STRIKE AND LOCKOUT UNDER INDUSTRIAL RELATIONS CODE, 2020
The incidences of strike emerged during early 19th century with British led industrialization. Establishment of largescale factories, plantations, railways, ports and other industries led to creation of new working class. The first strike recorded in history is generally traced to 1877, when workers of the Empress Mills, Nagpur protested through strike against wage reductions.
The British Indian Government first attempted to regulate strikes vide Trade Disputes Act, 1929. It is pertinent to mention that Bhagat Singh has exploded smoke bomb in the Legislative Assembly protesting against this very bill. Trade Disputes Act, 1929 introduced compulsory advance notice before going on strike or lock out in case of public utility services. It also prohibited using trade union fund for political activity and introduced punishment for illegal strike or lock out.
Defense of India Rules had been framed at the outset of Second World War. These rules further restricted rights of labour. It empowered government to refer industrial disputes to adjudication. Strike and lockout were prohibited during pendency of proceedings before adjudicating authorities.
Several of these features were continued in the Industrial Disputes Act, 1947. Strikes and Lockout continued to be regulated in Public Utilities. IR Code has gone a step further as strike and lockout are being regulated in every industry, irrespective of whether they are public utilities or not.
STRIKE NOT FUNDAMENTAL RIGHT
Right to strike has not been recognised as Fundamental Right, but it is definitely a statutory right, although highly regulated one, under provisions of IR Code.
Article 19 (1) (c) grants fundamental right to citizens to form associations and unions but it does not extend to right to strike. The Supreme Court held in Kameshwar Prasad Vs State of Bihar (1962) AIR 1166 that even a very liberal interpretation of Article 19 (1) (c) could not lead to the conclusion that the trade unions have a guaranteed fundamental right to strike.
The Supreme Court in All India Bank Employees Association Vs National Industrial Tribunal 1962 SCR (3) 269 reiterated that the right to strike cannot be said to be part of Article 19 (1) (c) of the Constitution.
DEFINITION OF STRIKE AND LOCKOUT
Strike has been defined under Section 2 (zk) of Industrial Relations Code, which is as under :
2 (zk) “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 and includes the concerted casual leave on a given day by fifty percent or more workers employed in an industry.
A bare reading of the definition makes it evident that three types of actions of the workers have been covered under definition of strike – (i) cessation of work by a body of persons employed in any industry in combination, (ii) 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 (iii) Concerted casual leave on a given day by fifty percent or more workers employed in industry.
The definition of “strike” is in continuity of the definition of “strike” under the Industrial Dispute Act, 1947 but concerted casual leave has been additionally included under the definition of “strike” thus “striking” being made more difficult.
“Lock-out” has been defined under Section 2 (u) of the Code, which is as under :
2 (u) “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.
Lock-out covers three types of actions of employer – (i) temporary closing of a place of employment, (ii) suspension of work and (iii) the refusal to continue to employ any number of persons[m1] .
Strike and lockout have been heavily regulated under the IR Code in every industrial establishment. Workers as well as Employer have to comply with provisions of Section 62 before going on strike or imposing lockout respectively. Section 62 prohibits strikes and lockouts in certain circumstances.
PROHIBITION OF STRIKE
Section 62 (1) prohibits workers to go on strike in breach of contract in following circumstances –
– without giving to the employer notice of strike within sixty days before going striking
– within fourteen days of giving such notice
– before the expiry of the date of strike specified in any such notice
– during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conciliation of such proceedings
– during the pendency of proceedings before a Tribunal or a National Industrial Tribunal and sixty days after conclusion of such proceedings
– during the pendency of arbitration proceedings before and arbitrator and sixty days after the conclusion of such proceedings
– during any period in which a settlement or award is in operation in respect of any of the matters covered by the statement or award
It is evident from the above provisions that right to go on strike legally has been highly restricted. Firstly, sixty days notice has to be given to employer. No strike can be done within fourteen days of giving notice. Further, no strike can be done during pendency of conciliation, arbitration or adjudication proceedings.
