STRIKES AND LOCK-OUTS

Introduction

OVERVIEW
According to Oxford Dictionary, ‘strike’ means a ‘concerted cessation of work on the part of a
body of workers, for the purpose of obtaining some concession from the employer/s.’ Whereas,
the Encyclopedia Britannica defines ‘strike’ as ‘a stoppage of work by a common agreement on
the part of work- people, for the purpose of obtaining or resisting a change in the conditions of
employment.’
The statutory definition in India defines ‘Strike’ as 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.1
Teller gives four characteristics of a ‘strike’ as employed in the modern times that are: (a) an
established relationship between the strikers and the person or persons against whom the strike is
called, (b) the constituting of that relationship as one of employer and employee, (c) the
existence of a dispute between the parties and the utilization by the labor, of the weapon of
concerted refusal to continue to work, as the method of persuading or coercing compliance with
the workmen’s demand, and (d) the contention advanced by workers that, although work ceases,
the employment relation is deemed to continue, albeit in a state of belligerent suspension.2
Whereas, ‘lockout’ refers to the temporary closing of the place of employment or suspension of
work or refusal by the employer to continue to employ any number of persons employed by
him.3 It is a temporary work stoppage or denial of employment initiated by the management of a
company during a labor dispute and is different from a strike, in which employees refuse to
work. It is usually implemented by simply refusing to admit employees onto company premises,
and may include actions such as changing locks and hiring security guards for the premises.

1
Section 2 (q), Industrial Disputes Act, 1947.
2
Ludwig Teller, ‘Labor Disputes and Collective Bargaining’, Vol. 1, pp. 236-7, S 78.
3
Section 2 (l), Industrial Disputes Act, 1947.

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In the case of Syndicate Bank v. K. Umesh Waik,4 the Supreme Court of India identified two
situations in which a strike or lockout could be resorted to. First, as a weapon it should be
sparingly used for redressal of urgent and pressing grievances when no means are available or
when available means have failed. Or second, it should be the last resort tot compel the other
party to he dispute to ‘see justness of the demand.’ In short, it should not be used to cause
hardship to the society at large so as to strengthen the bargaining power. The Court was of the
opinion that such actions have to be examined at the anvil of the interests of the society, which
such action tends to affect.

PHILOSOPHICAL UNDERSTANDING OF THE TOOL OF ‘STRIKE’

The right to strike is a fundamental human right. It gives workers dignity in employment; the
right to protest without fearing for your job, your home, your family. It is what separates workers
from serfs. From a historical perspective, the most effective strategy which has allowed workers
and their organisations to influence managerial decisions and to conclude collective agreements
has been the ability to have recourse to collective action, e.g. strike.
There is no common law right to strike in England. It is a right which has been recognized by
law consequent to organization of labor and the process of collective bargaining to protect the
legitimate expectations of labor and balance the bargaining power with that of the employer.5
Strike, like demonstrations, is recognized as a concomitant of collective bargaining. 6 In fact,
strike is also a form of demonstration.7

ORIGIN OF ‘STRIKE’
To note the origin of strike, as a tool for labor, it would be useful to note the origin of the term
itself. In 1768, spring, one Captain Cook has just appeared before the Royal Society, the famous
British scientific club told the Royal Society members that he would take command of an
exploratory expedition to the South Seas. Meanwhile, one Joseph Banks, amateur botanist, was

4
1994 LLR 883.
5
Halsbury’s Laws of India, Vol. 30, § 165.355 at p. 220.
6
Bharat Petroleum Corpn Ltd v. Petroleum Employees’ Union, (2000) 3 LLJ 25 (Bom HC).
7
BR Singh v. Union of India, AIR 1990 SC 241.

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 STRIKES AND LOCK-OUTS

looking around in London for a berth on a ship heading for the Pacific. But no ship was going
around. On 10th May 1768, thousands of sailors in the Port of London decided to withdraw their
labour in support of demonstrations in London, and “struck” or removed the topgallant sails of
merchant ships at port, thus crippling the ships. Official publications have typically used the
more neutral words “work stoppage” or “industrial dispute”.8
During the bakers’ strike in New York in 1834 the Workingmen’s Advocate reported
“journeymen employed in the loaf bread business have for years been suffering worse than
Egyptian bondage. They have had to labor on an average of eighteen to twenty hours out of the
twenty-four.”9
The great strike struggles of 1877, in which tens of thousands of railroad and steel workers
militantly fought against the corporations and the government which sent troops to suppress the
strikes, left an impress on the whole labor movement. It was the first great mass action of the
American working class on a national scale and, although the combined forces of the State and
capital defeated them, the American workers emerged from these struggles with a clearer
understanding of their class position in society, a greater militancy and a heightened morale.10
Then, with the aid of the revolutionary labor groups the agenda of strike for 8- hour working
hours was led and the May Day was observed.

PROTECTION OF RIGHT TO STRIKE UNDER TRADE UNIONS ACT 1926.

