'Strike': Concept, Legality and Justification

Some words this chapter uses

Cessation of work means stopping work that is being done.

Concerted means agreed and acting together. A single worker who refuses to work is not on strike; he is in breach of contract.

In combination means as a body, by agreement, as opposed to individually and coincidentally.

Common understanding covers an agreement that is not formally made: workers need not vote or sign anything.

Public utility service was the category to which the old notice requirement was confined. The Code has abandoned the distinction for the purposes of section 62.

Go-slow is working deliberately below normal capacity. It is not a cessation of work and so is not a strike within section 2(zk), though it may be misconduct under standing orders.

Gherao is the physical blockade defined by the Calcutta High Court in Jay Engineering Works. It is not a strike; it is a set of offences.

Section 2(zk): what a strike is

A strike means:

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

and includes the concerted casual leave on a given day by fifty per cent. or more workers employed in an industry.

Take the elements one at a time, because each of them has been litigated.

There must be a stoppage or a refusal. Working badly is not a strike. A go-slow is not a cessation of work and does not fall within the definition, though it will usually be misconduct under the establishment's standing orders and may be an unfair labour practice.

It must be concerted, in combination, or under a common understanding. All three expressions point at the same requirement: the workers must be acting together. One worker who walks out is in breach of his contract of employment and nothing more.

"Any number of persons", in the second and third limbs, is deliberately wide. There is no minimum in those limbs.

"Who are or have been so employed" brings in workers already dismissed. A refusal by dismissed workers to accept employment can be part of a strike.

"Or to accept employment" covers a refusal to take up work as well as a refusal to continue it, so a refusal to work overtime that has been lawfully required, acting in combination, is within the words.

The new limb: mass casual leave

The closing words are new to Indian law and they close a familiar avoidance route.

The tactic they answer is the "mass casual leave" or "sick-out". Workers who wished to stop work without calling a strike, and so without giving notice and without risking illegality, would simply all apply for casual leave on the same day. Each application looked individual. The plant stopped anyway.

Section 2(zk) now provides that the concerted casual leave on a given day by fifty per cent. or more workers employed in an industry IS a strike. Two conditions: it must be concerted, and it must be fifty per cent. or more. Below that figure, or genuinely uncoordinated, it is not a strike within this limb.

The consequence is severe and should be stated plainly. If it is a strike, then section 62 applies to it, and mass casual leave taken without sixty days' notice is an illegal strike under section 63, with the penalties in section 86 following.

Section 62: when a strike is prohibited

Section 62(1): no person employed in an industrial establishment shall go on strike, in breach of contract:

• (a) without giving to the employer notice of strike, within sixty days before striking; or
• (b) within fourteen days of giving such notice; or
• (c) before the expiry of the date of strike specified in any such notice; or
• (d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings; or
• (e) during the pendency of proceedings before a Tribunal or a National Industrial Tribunal and sixty days after the conclusion of such proceedings; or
• (f) during the pendency of arbitration proceedings before an arbitrator and sixty days after, where a notification has been issued under section 42(5); or
• (g) during any period in which a settlement or award is in operation, in respect of any of the matters covered by it.

The change that matters most

Read the opening words: "no person employed in an industrial establishment".

Under the repealed Industrial Disputes Act 1947 the notice requirement in section 22 applied only to public utility services, a defined category covering railways, transport, postal services, water, power, sanitation and the like. In an ordinary factory a strike could be called without any notice at all, and section 23's prohibitions were limited to periods when settlement machinery was actually running.

The Code abolishes that distinction for section 62. Sixty days' notice, and the fourteen-day wait, now apply in every industrial establishment.

That is the single most important thing in Module III, and a student who writes that notice is required only in public utility services is answering a repealed Act.

Working the timetable

The four periods in clauses (a) to (c) fit together and a diagram in words helps.

The notice must be given within sixty days before striking. So a notice is a live notice for sixty days; strike later than that and you are striking without a valid notice.

The strike may not begin within fourteen days of giving the notice. That is the cooling period.

The strike may not begin before the date specified in the notice. So a notice that names a date binds the union to it as an earliest date.

Putting them together: the strike must begin no earlier than fourteen days after the notice, no earlier than the date specified in it, and no later than sixty days after it. That leaves a window, and the window is the point: it is long enough to permit real negotiation and short enough that a stale notice cannot be used to strike months later over a dispute that has moved on.

The four "machinery running" prohibitions

Clauses (d) to (g) all say the same thing in different settings: while somebody is trying to settle this, do not strike about it.

