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Right To Strike- A Legitimate Illegality

Written by: Srinivas medisetty
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Widely known for patronizing democratic human rights and upholding their sacrosanct position, the apex court seems to be fascinated towards the glitter of the contemporary times. In one of the biggest democracies of the world, where the judiciary is one of those prime pillars, on which the edifice of the democracy is based, the apex court in itself commands respect.

The history of labour struggle is nothing but a continuous demand for a fair return to labour expressed in varied forms i.e. (a ) Increase in wages, (b) Resistance to decrease in wages, and (c) grant of allowances and benefits etc. If a labourer wants to achieve these gains individually, he fails because of his weaker bargaining power, the management with the better economic background stands in a better position to dictate its terms.

The article emphasizes on importance of right to strike in democratic society. For doing so its an attempt to rationally analyse the Supreme Court judgment of T.K.Rangarajan V. State of Tamil Nadu. Taking the facts in to consideration, the action of the Tamil Nadu government terminating the services of all the employees who have resorted to strike for their demands was challenged before the Hon’ble High court of Madras, by writ petitions under Articles 226/227 of the constitution. On behalf of the government employees, writ petitions were filed challenging the validity of the Tamil Nadu Essential Services Maintainance Act (TESMA), 2002 and also the Tamil Nadu Ordinance 2 of 2003. The division bench of the court set aside the interim order, and pronounced that the writ petitions were not maintainable as the Administrative Tribunal was not approached. The division bench judgment was challenged before the Supreme Court and Shah J. started the judgment with the word "leave granted".

The very first word of Shah J. gives the reader an impression that the Supreme Court has set a platform for another landmark judgment as a champion of democratic human rights. Ironically the apex court came out with a pronunciation, which reprimands the working community by saying that there is no fundamental, statutory, equitable/moral right to strike. The word ‘strike’ was given its narrowest possible interpretation by the Hon’ble Supreme Court. When workers resort to strike, they gamble with their own lives and also with that of their dependents. The Hon’ble court would have made an effort to understand the situation of impasse which engulfs their own way of livelihood. The court stated that strike, as a weapon is mostly misused which results in chaos and maladministration, but the worker himself is the immediate victim of the strike with his only means of livelihood at stake. In addition to this there had been situations where they lose salaries, get imprisoned and some times shot dead.

If the fundamental right of an individual or a group of individuals is violated, the rest of the society has a duty to support the fight for a remedy. Though the word ‘strike’ is not mentioned anywhere in the constitution, as long as the strike remains peaceful, the society is duty bound to support the legitimate cause. If the slight ephemeral inconvenience caused to the society because of a strike, is a valid reason for declaring strike as an illegality then it is the high time for the adjudicative mechanism to wake up.

Right To Strike: Constitutional Realm

The Administrative Tribunals may act as speedy machinery for redressal of the grievances of the employees in the service matters, but when 1,70,000 employees are dismissed en masse ,as in T.KRangarajan v. State of Tamil Nadu, it is not a trivial service matter but a matter relating to right to life, that is a fundamental right guaranteed under Article 21 of the constitution. It becomes obligatory on the constitutional courts, which exercise the writ jurisdiction to embroil themselves in to the grave situation. Moreover the administrative tribunals are quasi judicial bodies which some times act according to the executive whims and fancies rather than judicial principles. Article 19 (c) of the Constitution of India provides freedom to form associations and unions. The term union’s also include trade unions.

The conditions of service of the central government employees are governed by the rules made by the president under Article 309 of the constitution or under the Act of the parliament enacted under the same rule. In Union of India v. Tulsi Ram Patel it was stated that the opening words of article 309 "subject to the provisions of the constitution" make it clear that the conditions of service, whether laid down by the legislature or prescribed by the rules, must confirm to the mandatory provisions of the constitution.

Article 43-A of the constitution speaks about the participation of workers in management of industries. It says that the state shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organizations engaged in any industry. If the workers require supporting their stand in parlance with the management an effective action like the right to strike needs to be at their reach. In Radhe Shyam Sharma v. Post Master General it was stated that Article 43-A of the Constitution clearly states that the State shall take steps by suitable legislation or in any other way to secure the participation of workers in the management of undertakings, establishments or other organisation engaged in any industry. The High-powered Expert Committee on Companies and MRTP Acts headed by Rajinder Sachar J. of the Delhi High Court has also made certain recommendations about provisions to be made for workers' participation in management of companies.

