In any industrial endeavour co-operation of labour and capital is quite essential for its success, although they have interests contrary to each other. They have different strategies and weapons to ventilate their grievances and safeguard their interests. These democratic weapons often used by them are strikes and lockouts. Just as strike is a weapon available to employees for enforcing their industrial demands, a lockout is a weapon available to the employer to persuade by a coercive process to see his point of view and to accept his demands. In the struggle between capital and labour, as the weapon of strike is available to labour and is often used by it, so is the weapon of lockout available to the employer and can be used by him.
Strike: Strike is one of the oldest and the most effective weapons of labour in its struggle with capital for securing economic justice. The basic strength of a strike lies in the labour's privilege to quit work and thus brings a forced readjustment of conditions of employment. It owes its origin to old English words 'Striken to go'. In common parlance it means hit, impress, occur to, to quit work on a trade dispute. The later meaning is traceable to 1768. Later on it varied to 'strike of work'. The composite idea of quitting work or withdrawal of work as a coercive act could be gathered in the use of word as a verb as well as adjective. The definition and use of the word 'strike' has been undergoing constant transformation around the basic concept of stoppage of work or putting of work by employees in their economic struggle with capital.
The term 'strike' has been defined in a wide variety of branches of human knowledge, viz., etymology, sociology, political economy, law and political science.
Strike has been defined in Section. 2(q) of the Industrial Disputes Act as under:-
"Strike means a cessation of work by abody 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".
The analysis of the definition would show that there are the following essential requirements for the existence of strike:
The use of the term 'lockout' to describe employer's instruments of economic coercion dates back to 1860 and is younger than its counterparts in the hands of workers, strike by one hundred years. Formerly the instrument of lockout was resorted to by an employer or group of employers to ban union membership: the employers refused employment to workers who did not sign a pledge not to belong to trade union. Later the lockout was declared generally by a body of employers against a strike at a particular work by closing all factories until strikers returned to work. India witnessed lockout twenty-five years after the lockout was known and used in the area of labour management relations in industrially advanced countries. The first known lockout was declared in 1895 in Budge Budge Jute Mills. Section. 2(1) defines the term lockout. However, the present definition is only a mutilated one. The term was originally and correctly defined in the Trade Disputes Act, 1929. From the definition given in the Trade Disputes Act, the present Act has taken the present definition but has only omitted the words "when such closing, suspension or refusal occurs in consequences of a dispute and is intended for the purpose of compelling those persons or of aid in another Employer in compelling persons employed by him to accept terms or conditions of, or affecting employment".
With the omission of these words, the present definition fails to convey the very concept of lockout. In Sri Ramchandra Spinning Mills V/s. State of Madras, the Madras High Court read the deleted portion in the definition to interpret the term lockout. According to the Court, a flood may have swept away the factory, a fire may have gutted the premises; a convulsion of nature may have sucked the whole place under ground; still if the place of employment is closed or the work is suspended or the employer refuses to continue to employ his previous workers, there would be a lockout and the employer would find himself exposed to the penalties laid down in the Act. Obviously, it shows that the present definition does not convey the concept of the term lockout.
Lockout, when legal
The Act treats strikes and lockouts on the same basis; it treats one as the counter part of the other. Thus what holds good-bad; legal-illegal; justified-unjustified for strikes holds the same for lockout. As such, the provisions of the Act which prohibit the strike also prohibits the lockout.
The object and reasons for which the lockouts are banned or prohibited are the same for which strikes are banned or prohibited. It is because the employers and employees are not discriminated in their respective rights in the field of industrial relationship between the two. As such, lockout if not in conflict with Sections. 22 and 23 may be said to be legal or not legal. Sections. 24(1)(iii), 10(3) and 10A (4A) similarly controls the lockout. A lockout in consequence of illegal strike is not deemed to be illegal. But if lockout is illegal, Section. 26(2), 27 and 28 will come in operation to deal with the situation. The Act does not lay down any guidelines to settle the claims arising out of illegal lockout. The courts, therfore, have adopted the technique of apportioning the blame between the employer and employees. This once agian brings to the fore the concept of justfiability of lockout.
The Statutory Definiion:
Section. 2(1) of the Industrial Disputes Act, 1947 defines 'lockout' to mean: The temporarary closing of employment or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him. A delineation of the nature of this weapon of industrial warfare requires description of: (i). the acts which constitute it; (ii). the party who uses it; (iii). the party against whom it is directed; and (iv). the motive which prompts resort to it.
