Hi,
Can you please throw some light on the basic difference of legal and illegal strike. Secondly its very confusing that for legal strike how many days prior notice should be given to employer. Major requirements for legal strike.
From India, Delhi
6Can you please throw some light on the basic difference of legal and illegal strike. Secondly its very confusing that for legal strike how many days prior notice should be given to employer. Major requirements for legal strike.
From India, Delhi
As per Section 2 (q) of the Industrial Disputes Act, 1947 “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.
Illegal Strike is a strike that is called in violation of law. An illegal strike ignores cooling-off period restrictions or an absolute statutory ban. Such strike is entered without regard to the no-strike agreement of the union.
From India, Aizawl
Illegal Strike is a strike that is called in violation of law. An illegal strike ignores cooling-off period restrictions or an absolute statutory ban. Such strike is entered without regard to the no-strike agreement of the union.
From India, Aizawl
Thanks for the reply. In case of legal strike how many days prior notice needs to be given to employer in a manufacturing plants is it 14 days or something else.
From India, Delhi
From India, Delhi
In order to answer your querry I am giving below a bit detailed explanation. Please peruse the same and you will find answers to all your querries.
"provision of valid strike under the Industrial Dispute Act, 1947-
Section 2(q) of said Act defines the term strike, it says, "strike" means a cassation 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 accept employment. Whenever employees want to go on strike they have to follow the procedure provided by the Act otherwise there strike deemed to be an illegal strike. Section 22(1) of the industrial Dispute Act, 1947 put certain prohibitions on the right to strike. It provides that no person employed in public utility service shall go on strike in breach of contract:
Without giving to employer notice of strike with in six weeks before striking; or
Within fourteen days of giving such notice; or
Before the expiry of the date of strike specified in any such notice as aforesaid; or
During the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.
It is to be noted that these provisions do not prohibit the workmen from going on strike but require them to fulfill the condition before going on strike. Further these provisions apply to a public utility service only. The Industrial Dispute Act, 1947 does not specifically mention as to who goes on strike. However, the definition of strike itself suggests that the strikers must be persons, employed in any industry to do work.
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. Kudremukh5 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 workmen6 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 Rajasthen. 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 strike-
The provisions of section 23 are general in nature. It imposes general restrications on declaring strike in breach of contract in the both public as well as non- public utility services in the following circumstances mainly: -
During the pendency of conciliation proceedings before a board and till the expiry of 7 days after the conclusion of such proceedings;
During the pendency and 2 month’s after the conclusion of proceedings before a Labour court, Tribunal or National Tribunal;
During the pendency and 2 months after the conclusion of arbitrator, when a notification has been issued under sub- section 3 (a) of section 10 A;
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. Merchant7 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:
A strike or a lockout shall be illegal if,
It is commenced or declared in contravention of section 22 or section 23; or
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.
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.
A strike declared in the consequence of an illegal lockout shall not be deemed to be illegal"
From India, Aizawl
"provision of valid strike under the Industrial Dispute Act, 1947-
Section 2(q) of said Act defines the term strike, it says, "strike" means a cassation 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 accept employment. Whenever employees want to go on strike they have to follow the procedure provided by the Act otherwise there strike deemed to be an illegal strike. Section 22(1) of the industrial Dispute Act, 1947 put certain prohibitions on the right to strike. It provides that no person employed in public utility service shall go on strike in breach of contract:
Without giving to employer notice of strike with in six weeks before striking; or
Within fourteen days of giving such notice; or
Before the expiry of the date of strike specified in any such notice as aforesaid; or
During the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.
It is to be noted that these provisions do not prohibit the workmen from going on strike but require them to fulfill the condition before going on strike. Further these provisions apply to a public utility service only. The Industrial Dispute Act, 1947 does not specifically mention as to who goes on strike. However, the definition of strike itself suggests that the strikers must be persons, employed in any industry to do work.
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. Kudremukh5 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 workmen6 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 Rajasthen. 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 strike-
The provisions of section 23 are general in nature. It imposes general restrications on declaring strike in breach of contract in the both public as well as non- public utility services in the following circumstances mainly: -
During the pendency of conciliation proceedings before a board and till the expiry of 7 days after the conclusion of such proceedings;
During the pendency and 2 month’s after the conclusion of proceedings before a Labour court, Tribunal or National Tribunal;
During the pendency and 2 months after the conclusion of arbitrator, when a notification has been issued under sub- section 3 (a) of section 10 A;
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. Merchant7 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:
A strike or a lockout shall be illegal if,
It is commenced or declared in contravention of section 22 or section 23; or
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.
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.
A strike declared in the consequence of an illegal lockout shall not be deemed to be illegal"
From India, Aizawl
Dear Sandeep,
In continuation of the replies of our learned friend Rkn61, I would like to state that the right to strike is not a fundamental or absolute right in India under any special or common law irrespective of the establishment being an industry or not.
So far as industrial workmen are concerned, the Industrial Disputes Act,1947, by classifying the industrial establishments into Public Utility Services and others, thereby imposes certain restrictions under sections 22 and 23 on strikes and lock outs and general prohibition of strikes and lock-outs respectively.
For the sake of convenience of narration with specific reference to the doubts raised in your query, let me restrict my reply to " strike" only and leave out " lock-out" being a similar action usually taken by the employers as a counter-measure with similar statutory restrictions only.
The term " Public utility service " has been defined u/s 2(n) of the ID Act,1947 so as to mean and include every establishment engaged in essential services like transport, communication, public conservancy and health, supply of power, light or water to the public and any industry specified in the First Schedule as such and any section of an industrial establishment, on the working of which the safety of the establishment or the workmen employed therein depends as well. Therefore, the restrictions u/s 22 would equally apply to any section discharging the duties/functions of such nature in a non-public utility service establishment too.