Ahmadi J. in B.R. Singh v. Union of India observed: "The right to form associations or unions is a fundamental right under Article 19 (1) (c) of the Constitution. Section 8 of the Trade Unions Act provides for registration of a trade union if all the requirements of the said enactment are fulfilled. The right to form associations and unions and provide for their registration was recognized obviously for conferring certain rights on trade unions. The necessity to form unions is obviously for voicing the demands and grievances of labour. Trade unionists act as mouthpieces of labour. The strength of a trade union depends on its membership. Therefore, trade unions with sufficient membership strength are able to bargain more effectively; reduced if it is not permitted to demonstrate. "Strike in a given situation is only a form of demonstration. There are different modes of demonstrations, e.g., go-slow, sit-in, work-to-rule, absenteeism, etc., and strike is one such mode of demonstration by workers for their rights. The right to demonstrate and, therefore, the right to strike is an important weapon in the armoury of the workers. This right has been recognised by almost all democratic countries. Though not raised to the high pedestal of a fundamental right, it is recognised as a mode of redress for resolving the grievances of workers".

It has become a ubiquitous practice to blame the workers for the man days lost due to the strike, but why aren’t the employers blamed for the lock outs? The industrialists according to their profit motive end up the lives of the dependent workers in enigma. The recent statistics show that the numbers of man days lost due to lock outs are more than that of strikes.

Judiciary on Right To Strike

A series of judicial decisions emphasized on the legality or the illegality of the strike, but did not impose a ban on the right to strike. In Management of Kairbeta Estate, Kotagiri v.Rajamanickan the full bench observed that, just as a strike is a weapon available to the employees for enforcing their individual demands, a lockout is a weapon available to the employer to persuade by a coercive process the employees to see his point of view and to accept his demands. In the struggle between the capital and the labour, the weapon of strike is available with the labour.

It was also held that, strike a weapon to force the employer to accede to employees demand and to give them the legitimate dues is a strike which is recognised under the Industrial Disputes Act as defined in Sec 2 (q) .

In Bank of India v/s I.s.Kalewala the constitutional bench held that, whether the strike is legal or justified is question of fact to be decided with the help of the evidence on record.

In Crompton Greaves Ltd v. Workmen the division bench held it that a strike is legal if it does not violate any provision of the statute. Again a strike cannot be said to be unjustified unless the reasons for it are entirely perverse and unreasonable. Whether a particular strike was justified or not is a question of fact which has to be justified in the light of the facts and circumstances of each case.

In the case concerning Management of Chandramalai Estate, Ernakulam v. Its workmen a division bench judgment, there was a dispute between the management and the workers and the labour minister decided to arbitrate the matter. In this case it was held that the strike in protest of the recalcitrant attitude of the management in boycotting the conference, held on 23rd November, 1961 by the labour minister of the state was not unjustified. It was also held in this case that strike is legitimate and sometimes an unavoidable weapon in the hands of the workers. There may be cases where the demand is of such an urgent and serious nature that it would not be reasonable to expect labour to wait till after the government takes notice. In such cases, strike even before such a request has been made may well be justified.

Right To Strike: International Perspectives And Collective Bargaining

The rights of the workers to negotiate and collective bargain are won after a struggle for three centuries right from the beginning of the industrial revolution in 1765. ILO (International Labour Organization) guarantees these rights and many other labour rights with the help of international conventions. India is a founding member of the ILO and it is naturally expected that it doesn’t violate the international labour standards. The two most important conventions in relation to right to strike are convention no. 87 (Freedom of Association and Protection of the Right to Organise Convention, 1948) and 98 (Right to Organise and Collective Bargaining Convention, 1949). Even though the convention does not refer to the right of strike, the ILO committee on experts has been regarding it as an essential part of the basic right to organize.

In the opinion of the ILO committee of experts so long as a suitable and effective alternate remedy for dealing with the demands of the employees is made available there would be no objection to the right of strike being restricted. The scheme of the joint consultative Machinery which is at present functioning for dealing with the grievances of the Central government covers mainly class III and class IV employees of the central government. The scope of national and departmental council set up under the scheme includes all matters relating to conditions of service and work, welfare of the employees and improvement of efficiency.

