UNIVERSITY INSTITUTE OF LEGAL STUDIES

PANJAB UNIVERSITY,CHANDIGARH

The Project Report On Topic

STRIKE AND LOCKOUT

Is Submitted As Per The Curriculum Of B.com LLB (Hons.) In

the Subject Of

LABOUR LAW

SUBMITTED TO: SUBMITTED BY:

MS. SHALLU IMAN SINGLA
ROLL NO: 236/20
SEMESTER- 9
B.COM LLB (SEC-D)

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 ACKNOWLEDGEMENT
The success and final outcome of this project required a lot of
guidance and assistance from many people and I am extremely
fortunate to have got this all along the completion of my project
report. Whatever I have done is only due to such guidance and I
would never forget to thank them.

I take this opportunity to record deep sense of gratitude to my teacher

MS. SHALLU , University Institute of Legal studies, Chandigarh for her
perfect unmatched guidance, encouragement, valuable suggestions
and efforts made during the preparation of this project and during her
lectures which enabled me to complete this project successfully on the
topic.

STRIKE AND LOCK OUT

I owe my regards to the entire faculty of the Department of Legal

Studies, from where I have learnt the basics of Law and whose
informal discussions, intellectual support helped me in the entire
duration of this work.

IMAN SINGLA
ROLL NO: 236/20
SEMESTER-9
B.COM LLB(SEC-D)

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 INDEX
 INTRODUCTION…………………………………………4
 STRIKE…………………………………………………....4
 CAUSES OF STRIKE…………………………………….6
 TYPES OF STRIKE……………………………………....6
 RIGHT TO STRIKE NOT A FUNDAMENTAL
RIGHT…………………………………………………….7
 LOCK OUT………………………………………………..9
 CAUSES OF LOCK OUT………………………….……10
 PROHIBITION OF STRIKE AND LOCK OUT……..…11
 ILLEGAL STRIKE AND LOCK OUT………………….14
 PENALITIES…………………………………………….17
 ILLEGAL STRIKE CANNOT BE JUSTIFIED…………18
 DIFFERENCES………………………………………….20
 CONCLUSION……………………………………..……21
 BIBLIOGRAPHY…………………….………………….22

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INTRODUCTION
Strike and lock-out are two powerful weapons in the hands of the workers and the employers.
Strike signifies the suspension or stoppage of work by the worker while in case of lock-out the
employer compels persons employed by him to accept his terms or conditions by shutting down
or closing the place of business. Strike is recognized as an ordinary right of social importance
to the working class to ventilate their grievances and thereby resolve industrial conflict.

Skillful use of these weapons, whether threatened or actual, may help one party to force the
other to accept its demand or at least to concede something to them. But reckless use of them
results in the risk of unnecessary stoppage of work hurting both parties badly creating worse
tensions, frictions and violations of law and order. From the point of view of the public, they
retard the nation’s economic development. India cannot tolerate frequent stoppage of work for
frivolous reasons that often accompany it.

For these reasons, the Industrial Disputes Act seeks to regulate and restrict strikes and
lockouts so that neither the workmen nor employers may hold the nation to ransom.

STRIKE
Section 2(q) of the Act defines "strike" as follows.-

"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
employment."

Essentials of strike

Following are the essentials of strike :-

(i) Cessation of work by a body of persons employed in any industry.

(ii) Cessation of work is an act in combination by the persons employed in any industry.

(i) Cessation of work by a body of persons employed in any industry

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Cessation of work is the essential element of strike. Cessation of work means actual stoppage
of work for any period of time. The stoppage of work even for half an hour is stoppage of
work to fall within the definition of strike if the other requirement of the definition is
fulfilled.

