Strikes and Lock-Outs

PART V
STRIKES AND LOCK-OUTS
A. S T R IK E S
Strike a n d lo c k -o u t— useful and pow erfu l w eapons in the arm o u ry

o f w orkm en a n d em ployers— are av ailable w h en a d isp u te or a struggle
arises betw een th em . T h reats o f th e ir use, even m o re th a n th eir actu al
use, influence th e course o f th e contest. T h e th re a t is often explicit; m u ch
m ore often it is ta c it b u t n o t for th a t re a so n th e less effective.
Skilful use o f th ese w eapons, th reaten ed o r actu al, m ay help one

p arty to force th e o th e r to accept its d em an d s, o r a t least to concede
som ething to th e m . B ut reckless use o f th em c o u rts th e risk o f unneces
sary stoppages. T h re a ts, even th o se n o t m e a n t seriously, can easily lead
into positio n s from w hich re tre a t becom es im possible. Stoppages h u rt
b o th parties b ad ly , create w orse tensions a n d frictions a n d v iolations o f
law an d o rd er. A n d abo v e all, fro m th e p u b lic ’s p o in t o f view they
re ta rd the n a tio n ’s econom ic developm ent.
T he sta te o f In d ia ’s econom y calls fo r m o re a n d m o re p ro d u c tio n .

T he indiscipline in in d u stries, and th e tend en cy to w a rd s violence and
vandalism in th e w hole society, d em an d in d u strial pacification. In d ia
ca n n o t to le ra te freq u en t stoppages o f w o rk fo r frivolous reasons o r the
orgies o f violen ce th a t to o often go w ith th em .
The In d u s tria l D isp u te s A ct seeks, fo r these reasons, to regulate or

restrict strikes an d lo ck -o u ts so th a t n e ith e r th e w orkm en n o r the
em ployers m ay h o ld th e n a tio n to ran so m .
II
A strik e, acco rd in g to Section 2 (q) o f th e In d u stria l D isputes A ct,

is a cessation o f w o rk fo r any le n g tT T o n im e u n d er a com m on u n d er-
standing to p u t p ressure o n a n em ployer to accept th e ir dem ands. Such
362 LABOUR LAW AND LABOUR RELATIONS
a S t r i k e can exist even th o u g h it is n o t p a rt o f an in d u stria l d isp u te in

th e technical sense.^ A m ere absence o f w orkers from th e factory^ or
a concerted application fo r leave is n o t a strike. B ut ab sence fro m w ork
even on a holiday w ith th e in te n tio n o f coercing th e em p lo y er h a s been
called a strike.®
, , -The so-called go-slow strik e needs special com m ent. I t occurs when
workers a tte n d to th eir w o rk b u t do it slow ly. T his c an cause heavy loss
to an em ployer. O ne p eculiarly effective form o f go-slow strik e, hard
to deal w ith , is so-called w orlc-to-rule, reso rted to by em ployees o f th e
telegraph departm en t. T his form o f strik e occurs, m ostly in posts
and telegraphs, b an k s, railw ays, an d so forth, w hen th e w orkm en, by
invoking tim e-consum ing rules th a t a re usually ignored, slow dow n th eir
w ork. T his differs from th e o rd in ary go-slow strike in th a t h e re the
w orkers m erely refuse to do m ore w o rk th a n they sh o u ld . It is som e
tim es very difficult, however, to determ ine w here w o rk -to -ru le ends and
go-slow begins. N eith er o f these so-called strikes leads to “ cessation o f
w o rk ” . T herefore it is d eb atab le w h eth er they com e w ithin th e A c t’s
definition. A go-slow strik e—presum ably because o f th e serious financial
injury it causes to an em ployer—has been h e l d j o be serious m isconduct.^
B ut can w ork-to-rule be sim ilarly h eld to b e m isconduct ? T h e w orkers
say, on th e co n trary , th a t th e ir co n d u ct is unusually legal a n d correct.
Ill
L o ck -o u t, |as th e antithesis o f strike, is tem p o rary clo su re o f a place

o f ‘busitiess by th e em ployer to bring p ressu re o n his w o rk m e n to accept
his term s. T his is th e w o rd ’s u su al m eaning, although a n in artistic defi
n itio n o f lo ck -o u t in Section 2 (1) seems to give a co lo u r o f lo c k -o u t to
any closure o f a place o f business, even one caused b y flood o r fire o r
earth q u ak e. T he courts have h a d to clarify th a t definition.
A p erm an en t discontinuance o f business is n o t a lo c k -o u t, because

a lock-out is a tem porary closure o f a place o f business, n o t a term in a
tio n o f th e business itself.®
A fter a declaration o f lo ck -o u t by an em ployer the w o rk m en are n o t

required to p resent them selves fo r w ork. T herefore, if a lo ck -o u t is held
to b e unjustified, all affected w orkm en are en titled to com p en satio n .
1. G.D, Dalvi V. GoodJass Wall L td.. Bombay. (1956) II L.L.J. 278.

2. Ram Samp v. Rex, [1949-50] 1 R J.R . 113; A .I.R . 1949 All. 2J8.
3. See Pipriach Sugar Mills Ltd. v. Tlieir Workmen, [1956-57] 10 F. J.R, 413.
4. Vasant Govind Madhava Rao v. Gujarat Works L td ., (1956) II L.L.J. 731 (L.A.T.).
5. Jaya Bharat Tile Works v. State o f Madras. (1954) 1 L.L.J, 286.
STRIKES 363
IV
. Sections 22 to 24 o f th e In d u strial D isp u tes A ct deal w ith p ro h ib i

tion on b o tlT strik es a n d lo ck-outs. W e shall briefly describe the lim ita
tions on strikes, w hich lim itations also ap p ly , m u ta tis m utandis, to
lock-outs.
The A c t classifies industries in to p u b lic-u tility services and o th ers,

and it p ro h ib its strikes in th e form er m o re stringently th a n in the la tte r.
In a p u b lic-u tility service a strike i-equires a notice o f n o t less th an

tw o w eeks a n d n o t m o re th a n six. In d u stries o th e r th a n public-utility
services d o n o t need such notices. In a p u b lic-u tility service any strike
pending c o n ciliatio n is illegal.® I n any o th er in d u stry a strike pen d in g
conciliation is legal— w ith th e sole exception o f one pending conciliation
before a b o a rd .'' R eg ard less o f n o tice an d in any in dustry, a strik e is
illegal d u rin g a p e rio d o f adjud icatio n , o r w ithin th e effective p e rio d o f
any aw ard o r an y settlem ent.
A strik e legally in existence a t th e tim e o f a reference to a trib u n a l,

o r to an a rb itra to r, or to a b o a rd o f conciliation is n o t m ad e ipso fa c to
illegal by th e reference.® B u t th e a p p ro p ria te G o v ern m en t can by order
pro h ib it such a strik e’s continuance."
Tlie G overn m e n t h olds o ne m o re w eap o n — an ultim ate w eap o n —

against” strik es an d lo ck -o u ts. This is th e E ssential Services Act. N o t
w ithstan d in g reco g n itio n b y all th e above provisions o f th e legality o f a
p artic u la r strik e o r lo c k -o u t, a g overnm ent m ay declare any business to
be a n essential service, a n d th e n b an an y strik e o r lo ck -o u t.
Strikes (legal o r illegal) have been classified in to justified a n d u n

justified strik es. D ism issals o f illegal strik ers have som etim es been dis
approv ed o f o n th e g ro u n d th a t th e strik e, w hile illegal, was justified.
Sim ilarly, claim o f leg al/strik ers have som etim es been dism issed o n th e
g round th a t th e strike, w hile legal, w as n o t justified. B u t it is now settled
th a t an illegal strik e c a n n o t be a justified strike.
6. Section 22.
7. Section 23.
8. Section 24 (2).
9. Section lO (3).
In deciding the questio n o f p u n ish m en t o f strikers, a com p an y m ust

conduct an enquiry to d eterm ine the ro le o f th e strikers a n d m u st dis
tinguish betw een peaceful strik ers a n d v io len t strikers. I t m ay n o t punish
all strikers indiscrim inately.
Even peaceful strikers in a strike th a t is legal and ju stified , have no

absolute rig h t to strike-pay. B ut considering the eco n o m ic disp arity
betw een th e em ployers and th e w orkm en, a n d th e u n e q u a l barg ain in g
pow er o f th e w'orkmen, wages fo r th e p e rio d o f a strike, o r p a r t o f it, are
usually aw arded on gro u n d s o f social justice..„ In aw arding such strike-
pay th e co u rts consider th e statu s o f the strike not only a t its com m ence
m ent b u t also durin g its course later on.^®
P U N JA B N A T IO N A L B A N K v. T H E IR E M P L O Y E E S
Suprem e Court, (1959) 2 L .L .J. 666
[The B an k dismissed 150 em ployees for talcing p a rt in a pen-dow n

strike. T he L a b o u r A ppellate T rib u n al rein stated 136 o f them . In these
two civil appeals, one o f th e issues fo r decision by th e Suprem e C o u rt
was th e p ro p riety o f th e aw ard o f reinstatem ent. E x ce rp ts fro m th e
judgm en t, delivered by G a jen d rag ad k ar J., follow ;]
The first co n ten tio n raised b y th e b a n k is in regard to th e c o n d u ct

o f the em ployees in entering u p o n a pen-dow n strike a n d its effect on
their claim fo r rein statem en t....
Is th is pen-dow n strike a strike w ith in S. 2 (q) o f th e A c t o r n o t ?

Section 2 (q) defines a strike as m eaning a cessation o f w o rk b y a b o d y o f
persons em ployed in any in d u stry acting in co m bination, or a concerted
refusal, o r a refusal under a co m m o n \indevstat\ding of any n u m b e r o f
persons w ho are o r have been so em ployed to c o n tin u e to w o rk o r to
accept em ploym ent. ... O n a p la j^ a n d g ram m atical c o n stru c tio n o f this
definition, it w ould b e difficult to exclude a strike w here w orkm e n te r
th e prem ises o f th eir em ploym ent knd refuse to ta k e th e ir to o ls in h a n d
an d start th e ir usual w ork. R efusal u n d e r com m on u n d e rsta n d in g to
co n tinue to w o rk is a strike a n d 'if in p u rsu an ce o f such c o n ira o n u n d e r
standin g th e em pIoy^s'etfreredr'tE e prem ises o f th e b a n k a n d refused to
tak e their pens in th e ir hands, th a t w ould n o d o u b t be a strik e u n d er
S .2 ( q ) ....
I t w as...u rg ed [by th e bank] th a t th e entry o f th e strikers in the

prem ises o f th e b a n k am ounted to civil tresp ass..,.
10. D.D. Seth, Commentary on the Industrial Disputes Act, 1947 at 353-54 (1966).
STRIKES 365
[T]he decision o f th is tech n ical p o in t w o u ld d epend on w hether or n o t the

em ployees a re given a lim ited or co n d itio n al licence to enter th e prem ises
and [w hether] i f they have decided to go o n strike th e said c o n d itio n al o r
lim ited licence is no lo n g e r available to th e m . W e do n o t th in k it neces
sary to co n sid er th is academ ic question in th e p resen t proceedings because,
in o u r o p in io n , th e A p p ellate T rib u n al was obviously rig h t in h o ld in g
th a t even i f civil tresp ass was involved in th e co n d u ct o f the em ployees,
th a t b y itself c a n n o t ju stify th e rejection o f th e ir claim fo r reinstatem ent.
Incidentally w e m ay a d d th a t even in A m erica “ th e sim ple a c t o f
trespassing u p o n th e em p lo y e r’s p ro p e rty is n o b a r to reinstatem ent n o r
is the act w hich is a t m o st a civil to r t.”
(Ludw ig T eller’s “ L a b o u r D isp u tes a n d C ollective B arg ain in g ,” V ol. II ,

p. 855)....
I t is [next] arg u ed th a t th e co n d u c t o f th e em ployees am o u n ts to

crim inal tresp ass w hich is a n offence an d as such th o se w ho co m m itted
crim inal tresp ass w ould n o t be entitled to re in sta tem en t. A ccording to
th e b a n k th e em ployees co m m itted crim in al tresp ass inasm uch as th ey
either entered unlaw fully o r having law fully entered co n tin u ed to re m ain
there unlaw fully w ith in te n t thereby to in su lt o r a n n o y th e ir su perior
officers. I t w o u ld be n o ticed th a t there a re tw o essential ingredients w hich
m u st be estab lish ed b efo re crim inal tre sp a ss can be p ro v ed against the
em ployees. E v e n if we assum e th a t th e em ployees’ en try in th e prem ises
was unlaw ful o r th a t th e ir continuance in th e prem ises becam e unlaw ful,
it is difficult to ap p reciate th e argum ent th a t th e said en try was m ade w ith
in te n t to in su lt o r an n o y th e superior officers. T he sole in te n tio n o f the
strikers obviously w as t o p u t pressure o n th e b a n k to concede th e ir
dem ands. E ven i f th e strik ers m ay have kn o w n th a t th e strike m ig h t
annoy o r in su lt th e b a n k ’s officers, it is difficult to h o ld th a t such k n o w
ledge w ould necessarily lead to th e inference o f th e requisite in ten tio n . In
every case w here th e im p u g n ed en try causes ann o yance o r in su lt it can n o t
b e said to b e a c tu a te d b y th e requisite in te n tio n ....
In resisting th e em ployees’ claim f o r rein statem en t o n the g ro u n d

th a t p a rtic ip a tio n in a pen-dow n strike creates a b a r against such a claim
th e b a n k h a s strongly relied o n the decision o f th e Suprem e C o u rt o f
A m erica in N a tio n a l L a b o r R elations B o ard v. F an steel M etallurgical
C o rp o ra tio n [306 U .S . 238 S.C .; 83 L aw E d. 627.]...... I t is, therefore,
necessary to exam ine th is case carefully. In this case, the N a tio n a l
L ab o r R elatio n s B o a rd h a d directed th e rein statem en t o f p articip an ts in
a sit-dow n strik e w hom , u p o n th e ir refusal to leave th e em ployer’s p la n t,
th e em ployer declared to b e discharged. T h e b o a rd h a d held th a t despite
th e illegal strik e an d th e consequent o rd er o f discharge th e status o f th e
employees continued.... It h ad also taken the view th a t it had jurisdictiotv

to direct reinstatem ent o f the said em ployees....w ith a view to effectuate
the policies of the Act. B oth these conclusions were reversed by the
Supreme C ourt by a m ajority judgm ent. According to the m ajority view,
when the Congress enacted the N atio n al L abor R elations A ct, it
“ did n o t intend to compel em ployers to retain persons in their

employ regardless o f their unlaw ful conduct—to invest those who go
on strike with an im m unity from discharge for acts o f trespass or
violence against the em ployers’ property, Vi>hich they w ould n o t have
enjoyed had they rem ained a t w ork.”
I t was also held th a t
“ the Congress was in ten t upon protection o f em ployees’ right to self

organization and to th e selection o f representatives of th eir own
choosing for collective bargaining w ithout restraint or coercion,”
On the facts the conclusion o f the m ajority was th at th e strike was illegal
in its inception and prosecution. This was really n o t the exercise o f the
lig h t to strike to w hich the. A c t referred. It was an illegal seizure o f
th e builduigs in order to prevetii, th eir use by th e em ployer in a lawful
m anner, an d thus by acts o f force and violence com pel the em ployer to
submit. T he conclusion, therefore, was th a t to provide fo r the reinstate
m ent or reem ploym ent o f employees guilty o f the acts w hich even
according to the Board h a d been com m itted w ould n o t only n o t effectuate
any policy o f the A c t b u t w ould directly te n d to m ake abortive its plan
fo r peaceable procedure....
In considering the question as to w hether th e principle underlying

the m ajority decision, should be applied to a pen-dow n strike in India,
it is necessary to remember th a t th e pea-dow n strike p roperly so-called is
recognised as a strike und er S. 2 (q) o f th e Act and so it w ould n o t be
safe to extend the principles of A m erican decisions bearing on this ques
tio n w ithout a careful scrutiny o f th e relevant provisions o f the A m erican
statute an d the facts on which the said decisions are based. Let us then
consider the facts on which the m ajority decision was b ase d ...,
[The C ourt then n arrated the facts o f the Fansteel case.]
A bare statem ent o f these facts would clearly bring c a t th e tru e character
o f th e strike with which th e Suprem e C o u rt was dealing. I t was n o t
merely an illegal peaceful strike; it was a strike which began w ith the
w rongful seizure o f the em ployer’s p ro p erty and bis exclusion fro m it; a
strike accom panied by violence which led to pitched battles between th e
STRIKES 367
strikers a n d th e sh eriff’s m en; a strilce co n tin u ed by the strikers even after

they were fo rm ally d ischarged fro m the em ploym ent a n d ag ainst an o rd er
o f injunction by a co m p eten t court. I t is difficult to accede to th e a rg u
m en t th a t th e m ajo rity d ecision in th a t case can be extended to th e facts
before us. A s T eller h a s observed
“ th e strik e in q u estio n can b e m ore accu rately defined as a strik e in

th e tra d itio n a l sense to w hich is add ed th e elem ent o f trespass o f
th e strik e rs u p o n th e p ro p erty o f th e em p loyer.” (Ludw ig T eller’s
L ab o u r D isp u tes an d C ollective B a rg ain in g .” V ol. I p. 311, S. 106.)
T herefore, in o u r o p in io n , th is decision does n o t assist th e b a n k in su p

p o rt o f its case th a t m ere p a rtic ip a tio n in th e illegal strike in th e p resen t
case can b y itse lf defeat th e claim of th e em ployees fo r re in sta tem en t....
F o rtu n a te ly as th e In d ia n T rad e U n io n s A ct 16 o f 1926, th e In d u s

tria l E m p lo y m en t (S tan d in g O rders) A ct X X o f 1946 a n d the Ind u strial
D isputes A c t 14 o f 1947 show , o u r legislature h as very wisely benefitted
by the experiences o f o th e r countries in th e m a tte r o f th e developm ent o f
trad e union m ovem ent, a n d has m ade progressive, ju s t and fair provision
governing th e im p o rta n t p roblem s of in d u stria l relationships, the fo rm a
tio n o f tra d e u n io n s, a n d th e settlem ent o f in d u strial disputes. I t c an be
ju stly claim ed th a t th o u g h we have w itnessed cap ital lab o u r conflicts in
o u r country, on th e w hole neither p a rty has d ep arted from th e p u rsu it o f
peaceful m eth o d s and b o th p arties su b m it th e ir disputes to be resolved in
accordance w ith th e provisions o f th e A ct. In dealing w ith in d u strial
disputes like th e presen t, we m ust, th erefo re, p rim arily consider th e
relevant sta tu to ry pro v isio n s an d th e m aterial In d ia n decisions. T h u s
considered, th e conclusion is inevitable th a t th e p en-dow n strike is a strike
w ithin S. 2 (q) an d so p e r se it c a n n o t be tre a te d as illegal; it has been
found to b e illegal in th is case because it w as com m enced in contraven
tio n o f S. 23 (b) o f th e A ct; b u t, as has been held by th is C o u rt in B urn
&■ C o., L td . v. T h eir w orkm en and o th ers (1959— I L .L .J. 450) m ere
p articip atio n in such an illegal strike c a n n o t necessarily involve th e re
jection of th e strik e r’s claim fo r reinstatem ent. A s we have already in
d icated, on th e findings o f the A ppellate T rib u n a l n o th in g m ore th a n
such p a rtic ip a tio n h as been p roved ag ain st th e em ployees whose rein
statem ent h a s been o rd ered ; and so, unless th e said finding is reversed,
th e first c o n te n tio n raised b y the b a n k m u st fail.
It has been stren u o u sly urged b efore us th a t in th e case o f a b an k

which is a cre d it in stitu tio n a pen-dow n strik e, if continued fo r a long
p erio d , is likely to affect prejudicially th e cred it o f the b ank. I t is also
p o in ted o u t th a t, even in reg ard to th e in d u strial concerns, if strikers
enter th e prem ises o f th e fa c to ry a n d sit aro u n d th e p la n t in large

num bers, in the h eat o f th e m o m en t u n fo rtu n a te and ugly incidents
are likely to happen, a n d so such pen-dow n o r sit-dow n strik es sh o u ld be
positively discouraged. W e are p rep ared to concede th a t in th e surcharged
a ta io s p h e re 'w ® c ^ ^ accom panies strikes and w hen p assio n s are
aroused, a large-scale a n d co n tin u o u s pen-dow n strike m ay lead to u n to
w ard consequences. B u t, o n th e o th e r h a n d , even in th e case o f su ch a
strike, th e em ployer is n o t w ith o u t a rem edy. He m ay b a r th e entry of
the strikers w ithin th e prem ises by ad o p tin g effective an d legitim ate
m ethods in th a t b e h a lf as in fact the b a n k d id in th e presen t case from
23 A pril. H e m ay call u p o n th e em ployers to v acate, an d , on th e ir refu
sal to d o so, tak e due steps to suspend th em from em p lo y m en t, proceed
to h o ld p ro p e r enquiries according to th e standing o rd e rs, and pass p ro
p e r orders against them subject to th e relev an t p rovisions o f th e A c t....
T herefore vs'e do n o t th in k th a t th e general h y pothetical consideration
th a t pen-dow n strikes m ay in som e cases lead to row dy dem o n stratio n s
o r resu lt in disturbances o r violence o r shake th e cred it o f th e b a n k
would ju stify the conclusion th a t even if th e strikers are peaceful and
non-violent and have d one n o th in g m o re th a n occupying th e ir seats
during office hours, their p a rtic ip a tio n in th e strike w ould by itse lf dis
qualify th em from claim ing rein statem en t.
[The C o u rt dism issed th is p o rtio n o f th e appeal.]
IN D IA G E N E R A L N A V IG A T IO N A N D R A IL W A Y CO. L T D . v.
T H E IR W O R K M E N
Suprem e C ourt, (1960) I L .L .J. 13
[The C om pany carries o n a business o f inland w ate r tra n s p o rt, and

m ain tain s a huge nu m b er o f w harves, jetties, godow ns, etc., a t different
river statio n s in In d ia an d in P ak istan . O ne such sta tio n is a t D h u b rl
in A ssam , w here m any w orkm en are em ployed. These m en lo ad an d un
lo a d th e C om pany’s vessels and help to tran sh ip goods from railw ay
w agons to vessels and vice versa. Before m ay 1954, such w orkm en
were em ployed by a la b o u r supply syndicate. T h ey h a d tw o U nions.
C ertain diferences arose betw een th e syndicate an d the w orkers a n d th e ir
U n io n s.
In M ay 1954 the C om pany agreed to abolish th e c o n tra c t system

a n d to establish stopgap system pending th e outcom e o f a trip a rtite co n
ference to decide th e issue o f p erm an en t direct em ploym ent o f th e w ork
ers. The C om pany also agreed to m ain ta in the w o rk m en ’s co n tin u ity o f
service o n exising term s. T h e trip a rtite conference finally recom m ended
perm anent direct em ploym ent a t all th e tran sh ip m en t gh ats o f A ssam , to
STRIKES 369
be adopted progressively, w ith o u t prejudicing th e agreem ent o f M ay 1954.