It must be kept in mind that countless lives have been lost for the cause of attaining this
invaluable right to express one’s disagreements by going on strike. The Trade Union Act 1926 is
reflective of the importance assigned to the rights of laborers to demonstrate their grievances
towards the management. The Act protects any office bearer or member of a registered trade
union from being made liable to punishment under Indian Penal Code 1860 in respect of any
agreement made between the members for the purpose of furthering any such object of the trade
union as is specified in the Trade Unions Act 1926.11 Resorting to peaceful strike with the

8
http://www.hyperhistory.org/index.php?option=displaypage&Itemid=746&op=page, accessed on 8th May 2014 at
4:50 PM.
9
https://www.marxists.org/subject/mayday/articles/tracht.html, accessed on 8 th May 2014 at 4:50 PM.
10
Ibid.
11
S. 15, Trade Unions Act 1926.

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common object of enforcing claims, a concerted movement by workmen gathering outside or

within the premises is permissible so long as it is peaceful and does no violate any provision of
the law.12 The Act further grants immunity from civil suits.13 In fact, proceeding on illegal strikes
will not deprive the workmen and their trade union of the immunity provided by the Trade
Unions Act 1926.

RESEARCH METHODOLOGY:
The research method followed by the researcher in this paper is “Doctrinal Research” wherein
secondary sources have been used as part of research material.
The researcher has made extensive use of the secondary sources, which include books, articles,
journals and all literary resources to be found in the library along with e-resources like the
internet pertaining to the given topic. The researcher has referred to number of latest and
celebrated judgments on this research topic to ascertain the scope of the definitions of strike and
lock- out.

12
Jay Engineering Works Ltd. v. Staff Union, AIR 1968 SC 407.
13
S. 18 (1), (2), Trade Unions Act 1926.

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Analysis of the Characteristics of Strike

In order to understand the definition of ‘strike’, it is important to break the definition in key
phrases. So, the necessary requisites as per the definition of ‘strike’ are:
(a) Industry,
(b) Cessation of work acting in combination/ concerted refusal/ or a refusal under a common
understanding,
(c) Any number of persons, and
(d) Who are/ have been employed, to continue to work or to accept the employment.

INDUSTRY
Reference to industry means that the dispute must be arisen in an industry, as defined within the
meaning of s. 2(j) of the Industrial Disputes Act 1947, otherwise, satisfaction of other ingredients
of strike’s definition would be of no assistance.14

CESSATION OF WORK ACTING IN COMBINATION/ CONCERTED REFUSAL/ OR A REFUSAL UNDER

A COMMON UNDERSTANDING

The expressions ‘acting in combination’, ‘concerted refusal’ and ‘refusal under a common
understanding’ often overlap and compendiously referred to as ‘concerted activities’.15 In the
case of Tata Iron and Steel Co Ltd v. Its Workmen,16 the Court held that in order to prove a
strike, cessation of work has to be shown as part of a concerted action. This concerted action
does mandate the requirement of proving any formal meetings, official agendas or mutual assent.
In fact, the Supreme Court has held that once concerted action to cease the work is proven, then,

14
OP Malhotra, ‘The Law of Industrial Disputes’, Vol. 1, 6 th edn., LexisNexis Butterworths Wadhwa Nagpur, p.
493.
15
OP Malhotra, ‘The Law of Industrial Disputes’, Vol. 1, 6 th edn., LexisNexis Butterworths Wadhwa Nagpur, p.
493.
16
(1967) 1 LLJ 381. (Patna High Court)

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whatever maybe the duration of such action, strike is proven. Cessation of work as a concerted
action even for a few minutes is a strike.17
In the case of O.K. Ghosh v. E.X. Joseph,18 the Supreme Court of India struck down the law laid
down in the case of Kameshwar Prasad v. State of Bihar,19 so far as it prohibited participation in
demonstrations and opined:
“It is true that the demonstrations in which he is alleged to have participated actively were
organised in connection with the strike; but that does not mean either in fact or in law that he
participated in the strike itself. Similarly, the charge that he took active part in the preparations
made for the said strike, also does not mean in fact or in law that he participated in the strike. If
he joined demonstrations organised in connection with the strikes, or if he took part in the
preparations for the strike, it cannot be said that he took part in the strike as such...”

Therefore, mere preparation of strike does not lead to the conclusion that the person ceased to
work. Similarly, cessation of work even for 15 or 20 minutes by the workers in combination is a
strike within the scope of Section 2 (q) of the Industrial Disputes Act 1947.20
In England, ‘strike’ is meant to encompass any refusal by employees to work for the periods of
time for which they are employed to work, provided that it is concerted, that is to say, mutually
planned and is not restricted to stoppages of all work covers stoppages of particular days and
particular hours.21

WHO ARE/ HAVE BEEN EMPLOYED, TO CONTINUE TO WORK OR TO ACCEPT THE EMPLOYMENT.
The definition mandates the existence of a relationship or contract of employment between the
striking employees and the industry. Since it is implicit in every contract of employment of every
laborer to abide the terms and conditions of the contract and work according to the rules of the
employment, there is a requisite characteristic to comply by this requirement.22 A person who

17
Buckingham and Carnatic Mills v. Their Workmen, (1953) 1 LLJ 181, 183.
18
AIR 1963 SC 812, ¶ 12 (Constitution Bench).
19
[1962] Supp. 3 S.C.R. 369.
20
Mahnga Ram v. LAT, AIR 1956 All 644, ¶ 48.
21
Connex South Eastern Ltd v. National Union of Rail, Maritime and Transport
Workers [1999] IRLR 249. (CA)
22
Ram Naresh Kumar v. State of West Bengal, (1958) 1 LLJ 567.