The convention No. 87 had been ratified by 144 countries and the convention No. 98 had been ratified by 154 countries . India has ratified neither of these two conventions. The main reason for our not ratifying these two Conventions is the inability of the Government to promote unionisation of the Government servants in a highly politicised trade union system of the country. Freedom of expression, Freedom of association and functional democracy are guaranteed by our constitution. The Government has promoted and implemented the principles and rights envisaged under these two Conventions in India and the workers are exercising these rights in a free and democratic society. Our Constitution guarantees job security, social security and fair working conditions and fair wages to the Government servants. They have also been provided with alternative grievance redressal mechanisms like Joint Consultative Machinery, Central Administrative Tribunal etc . Even though, these conventions were not ratified, the requirement was not felt prior to the Supreme Court judgment banning the right to strike.

The principal objects of the Industrial Disputes Act 1947, as analysed by the Supreme Court in the case of Workmen of Dimakuchi Tea estate v. Management of Dimakuchi Tea Estate
(1) promotion of measures for securing amity and good relations between the employer and the workmen.
(2) relief to workmen in the matter of lay off, retrenchment and closure of an undertaking.
(3) collective bargaining.

Foreign Constitutional Outlook

Strike, means ‘concerned stoppage of work by workers done with a view to improving their wages or conditions, or giving vent to a grievance or making a protest about something or the other, or supporting or sympathizing with other workers in such endeavour’ . The right to strike has acquired an implied authorization from the Universal Declaration of Human Rights (1948). Articles 23,24 and 25 of the declarations assert every one’s right to work, right to just and favourable remuneration and right to form and join trade unions and also the right to rest, leisure, leave etc. and the right for fair living conditions with necessary social benefits.

The English Courts have already recognised this right as a justiciable right. Lord Denning in Morgan v. Fry stated that strike is labour’s ultimate weapon and in the course of hundred years it has emerged as the inherent right of every worker. It is an element which is of the very essence of the principle of collective bargaining. Right from the industrial revolution the reasonable right of the workers to strike work is recognised in various countries. Article 32 of the constitution of Rwanda lays down that:
"The right to strike shall be exercised with in the laws by which it is regulated. It may not infringe upon the freedom to work". Article 42 of the constitution of Ethiopia provides the right to strike to the workers and also enjoins the state to provide such right, subject to any restrictions, even to the government employees. Article 34 of the constitution of Angola guarantees right to strike and prohibits lockouts. Brazil, the developing Latin American country also guarantees the right to strike under Article 9 of the constitution. Capitalist countries like Japan under Article 28 and South Korea under Article 33 of their respective constitutions provide the right to strike.

Unless the strike is banned with in the meaning of Sec 22 (1) of the Industrial Disputes act, the same cannot be termed as illegal attracting Sec 24 of the Act.

Section 22(1) provides that no person employed in public utility service shall go on strike in breach of contract:
(a) without giving to the employer notice of the strike 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 afore said ; or
(d) during the pendency of any conciliation proceeding before a conciliation officer and seven days after the conclusion of such proceedings.

This legislation makes a point clear that the courts presumed the right to strike as a legally justifiable right. The point in which the courts were traditionally interfered was with the legality of the ‘strike’ and not the right to strike. For a worker the right to strike is fundamental as it is intertwined with very source of livelihood. It is expedient on the judiciary, at least the apex judiciary to recognise this right for the working class to survive in a mixed economy.

Even though there is no express statement in our constitutional law incorporating in it the doctrine of separation of powers, in the interpretation of the Constitution, this Court has broadly adopted the said doctrine in Indira Nehru Gandhi v. Shri Raj Narain and others . Even though by virtue of its powers by interpretation of law the court in an indirect way is making law, it should be stated that there are well recognised limitations on the power of the court making inroads into the legitimate domain of the legislature. If the legislature exceeds its power, this Court steps in. If the executive exceeds its power, then also this Court steps in. If this Court exceeds its power, what can people do ? Should they be driven to seek an amendment of the law on every such occasion ? The only proper solution is the observance of restraint by this Court in its pronouncements so that they do not go beyond its own legitimate sphere . It is expedient on this court to recognize the right to strike in this context to provide the legitimate locus for the workers.

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