Introduction

Strike and temporary closure of place of employment are the last resort
actions vis a vis taken by employee and employer as means of economic
coercion.

In common parlance right to strike has been considered as the liberal

interpretation of freedom of speech and expression though it is not recognized
by Apex court till today whereas temporary closure of place of employment is
the derivative of right to close the business under the

If right to strike becomes the fundamental right then right to lockout should
also be the fundamental right.

In common parlance, strikes hampers the credibility and perception of a

company in its customer/vendor market. On the other hand, lockouts may
disrupt the inflow wages for workmen most of whom live on marginal wages
earned on daily basis. For these labors a loss of a single days pay might lead to
a considerable impact on daily life.

It is truism that in any Industrial endeavour co-operation of labour and capital is

quite essential for its success, although they have interests contrary to each other.
They have different strategies and weapons to ventilate their grievances and
safeguard their interests. These democratic weapons are known as strikes and
lock-outs. Lockout can be described as the antithesis of a strike. Just as strike is a
weapon available to employees for enforcing their Industrial demands, a lock-out
is a weapon available to the employer to persuade by a coercive process to see his
point of view and to accept his demands.

In the struggle between capital and labour, as the weapon of strike is available to
labour and is often used by it, so is the weapon of lock-out available to the
employer and can be used by him. The lockout does not necessary mean that all
production is stopped; however it ensures several benefits to the employer.
 Strike and Lockouts are the last resort actions taken by employees and employers
respectively to ensure that both get what they are demanding for. They are said to
be the last resort after conciliation measures have deemed unfruitful.

In India, right to protest is a fundamental right under Article 19 of the Constitution

of India. But right to strike is not a fundamental right but a legal right and with this
right statutory restriction is attached in the industrial dispute Act, 1947.

When and how the idea of strike came in to existence

On 14th November, 1152 BC, artisans of Royal Necropolis of Deir el-Medina

(modern day Egypt) under the rule of Pharaoh Rames III, walked off from their
duty as they were supposedly not provided with shelter and food. The Egyptians
later gave in on their demands. This marked the first ever recorded event in the
history which can be termed as a strike.

What is strike

Section 2(a) of the industrial Disputes Act defines strike as a cessation of work for
any length of time under a common understanding to put pressure on an employer
to accept their demands.

Who goes on strike

It is not defined in the Act but definition of strike suggest “Striker” must be

(a) Persons
(b) Employed
(c) In any industry
(d) To do work

The element concerted action under common understanding on the part of strikers
as an essential element of strike.

The expression “concerted action” indicates that it has been planned, arranged,
adjusted or agreed on and settled between parties acting together pursuant to some
design or scheme.
Essential elements of strike

 Who goes on strike

1. It must be a body of persons employed in any industry :- which is defined
under section 2 (j) if the establishment in which the alleged strike took place
doesn’t come within the definition of an industry it cannot be said to be a
strike.
2. Cessation of work or refusal to do work in an industry by the workmen
acting in an industry by the workmen acting in a body or in cessation:- the
common understanding to the cessation of work or refusal to do work must
be pressurize the employer to enforce their demands.
3. Concerted action: it indicates that, it must be planned, arranged, adjusted or
agreed on and settled between parties acting together pursuant to some
design or scheme.
4. The relationship of employment:-
Introduction

Restriction on strikes and lockouts

The industrial disputes Act doesn’t prohibit the right to strike or lockout rather than
restricting to serve the interest of public at large.

1. Restrictions special to public utility services:-

Section- 22(1)
Section-22(2)
 Notice
In a public utility services the strike or lockout requires a notice of not less
than two weeks and not more than 6 weeks.

What I mean to say under section 22 the strike or lock-out, as the case may
be can’t be resorted to after the expiry of 6 weeks from the date of giving
notice.
If the 6 weeks have expired and the direct action has not been resorted to
before that date, then fresh notice must be given and the party must wait for
the expiry of 14 days after which alone the strike or lockout may be
declared.

20(1)(d):- during the pendency of any conceiliation proceedings before the

conciliation officer and 7 days after the conclusion of such proceedings.

General restrictions of strike and lock-out:- section 23 applies to both public

utility services and other services. Strike or lock-out is prohibited by section
23 in the following cases:-

1. During the pendency of conceiliation proceeding before a board of

conceilitation and 7 days after the conclusion of such proceedings.
2. During the pendency of proceedings before a labour court, tribunal or
Nation tribunal and two months after the conclusion of such proceedings
3. During the pendency of arbitration proceedings before the arbitrator and
two months after the conclusion of such proceedings where notification
has been issued under sub-section 3A of section 10 A or
4. During any period in which the settelement or award is in operation in
respect of the matter covered by such settelement or award.

Legality

Whether right to strike is fundamental right or legal right? What it would be its
consequence, Whether it should be fundamental right or not.
 1. One group of intellectuals strongly argue right to strike as fundamental right
citing the Article-19 of the constitution of India since a decade.
2. The national commission on labour – Report- Page- 328
Right to strike is a democratic right which cannot be taken away from the
working class.
3. ILO

Case-1 Kameshwar Prasad v State of Bihar

Court held that thee is no fundamental right to strike.

Case-2 In T.K Rangarajan V Tamilnadu (2003) 71 ACE 30.

The Tamilnadu government terminated the services of all the employees
who resorted to strike. The Apex court held that the government staff have
no statutory, moral or fundamental right to strike. This decision is debatable.

Whether it is the right time to make it fundamental

Prabhat:- yes
Being a student of corporate law, I believe there is no immediate need to
make right to strike as fundamental right.

Logic
1. In a country like India, which is dependent upon foreign investment for a
good share of future growth, it is necessary that the country who seeks
foreign investment must keep some safeguard in their respective
industrial laws so that there will be no misuse of right to strike.
2. Forget india , In America as well Right to strike has not been expressly
recognized by law.
3. During the regime of UPA –Malika Arjun Kharge

Lockout
Temporary closure of place of employment :- is the act of employer

If it has been used as coercive methodfor pressurizing the workers to accept the
terms or conditions then it is called Lockout and if it is legal or justified then
employee is not entitled to get compensation . hence it is considered as antithesis
of strike and weapon for employer.

But temporary closure of place of employment due to inability of an employer on

account of shortage of coal, power, raw-materials, stocks or breakdown of
machinery etc. that would be called as lay-off which is mentioned under section
2(kkk) and for that employer has to pay compensation accordingly.

In a lockout, the employer shuts down his place of business as a means of reprisal
or as instrument of coercion or as mode of exercising pressure on the employees.
Whereas closure is a matter of policy of the employer as to whether he should run
or not run the business.

Legal or justified lockout doesn’t involve compensation but a closure of the

business entitles the workers with closure compensation as provided in chapter VA
of the ID Act.

Impact of illegal strike and illegal lockout

Canara bank v Jamb unathan AIR 1995 SC 319.

Apex 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.

 Krishna sugar mills v State of UP (1964)

In this case such a lockout was declared without giving notice as was required and
that it was unjustified also being a retaliatory measure so the company was liable
to pay wages during the lockout period.

Section 24(3) A lockout declared in consequences of an illegal strike or a strike

declared in consequences of an illegal lockout shall not be deemed to be illegal.
Conclusion

As a student of Corporate law, when I analyse the condition of Indian economy its
growth factor, the Indian polity standard of working class and the interest of
public at large I am of the view that it’s not a right time to make it fundamental
rights neither by legislature nor through interpretation of Article 19 because it
would affect Indian economy.