National Commission on Labour (1967)||
23.38 Conceptually, the right to strike/lockout is recognised in all democratic societies; reasonable restraint on the use of this right is also recognised. The degree of freedom granted for its exercise varies according to the social, economic and political variants in the system. For safeguarding public interest, the resort to strike/lock-out and, in some cases, the duration of either are subject to rules and regulations either voluntarily agreed to by the par-tics or statutorily imposed. This has been the criterion underlying the earlier legislation for regulating industrial relations in the country. In our current context, the connected issues have to be viewed against the requirements of a planned economy.
23.39 Under the Industrial Disputes Act, 1947, a distinction is made between a strike/ lock-out in public utilities and in other employments. Industries such as Railways, Posts and Telegraphs, those which supply power, light or water and any system of public conservancy or sanitation are defined as public utility services under the Act, and in respect of certain others enumerated in the First Schedule to the I.D. Act, the appropriate Government is given the discretion to declare them as public utility services. The Industrial Disputes Act, 1947, makes a strike (or lock-out) in the public utility service illegal if it takes place (i) without giving to the employer a notice of strike within six weeks before striking; (ii) within fourteen days of giving such notice; (iii) before the expiry of the date of strike specified in any strike notice, and (iv) during pendency of conciliation proceedings—and seven days after the conclusion of such proceedings. In industries in general, a strike or lock-out is prohibited during the pendency of conciliation, arbitration or adjudication proceedings. Besides, the appropriate Government is empowered to issue an order prohibiting the continuance of any strike or lockout in respect of any dispute when a reference is made to a Court/Board/Tribunal.
23.40. These provisions by themselves do not seem to have succeeded in curtailing work-stoppages;' indeed they were not meant to prevent all stoppages. Annexure I gives data on work-stoppages due to industrial disputes since 1946. Labour has also devised new forms of agitation such as go-slow work-to-rule etc which fall beyond the purview of statutory provisions relating to strikes. A suggestion has been made to us to circumscribe all such forms of agitation by suitably widening the definition of strikes. We do not consider that legal restrictions alone will be of any help in reducing strikes or containing the new forms of labour protest. Unless the Government is prepared to take effective action against illegal strikes, and Government may not find it
expedient to do so in several cases, a mere classification of concerted action on the part of workers/employers as illegal will only bring the law into disrepute. If, on the other hand, Government is to enforce penalties for an illegal strike/lock-out, it is necessary to make the definition as simple as possible. New forms of labour protests should be treated as misconduct punishable under the service rules or under the standing orders.
23.41 We would like to refer here to a form of industrial unrest, namely, 'gherao' which came to be increasingly resorted to in one part of the country in recent years. Our Study Group on Industrial Relations (Eastern Region) which examined this problem came to a majority conclusion, one member dissenting, that 'gheraos', apart from their adverse effects on industry and economy of the country, strike at the very root of trade unionism. We endorse this view and deprecate resort to gheraos which invariably tend to inflict physical duress on the person (s) affected and endanger not only industrial harmony but also create problems of law and order. If such means are to be adopted by labour for realisation of its claims, trade unions may come into disrepute. It is the duty of all union leaders therefore to condemn this form of labour protest as harmful to the interests of the working class itself. Gheraos cannot be treated as a form of industrial protest since they involve physical coercion rather than economic pressure. In the long run, they may affect national interest.
23.42 The general view regarding strike/ lock-out as revealed in the evidence before us is that the right to direct action should be allowed following the failure of all the procedures available for settlement of disputes, except in the case of specified industries/services wherein a stoppage of work may endanger public interest or affect the nation's economy or threaten the security of the State. Even those who are opposed to any State interference in industrial disputes concede this point.
23.43 The democratic ideals of the State prevent it from abridging individual freedom, hut its socialist objectives justify the Government's regulation of such freedom to harmonise it in a reasonable measure with the interests of the society. What seems called for, therefore, is a reconciliation of these two points of view, While we are not in favour of a ban on the right to strike/lock-out, we are also not in favour of an unrestricted right to direct action. In our view. the right to strike is a democratic right which cannot be taken away from the working class in a constitutional set-up like ours. Even from the practical point of view, we will not favour such a step. Taking away the right of the workers to strike, may only force the discontent to go underground and lead to other forms of protest which may be equally injurious to good labour-management relations. At the same time, there are certain essential industries/services wherein a cessation of work may cause harm to the community, the economy or the security of the nation itself and as such, even this right may justifiably be abridged or restricted, provided, of course, a specific procedure is laid down for remedies and redressal of grievances. Therefore, in such industries, the right to strike may be curtailed but with the simultaneous provision of an effective alternative like arbitration or adjudication to settle disputes. We do not wish to enumerate the industries/services that should be classified as 'essential'; the listing of 'essential' industries should be left to the Parliament to decide.1
23.44 It has been brought to our notice that there are instances wherein the leadership of a union has called for a strike without consulting the membership and sometimes even when members were known to be against the strike. No statistical evidence is available to show how widespread this situation is. It can be remedied only by providing for a compulsory strike ballot before a call for direct action is given. One cannot also be certain that once a dispute has gone on to the stage of a strike notice, the leadership will not be in a position to influence the bulk of their members to vote in favour of it. We are inclined to think that our situation in regard to the effects that flow from cessation of work and consequent losses, direct and indirect, warrants the imposition of certain restrictions on recognised unions before launching a strike. We, therefore, suggest that every strike should be preceded by a strike ballot, open to all members of the union concerned and that the strike decision must be supported by 2/3rd of members present and voting. The notice of strike should contain a clause to show that such ballot has been taken and the requirement, about the needed majority has been satisfied.
23.45 In this connection, we would attach importance to the issue of a prior notice of strike/lock-out. At present, the law provides for such a notice in case of public utility services only. We would recommend its extension to all industries/services.
1The observations in this paragraph are the subject matter of a Minute of Dissent by Shri Vasavada, Shri Ramanjuam "Shri Malviya.
23.46 The present provisions in the I.D. Act about other restrictions on strike/lock-out and their regulation seem to meet the situation subject to some modifications that may be called for in the light of our other recommendations.