B u t soon a fte r th e o th e r differences aro se, as a resu lt o f w hich the C o m
p any dism issed eight em ployees, on charges a n d after giving eac h an
o p p o rtu n ity to b e h eard . '
O n 21 J u n e 1955, b o th U n io n s served strik e notices on the C om pany.
C onciliation preceediogs failed a n d a larg e n u m b e r o f w orkm en w ent on
strike on 10th A u g u st 1955. T he C o m pany alleged th a t they fo rcibly en
te red th e C o m p a n y ’s je ttie s a n d o th e r w orking places, and o b structed
th e w ork o f lo y al w orkm en. O n 11 A u g u st 1955, the D istrict M ag istrate
issued an o rd e r u n d e r th e C ode o f C rim in a l P ro ce d u re to m a in ta in law
and order. T he C o m p a n y declared a lo c k -o u t on th e sam e day. O n 19
A ugust th e U n io n s called off the strike. T h e C o m pany lifted the lo c k
o u t o n 27 A ugust. T h e C o m pany susp en d ed those w orkm en w hom it
claim ed to h av e o b stru c te d th e loyal w o rk m en d u rin g th e strike. O n 8
Septem ber 37 em ployees w ere convicted fo r v io latio n o f th e o rd er o f th e
D istrict M ag istrate. O n 9 Septem ber th e C o m pany dism issed them .
A n other 52 em ployees w ere convicted fo r such violations on 17 F eb ru ary
1956.
O n 13 S eptem ber th e G overm ent o f A ssam b y notice created and
convened a B oard o f C onciliatio n consisting o f th e L ab o u r C om m issioner
and representatives o f th e em ployees a n d o f th e em ployers. T he B o ard ,
b y a m ajo rity , decided th a t th e dism issal o f 37 w o rkm en on 8th Septem
b er h ad o ccu rred d u rin g conciliatio n proceedings, and so h a d violated the
In d ustrial D isp u te s A ct. T his was because th e B o a rd ’s proceedings h a d
begun on 26 A ugust ra th e r th a n on 13 S eptem ber. T h e B o ard refused
perm ission, how ever, to dism iss 223 w orkm en who to o k p a r t in the strik e.
I t believed th a t th e strik e, alth o u g h illegal, was justified.* T he em ployer
m em ber dissented.
The G o v ern m en t o f A ssam th e n referred th e d ispute fo r adjudication.
T he In d u strial T rib u n a l also held th a t th e strike, alth o u g h illegal, was
justified,* a n d th a t th e C o m p an y was n o t entitled to dism iss the w orkm eu.
I t therefore directed rein statem en t o f 208 w o rk m en, w ith full wages an d
allow ances fro m A u g u st 1955 till th e d a te o f rein statem en t and refused
reinstatem en t to 52 w o rk m en on th e g ro u n d th a t they had been convicted
u n d er th e In d ia n P en al C o d e for using crim in al force. I t reversed the
dism issal o rd e r o f th e 8 w o rk m en w ho w ere dism issed before July 1955,
a n d rein stated th e m w ith b a c k wages. T h e C o m p an y appealed the aw ard
by special leave to th e Suprem e C ourt. E xcerp ts fro m th e ju d g m en t o f
th e C o u rt, delivered b y S in h a, C .J. follow :]
Four asserted facts thought to justify the strike are mentioned in a note inserted in
the judgment below. These facts are too complicated to permit detailed discussion.
Eds.
The first question th a t arises in this connection, is w hether the strike

was illegal,...as found by the trib u n al. The learned counsel fo r the res
pondents [the w orkm en] sought to reopen the finding about th e illegality
o f the strike, basing his subm issions m ainly on the contention th a t there
were no conciliation proceedings pending either in fact o r in law on th e
date o f the strike, and th a t, therefore, th e finding o f the trib u n a l was n o t
correct... .It is enough to obsex-ve th at under S. 20 o f the A ct, th e conci
liation proceedings m ust be deem ed to have commenced on 26 July 1955
when the notice o f the strike was received by th e conciliation officer, an d
those proceedings shall be deem ed to have concluded when the rep o rt o f
the conciliation officer is received by th e G overnm ent. In this case, the
rep o rt to the G overnm ent was m ade by tlie conciliation officer o n 8
A ugust 1955. It is ivot absolutely clear as to when this re p o rt o f the c o n
ciliation officer was actually received by the G overnm ent. It is clear,
therefore, th a t the conciliation proceeding certainly lasted betw een 26
July and 8 A ugust 1955. The strike, having com menced on I I A ugust,
was clearly illegal in view of the provisions o f S. 22 [(l)(d)] o f the A ct.
W e m ust, therefore, h o ld in agreem ent w ith the tribunal, th a t th e strike
was clearly illegal.
T he trib u n al, having held th a t the strike was illegal proceeded to

discuss the question w hether it was justified, and caine'toTH e conclusion
th a t it was “ perfectly j.u slifie i” In the first place, it is a little difficult to
understand how a strike in respect o f a public utility service, w hich is
clearly illegal, could at th e sam e tim e be characterized as “ perfectly ju s ti
fied” . These tw o conclusions cannot in law exist. The law h a s m ade a
distinction betw een a strike w hich is illegal and one which is n o t, b u t it
has not m ade any distinction between an illegal strike w hich m ay be said
to be justifiable and bne which is not justifiable. The distinction is n o t
w arranted by the Act, and is wholly misconceived, specially in the case
o f employees in a public utility service. Every one p articip atin g in an
illegal strike, is liable to be dealt with departm entally,* o f course, subject
to the action o f the departm ent being questioned before an industrial tr i
bunal, b u t it is n o t permissible to characterize an illegal strike as ju s ti
fiable. The only question of practical im portance which m ay arise in th e
case o f an illegal strike, w ould be th e k in d or q u antum of pu n ish m en t a n d
th a t, o f course, has to be m odulated in accordance with th e facts a n d
circum stances of each case. Therefore, the tendency to condone w hat
has been declared to be illegal by statute, m ust b e deprecated and it m u st
be clearly understood by those w ho ta k e p a rt in an illegal strik e th a t
thereby they m ake themselves liable to be dealt with by th e ir em ployer.
There m ay be reasons for distinguishing the case o f those who m ay have
i.e., by departmental, or domestic enquiry. Eds.

STRIKES 371
acted as m er^. dum b-dri.ven caM o frp m th o se w ho have ta k e n a n active

p a rt in fo m en tin g th e tro u b le an d in stig atin g w orkm en to jo in such a
strike, or h av e ta k e n reco u rse to violence,
[The C o u rt then co nsidered the reasons w hich h a d Jed th e trib u n a l to

find th e (illegal) strike justified. T hese w ere th a t th e T rib u n a l th o u g h t
the C o m p an y g uilty o f b a d faith becau se o f (a) th e precip itate w ay in
which its jo in t ag en t h a d appealed fo r police p ro te c tio n ; (b) th e fai
lure o f th e C o m p an y , as rep o rted by th e co n ciliation officer, to give co n
tractu a lly -req u ire d leaves to five w ork m en , u n io n officials, so as to allow
conciliation proceed in g s to go fo rw ard ; (c) a conspiracy betw een th e
C om pany a n d one o f th e tw o U n io n s to opp o se th e strike in a m a n n e r
am ountin g to an u n fa ir la b o u r practice; a n d (d) con tin u an ce by th e C o m
p any o f a n unjustified lo ck -o u t after th e strik e h a d ended and w hile disci
plinary a c tio n w as being started . T he details o f th ese claim s are to o co m
plicated fo r d etailed discussion here. T h e C o u rt disagreed, on the facts,
w ith each o f these re a so n s. Its ju d g m e n t co n tin u ed.]
I t w as, in p u rsu an ce o f ...[an o rd e r o f th e jo in t agent p o stp o n in g

th e en d o f th e lo ck -o u t] th a t proceedings w ere ta k en ag ainst th e so-called
leading strik ers leading u p to th e ir dism issal. T h ose orders o f dism issal,
to be p resen tly discussed, are th e m ain p o in ts in controversy betw een th e
p arties in th is C o u rt, B u t b efore th o se o rd ers o f dism issal were passed,
th e m an a g e m e n t issu ed a n otice o n 26 A ugust 1955, lifting th e lo c k -o u t
w ith effect fro m th e n ext day. It req u ired th e em ployees to re p o rt fo r duty
to th e jo in t ag en t p erso n ally , at his office b etw een th e h o u rs o f 9 and
10 a.m . It also c o n ta in e d th e th re a t th a t a n y em ployee w ho did n o t re p o rt
fo r d u ty o n 30 A u g u st “ w ill, in th e absence o f a le tte r o f exp lan atio n an d
good reaso n , be tre a te d as hav in g v o lu n tarily te rm in a te d his services.”
R .N . Biswas was th en a p p o in te d th e in q u iry officer by th e ap p ellan ts,
and h e h e ld th e in q u iry in b a tc h e s....A s a resu lt o f each one o f these
inquiries, th e in q u iry officer, R .N . B isw as, re p o rted th a t the charge
against each o n e o f th e w orkm en h a d b een p ro v e d to his satisfaction.
B ut before th e in q u iry w as held, th e jo in t ag en t, o n 9 Septem ber 1955,
inform ed th e thirty-seven w orkm en w ho h a d been convicted as aforesaid
o f th e crim in al ch arg e u n d e r S. 188 o f th e In d ia n P en al C ode, th a t th e ir
services w ere te rm in a te d fro m th a t,d a te , a n d th a t they were to call a t his
office by 15 o f th e m o n th to collect th e ir dues an d to vacate th e q u arters
o f th e a p p e lla n ts. A s regards th e re m ain in g tw o h u n d re d a n d tw enty-
th ree w o rk m en , orders w ere passed on 16 S ep tem ber to th e effect th a t as
th e d e p a rtm e n ta l in q u iry m ade again st th em h a d resulted in the charges
against th em being p ro v ed , they were dism issed fro m th e service o f the
appellan ts w ith effect fro m 29 A ugust 1 9 5 5 .... [Because o f the co m p an y ’s
realizatio n th a t p erm ission was needed, how ever, th e dism issals of th e 37
372 LABOUR LAW AND LABOUR RELATiONS
workm en and th e 223 w orkm en were held in abeyance pending perm ission
from tiae board o f eonciliation. T he B o ard ’s action h a s already been
noted.]
As a m atter o f fact, th e trib u n al has closely follow ed the findings
o f the m ajority o f th e b o a rd o f conciliation. But as we have already
pointed out th ere can b e no question o f an illegal strike being justified.
We have fu rth er held, in agreem ent w ith th e tribunal th a t th e strike w as
illegal, a n d th a t it was n o t even justified— in disagreem ent w ith th e
tribun al—assum ing th a t such a situation could be envisaged, in acco rd
ance w ith th e provisions o f th e A.ct..-.
[The C o u rt then proceeded to discuss the question “ w h at pun ish m en t

if any, should be meted out to those w orkm en who took p a rt in th e illegal
strike.” See th e decisions u nder “ T erm in atio n o f Service an d D o m estic
E nquiry” especially th e Buckingham and Carnatic M ills case an d the
Bata Shoe Company case on this point. Eds.]
[A ppeal p a rtly allow ed.]
D E L H I A D M IN IS T R A T IO N v.
W ORKM EN OF ED W A RD KEVENTERS
A .I.R . 1978 S.C. 976
[Excerpts from the judgm ent or K rish n a Iyer J. follow :]
A very sh o rt question as to the scope o f Section 10 (3) o f th e In d u s

trial D isputes A ct, 1947, arises for consideration in this ap p eal by special
leave. T he appellant, D elhi A dm inistration, was faced w ith th e question
o f referring several disputes, 16 in num ber, for adjudication under S. 10(1)
o f the Act. T he workm en h ad raised all these disputes alth o u g h m any
o f them were perhaps covered by an earlier settlem ent. W e are n o t
concerned with the facts of this p articu lar case which have been set o u t
a t some length by th e H igh C o u rt in its judgm ent, b u t w ith a n arro w
issue as to when the power to prohibit a strike w ith w hich th e S tate/
appro p riate G overnm ent is arm ed u nder S. 10(3) o f the A ct can be p u t
into operation. This turns on a reasonable construction o f the provision
itself....
Two conditions are necessary to m ake Section 10(3) applicable.

T here m\ist be an industrial dispute eixisting an d such existing dispute
m ust have been referred to a ...T rib u n a l...u n d e r this section, nam ely,
Section 10(1). Section 10 stands as a self-contained Code as it were so
far as this subject-m atter is concerned. T he prohibitory pow er springs
into existence only when such dispute has been m ade th e subject o f
reference under S. 10(1). W h at then is such d isp u te ? T he suchness o f
srRIKES 373
the disp u te is a b u n d a n tly b ro u g h t o u t in th e preceding p o rtio n o f the

sub-section. C learly , th e re m u st be a n in d u stria l disp u te in existence.
Secondly, such d isp u te m u st have been alread y re fe rred fo r ad ju d ic atio n .
T hen, and th e n alo n e, th e pow er to p ro h ib it in respect o f such referred
d ispute can be exercised.
T here is a d istin ctio n betw een strikes being illegal un d er o ther sections
o f th e A c t a n d p en alties being availab le ag ain st such illegal strikes on
the one h a n d a n d strik es being c o n tra ry to S. 10(3) o f th e A ct an d liable
to be p ro h ib ite d th e re u n d e r. T his d istin c tio n once g rasped, th e base
lessness o f th e sub m issio n on b eh alf o f th e ap p e llan t necessarily follovi's.
Shri A g g arw al pressed before us a ru lin g re p o rte d in K eventers
Karmachari Sangh v. L t. Governor o f D elh i, (197I)-2 L L J 375, decided by
the D elhi H ig h C o u rt. A lth o u g h th e ra tio th ere is c o n tra ry to the sam e
H igh C o u rt’s rulin g w hich is th e subject-m atter o f th e p resen t ap p eal, we
are obviously in clin ed to a d o p t th e reaso n in g o f th e ju d g m e n t u n d er
appeal. Im a g in e tw en ty good g ro u n d s o f d isp u te being raised in a
c h a rte r o f d e m a n d s by th e w orkm en an d th e a p p ro p ria te G o v ern m en t
u n ilaterally a n d subjectively deciding against th e w orkm en on nineteen
o f them a n d referrin g o n ly one fo r ad ju d icatio n . H o w c an this resu lt in
th e an o m a lo u s situ a tio n o f th e w orkm en being d eprived o f th e ir basic
rig h t to go on strik e in su p p o rt o f th o se n in eteen dem ands. T his w ould be
productiv e n o t o f in d u stria l peace, w hich is th e objective o f the In d u srial
D isputes A c t, b u t cou n ter-p ro d u ctiv e o f such a p u rp o se. I f G o v ern m en t
feels th a t i t sh o u ld p ro h ib it a strike u n d e r S. 10(3) it m ust give scope
for th e m erits o f such a dispute o r d em an d being gone in to by som e o th e r
adju d icato ry b o d y by m ak in g a reference o f all th o se dem ands u n d er
S. 10(1) as disputes. In reg ard to such disputes as are n o t referred u n d er
S. 10(1), S. 10(3) c a n n o t operate. T h is stan d s to reason and ju stice
a n d a d em an d w hich is suppressed b y a p ro h ib ito ry o rd er an d is n o t
allow ed to be v en tilated fo r adju d icatio n b efore a T rib u n a l w ill explode
into in d u stria l u n rest a n d ru n c o n tra ry to th e p o licy o f in d u strial
ju risp ru d en ce.
T h u s, o n p rin cip le a n d th e tex t o f th e law , w e are convinced th a t
Sec. 10(3) com es in to p la y w hen th e b asis o f th e strike is covered by
S ection 10(1). R eference o f a dispute a n d P ro h ib itio n o f a strik e on
o th e r d em ands is im p erm issib le....
(A ppeal dism issed.)
C H E M IC A L S A N D F IB R E S O F IN D IA L T D . V. D .G . B H O IR
[T here w as a d isp u te betw een a w o rk m a n a n d th e m anagem ent o f

C hem icals a n d F ib res L td ., , concerning th e fo rm e r’s dism issal. This
“ individual dispute” becam e an “ in d u strial dispute’” in view o f th e

o f section 2 A o f th e In d u strial D isputes A ct, 1947 a n d th e
p r o v is io n
G overnm ent referred the “ in d u strial d isp u te ” to a L a b o u r C o u rt fo r

adjudication. D uring the pendency o f adjudication proceedings relatin g
thereto, th e m anagem ent dism issed three o th er w orkm en. T h ereafter th e
w orkm en w ent o n strike to p ro test against th e dismissal o f th e aforesaid
three em ployees. W as this strike p ro h ib ited und er section 23 (b) o f the
A ct ? Excerpts fro m th e ju d g m en t o f th e C o u rt, delivered by A lagirisw am i
J. follow ;]
....Section 23, in so far as it is relevant fo r the purposes o f this case,

reads as follow s ;
“ 23. N o w orkm an who is em ployed in any in d u strial establishm ent
shall go on strike in breach o f co n tract and no em p lo y er o f any
such w orkm an shall declare a lock-out—
(a) * * *
(b) during the pendency o f proceedings before a L a b o u r C o u rt,
T rib u n al or N atio n al T rib u n al an d two m o n th s after th e
conclusion o f such proceedings;
(bb) «
(c) during any period in w hich a settlem ent or aw ard is in o p e ra tio n ,
in respect o f any o f th e m atters covered by th e settlem ent o r
aw ard” .
The im p o rta n t w ords are “ during th e pendency o f proceedings” . U n

doubtedly a proceeding was pending beofre th e L abour C o u rt a n d th a t
was in respect o f th e dism issal o f B obhate. D id this m ake the strike by
th e w orkm en o f th e appellant illegal th o u g h at least in its origin th e
strike had noth in g to do w ith B obhate’s case ? I t was com m on
ground th a t even though th e dispute betw een the em ployer an d th e
employees m ight relate to a case o f a single w orkm an th e provisions o f
S. 23(b) w ould apply if the single w o rk m an ’s cause has been espoused by
a lab o u r union which need n o t necessarily com prise o f all th e em ployees
o f th e concerned em ployer. T he decisions o f som e H igh C o u rts esta
blish th a t even tho u g h th e proceedings pending before th e L a b o u r
C ourt, T ribunal, or N ational T ribunal m ight relate to c e rta in m a tte rs
only, there cannot be a strike or lo ck -o u t even in relation to m a tte rs
other th a n those which are pending before th e L ab o u r C o u rt, T rib u n a l
or N atio n al T ribunal (see P m vat Kum ar Kar v. W .T.C . P a rker, k.I.Vi..
1950 Cal. 116, and State o f Bihar v. Deodar Jha, A.T.R. 1958 P a tn a 51).
We express our agreem ent w ith this view. B ut the question is : D oes th e
fact th a t a proceeding is pending before a L a b o u r C ourt in respect o f a n
STRIKES 375
individual w o rk m a n b ar th e o th er w o rk ers fro m reso rtin g to a strik e ?

