Strikes and Lockouts in Labour Laws.(Industrial Disputes Act)

 


 INTRODUCTION

The right to strike by workers is a well-recognised weapon available to them to settle their differences with the management and force the management to accept their demands. In our day-to-day lives also, we often see news regarding worker unions resorting to strikes so that their demands about their working conditions, for example, wages, benefits, holidays etc, are accepted by their employer.

Lockout is the antithesis of strike. Strike is a weapon in the hands of the labour to force the management to accept their demands. Similarly, lockout is a weapon in the hands of the management to coerce the labour to come down in their demands relating to the conditions of employment. As in the case of a strike so also in the case of a lockout, there is no severance of the relationship of employer and employee.

Section 2(l) of the ID Act defines lock-out as follows:

“Lock-out means the temporary 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.”

This definition has the following three ingredients of a lockout:

Temporary closing of a place of employment; or

suspension of work, or

refusal to continue to employee any number of persons employed by the employer.

 

Prohibition of Strikes and Lockouts in Public Utilities

 

Section 22 of the Act deals with the prohibition of Strikes and lockouts in industries carrying public utility service. The Strikes and lockouts in public utility services are not absolutely prohibited but certain conditions are to be fulfilled by the workmen before resorting to strike or by the employers before resorting to a lockout. The intention of the legislature in enacting the section was to provide sufficient safeguards in matters of public utility services, otherwise it would result in great inconvenience to the general public and the society.

Strike in a public utility can take place only when 6 weeks notice has been served and 14 days have expired after serving the notice. According to Section 22(3), a notice of strike (within 6 weeks before striking) is not necessary when there is already a lock-out in existence in the public utility concerned.



Further, the employee should not go on strike before the expiry of the date of the strike during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings. Any strike commenced in contravention of these provisions would be illegal.

Section 22 (2) lays down similar conditions which an employer must fulfil before resorting to lock-out. It provides that,

“No employer carrying on any public utility service shall lockout any of his workmen-

·        without giving them notice of lockout as hereinafter provided, within 6 weeks before locking-out; or

·       within 14 days of giving such notice; or

·       before the expiry of the date of Lock-out 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.”


 

Section 22 (3) provides that no notice of lockout is necessary where there is already in existence a strike in the public utility service concerned. Further, the employer shall send intimation of lockout or strike on the day on which it is declared, to such authority as may be specified by the appropriate Government either generally or for a particular area or for a particular class of public utility services.

In Ramnagar Cane and Sugar Co. Ltd. v. Jatin Chakravarty[1] it was held that during the pendency of conciliation proceedings between a public utility concern and one of its unions, it attracts the provisions of Section 22(1)(d) to the strike declared by another unit of the same concern and makes the same strike illegal.

General Prohibition of Strikes and Lockouts

The prohibition of Strikes and lockouts contained in Section 23 is general in nature which applies to both public utility as well as to non-public utility establishments. The object of these provisions is to ensure a peaceful atmosphere to enable a conciliation or adjudication or arbitration proceeding to go on smoothly. It may be noted that conciliation proceeding before conciliation officer is no bar to a strike or Lock-out under this section.



In Chemical and Fibres of India Ltd. v. D.G. Bhoir[2] it was held that pendency of a dispute between an individual workman as such and the employer does not attract the provisions of Section 23.

In Workmen v. Motor Industries Co. Ltd[3] it was held that there is a difference between a strike envisaged by Section 23(1) in respect of matter covered by a settlement envisaged by Section 29. If the strike is in the matter not covered by the settlement, it is not an  illegal strike under Section 24 read with Section 23(3).

 

Illegal strikes and Lockouts

Section 24 provides that a strike or Lock-out in contravention of Section 22 and Section 23 is illegal. In Chandramalai Estate v. Workmen[4] it was held that an illegal strike cannot be half legitimate. The Supreme Court held that the Industrial Tribunal cannot come to the conclusion that a strike was half justified and half unjustified. The award of payment of fifty per cent of the employments for strike period was set aside.