Note the asymmetry between seven and sixty days, because MU can ask it directly. Conciliation carries a seven-day tail; adjudication and notified arbitration carry sixty. The reason is that a conciliation that has failed has produced nothing binding, so the parties are quickly back where they started; an award, by contrast, is about to become enforceable under section 55(3) after thirty days, and the longer tail keeps the peace while that happens.

And clause (f) has a condition. The prohibition during arbitration applies only where a notification under section 42(5) has been issued, that is where the Government has been satisfied that those referring represent the majority of each party and has opened the arbitration to everybody concerned. A purely private arbitration between two parties does not stop everybody else from striking.

Clause (g) is limited to the subject matter. A settlement or award in operation bars a strike in respect of any of the matters covered by it. A strike about something the settlement does not cover is not caught.

Sub-sections (3) to (6): the administrative provisions

62(3): notice is not necessary where a strike or lock-out is already in existence, but the employer shall send intimation of it, on the day it is declared, to the authority specified by the appropriate Government.

62(4) and 62(5): the notice of strike is given by such number of persons, to such persons, and in such manner as prescribed; the notice of lock-out in such manner as prescribed.

62(6): an employer who receives a strike notice, or gives a lock-out notice, shall within five days report to the appropriate Government or the prescribed authority and to the conciliation officer the number of such notices received or given on that day.

Sub-section (6) is what connects Chapter VIII to conciliation. The conciliation officer learns of the notice, and under section 53(1) his duty to conciliate is triggered by it; under the first proviso to section 53(5) he must then report within fourteen days, which is exactly the length of the cooling period. The two Chapters are timed to each other.

Section 63: when a strike is illegal

63(1): a strike or lock-out shall be illegal if it is:

• (i) commenced or declared in contravention of section 62; or
• (ii) continued in contravention of an order made under section 42(7).

63(2): where a strike or lock-out in pursuance of an industrial dispute has already commenced and is in existence at the time of the filing of the application in the Tribunal, or the reference to an arbitrator or National Industrial Tribunal, its continuance shall not be deemed illegal, provided it was not illegal at its commencement and its continuance was not prohibited under section 42(7).

63(3): a lock-out declared in consequence of an illegal strike, or a strike declared in consequence of an illegal lock-out, shall not be deemed to be illegal.

Sub-section (2) prevents a trap. Workers strike lawfully. The employer then files an application in the Tribunal. Without sub-section (2) the strike would become illegal the moment the application was filed, because clause (e) of section 62(1) forbids a strike during the pendency of Tribunal proceedings. The sub-section preserves a strike that was lawful when it began.

Sub-section (3) is the reciprocity rule and it is a favourite question. If the employer declares an illegal lock-out, a strike declared in consequence of it is not illegal; and the converse. A party cannot break the law and then rely on the other side's response as a breach.

Section 64: no money for an illegal strike

No person shall knowingly spend or apply any money in direct furtherance or support of any illegal strike or lock-out.

Three elements. The person must act knowingly; the money must be spent or applied in direct furtherance or support; and the strike or lock-out must be illegal. Supporting a lawful strike from union funds is not caught, and indeed is one of the ordinary objects of a union's general fund under section 15.

This section pairs with the immunities in Module I. Section 16 protects a registered union from a civil suit founded only on the three listed grounds, and section 17 from a charge of conspiracy for an agreement furthering a section 15 object. Neither protects a person who knowingly funds an illegal strike, because section 64 prohibits it outright.

Legality and justification: two different questions

MU's topic names both, and the commonest way to lose marks is to answer one and think you have answered both.

The four combinations are all possible and an examiner will test them.

Legal and justified. Proper notice, waiting periods observed, a genuine demand the employer has refused to discuss. The strongest position.

Legal but unjustified. Every formality observed, but the demand is extravagant or the employer had already conceded it. The strike is not unlawful, but the workers may recover nothing for the period.

Illegal but justified. The grievance is real and perhaps grave, but the workers struck without notice. Rohtas Industries Ltd. v. Rohtas Industries Staff Union, AIR 1976 SC 425, worked in [Immunity from Civil Suit], is the case to cite here: the strike was illegal, and the employers still could not recover their lost profits, because the tort of conspiracy requires the object of the combination to be the infliction of damage on the plaintiff, and an illegal strike is the creation of the statute so that the remedy for it must be sought within the statute. Illegality is not a licence to sue.

Neither legal nor justified. No notice, no genuine grievance. The workers are exposed to the penalties in section 86 and to the loss of wages, and anyone who funded it is caught by section 64.

What a strike is not

A go-slow is not a strike. There is no cessation of work, so the definition in section 2(zk) is not satisfied. It is ordinarily misconduct under the certified standing orders, item 9 of the First Schedule.