Section 2A o f th e In d u stria l D isputes A ct, which cam e into effect on
D ecem ber 1, 1965, reads as follow s :
[The C o u rt then referred to th e p ro v isio n s o f S ection 2 A and 2 (k)

o f the In d u s tria l D isp u te s Act.]
..,.I t is in in te rp re tin g th is clause [Section 2 (k)] th a t it h as been held

th a t even w here th e d isp u te relates to a single w o rk m an it is an in d u stria l
dispute if th a t d isp u te is espoused by th e gen eral body o f th e em ployees.
Before th e in tro d u c tio n o f S. 2A an in d iv id u al w o rk m an w ho w as dis
charged, dism issed or retren'dheToTw ITose services w ere otherw ise te rm i
n ated and w hose case w as n o t espoused by any la b o u r u n io n o r b y a
substan tial n u m b e r o f w o rk m en Iia'dTTol^emeHyl T Fw asT d'3earw llH “tFaf'
contingency th a t S. 2A w as enacted. W e w ould, therefore, b e justified
in concluding th a t in en actin g S. 2A th e in te n tio n o f th e L egislature was
th a t a n in d iv id u al w o rk m an who was d ischarged, dism issed o r retren ch ed
o r w hose services were otherw ise te rm in a te d sh o u ld b e given relief w ith
o u t its being necessary fo r th e relatio n sh ip betw een th e em ployer a n d the
w hole b o d y o f em ployees being a ttra c te d to th a t disp u te an d th e dispute
becom ing a g eneralised o n e betw een la b o u r o n th e one h an d an d th e
em ployer o n th e other. I f th is p o in t o f view is k e p t clear in m ind the
so lu tio n o f th e p ro b le m before us becom es sim ple.
In the S tatem en t o f O bjects an d R easo n s o f th e Bill w hich resulted

in the en ac tm e n t o f S. 2 A it is stated :
“ 2. In co n stru in g th e scope o f in d u stria l d isp ute, C o u rts have ta k e n

th e view th a t a d isp u te betw een an em ployer a n d an individual
w o rk m a n can n o t p e r se be a n in d u stria l d isp u te, b u t it m ay becom e
one i f it is ta k e n u p b y a union o r a n u m b er o f w orkm en m ak in g a
com m on cause w h h th e aggrieved in d iv id u al w orkm an, In view of
th is, cases o f indiv id u al dism issals an d discharges can n o t be tak en
u p fo r co n ciliatio n o r a rb itra tio n or referred to ad ju d icatio n u n d er
th e In d u stria l D isp u tes A qt, unless th e y are spo n so red b y a u n io n
o r a n u m b e r o f w o rk m en . I t is now p ro p o se d to m ak e the m achinery
u n d er th e A c t availab le in such cases” .
T his is relied u p o n b y the em ployer to co n ten d th a t tlie w hole o f the

m achinery u n d e r th e In d u s tria l D isp u tes A c t is available even in the case
o f a reference relatin g to a n individual w o rk m an . O n th e o th er h a n d it
is urged o n b e h a lf o f th e w o rk m en th a t if th e in te n tio n was to m ake the
w hole o f th e m achinery o f th e In d u stria l D isp u tes A c t available even in
th e case o f pendency o f th e case o f an individiial w orkm an before a
Labour C o u rt or a T ribunal w hat w ould have been done is to add th e

words “ and includes any dispute or difference between a w orkm an and
his em ployer connected w ith or arising o u t o f the discharge, dism issal,
retrenchm ent or term ination o f the services o f th at w o rk m an n o tw ith
standing th a t no other w orkm an n o r any luiion o f w orkm en is a p a rty
to th e dispute” to clause (k) o f S. 2. It is further co n tended th a t the
dispute or difference between the individual w orm an an d his em ployer
is only deemed to be an industrial dispute a n d th at it is n o t in fact an
industrial dispute. I t is contended on b eh alf o f the em ployer th at once
som ething which is n o t an industrial dispute is deemed to be a n in d u strial
dispute all th e necessary im plications o f such a deeming provision should
be given effect to and the m ind should n o t be allowed to boggle in w ork
ing out such im plications (see East E nd Dwellings Co. L td v. Finsbury
Borough Council, [1952] A .C. 109 at p. 132 an d Comm issioner o f Income-
T ax v. Teja Singh, [1959] 35 I.T .R . 408). O n the o th er h a n d , it is urged
on behalf o f the workm en th a t in the case o f a deem ing provision no
greater effect should be given to it than is necessary for the p u rpose fo r
which it is enacted. B oth these contentions are am ply su p p o rted by
authority and the duty of this C o u rt is to see w hat exactly are the
necessary im plications of th e deeming provision. W e should say, how
ever, th at it does not make any difference to th e decision o f th is q u estion
whether th e deeming provision is in th e form o f a separate section like
S. 2A as in the present case or is p a rt o f th e definition o f th e in d u strial
dispute itself as is suggested it should be on beh alf o f the w o rk m en ....
[The C ourt then referred to the scheme o f the A ct an d th e provisions

o f sections 3,4,6,7.7A 7B, 10,10A 12,13 14, 15,18,22,23 a n d 24 o f the
Act.]
These provisions bring out th e elaborate nature o f the proceedings

relating to conciliation, arbitratio n , settlem ent, inquiry a n d aw ard. The
intention behind all these provisions is to avoid strikes an d lo ck-outs as
far as possible not only by bringing the parties together b u t also by
referring p o in ts o f dispute between them , either voluntarily o r otherw ise,
fo r decision by L abour C ourts, T ribunals and N atio n al T ribunals.
Strikes are not banned even in th e case o f public utility services. T he
b a n on strikes is subject to certain lim itations. There is no d o u b t th a t
the Act recognizes strikes as a legitim ate w eapon in the m atte r o f in d u s
tria l relations. We need not concern ourselves ab o u t ab erratio n s like
gheraos, o r go-slow. The p rohibition o f strikes during th e pendency o f
proceedings before a L abour C ourt, T rib u n al or N atio n al T rib u n a l u n d e r
S. 23 was, in the Act as originally enacted, confined only to disputes
between th e employer an d the general body o f em ployees and n o t to
individual workm en. It is in th a t context th a t S. 23 should be in terp reted .
STRIKES 377
In the case o f a ti'in d u s tria l dispute betw een an in d iv id u al w o rk m a n an d

th e em ployer th e w hole elab o rate m ach in ery e arlier set fo rth in th e
In d u stria l D isp u te s A c t m ay n o t be necessary lest it w ould b e like using
a sledge-ham m er to k ill a flea. W hile th e re is ju stificatio n fo r prev en tin g
a strike w hen a d isp u te b etw een th e em ployer an d g eneral b o d y o f w o rk
m en is p e n d in g ad ju d ic a tio n o r re so lu tio n , it w ould b e to o m u c h to
expect th a t th e L eg islatu re in ten d ed th a t a lid sh o u ld b e p u t o n all
strikes ju s t becau se th e case o f a single w o rk m a n was pending. T h a t th e
general b o d y o f la b o u r sh o u ld be p rev en ted fro m reso rtin g to strik e
w here th ey h a d chosen to espouse th e cause o f a single w o rk m a n is
u n d e rsta n d a b le a n d rea so n a b le . It h a s even been held th a t i f the
em ployer a n d w o rk m en a re p arties to a reference the decision th e re in
bin d s them even th o u g h th e y m ay have said they w ere n o t interested in it
(see Ballarpur C ollieries v. Presiding Officer, [1972-2 L .L .J. 90]). B u t if
strikes are to be p ro h ib ite d m erely because th e case o f an in dividual
w orkm an w as p en d in g , w hose case h ad n o t been esp o u sed by th e general
b o d y o f th e w o rk m en , th e re can never be a n y strik e even fo r justifiable
gro u n d s. A strik e is a necessary safety valve in in d u stria l relatio n s w hen
pro p erly re s o rte d to . T o accede to th e c o n te n tio n o f th e em ployer in
th is case w o u ld be in effect acceding to a c o n ten tio n th a t th ere sh o u ld
never b e a strik e . W h ile we realise the im p o rta n ce o f th e m ain ten an ce
o f in d u stria l peace, it c a n n o t be secured by p u ttin g a lid on the legitim ate
grievances o f th e g en eral b o d y o f la b o u r because th e d isp u te re latin g to
a n in d iv id u al w o rk m a n u n d e r S. 2A is p en d in g . T h a t m ig h t m ean th a t
th e boiling c a u ld ro n m ig h t b u rst. In th a t case th e g eneral body o f w o rk
m en w ould b e leg itim ately aggrieved th a t th ey are prevented from striking
because a n in d iv id u a l’s case was p en d in g w ith w hich th e y were n o t
concerned. I t is n o t en ough in th is situ a tio n to say th a t it is alw ays
open to th e G o v e rn m e n t to m ake a reference u n d er S. 10. I t m ay or
m ay n o t h a p p e n . F u rth e rm o re , th e m a tte rs th a t c o u ld be pending before
a L ab o u r C o u rt u n d e r S. 23 u n d e r th e S econd Schedule a re :
1. T h e p ro p rie ty o r legality o f a n o rd e r passed b y a n em ployer

u n d e r th e sta n d in g orders;
2. T h e a p p lic a tio n a n d in te rp re ta tio n o f stan d in g orders;
3. D isch arg e or dism issal o f w orkm en in c lu d in g rein statem en t of,
o r g ra n t o f re lie f to , w orkm en w rongfully dism issed;
4. W ith d ra w a l o f an y custo m ary concession o r privilege;
5. Illeg ality or otherw ise o f a strik e o r lo ck -o u t; and
6. A ll m a tte rs o th e r th a n those specified in th e T h ird Schedule.
T h e p ro p rie ty o r legality o f an o rd e r passed by an em ployer un d er

th e stan d in g o rd ers very o fte n m ight refer to a n in d ividual w o rk m an and
th a t should n o t be m ade the reaso n fo r preventing lab o u r fro m giving

vent to its legitim ate grievances in a legitim ate way.
O ur atten tio n is draw n to the co n trast between els. (c) a n d (b) o f

S. 23 and it is argued th a t w hile und er cl. (c) there is a lim ita tio n in
respect o f m atters in relation, to which there c a n n o t be a strik e, th e re is
no such lim itatio n u nder cl. (b) an d therefore, cl. (b) provides a b la n k e t
ban on strikes if proceedings are pending. It is not possible to give such
an extended m eaning to th a t provision. As we have p o in te d o u t, even
in respect o f cl. (b) some lim itation should be read confining it to the
parties to the proceedings eith er actually or constructively, as in th e case
o f a u n io n espousing the cause o f an individual w orkm an. N o b o d y ,
fo r instance, can argue th at because proceedings are pending in relatio n
to one in d u strial establishm ent ow ned by an em ployer, th e re can be no
strike in an o th er industrial establishm ent ow ned by th a t em ployer because
there are n o w ords o f lim itation in cl. (b), S t t W orkm en o f D im akuchi
Tea E state v. M anagem ent o f D hnakuchi Tea E state, [1958] 14 F .J .R . 41;
A .I.R . 1958 S.C. 353, where it was held th a t th e w ord “ any p e rso n ”
can n o t be given its ordinary m eaning. See also Bombay Union o f W ork
ing Journalists v. “H indu", B om bay [1961-11 L .L .J. 436].
W e are, therefore, o f opinion th a t th e proper p o in t o f view fro m

which to look a t the problem is to give lim ited application to th e fact o f
the in tro d u ctio n o f S. 2A in th e In d ustrial D isputes A ct a n d to h o ld
th a t the pendency of a dispute betw een an individual w o rk m a n as su ch
and th e em ployer does not a ttra c t th e provisions o f S. 23.
[A ppeals dism issed.]
NOTE
^ o m m e n t o n the following observations o f the Suprem e C o u rt in Gujarat

'^S te e ly m tb e s L td . v. Gujarat S teel Tubes M azdoor Sabha (1980) I L .L .J.
1 3 7 / t 164, p er K rishna Iyer J. ;
“ . . . [W]e m ust rem ind ourselves th a t the strike was illegal, having
been launched when an o th er industrial dispute was pen d in g ad ju d i
cation. Section 23(a) appears, a t a verb al level to convey such a
m eaning although the am b it o f sub-cl. (a) m ay have to be investi
gated fully in some appro p riate case in th e light of its schem e a n d
rationale. It looks strange th a t th e pendency of a reference o n a
tin y or obscure industrial dispute— an d they often pend to o lo n g —
should block strikes o n to tally unconnected yet su b sta n tia l a n d
righteous dem ands. The co n stitutional im plications an d practical
com plications o f such a veto o f a valu ab le right to strik e o fte n leads
STRIKES 379
n o t to in d u s tria l peace b u t to scath in g u n rest a n d law less strikes. B u t

in th e preserit~'cas~C"b~6 tir B e f o r e lh F 7 S S ltr a to r a n d th e H ig h C o u rt,
the p a rtie s h av e proceeded on th e agreed fo o tin g th a t the strike w as
illegal u n d e r S. 23 (a).”
R A JA K U L K A R N I STA TE O F BOM BAY

[D urin g th e p en d en cy o f a n app eal before th e L a b o u r A p p ellate T rib u n al

against th e o rd e r o f th e In d u stria l C o u rt th e P resident and Secretary o f
th e M ill M a z d o o r S ab h a in stig ated w o rk ers to g o o n a strik e u n d e r th e
b elief th a t such a p p e a l was in v alid an d in co m p etent. T he M ag istrate c o n
victed th e accused. T h e co nviction was confirm ed by th e H igh C o u rt. T h e
P residen t a n d S ecretary th e re u p o n filed a n ap p eal by special leave to th e
Suprem e C o u rt. E xcerp ts fro m th e ju d g m e n t o f G h u la m H a san J. fo llo w :]
Tw o m a in c o n te n tio n s w ere raised o n b e h a lf o f th e ap p ellan ts, firstly

th a t th e co nviction u n d er S. 27 o f th e A p p ellate T rib u n a l A ct w as illegal,
because there w as n o c o m p e te n t and valid appeal ag ain st th e aw ard
before th e A p p e lla te T rib u n a l an d secondly th a t S. 27 o f th e A ct is v o id
as being o p p o sed to th e fu n d am en tal rig h ts o f th e a p p ellan ts u n d er
A rts. 19(l)(a) a n d (c) an d 14 o f th e C o n s titu tio n ....
Section 7 o f th a t A ct provides an appeal to th e A p p e lla te T rib u n a l

fro m any aw ard o r decision o f an in d u stria l trib u n a l if :
(a) th e a p p e a l involves an y su b stan tial q u e stio n o f law ; or

(b) the a w a rd or decision is in resp ect o f any o f th e follow ing
m a tte rs, nam ely :
(i) w ages,
(ii) b o n u s o r trav ellin g allow ance.
■n ♦ *
Section 24(b) p ro h ib its a w orkm an, w ho is em ployed in any in d u stria l

establish m en t, fro m going o n strike durin g th e pendency o f a n a p p e a l
before th e A p p e lla te T rib u n a l an d S. 25 ren d ers a strik e a n d a lo c k o u t
as illegal i f it is declared com m enced o r co n tin u e d in co n trav en tio n o f
th e provisions o f S. 24. T h en follow s th e p en alty pro v id ed fo r in S. 27
w hich says ;
“ an y p erso n , w ho in stig ates o r incites o th ers to ta k e p a r t in, o r

otherw ise a c ts in fu rth eran ce of, a strik e o r lo c k o u t, w hich is illegal
u n d er th is A ct, shall b e p u n ish ab le w ith im p riso n m en t for a te rm
w hich m ay ex ten d to six m on th s, o r w ith fine w hich m ay extend to
on e th o u s a n d rupees, o r w ith b o th .”
The question is w hether th e app ellan ts rendered them selves liable to

prosecution under S, 27, because they instigated the strik e w hile the
appeal was pending before th e A ppellate T rib u n al.
It is contended th a t S. 24 contem plates th e pendency o f a valid a n d

com petenl appeal, b u t as n o valid o r com petent appeal u n d e r the law
was pending, th e appellants com m itted n o offence under S. 27. W e are
unable to accept this contention. Section 24 on a p la in a n d n a tu ra l
constru ctio n requires fo r its ap p licatio n no m ore th an th a t a n a p p eal
should be p en d in g an d th e re is n o th in g in th e language to ju stify the
in tro d u ctio n o f th e qualification th a t it should be valid o r co m p eten t.
W hether th e appeal is valid or com petent is a question en tirely fo r the
A ppellate C o u rt before w hom the appeal is filed to determ ine, an d th is
determ ination is possible only after th e appeal is h ea rd , b u t th e re is
nothin g to p rev en t a party from filing an app eal w hich m ay u ltim ately be
found to be incom petent, e.g., when it is held to be barred by lim ita tio n
or th a t it does n o t lie before th a t co u rt o r is concluded b y a finding o f
fact under S. 100 o f the Civil Procedure Code. F ro m the m ere fact th a t
such a n appeal is held to be u n m ain tain ab le on any g ro u n d w hatsoever,
it does n o t follow th a t th ere was no a p p e a l pending befo re th e c o u rt.
A rticle 182(2) o f the Indian L im itatio n A ct prescribes three years’ period
o f lim itation for th e execution, o f a decree o r o rd er to run fro m th e d a te
o f the final decree or order o f th e A ppellate C o u rt “ w hen th e re h as been
a n appeal.” T h e Privy C ouncil co n stru ed the latter phrase to m ean th a t
any application by a party to the A ppellate C o u rt to set aside o r revise
a decree o r order of a co u rt su bordinate th ereto is an “ a p p e a l” w ith in
the m eaning o f th e above provision, even th ough it is irre g u la r or
incom petent, o r th e persons affected by th e application to execute w ere
n o t parties, o r it did not im peril th e whole decree or order. T hey refused
to read in to the w ords any qualification either as to th e c h a ra c ter o f the
appeal, or as to the parties to it. [Nagendra N ath D ey and another v.
Suresh Chandra D ey and o th e rs~ 5 9 I.A . 283.] W e consider th a t th e
w ord “ appeal” m ust be construed in its p la in and n atu ral sense w ith o u t
th e insertion o f any qualifying w ords such as are intended to b e in tro
duced by th e contention raised before us. T here is yet a n o th e r reason
fo r n o t construing th e w ord “ appeal” in th e m an n er suggested by th e
appellants an d th a t is th a t the legislature in introducing th is pro v isio n
contem plated th a t industrial peace should n o t b e disturbed so lo n g as th e
m atte r was pending in the co u rt o f appeal, irrespective o f th e fact
-whether such an appeal was co n p eten t in law . I f this were n o t th e case,
th e parties could easily defeat the object o f th e legislature b y a rro g a tin g
to themselves the right to decide a b o u t the com petency o f th e ap peal
w itho u t reference to th e court, com m it a b reach o f th e peace a n d escape
the penalty im posed by S. 27. T here was n o justification fo r th e
STRIKES 381
ap p ella n ts to in stig a te th e w orkers in th e so -called bona fid e b e lie f th a t