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has not been in the employment of the industry will not be covered by the definition of strike,
even if he causes the cessation of work in a concerted action.

ABSENCE OF ‘PURPOSE’
In the case of GD Dalyi v. Goodlass Wall Ltd.,23 the Labor Appellate Tribunal opined that there
is nothing in the Industrial Dispute Act to show that cessation of work must be due to an
industrial dispute. While the dictionaries mention about cessation of work for a purpose, the
statute does not mention about the relevancy of purpose in determining whether such cessation of
work is a ‘strike’ or not.24
In US, ‘strike’ means cessation of work by employees in an effort to obtain more desirable
terms.25 Whereas in England, ‘strike’ has been defined as a concerted stoppage of work done
with a view to improving wages or conditions or giving vent to a grievance or making a protest
about something or other or supporting or sympathizing with other workers in such endeavor and
is distinct from a stoppage which is brought about by an external factor like bomb scare.26

23
(1956) 1 LLJ 468-9.
24
Patiala Cement Co Ltd v. Certain Workers, (1955) 2 LLJ 57. (LAT)
25
Iron Molders’ Union No 125 of Milwaukee, Wis. v. Allis- Chalmers Co., 166 F. 45, 91 CCA 315.
26
Tramp Shipping Corpn v. Greenwich Marine Inc, [1975] 2 All ER 989 at 991, 992.

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ANALYSIS OF THE CHARACTERISTICS OF LOCKOUT

Lockout is an employer’s withholding of work and closing of a business because of a labor

dispute.27 It is used as a measure of coercion and is an antithesis of strike. It is a result of a trade
dispute and is an intentional measure. A lockout can be defensive or offensive. A defensive
lockout is called to prevent imminent and irreparable financial harm to the company or to protect
a legal right, whereas an offensive lockout is called by management to assert economic pressure
on workers and thereby gain a bargaining advantage over a union.28
Lockout was better and elaborately defined in s. 2 (e) of the Trade Disputes Act 1929 (now
repealed).29 But the present definition omits the phrase ‘when such closing, suspension or refusal
occurs in consequence of a dispute and is intended for the purpose of compelling those persons
or of aiding another employer, in compelling persons employed by him, to accept the terms or
conditions of, or affecting employment’, which has left it as a trimmed version of the concept of
‘lockout’. In the case of Sri Ramachandra Spinning Mills v. State of Madras,30 the High Court
explained the loophole in the present definition, which can be addressed by reading the effect of
the deleted words as:

“As the words of the definition stand, whatever be the circumstances in which he finds himself
placed and whatever the strength of the agencies that forced on him the step and however
impotent he may be to avoid the result, if an employer closes the place of employment or
suspends work on his premises a "lockout" would come into existence. 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 underground; 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 lookout
and the employer would find himself exposed to the penalties laid down in the Act.”

27
Bryan A. Garner, ‘Black’s Law Dictionary’, p. 1024.
28
Bryan A. Garner, ‘Black’s Law Dictionary’, p. 1024-5.
29
‘Lock-out’ means 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, where such closing, suspension or refusal occurs in
consequence of a trade dispute.
30
(1957) 1 LLJ 90, 92-3.

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Then, the Court held that where the shut down, suspension or refusal is used as a weapon
corresponding to a strike, then only lockout would come into existence. This position was also
upheld by the Supreme Court in the case of Kairbetta Estate v. Rajamanickam.31

Ingredients of Lockout:
(a) Temporary closure of a place of employment by employer or suspension or work by the
employer, or refusal to employ any number of persons by the employer,
(b) motivate by coercion,
(c) in an industry, and
(d) due to a dispute in such industry.
The expression embraces three kinds of measures to be adopted by the employer, but there is a
good deal of differences between closures on the one hand and three kinds of measures, namely,
(i) temporary closing of a place of employment, (ii) suspension of work, and (iii) the refusal of
employer to continue to employ any number of workmen on the other hand.

Closing a Place of Employment or Suspension of ‘Work’

The object of lockout is to discourage trade union activities or to gain acceptance of his views or
a compromise, which is more favorable to him than to the demands put forth by the labour. It is
withholding of work by an employer from his employees with the purpose of gaining a
concession from them.