In Management of Charukulam Tea Estate (P) Ltd. v. Workmen[5], it was held that workmen were entitled to wages for the strike period as their strike was not unjustified. It was further held in this case that the pendency of conciliation proceedings before the conciliation officer, as distinct from the board, does not render the strike illegal.

Lock-out and closure

 

A lock-out is different from discontinuance of business. Lock-out does not mean closing down of a business. It only means the closing down of the place of business. It means the suspension of work, not a discontinuance of the carrying on of the business. It means the refusal by an employer to continue to employ the persons employed by him and not the refusal by an employer to carry on any longer his business. Causes which underlie lock-out are different from those of closure. In case of closure there is no question of laying-off workers. The workers are discharged. It is, as pointed out by the Supreme Court an incontrovertible proposition that a closure of a business if it is bona fide and not a mere pretence, is well within the power of an employer making it impossible for an employee to characterise such closure as mala fide. In order that one could speak of “closure”, it should be complete in the sense that there is no work remaining to be done after the termination of the employment of the workmen.However, it need not be, and rarely is, all of a sudden and a matter of an instant, it can be and often is, in stages and spread over some time.

 

In a situation where the parties are at variance whether the employers have imposed a lock-out or have closed the establishment, it is necessary to find out what was the intention of the employer at the time when it resorted to lock-out or claims to have closed down the industrial undertaking. Lock-out is generally an employer’s response to some direct action taken by the workmen. Closure may be on account of various reasons which may have necessitated closing down of the industrial undertaking. The essence of lock-out is the refusal of the employer to continue to employ the workmen even though the business activity is not closed down nor intended to be closed down. On the other hand, closure implies closing of industrial activity as a consequence of which workmen are rendered jobless. While examining whether the employer has imposed a lock-out or has closed the industrial undertaking, it is not necessary to approach the matter from the angle that closure has to be irrevocable, final and permanent and that lock-out is necessarily temporary or for a period. Change of circumstances may encourage an employer to revive the industrial activity which was intended to be closed.

 

The duration of closure may be a significant fact to determine the intention and bona fides of an employer at the time of closure but is not decisive of the matter. Therefore, the correct approach ought to be that when it is claimed that the employer is not guilty of imposing a lock-out but has closed the industrial activity, the Industrial Court must, keeping in view all the relevant circumstances at the time of closure, decide and determine whether the closure was a bona fide one or was a device or a pretence to determine the services of the workmen. Answer to this question would permit the Industrial Court to come to a conclusion one way or the other 

 

Guiding factors in considering claim for wages

 

The position as regards the effect on the amount of wages to be awarded for the period of lock-out or strike has been tersely stated in India Marine Service Pvt Ltd[6] “In a case where a strike is unjustified and is followed by a lock-out which has, because of its long duration, become unjustified, it would not be a proper course for an industrial tribunal to direct payment of the whole of the wages for the period of the lock-out. “ … … that in a case where the strike is unjustified and the lock-  out is justified the workmen would not be entitled to any wages at all. Similarly, where the strike is justified and the lock-out is unjustified the workmen would be entitled to the entire wages for the period of strike and lock-out. Where, however, a strike is unjustified and is followed by a lock-out which becomes unjustified a case for apportionment of blame arises.”

It has been ruled that “if the strike is illegal, wages during the period will ordinarily be negatived unless considerate circumstances constrained a different course. Likewise, if the lock-out is illegal full wages for the closure period shall have to be “forked out”,”unless it is proved by the employer that an illegal lock-out was the result of such misdemeanour and misconduct of workmen as left no option to him but to declare a lock-out.

 

That would disentitle them to wages for the period of lock-out.

