STRIKE AND LOCKOUT (Section 2 (q)) AND SECTION 2(l))

• 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.

• Strike means a work stoppage caused by the mass refusal of employees to perform work. A strike
usually take place in response to employee grievance.

• Simultaneous cessation of work on the part of the workmen.

• It is an inherent right of every worker.

• 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.

• The act recognises strike as a legitimate weapon.

• Art.19(1)(a) -----right to freedom of speech and expression.

• Art. 19(1)(c)-------formation of an association or union.

• In India, right to strike is not expressly recognized by the law. The trade union Act, 1926 for the first
time provided limited right to strike by legalizing certain activities of a registered trade union in
furtherance of a trade dispute which otherwise breach of common economic law. Now days a right to
strike is recognized only to limited extent permissible under the limits laid down by the law itself, as
a legitimate weapon of Trade Unions.

• The right to strike in the Indian constitution set up is not absolute right but it flow from the
fundamental right to form union. As every other fundamental right is subject to reasonable
restrictions, the same is also the case to form trade unions to give a call to the workers to go on strike
and the state can impose reasonable restrictions.

INGREDIENTS OF STRIKE

There must be cessation of work.

(2) The cessation of work must be by a body of persons employed in any industry;
(3) The strikers must have been acting in combination;
(4) The strikers must be working in any establishment which can be called industry within the meaning of
Section 2(j); or
(5) There must be a concerted refusal; or
(6) 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;
(7) They must stop work for some demands relating to employment, non-employment or the terms of
employment or the conditions of labour of the workmen.

AIMS OF STRIKE

Strikes are mostly used to put pressure on the government or the top management to change policies or
fulfill their demands.
• It can be anything like for increasing their salary or for bonus or for facilities related to workplace, etc.

STRIKES HAVE BAD IMPACTS ON

Economy

• Government

• Production

• International trade

• Businessmen

• Common people

TYPES OF STRIKES

• General strike:- Where workmen join together for a common cause and stay away from work,
depriving the employer of their labour needed to run his factory.

• Token Strike:- It is for a day or a few hours or for a short duration as its main object is to draw the
attention of the employer by demonstrating the solidarity and cooperation of employees.

• Stay in/sit down/tools down strike:- Here, the workmen report to their duties, occupy the premises
but donot work. The employer is not allowed to carry on his business.

• Go-slow strike:- Here, the workmen donot stay away from work. They do come to their work and
work also, but with slow speed in order to lower down the production , and thus causing loss to the
employer.

• Sympathetic strike:- It is one in which workmen, not directly concerned with the dispute, go on
strike to demonstrate their sympathy towards the striking workmen as a sense of togetherness.

• Hunger strike:-Here, a group of workmen fast on or near to their place of work, or near the
residence of the employer in order to coerce the employer to accept their demands.

• Gherao:- (a)Special type of strike.

(b)It means encircled or covered surrounded.

(c )The workers encircle the employer and his managerial staff to compel the employers to accept the
demands of the employees by threats and coercive methods.

(d)Not a recognised strike.

(e)Accompanied by assault, criminal trespass, mischief to person and property, unlawful assembly, etc.

• In mineral Miner Union vs. Kudremukh Iron Ore Co. Ltd., it was held that the provisions of
section 22 are mandatory and the date on which the workmen proposed to go on strike should be
specified in the notice. If meanwhile the date of strike specified in the notice of strike expires,
workmen have to give fresh notice.

LEGAL STRIKES(Sec. 22(a))

• Strike in a public utility will be considered “legal” if :-

 (a) A notice of strike to the employer is served within 6 weeks before striking.

(b) Date of strike is within 14 days from the date of notice.

(c) Date of strike is on or after the date specified in notice, but not before that.

(d) No strike during the pendency of any conciliation proceeding before a conciliation officer and seven
days after the conclusion of such proceedings.