In Buckingham and Carnatic Company Ltd. v. Their Workmen 1 , the management did not
comply with the workmen's demand of declaring a half day holiday on the occasion of solar
eclipse. As a result, the workmen struck work for four to five hours. As it was a and the
workmen were acting case of complete cessation of work in combination and their refusal to
go back work was concerted, therefore this cessation of the definition of strike. To work was
held to be within

(ii) Cessation of work is an act in combination by the persons employed in any industry

Another essential ingredient of strike is this that stoppage of work must be with a common
intention of the workmen and that too in defiance of the authority of employers. The Supreme
Court in Buckingham and Carnatic Co. Ltd. v. Their Workmen, held as follows:

If a number of employees stay away from work in pursuance of an understanding they have
previously come to, there would be a strike, but if they keep away because all of them happen
to have been suddenly taken ill by a wave of fever of dysentery for instance there would be
no strike"

In Standard Vaccum Oil Co.'s case 2 , to celebrate "May day", the workmen wanted the
management to declare first May a holiday. On refusal by the management to declare first of
May as a holiday, the workmen applied for leave en masse by putting in individual leave
application. In this case, as the conduct of the workmen was not in defiance of authority of
management, the stoppage of work was not held to be a strike. On the contrary, if the
management rejects the individual applications en masse put in by the workmen, and the
workmen do not report to work, then this act of the workmen amounts to strike.

1
AIR 1953 SC 47
2
Standard Vaccum Oil Co., Madras v. Gunaseelam, M.G., (1954) 1 LLJ 1956.

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Causes of Strikes:-
In the early history of labour troubles the causes of strikes were few. They arose chiefly from
differences as to rates of wages, which are still the most fruitful sources of strikes, and from
quarrels growing out of the dominant and servient relations of employers and employees.
While labour remained in a state of actual or virtual servitude, there was no place for strikes.
With its growing freedom "conspiracies of workmen" were formed, and strikes followed.

The scarcity of labor in the fourteenth century, and the subsequent attempts to force men to
work at wages and under conditions fixed by statute, were sources of constant difficulties,
while the efforts to continue the old relation of master and servant with its assumed rights and
duties, a relation law recognizes to this day, were, and still are, the causes of some of the
most bitter strikes that have ever occurred.

Strikes are caused by differences as to7:

 Rates of wages and demands for advances or reductions i.e. Bonus, profit sharing,
provident fund and gratuity.
 Payment of wages, changes in the method, time or frequency of payment;
 Hours of labour and rest intervals;
 Administration and methods of work, for or against changes in the methods of work or
rules and methods of administration, including the difficulties regarding laborsaving
machinery, piece-work, apprentices and discharged employees;
 Trade unionism.
 Retrenchment of workmen and closure of establishment.
 Wrongful discharge or dismissal of workmen.

TYPES OF STRIKE
There are mainly three kinds of strike, namely general strike, stay-in-strike and go slow.

A. General Strike: It means a strike by members of all or most of the unions in a region or
an industry. It may be a strike of all the workers in a particular region of industry to force
demands common to all the workers. These strikes are usually intended to create political

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pressure on the ruling government, rather than on any one employer. It may also be an
extension of the sympathetic strike to express generalized protest by the workers.

B. Sit down Strike: In this case, workers do not absent themselves from their place of work
when they are on strike. They keep control over production facilities. But do not work. Such
a strike is also known as 'pen down' or 'tool down' strike. Workers show up to their place of
employment, but they refuse to work. They also refuse to leave, which makes it very difficult
for employer to defy the union and take the workers' places. In June 1998, all the Municipal
Corporation employees in Punjab observed a pen down strike to protest against the non-
acceptance of their demands by the state government.

C. Slow Down Strike: Go-slow is yet another form of industrial protest in which workmen
do not stop the work but deliberately slow-down the process of production in order to cause
loss of production to the employer. It must be noted that there is no cessation of work at all,
and in fact, workmen pretend themselves as engaged in doing their work.