Prohibition of Lockout:
In the similar circumstances the lockout has been prohibited in the public utitlity service. Section. 22(2) of the Act provides that no employer carrying on any public utility service shall lockout any of his workmen:
Strike: Strike is one of the oldest and the most effective weapons of labour in its struggle with capital for securing economic justice. The basic strength of a strike lies in the labour's privilege to quit work and thus brings a forced readjustment of conditions of employment. It owes its origin to old English words 'Striken to go'. In common parlance it means hit, impress, occur to, to quit work on a trade dispute. The later meaning is traceable to 1768. Later on it varied to 'strike of work'. The composite idea of quitting work or withdrawal of work as a coercive act could be gathered in the use of word as a verb as well as adjective. The definition and use of the word 'strike' has been undergoing constant transformation around the basic concept of stoppage of work or putting of work by employees in their economic struggle with capital.
The term 'strike' has been defined in a wide variety of branches of human knowledge, viz., etymology, sociology, political economy, law and political science.
Strike has been defined in Section. 2(q) of the Industrial Disputes Act as under:-
"Strike means a cessation of work by abody 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".
The analysis of the definition would show that there are the following essential requirements for the existence of strike:
- There must be cessation of work.
- The cessation of work must be by a body of persons employed in any industry.
- The strikers must have been acting in combination.
- The strikers must be working in any establishment which can be called industry within the meaning of section. 2(j).
- There must be concerted refusal.
- Refusal under a common understanding of anyy number of persons who are or have been so employed to continue to work or to accept employment.
- 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.
- Cessation of work: This is the most important characteristic of strike. It has been variedly expressed as 'abandonment', 'stoppage', 'omission of performance of duties of their posts', 'hampering or reducing normal works', 'hinerance to the working or suspension of work, discontinuing the employmentor breaking their contract of service or refusing or failing to return to or resume employment or refusing or failing to accept engagement for any work which they are usually employed for. Thus what is required for strike is that there must be stoppage of work or there must be refusal to continue to work or to accept employment by any number of personsemployed for the work but the refusal must be concerted or under a common understanding. The cessation of work may take any form. It must, however, be temporary and not forever and it must be voluntary. No duration can be fixed for this. If the cessation of work is as a result of renunciation of work or relinquishment of the strikers' status or relationship, it is not srike. Permanent cessation of work would result in termination of the contract of work which is alien to the underlying sanction of strike retaining contractual relationship during the strike periods. Cessation of work is not a cessation of contract of employment.
- Concerted action: Another important ingredient of strike is a concerted action. The workers must act under a common understanding. The cessation of work by a body of persons employed in any industry in combination is a strike. Thus in strike it must be proved that there was cessation of work or stoppage of work under a common understanding or it was a concerted action of the workers or there was cessation of work by workers acting in combination. Stoppage of work by workers individually does not amount to strike. The concerted refusal or refusal under a common understanding to continue to work or to accept employment or to resume work by any number of persons is a strike. One thing must be kept in mind that the refusal of work means refusal to perform duties which the workers are required to perform. If the workers are at liberty to do a particular work or not to do work their refusal to work does not amount to strike. For example, over-time work, if it is the duty of workers to do overtime work necessarily because it is the practice of that establishment to take overtime work from the workers in that case refusal to work overtime would amount to strike otherwise not. Thus the test to determine whether refusal to do overtime work constitutes a strike or not would depend upon whether overtime was habitually worked in that industry.
- if it is in breach of contract of employment.
- if it is in public utility services.
- if notice under section. 22(1) is not given.
- if commenced during award or settlement period.
- if commenced during or within seven days of completion of conciliation proceedings.
- if commenced during or within two months of completion of adjudicatory proceedings.
The use of the term 'lockout' to describe employer's instruments of economic coercion dates back to 1860 and is younger than its counterparts in the hands of workers, strike by one hundred years. Formerly the instrument of lockout was resorted to by an employer or group of employers to ban union membership: the employers refused employment to workers who did not sign a pledge not to belong to trade union. Later the lockout was declared generally by a body of employers against a strike at a particular work by closing all factories until strikers returned to work. India witnessed lockout twenty-five years after the lockout was known and used in the area of labour management relations in industrially advanced countries. The first known lockout was declared in 1895 in Budge Budge Jute Mills. Section. 2(1) defines the term lockout. However, the present definition is only a mutilated one. The term was originally and correctly defined in the Trade Disputes Act, 1929. From the definition given in the Trade Disputes Act, the present Act has taken the present definition but has only omitted the words "when such closing, suspension or refusal occurs in consequences of a dispute and is intended for the purpose of compelling those persons or of aid in another Employer in compelling persons employed by him to accept terms or conditions of, or affecting employment".
