acting in combination. Stoppage
of work by workers individually does not amount to strike. The
concerted refusal or refusal under a common understanding to
continue to work or to accept employment or to resume work by any
number of persons is a strike. One thing must be kept in mind that
the refusal of work means refusal to perform duties which the
workers are required to perform. If the workers are at liberty to do a
particular work or not to do a work their refusal to work does not
amount to strike. For example, over-time work, if it is the duty or
workers to do overtime work necessarily because it is the practice of
that establishment to take overtime work from the workers in that
case refusal to work overtime would amount to strike otherwise not.
Thus the test to determine whether refusal to do overtime work
constitutes a strike or not would depend upon whether overtime
was habitually worked in that industry.

The strike is illegal

1. if it is in breach of Contract of Employment.
2. if it is in Public Utility Services.
3. if Notice under Section 22(1) is not given.
4. if commenced during Award or settlement period.
5. if commenced During or within 7 days of completion of
Conciliation Proceedings.
6. if commenced During or within Two months of completion of
Adjudication Proceedings.

Notice of strike

Notice to strike within six weeks before striking is not necessary

where there is already lockout in existence. In mineral Miner
Union vs. Kudremukh Iron Ore Co. Ltd., it was held that the
provisions of section 22 are mandatory and the date on which the
workmen proposed to go on strike should be specified in the notice.
If meanwhile the date of strike specified in the notice of strike
expires, workmen have to give fresh notice. It may be noted that if a
lock out is already in existence and employees want to resort to
strike, it is not necessary to give notice as is otherwise required.

In Sadual textile Mills v. Their workmen certain workmen struck

work as a protest against the lay-off and the transfer of some
workmen from one shift to another without giving four days notice
as required by standing order 23. On these grounds a question
arose whether the strike was justified. The industrial tribunal
answered in affirmative. Against this a writ petition was preferred in
the High Court of Rajasthan. Reversing the decision of the Tribunal
Justice Wanchoo observed:
"We are of opinion that what is generally known as a lightning
strike like this take place without notice. And each worker
striking .(is) guilty of misconduct under the standing orders and
liable to be summarily dismissed(as) the strike cannot be
justified at all. "

General prohibition of strikeThe provisions of section 23 are general in nature. It imposes

general restrictions on declaring strike in breach of contract in the
both public as well as non- public utility services in the following
circumstances mainly: a. During the pendency of conciliation proceedings before a
board and till the expiry of 7 days after the conclusion of such
proceedings;
b. During the pendency and 2 months after the conclusion of
proceedings before a Labour court, Tribunal or National
Tribunal;
c. During the pendency and 2 months after the conclusion of
arbitrator, when a notification has been issued under subsection 3 (a) of section 10 A;
d. During any period in which a settlement or award is in
operation in respect of any of the matter covered by the
settlement or award.

The principal object of this section seems to ensure a peaceful

atmosphere to enable a conciliation or adjudication or arbitration
proceeding to go on smoothly. This section because of its general
nature of prohibition covers all strikes irrespective of the subject
matter of the dispute pending before the authorities. It is
noteworthy that a conciliation proceedings before a conciliation
officer is no bar to strike under section 23.

In the Ballarpur Collieries Co. v. H. Merchant it was held that

where in a pending reference neither the employer nor the workmen
were taking any part, it was held that section 23 has no application
to the strike declared during the pendency of such reference.

Illegal Strike
Section 24 provides that a strike in contravention of section 22 and
23 is illegal. This section is reproduced below:
1. A strike or a lockout shall be illegal if,
i.

It is commenced or declared in contravention of section

22 or section 23; or

ii.

It is continued on contravention of an order made under

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

2. Where a strike or lockout in pursuance of an industrial

dispute has already commenced and is in existence all the
time of the reference of the dispute to a board, an arbitrator, a
Labour court, Tribunal or National Tribunal, the continuance
of such strike or lockout shall not be deemed to be illegal;,
provided that such strike or lockout was not at its
commencement in contravention of the provision of this Act or
the continuance thereof was not prohibited under sub section
(3) of section 10 or sub section (4-A) of 10-A.
3. A strike declared in the consequence of an illegal lockout shall
not be deemed to be illegal.