‘Refusal by Employer to Continue to Employ any Number of Persons Employed by him’

Just like ‘strike’ as a weapon is available to the employee, lockout as a weapon is at the disposal
of the employers to persuade by a coercive process, the employees, to see his point of view and
to accept his demands.32 In the case of Mahomed Samusddin v. Sasamusa Sugar Works Ltd.,33
the LAT held that the definition of lock out has to be given a restricted meaning, i.e., refusal by
the employer to allow any number of persons employed by him, to attend to their duties, without

31
(1960) 2 LLJ 275, 278.
32
Express Newspapers Ltd v. Their Workmen, (1962) 2 LLJ 227, 232.
33
(1956) 1 LLJ 575, 578.

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effecting a termination of service. The phrase ‘refusal to employ’ does not mean refusal to find a
work for the workmen, but only refers to a refusal or an intention to not to pay, since it would not
be a lock out if the employer pays and does not give any work to do.
Moreover, a lock out can exist only if there is an employer- employee relation subsisting
between the parties. Therefore, in cases where the employer sets up a plea of termination of the
services of the workman, it would be necessary for the adjudicator to investigate into the facts
relating to the termination, for if the termination is right and legally binding, then, it would be
impossible to be held that the lockout had continued and be lifted.34

The Industrial Disputes Act seems to have presented a comprehensive definition of ‘strike’
covering all the necessary ingredients required to initiate legal actions or immunities from the
perspective of employers in cases of illegal strikes or employees in case of legal strikes
respectively. The absence of ‘purpose’ in the definition does not to any extent have a bearing on
the working of the definition, since other factors such as temporary stoppage of work, by
workers employed by the industry are sufficient enough to encompass all the conceivable
scenarios that can take place during the existence of such trade disputes.
Strikes are legal only if they are used as part of bargaining for a collective employment
agreement, or if they are on healthy and safety grounds. A strike, therefore, be illegal if it is used
for some other purpose, for example, asp art of dispute about how to interpret and apply an
existing collective agreement. Generally, facts and circumstances determine whether a strike is
justified or unjustified.
However, it is submitted that the procedural requirements u/s. 22 of Industrial Disputes Act
1947 that make it mandatory for workers to give notice to employer under mentioned
circumstances, seeks commendably to balance the competing claims of employer’s right to
know the dispute and allow him time to provide for any resolution against the claim of
workers to get their grievances redressed as quickly as possible. Further, legal strike is
necessary so that workers get paid for the time during which they were on strike.

34
Shakti Electro Mechanical Industries Pvt Ltd v. FN Lala, (1974) 2 LLJ 1, 5- 6.

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PROHIBITION OF STRIKE AND LOCK-OUT

The cessation or stoppage of work whether by the employees or by the Employer is detrimental
to the production and economy and to the well-being of the society as a whole. It is for this
reason the Industrial Disputes Act while not denying the right of workmen to strike has tried to
regulate it along with the right of the employer to lock-out under Chapter V from Section 22 to
Section 25.
Section 22 provides for specific prohibitions of strike and lock-out in public utility service.
Whereas Section 23 provides for general prohibition of that apply to strike and lock-out in all
the industrial establishments whether they are public utility services or non-public utility
services.

Public Utility Service.

According to Section 2(n), "public utility service" means—
(i) any railway service or any transport service for the carriage of passengers or goods
by air;
(ii) any service in, or in connection with the working of, any major port of dock;
(iii) any section of an industrial establishment, on the working of which the safety of
the establishment or the workmen employed therein depends;
(iv) any postal, telegraph or telephone service;
(v) any industry which supplies power, light or water to the public;
(vi) any system of public conservancy or sanitation;
(vii) any industry specified in the first Schedule' which the appropriate Government
may, if satisfied that public emergency or public interest so requires, by notification in the
Official Gazette, declare to be a public utility service for the purposes of the Act, for such
period as may be specified in the notification :
Provided that the period so specified shall not, in the first instance, exceed six months
but may, by a like notification, be extended from time to time, by any period not exceeding
six months, at anyone time, if in the opinion of the appropriate Government, public
emergency or public interest requires such extension.

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(A) Specific prohibition of strikes and lock-outs in public utility services (Sec.23)
(B) General prohibition of strikes and lock-outs in any industrial establishment
(Section 23)

Specific prohibition of strikes and lock-outs in public utility

services (Section 22)
(I) Specific prohibition of strikes in public utility services [Section 22(1)]
According to 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 six weeks notice before striking
(b) Within fourteen days of giving such notice; or
(c) Before the expiry of the date of strike specified in six weeks notice; or
(d) During the pendency of any conciliation proceedings before a conciliation officer
and seven days after the conclusion of such proceedings.
The six weeks of notice of strike is given by such number of persons to such person or
persons and in such manner as may be prescribed.
A strike in a public utility service commenced or declared in contravention of Section 22(1)
is an illegal strike. For example, in H.M.T. Ltd. v. H.M.T. Head Office Employees Association,35
the strike was declared by the workmen in I.T.I. (Indian Telephone Industries), H.A.L.
(Hindustan Aeronautics Limited), H.M.T. (Hindustan Machine Tools), without giving any
notice to the employer as required under Section 22 [1(a)] of the Act. The Supreme Court in
this case held this strike illegal as it was declared without giving notice to the employer under
Section 22 [1(a)]. Because all the three industries, i.e., I.T.I., H.M.T. and H.A.L. are public
utility services.