With the omission of these words, the present definition fails to convey the very concept of lockout. In Sri Ramchandra Spinning Mills V/s. State of Madras, the Madras High Court read the deleted portion in the definition to interpret the term lockout. According to the Court, a flood may have swept away the factory, a fire may have gutted the premises; a convulsion of nature may have sucked the whole place under ground; still if the place of employment is closed or the work is suspended or the employer refuses to continue to employ his previous workers, there would be a lockout and the employer would find himself exposed to the penalties laid down in the Act. Obviously, it shows that the present definition does not convey the concept of the term lockout.
Lockout, when legal
The Act treats strikes and lockouts on the same basis; it treats one as the counter part of the other. Thus what holds good-bad; legal-illegal; justified-unjustified for strikes holds the same for lockout. As such, the provisions of the Act which prohibit the strike also prohibits the lockout.
The object and reasons for which the lockouts are banned or prohibited are the same for which strikes are banned or prohibited. It is because the employers and employees are not discriminated in their respective rights in the field of industrial relationship between the two. As such, lockout if not in conflict with Sections. 22 and 23 may be said to be legal or not legal. Sections. 24(1)(iii), 10(3) and 10A (4A) similarly controls the lockout. A lockout in consequence of illegal strike is not deemed to be illegal. But if lockout is illegal, Section. 26(2), 27 and 28 will come in operation to deal with the situation. The Act does not lay down any guidelines to settle the claims arising out of illegal lockout. The courts, therfore, have adopted the technique of apportioning the blame between the employer and employees. This once agian brings to the fore the concept of justfiability of lockout.
The Statutory Definiion:
Section. 2(1) of the Industrial Disputes Act, 1947 defines 'lockout' to mean: The temporarary closing of employment or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him. A delineation of the nature of this weapon of industrial warfare requires description of: (i). the acts which constitute it; (ii). the party who uses it; (iii). the party against whom it is directed; and (iv). the motive which prompts resort to it.
Prohibition of Lockout:
In the similar circumstances the lockout has been prohibited in the public utitlity service. Section. 22(2) of the Act provides that no employer carrying on any public utility service shall lockout any of his workmen:
- without giving them notice of lockout as hereinafter provided, within six weeks befor locking out.
- within 14 days of giving notice.
- before the expiry of the day of lockout specified in any such notice as aforesaid.
- during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.
It makes clear that the employer has to comply with the same conditions before he declares lockout in his industrial establishment which the workmen are required to comply with before they go on strike. The conditions for both the parties are the same.
Conclusion:
India in the present context of economic development programmes cannot afford the unqualified right to the workers to strike or to the employer to lockout. compulsory arbitration as an alternative of collective bargaining has come to stay. The adoption of compulsory arbitration does not, however, necessarily mean denial of the right to strike or stifling of trade union movement. If the benefits of legislation, settlements and awards are to reach the individual worker, not only the trade union movement has to be encouraged and its outlook broadened but the laws have also to be tailored suitably. The existing legislation and judicial pronouncements lack breadth of vision. Indeed, the statutory definitions of 'strike' and 'lockout' have been rendered worse by a system of interpretation which is devoid of policy-oriented approach and which lays undue stress on semantics. The discussion of the concepts and definition of strike has sought to establish the legalistic consideration has frequently weighed with the court in interpreting and expounding the said statutory definition: We believe that emphasis on literal interpretation resulted in ignoring the ordinarily understood connotation of the term strike and in encouraging undesirable activity. We now pass on to acts which constitute strike. Unlike the Industrial Relations Bill, 1978 the three phrases used in the definition of 'strike' in IDA are not qualified by the expression 'total' or 'partial'. Further, they do not specifically take into account go-slow. The courts have accordingly excluded go-slow from the purview of 'strike'. However, the exclusion of go-slow from the ambit of 'strike' throws them open to the third party suits for damages.
Challapalli Srinivas Chakravarthy
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