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:
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
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 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.
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
[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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