S. 27 d id n o t a p p ly to a n ap peal w hich th e y th o u g h t w as in c o m p e te n t.
In this view o f th e m a tte r it is n o t n ecessary to co n sid e r w h eth er th e
co n ferm en t o f a r ig h t o f a p p e a l durin g th e p en d ency o f a p ro ceed in g c a n
affect th e rig h ts o f th e p a rtie s to th o se p ro ceed in g s a n d m ak e th e o rd e r in
th e pending p ro c e e d in g ap p ealab le.
T h e second c o n te n tio n relates to th e alleged in frin g e m en t o f th e

rig h ts o f th e ap p e lla n ts u n d e r A rt. 1 9(l)(a) a n d (c), re a d w ith A rt. 14 o f
th e C o n stitu tio n . In o rd e r to u n d e rsta n d th is c o n te n tio n , a referen ce to
th e provisions o f th e B o m b ay In d u stria l R e la tio n s A ct, 1946, will b e
necessary.
Section 3, Sub-sec. (32), defines “ rep resen tativ e o f em ployees” as

one entitled to a c t as such u n d e r S. 30, a n d “ rep resen tativ e u n io n ” is
defined as a u n io n fo r th e tim e b ein g registered as a rep resen tativ e u n io n
un d er th e A c t (Sub-sec. 33).
Section 12 enjoins u p o n th e R eg istrar o f U n io n s a p p o in te d xmder th e

A ct to m a in ta in :
(a) a register o f u n io n s registered b y h im u n d er th e provisions o f

the A c t a n d
(b) a list o f ap p ro v ed u nions.
Section 13 d eals w ith th e reg istratio n o f u n io n s by th e R eg istrar. By

th e first su b-section a u n io n can be registered as a “ representative u n io n ”
fo r an in d u stry in a lo c a l area i f it h a s fo r th e w hole o f th e p e rio d o f
th re e m o n th s n ex t p reced in g th e d ate o f its a p p lic a tio n , a m em bership o f
n o t less th a n 15 p e r cent o f th e to ta l n u m b e r o f em ployees em ployed in
an y in d u stry in an y local area. I f a u n io n d oes n o t satisfy th a t co n d itio n ,
a n d has a m em b ersh ip o f n o t less th a n 5 p e r cen t it can be registered as a
“ qualified u n io n ” . I f n e ith e r o f these u n io n s h a s been registered in
respect o f an in d u stry , th e n a u n io n having a m em b ersh ip o f n o t less th a n
15 per cen t o f th e to ta l n u m b e r o f em ployees em ployed in any u n d er
tak in g in such in d u stry c a n by an ap p lic a tio n to th e R egistrar be
registered as a “ p rim a ry u n io n .” I t is co m m o n g ro u n d th a t th e R ash triy a
M ill M a z d o o r S an g h com es u nder th e first category a n d th e u n io n o f
w hich th e ap p e lla n ts are office-bearers com es u n d e r th e second, nam ely,
th a t it is a q u alified u n io n . T h is re g istra tio n can b e cancelled u n der S. 15
i f it has b een p ro c u re d b y m istak e, m isrep resen tatio n o r fra u d o r if th e
m em bership h a s fallen below th e m inim um req uired u n d e r S. 13 fo r its
registratio n .
382 LABOUR LA.W AND LABOUR RELATIONS
It is argued th a t the right o f th e appellants to freedom o f speech and

expression an d to from associations o r u n io n s under A rt. 19(l)(a) a n d
(c), read w ith A rt. 14, co nferring th e rig h t o f equality before the law o r
th e equal p ro tectio n o f th e laws is infringed by th e Act, in asm u c h as it
gives preference to a trad e u n io n u p o n th e artificial test o f hav in g th e
greater percentage o f m em bership, nam ely, n o t less th a n 15 per cent. W e
see little m erit in th is co n ten tio n . I t is obvious th a t the A c t im poses no
restriction either u p o n th e freedom o f speech an d expression o f th e tex tile
w orkers or th e ir rig h t to fo rm associations o r unions; indeed it is n o t
denied th a t th e w orkers have already form ed as m any as th re e u n io n s,
though they do n o t exhaust th e num ber o f w orkers in B o m b ay , fo r it
leaves as m any as 65 p er cent o f w orkers unorganized who d o n o t belong
to any trade u n io n . T he statu te lays dow n th e m inim um q u alificatio n o f
15 per cent o f m em bership to enable the u n io n to be called a “ rep resen
tative u n io n ” so as to represent the interests o f the en tire body o f
w orkers in th eir relatio n s w ith th e em ployers. A fter laying dow n th e
te st o f not less th a n 15 per cent it was perfectly reasonable n o t to allow
any o th er unio n such as th e app ellan ts to interpose in a dispute o n b e h a lf
o f th e textile w orkers when they did n o t com m and th e m inim um
percentage o r w hen their m em bership fell below th e prescribed
percentage. I t is perfectly open to th e appellants to enlist th a t p e r
centage or even a higher one a n d claim precedence over the R a sh triy a M ill
M azdo o r Sangh so as to be able to represent the interests o f all th e
w orkers. T h e rig h t to freedom of speech and expression is n o t denied
to the appellants, nor are they p ro h ib ited from form ing associations o r
unions. T he A ct m akes no d iscrim ination betw een textile w orkers as a
class b u t lays dow n a reasonable classification to the effect th a t a certain
percentage o f m em bership possessed b y a u n io n will b e allow ed to
represen t th e -workers as a class to th e exclusion o f others, b u t th e re is
n o th in g to p rev en t the oth er unions o r oth er w orkers fro m fo rm in g a
fresh u n io n an d enrolling a higher percentage so as to acquire th e sole
lig h t o f representation. The appellants challenge the validity o f th e A ct
as infringing th e ir fundam ental rights an d y et they base th e ir case o f
discrim in atio n o n th e provisions o f th e sam e A ct. This p o sitio n is n o t
in accord w ith reason o r principle.
W e hold, therefore, th a t th e appellants have m ade o u t n o case f o r

interference w ith th e orders o f th e co u rts below. W e u p h o ld th e
convictions and sentences and dism iss th e appeal.
M U M B A I M A Z D O O R SA BH A V. B E N N E T C O L E M A N & CO.
Bom bay High Court, (1980) 1 L .L .J. 112
[Out of 2,800 employees (including journalists and non-journalists)

employed by Bennet Coleman & Co. at Bombay only about 575 em ployees
STRIKES 383
jo in e d illegal strik e. T he m a jo rity o f em ployees in the th re e key d e p a rt

m ents, viz., ro ta ry , sterio a n d b in d in g , h aving jo in e d th e strik e, th e en tire
w o rk was p araly sed . T h e m anagem ent w ith o u t ta k in g any step against
defaultin g w o rkers straig h taw ay declared lock -o u t. T he In d u stria l C o u rt
held th a t th e w o rk e rs w ere a d a m a n t and as th e ir a c tio n p araly sed th e
w hole w orking a n d th e ir strik e being illegal, th e m an agem ent h a d a rig h t
to declare lo ck -o u t. T h e In d u stria l C o u rt also h eld th a t notice o f lo c k
o u t was in co n fo rm ity o f th e A ct an d the rules. A ggrieved by this o rd er
M um b ai M a z d o o r Sabha m oved th e B o m b ay H igh C o u rt in a w rit
p etitio n u n d er A rticle 226 o f th e C o n stitu tio n . E xcerpts from th e
j udgm ent o f P en d se J. fo llo w :]
It is d esirable a t this stag e to have a lo o k a t th e relevant provisions

o f th e A c t reg ard in g th e illegal strik e and th e lo ck-out. T he provisions
are co n tain ed in C h a p te r V o f th e A ct a n d S. 24 defines th e expression
“ illegal strike a n d lo c k -o u t” . Item 1 o f Schedule III o f th e A ct declares
illegal strike as an u n fa ir la b o u r practice a n d S. 28 enables th e em ployer
to file a c o m p la in t against such p ractice before th e co m p eten t C ourt.
Section 30 sets o u t th e p o w er o f th e C o u rt in dealing w ith such co m
p lain ts a n d sub-s. (2) o f S. 30 em pow ers th e C o u rt to p ass in terim orders
including d irectio n s to th e p e rso n to w ithdraw tem p o rarily , the practice
co m p lain ed of. Ite m 6 o f Schedule II declares act o f em ployer in p ro
posing o r c o n tin u in g a lo c k -o u t deem ed to be illegal u n d e r th e A ct as
an u n fa ir la b o u r practice. T he expression “ lo c k -o u t” h a s been defined
un d er S 2 (1) o f th e In d u s tria l D isp u tes A c t as “ th e closing o f a place o f
em ploym ent, o r th e susp en sio n o f w ork, o r th e refusal by an em ployer to
continu e to em p lo y an y n u m b e r o f perso n s em ployed by h im ” , a n d th e
m eaning o f th e ex pression is applicable in co n struing th e provisions o f
the A ct in view o f th e p ro v isio n s o f S. 3 (18) o f th e A c t....
I t will n o t be rig h t fo r eith er p a rty to com m ence strike o r

enforce lo c k -o u t w ith im p u n ity w ithout ex h au stin g reasonable avenues
fo r peaceful achievem ents o f th e ir objects. T h e id ea o f enactm ent is to
m ain tain in d u stria l peace a n d it is w ell-accepted th a t as fa r as possible
the em ployees sh o u ld n o t be th ro w n out o f w ork, because th a t creates a
social p ro b lem a n d b y sto p p ag e o f p ro d u c tio n th e in te re st o f society also
suffers....
T he re sp o n d e n ts N os. 1 a n d 2 also claim th a t it is th e ir in h erent

rig h t to declare lo c k -o u t an d it is n o t b o u n d to a d o p t proceedings to
declare strik e as illegal o r com pel th e few strik in g em ployees to retu rn
to w ork. T h is a ttitu d e o f th e em ployer reflects unaw areness o f th e
m o d ern p rin cip les governing th e relations o f m a ste r a n d servant. In th e
ch an g in g m ilieu, it can n o t be o verlooked th a t in d ustry is ru n n o t only
fo r the benefit o f em ployer a n d em ployees but fo r an unseen a n d u n c a re d

fo r th ird force, represented by society a t large. T h a t req u ires th a t an
em ployer m u st tak e reasonable steps to enable sm o o th ru n n in g o f
in d u stry an d only after th e failure to achieve th a t goal, th e la st fa ta l step
o f lock -ou t sh o u ld be restored. T h e em ployer in th e p resen t case h a s
n o t taken any action w hatsoever against th e few striking em ployees
before giving notice o f lo ck -o u t a n d in these circum stances, the a lleg atio n
o f collusion c a n n o t be said to be w ith o u t fo u n d a tio n ....
As only a sm all section o f em ployees are on illegal strike w hile

the m ajority is w illing to w ork, in m y ju d g m en t, the use o f w eapon o f
lo c k 'o u t by em ployer, w ith o u t ad o p tin g proceedings ag a in st strik in g
employees is n o t ju s t and p ro p e r. I am conscious o f th e finding th a t
m ajority o f em ployees in key sections are o n strike a n d th a t h as resu lte d
in to paralysing o f industry, b u t th e offer o f rem aining em ployees to-
successfully ru n th e three d e p artm en ts deserves consideration. In th is
view o f th e m a tte r, it w ould b e ju s t and convenient to g ra n t in terim
relief to th e p e titio n e rs ....
M r. B h att subm itted th a t In d u strial C o u rt has recorded a finding

on m aterial available an d th e o rd er is in accordance w ith law an d this
C o u rt should n o t exercise ju risd ictio n u n d er A rticle 226 o f th e C o n stitU '
tio n o f Ind ia an d disturb th e sam e. I am tak in g a co n tra ry view b u t
I am n o t disturbing any o f the findings o f fact recorded b y th e C o u rt
below. I am conscious th a t I am n o t sitting in appeal over th e o rd e r,
b u t the erro r in refusing interim relief is so ap p aren t, th a t th e in te r
ference is absolutely necessary....
A ccordingly, I m ake the rule absolute an d restrain th e resp o n d en ts

N os. 1 an d 2 from declaring lo c k -o u t a n d /o r giving effect to th e notice
o f lock-out, issued on June 21, 1979, during th e pendency o f co m p lain t
(U LP) N o . 148 o f 1979 before th e In d u strial C ourt, B om bay. T h e
In d u strial C o u rt shall dispose o f th e co m p lain t w ithin 6 w eeks fro m to
day and if possible, along with th e co m p lain t filed by resp o n d en t N o s. 1
a n d 2 against respondent N o. 3. In th e circum stances o f th e case, th ere
w ill be n o order as to costs.
G W A L IO R R A Y O N S SIL K M F G . (W V G .) C O . L T D . V.
D IS T R IC T C O L L E C T O R , A L L E PPE Y
Kerala H igh Court, (1982) L ab. I.C . 367
[G w alior R ayon Silk M fg. (W vg.) C o. L td ., th e petitio n er filed a

w rit petition for the issuance o f a w rit o f m andam us directing th e police
officers to give adequate police p ro tectio n to the petitioner a n d his w o rk
m en including the staff to enter in to th e factory prem ises and to rem o v e
STRIKES 385
th e m a n u fa c tu red item s k e p t th erein an d fo r a w rit o f p ro h ib itio n

restrain in g the w o rk e rs’ u n io n (respondents 3 to 5) fro m preventing th e
petitio n er a n d h is w o rk ers fro m entering th e facto ry prem ises. E xcerpts
fro m th e ju d g m e n t o f T . C h a n d ra se k h a ra M e n o n J. follow :]
T h o u g h u n d e r th e C o n stitu tio n o f In d ia, th e rig h t to strike is n o t a

fun d am en tal rig h t as such, it is open to a citizen to go on strike o r w ith
h o ld his la b o u r. E very strike is n o t illegal an d th e w orkers in any
dem ocratic S tate h av e th e rig h t to reso rt to strike w henever th e y are so
pleased in o rd e r to express th e ir grievances o r to m ake certain dem ands.
A strike in th e circu m stan ces, is a necessary safety valve in in d u stria l
relation s w hen p ro p e rly reso rted . It is a legitim ate w eapon in th e m a tte r
o f in d u strial re la tio n . Ju stice G ajen d rag ad k ar, as h e th e n was, speaking
fo r a D ivision B en ch consisting o f him self a n d Justice K .C . D a s G u p ta ,
h as said in K a irb e tta E sta te , K o ta g iri v. R a ja m a n ick am , (1960) (2) L ab.
L .J. 275): (A IR ) 1960 SC 893), th a t in th e stren g th betw een c a j ^ l an d
la b o u r th e w eapon o f strike is available to la b o u r and is often used by
it, as is th e w eap o n o f lo c k -o u t available to the em ployer, th o u g h th e
use o f b o th th e w eapons by th e respective p arties m u st how ever be
sjubect to th e re le v a n t prov isio n s o f th e In d u stria l D isp u te (at page
2 7 8)....
S trikes, lo c k o u ts, saty ag rah as and d em o n strations are n o thing new in

our co u n try . P ro m o tio n o f social justice over th e last few decades was,
to a co n sid erab le ex ten t, d u e to m ilita n t an d a g ita tio n al a p p ro a c h o f th e
w orkm en an d n o t, to a n y appreciab le degree, due to condescension by
th e m an ag em en t. I t is b u t tru e th a t in th e p rocess o f securing to the
w orkm en m ore am enities a n d privileges a n d b e tter co n d itio n s o f service
th e In d u stria l T rib u n a ls, L a b o u r C o u rts a n d th e C o u rts o f th is co u ntry
have p lay ed a v ita l ro le . A negative approach to lawful agitation b y the
w orking class to secure higher wages and b etter living conditions cannot b e
ju s tifie d b y resort to the p le a o f m aintaining law and order in the indus
tria l sector.
I a m p a rtic u la rly referrin g to these because I am afraid police

p ro te c tio n ord ered b y this C o u rt m ig h t have been used a t tim es to crush
law ful an d peaceful strikes a n d dem o n stratio n s. T he o rd e r o f this C o u rt
fo r police p ro te c tio n is c a p a b le , in the h a n d s o f u n sc ru p u lo u s m anage
m ents, o f tu rn in g in to vicious in stru m en ts o f suppression o f legitim ate
agitatio n s. I t is p a rtic u la rly so w hen th e p olice m a y need th e order o f
th is C o u rt only as a disguise o r cover fo r su p p ressing th e ag itatio n by the
w o rk m en in fu rth e ra n c e o f th e ir legitim ate dem ands.
I have referred to th is situ a tio n only t o highlight th e necessity o f

extrem e cau tio n in dealing w h ith an ap p licatio n fo r police p ro tec tio n . I t
appears to m e that the C o u rt m ust safeguard against abuse o f its order

and ensure th a t the order is n o t exploited fo r any p u rp o se o th e r th an
th a t intended by th e C ourt.
It is tru e th a t m anagem ents placed in perilous circum stances a n d

denied protectio n by the police m ay have to seek assistance fro m this
C ourt and it m ay then be the d u ty o f th is C o u rt to pass necessary orders
to pro tect th e life and pro p erty o f such m anagem ent. B ut such orders,
it appears to m e, shall n o t be p erm itted to be used by the police in any
way to prejudicially affect th e law ful agitation by th e w orkm en. It is
no doubt true th a t any d em onstration and any satyagraha w ould cause
inconvenience to the m anagem ent. It may very often cause considerable
em barrassm ent too. It is im possible to conceive o f a n y d em o n stra tio n
or strike whicli is n o t intended to b ring pressure upon the m anagem ent
to concede to the w orkm en’s dem ands. B ut it is n o t th e role o f this
C ourt to interfere with the rig h t o f the w orkm en to carry on th e ir ag itation
so long as it is peaceful, so long as it does n o t turn violent.
I m ight also state here th a t M ah atm a G a n d h i’s m ethods o f resistance

to w hat one sincerely considers w rong o r evil is fully relev an t even in an
independent country in a dem ocratic set up . G an d h ian m ethods a re in
prefect consonance with a dem ocratic society as a m eans fo r effecting
social change. I f in m any circum stances o rd in ary m ethods a re fo u n d to
be of n o avail and violence has to be prevented, one c a n n o t find fau lt
w ith social engineers if they go back to G andhiji and his m eth o d s o f
fighting the evil. It is true, no doubt, th a t during the post-independence
period, th e w eapon o f resistance to G overnm ent o r to an y o th e r co nsti
tu tio n al authority has com e to be m isued. A ny disobedience o f law
w hether evil o r unevil is wrongly term ed satyagraha now . B u t th a t is
no reason w hy G andhian m ethods should be considered to be against
law ....
Industrial policy, as other policies, m u st...b e governed by (D irec

tive Principles o f State Policy em bodied in th e C onstitution).
In such a set up if the executive arm o f th e State decides th a t in a

dispute between L abour and C apital, th e S tate Should as far as possible
n o t step in with its police pow er to tilt the balance in favour o f the
capital, the C o u rt shall not act as a spoke in th e wheel to interfere with
such policy.
I t is cerntainly true as L o rd D enning has observed in Ji. V. M e tro

politan Police Commr., (1968) 1 A ll E R 763 th a t it is th e d u ty o f the
police to enforce the law and though chief officers o f police have got
certain discretion in the m anner o f enforcem ent in certain aspects yet the
STRIKES 387
C o u rt w ould in te rfe re in respect o f a policy decision am o u n tin g to a

failure o f duty to enforce th e law of th e lan d . T he police can n o t b e to ld
th a t they sh o u ld n o t ta k e action when an offence is com m itted. T he
p o licc officer is answ erable to th e law and to Ihe law alone. I f in th e
guise o f peaceful sa ty a g ra h a o r strike, cognizable offences are sought to
be com m itted a n d violence is reso rted to , th e police should interfere.
T hey have no o p tio n in th e m atter. T h e m anagem ent can certainly
claim th a t the ing ress a n d egress to their business prem ises should be
p ro te cte d from o b stru c tio n . Police should certainly in terfere if there is
any im m in en t d an g er or p eril to life and p ro p e rty . A p art from th e above
observatio n s, I do n o t th in k i t w ould be p ro p e r to give specific directions
to th e police as th e p etitio n ers p ray for. T h e police m en should n o t
act as break ers o f a law ful strike.
In proceedings u n d e r A rticle 226 o f th e C o n stitu tio n , it will n o t b e