In between the two situations lies a grey area of twilight law. It arises when a strike is illegal and the sequel of a lock-out legal. In such a situation the Tribunal has to view the whole course of developments and not stop at examining the initial legitimacy. If one side or the other behaves unreasonably or the over-all interests of good industrial relations warrant, it would be proper exercise of judicious discretion if the Tribunal gives a direction regarding wages for the strike period so as to mete out justice, fair play and pragmatic wisdom.

 

Even if a lock-out is not justified if the workmen are also blameworthy and it is their conduct which brings about the lock-out, then there should be an apportionment of the blame between the management and the workmen. Similarly, even if a strike is illegal and the lock-out that follows becomes a legal defensive

measure, the management cannot behave unreasonably merely because the lock-out is born lawfully. If by subsequent conduct the Unions have shown readiness to resume work peacefully, refusal to re-start the industry is not right and the initial legitimacy of the lock-out loses its virtue by this blemished sequel.

 

From the decided cases three guiding factors emerge:

 

(1) a lock-out has to be judged in the light of the finding

about the object of the strike. The object may be to circumvent settlement in an amicable manner, even though the management is ready for such settlement. It is a well accepted principle that the workmen cannot resort to strike without first exhausting available avenues for achievement of their object. The conduct of workmen before going on strike may render it unjustified which may lead to a justified lock-out as it happened in the case of India Marine Service Pvt Ltd[7]

 

 (2) a lock-out has to be judged in the context of the strike being legal,

illegal, justified, or unjustified and

 

 (3) a lock-out has to be judged in the light of the behaviour of the workmen

whether lock-out was a result of use of force or violence on the part of workmen or whether lock-out was a result of a reasonable apprehension of danger to its property or fear of safety of lives of loyal workmen and

officers of the company.

 

 Principle of apportionment of blame

 

It follows from the above discussion that in dealing with the claim for wages during the period of lock-out or strike, it is incumbent on the Tribunal to apply its mind to the question of apportionment of blame between two

 and to its effect on the amount of wages to be awarded for the period of lock-out or strike—an aspect which has to be decided on the facts and circumstances of each case.

 When both parties are blameworthy

 

When the workmen and the management are equally to be blamed, the Tribunal normally awards half the wages. An examination of the decided cases reveals that when the blame for the situation is apportioned roughly half and half between the management and the workmen, the workmen are given half of the wages for

the period involved.

 

In Northern Dooars Tea Co Ltd[8], the court taking into consideration the conduct of the workmen at the relevant time, awarded half the wages for the period of lock-out after the period of total strike as the grievance felt by the workmen which led to the token strike could not be dismissed as wholly unsubstantial or unjustified. In

Management, M/s. Pradip Lamp Works[9],on a consideration of all the facts and circumstances of the case, the court directed that half the wages should be paid to the workmen for the period of lock-out.

 

In Statesman Ltd,[10] on the facts, the court upheld an award to pay half the wages to the employees as both the parties were at fault and responsible for delay in withdrawing the lock-out and the award crystalised a discretionary conclusion reached after a survey of all facts and animated by a sense of broad justice.

 

Lock-out when justified or unjustified

 

1.    Lock-out”, as a result of “stay-in-strike”[11]

The workmen staged a stay-in-strike. They came to join their duties on the next working day, but they were asked to sign a good conduct bond before resuming their duties. The workmen refused to sign the bond raising objection to the use of the words “at the instigation of others.” The management refused to give work and the question arose whether such refusal was justified or it amounted to an unfair labour practice.

On the facts of the case it was held that the lock-out was unjustified. However, in view of the financial difficulty of the company, the workmen who were kept out were awarded 50% of their respective basic wages and

dearness allowance subject to the maximum limit of 15 days’ basic wages and dearness allowance in each half

year.

 

 

2.    Lock-out as a result of a concerted action of the workmen[12]

Workmen assembled near the office during the recess period, stayed away from their work, continued to stay there till late in the evening shouting slogans, so much so that the members of the office staff and some workers who wanted to return home after the working hours were prevented from leaving the factory premises.

