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Introduction
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.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.
Conclusion
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 recognise
the right to strike in this context to provide the legitimate locus for the
workers. |
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author can be reached at: srinivas99@legalserviceindia.com
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