D. Hunger strike: It is one of the painful strikes by the strikers where workers go on strike
without having food/water to redress their grievances. The employees of Kingfisher Airlines
went on hunger strikes for salary dues for several months. The employees undertake fasting
by abstaining from both food and work as a means of protest in a hunger strike. Since there is
a cessation of work due to employees' participation in the fast, it is viewed as a strike. The
purpose of such a hunger strike is to put forward their grievance to the employers and get the
attention of the government and the general public to the cause of the strike. It is non-violent
and is not strictly a strike under the Industrial Disputes Act of 1947. In a hunger strike, there
is not necessarily a cessation of work. But when a hunger strike usually results in their
cessation or suspension of work, then it would of course constitute a strike.

RIGHT TO STRIKE NOT A FUNDAMENTAL RIGHT

Article 19(1)(A) of the Indian Constitution gives to the citizens of India "the right to freedom
of speech and expression" Freedom of speech and expression means that right to express
one's own conviction and opinion freely by words of mouth, writing, printing, pictures or any
mode. This is an important right for a worker as due to this fundamental right, he may
express his views and ideas against the inhuman treatment given to him by his employer as
well as against any other form of his victimisation by his employer or against any other unfair

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labour practice followed by his employer. In Kameshwar Singh v State of Bihar 3, it was held
that:

"Demonstration and picketing are visible manifestation of one's idea and in effect a form of
speech and expression. However, to enjoy the freedom under Article 19(1)(A) the
demonstration or picketing must not be violent and disorderly. In Raj Narain v. State of
U.P. 4 , it was held that "Picketing which does not go beyond the limit of persuasion or
inducement and which does not restrain others from doing what they please would be saved
under the Article. Reasonable restriction may be imposed on the fundamental right to
freedom of speech and expression on the grounds mentioned under clause (2) of Article 19".
However, in All India Bank Employees' Association v. National Industrial Tribunal, it was
held that right to go on strike is not included within ambit of the freedom of speech and
expression.

Article 19(1)(c) guarantees the citizens of India ‘right to form associations and unions’.
However, clause (4) empower the state to impose on the grounds of sovereignty, integrity of
India, public order of morality to form association or union includes the fundamental right
not to be a member or continue to be a member of an association or union.

As early as in 1963 in All India Bank Employees' Association v. National Industrial

Tribunal, 5 it was held that right to go on strike is not included within the ambit of the
freedom of speech and expression under Article 19(1)(A) the Indian Constitution. Delivering
a strict judgment against the workers right to strike in T.K. Rangrajan v. Government of
Tamil Nadu6, Division of the Supreme Court, comprising M.B. Shah and A.R. Lakshmanan,
JJ. Held that the government employees have no "fundamental, legal, moral or equitable right
to go on strike even for a just cause

3
AIR 1963 SC 1166.
4
AIR 1961 All
5
AIR 1962 SC 171.
6
AIR 2003 SC 3032

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LOCK-OUT
Definition:

“Lock-Out” has been defined in section 2 (1) to mean 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.

Background:

India witnessed lock-out twenty-five years after the "lock-out" was known and used in the
arena of labour management relations in industrially advanced countries. The first known
lock-out was declared in 1895 in Budge Budge Jute Mills12.

Meaning:

Strike is a weapon in the hands of the labour to force the management to accept their
demands. Similarly, Lock-Out 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.

Lock-Out is the keeping of labour away from works by an employer with a view to resist
their claim.

There are four ingredients of Lock-Out:-

(1) (i) temporary closing of a place of employment by the employer, or

(ii) suspension of work by the employer, or
(iii) refusal by an employer to continue to employ any number of persons employed by
him;

2. The above mentioned acts of the employer should be motivated by coercion.

3. An industry as defined in the Act; and

4. A dispute in such industry.

Lock-Out has been described by the Supreme Court as the antithesis of strike.

Shri. Ramchandra Spinning Mills v/s State of Madras

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Held: If the employer shuts down his place of business as a means of reprisal or as an
instrument of coercion or as a mode of exerting pressure on the employees or generally
speaking when his act is what may be called an act of belligerency there would be a lock out.

In case of Lock-Out the workmen are asked by the employer to keep away from work, and,
therefore they are not under any obligation to present themselves for work. So also LockOut is
due to and during an industrial dispute.