A strike would be legal if it does not violate the restrictive conditions imposed by sections 22 or 23 as the case may be.
Similarly, a strike would be illegal if it violates the two conditions specified u/s 24(1) of the Act.
Coming to section 22 of the ID Act,1847, everyone who goes through the section for the first time would be naturally a bit confused because of the phraseology of the same being interspersed with certain numbers of days and weeks. Hence let me simply put it as follows:
NO STRIKE IN PUBLIC UTILITY SERVICE [Sec.22] -
(a) Without giving to the employer a notice of strike, within 6 weeks before striking. In other words, from the date of notice to the date of strike, a period of 6 weeks should not have elapsed; OR
(b) Within 14 days of giving such notice i.e., a period of 14 days must have elapsed from the date of notice to the date of strike; OR
(c) Before the expiry of the date of strike specified in any such notice i.e., the date specified in the notice must have expired on the day of striking; OR
(d) During the pendency of any conciliation proceedings before a conciliation officer and 7 days after the conclusion of such proceedings.
GENERAL PROHIBITION OF STRIKES [Sec.23] -
NO STRIKE -
(a) During the pendency of conciliation proceedings before a Board and 7 days after the conclusion of such proceedings.
(b) During the pendency of proceeding before a Labor Court, Tribunal or National Tribunal and 2 months after the conclusion of such proceedings.
(bb) During the pendency of arbitration proceedings before an Arbitrator and 2 months after the conclusion of such proceedings.
(c) During any period in which a Settlement or Award is in operation in respect of any matters covered by the Settlement or Award.
I think the previous answer clearly explains the illegality of a strike.
From India, Salem
In continuation of the replies of our learned friend Rkn61, I would like to state that the right to strike is not a fundamental or absolute right in India under any special or common law irrespective of the establishment being an industry or not.
So far as industrial workmen are concerned, the Industrial Disputes Act,1947, by classifying the industrial establishments into Public Utility Services and others, thereby imposes certain restrictions under sections 22 and 23 on strikes and lock outs and general prohibition of strikes and lock-outs respectively.
For the sake of convenience of narration with specific reference to the doubts raised in your query, let me restrict my reply to " strike" only and leave out " lock-out" being a similar action usually taken by the employers as a counter-measure with similar statutory restrictions only.
The term " Public utility service " has been defined u/s 2(n) of the ID Act,1947 so as to mean and include every establishment engaged in essential services like transport, communication, public conservancy and health, supply of power, light or water to the public and any industry specified in the First Schedule as such and any section of an industrial establishment, on the working of which the safety of the establishment or the workmen employed therein depends as well. Therefore, the restrictions u/s 22 would equally apply to any section discharging the duties/functions of such nature in a non-public utility service establishment too.
A strike would be legal if it does not violate the restrictive conditions imposed by sections 22 or 23 as the case may be.
Similarly, a strike would be illegal if it violates the two conditions specified u/s 24(1) of the Act.
Coming to section 22 of the ID Act,1847, everyone who goes through the section for the first time would be naturally a bit confused because of the phraseology of the same being interspersed with certain numbers of days and weeks. Hence let me simply put it as follows:
NO STRIKE IN PUBLIC UTILITY SERVICE [Sec.22] -
(a) Without giving to the employer a notice of strike, within 6 weeks before striking. In other words, from the date of notice to the date of strike, a period of 6 weeks should not have elapsed; OR
(b) Within 14 days of giving such notice i.e., a period of 14 days must have elapsed from the date of notice to the date of strike; OR
(c) Before the expiry of the date of strike specified in any such notice i.e., the date specified in the notice must have expired on the day of striking; OR
(d) During the pendency of any conciliation proceedings before a conciliation officer and 7 days after the conclusion of such proceedings.
GENERAL PROHIBITION OF STRIKES [Sec.23] -
NO STRIKE -
(a) During the pendency of conciliation proceedings before a Board and 7 days after the conclusion of such proceedings.
(b) During the pendency of proceeding before a Labor Court, Tribunal or National Tribunal and 2 months after the conclusion of such proceedings.
(bb) During the pendency of arbitration proceedings before an Arbitrator and 2 months after the conclusion of such proceedings.
(c) During any period in which a Settlement or Award is in operation in respect of any matters covered by the Settlement or Award.
I think the previous answer clearly explains the illegality of a strike.
From India, Salem
Any form of strike is illegal, as the strike is not expressly recognized in the Constitution of India. The Supreme Court settled the Case of Kameshwar Prasad v. The State of Bihar on 7 July 1958 by stating that strike is not a fundamental right.
The strike staged would decide by the court, whether legal or illegal.
From India, Mumbai
The strike staged would decide by the court, whether legal or illegal.
From India, Mumbai
Dear P RADHAKRISHNAN NAIR,
It would be one more feather in your Cape if you have shared the Citation PDF File Or Year of report and in which Journal as mentioned by you while replying the query of Sandeep Thakur, namely:-
In Mineral Miner Union vs. Kudremukh Iron Ore Co. Ltd.,
In Sadual textile Mills v. Their workmen.
In the Ballarpur Collieries Co. v. H. Merchant.
Kindly share in which journal citation are reported to enable to procure
Regards
From India, Andheri
It would be one more feather in your Cape if you have shared the Citation PDF File Or Year of report and in which Journal as mentioned by you while replying the query of Sandeep Thakur, namely:-
In Mineral Miner Union vs. Kudremukh Iron Ore Co. Ltd.,
In Sadual textile Mills v. Their workmen.
In the Ballarpur Collieries Co. v. H. Merchant.
Kindly share in which journal citation are reported to enable to procure
Regards
From India, Andheri
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