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The Right To Protest : How Where and How Much ?

An Overview by Jyotica Bhasin

Manifestation of

Rights and Duties

Every right comes with its own duties. Most powerful
rights have more duties attached to them. Today, in each
country of globe whether it is democratic, capitalist,
socialist, give right to strike to the workers.
if this right is misused, it will create a problem in the
production and financial profit of the industry. This would
ultimately affect the economy of the country. Today,
most of the countries, especially India, are dependent
upon foreign investment and under these circumstances
it is necessary that countries who seeks foreign
investment must keep some safeguard in there
respective industrial laws so that there will be no misuse
of right of strike.

Legally Speaking
The right to strike in the Indian Constitution is not an absolute right but
it flows from the fundamental right to form a 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.
In the All India Bank Employees Association v. I. T. , the Supreme
Court held,"the right to strike or right to declare lock out may be
controlled or restricted by appropriate industrial legislation validity of
such legislation would have to be tested not with reference to the
criteria laid down in clause (4) of article 19 but by totally different
considerations." Thus, there is a guaranteed fundamental right to form
association or Labour unions but there is no fundamental right to go on
strike. Under the Industrial Dispute Act, 1947 the ground and condition
are laid down for the legal strike and if those provisions and conditions
are not fulfilled then the strike will be illegal.

Definition of a Strike
Section 2(q) of ID Act defines strike to mean 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 accept employment. Whenever
employees want to go on strike they have to follow the procedure
provided by the Act otherwise there strike deemed to be an illegal
strike. Section 22(1) of the Industrial Dispute Act, 1947 put certain
prohibitions on the right to strike. It provides that no person
employed in public utility service shall go on strike in breach of
contract:(a) Without giving to employer notice of strike with in 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.

Causes of Strikes
Dissatisfaction with company policy
Salary and incentive problems
Wrongful discharge or dismissal of workmen
Withdrawal of any concession or privilege
Retrenchment of workmen and closure of
Dispute connected with wages, conditions of

Prohibitions of Strikes
The provisions of section 23 Of the ID Act impose general restrictions
on declaring strike in breach of contract in the both public as well as
non- public utility services in the following circumstances mainly: -(a)
During the pendency of conciliation proceedings before a board and till
the expiry of 7 days after the conclusion of such proceedings;(b)
During the pendency and 2 month's after the conclusion of proceedings
before a Labour court, Tribunal or National Tribunal;(c) During the
pendency and 2 months after the conclusion of arbitrator, when a
notification has been issued under sub- section 3 (a) of section 10 A;(d)
During any period in which a settlement or award is in operation in
respect of any of the matter covered by the settlement or award.
The principal object of this section seems to ensure a peaceful
atmosphere to enable a conciliation or adjudication or arbitration
proceeding to go on smoothly. This section because of its general
nature of prohibition covers all strikes irrespective of the subject matter
of the dispute pending before the authorities.

Types of Strikes
Economic Strike: Under this type of strike, labors stop their work to
enforce their economic demands such as wages and bonus. In these
kinds of strikes, workers ask for increase in wages, allowances like
traveling allowance, house rent allowance, dearness allowance, bonus
and other facilities such as increase in privilege leave and casual leave.
Slow Down Strike: Employees remain on their jobs under this type of
strike. They do not stop work, but restrict the rate of output in an
organized manner. They adopt go-slow tactics to put pressure on the
Sick-out (or sick-in): In this strike, all or a significant number of
union members call in sick on the same day. They dont break any
rules, because they just use their sick leave that was allotted to them
on the same day. However, the sudden loss of so many employees all
on one day can show the employer just what it would be like if they
really went on strike.

Work to Rule
Work-to-rule is an industrial action in which
employees do no more than the minimum requir
ed by the rules of their contract,
in order to cause a slowdown. Such
an action is considered less disruptive than a
strike or
lockout; and just obeying the rules is less susc
eptible to disciplinary action.
to work overtime, travel on duty or sign up to
other tasks requiring employee assent are oth
er manifestations of using work-to-rule as
industrial action.

Gherao in Hindi means to surround. It denotes a
collective action initiated by a group of workers
under which members of the management are
prohibited from leaving the industrial establishment
premises by workers who block the exit gates by
forming human barricades. The workers may
gherao the members of the management by
blocking their exits and forcing them to stay inside
their cabins. The main object of gherao is to inflict
physical and mental torture to the person being
gheraoed and hence this weapon disturbs the
industrial peace to a great extent.

When workers are dissuaded from work by
stationing certain men at the factory gates, such a
step is known as picketing. If picketing does not
involve any violence, it is perfectly legal. Pickets
are workers who are on strike that stand at the
entrance to their workplace. It is basically a method
of drawing public attention towards the fact that
there is a dispute between the management and
employees. The purpose of picketing is:
to stop or persuade workers not to go to work
to persuade workers to take their union's side

Does the Employer have the right to lock out any Public
Utility Service?
No employer carrying on any Public Utility service can lockout
any of his workman :
(i) Without giving to them notice of lockout provided
within 6 weeks before locking out.
(ii) Within 14 days of giving such notice.
(iii) Before expiry of the date of lockout specified in any such
(iv) During the pendency of any conciliation proceedings
before a Conciliation Officer and 7 days after the conclusion of
such proceedings.

A Strike in pursuance to all Illegal Lockout is
Legal despite the fact that there was no prior
notice of strike given.
A Lockout in pursuance to an Illegal Strike is
Legal despite non-compliance of statutory

Wages during Strikes /


No Work No Pay
Bank of India Vs. TS Kelawala 1989 LLR 287
Principle of No Work No Pay
Employees to claim wages for strike period
must show that the strike was legal AND
If Lockout is legal and justified, the employer
shall not pay the employees salary for the
lockout period.