Consequence of illegal Strike

Dismissal of workmenIn M/S Burn & Co. Ltd. V, Their Workmen, it was laid down that
mere participation in the strike would not justify suspension or
dismissal of workmen. Where the strike was illegal the Supreme
Court held that in case of illegal strike the only question of practical
importance would be the quantum or kind of punishment. To decide
the quantum of punishment a clear distinction has to be made
between violent strikers and peaceful strikers.
In Punjab National Bank v. Their Employees, it was held that in
the case of strike, the employer might bar the entry of the strikers
within the premises by adopting effective and legitimate method in
that behalf. He may call upon employees to vacate, and, on their
refusal to do so, take due steps to suspend them from employment,
proceed to hold proper inquires according to the standing order and
pass proper orders against them subject to the relevant provisions
of the Act.

Wages
In Cropton Greaves Ltd. v. Workmen, it was held that in order to
entitle the workmen to wages for the period of strike, the strike
should be legal and justified. A strike is legal if it does not violate
any provision of the statute. It cannot be said to be unjustified
unless the reasons for it are entirely perverse or unreasonable.
Whether particular strike is justified or not is a question of fact,
which has to be judged in the light of the fact and circumstances of
each case. The use of force, coercion, violence or acts of sabotage
resorted to by the workmen during the strike period which was legal
and justified would disentitle them to wages for strike period.
The constitutional bench in Syndicate Bank v. K. Umesh Nayak
decided the matter; the Supreme Court held that a strike may be
illegal if it contravenes the provision of section 22, 23 or 24 of the
Act or of any other law or the terms of employment depending upon
the facts of each case. Similarly, a strike may be justified or
unjustified depending upon several factors such as the service
conditions of the workmen, the nature of demands of the workmen,
the cause led to strike, the urgency of the cause or demands of the
workmen, the reasons for not resorting to the dispute resolving
machinery provided by the Act or the contract of employment or the
service rules provided for a machinery to resolve the dispute, resort
to strike or lock-out as a direct is prima facie unjustified. This is,
particularly so when the provisions of the law or the contract or the
service rules in that behalf are breached. For then, the action is
also illegal.

Lockouts
The use of the term lock-out to describe employer's instruments of
economic coercion dates back to 1860 and is younger than its
counterparts in the hands of workers, strike by one hundred years.
Formerly the instrument of lock-out was resorted to by an employer
or group of employers to ban union membership: the employers
refused
Employment to workers who did not sign a pledge not to belong to a
trade union. Later the lock-out was declared generally by a body of
employers against a strike at a particular work by closing all
factories until strikers returned to work. 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. Karnik reports that the first known lock-out was declared
in 1895 in Budge Budge Jute Mills. Section 2(1) defines the term
Lock-out. However, the present definition is only a mutilated one.
The term was originally and correctly defined in the Trade Dispute
Act, 1929. From the definition given in the Trade Dispute Act, the
present Act has taken the present definition but has omitted the
words when such closing, suspension or refusal occurs in

consequences of a dispute and is intended for the purpose of

compelling those persons or of aid in another Employer in
compelling persons employed by him to accept terms or condition
of, or affecting employment.

With the omission of these words, the present definition fails to

convey the very concept of Lock-out. In Sri Ramchandra Spinning
Mills v/s State of Madras, the Madras High Court read the deleted
portion in the definition to interpret the term lock-out. According to
the Court, a flood may have swept away the factory, a fire may have
gutted the premises; a convulsion of nature may have sucked the
whole place under ground; still if the place of employment is closed
or the work is Suspended or the Employer refuses to continue to
employ his previous workers, there would be a lock out and the
Employer would find himself exposed to the penalties laid down in
the Act. Obviously, it shows that the present definition does not
convey the concept of the term lock out.

Lock-out, When Legal

The Act treats strikes and lock-out on the same basis; it treats one
as the counter part of the other. (Mohammed Sumsuddin), the
circumstances under which the legislature has banned strike, it has
also at the Same time banned the lock-out. Thus what holds goodbad; legal-illegal, justified unjustified for strikes, holds the same for
the lock-out. As such, the provisions of the Act which prohibit the
strike also prohibit the lock-out.
The object and reasons for which the Lock-out are banned or
prohibited are the same for which strikes are banned or prohibited.
It is because the Employer and the Employees are not discriminated
in their respective rights in the field of industrial relationship
between the two. As such, lock-out if not in conflict with Section 22

and 23 may be said to be legal or not legal. Sections 24(1) (iii), 10(3)
and 10A (4A) similarly controls the lock-out. A lock-out in
consequence of illegal strike is not deemed to be illegal. But if lockout is illegal, Section 26(2), 27 and 28 will come in operation to deal
with the situation. The Act does not lay down any guidelines to
settle the claims arising out of illegal lock-out. The courts, therefore,
have adopted the technique of apportioning the blame between the
Employer and employees. This once again brings to the fore the
concept of justifiability of lock-out.