(II) Prohibition of lock-out in public utility service [Section 22(2)]

According to Section 22(2), no employer carrying on any public utility
service shall lock-out any of his workmen—
(a) without giving the workmen six weeks notice before locking-out; or

35
AIR 1997 SC 585

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(b) within fourteen days of giving such notice; or

(c) before the expiry of the date of lock-out specified in six weeks notice; or
(d) during the pendency of any conciliation proceedings before a conciliation officer
and seven days after the conclusion of such proceedings.
The notice of lock-out is given in such manner as may be prescribed.36

(III) Report of notice of strike or lock-out to the appropriate authority [Section 22(6)]
If on any day an employer receives from any person employed by him any notice of strike,
he must report to the appropriate Government within five days of receiving such notice.
Similarly, if an employer gives a notice of lock-out to any person employed by him, he must
give report of the notice of lock-out given by him to the appropriate Government within five
days of giving such notice. The employer must also give report of the number of notices
received or given. Such report may also be given to such authority as may be prescribed by the
Government.

(IV) Notice of lock-out or strike in public utility service is not necessary under certain
conditions
1. According to Section 22(8), no notice of strike under Section 22(1) is necessary where
there is already in existence a lock-out in a public utility service. Similarly, no notice of lock-
out under Section 22(2) is necessary where there is already in existence a strike.
For example in H.M.T. Ltd. v. H.M.T. Head Office Employees Association,37the workmen in
public utility service went on illegal strike. In consequence of this illegal strike, the employer
declared lock-out without giving any notice to the workmen under Section 22(2) of the Act. The
Supreme Court in this case38 held that lock-out in consequence of illegal strike is legal even if it
is declared without giving notice to the workmen under Section 22(2) of the Act.
Thus, an employer may declare lock-out in consequence of strike without giving notice
to the workmen. But in such case the employer must send intimation of such lock-out or
strike on the day on which it is declared. Such intimation is sent by the employer to such
authority as may be specified by the appropriate Government. The appropriate Government
36
Section 22(5)
37
AIR 1997 SC 585
38
H.M.T Ltd. V H.M.T. Head Office Emplyewws Association, AIR 1997 SC 585

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specifies such authority either generally or for a particular area or for a particular class of
public utility service.

No strike or lock out during the pendency of conciliation proceedings before the
Conciliation Officer
In Bharat Petroleum Corporation Ltd. v. Petroleum Employees Union,39 the appellant,
i.e., the employer and the respondents, i.e., employees union had participated in conciliation
proceedings which were pending. During the pendency of conciliation proceedings the
respondents resorted to strike pursuant to strike notice under section 22(l)(d) of the ID Act,
1947. The Court in this case held that "as the conciliation proceedings were pending, the
prohibition in section 22(l)(d) of the ID Act, 1947, came into operation and as such the
strike by the respondents was illegal in view of section 24 of the ID Act, 1947.”
Recently in Bharat Petroleum Corporation Ltd. v. Petroleum Employees Union40, the
Bombay High Court considered the question that whether it is open to the unions to declare
strike or open to its members to proceed on strike during the pendency of conciliation
proceedings and held that answer in such a situation is an emphatic "No".
Bombay High Court in Bharat Petroleum Corporation Ltd. v. Petroleum
Employees Union, held as follow :
"Section 22 of the Industrial Disputes Act clearly mandates that no person
employed in Public Utility Services shall go on strike in breach of contract during the
pendency of any conciliation proceedings before the Conciliation Officer and seven
days after the conclusion of such proceedings."

General prohibition of strikes and lock-outs in any industrial

establishment (Section 23)
Section 23 provides for general prohibition of strikes and lock-outs in public utility
services as well as in non-public utility services.
Section 23 provides as below—

39
2003 III LLJ 229 Mad.
40
2011 (5) Bom CR 41

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23. No workman who is employed in any industrial establishment shall go on

strike in breach of contract and no employer of any such workman shall declare a
lock-out—
(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;
(bb) 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 Section 10-A (3-A); 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.

In H.M.T. Ltd. v. H.M.T. Head Office Employees Association,41 the strike commenced
during the pendency of conciliation proceedings has been held illegal by the Supreme Court.
In Management of India Radiators Ltd. v. Presiding Officers42 the workmen slowed down
production contrary to incentive scheme which was the part of bipartite settlement between them
and the management. The management declared lock-out on the ground that the workers had
gone on go-slow and therefore there was fall in the production and further that such action on
the part of the workmen was in contravention of the incentive scheme forming part of the
bipartite settlement. As such slowing down of production by the workmen was in breach of sec.
23(c) of ID Act, 1947, the management's declaration of lock-out was held to be justified by the
Court in this case.

Illegal strikes and lock-outs (Section 24)

A strike or lock-out is illegal if it is :
(I) declared without prior notice in public utility service;
(II) declared during the pendency of any proceedings before the authorities;
(III) continued in contravention of an order made under Section 10(3), under sub-
section 4-A of Section 10-A.