23. General prohibition of strikes and Lockouts

(e) 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-
(f) (a) during the pendency of conciliation proceedings before a Board and seven days after the
conclusion of such proceedings;
(g) (b) during the pendency of proceedings before 122[a Labor Court, Tribunal or National Tribunal] and
two months, after the conclusion of such proceedings; 123[* * *]
(h) 107[(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 sub-section (3A) of
section l0A; or]
(i) (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.

ILLEGAL STRIKES (SEC. 24)

• For illegal strike, there is no justifiable reason or demand. It is an intentional or willful strike.

• In the following cases, the strike is illegal:-

(a)Public Utility Services:- If the 4 conditions given above are violated, it is illegal strike. (sec 22)

(b)In Industrial relations:- If the 4 conditions given above are violated, it is illegal strike. (sec 23)

(c )If any industrial dispute is referred to the Board of Conciliation, Labour Court, Industrial Tribunal or
National Tribunal, the appropriate govt. by order, may prohibit the continuance of strike in connection to a
dispute.

PENALTIES FOR ILLEGAL STRIKE(SECS. 26 TO 28)

• Any workman who commences and continues illegal strike------ punished with imprisonment upto 1
month or fine upto Rs. 50/- or both (Sec.26)

• Any person who instigates or initiates any illegal strike ------ punished with imprisonment upto 6
months or fine upto Rs. 1000, or both(Sec.27)

• Any person who applies his money to support any illegal strike--- punishable with imprisonment
upto 6 months or fine upto Rs. 1000, or both (Sec. 28)

• Oil India Ltd. Vs. Central Govt. Industrial Tribunal ,Calcutta:--- Held --- the workman must
give the employer a notice of strike within 6 weeks before the strike, otherwise strike will be illegal.

• Mahalaxmi Cotton Mills Ltd. Vs. Mahalaxmi Cotton Mills Workers Union:---- Held---- If any
strike is commenced without giving notice, or within 7 days of the conclusion of conciliation
proceedings, the strike must be held to be illegal.
 • In Madura Coats Ltd. Vs. Inspector of Factories, Madurai(1981):- The workmen went on
strike without serving a strike notice. They claimed wages for national holiday which fell in between
the strike period.

S.C. ------- held ----- The workmen were not entitled to wages, because they had
themselves brought about a situation by going on strike without giving a notice.

• In B.R. Singh Vs. Union of India:- Supreme Court held ------ Strike is a form of demonstration.
Though the right to strike is not a fundamental right, it is recognised as a mode of redressal for
resolving the grievances of the workers.

LOCKOUT (SEC 2 (L))

• Sec. 2 (l) defines lockout as the temporary closing of place of employment or suspension of the
work or refusal by the employer to continue to employ any number of persons employed by him.

• Lock out indicates temporary closure of the place of business.

• Lock out is the weapon for the employers, and strike is the weapon for the workmen.

ESSENTIALS OF LOCK OUT

• Temporary closure of place of business or suspension of work , or withholding of work by the

employer.

• There is an element of demand for which the place of employment is locked out or closed.

• Intention to re-employ the workers is present.

NOT LOCK OUT

• Retrenchment (the reduction of costs or spending in response to economic difficulty) of workmwn on

the basis of rationalisation of employees in an establishment.

• Preventing employees who are terminated from service from coming to the place of work.

• An employer refusing to allow ‘late comers’ on a day to work on that day.

LOCK OUT IN PUBLIC UTILITY SERVICES (LEGAL LOCKOUT)

• Employer must give any of his workman a notice of lockout within 6 weeks for such lock out. That
is, the notice is valid only for 6 weeks.

• He should not declare lock out within 14 days of such notice.

• If any period is fixed in the notice, then no lockout is possible before the expiry of that period.

• If any conciliation proceedings are going on related to lockout or strike, then there can be no lockout
during such period and within 7 days after the conclusion of such proceedings.

ILLEGAL LOCKOUT

• Same as Strikes.