A gherao is not a strike. On Jay Engineering Works Ltd. v. State of West Bengal, AIR 1968 Cal 407, worked in [Immunity from Criminal Conspiracy], a gherao is a physical blockade of a target by encirclement or forcible occupation, invariably accompanied by wrongful restraint or wrongful confinement, whose object is to compel those who control industry to submit without recourse to the machinery provided by law. The Court held that the statutory immunity is "of a limited nature" and that there is nothing which, apart from immunity from criminal conspiracy, gives immunity from any criminal offence; wrongful restraint and wrongful confinement are not saved. A gherao is a set of offences, not a form of industrial action.

A lock-out is not a strike. It is the employer's counterpart, defined in section 2(u), and is the subject of the next chapter.

A worked example

The facts. A packaging plant in Wada, 1,200 workers. The union demands a revision of the night-shift allowance. The employer refuses. Consider six variations.

One: the union serves notice of strike on 1 June and the workers stop work on 20 June. Check the timetable. Notice given within sixty days before striking, so clause (a) is satisfied. Nineteen days have passed, so the fourteen-day wait in clause (b) is over. If the notice named 20 June or an earlier date, clause (c) is satisfied. Provided no conciliation, Tribunal or notified arbitration proceeding is pending and no settlement or award covering the allowance is in operation, the strike is legal.

Two: the same notice, but the workers stop work on 10 June. Illegal. Only nine days have passed, and clause (b) forbids a strike within fourteen days of the notice.

Three: the same notice, and the workers stop work on 15 August. Illegal. Clause (a) requires the notice to be given within sixty days before striking, and more than sixty days have run, so there is no valid notice.

Four: proper notice, but on 5 June the conciliation officer begins conciliation, which fails on 18 June, and the workers strike on 20 June. Illegal. Clause (d) forbids a strike during conciliation and seven days after its conclusion. The seventh day after 18 June has not passed.

Five: no notice at all, but on 3 June the employer declares a lock-out without notice. The lock-out is illegal under section 63(1)(i). A strike declared in consequence of that illegal lock-out is, by section 63(3), not deemed illegal.

Six: instead of striking, 700 of the 1,200 workers apply for casual leave on the same day, having agreed among themselves to do so. Seven hundred is more than fifty per cent. of 1,200. Under the closing words of section 2(zk) this concerted casual leave is a strike. No notice was given, so it is an illegal strike under section 63(1)(i), and the penalties in section 86 apply.

Now a consequence question. The employer sues the union for the profits lost during the illegal strike in variation two. On Rohtas Industries the claim fails: the tort of conspiracy requires that the object of the combination be the infliction of damage on the plaintiff, and where the object is a wage demand there is no actionable combination; and an illegal strike is the creation of the statute, so the remedy must be sought within it. Section 16 separately bars a suit founded only on inducement of a breach of a contract of employment or interference with trade or business.

And a funding question. A federation sends the union two lakh rupees to support the strike in variation two, knowing it began without notice. Section 64 prohibits knowingly spending or applying money in direct furtherance or support of an illegal strike.

What this does NOT mean

It does not mean strikes are prohibited. Section 62 regulates their timing; it does not forbid them.

It does not mean notice is required only in public utility services. That was the position under section 22 of the repealed Act. Section 62 applies to every industrial establishment.

It does not mean an illegal strike is a crime for everyone involved. The consequences are the penalties in section 86, the loss of protection, and the prohibition on funding it in section 64.

It does not mean an illegal strike lets the employer sue for his losses. Rohtas Industries holds the opposite.

It does not mean a lawful strike becomes illegal when the employer files a Tribunal application. Section 63(2) preserves a strike that was lawful when it commenced.

It does not mean a go-slow is a strike. There is no cessation of work.

It does not mean casual leave is always a strike. Only concerted casual leave, on a given day, by fifty per cent. or more of the workers.

Limits, criticism and amendments

The extension of the notice requirement to every industrial establishment is the most criticised provision in the Code, and the argument is straightforward on both sides. Employers say a stoppage without warning is disproportionately damaging and that sixty days' notice simply gives the settlement machinery a chance. Unions say the requirement makes a lawful spontaneous strike impossible, that fourteen days is ample time for an employer to prepare, engage substitutes or shift production, and that in practice the provision converts most real industrial action into illegal action.

The mass casual leave limb is defended as closing an obvious evasion and attacked as capturing coincidence. The word "concerted" is the safeguard, but proving or disproving concert where five hundred people fall ill in a week is not straightforward, and the burden in practice falls on the workers.