possible fo r th is C o u rt to decide w hether th e re has been collusion betw een
th e C om panies co n cerned o r n o t. O . Ps. a re d isposed o f as above.
C H A N D R A M A L A I E ST A T E v. IT S W O R K M E N
Suprem e Court, (1960) I I L .L .J. 244
[On 9 A u g u st 1955, th e w o rk e rs’ u n io n su b m itted to th e m an ag er

a m em o ra n d u m co n tain in g fifteen dem ands. T h e m an agem ent agreed to
som e, b u t th e c h ie f d em an d s rem ain ed u n settled. O n 29 A u g u st 1955,
th e la b o u r ofScer advised negotiations; b u t la te r he recom m ended concili
atio n . T h e co n ciliatio n officer’s efforts w ere fruitless. T he la st concilia
tio n m eeting was held o n 30 N ovem ber. O n 1 D ecem ber th e u n io n
gave a strike n otice, a n d th e w orkm en rem ained o n a strike fro m 9
D ecem ber 1955 th ro u g h 5 Ja n u a ry 1956. T he G o v ern m en t referred five
issues o f th e d isp u te to th e in d u strial trib u n a l for a d ju d ica tio n , T h e
trib u n a l g ra n te d th e w o rk m e n ’s dem ands, in w hole o r in p a rt, o n all five.
T he m an ag em en t ap p ealed th e aw ard o n th ree issues, th e th ird being
w hether th e w o rk ers were en titled to wages fo r th e strike p erio d . O n th is
p o in t, excerpts fro m th e ju d g m e n t o f th e C o u rt, delivered by D as G u p ta ,
J ., follow :]
O n th e th ir d issue, w hile th e w o rk m en p lead ed th a t th e strike w as

justified, th e m a n ag em en t co n ten d ed th a t it waS illegal an d unjustified.
T he trib u n a l h eld th a t b o th p arties w ere to blam e fo r th e strike a n d
ordered th e m an ag em en t to p a y w orkers 50 p e r c e n t o f th e ir to ta l em olu
m en ts for th e strik e p e rio d ;...
I t is clear th a t o u 30 N o v em b er 1955 th e u n io n knew th a t conciliation

attem p ts h ad failed. T he next step w ould b e a re p o rt by th e conciliation
officer, o f such failure to th e G overn m en t and it w ould have been p ro p e r

and reasonable for th e union to address the G overnm ent at th e sam e tim e
an d request th a t a reference should be m ade to the in d u stria l trib u n a l.
T he u n io n , how ever, did n o t choose to w ait, an d after giving n o tice o n 1
D ecem ber 1955 to th e m anagem ent th a t it h a d decided to strik e fro m 9
D ecem ber 1955, actually started th e strike fro m th a t day. It h a s been
urged o n b e h a lf o f th e a p p ellan t th a t th ere was n o th in g in th e n a tu re o f
the dem ands to ju stify such hasty action an d in fairness the u n io n sh o u ld
have ta k e n th e n o rm al an d reasonable course provided by law by asking
the G overnm ent to m ake a reference under the Industrial D isp u tes A c t
before it decided to strike. T he m ain dem ands o f the union w ere a b o u t
the cum bly allow ance [the second issue, a b o u t which] th e y h a d said
no thing since 1949 when it was first stopped till th e union raised it on 9
A ugust 1955. T he grievance for collection o f excess price o f rice [th e
first issue] was m o re recent b u t even so it was n o t o f su ch a n u rg en t
natu re th a t th e interests o f lab o u r w ould have suffered irrepairably if th e
procedure prescribed by law fo r settlem ent o f such disputes th ro u g h
industrial trib u n als was resorted to . A fter all it is n o t th e em ployer only
who suffers if p roduction is stopped by strikes. W hile on th e one h a n d
it has to be rem em bered th at strike is a legitim ate an d som etim es u n a
voidable w eapon in th e h an d s o f lab o u r, it is equally im p o rtan t to rem em
ber th a t indiscrim inate an d hasty use o f this w eapon should n o t be en
couraged. It will n o t be right for lab o u r to th in k th a t for any k in d o f
dem and, a strike can b e...[reaso n ab ly expected] to w ait till a fte r asking
the G overnm ent to m ake reference. I n such cases, strike even before such
a request has been m ade m ay well b e justified. The present is n o t h o w
ever one o f such cases. In o u r o p in io n th e w orkm en m ight well have
w aited fo r some tim e after conciliation efforts failed before sta rtin g a
strike an d in th e m eantim e have asked the G overnm ent t o m ak e th e
reference. T hey did n o t w ait a t all. The conciliation efforts failed, an d
the u n io n m ade its decision on strike an d sent th e notice o f th e in ten d ed
strik e from 9 D ecem ber 1955, an d on 9 D ecem ber 1955, th e w orkm en
actually struck w ork. The G overnm ent ap p ear to have acted q u ick ly a n d
referred th e dispute o n 3 January 1956. It was a fte r this th a t th e strike
was called off. W e axe u nable to see how th e strike in such circum stances
c o u ld be held to be justified.
T he trib u n al itself appears to h av e been in tw o m inds o n th e ques

tio n . Its conclusion appears,to b e th a t th e strike, th o u g h n o t fully ju sti
fied, was h a lf justified an d h a lf unjustified; we find it difficult to ap p re
ciate this curious concept o f h a lf justification. In any case, th e circum
stances o f the present case do n o t su p p o rt th e conclusion th a t th e strike
was justified a t all. W e are b o u n d to h o ld in view o f th e circum stances
m entioned above th a t th e trib u n al erred in holding th a t th e strik e was
STRIKES 389
a t least p a rtia lly ju stified . T h e e rro r is so serious th a t we are b o u n d in

th e interests o f ju stice to set aside th e decision. T h ere is, in o u r view ,
n o escape fro m th e co nclusion th a t the strik e was u n ju stiiied a n d so th e
w orkm en are n o t e n title d to any wages fo r th e strike period.
W e th e re fo re , allow th e app eal in p a r t a n d set aside th e aw ard in so

fa r as it d irected th e p a y m e n t o f 50 p er c e n t o f th e to ta l em olum ents fo r
th e strike p e rio d b u t m a in ta in th e rest o f th e aw ard. T here will be no
o rd e r as to costs.
T H E S T A T E S M A N L T D . v. T H E IR W O R K M E N
Suprem e Court, (1976) 1 L .L .J . 404
A .I.R . 1976 S.C . 758
[T he re sp o n d e n t— w orkm en w ent o n illeg al an d disorderly strik e

o ver th e b o n u s d isp u te follow ing which th e m an agem ent declared a lo c k
o u t. T h ereafter d esp ite th e w o rk m en ’s assu ran ce to peaceful re su m p tio n
o f w ork the m a n a g e m e n t declined to lift th e lock -out. T he governm ent
referred th e d isp u te to th e in d u strial trib u n a l w hich resulted in th e
te rm in a tio n o f th e strik e a n d lo ck -o u t. T he trib u n a l in te r alia, held
th a t th e b lam e f o r the strik e an d lo ck -o u t h a d to be ap p o rtio n ed a n d
accordingly o rd e re d p a y m e n t o f h a lf wages d u ring th e p e rio d o f lo c k
o u t. T h e m an a g e m e n t challanged this aw ard u n d er special leave. T h e
relev an t excerpts from th e ju d g m e n t o f th e C o u rt, delivered by K rish n a
Iy er J. fo llo w :]
. W hile S ectio n 23 p ro h ib its strikes a n d lo ck-outs w hen proceedings

m entioned th e re a re u n d e r w ay, Section 24(3) absolves a lo ck -o u t o f
illegality if it is caused by a n illegal strike. T h ere surely was a pen d in g
in d u strial d isp u te w hen th e U n io n s sp ran g th e strike. Being th erefore
illegal, th e lo c k -o u t th a t follow ed becam e a legal, defensive m easure. So
fa r is sm o o th sailing. B u t th e m an ag em en t c a n n o t behave u n reasonably
m erely because th e lo c k -o u t is b o rn law fully. I f by subsequent conduct,
im aginatively in te rp re te d , th e U n io n s h av e show n readiness to resum e
w o rk peacefully, the refu sal to re -sta rt th e in d u stry is n o t rig h t and th e
in itia l legitim acy o f th e lo c k -o u t loses its v irtu e by th is blem ished sequel.
N o r can an y m a n ag em en t expect, as feelings r u n high, charge-sheets in
crim in al c o u rts, are' la id ag ain st w orkers a n d th ey are otherwisfe afflicted
by th e p in ch o f u n e m p lo y m e n t, to get p r o o f o f g o o d b eh av io u r beyond
th e ir w ritten w o rd . N o r c a n they realistically in sist th a t they a b a n d o n
th e ir d em an d s fo r b e tte r benefits b efo re th e lo c k -o u t is lifted. In th is
h un g ry w o rld th e w eaker m a n y c a n n o t affo rd th e lu x u ry o f finery in
speech w hich th e h a p p ie r few can afford. I n th e ro u g h a n d tru m b le o f
in d u stria l d isp u tes co n ciliatio n is a necessary g race th e stronger p a rty ,
390 LABOUR L ^W AND LABOUR. RELA ttOK S
th e socially conscious m anagem ent, m ust cultivate and h u ff a flaw it

m ust eschew. In th e realistic te m p e r o f barg ain in g betw een tw o w ings
o f an industry—b o th m anagem ents an d w orkers belong eq u ally to th e
industry, for if one owns th e o th e r pro d u ces— a feeling o f p a rtn e rsh ip
m ust prevail to persuade the tw o sides to tru s t each o ther ra th e r th a n
rush to find flaws in th e language used. S uch is th e spirit o f give an d
tak e which m u st inform in d u strial negotiation if peace a n d p ro d u c tio n
are the b o n a fide en d and n a tio n a l developm ent the great concern. T h is
b ro a d p h ilosophical ap p ro ach am ply vindicates the ju stice o f th e
T rib u n a l’s im pugned aw ard ....
I f th e strike is illegal, wages during th e p eriod will o rd in arily b e

negatived unless considerate circum stances constrain a different course.
Likewise, if th e lock-out is illegal full wages fo r the closure p e rio d
shall have to be forked o u t, if one m ay use th a t expression. B ut in
between lies a grey area o f tw ilit law . Strictly speaking the w hole field
is left to the judicious discretion o f the T rib u n al. W here th e strik e is
illegal an d th e sequel o f a lock-out legal, we have to view th e w h o le
course o f developm ents and n o t sto p w ith exam ining the initial legiti
m acy. I f one side o r other behaves u n reaso n ab ly o r the over all in tere sts
o f good industrial relations w arran t th e T rib u n al m aking such d ire c tio n s
regarding strike p eriod wages as will m eet w ith justice, fa irp lay a n d
pragm atic wisdom, th ere is no e rro r in doing so. His pow er is flexible.
W e are heartended an d strengthened in o u r approach by th e decision

in In d ia M arin e Service,... (A .I.R . 1963 S.C. 528). There th e C o u rt
noted th a t “ th e attitude o f the com pany was a reasonable o n e a n d th a t
it even proposed to th e unio n a n d th ro u g h it to its w orkm en th a t w o rk
should go on, th a t th e dispute should be ta k e n before the C o n ciliatio n
Officer fo r conciliation an d th a t in th e m eanw hile th ey were p re p a re d t a
g ran t som e interim relief to the w orkm en.” “ In o u r opinion” , ad d e d th e
C o u rt:
“ W hile the strike was unjustifiable, th e lo ck -o u t when it w as o rdered

o n N ovem ber 13, 1958 was justified. I t seems to us, how ever, th a t
th o u g h the lock-out was justified a t its com m eacem ent its c o n tin u
ance for 53 days was wholly unreaso n ab le an d , therefore, u n justified.
In a case where a strike is unjustified a n d is follow ed by a lo ck -o u t
which has, because o f its long d u ra tio n , b ecom e unjustified it w ould
n o t b e a pro p er course for a n industrial trib u n a l to direct th e p a y
m ent of th e w hole o f th e wages fo r the p erio d o f th e lock-out. W e
would like to m ake it clear th a t in a case w here the strike is u n ju sti
fied and th e lock-out is justified th e w orkm en w ould n o t b e e n titled
to any wages at all. Sim ilarly w here th e strike is justified a n d th e
STRIKES 391
lo ck -o u t is u n ju stified th e w orkm en w o u ld be en titled to th e entire

wages fo r th e p erio d o f strike and lo ck -o u t. W here, how ever, a
strike is unju stified a n d is follow ed by a lo ck -o u t which becom es
unjustified a case fo r a p p o rtio n m e n t o f b lam e arises. In o u r o p in io n
in th e case b efore u s th e b lam e for th e situ atio n w hich resulted a fte r
the strik e a n d th e lo c k -o u t can be ap p o rtio n e d ro u g h ly h a lf a n d
h a lf betw een th e co m p a n y an d its w orkers. In the circum stances we
therefo re d irect th a t th e w orkm en sh o u ld get h a lf th e ir wages fro m
N o v em b er 14, 1958 to Jan u ary 3 ,1 9 5 9 (b o th days inclusive)” .
H aving re g a rd to th e circum stances of th e case, it is p ro p e r to direct th a t

th e app eal b e dism issed b u t th e parties will b e a r th eir respective costs.
(A p p eal dism issed.)
C R O M P T O N G R E A V E S L IM IT E D v. T H E W O R K M E N
A .I.R . 1978 S.C. 1489
[C ertain w o rk m en w ent on a strike in p ro te st o f m a n a g m e n t’s o rd er

o f retren ch m en t o f w o rk m en . O n reference o f th e dispute relating to
wages fo r th e p e rio d o f strik e the trib u n al u p h eld th e claim o f w orkm en
fo r wages fo r th e p e rio d o f strike, T he m anag em ent th e n filed a n ap peal
by special leave before th e Suprem e C o u rt. E xcerpts fro m the ju d g m e n t
o f Jasw ant Singh J. fo llo w :]
It is w ell settled th a t in o rd er to en title th e w orkm en to wages fo r

th e period o f strike, th e strike should b e legal as w ell as justified. A
strike is legal i f it does n o t violate any p ro v isio n o f th e statute. A gain, a
strike c a n n o t be said to be unjustified unless the reasons fo r it are entirely
perverse or u n re a so n a b le . W h eth er a p a rtic u la r strike was justified o r
n o t is a q u estio n o f fa c t w hich h as to be ju d g e d in th e lig h t o f th e facts
a n d circum stances o f each case. It is also well settled th a t th e use o f
force o r violence o r acts o f sabotage reso rted to by th e w orkm en d u rin g
a strike disen titles th em to wages fo r th e strik e p e rio d ,.,.
N o specific prov isio n s o f law has been b ro u g h t to o u r notice on

b e h a lf o f th e a p p e lla n t w hich rendered th e strik e illegal d u ring th e p e rio d
un d er c o n sid eratio n . T h e strike can n o t also be said to b e unjustified as
before th e co n clu sio n o f th e talk s for co n ciliatio n w hich were going on
th ro u g h th e in stru m e n ta lity o f A ssistan t L a b o u r C om m issioner, th e
co m p an y retren ch ed as m any as 93 o f its w o rk m en w ith o u t even in ti
m ating to th e L a b o u r C om m issioner th a t it w as carrying o u t its proposed
p la n o f effecting re tre n c h m en t o f th e w orkm en. P o in t N o. 1, therefore,
is answ ered in th e negativ e....
T he only oth er p o in t th a t rem ain s to b e decided is w hether th e

strik in g w orkm en resorted to force an d violence betw een Ja n u a ry 11,
1968 an d the end o f F ebruary, 1968 w hich disentitled them t o wages.
The T rib u n al has held th a t it h as n o t been proved th a t the w o rk m en

resorted to force an d violence d u rin g th e p e rio d in q u estio n ....
F o r the foregoing reasons, we find n o m erit in this appeal w hich is

dism issed b u t w ithout any o rd er as to costs.
NOTE
1. In M adura Coats Ltd. v. Inspector o f Factories, M adurai (1981) I

L .L .J. 255 (S.C.) the w orkm en concerned w ent on strike w ith o u t giving
a notice required under Section 22 o f th e In d u strial D isputes A ct. T he
question arose w hether the em ployer was b o u n d to pay w ages if th e
w orkm ep w ere on illegal strike fo r any o f the n ational or festival h o li
days falling w ithin th e period o f strik e under Section 3 o f the T am il
N ad u Ind u strial E stablishm ents A c t 1958. Every em ployee shall be
allowed in each calender year a holiday o f one whole day on th e
26th Jan u ary , th e 1st M ay, the 15th A ugust an d the 2nd O cto b er a n d
five other holidays each o f one w hole day fo r such festivals as th e
Inspector may, in co nsultation with th e em ployer and the em ployees,
specify in respect o f any in d u strial establishm ent. Section 5 (1) o f th e
A ct p ro v id e s : “ N otw ithstanding any co n tract to the co n trary , every
employee shall be p aid wages fo r each o f th e holidays allow ed to him
under Section 3. C onstruing Sections 3 an d 5 (1) o f the A ct th e C o u rt
observed :
A s a m atter o f construction, th e non obstante clause c o n tain e d in

sub-s(2; o f S. 5 has an overriding effect over S. 3. The rig h t o f the
w orkm en to claim wages under sub-s (1) o f S. 5 fo r any o f th e n a tio n a l
and festival holidays under S. 3 is, therefore, co-extensive w ith th e rig h t
o f the m anagem ent u nder sub. s. (2) o f S. 5. to call u p o n the w o rk m en
to come and w ork o n such holidays subject to th e com pliance w ith th e
conditions laid dow n therein.
The C ourt accordingly held th a t w hen the w orkm en them selves

b rough t about a situation by going o n a strike, they cannot b e p erm itted
to claim wages under sub-section (1) o f Section 5 o f the A ct, since th e
m anagem ent were deprived o f their rig h t und er sub-s. (2) o f Section 5,
B. LOCK-OUTS 393
K A IR B E T T A E S T A T E , K O T A G IR I v. R A JA M A N IC K A M
Suprem e Court, (1960) I I L .L J . 276; [I9 6 0 ] 18 F J . R . 241
[Some w o rk ers assaulted th e C o m p a n y ’s m anager. H e suffered six

fractu res an d w as h o sp ita liz e d for over a m o n th . Som e m em bers o f
a n o th e r division o f th e C o m p a n y ’s staff w ere also th rea ten e d . A s a resu lt
they w rote to th e C o m p an y expressing their in ab ility to w o rk th ere because
th e ir lives were in d anger. T h ey co m p lain ed o f th re a ts o f m u rd er. O n
receiving this co m m u n icatio n th e C o m pany o n the sam e day closed th a t
division u n til fu rth e r notice. T he division c o n tin u ed to b e closed till th e
w orkers assured th e C o m p an y o f n o fu rth e r tro u b le . B u t they claim ed
lay-off c o m p en satio n fo r th e p erio d during w hich th e division rem ained
closed. They filed a co m p la in t before the L a b o u r C o u rt statin g th a t th e
C om pany refused th em w o rk , an d th at they sh o u ld be paid lay-off
com pensation. T h e L a b o u r C o u rt d irected th e C o m p an y to pay lay-off
com pen satio n fo r th e p erio d in question. T h e C om p an y appealed th e
ord er by special leave o f th e Suprem e C o u rt. E xcerpts fro m the ju d g m e n t
o f G a je n d ra g a d k a r, J., follow ;]
[The w orkers]. . . have ad m itte d th a t th e said closure is a lo ck -o u t

b u t they have a d d ed th a t a lo c k -o u t falls w ith in th e definitiou o f lay-off
a n d th a t is th e basis fo r th e ir claim fo r lay -o ff com pensation. T he
question w hich th u s arises fo r o u r decision is ; D o es a lo ck -o u t fall under
S, 2(kkk) w hich defines a lay-off ?
Section 2(kkk) defines a lay-off as m eaning th e failure, refusal o r