PENALTIES FOR ILLEGAL LOCK OUT

• Same as Strikes.
 LAY – OFF (SEC. 25-A to SEC. 25-E)
• Lay –off is the failure or refusal or inability of an employer to provide employment to his workmen
on account of :-

a) Shortage of coal

b)Shortage of raw materials

c) Breakdown of machinery

d) Accumulation of stock, or for any other reason.

• The name of the workman to be laid off must be present in the muster roll (Section 25 (D)).

• It takes place only in a continuing business.

• During lay-off, only a portion of the business is closed.

• It means putting aside or discharging workmen temporarily.

CIRCUMSTANCES TO LAY-OFF

• If any workman presents himself for the work at the appointed place and if he is not given any work
within three hours, then it is lay-off for the day.

• If any workman is not given any employment on the first half of the shift, but given in the second
half of the shift, then lay –off is only for half a day.

• If any workman is given employment for a few hours in both first and second half of the shift, then
there is no lay – off , and it is considered as a full working day , and full wages is given for the day.

RIGHTS OF LAY-OFF WORKMAN FOR COMPENSATION (SEC. 25 (c ))

Following conditions must be satisfied by the workman to get laid –off compensation:-

a)His name must be present in muster roll.

b)He must not be a temporary worker, casual worker, or badli worker.

c)He must have completed 1 year of continuous service. The total period of the one year includes weekly
holidays and government holidays.

CONTINUOUS SERVICE (SEC. 25-B)

• A workman is in continuous service for a period, if for that period, his service is uninterrupted.

• Any interruption on certain accounts is not considered as an interruption and the service is deemed to
be continuous.

• These interruptions may be on account of :-

a)Sickness

b)authorised leave

c)An accident
 d)a strike which is not illegal.

e)cessation of work which is not due to any fault on part of the workman.

Workmen not entitled to compensation in certain cases: SEC 25E

No compensation shall be paid to a workman who has been laid-off-

(i) if he refuses to accept any alternative employment in the same establishment from which he has been laid
off, or in any other establishment belonging to the same employer situate in the same town or village or
situate within a radius of five miles from the establishment to which he belongs, if, in the opinion of. the
employer, such alternative employment does not call. for any special skill or previous experience and can be
done by the workman, provided that the wages which would normally have been paid to the workman are
offered for the alternative employment also;

(ii) if he does not present himself for work at the establishment at the appointed time during normal working
hours at least once a day;

(iii) if such laying-off is due to a strike or slowing-down of production on the part of workmen in another
part of the establishment.

RETRENCHMENT (SEC. 2(f))

• Retrenchment is termination of service of a workman for some reason or other by the employer
(otherwise than as punishment).

• The business remains undisturbed and it continues.

• Following are not retrenchments:-

a)Voluntary retirement

b)Retirement at the age of superannuation, if there is a stipulation in the contract between employer and
employee.

c)Termination of service on the ground of continuous ill health.

• Morinda Co-op. Sugar Mills Ltd. Vs. Ram Krishnan (1995) :- Seasonal workers engaged in
grinding in sugar factory stopped working after the closure of the season. SC ---- held ----- Such
cessation of work doesnot amount to retrenchment.

RETRENCHMENT COMPENSATION (SEC.25-F)

• Workman with a continuous service of more than 1 year can be retrenched.

The workman must have continuous service of 240 days in a calender year of 365 days

CONDITIONS FOR RETRENCHMENT

• One month notice specifying the reason in writing must be given to the workman before
retrenchment.

• If the period of notice is less than one month, then 1 month salary must be paid.
 • If there is an agreement between employer and employee about termination of service , then no
notice is necessary to the workman.

• If there is incomplete year of service (less than a year) but if it exceeds 6 months period, then it has
to be taken as 1 complete year.

• Prescribed notice must be sent to the Govt. or any other specified authority in this regard (Sec. 25(f)).

RULE OF “LAST COME, FIRST GO”(SEC. 25-G)

• It is the rule of Retrenchment.