Causes:
A lockout is generally used to enforce terms of employment upon a group of employees
during a dispute. A lockout can act to force unionized workers to accept changed conditions
such as lower wages. If the union is asking for higher wages, or better benefits, an employer
may use the threat of a lockout or an actual lockout to convince the union to back down.13

Lock-Outs may be caused by internal disturbances, when the factory management goes in to
financial crisis or got succumbed into financial debts, disputes between workers and workers,
disputes between workers and management or may be caused by ill treatment of workers by
the management. Sometimes lockouts may be caused by external influences, such as
unnecessary political parties involvement in management of workers, union may be provoked
for unjustified demands that may be unaffordable by the management, which may ultimately
lead to lockout of the factory.14

 Disputes or clashes between workers and the management.

 Unrest, disputes or clashes in between workers and workers.
 Illegal strikes, regular strikes or continuous strikes by workers.
 Continuous or accumulated financial losses of factory or industry.
 If any company involves in any fraudulent or illegal activities.
 Failure in maintaining proper industrial relations, industrial peace and harmony.

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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

11
months, at anyone time, if in the opinion of the appropriate Government, public emergency or
public interest requires such extension.

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

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

(A) Specific prohibition of strikes and lock-outs in public utility services

(Section 22)

(1) 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 such person or persons and in
such manner as may be prescribed.

(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

(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.

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(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 days of receiving such notice. Similarly, if appropriate Government within
five lock-out to any person employed by him, he must give report of the notice of employer
gives a 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 7, the 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 case 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 specifies such
authority either generally or for a particular area or for a particular class of public utility
service.

(B) 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-

7
AIR 1997 SC 585

13
“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 of such proceedings; conclusio

(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, the strike comment during the pendency of conciliation proceedings has been
held illegal by the Supreme Court”.

In Management of India Radiators Ltd. v. Presiding Officers 8, 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:

(1) 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.

8
2003 II LLJ 615 MAD.

14
(1) 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(1)(1) 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 seven days after the
conclusion of such proceedings, Board and

(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.

According to Section 24(1)(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:

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"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."

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
(1) 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.

Protection of person refusing to take part or to continue to

take part in an illegal strike or lock-out (Section 35)

16
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 section 35, be subject to expulsion from any trade union or society,
or to any fine or 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, eithe
rdirectly 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.

(1) 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 Sanyukt
Karmachari Sangh v. U.P. State Bridge Corporation, Lucknow 9 , held that "admittedly a
person on strike, be legal or illegal can never be treated to be absent. If he is treated to be

9
1999 II LLJ 1219(All)

17
absent, in that event the very concept of strike itself would lose its significance and root of
the principle of collective bargaining permitted under the Industha 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
otherwise acts in furtherance of, a illegal under the Act, is punishable with: strike or lock -out
which is

(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 Workmen 10
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 is wholly
misconceived, specially in the case of public utility service.

10
AIR 1960 SC 219

18
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. Kelawala 11, 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."

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.

Workmen's claim for wages for legal and justified strike

The Supreme Court in T. S. Kelawala's case" held that both legal as well as illegal strike
invite deduction of wages. The Supreme Court in T. S. Kelawala 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, 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 the strike is both legal and justified.

In Syndicate Bank v. Umesh Nayak12, the Supreme Court had reiterated its earlier judgment
given in 1978 in Crompton Greaves v. Their Workmen. 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

11
(1990) 45 SC 744
12
1994 SCC (5) 572

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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.

