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RIGHT TO STRIKE – ABSOLUTE RIGHT OR NOT?

Author: Radhika Gupta, III year of B.Com., L.L.B. (H) from Amity Law School, Noida


Often in industries, disputes occur between the management and the labour. These disputes could occur for a variety of reasons such as disagreements between employer and employees or between two or more employees, working hours, working conditions, salary and allowances, promotion of the employees, gratuity, health and safety etc.


However, for an organisation to work effectively and efficiently, both two parties must work together. Hence, there are certain mechanisms that they can undertake as a last resort. The workers have the right to go on a strike and the employers have an option of lockout.


However, the Right to strike, though very crucial, is not yet a fundamental right as guaranteed under the Constitution of India. This was held in the case of Kameshwar Prasad and ors. v. The State of Bihar & Anr.[i]Nevertheless, it is still a legal right that is available to the employees of an organisation according to the Industrial Dispute Act, 1947, which lays down the meaning and general idea of the right to strike.


Moreover, in the case of All India Bank Employees Association v. National Industrial Tribunal and Ors.[ii], the Supreme Court held that the right to strike or to declare a lockout might be controlled or restricted via industrial legislation whose validity need not be tested by Article 19(4)[iii] of the Constitution of India.

Brief history

Before The Industrial Disputes Act,1947[iv] (hereinafter referred to as the Act), the following laws regarding labour disputes were in existence:

  • Employer & Workmen Disputes Act, 1869

  • Trade Unions Act, 1926[v]Trade Disputes Act, 1929

  • Rule 81A of Defense of India Rule, 1942

  1. The Trade Unions Act, 1926[vi]protected the Trade Unions from being sued for offences like that of Criminal Conspiracy for Strike and from being subjected to civil damages.

  2. The Trade Disputes Act, 1929 prohibited strikes without prior notice. According to the Act, bringing about hardships to the community was illegal. It can be said that the Government of India, after World War 1 treated strikes as a challenge and adversity to the law itself rather than understanding it as a problem of labour laws and understanding the reasons behind it.

  3. However, after the Second World War, the scenario changed a bit. The Government of India prohibited strikes and lockouts. The only immunity to it was very restricted conditions which changed after the Act came into force.

Hence, one can assume that there have always been disputes between the workmen and the employers. Therefore, a lot of provisions have been laid down by the State to protect the rights of workers and to settle the disputes between the above mentioned two parties.

Meaning and concept of strike

The word strike has its origin from the English word “Strican to go”. The definition of Strike is mentioned under Section 2(q)[vii] of the Act which states that there must be a cessation of work by a body of persons who must be employed in any trade/industry along with a concerted refusal/action. It is important to note here that there must exist a relationship of employment between the body of persons who are engaging in a strike and the people against whom the former is striking.


In layman terms, strike means the stoppage of the work by the workmen, generally after being aggrieved by the conditions imposed on them by the employers.


There must be a stoppage/hindrance/refusal to work or abandonment of work by the workmen, which must be done to meet industrial demand(s). Mere cessation of work without any enforcement of industrial demand(s) cannot be termed as a strike.


Similarly, mere absence from work does not constitute a strike as well. There must be a concerted refusal or a refusal to work under a common misunderstanding to constitute a strike.


A single person accessing a work and refusing to work does not constitute a strike. It should always be by a body of persons or a large group to constitute a strike. The time for the same is immaterial. It is also essential to prove that the body of persons was acting under a “common understanding” or in combination or there was a concerted action.


Right to strike – available to all?

According to the Act, no person employed in public utility service shall go on strike. Section 22(1)[viii]the Act lays down certain restrictions on the right to strike in the Public Utility Services which are the railways, transport, power, water, sanitation, post, telephone etc. and any industry declared to be in ‘public utility service’ by the government. Certain restrictions are

  1. To give prior notice of 6 weeks to the employers before going on a strike.

  2. To wait for a minimum of fourteen days of giving such notice.

  3. To go on a strike before the expiry of the date, as mentioned in the notice of the strike.

  4. To wait for seven days after the completion of conciliation proceedings in the case of any pendency of the same before a conciliation officer.


  • The Supreme Court in this regard has held that the right to go on a strike/boycott is not available to doctors under any circumstance. This issue was held to be important from an ethical perspective. The Court stated that “There can be little doubt that by going on strike doctors violate a fundamental maxim of medical jurisprudence “Primum, non-nocere” i.e., first, not harm. The harm that befalls patients on account of strikes is unfathomable."[ix]

  • Uttarakhand High Court, in a Suo Moto PIL, has also held that the government and Public Sector Undertaking Employees (PSUs) cannot take part in illegal strikes. employees.``[x]


General prohibitions on the right to strike

The right to strike is not free. It is subject to specific prohibitions according to Section 23 of the Act which states that no workman nor an employer shall declare a strike or a lockout respectively in the following cases:

  1. During the pendency of conciliation proceedings and seven days after the completion of the said proceedings.

  2. During the pendency of any suit or proceedings before Court/Tribunal (or National Tribunal) and two months after the completion of the said suit or proceedings.

  3. Where a notification has been issued by an arbitrator under Section 10A(3A) during the pendency of any arbitration proceedings and two months after the completion of said proceedings.

  4. When any settlement or award is in operation.


When a strike becomes illegal

Though there exists a right to strike, not all strikes are legal. Section 24[xi] lays down the provisions for when a strike is illegal. These provisions have been laid down to ensure that there is not any misuse or abuse of the right given to employees. A strike may be said to be illegal if it is in contravention with the provisions of Section 22[xii] and Section 23[xiii] or an order made under Section 10(3)[xiv] and Section 10A(4A)[xv] of the Act.