• To apply the rule :-

a)The workman must be a citizen of India.

b)He must be employed as a particular category of workman. Only then, the last man employed shall
be retrenched.

c)The management should start with the last recruitee , and retrench employees lower in the list of
seniority.

• For retrenching the last workman, the employer need not assign any reason.

• But, if he is not the last person, he can be retrenched only under the following conditions:-

a)There should be an agreement to the contract between the workman and employer.

b)The employer should record the reasons for departure in writing.

CLOSURE (SEC 2(cc))

• Permanent closing down of a place of employment or part thereof.

• During the provisions relating to lock out, strike, lay-off, etc., the period during which the awards are
to be in force have meaning only if they refer to an industry which is running, and not one which is
closed.

• The rule of ‘last come first go’ need not be followed as they are not applicable.

• An employer who intends to close down an undertaking must serve a notice on the appropriate
government atleast 60 days before the date on which it is to be closed. (Sec. 25 – FFA)

• The notice should be served in the prescribed manner and should clearly state the reasons for the
closure of an undertaking.

• Any employer who closes down an undertaking without complying

the provision of Sec – 25 FFA ---- punished ----- imprisonment upto 6 months or fine upto Rs. 5,ooo/- or
both.

• Sec. 25-FFA doesnot apply to ----

a) An undertaking where less than 50 workmen are employed.

 b)An undertaking where less than 50 workmen were employed in the preceeding 12 months.

c) An undertaking set up to construct buildings, canals, dams, or bridges.

d)Under exceptional circumstances like death of employer or accident in the undertaking, the appropriate
govt. may exempt the undertaking from the provisions of Sec. 25 – FF A.

COMPENSATION TO WORKMEN IN CASE OF CLOSING DOWN OF AN UNDERTAKING

(SEC 25 FFF)

• If an undertaking is closed down for any reason, every workman who has been in continuous service
for not less than 1 year is entitled to notice and compensation.

• If an undertaking is closed down due to unavoidable circumstances beyond the control of the
employer, the compensation to be paid to the workman should not exceed his average pay for three
months.

Ramachandra Vs. Belabur Sugar Mills Ltd.:- A sugar factory was closed down due to non
availability of sugarcane. Held ---- Closure was due to unavoidable circumstances beyond the control of the
employer and the compensation payable to the workmen is only average pay for 3 months. Thus a
circumstance which cannot be avoided by a prudent and diligent employer is called “unavoidable
circumstance”.

• The following are not unavoidable circumstances for closing down of an undertaking:-

a)due to financial difficulties,

b)due to accumulation of undisposed stocks,

c)due to expiry of the period of the lease or lien granted to it,

d)in case of mines, due to shortage of minerals in that area.

• If any undertaking is set up for the construction of buildings, roads, canals, dams or other work,
within 2 years from the date on which the undertaking had been set up , compensation will not be
given to any workman employed in it.

But, if the construction work is not so completed within 2 years, then he is entitled to notice and
compensation.

PROCEDURE FOR CLOSING DOWN AN UNDERTAKING (SEC. 25-O)

• An employer who wishes to close down his industrial undertaking should apply to the appropriate
govt. for prior permission at least 90 days before the date on which he intends to close down the
undertaking.

• The application should be in prescribed manner and clearly state reasons for the intended closure.

• A copy of the application shall be served simultaneously on the representative of the workmen in
prescribed manner.

• The appropriate govt. shall make such enquiry as is needed and give reasonable opportunity of being
heard to the employer, the workman, and persons interested in the closure.

• The, it shall grant or refuse such permission for closure.

 • Before making such order, the appropriate govt. shall take account of the genuineness and adequacy
of the reasons stated by the employer, the interests of the general public, and all other relevant
factors.

• It shall also record the reasons and send a copy of it to the employer and the workmen.

• When an undertaking is permitted to be closed down, every workman who is employed in that
undertaking before the date of application for permission of closure, is entitled to a sum equivalent to
15 days average pay for every completed year of continuous service, as retrenchment compensation.