The Statutory Definition

Section 2(1) of the Industrial Disputes Act, 1947 defines Lock-out
to mean: The temporary closing of employment or the suspension of
work, or the refusal by an employer to continue to employ any
number of persons employed by him. A delineation of the nature of
this weapon of industrial warfare requires description of: (i) the acts
which constitute it; (ii) the party who uses it; (iii) the party against
whom it is directed; and (iv) the motive which prompts resort to it.

Prohibition of Lockout
In the similar circumstances the lockout has been prohibited in the
public utility service. Section 22 (2) of the Act provides that no

employer carrying on any public utility service shall lock out any of
his workmen:
1.Without giving them notice of lockout as hereinafter provided,
within six weeks before locking out; or
2.Within 14 days of giving notice; or
3.Before the expiry of the day of lockout specified in any such notice
as aforesaid; or

Case study
For Bata, labor had always posed major problems. Strikes seemed
to be a perennial problem. Much before the assault case, Bata's
chronically restive factory at Batanagar had always plagued by labor
strife. In 1992, the factory was closed for four and a half months. In
1995, Bata entered into a 3-year bipartite agreement with the
workers, represented by the then 10,000 strong BMU, which also
had the West Bengal government as a signatory.
On July 21, 1998,
Weston was
severely assaulted
by four workers at
the company's
factory at
Batanagar, while
he was attending
a business meet.
The incident
occurred after a
member of BMU,
Arup Dutta, met
Weston to discuss
the issue of the
suspended
employees. Dutta
reportedly got into
a verbal duel with
Weston, upon

which the other

workers began to
shout slogans.
When Weston
tried to leave the
room the workers
turned violent
and assaulted
him. This was the
second attack on
an officer after
Weston took
charge of the
company, the first
one being the
assault on the
chief welfare
officer in 1996.
In February 1999,
a lockout was
declared in Bata's
Faridabad Unit.
Middleton
commented that
the closure of the
unit would not
have much impact
on the company's
revenues as it was
catering to lower-

end products
such as canvas
and Hawaii
chappals. The
lock out lasted for
eight months. In
October 1999, the
unit resumed
production when
Bata signed a
three-year wage
agreement.
On March 8, 2000, a lockout was declared at Bata's Peenya factory
in Bangalore, following a strike by its employee union. The new
leadership of the union had refused to abide by the wage
agreement, which was to expire in August 2001. Following the
failure of its negotiations with the union, the management decided
to go for a lock out. Bata management was of the view that though
it would have to bear the cost of maintaining an idle plant (Rs. 3
million), the effect of the closures on sales and production would be
minimal as the footwear manufactured in the factory could be
shifted to the company's other factories and associate
manufacturers. The factory had 300 workers on its rolls and
manufactured canvas and PVC footwear.
In July 2000, Bata lifted the lockout at the Peenya factory. However,
some of the workers opposed the company's move to get an
undertaking from the factory employees to resume work. The
employees demanded revocation of suspension against 20 of their

fellow employees. They also demanded that conditions such as

maintaining normal production schedule, conforming to standing
orders and the settlement in force should not be insisted upon.
In September 2000, Bata was again headed for a labour dispute
when the BMU asked the West Bengal government to intervene in
what it perceived to be a downsizing exercise being undertaken by
the management. BMU justified this move by alleging that the
management has increased outsourcing of products and also due to
perceived declining importance of the Batanagar unit. The union
said that Bata has started outsourcing the Power range of fully
manufactured shoes from China, compared to the earlier
outsourcing of only assembly and sewing line job. The company's
production of Hawai chappals at the Batanagar unit too had come
down by 58% from the weekly capacity of 0.144 million pairs. These
steps had resulted in lower income for the workers forcing them to
approach the government for saving their interests.