In case a strike has been declared by the employees due to an illegal lockout by the employers then, such strike will not be termed as an illegal strike.

According to the Act, illegal strikes are punishable with imprisonment for a term which may extend to six months or with a fine which may extend to five hundred rupees or with both.


Consequences of an illegal strike

1. Dismissal/suspension of workmen

The Supreme Court in the case of M/S Burn & Co. Ltd. V, Their Workmen[xvi], held that the employees/workmen couldn’t be suspended or dismissed from work by merely participating in a strike.

2. Payment of wages during a strike

The Supreme Court in the case of Crompton Greaves Ltd. v. Workmen[xvii]held that workmen are entitled to wages during the period of strike provided that the strike was legal and justified. It can be said to be legal if it is by Section 22, 23 and 24 of the Act or any other law or any terms of the employment contract.[xviii] Whether the strike by workmen was justified depends on the facts and circumstances of the case.


However, the Supreme Court in the case of Bank of India v T.S. Kelawala[xix]held that in a situation where the rules of a company do not mention the payment of wages to the workers during the period of strike, the management of the company has the power to withhold the wages for such absence from work when it is concerted action, whether the strike was illegal or not. It was therefore held that the strike pay cannot be claimed as a legal right by the employees.


Hence, the Court has given two different interpretations in both the cases on whether workmen are entitled to wages during the period of the strike. However, joint reading of both the cases makes it quite clear that the workmen are entitled to wages if the strike is legal and justifiable but are not entitled to wages if the strike was illegal and non-justifiable.


Conclusion and recommendations

Often when the demands and needs of the workmen are not being met, they go on a strike. However, strikes should be the last resort of the workmen and not the first step. The right to strike moreover is not absolute. Specific provisions have been laid down by the Government of India to ensure the same. It is known that a strike affects the employer and the workmen both. Hence, the Courts, on various occasions, have ruled favouring both the parties involved.


Of course, the question arises on “Whether the workmen have the Right to Strike according to the Industrial Disputes Act 1947[xx]?” The answer to the same is yes. According to the case of Kameshwar Prasad[xxi], it was made clear that the Right to strike is not a fundamental Right. But at the same time, there have been certain safeguards by the Courts and Government to protect the interests of the workmen. Even though the right to strike is not mentioned, the right to form a trade union is mentioned under the Constitution of India[xxii].


International Labour Organization and Universal Declaration of Human Rights, 1948 have declared the Right to strike as one of their key aspects. However, the Indian Judiciary still has a role to play in declaring the legal status of the Right to Strike. Merely giving the Right to form a trade union a constitutional status has no meaning if the Right to strike is not given the status of Fundamental Right.


Hence, the Courts still have a long way to go in deciding the same and there is a severe need in changing the status of the Right to strike, especially in the wake of Covid-19 where the economy is falling and the labour issues are at an all-time high.


i]Kameshwar Prasad and ors. v. The State of Bihar & Anr, AIR 1959 Pat 187, 1958 (6) BLJR 600, (1959) ILLJ 401 Pat.

[ii]All India Bank Employees Association v. National Industrial Tribunal and Ors., 1962 AIR 171, 1962 SCR (3) 269.

[iii]INDIA CONST. art. 19(4).

[iv]The Industrial Disputes Act,1947, No. 14, Acts of Parliament, 1947 (India).

[v]Trade Unions Act, 1926, No. 16, Acts of Parliament, 1926 (India).

[vi]Id.

[vii] Section 2(q): "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.

[viii] Section 22(1): Prohibition of strikes and lock-outs.- (1) No person employed in a public utility service shall go on strike in breach of contract-- (a) without giving to the employer notice of strike, as herein-after provided, within six weeks before striking; or (b) within fourteen days of giving such notice; or (c) before the expiry of the date of strike specified in any such notice as aforesaid; or (d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.

[ix] Dr P Balakrishnan vs State Of Tamil Nadu, 2020 SCC OnLine Mad 637.

[x] Writ Petition (PIL) No. 115 of 2018

[xi] Section 24: Illegal strikes and lock-outs.- (1) A strike or a lock-out shall be illegal if-- (i) it is commenced or declared in contravention of section 22 or section 23; or (ii) it is continued in contravention of an order made under sub-section (3) of section 10 1*[or sub-section (4A) of section 10A].

[xii]The Industrial Disputes Act,1947, § 22, No. 14, Acts of Parliament, 1947 (India).

[xiii]The Industrial Disputes Act,1947, § 23, No. 14, Acts of Parliament, 1947 (India).

[xiv] Section 10(3): Where an industrial dispute has been referred to a Board, 2*[Labour Court, Tribunal or National Tribunal] under this section, 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.

[xv]Ins. by S. 6, Subs. by Act 36 of 1964, Section 10A(4A): Where an industrial dispute has been referred to arbitration and a notification has been issued under sub-section (3A), 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.

[xvi]M/S Burn & Co. Ltd. V, Their Workmen, AIR 1959 SC 529.

[xvii]Cropton Greaves Ltd. v. Workmen, (1978)3 SCC 155.

[xviii]Syndicate Bank v. K. Umesh Nayak, (1995) AIR 319, (1994) SCC (5) 572

[xix]Bank of India v T.S. Kelawala, 1990(4) SCC 744.

[xx]The Industrial Disputes Act,1947, No. 14, Acts of Parliament, 1947 (India).

[xxi]Kameshwar Prasad and ors. v. The State of Bihar & Anr, AIR 1959 Pat 187, 1958 (6) BLJR 600, (1959) ILLJ 401 Pat.

[xxii]INDIA CONST. art. 19(1).