• If the appropriate govt. doesnot communicate the order by either granting or refusing to grant
permission to the employer within 60 days, the permission is deemed to have been granted on the
expiry of 70 days.

• The order granting or refusing permission of closure is final and binding on all the parties.

• The appro. Govt. may on its own , or on the application by the employer or any workman, review its
order granting or refusing to grant permission , or refer the matter to an Industrial Tribunal for
adjudication.

• In such a case, the Industrial Tribunal shall pass an award within a period of 30 days from the date of
such reference.

• If application for permission for closure has been refused, the closure of the undertaking is deemed
to be illegal fro the date of closure and the workmen shall get all the benefits as if the undertaking
has not been closed.

• In Management of Gordon Woodroffe Agencies Pvt. Ltd. Vs. Principal Labour Court

AIR 2004 SC 4124 ---- Held ----- the closure of an establishment was justified, as all the legally payable
amounts were paid to the workmen in time.

• In Lal Mohammed Vs. Indian Rly. Cpnstruction Co. Ltd. (1999) ------SC----- held ---- for
closure of one unit, it is not necessary that the entire industry or business of other units be closed.

Sec 25 R :Penalty for closure:

An employer who closes downan undertaking without complying with the provisions of sec 25 O shall be
punishable with imprisonment for term which may extend upto 6 months or with fine which may extend
upto 5000 rs or with both.
INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT, 1946 AND
DISCIPLINARY ENQUIRY
• This Act extends to the whole of India.

• It came into force on 23rd April, 1946.

• It has 15 sections and 1 schedule.

• “Standing Orders” means the conditions of employment, drafted in written by the employer under
Section 3 of the Industrial Employment (Standing Orders) Act, 1946.

• It is an Act which require employers in industrial establishments to formally define conditions of

employment under them.

• “Standing Orders” defines the conditions of recruitment, discharge, disciplinary action, holidays,
leave, etc. towards minimizing friction between the management and workers in industrial
undertakings.

• The Act will apply to factories, railways, mines, quarries, plantations, workshops, etc.

• It applies to every industrial establishment wherein one hundred or more workmen are employed.

• Within 6 months from the date on which the Act becomes applicable to an industrial establishment
the employer is required to frame draft “standing orders” and submit them to the certifying officer
for certification.

• The Certifying Officer will be empowered to modify or add to the draft standing orders.

• There can be a right of appeal against the decisions of the certifying officers.

OBJECTIVES OF THE ACT

• To require the employers to define with sufficient precision the conditions of employment under
them.

• To make the said conditions known to workmen employed by them.

• To avoid any confusion in the mind of the employees in respect of their rights and obligations
concerning the terms and conditions of employment.

• To avoid unecessary industrial disputes.

• In Vishwanath Vs. Ramesh Chandra (1979)--- Held ---- The object of the Act is to require
employers in industrial establishments to define with sufficient precision the conditions of
employment of workmen.

• In Bharat Petroleum Corp. Ltd. Vs. Maharashtra General Kamgar Union (1999) ----Supreme
Court --- held ---- the object of the Act is to introduce uniformity of terms and conditions of
employment of workers, and the terms and conditions of an industrial employee is well known to the
employees before they accept the employment.
 • Section 2 (g) of the Act defines “Standing Orders” as the rules relating to matters contained in the
Schedule. The Schedule contains:-

a)Classification of workmen (permanent, temporary, badli, etc.)

b)Suspension or dismissal for misconduct.

c)Attendance, late coming

d)Shift working

e)Transfers

f)Method of filling up vaccancies in the establishment.

g)Service certificate.

h)Age of retirement.

i)Secrecy, etc.

• The Act of 1946 contemplates that the Standing orders must cover all the matters specified in the
Schedule, and matters may be added to the Schedule by the appropriate government.

• The appropriate govt. has power to add more matters to the Schedule under Section 15(2)(a) of
the Act.