The seven-day and sixty-day tails are long, particularly the sixty days after Tribunal proceedings conclude, and taken with clause (g)'s bar during the operation of a settlement or award they leave long periods in which no lawful strike is possible.

And the Code, like the Act before it, gives the worker no positive right to strike. All India Bank Employees' Association settles that the Constitution does not supply one. What section 62 leaves unprohibited is the whole of it.

Quick revision

• Section 2(zk): cessation of work by a body acting in combination, or a concerted refusal, or a refusal under a common understanding, to continue to work or to accept employment; includes concerted casual leave on a given day by fifty per cent. or more workers.
• Section 62 applies to EVERY industrial establishment, not only public utility services.
• 62(1): no strike in breach of contract (a) without notice within sixty days before striking; (b) within fourteen days of the notice; (c) before the date specified; (d) during conciliation and seven days after; (e) during Tribunal or National Industrial Tribunal proceedings and sixty days after; (f) during notified arbitration under section 42(5) and sixty days after; (g) during the operation of a settlement or award on matters it covers.
• 62(3): no notice needed where a strike or lock-out already exists, but the employer intimates on the day it is declared. 62(6): the employer reports within five days to the Government and the conciliation officer.
• 63(1): illegal if commenced or declared in contravention of section 62, or continued in contravention of a section 42(7) order. 63(2): a strike lawful at its commencement does not become illegal because an application is later filed. 63(3): a lock-out in consequence of an illegal strike, or a strike in consequence of an illegal lock-out, is not illegal.
• 64: no person shall knowingly spend or apply money in direct furtherance or support of an illegal strike or lock-out.
• Legality is section 63; justification is the merits. All four combinations are possible.
• Rohtas Industries, AIR 1976 SC 425: an illegal strike does not let the employer recover his lost profits. Jay Engineering Works, AIR 1968 Cal 407: a gherao is not industrial action but a set of offences. All India Bank Employees' Association, AIR 1962 SC 171: no constitutional right to strike.

Test yourself

1. Define a strike under the Code. Section 2(zk) defines it 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, and as including the concerted casual leave on a given day by fifty per cent. or more workers employed in an industry.

2. When is a strike illegal? Under section 63(1) a strike is illegal if it is commenced or declared in contravention of section 62, or continued in contravention of an order made under section 42(7). Section 62(1) prohibits a strike in breach of contract without notice given within sixty days before striking, within fourteen days of that notice, before the date of strike specified in it, during conciliation proceedings and seven days after their conclusion, during proceedings before a Tribunal or National Industrial Tribunal and sixty days after, during arbitration proceedings and sixty days after where a notification under section 42(5) has issued, or during the operation of a settlement or award in respect of matters covered by it.

3. What is the most important change section 62 makes to the previous law? It applies to every industrial establishment. Under section 22 of the repealed Industrial Disputes Act 1947 the notice requirement applied only to public utility services, so in an ordinary factory a strike could be called without any notice at all. Sixty days' notice and the fourteen-day cooling period are now general, which makes a lawful spontaneous strike impossible anywhere.

4. Six hundred of a plant's one thousand workers agree to take casual leave on the same day and the plant stops. Is that a strike? Yes. The closing words of section 2(zk) include within the definition the concerted casual leave on a given day by fifty per cent. or more workers employed in an industry, and six hundred of a thousand is sixty per cent. Since it is a strike, section 62 applies to it, and as no notice was given it is an illegal strike under section 63(1)(i), attracting the penalties in section 86. Had the leave been genuinely uncoordinated, or below half the workforce, the limb would not apply.

5. Distinguish the legality of a strike from its justification. Legality is a question under section 63 read with section 62 and turns entirely on the timetable and the machinery: whether notice was given within sixty days, whether the fourteen-day wait was observed, whether the date specified had arrived, and whether any conciliation, adjudication, notified arbitration, settlement or award was running. Justification is a question on the merits, decided by the adjudicating forum, and turns on the justness of the demand, the conduct of the employer, whether other remedies were tried and the means used. The two are independent: a strike may be legal but unjustified, or illegal but justified, and the consequences differ, illegality attracting the penalties in section 86 while justification bears on wages for the strike period and on the relief granted.

6. The employer declares a lock-out without notice, and the workers then strike without notice. Is the strike illegal? No. The lock-out is illegal under section 63(1)(i) because it was declared in contravention of section 62(2). Section 63(3) provides that a strike declared in consequence of an illegal lock-out shall not be deemed to be illegal, and correspondingly that a lock-out declared in consequence of an illegal strike is not illegal. A party cannot break the law and then rely on the other side's answering conduct as a breach.