It was held to be a strike and, therefore, the lock-out from the following day was regarded as justified.

No notice is necessary for lock-out if a strike is illegal.

 

 

3.    Lock-out as a result of go-slow policy[13]

The workers resorted to go-slow tactics and as a result of go-slow tactics the lock-out declared by the management was justified. The workers are not entitled to any wages for the period of lock-out. Workmen were held not entitled to wages for the period of lock-out as the lock-out was necessitated by the conduct of the workmen. Go-slow is one of the most pernicious practices and has always been considered a serious type of misconduct.

 

 

4.    Lockout as a result of refusal to do additional work[14]

Refusal by workmen to do additional work consequent upon introduction of a rationalization scheme by the employer would not amount to a strike where the employer had no right in law to ask them to do such additional work.

The closure of the mill by the employers, therefore, amounted to an illegal “lock-out” and hence the workmen were held entitled to wages for the period in question.

 

 

 

Conclusion

 

India in the present context of economic development programmes cannot afford the unqualified right to the workers to strike or to the employer to lock-out. Compulsory arbitration as an alternative of collective bargaining has come to stay. The adoption of compulsory arbitration does not, however, necessarily mean denial of the right to strike or stifling of trade union movement. If the benefits of legislation, settlements and awards are to reach the individual worker, not only the trade union movement has to be encouraged and its outlook broadened but the laws have also be suitably tailored. The existing legislation and Judicial pronouncements lack breadth of vision. Indeed, the statutory definitions of strike and lock-out have been rendered worse by a system of interpretation which is devoid of policy-oriented approach and which lays undue stress on semantics. The discussion of the concepts and definition of strike has sought to establish
that legalistic consideration has frequently weighed with the court in interpreting and expounding the said statutory definition: Emphasis on literal interpretation resulted in ignoring the ordinarily understood connotation of the term strike and in encouraging undesirable activity.



[1] (1960 AIR 1012 SC = 1961 (1) LLJ 244)

[2]  1975 AIR 1660, 1975 SCR 415

[3] 1969 AIR 1280, 1970 SCR (1) 304

[4] AIR 1960 SC 902, 1960 (1) FLR 104, (1960) IILLJ 243 SC, 1960 3 SCR 451

[5] ibid

[6] India Marine Service Pvt Ltd v Their Workmen, (1963) 3 SCR 575 [LNIND 1962 SC 260] : AIR 1963 SC 528 [LNIND

1962 SC 260] : (1963) I LLJ 122.

[7] ibid

[8] Northern Dooars Tea Co Ltd v Workmen of Demdima Tea Estate, (1964) I LLJ 436 (SC): AIR 1967 SC 560 [LNIND

1963 SC 184] .

[9] Management of Pradip Lamp Works v Pradip Lamp Workers Karamcharya Sangh, (1970) 2 SCR 880 [LNIND 1969 SC 406] : (1969) 3 SCC 124 [LNIND 1969 SC 406]

[10] Statesman Ltd v Their Workmen, (1976) 3 SCR 228 [LNIND 1976 SC 5] : AIR 1976 SC 758 [LNIND 1976 SC 5] :

(1976) I LLJ 484 (SC) : (1976) 2 SCC 223 [LNIND 1976 SC 5] .

[11] India Machinery Mazdoor Union v India Machinery Co Ltd, (1956) II LLJ 408.

[12] Pipraichi Sugar Mills v Workmen, (1956) FJR 413 (LA T).

[13] Bharat Sugar Mills Ltd v Jai Singh, (1962) 3 SCR 684 [LNIND 1961 SC 306] : (1961) 2 LLJ 644 [LNIND 1961 SC 306]

[14] India Marine Service Pvt Ltd v Their Workmen, (1963) 3 SCR 575 [LNIND 1962 SC 260] : AIR 1963 SC 528 [LNIND 1962 SC 260] : (1963) I LLJ 122.


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