41
AIR 1997 SC 585
42
2003 II LLJ 615 Mad.

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(I) Strike or lock-out is illegal if it is declared without prior notice in public utility service
According to sub-clause (i) of Section 24(1), a strike is illegal, if it commenced in a public
utility service without prior notice as required under Section 22(1) of the Act.
Similarly, sub-clause (i) of Section 24(1) provides that a lock-out is illegal if it is declared in
a public utility service without prior notice as required under Section 22(2) of the Act.
(II) Strike or lock-out is illegal if it is declared during the pendency of any proceedings
before the authorities under the Industrial Disputes Act, 1947
According to sub-clause (i) of Section 24(1), a strike or lock-out is illegal if it is declared in
any industrial establishment in contravention of Section 23.

Strike and lock-out during the pendency of proceedings before the authorities in
contravention of Section 23
Section 24(l)(i) states that a strike or lock-out is illegal if it is commenced or declared in any
industrial establishment in contravention of Section 23 :
(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;
(c) during 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 of the Act.
(III) Continuation of strike and lock-out is illegal if it is in contravention of an order
made under Section 10(3) under sub-section (4-A) of Section 10 A.

According to Section 24(l)(ii), a strike or lock-out is illegal if it is continued in

contravention of an order made under Section 10(3) or sub-section (4-A) of Section 10-A.
Section 10(3) provides as follows :
10(3). "Where an industrial dispute has been referred to a Board, Labour Court,
Tribunal or National Tribunal under Section 10, the appropriate Government may, by
order, prohibit the continuance of any strike or lock-out in connection with such
dispute which may be in existence on the date of the reference."

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Sub-section (4-A) of Section 10-A reads as under :

"Where an industrial dispute has been referred to arbitration and a notification
has been issued under sub-section (3-A), the appropriate Government may, by order,
prohibit the continuance of any strike or lock-out in connection with such dispute
which may be in existence on the date of reference."

Conditions in which a strike or lock-out is not deemed to be

illegal
(I) A strike or lock-out already commenced before the reference of disputes under Section
10.
Section 24(2) provides that where a strike or lock-out in pursuance of an industrial dispute
has already been commenced and is in existence at 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 lock-out shall not be deemed to be illegal, if such strike or lock-out was not at its
commencement in contravention of the provisions of the Act or the continuance thereof was not
prohibited under sub-section (3) of Section 10 or sub-section (4-A) of Section 10-A.

(II) A strike declared in consequence of illegal lock-out and a lock-out declared in

consequence of an. illegal strike [Section 24(3)]
According to Section 24(3), a lock-out declared in consequence of an illegal strike is not
deemed to be illegal.
Similarly, Section 24(3) provides that a strike declared in consequence of illegal lock-out
shall not be deemed to be illegal.
For example, in H.M.T. Ltd. v H.M.T. Head Office Employees Association,43the workmen
went on illegal strike. In consequence of this illegal strike the employer declared lock-out. The
lock-out declared by the employer in this case was held to be legal even though the employer
did not comply with the provisions of Section 22(2) and had not given notice to the workmen.

43
AIR 1997 SC 585

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Protection of person refusing to take part or to continue to take

part in an illegal strike or lock-out (Section 35)
According to Section 35(1), no person refusing to take part or to continue to take part in
any strike or lock-out which is illegal under the Act, by reason of such refusal or by reason of
any action taken by him under Sec. 35, be subject to expulsion from any trade union or society,
or to any fine or penalty, or to deprivation of any right or benefit to which he or his legal
representative would otherwise be entitled, or be liable to be placed in any respect, either directly
or indirectly, under any disability or at any disadvantage as compared with other members of the
union or society, anything to the contrary in the rules of a trade union or society notwithstanding.

Penalties for illegal strikes and lock-outs (Sections 26-28)

Different penalties for different offences committed in connection with the illegal strike and
lock-out have been specified under Chapter VI from Section 26 to Section 28.
(I) Penalty for commencing illegal strikes and lock-outs (Section 26)
(i) According to Section 26(1), any workman who commences continues or otherwise
acts in furtherance of a strike which is illegal under the Act, is punishable with :
(a) imprisonment for a term which may extend to one month;
or
(b) with fine which may extend to fifty rupees; or
(c) with both
(ii) According to Section 26(2), any employer who commences, continues, or otherwise
acts in furtherance of a lock-out which is illegal under the Act, is punishable with :
(a) imprisonment for a term which may extend to one month;
or
(b) with fine which may extend to one thousand rupees; or
(c) with both.
The very provision for penalty under Section 26, shows that an illegal strike would not
bring about any other consequence. The Allahabad High Court in U.P. Rajya Setu Nigam

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 STRIKES AND LOCK-OUTS

Sanyukt Karmachari Sangh v. U.P. State Bridge Corporation, Lucknow44 held that "admittedly
a person on strike, be legal or illegal can never be treated to be absent. If he is treated to be
absent, in that event the very concept of strike itself would lose its significance and hit at the
root of the principle of collective bargaining permitted under the Industrial Jurisprudence."