PROHIBITION OF LOCKOUT
Section 62 (1) prohibits employer to impose lockout in breach of contract in following circumstances –
-without giving them notice of lock-out within sixty days before locking out
-within fourteen days of giving such notice
-before the expiry of the date of lock-out specified in any such notice
-during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings
-during the pendency of proceedings before a Tribunal or a National Industrial Tribunal and sixty days after conclusion of such proceedings
-during the pendency of arbitration proceedings before an arbitrator and sixty days after the conclusion of such proceedings where a notification has been issued under sub-section (5) of section 42
-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.
NOTICE OF STRIKE
Section 62 (3) provides that the notice of strike or lock-out under this section shall not be necessary where there is already in existence a strike or, as the case may be, lock-out, but the employer shall send intimation of such lock-out 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 services.
Section 62 (4) provides that the notice of strike shall be given by such number of persons to such person or persons and in such manner, as may be , prescribed. Draft IR (Central) Rules prescribe the manner in which notice under Section 62 (4) has to be served. The notice of strike has to be given to the employer of an industrial establishment in Form- XI, which have to be duly signed by the Secretary of the concerned registered Trade Union or where there is no registered Trade Union, by five elected representatives of the workers giving the notice relating to the concerned industrial establishment, endorsing the copy thereof electronically or by registered post or speed post to the concerned conciliation officer, Chief Labour Commissioner (Central) and the Secretary, Ministry of Labour and Employment. The date of receipt of the notice is the date of receiving the notice. If the employer of an industrial establishment receives any notice of strike under Section 62 (1) from any person employed by him, then he shall, within five days from the date of receiving of such notice, intimate the same electronically to the concerned conciliation officer and Chief Labour Commissioner (Central).
Section 62 (5) provides that the notice of lock-out shall be given in such manner as may be prescribed. Draft IR (Central) Rules prescribes the manner in which notice under Section 62 (5) has to be served. The notice of lock-out has to be given by the employer of an industrial establishment in Form-XII to the Secretary of every registered Trade Union relating to such industrial establishment by registered post or speed post or electronically, endorsing a copy thereof to the concerned conciliation officer, Chief Labour Commissioner (Central) and the Secretary, Ministry of Labour and Employment electronically. The notice has to be displayed conspicuously by the employer on a notice board or on electronic board at the main entrance to the industrial establishment and a copy of the said notice has also to be posted on the designated portal, if any, of such industrial establishment and the date of receipt of such notice by the conciliation officer shall be the date of receiving the notice. If the employer gives to any person employed by him a notice of lock-out, then he shall, within five days from the date of such notice, intimate electronically the same to the concerned conciliation officer and the Chief Labour Commissioner (Central).
Section 62 (5) provides that if on any day an employer receives from any person employed by him any such notices of strike or gives notice of lockout, he has to report within five days to appropriate government to such authority as that Government may prescribe and to the conciliation officer, the number of such notices received or given on that day.
ILLEGAL STRIKES AND LOCKOUTS
Section 63 (1) provides for circumstances wherein strike or lock-out shall be treated illegal. Strike or Lock-out has to be treated as illegal if it is commenced or declared in contravention of Section 62 or if it is continued in contravention of an order made under Section 42 (7).
Section 63 (2) provides that where a strike or lock-out in pursuance of an industrial dispute has already commenced and is in existence at the time of filing of the application relating to such industrial dispute in the Tribunal or of the reference of such industrial dispute to an arbitrator or a National Industrial Tribunal, the continuance of such strike of lock-out shall not be deemed to be illegal, provide such strike or lock-out was not at its commencement in contravention of the provisions of this Code or the continuance thereof was not prohibited under sub-section (7) of Section 42.
Section 63 (3) provides that 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.
PROHIBITION OF FIANANCIAL AID TO ILLEGAL STRIKE
Section 64 prohibits knowingly spending or applying any money in direct furtherance or support of any illegal strike or lock-out.
Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.