inability o f an em ployer on acco u n t o f sh o rtag e o f coal, pow er or raw
m aterials o r th e accu m u latio n o f stocks or th e b reak d o w n o f m achinery
o r fo r any o th e r reason to give em ploym ent to a w o rk m an w hose nam e is
bo rne on th e m u ste r rolls o f his in d u strial estab lish m en t an d w ho h a s n o t
been retrenched. . . . “ A n y o th e r reaso n ” to w hich th e definition refers
m u st, we th in k , be a reaso n w hich is allied, o r an alogous to reasons
alread y sp e c ifie d .. . .
L et u s now consider w hat a lock-oUt m eans u n d e r the A ct. Section 2(1)

defines a lo ck -o u t as m ean in g closing o f a place o f em ploym ent, o r th e
suspensio n o f w o rk o r th e refu sal by an em ployer to co n tin u e to em ploy
an y n u m b er o f perso n s em ployed b y him . I t m ay be relev an t to p o in t
o u t th a t th e definition o f lo c k -o u t co n tain ed in S. 2(e) o f th e T rad e
D isp u tes A ct, 1929 (V II o f 1929) h ad , in a d d itio n to th e presen t
definition u n d er S. 2(1), in clu d ed an ad d itio n a l clause describing a lock
o u t w hich p ro v id ed th a t :
“ Such closing, susp en sio n or refusal occurs in consequence o f a

dispute an d is in ten d ed fo r th e p u rp o se o f com pelling th o se persons
o r of aiding another em ployer in com pelling persons em ployed by

him to accept term s or conditions o f o r affecting em p lo y m en t.”
T his clause h as now been deleted. Even so, th e essential c h arac ter o f a
lock-out continues to be substatitially th e same. L ock-out ca n be described
as th e antithesis o f a strike. Ju st as a strike is a w eapon available to the
employees for enforcing their in d u strial dem ands, a lock-out is a w eapon
available to th e em ployer to p ersu ad e by a coercive process the em ployess
to see his p o in t o f view an d to accept his dem ands. . . . The use o f b o th the
w eapons by th e respective p arties m ust, how ever, be subject to th e relevant
provisions o f th e Act. C hapter V which deals with strikes and lock-outs
clearly brings o u t the antithesis betw een th e two w eapons a n d the
lim itations subject to which b o th o f them m ust be cxercised. T hus the
concept o f lo ck -o u t is essentially different fro m the concept o f lay-off,
an d so where th e closure o f business am o u n ts to a lock-out im der S. 2(1)
it w ould be im possible to bring it w ithin th e scop o f lay-off u n d er
S. 2(kkk)____
A ccording to the dictionary m eaning lock-out means : “ a refusal by

the em ployer to furnish w ork to th e operatives except o n co n d itio n s to
be accepted by the la tte r collectively,”
Stated broadly, lay-off generally occurs in a continuing business,

w hereas a lo ck -o u t is th e closure o f the business. In the case o f a lay-off
owing to the reason specified in S. 2(kkk) the em ployer is u n ab le to give
em ploym ent to one o r m ore w orkm en. In th e case o f a lo ck -o u t th e
em ployer closes th e business an d locks o u t th e whole body o f w orkm en
fo r reasons which have no relevance to causes specified in S. 2(kkk).
T hus th e n atu re o f the tw o concepts is entirely different a n d so are th e ir
consequences. In the case o f a lay-off the em ployer m ay be liable to p a y
com pensation. . . but this liability ca n n o t be invoked in th e case o f a
lock-out. The liability o f the em ployer in cases o f lock-out w ould depend
u p o n w hether th e lock-out was justified an d legal or not; b u t w hatever
the liability, the provisions applicable to th e paym ent o f lay-off compen
sation cannot be applied to th e cases o f lock-out. T herefore, we h o ld
th a t th e lock-out in the present case was n o t a lay-off, a n d as such th e
respondents are n o t entitled to claim any lay-off com pensation fro m th e
appellant. Incidentally we w ould like to add th a t the circum stances o f
th is case clearly show th a t the lock-out was fully justified. T h e
appellant’s m anager had been violently attack ed and the o th e r m em bers
o f the staff working in the lower division were th reaten ed by th e
respondents. In sucli a case if th e ap p ellan t locked o u t his w orkm en, no
grievance can be m ade against its conduct by the respondents.
LOCK-OUTS 395
In the resu lt th e ap p eal is allow ed, the o rd er passed by th e lab o u r

co u rt is set aside an d th e com plaint filed by th e resp o n d en ts u n der
S. 33C is dism issed. T here w ill be n o o rd er as to costs.
L A X M I D E V I S U G A R M IL L S L T D . v. R A M S W A R U P
Suprem e C ourt, (1957) 1 L .L J . 17
[The C o m p an y , a sug ar m ill, classified as a public-u tility service

dism issed one o f its w orkers. As a result 76 oth ers o n 27 M ay, 1952
reso rted to a ‘to o ls-d o w n ’ strik e. T h e M an ag em en t failed to persuade
th em to re tu rn to w ork; th e n inform ed th em o f th eir suspension by noon
o n th e sam e day. B u t w hen th e gates opened a t 1 p .m ., th ese 76 w orkm en,
in spite o f th e w arn in g s o f th e gatekeepers a n d ja m a d a r, ru sh ed in to th e
m ills an d ad o p te d a th reaten in g a ttitu d e . T h e M anagem ent fram ed
charges againet th e m u n d er th e standing o rd ers o f th e C om pany, fo r
m iscon d u ct a n d w ilful in su b o rd in a tio n , a n d held an enquiry. The
w orkm en did n o t a tte n d th e enquiry; they d em an ded investigation by a n
im partial trib u n a l.
Since an a p p e a l in an industrial d isp u te was already pending a t

th a t tim e b efore th e L a b o u r A p p ellate T rib u n a l, the C om p an y ap plied
to th a t T rib u n a l fo r p erm ission to dism iss th e 76 w orkm en. T he w ork
m en com plained th a t the C n m p a n y h a d reso rted to an illegal lo ck o u t fo r
a n indefinite p e rio d w ith o u t o b ta in in g th e p erm ission o f th a t T rib u n al.
T he T rib u n al h eld th e dism issal invalid a n d ordered reinstatem ent o f
dism issed w orkers. T h e C o m p a n y ap pealed th a t order to th e Suprem e
C o u rt. E xcerp ts fro m th e ju d g m e n t o f th e C o u rt, delivered b y
B hagw ati, J., follow :]
T he A ppellate T rib u n a l was o f o p in io n th a t th e co n d u ct o f th e ap p ellan t

in preventing th e w o rk m en fro m co n tin u in g w ork a fte r 1 p.m . on 27
M ay , 1952 cam e w ith in th e definition o f a lo c k o u t a n d th e w orkm en
being em ployed in a pub lic u tility concern such lo c k o u t w ould be illegal
w ith o u t a p ro p e r notice. I t w as fu rth e r o f o p in io n th a t th is conduct
am o u n ted to p u n ish m e n t o f a w orker w hether by dism issal o r otherw ise
a n d w as, th erefo re, in co n trav en tio n o f S. 22(b) o f th is A ct. T h e conclu
sion o f th e L a b o u r A p p e lla te T rib u n al w as, in o u r o p in io n , based on a
m isapp reh en sio n o f th e w hole p o sitio n . . . . W e have been taken th ro u g h
th e w hole evidence b y th e le a rn e d counsel fo r th e a p p e lla n t a n d there is
clear d o cu m en tary evidence to show th a t th e 76 w o rk m en reso rted to
a tools-dow n strik e from 7 a.m . on 27 M ay 1952. . . . [I]t is ab u n d an tly
clear o n th e d o c u m e n ta ry evidence above referred to th a t th e 76 w ork
m en reso rted to a to o ls-d o w n strik e from 7 a.m . on the m o rn in g o f 27
M ay 1952, th a t th e y w ere suspended till fu rth e r o rders im m ediately
a fte r th e receipt by th e general m an ag er o f th e first series o f rep o rts from
the section engineers, th a t they were prevented f r o m entering the prem ises
a t 1 p.m . but entered th e sam e threaten in g violence. If th is is th e tru e
position it follows th a t there was n o lo ck o u t declared by the ap p ellan t,
m uch less an illegal lockout. The w orkm en h a d resorted to an illegal
strike and the general m anager rightly ordered th at the w orkm en
indulging in such strike should be suspended pending fu rth e r orders
which obviously m eant pending enquiry in to th e ir co n d u c t an d the
obtaining o f the perm ission to dism iss them as a result o f such en quiry if
the m anagem ent th o u g h t fit. It th ere was th u s no illegal lo c k o u t a t all,
the conclusion reached by th e L abour A ppellate T rib u n al in th a t b e h alf
was absolutely unjustified. Even if there h a d been a lockout as concluded
by the L ab o u r A ppellate T ribunal the same was in consequencc o f the
illegal strike w hich h a d been resorted to by these w orkm en a n d could
n o t by virtue o f S. 24(3) of th e A ct be deem ed to be illegal.
There is, however, a m ore fundam ental objection th a t, even if th e

appellant be held responsible for having declared an illegal lo ck o u t, the
lockout would n o t come w ithin the ban o f S. 22 o f the A ct. . . . [The
C o u rt then referred to some earlier decisions o f the L ab o u r A ppellate
T ribun al, holding th a t a lockout does n o t am o u n t to a discharge, pu n ish
m ent or a change in the conditions o f service, an d therefore, no perm is
sion is required for its declaration.]
W e agree with the reasoning adopted in the above cases a n d are o f
opinio n th a t a lo ck o u t is neither an alteration to the prejudice o f th e
w orkm en o f th e conditions o f service applicable to them w ithin th e m ea n
ing of Cl. (a) n o r a discharge or p unishm ent w hether by dism issal o r
otherw ise o f the workmen w ithin the m eaning o f Cl. (b) o f S. 33 o f th e
In d u strial D isputes Act, 1947, o r S. 22 o f the Industrial D isputes
(A ppellate T ribunal) Act, 1950, and th a t, therefore, no perm ission o f th e
conciliation ofBcer, b oard o r trib u n al as the case may be is necessary to
be obtained before a lockout can be declared. I f the lo ck o u t is legal
n o question can at all arise. If, on the o th er h and, the lo ck o u t is illegal,
a rem edy is provided in S. 26 o f the In d u strial D isputes A ct, 1947. T h e
employees affected by a lockout w ould in any event be e n titled to refer
th e industrial disputes arising betw een them selves and the em ployer fo r
adjudication by adopting the p ro p er procedure in regard th ereto.
[The C ourt reversed the decision o f th e L ab o u r A ppellate T rib u n a l

and granted th e perm ission to discharge th e tespondents.]
F E R O Z D IN v. STA TE O F W E ST B E N G A L
Supreme Court, (1960) I L .L .J. 244; [1959] 17 F .J.R . 370
[The Com pany, a public-utility service, owns a factory a t B u rn p u r

near Asansol. Its w orkers resorted to a slow-down strike in th e h o t
LOCK-OUTS 397
m ill section to enforce th eir dem ands. The M anagem ent, thereupon
issued charge-sheets to som e of them for tak in g p a rt in the slow-down
strike an d fo r instigating others to jo in it, an d dismissed four workers
after an enquiry. On such dismissal th e slow-down strike gained in
strength. T hereupon, o n th e 8th A pril 1953, the C om pany issued a
notice to th e w orkers o f th e h o t mill th a t unless w ithin tw o days they
“ record their w illingness to operate the p la n t to its norm al capacity they
w ill be considered to be no longer em ployed by the C o m p a n y ...”
Only forty w oikers recorded their willingness. T he rest, about 300 in

num ber, did n o t m ake any response. On th e 11th A pril all w orkers went
on a sit-down strike which lasted till the 20th A pril 1953.
O n the 25th A pril 1953, the Com pany issued another notice th a t
the w orkers w ho did n o t respond were no longer em ployed; th a t their
form al discharges had been k ept pending; b u t that th eir “ discharge will
becom e fully effective” if they should fail to record their willingness by
the 28th A pril. A fter this notice the w orkers struck w ork on the 27th
A pril 1953 fo r tw enty-tw o hours.
O n th e 19th M ay 1953, the C om pany filed a com plaint under Sec

tion 27 o f the In d ustrial D isputes A ct against some w orkers for instigat
ing illegal strikes. The M agistrate convicted th e four dismissed em plo
yees and one o th e r person. T he w orkers’ appeals in th e Sessions C ourt
a n d their subsequent petitions for revision in the C alcutta H igh C ourt
failed. They th e n appealed to th e Suprem e C ourt, by special leave.
Excerpts from th e judgm ent o f Sarkar, J. follow :]
Section 27 o f the A ct provides th a t a person w ho instigates or in

cites others to tak e p art in, o r otherwise acts in furtherance o f a strike,
which is illegal under th e Act, com m its an offence. T he respondent’s
[the G overnm ent o f W est Bengal’s] case is th a t the strikes were illegal
u n d er S. 24 (1) o f th e A ct which provides th a t a strike or a lo ck o u t shall
be illegal if it is com m enced or declared in contravention o f S. 22. There
is no dispute th a t th e strikes were in contravention o f S. 22 [th at section
requires a notice before a strike]. T he appellants rely on S. 24 (3) o f
the Act u n d er which a strike declared in consequence o f an illegal lock
o u t shall not be deemed to be illegal and say th a t the strikes h ad been in
consequence o f an illegal lockout by the C om pany o f th e three hundred
w orkers o f th e h o t m ill b y th e notices o f 8 a n d 25 A pril. I t is clear th a t
i f there was such a lockout, it was illegal und er S. 24 (1), fo r it would be
clearly in contravention o f S. 22.
The question then is : W as there a lo ck o u t by th e com pany. T he

learned advocate fo r th e appellants first contends th a t the notices use
th e same w ords as are used in the definition o f a lockout in S. 2 (1) o f
th e A ct and therefore by these notices th e com pany locked-out th e m en.

We thin k th a t this argum ent is unfounded. The definition...reads.
“ L ockout m ean s...th e refusal by an em ployer to continue to em ploy

any num ber o f persons em ployed by h im .”
In the notices th e w ords are “ considered to be no longer em ployed” w hile

the definition uses the words “ refusal by th e em ployer to c o n tin u e to
em ploy.” Therefore th e words are n o t the same. F u rth erm o re the w ords
used in the notices an d in the definition have to be read in th e ir respec
tive contexts. F o r reasons to ap peal later, the w ords used in the n o tices
m eant a discharge o f th e em ployees from service while the w ords used
in the definition do n o t contem plate such a discharge o f the w orkm en.
The C ourts below have com e to the finding th a t by these notices

the three h u n d red w orkers o f th e h o t m ill were discharged on 10 A pril
1953, and h ad n o t been locked out. The learned advocate for th e ap pel
lants says th a t in this the Courts were wrong. H e puts his argum ents in
two ways. F irst, he says th a t th e notices did n o t effect a discharge till
28 A pril 1953, an d they h ad in th e m eantim e resulted in a lo ck o u t o f th e
w orkers from 10 A pril 1953, in th e sense th a t th eir services h a d n o t been
term inated but they h a d n o t been allow ed to a tte n d to their duties. T hen
he says th a t even if the notices effected a discharge, then also th ere w as
a lockout, for a discharge is equally a lo ck o u t w ithin the m eaning o f its
definition in th e A ct as th e prevention by an em ployer o f th e w orkers
from attending to th eir duties w ithout discharging them is.
D id th e notices then effect a discharge ? W e agree w ith th e C o u rts

below th a t they did. The learned advocate fo r the appellants co n ten d s
th at th e tw o notices tak en together m ake it perfectly clear th a t th e re was
no discharge o f any employee p rio r to 11 a.m . o f 28 April 1953. H e
says th a t the notice o f 25 A pril shows th a t the notice o f 8 A pril d id n o t
effect any discharge, for, th e first-m entioned notice says th a t th e fo rm al
discharge h a d been kept pending an d it also required the w o rksrs to
record their willingness to operate th e p la n t to its norm al capacity by
11 a.m . on 28 A pril, and further stated th a t failing this th e ir nam es
w ould be rem oved from the com pany’s roll a n d th eir discharge w ould
become fully effective.
W e are unable to read th e notices in th e way suggested. T h e notice

o f 8 A pril clearly stated th a t unless the w orkers notified their w illingness
to operate the plant to its n o rm al capacity by 2 p .m . on 10 A p ril th ey
would be considered to be no longer in the em ploym ent o f the c o m p a n y .
It plainly m eant th a t on their failure |t o record th e willingness by th e
LOCK-OUTS 399
tim e m entioned, th e w orkers w ould cease to be in th e em ploym ent o f

th e com p an y , th a t is, in o th e r w ords, discharged. T aken by itself, we
d o n o t th in k it is capable o f an y o th er m eaning. W e are also unable to
agree th a t there is anyth in g in th e notice o f 25 A p ril, w hich w ould show
th a t a different m ean in g o ught to be p u t on th e w ords used in th e notice
o f 8 A pril th a n they n o rm ally bear. T h e later notice also states th a t
th e w orkers had been considered to be n o longer em ployed from 10 A pril
H ence it m ain tain s th a t the w orkers had been discharged on 10 A pril.
I t no d o u b t says th a t th e fo rm al discharge h a d been k ep t pending b u t
th a t only m eans, as is clear from the last p a ra g ra p h o f the notice, th a t
th e nam es o f th e w orkers h a d n o t been rem oved from the com pany‘s
ro ll. T he w ord “ fo rm a l” m u st have its due m eaning, it em phasizes th a t
th e real discharge h a d alread y tak en place. W e m ay also state th a t it
has n o t been co n ten d ed b efo re us th a t th ere can be n o discharge till a
■worker’s nam e is rem oved fro m th e roll an d , w ith out m ore, we d o n o t
th in k th a t we w ould have accepted th a t co n ten tio n if m ade. The rem o
v al o f th e nam e o f a w orker fro m the roll follow s his discharge and th a t
is w h at was m ean t b y the statem en t in the n otice “ th a t th e form al dis
ch arg e had been k e p t p en d in g ” .
T h e circum stances w hich led to th e issuing o f the notice o f 25 A pril

also show th a t th e w orkers h ad actually been discharged on 10 A pril.
W hat h ad h ap p en ed was th a t th e L ab o u r M in ister o f th e G overnm ent o f
W est B engal h a d intervened in th e dispute betw een th e com pany and
its w orkers. H e m et the w orkers and on 21 A pril 1953, th a t is, after
th e term in atio n o f th e first o f the tw o strikes, suggested certain term s
fo r th e settlem ent o f th e dispute. H is suggestion was that:
“ I f the w orkers o f the h o t m ills, w ho stan d discharged from 2 p.m .