DIFFERENCE BETWEEN STRIKE AND LOCK OUT

So far we have understood the basic meaning of these two terms, now we will talk about the
difference between strike and lockout:

 Strike implies the stoppage of work by an association of workmen, working in an

industry, as they collectively refuse to work under a common understanding, to show
grievance or to compel the management to fulfil their demands. As against, Lock -Out
is the opposite of strike, as it is initiated by the company’s management, which results
in psychological pressure on the workmen, to accept the terms and conditions of the
management or ready to bear the consequences of the closure of the unit.
 The strike involves an organized and united withdrawal of the supply of labour,
whereas, Lock-Out involves withholding the demand of labour.
 The strike is a tool in the hands of workers to bend the employer in their favour. As
against, Lock-Out is the tool in the hands of management to restrict the militant spirit
of the workers.
 Lock-Out is a tactic used in bargaining, which aims at compelling the workers to
agree and accept the terms and conditions related to the employment, imposed by the
management. On the other hand, the strike is a union power tactics as it is called upon
and supported by the labour or employee union.
 The main objective of the strike is to seek redressal of the grievance, promote and
protect their rights and interest and also attain fulfilment of their demands, related to
employment. In contrast, Lock-Out aims at gaining an advantage by inflicting
proprietary rights over the workers.

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  The strike is resorted to by the workers to initiate or resist change in their working
conditions. Conversely, Lock-Out is resorted to by the management to force
employees to return to work.

CONCLUSION
Though under the Constitution of India, the right to strike is not a fundamental right as such,
it is open to a citizen to go on strike or withhold his labour. It is a legitimate weapon in the
matter of industrial relations. In both lock-out and strike, a labour controversy exists which is
deemed intolerable by one of the parties, but lock-out indicates that the employers rather than
the employees have brought the matter in issue. Strike may be justified or unjustified, legal or
illegal.

It depends on the circumstances of each case. It is usually associated with collective

bargaining by workers and is permissible under Industrial dispute Act, 1947. Lock -out is a
weapon of coercion in the hands of the employer with a motive to coerce the workmen which
is due to an industrial dispute and continues during the period of dispute. However strikes and
lock-outs are prohibited during the pendency of conciliation adjudication and arbitration
proceedings.

Strikes are said to be revolutionary as it seeks to obtain better living conditions for the
workers who form the majority in the industrial community. Better wages, better homes and
healthy living condition better education—these are the healthy objectives for the attainment
of which labour resorts to strikes. Hence, strikes may justly be described as contributing
towards a revolutionary process in man's progress towards social order. 'Lock -outs', on the
contrary, are reactionary by any measures; because their object is to frustrate this progressive
tend in human affairs.

To hold down wages to a minimum, workers denied of equal opportunities for the education
of their children, and no savings to fall back upon in evil times, is surely unjustifiable, and
may be rightly called reactionary. A strike signals the transfer of power from the employer to
the union. While the employer has a right to employ and retrench workers, in the case of a
strike, the right to not come to the place of work is with the union. This transfer of right also
means higher bargaining power for the union. A strike is also used by the union to unite its
members and send a strong signal to the management. In this case, strike also becomes an

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effective tool for the union to regain any lost support among the workers. A lockout declared
because of the poor financial condition of the company has an obvious advantage for the
employer because it lets him cut his financial losses.

During this period, an employer does not have to pay the labour costs and other variable
costs. However A lockout is the last step an employer would take. This is because a lockout
means loss of production, which in turn means financial losses for the company. So except it
is a case of financial distress, the employer would like to continue working. A lockout also
means deterioration in the relationship between the employer and the union/workmen. If the
workmen decide to contest the reasons on which the employer has declared a lockout, there
are chances that the employer might have to end up paying wages for the period of lockout
along with other benefits which will have a huge financial implication on the company.

BIBLIOGRAPHY
 Chaturvedi S. M.
Labour and Industrial Laws
Thirteenth Edition, Central Law Agency.
 Dr. Singh Avtar
Introduction to Labour and Industrial Law
Second Edition 2008, Lexis Nexis Butterworths Wadhwa Nagpur.
 Mishra S. N.
Labour and Industrial Law
24th Edition, Central Law Publications.
 Pillai K. M
Labour and Industrial Laws
11th Edition 2007, Allahabad Law Agency.
 www.econlib.org
 www.legalserviceindia.com

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