(II) Penalty for instigation of illegal strikes and lock-out. (Section 27)
According to Section 27, any person who instigates or incites others to take part in, or
otherwiseacts in furtherance of, a strike or lock out which is illegal under the Act, is punishable
with :
(a) imprisonment for a term which may extend to six months; or
(b) with fine which may extend to one thousand rupees; or

(c ) with both.

(III) Penalty for giving financial aid to illegal strike and lock-out (Section 28)
Section 25 provides that no person shall knowingly expend or apply any money in direct
furtherance or support of any illegal strike or lock-out. According to Section 28, any person
who knowingly expends or applies any money in direct furtherance or support of any illegal
strike or lock-out is punishable :
(a) with imprisonment for a term which may extend to six months;
or
(b) with fine which may extend to one thousand rupees; or
(c) with both.

An illegal strike cannot be justified

The Supreme Court in India General Navigation and Railway Co. Ltd. v. Their
Workmen45 observed as follows :
"The law has made a distinction between a strike which is illegal and one which is not,
but it has not made any distinction between an illegal strike which may be said to be
justifiable and one which is not justifiable. This distinction is not warranted by the Act, and

44
1999 II LLJ 1219 (All)
45
AIR 1960 SC 219

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 STRIKES AND LOCK-OUTS

is wholly misconceived, specially in the case of public utility service.

Everyone participating in an illegal strike is liable to be dealt with departmentally, of
course, subject to the action of the department being questioned before an Industrial
Tribunal, but it is not permissible to characterize an illegal strike as justifiable."
The Supreme Court in Bank of India v. T. S. Kelawala46 held that :
"even if the strike is legal, it does not save the workers from losing the salary for the
period of the strike. It only saves them from disciplinary action.
The illegal strike is a misconduct which invites disciplinary action while the legal
strike does not do so. However, both legal as well as illegal strike invite deduction of
wages on the principle that whoever voluntarily refrains from doing work when it is offered
to him, is not entitled for payment for the work he has not done."

(II) No wages during the period of strike which is illegal

The legal position at present is this that workmen may claim wages for a strike which is both
legal and justified. But workmen are not entitled to claim wages under any circumstance in case
the strike is illegal according to the provisions of this Act. As the Supreme Court in H.M.T. Ltd.
v. H.M.T. Head Office Employees Association,47 reiterated that employees are not entitled to
wages during strike period notwithstanding the finding that strike is justified.

(III) Workmen's claim for wages for legal and justified strike
The Supreme Court in T. S. Kelaivala's case48 held that both legal as well as illegal strike invite
deduction of wages. The Supreme Court in T. S. Kelaivala's case did not comment upon the
workmen's claim for wages during the period of strike when the strike is both legal and justified
as this point was not raised in that case.
But in a later judgment in Syndicate Bank v. K. Umesh Nayak,49 the Supreme Court considered
the question of workmen's claim for wages during the period of strike which is both legal and
justified, and the Supreme Court held that the workmen may claim wages for the strike period, if

46
(1990) 45 SC 744
47
AIR 1997 SC 585
48
Bank of India v T.S. Kelawala, (1990) 2 39 SC
49
AIR 1995 SC 319

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 STRIKES AND LOCK-OUTS

the strike is both legal and justified.

In Syndicate Bank v. Umesh Nayak, the Supreme Court had reiterated its earlier judgment given
in 1978 in Crompton Greaves v. Their Workmen.50 As earlier in 1978 in Crompton Greaves v.
Their Workmen, the Supreme Court held that "In order to entitle the workmen to wages for the
period of strike, the strike should be legal as well as justified." In Crompton Greaves v. Their
Workmen, the Supreme Court explained the meaning of the legal and justified strike as follows :
"A strike is legal if it does not violate any provision of the statute. Again, a strike
cannot be said to be justified unless the reasons for it are entirely perverse or unreasonable.
Whether a particular strike was justified in the light of the facts and circumstances of each
case. It is well settled that the use of the force or violence or acts of sabotage resorted to by
workmen during a strike disentitle them to wages for the strike period."

50
AIR 1978 SC 1489

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Bibliography

BOOKS

 Deakin, Simon and Morris, Gillian S; ‘Labour Law’, 6th edn., Hart Publishing 2012, Oxford
and Portland Oregon.
 Garner, Bryan A.; ‘Black’s Law Dictionary’, 9th edn., West Thomas Reuters Business, USA.
 Halsbury’s Law of England, Vol. 41, 5th edn., LexisNexis, UK 2009.
 Kumar, H.L.; ‘Employer’s Rights under Labour Laws’, 3rd edn., Universal Law Publishing
Co., New Delhi.
 Malhotra, OP; ‘The Law of Industrial Disputes’, Vol. 1, 6th edn., LexisNexis Butterworths
Wadhwa Nagpur.
 Teller, Ludwig; ‘Labor Disputes and Collective Bargaining’.

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ACKNOWLEDGMENT

In the course of work, I have received support, encouragement and

assistance from number of persons.

Ms. Kusum has been a constant source of inspiration and wise counsel.