•of 10 A pril 1953, as a consequence o f their disregarding th e notice issued
o n 8 A pril 1953, re p o rt them selves for d u ty im m ediately an d record
th e ir willingness to operate th e p la n t to its n o rm a l capacity th e G overn
m en t w ould recom m end th e ir reinstatem ent to th e m an ag em en t.”
A copy o f th is suggestion was forw arded to the com pany by the

O o v ern m e n t w ith a request to im plem ent the recom m endations contained
in it w ith a fu rth e r request to give the suggestions a w ide publicity. The
co m p an y circu lated th e L a b o u r M in ister’s suggestion am o n g th e w orkers
a n d to com ply w ith h is request to im plem ent it, it issued th e notice o f
25 A pril, to w hich a copy o f th e suggestion was attach ed . It is, there
fore, clear th a t all th a t th e com pany in tended to d o by th e notice o f
2 5 A pril was to co m p ly w ith the G o v ern m en t’s suggestion a n d so to can
cel th e discharge o f th e w orkers o f th e h o t m ill w hich h a d already ta k en
■effect and rein state th em in th e ir fo rm er em ploym ents if the w orkers car
ried o u t their p a rt o f the suggestion. This notice, therefore, does n o t

support the contention th at the w orkers h a d n o t been discharged till
28 A pril, 1953.
W e m ay also state th a t there is no evidence th a t p rio r to 2 p .m .

o f 10 A pril 1953 any employee had been prevented by the com p an y
from attending to his duty.
T h e next question is w hether a discharge o f employees b y an em -

ployer am ounts to a lockout. It is said th a t th e w ords used it\ th e defi
nition o f a lo ck o u t, nam ely, “ the refusal by an em ployer to con tin u e to
em ploy an y num ber o f persons em ployed by h im ” cover the discharge
o f em ployees by an em ployer. T he co ntention so raised was rejected
by th e L ab o u r A ppellate T rib u n al in Presidency Ju te M ills C o m p an y ,
Ltd. V. Presidency Ju te M ills E m ployees’ U n io n (1952-1 L -L .J. 796)>
W e are in entire agreem ent w ith th e view there expressed.
I t seems to us th a t to construe th e definition as including a d is

charge w ould be against the m eaning o f a lo ck o u t as u n d ersto o d in in
dustrial relations.
By virtue o f S. 22 o f th e A ct, in a public utility service no w orker

can go on strike n o r can an em ployer lockout his w orkm en w ithout giving
notice o f strike or o f lo ck o u t w ithin six weeks before the strike o r lo ck
out as the case m ay be or within fourteen days o f such notice o r b e fo re
the date fixed in such notice or during th e pendency o f any concilliation
proceedings before a conciliation officer a n d seven days after th e co n clu
sion thereof. Section 23 prohibits strikes an d lockouts in other in d u s
trial establishm ents during the pendency o f conciliation proceedings-
before a b o ard and fo r seven days thereafter. Section 24 (1) m akes a
strike an d a lockout in contravention o f Ss. 10, 22 and 23, illegal.
Section 24 (2) provides th a t a strike declared in consequence o f an ille
gal lockout and a lo ck o u t declared in consequence o f an illegal strik e
shall n o t be illegal. Section 25 prohibits th e spending o f m oney on illegal
strikes and lockouts.
The A ct therefore treats strikes and lockouts on the same basis; it

treats one as the co u n terp art o f the other. A strike is a w eapon o f th e
workers while a lockout th a t of the em ployer. A strike does n o t, o f
course, contem plate th e severance o f the relatio n o f em ployer a n d em
ployed; it w ould be strange in these circum stances if a lo ck o u t did so.
U nder th e provisions o f S. 22, a lockout can n o t be declared in a

public utility service im m ediately; it can be declared only after the date
fixed in the notice and cannot be declared w ithin fourteen days o f the
LOCK-OUTS 401
giving o f th e n o tice. N ow , if a discharge is included in a lo c k o u t, an em

ployer in such a service c a n n o t discharge his em ployee, except after th e
tim e specified. N o w , th a t w ould often m ak e it im possible for th e em plo
yer to carry o n his business. It is conceivable th a t an em ployee m ay be
guilty o f such m isco n d u ct th a t his im m ediate discharge is essential. In
deed, there is n o reaso n to th in k th a t such cases w ould b e very infrequent.
la such a case i f an em ployer is prevented on p ain o f being m ade crim i
nally liable u n d e r S. 27 from discharging th e em ployee fo rth w ith , irrep a
rab le m ischief m ay be caused to his w orks o r serious p e rso n a l injury to
him self o r his o th e r em ployees. W e have n o reason to th in k th a t the A c t
intended such a re su lt.
A gain, if a lo c k o u t included a discharge, th e n there w ould be a c o n

flict betw een Ss. 22 and 23 on th e one h a n d a n d S. 33 on the other.
A s h as already been stated , Ss. 22 and 23 p ro h ib it a lo ck o u t o f w orkers
d u ring th e p endency o f th e conciliation proceedings, therein m entioned,
and seven days th ereafter. A ccording to th e in te rp re ta tio n suggested by
the learned ad vocate fo r th e ap pellants, during th is tim e n o w orker could
at all be discharged fo r a lo c k o u t includes a discharge, it being rem em
bered th a t the p ro h ib itio n in th e section is ab so lu te. U nder S. 33, how ever,
an em ployer is p ro h ib ite d d u rin g th e pendency o f a conciliation proceed
ing, from d ischarging a w o rk m an concerned in the dispute for any m is
conduct co n n ected w ith such dispute save w ith th e express perm ission o f
the au th o rity b e fo re w hom th e proceeding is pending. So, if a lockout in
cludes a discharge, u n d er Ss. 22 and 23 th e re can b e n o discharge during
conciliation proceedings w hile und er S. 33 th e re could be one with th e
perm ission o f th e a u th o rity conducting the proceedings. I f a discharge
am oun ted to a lo c k o u t, an a b su rd result w ould th u s be produced.
By an am en d m en t m ad e o n 2 O ctober 1953, certain provisions have

been intro d u ced in to th e A c t which would show clearly th a t a lo ck o u t
as defined in S. 2(1 ), w hich section has been left unaltered by the am end
m en t, was never in ten d ed to include a discharge o f w orkm en. W e refer
first to S. 2(oo) b y which a new definition w as in tro d u ce d in th e A ct
w hich, so fa r as is necessary fo r th e present p u rp o se, is in these w ords :
“ R etrenchm ent m eans th e term in atio n b y the em ployer o f th e

service o f a w o rk m an fo r reaso n w hatsoever otherw ise th a n as a
pu n ish m en t inflicted b y way o f disciplinary a c tio n .”
I f lo ck o u t includes a discharge, th e n retren ch m en t as defined in

S. 2(oo) w ould also clearly b e a lockout. O bviously, if th a t were so ,
th en retren ch m en t w o u ld n o t have been separately defined. A gain, under
S. 25F , also in tro d u ced in to th e A ct b y the am en dm ent, a w o rk m an m ay
be retrenched by paying him wages for a m o n th , the com pensation

provided, and on notice to the G overnm ent. If retrenchm ent w as a form
of lockout, then there w ould clearly b e a conflict betw een Ss. 22 a n d 23
on the one h and a n d S. 25F o n th e other. Sections 2(oo) and 2 5 F w ere,
no d o u b t, not in th e A ct at the date o f th e notices w ith which we are
concerned, b u t since S. 2(1) was n o t am ended, it m ust be tak en th a t its
m eaning rem ained after th e am endm ent w hat it was before. Since the
am endm ent m ade it clear th a t S. 2(1) did n o t include a retrenchm ent, it
follows th a t, th a t definition did n o t include a retrenchm ent p rio r to the
am endm ent. If it did not then include a retrenchm ent, neither could it
include a discharge, for, plainly, a retrenchm ent is b u t one form o f
discharge.
I t, therefore, seems to us th a t the w ords “ refusal by an em ployer to
continue to em ploy any num ber o f persons em ployed by him ” in S. 2(1)
do n o t include th e discharge o f an em ployee. We feel n o difficulty in
taking this view, for it does n o t seem to us th at the words “ refusal to
continue to em ploy” in S. 2(1) plainly include a discharge. These w ords
have to be read w ith the rest o f the definition an d also the word “ lo ck
o ut.” The other parts o f th e definition contem plate no severance o f the
relation o f em ployer and employee. The w ord “ lockout” as stated in
the Presidency Jute M ills C om pany case, 1952—I L .L .J. 796, (supra) in
its dictionary sense m eans refusal on th e p a rt o f an em ployer to furnish
work to his operatives except on conditions to be accepted by th e la tte r
collectively. T herefore, in our opinion, th e rules o f interpretation do n o t
prevent us from giving to the w ords used in th e definition the m eaning
“ a refusal b y the em ployer to allow any num ber o f persons em ployed by
him to attend to th eir duties w ithout effecting a term ination o f service” ,
as was done in the Presidency Jute M ills C om pany case,...(supra) w hich
w ould avoid one p a rt o f the A ct com ing in conflict with another. . . .
W e feel, therefore, th a t th e appeal m ust fail. W e th ink it rig h t
however in the circum stances o f this case, and in view o f the lo n g lapse
of tim e since the case started, to m odify the sentence passed. In o u r
view, a sentence of simple im prisonm ent fo r the period already served
and a fine o f Rs. 100 with simple im prisonm ent for a period o f fifteen
days in default o f paym ent of the fine for each ap p ellan t will be sufficient
in this case and we order accordingly.
Subject to this m odification of th e sentence, this appeal is dism issed.
E X PR ESS N EW SPA PERS L T D . v. T H E IR W O R K M E N

Supreme Court, (1962) II L .L .J. 227
[The Com pany published several new spapers and periodicals from
M adras. It h ad m any unresolved disputes o f long standing w ith its
LOCK-OUTS 403
w orkers. A pprehending a tran sfer by the C o m p any o f its business to a

benami (fictitious) concern in spite of a previous prom ise n o t to m ake
such a tran sfer, on th e 2 7 th A p ril 1959 th e w orkers struck. O n th e 29th
A p ril, th e C o m p an y an n o u n ced the closure o f its business a t M a d ra s,
T his an n o u n cem en t in d icated th a t the em ployees w ould b e p aid th eir
wages, one m o n th ’s salary iu lieu o f notice, and retrenchm ent com pensa
tio n . T reatin g th e closure as a lockout in response to th e strike, th e
M ad ra s G o v ern m en t referred tw o issues fo r ad ju d ication : “ W hether th e
tran sfer . . . is ju stified ” an d “ W h eth er th e strike . . . a n d th e consequent
lo ck o u t . . . are justified ” , an d to w hat relief, i f any the em ployees a re
entitled. On th e sam e day, th e G overnm ent also ord erd discontinuance
o f th e strike a n d th e lockout. The C om pany filed w rit petitions in the
M ad ras H igh C o u rt, against th e orders o f th e G o vernm ent. M r. Justice
A yyar, th e tr ia l ju d g e, w ho h eard the p etitio n s together, on aflBdavits,
held th a t the G o v ern m en t h a d no ju risd ictio n to order discontinuance
o f th e lo ck o u t a n d th a t th e C o m pany was e n title d to ignore th a t order.
H e also held th a t w h a t th e C o m pany did am o u n ted to a closure and n o t
a locko u t. H e therefo re directed th e T rib u n a l to decide o n ly w hat relief
th e em ployees w ere entitled to . T he w orkers ap pealed these decisions to
a D ivision Bench o f th e M ad ras H igh C o u rt. T h at ap pellate c o u rt
agreed w ith th e tria l ju d g e th a t th e G o v e rn m e n t’s o rd er to discontinue
th e lo ck o u t was w ith o u t ju risd ic tio n . B u t it held th a t th e facts giving
rise to th e questio n o f th e v alidity o f th e reference should be fully
investigated by th e In d u strial T rib u n al. T h e C om pany app ealed b o th
decisions to th e S uprem e C o u rt. M r. Justice G ajen d rag ad k ar o f th e
Suprem e C o u rt said in his ju d g m en t, after n a rra tin g th e facts ;]
T he tru e legal position in regard to th e ju risd ictio n o f th e H igh

C o u rt to en tertain th e a p p e lla n t’s petitio n even a t th e initial stage o f th e
proceedings p ro p o se d to be ta k e n before th e in d u strial trib u n a l, is n o t in
dispute. I f th e action ta k e n b y th e ap p e lla n t is n o t a lo ck o u t b u t is a
closure, b o n a fide an d genuine, th e dispute w hich th e respondents m ay
raise in respect o f such a closure is n o t an in d u stria l dispute a t all. On
th e o th er h a n d , if, in fact a n d in substance, it is a lo ck o u t, b u t the said
action has ad o p ted th e disguise o f a closure an d a dispute is raised in
respect o f such a n action, it w ould be an industrial dispute which
in d u stria l ad ju d icatio n is co m p eten t to deal w ith. . . . T he only question
o n w hich th e tria l C o u rt an d th e ap p eal C o u rt have differed is in regard
to th e p ro p eriety o r th e ap p ro p riaten ess o f holding an enquiry on a
com plicated questio n o f fact in w rit proceedings. I t is w ell-know n th a t
in d u strial co u rts a re fam iliar w ith th e n a tu re o f th e problem s raised by
th e prelim inary issue betw een th e parties in th e p resent w rit proceedings.
In fact, in d u strial trib u n a ls have been specially established in order tb
deal w ith in d u strial disputes in different places. T h a t is one consideration
404 LABOUR- LAW AND LABOUR RELATIONS
which is relevant. T he other co nsideration w hich is equally m ate rial is

th at a question o f th is com plicated ch aracter cannot be satisfactorily
dealt with merely on affidavits. T h e theoretical distinction betw een a
closure and lockout is well settled. In th e case o f a closure, the em ployer
does n o t merely close dow n the place o f business, but he closes the
business itself; a n d so, th e closure indicates the final and irrevocable
term in atio n o f the business itself. L ockout, on the other hand, indicates
th e closure o f the place of business an d n o t th e closure o f business itself.
Experience o f industrial tribunals shows th a t th e lockout is often used by
the em ployer as a weapon in his arm o u ry to com pel the em ployees to
accept his proposals ju s t as a strike is a w eapon in the arm o u ry o f the
employees to com pel th e em ployer to accept th e ir dem ands. T h o u g h th e
distinction betw een th e two concepts is th u s clear in theory, in a ctu al
practice it is n o t always easy to decide w hether th e act o f closure really
am ounts to a closure properly so-called or w hether it is a disguise fo r a
lockout. In dealing with this question, industrial adjudication h a s to
take in to account several relevant facts and these facts may b e proved
before the in d u strial tribunal either by o ra l evidence, or by docum entary
evidence an d by evidence o f conduct and circum stances. W henever a
serious dispute arises between an em ployer and his employees in re g ard to
a closure which th e employees allege is a lo ckout, the enquiry w hich
follows is likely to be long and elaborate and th e ultim ate decision has
always to depend on a careful exam ination o f the whole o f the relev an t
evidence. This being so, it seems, to us th a t th e course adopted by th e
appeal C o u rt in th e present proceedings is b o th p roper and ap p ro p riate.
T h e H igh C o u rt undoubtedly has ju risd ictio n to ask the in d u stria l

trib u n al to . . . em bark upon th e prelim inary enquiry itself The ju risd ic
tion o f th e H igh C o u rt t o ad o p t this course cannot be, and is indeed n o t,
disputed. B u t w ould it be proper fo r th e H igh C ourt to adopt such a
course unless the ends of justice seem to m ake it necessary to do so?
N orm ally, th e questions o f fact, though they m ay be ju risdictional facts
the decision o f w hich depends upon the app reciation o f evidence, sh o u ld
be left to be tried by the special tribunals constituted for th a t p u rp o se.
I f an d after the special tribunals try th e p relim inary issue in respect to
such jurisdictional facts, it would be open to th e aggrieved party to ta k e
th a t m a tte r before th e High C ourt by a w rit p etition and ask fo r an
appropriate writ. Speaking generally, it w ould n o t be p ro p e r o r
appropriate th a t the initial ju risdiction o f the special trib u n al to d e a l w ith
these jurisdictional facts should be circum vented and th e decision o f such
a prelim inary issue brought before a H igh C o u rt in its w rit ju risd ictio n .
We wish to poin t o u t th a t in m aking these observations, we d o n o t
propose to lay dow n any fixed or inflexible rule; w hether o r n o t even th e
prelim inary facts should be trie d by a H ig h C o u rt in a writ petition^ m u st
LOCK-OUTS 405
n a tu ra lly d epend u p o n th e circum stances o f each case a n d u p o n th e

n a tu re o f the p relim in ary issue raised betw een th e parties. H aving regard
to th e circum stances o f th e p resen t dispute, we th in k th e C o u rt o f app eal
w as rig h t in ta k in g th e view th a t th e p relim inary issxie should m ore
ap p ro p ria te ly be d ealt w ith by th e trib u n al. . . .
In order to avoid any controversy betw een th e p a rtie s before th e
en q u iry w hich th e said trib u n a l w ould be justified in holding on the
presen t reference, we w ould like to state th a t in try in g issue 1 the trib u n al
w ill deal w ith th a t issue in th e lig h t o f the re sp o n d en ts’ contention about
th e verbal assu ran ce given b y th e ap p ellan t’s ch airm an to them d u ring
th e course o f th e p rev io u s n egotiations. I n reg ard to the enquiry under
issue 2 th e trib u n a l will have to consider w hether th e strike was justified.
I t will also have to consider w hether th e tran sfer effected by th e appellant
a m o u n ts to a clo su re or a lo ck -o u t and in dealing w ith this issue, it will
ta k e in to acco u n t a ll facts w hich are relev an t an d m aterial. . . .
T h a t leaves only one m in o r p o in t to be m entioned an d it relates to
th e ord er passed by th e S tate G o v ern m en t u n d e r S. 10(3) o f th e A ct. W e
agree w ith th e tr ia l C o u rt a n d th e C o u rt o f ap p eal th a t th e S tate G overn
m en t was ill-advised to issue th e said order. It m ay be th a t the State
G o v ern m e n t was anxious to preserve in d u strial peace and so it proceeded
to exercise its ju risd ic tio n u n d e r S. 10(3), B u t i t is obvious th a t th e full
im plicatio n s o f th e o rd er w ere n o t ap preciated b y the S tate G overnm ent
b efore it issued th e said order. Indeed, th e in ap p ro p riaten ess and the
im p rop riety o f th e said o rd e r gave rise to a n arg u m e n t by th e appellant
t h a t th e G o v ern m en i was acting m a la fide against it, a n d the State
G o v ern m en t h a d to offer an ex p lan atio n in th e form o f an affidavit an d
by way o f a statem en t m ade b y th e G ov ern m en t P lead er at th e b ar to m eet
th is challenge. I f o n ly the S tate G ov ern m en t h a d considered the m atter
m ore carefully b efo re issuing the said order, this com plication could have
been easily avoided.
T h e resu lt is, th e tw o appeals fail a n d are dism issed with costs.
T h e re will be one set o f hearin g fees in these appeals.
NOTE
C o n sid er th e basis o f th e Suprem e C o u rt’s ju risd ic tio n to com m ent upon

th e o rd er o f discontinuance o f strike an d lo c k o u t passed by th e State
G o v ern m en t.
P R E M IE R A U T O M O B IL E S L T D . v. G .R . S A P R E
B om bay H igh Court, (1981) L a b . I.C . 221
[The P rem ier A uto m o b iles L td . h ad th re e p lants lo cated a t K urla,

K a ly a n and W adala. T he w o rk m en o f th e first p la n t reso rted to go slow
and indulged in subversive activities as a p ro te st against non-reco g n itio n

o f un io n in these plants. C onsequently th e m anagem ent n o t only locked
out th e p la n t a t K u rla b u t also suspended th e w ork at K aly an . T h e
L abou r C ourt held th a t the stoppage o f w ork a t K aly an p lan t a m o u n te d
to lock-out an d it was illegal in as m u ch as th e same was reso rted to-
w ithout 14 days’ notice as required und er Section 24 (2) (c) o f th e A ct.
The m anagem ent challenged this o rd er in a w rit p etition in th e B om bay
High C ourt. Excerpts from the judgm ent o f the C ourt, delivered by
D eshpande, J. follow :]
T h e first question th a t arises for consideration is as to w hether the;

suspension and stoppage o f w ork a t K alyan p la n t...a m o u n t to “ lock
o u t” o r n o t....
T h e w ord ‘lo ck -o u t’ is not defined in th e Act. Section 3(18)

indicates now its deiinition under th e In d u strial D isputes Act is in ten d ed
to be acted u p o n for th e purposes o f th e Act. Section 2(1) o f th e said
Act defines ‘lock-out’ to m ean ;
“ ‘L ock-out’ m eans the closing o f a place o f em ploym ent, o r the

suspension o f w ork, o r th e refusal by an em ployer to continue to em ploy
any n u m b er o f persons em ployed b y h im .”
T he definition is no doubt wide enough to cover every process o f

stopping th e work. P rim a facie, th e suspension o f work co n tem p lated
under the n o tic e ,...is covered by th is wide definition....R eliance is placed
on th e following passage in K airbetta E state v. R ajom m ickam , A IR I960
SC 893 :
“ L ock-out can be described as th e antithesis o f a strike. Ju st

as a strike is a w eapon available to th e em ployees for enforcing th e ir
industrial dem ands, a lock-out is a w eapon available to the em ployer to
persuade b y a coercive process th e em ployees to see his p o in t o f view
and to accept his dem ands. In th e struggle betw een capital a n d la b o u r
the w eapon o f strike is available to lab o u r an d is often used by it, so is.
the w eapon o f lock-out available to the em ployer a n d can be used by
him. The use o f b o th the w eapons by the respective parties m u st how
ever, be subject to the relevant provisions o f th e A c t....”
T h e sole question is w hether the ab ru p t stoppage o f w o rk a t