I am indebted to her for her unstinting encouragement at every stage of this

project.

I also acknowledge help which I received from department library.

HIMANSHU GUPTA

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 STRIKES AND LOCK-OUTS

Table of Cases

Bank of India v. T. S. Kelawala .................................................................................................... 20

Bharat Petroleum Corpn Ltd v. Petroleum Employees’ Union, (2000) 3 LLJ 25 (Bom HC ......... 2
BR Singh v. Union of India, AIR 1990 SC 241 .............................................................................. 2
Buckingham and Carnatic Mills v. Their Workmen, (1953) 1 LLJ 181 ......................................... 6
Connex South Eastern Ltd v. National Union of Rail, Maritime and Transport Workers [1999]
IRLR 249 .................................................................................................................................... 6
Express Newspapers Ltd v. Their Workmen, (1962) 2 LLJ 227, 232 ............................................. 9
GD Dalyi v. Goodlass Wall Ltd. (1956) 1 LLJ 468-9 ..................................................................... 7
H.M.T. Ltd. v. H.M.T. Head Office Employees Association ........................................... 12, 13, 15
Iron Molders’ Union No 125 of Milwaukee, Wis. v. Allis- Chalmers Co., 166 F. 45, 91 CCA 3157
Jay Engineering Works Ltd. v. Staff Union, AIR 1968 SC 407. ..................................................... 4
Kairbetta Estate v. Rajamanickam (1960) 2 LLJ 275 .................................................................... 9
Kameshwar Prasad v. State of Bihar [1962] Supp. 3 S.C.R. 369 .................................................. 6
Mahnga Ram v. LAT, AIR 1956 All 644 ........................................................................................ 6
Mahomed Samusddin v. Sasamusa Sugar Works Ltd (1956) 1 LLJ 575, 578 ................................ 9
Management of India Radiators Ltd. v. Presiding Officers .......................................................... 15
O.K. Ghosh v. E.X. Joseph AIR 1963 SC 812 ................................................................................ 6
Patiala Cement Co Ltd v. Certain Workers, (1955) 2 LLJ 57. (LAT) ........................................... 7
Petroleum Corporation Ltd. v. Petroleum Employees Union ....................................................... 14
Ram Naresh Kumar v. State of West Bengal, (1958) 1 LLJ 567 .................................................... 6
Shakti Electro Mechanical Industries Pvt Ltd v. FN Lala, (1974) 2 LLJ 1, 5- 6.......................... 10
Sri Ramachandra Spinning Mills v. State of Madras (1957) 1 LLJ 90, 92-3 ................................. 8
Syndicate Bank v. K. Umesh Waik 1994 LLR 883 ......................................................................... 2
Tata Iron and Steel Co Ltd v. Its Workmen (1967) 1 LLJ 381 ....................................................... 5
Tramp Shipping Corpn v. Greenwich Marine Inc, [1975] 2 All ER 989 ....................................... 7

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Table of Contents

Acknowledgment…………………………………………………………………………………
Introduction ..................................................................................................................................... 1

OVERVIEW .................................................................................................................................. 1

PHILOSOPHICAL UNDERSTANDING OF THE TOOL OF ‘STRIKE’ ................................................. 2

ORIGIN OF ‘STRIKE’ ................................................................................................................... 2

PROTECTION OF RIGHT TO STRIKE UNDER TRADE UNIONS ACT 1926. ................................... 3

RESEARCH METHODOLOGY: ..................................................................................................... 4

Analysis of the Characteristics of Strike ......................................................................................... 5

INDUSTRY .................................................................................................................................... 5

CESSATION OF WORK ACTING IN COMBINATION/ CONCERTED REFUSAL/ OR A REFUSAL

UNDER A COMMON UNDERSTANDING ......................................................................................... 5

WHO ARE/ HAVE BEEN EMPLOYED, TO CONTINUE TO WORK OR TO ACCEPT THE

EMPLOYMENT. ............................................................................................................................ 6

ABSENCE OF ‘PURPOSE’ ............................................................................................................. 7

ANALYSIS OF THE CHARACTERISTICS OF LOCKOUT .................................................................... 8

Ingredients of Lockout: ............................................................................................................ 9

Closing a Place of Employment or Suspension of ‘Work’ ................................................ 9

‘Refusal by Employer to Continue to Employ any Number of Persons Employed by

him’......................................................................................................................................... 9

PROHIBITION OF STRIKE AND LOCK-OUT ......................................................................... 11

Specific prohibition of strikes and lock-outs in public utility services (Section 22) .................... 12

General prohibition of strikes and lock-outs in any industrial establishment (Section 23) .......... 14

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Illegal strikes and lock-outs (Section 24)...................................................................................... 15

Conditions in which a strike or lock-out is not deemed to be illegal ............................................ 17

Protection of person refusing to take part or to continue to take part in an illegal strike or lock-
out (Section 35) ............................................................................................................................. 18

Penalties for illegal strikes and lock-outs (Sections 26-28) .......................................................... 18

Bibliography ................................................................................................................................. 22

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