K alyan P la n t from 16-12-1978, is aim ed “ at p ersuading” by a coercive
process the employees to see th e em ployers’ “ p o in t o f view” and accept
their “ dem ands” . It is tru e th a t no dem and as such is show n to have
been ever m ade by the employers against these w orkm en. B ut it would!
LOCK-OUTS 407
be idle to expect th e em ployers to m ak e express dem ands every tim e. It

•will be enough if any such dem an d can e-ven be im plied from the course
o f conduct. T h e n otice recitals do show th a t (1) stoppage o f the w ork
a t K alyan is th e resu lt o f its stoppage o f w ork a t K u rla , (2) K u rla
op eratio n s h ad to be sto p p ed due to the go-slow tactics an d subversive
activities o f the w ork m en , th e re , (3) th e K u rla w orkm en were instigated
to so act b y th e office b earers o f...U n io n to whom the w orkm en a t
K aly a n p la n t owe allegiance, an d such instigation h a d succeeded in
causing the d islo catio n o f w o rk a t K urla, (4) violence on 28th N ovem ber,
1978, at K u rla p la n t resulting in death o f one o f th e w orkm en, stabbing
o f staff m em bers an d th e ir h o sp italisatio n an d injuring 10 others was the
resu lt o f th e in flam m ato ry speech es...an d (5) all this was aim ed at com
pelling th e em ployers to accept R espondent N o . 2 as the sole representa
tiv e U n io n w ho w ere refusing to do so since R esp o n d en t N o . 2’s dem and
o f Oct. 1978....
T he tim ings, th e b ack g ro u n d , and ad m itte d dispute betw een Res

p o n d e n t N o . 2 U n io n and em ployer, as to th e form er’s representative
c h a rac ter o f th e K u rla an d W a d a la p lan ts, should leave no m an n er o f
d o u b t th a t a b ru p t suspension is aim ed a t bringing pressure on R espondent
N o . 2 th ro u g h th e w orkm en a t K alyan, to behave and m end its ways at
K u rla an d W a d a la ....
Such suspension o f w o rk a t K alyan satisfying as it does the test

laid dow n in K a irb e tta ’s case A.1R 1960 SC 893 (supra) does am o u n t to
lo c k -o u t....
T h e m ain o bject o f n o tice o f 14 days before lo ck -o u t o r strike is

to avoid possible dislo catio n to th e em ployers an d th eir w orkm en and
give som e b re a th in g tim e to adjust. It is n o t th a t th e law does n o t
p erm it th e em ployers to re so rt to lo ck -o u t in the sam e m a n n e r as th e
w orkm en are en titled to use th e w eapon o f strik e fo r achieving their
objects. P ay m en t o f wages in lieu o f notice c a n serve th a t p u rp o se and
is expressly m ade perm issible u n d e r Section 25F or Section 2 5 F F F o f
th e In d u stria l D isp u tes Act. T he finding o f th e L a b o u r C o u rt th a t th e
sto p p ag e o f w ork am o u n ted to lo ck -o u t and it w as illegal, does n o t thus
c a ll fo r any in terferen ce....
T h e next q u e stio n is w hether th e lo ck -o u t com m enced illegally

w ith o u t notice in com pliance w ith Section 24 (2) (a) can becom e legal,
a fte r com pliance w ith it, d u rin g its illegal continuance. In the present
case, N oticc E x h ib it ‘N ’ p u rp o rtin g to suspend w o rk from 6-1-1979, was
issued obviously in com pliance w ith Section 24(2) (a) on 15th D ecem ber,
1978, itself, when N o tic e ‘O ’ p u rp o rtin g such suspension w ith im m ediate
effect on 16-12-1978, also was issued. E m ployer w ithdrew N o tic e ,

E xhibit ‘O ’ on 6-1-79, in th e belief o f N otice ‘N ’ having becom e effective,
and stoppage o f w ork being legal from th a t d ate even if such suspension
is held to be ‘lo c k -o u t’....
W e are unable to see any reason why condition as to notice o f
14 days can n o t be com plied w ith, even at such com m encem ent o r d u rin g
the perio d of th e continuance of illegal strike. A ny lo ck -o u t so com
menced illegally w ith o u t n otice, w ould cease to be so illegal, fro m th e
day o n w hich 14 days period expire. Illegality com m itted till th a t day
may have its full effect an d subsequent legality th e re o f m ay n o t relieve
the em ployer o f financial liabilities to w hich the illegality o f th is p e rio d
exposes him such as paying com pensation to w orkers even w hen th ey
have n o t w orked for n o fau lt of th eirs. Illegal com m encem ent o f a lock
out can ta k e place und er variety o f circum stances, including th e ignorance
of th e legal position or doubtfulness o f its being a ‘lo ck -o u t’ an d , n o t
necessarily out o f vindictiveness, obstinacy o r deliberate in ten tio n to flout
the law. It is never to o late to be wiser an d to m ake am ends. N o o n e
can claim vested interest in com pelling a m an to continue th e illegality
even w hen he is keen to remove it by com plying w ith the law ....
T h a t the illegality involved in this process is n o t a b so lu te , o r
incurable is also evident fro m sub-section (5) o f Section 25. S. 25(2)
enables any em ployer, employee o r th e State G o v t., to m ake an a p p lic a
tion to th e L ab o u r C o u rt for d eclaratio n of any lock-out to b e illegal.
In th e event of any such declaration being m ade on enquiry by the
L abo u r C ourt, Section 25(5) enables th e em ployer to withdraw the lo c k
out w ithin 48 h o u rs o f such d eclaration and rem ove the illegality involved
right fro m its com m encem ent. N o tw ith stan d in g it being illegal till th e n ,
the lock-out is to be deemed to be n o t so illegal for the purposes o f th e
Act. This section provides for declaration o f any strike also being
illegal an d Section 25(5) enables th e em ployees also to get the illegality
cured in th e sam e m anner by w ithdraw ing th e strike w ithin 48 h o u rs.
Section 25(5) has no direct application to th e facts o f the presen t case
but it gives an inkling into how legislature itself did n o t consider such a n
illegality to be inviolable....
W e have n o hesitation, therefore, in holding th at the petitioners-
did com ply with Section 24(2) (a) and though ‘lo ck -o u t’ continued to be
illegal till 6-1-1979, it ceased to be so thenceforw ard. O rd e r o f th e
L abour C ourt calls fo r m odification to this e x te n t....
T he lock-out in K am ani M ettalic Oxides L td ., has becom e legal
by 20-4-1979, long before the com plaint d ated 4-6-1979, and th e re was
no occasion for the kind o f interim relief granted.
(Petition allow ed.)
LOCK-OUTS 409
P R IY A L A X M I M IL L S L T D ., v.
M A Z D O O R M A H A JA N M A N D A L B A R O D A
A .I.R . 1976 S.C. 2584
[The m an ag em en t d eclared a lock-out as a resu lt o f trespass,

re stra in t an d illegal confinem ent b y w orkm en o f certain officers o f th e
M ill. On a co m p la in t by th e w orkers’ U n io n alleging th e lock-out
declared by the m an ag em en t to be illegal th e L a b o u r C o u rt held th a t
th e lo ck -o u t was illegal u n d er clauses (e) an d (h) o f section 98(1) o f th e
B om bay In d u stria l R elatio n s A ct, 1946. A ggrieved by th is order th e
m an agem en t filed a special ap p eal in th e Suprem e C ourt. Excerpts from
th e ju d g m e n t o f G o sw am i J ., follow :]
T h e q u estio n th a t falls fo r decision is w hether th e lo ck -o u t in

q u estio n is illegal u n d e r Section 98(1) (a) o f the A c t....
A ccording to S ectio n 98(1) (a), “ a lo ck -o u t shall be illegal if it is

com m enced o r c o n tin u e d in cases where it relates to any in d u strial m atter
specified in Schedule I I I o r regu lated by any stan d in g o rd e r fo r the tim e
being in force” ....
Schedule I I I e n u m erates seven item s o u t o f w hich we are required

to consider only item 6(ii) w hich reads as follow s :—
“ E m p lo y m en t in clu d in g unem ploym ent o f persons previously

em ployed in the in d u stry con cern ed .” B efore we proceed fu rther we
m ay ta k e n o te o f th e definition o f lock-out w hich is fo u n d in Section 3(24)
o f th e A c t ;
“ ‘L o ck -o u t’ m eans th e closing o f a place or p a rt o f a place o f

em ploym ent or th e to ta l or p a rtia l suspension o f w ork by an em ployer
o r th e to ta l o r p a rtia l refusal by an em ployer to co n tin u e to em ploy
p erson s em ployed b y him , w here such closing, suspension, o r refusal
occurs in consequence o f an in d u strial d isp u te an d is intended fo r th e
p u rp o se o f •-
(a) com pelling an y o f th e em ployees d irectly affected b y such closing,

suspension o r refu sal o r any o th e r em ployees o f h is, o r
(b) aiding an y o th e r em ployer in com pelling persons em ployed by

h im , to accept an y te rm o r c o n d itio n o f o r affecting em p lo y m en t.”
T h is definition is differently w orded from w h at is th ere in th e Industrial

D isp u tes A ct, 1947. W e, how ever, find th a t in th e T rad e D isputes A ct,
1929, lo ck -o u t is sim ilarly defined as in th e p re se n t A ct. B y Section 2(1)
o f the In d u strial D isp u tes A ct, lo ck o u t m eans “ th e closing o f a place
o f em ploym ent, o r th e suspension o f w ork, o r th e refusal by a n em ployer

to continue to em ploy any num ber o f persons em ployed by h im .” This
C ourt, while interp retin g the above definition, in M anagem ent o f
K airbetta E state K o tag iri V. R ajam an ick am , (1960) 3 SC R 3 7 1 = (A IR
1960 SC 893) observed as follows
“ Even so, the essential character o f a lock-out continues to be sub
stantially th e sam e. L ock-out can be described as th e antithesis o f a
strike. Ju st as a strike is a w eapon available to the em ployees for
enforcing their in d u strial dem ands, a lock-out is a w eapon availab le to
the em ployer to persuade by a coercive process th e employees to see his
p o in t o f view and to accept his dem an d s.”
I t should, how ever, be m ade clear th a t lock-out can be d eclared also
for reasons sim ilar to those described in th e p resent notice o f lock-out.
In th a t case although it w ill be lo ck -o u t in an o th e r sense, it m ay n o t be
a lo ck -o u t w ithin th e m eaning o f Section 3(24) o f the A ct. T h a t k in d o f
a lock -o u t w ith th e avowed object o f preventing violence an d th re a t to
life a n d p ro p erty m ay even be justified on facts in a given case. In such
a situ atio n it m ay be dilBcult to prove th a t it is an illegal lo ck -o u t since
in an illegal lock-out th e sole object is to com pel th e w orkm en to accept
the term s o f th e em ployer which th e w orkers consider as unreaso n ab le
and oppressive....
T he only question, therefore, th a t survives is w hether o n the
finding o f th e L ab o u r C o u rt th e lo ck -o u t is illegal.
I t is contended on b ehalf o f th e ap p ellan t th a t item 6 (ii) in
Schedule l i t to th e A ct which deals w ith th e unem ploym ent o f persons
previously em ployed in the industry concerned cannot govern a case o f
lay off. A ccording to counsel lay off is n o t unem ploym ent since th e re
lationship o f m aster an d servant is not snapped.^W e are unable to accept
this contention. L ay off is not defined in the A ct b u t has been defined
in Section 2(kkk) o f th e Industrial D isputes A ct....
Even according to th e dictionary m eaning, lay off m eans to dis-

countinue w ork or activity, : to dismiss o r discharge tem porarily. W hen
workers are in em ploym ent and they are laid off, th a t im m ediately results
in th e ir unem ploym ent, howsoever tem porary, and such an unem p lo y
ment will clearly com e under item 6 (ii) in Schedule I I I o f th e A ct. It
is n o t disputed th a t “ unem ploym ent” is an in d u strial m atter as defined
under Section 3(18) o f the Act. Since unem ploym ent is an in d u strial
m atter under item 6 (ii) o f the Schedule III to th e A ct, the lock-out
which h as been found by the L a b o u r C o u rt to have direct connection
with th e lay off is clearly illegal under Section 98(1) (a) o f the A ct.
(A ppeal dism issed).
LOCK-OUTS 411
GHERAO
This note, o n th e strange phenom enon called “ g h e ra o ” , is an

a ttem p t to picture it as o f June 1967. T he n o te is draw n from news
p a p e r accounts th a t appeared in th a t and previous m onths. I t tries to
sketch a co n tro v ersial feature o f lab o u r relations a t one m ovem ent o f its
developm ent.
G herao literally m eans “ encircle” or ‘su rro u n d ’. I t is to industrialists

a terrifyingly p o w erfu l w eapon-som ew hat, p erhaps, as is a hydrogen
b o m b to m an k in d a t large. A gherao occurs w hen the w orkm en, in
o rd e r to force a n em ployer to accept their dem ands, surround his ofSce
o r residence, o r th a t o f his executive. T hey block ingress and egress.
T hey sometimes cu t o ff electricity, telephones, even food an d water, A
gherao is usually sh o rt; b u t m ay be long. O ne lasted for five days.
In th e past th re e m o n th s in W est Bengal th ere have been 161

gheraos. I t is slow ly crossing into other states too. The m ovem ent
which started in th e p riv ate sector undertakings, soon struck the public
sector also. A n d n o w it casts its shadow over schools, universities, and
hospitals. Even c a b in e t m inisters have been gheraoed.
A larm ed b y all th is th e trip artite Standing L ab o u r C om m ittee m et

in D elhi, and d eb ated gherao, o n M ay 10, 1967. T he storm y words
revealed sharp an d irreconcilable differences betw een th e em ployers and
the w orkm en.
T he representatives o f the em ployers, M r. T a ta , M r. C h in a i and

M r. M odi, condem ned gherao w ith o u t qualification. M r. T a ta said th a t
th e w orkers were su b stitu tin g coercive bargaining fo r collective bargain
ing. M r. C hinai saw the m ovem ent as a red p la n fo r revolution.
W o rk ers’ representatives, M r. D ange (A IT U C ), M r. N a ir (U TU C )

an d M r. K otw al (H M S ) expressed diam etrically opposite views. Some
claim ed th a t th e gherao, like peaceful satyagraha, was a legitim ate
w eapon. M r. D an g e an d M r. N a ir said th a t th e gherao was n o t new :
th a t w orkers in W est Bengal and K erala h a d used it in the past.
M r. D ange asserted th a t em ployers also used gherao, w ith police assis
tan ce, to scuttle th e trad e-u n io n m ovem ent. A ll th e w orkers’ represen
tatives, including M r. M ukherjee (IN T U C ) charged th a t gheraos were
reactions against em ployers’ refusals to im plem ent aw ards and their
reckless indulgence in closures, dismissals, lay off an d retrenchm ent.
T he ill-paid and shab b ily treated w orkers w ere frustrated a n d discon >
tented. Techniques like th e gherao em anated from th e prevailing social
412 LABOCR LAW AND LABOUR RELATIONS
and econom ic conditions. T he governm ents sh o u ld go to a n d rem ove

the ro o t causes o f these fru stratio n s a n d th is d iscontent.
M r. T a ta an d th e other em ployers ad m itted som e failures to obey

awards, b u t said th a t closures o f som e establishm ents, retren ch m en t a n d
the like, were com pelled by th e losses being suffered. (A ccording t o the
Bengal C ham ber o f Com m erce, only 16 o f th e 72 gheraos betw een
February 27 and M ay 5, 1967, were reactions against m easures ta k e n by
em ployers. But th e objects of th e o th er 56 it did n o t state. N o
statistics are furnished by the unions.) T he em ployers conceded, h o w
ever, th a t som e o f th e m ost vexatious gheraos were caused by closures,
lay offs, and the like.
Because o f this belligerent p o larizatio n , th e C om m ittee could a d o p t

only th e follow ing com prom ise resolution :
“ T his session o f th e Standing L a b o u r C om m ittee disapproves

coercive and intim idating tactics including gheraos (wrongful confine
ment) fo r resolving industrial disputes. The A IT U C representative did
n o t agree a n d w ithdrew from the m eeting. T h e U T U C representative
objected to the w ord gherao, b u t n o t to the use o f th e w ords “ w rongful
confinem ent” . (M r. T a ta w as also absent at th e tim e o f the vote.)
T he C om m ittee reiterated th a t all agreem ents previously reached

regarding closures, lockouts, retrenchm ents, lay-offs, discharges a n d
dismissals w ould be respected and im plem ented by b o th sides.
M r. D ange, later, to ld a press conference th a t A IT U C w ould n o t

be bou n d b y th e C om m ittee’s resolution, an d th a t gheraos w ould n o t
stop. H e said he h o p ed th a t gherao w ould be accepted as a legitim ate
m ethod o f agitation, a n d added th a t a t one tim e strikes, trad e u n io n
activities an d picketing h a d been viewed w ith sim ilar disapproval.
T he executives (who merely carry o u t orders o f th e em ployers) are

am ong th e m ain victim s o f gheraos. They are often locked, in th e ir
oEBces w ithout food or water. They have, therefore, suggested to a new s
paper correspondent th a t th e Factories A ct ought to be am ended to p ro
vide for kitchen and to ilet next to their room s, a n d to declare th a t
m anagem ent is a hazardous occupation.
The W est Bengal G overnm ent h a s viewed th e gherao m ovem ent as a

labour-problem and has ordered the police n o t to intervene. B ut w hen
th e gheraos struck the public sector, th e G overnm ent was alarm ed. T he
W est Bengal M inister o f In d u stry and C om m erce expressed grave co n cern
LOCK-OUTS 413
over grow ing in cid en ts o f gherao in public-sector undertakings. H e said

th a t if they w ere n o t checked th ere w ould be a serious dislocation in th e
w o rk in g o f the State-ow ned projects. T herefore th e W est B engal G overn
m en t seems now to be ready to p ro te c t th e p u b lic sector so as to ensure
its sm ooth fu nctioning.
T he U n io n G o v ern m en t h as viewed the g h erao m ovem ent n o t as a
lab o u r-p ro b lem b u t as a law -an d -o rd er problem . T h e UDion M inister
fo r Steel, M ines an d M etal observed a h a t gheraos, invitations to lawless
ness, did n o t com e w ith in th e fram ew ork o f tra d e -u n io n legislation. The
U n io n H om e M in ister has rem ark ed th a t even peaceful gheraos involve
m o re th a n one cognizable offence, and so the police should intervene to
sto p them .
M r. C havan h a s advised th e W est Bengal C h ief M inister to check
th e gheraos. H e said th a t th e gherao m ovem ent, w hich poses a th reat
to th e C o n stitu tio n an d the ru le o f law, is o f co n cern to th e C entre also.
T he o p p o sitio n leaders, how ever, say th a t M r. C h avan h as n o consti
tu tio n a l au th o rity to te n d e r advice like this to a C hief M inister.
A peaceful g h erao involves crim es like w rongful re stra in t and crim i
n a l trespass. A v io le n t gherao poses a th reat to life an d p ro p e rty to o .
I n W est Bengal, w here th e gherao seems to have ru n am uck, the police
have been to ld n o t to intervene to b reak a gherao. H ence the gheraoed
em ploy er an d his executive, to secure release, m u st obtain th e issuance o f
a search w arran t fro m th e co u rts und er th e P enal Code.
T his m ovem ent can cause financial injury to the nation; it m ay deter
foreigners from investing capital in India. It is, therefore, necessary to
check this m ovem ent before it sw am ps th e w hole country. I t is unlikely
th a t th is can b e accom plished if th e m ovem ent is tre ate d as a sim ple
pro b lem o f law a n d order. I f th e social an d econom ic co nditions from
w hich th e m ovem ent sp ran g are n o t im proved, a n d if th e freq u en t exploi
ta tio n o f w orkers b y em ployers is n o t checked, it m ay well b e im possible
ever to stop gheraos. A n d even if they are stopped, th e w orkers, as
M r. D an g e says, will re tu rn to th e ir good old w eapon, the strike (presu
m ably violent), w hich can be alm o st equally d isruptive.
JA Y E N G IN E E R IN G W O R K S L T D . v. ST A T E O F
W E ST B E N G A L
A .I.R . 1968 C alcutta 407
[Excerpts from th e ju d g m en ts o f th e C o u rt fo llo w ;]
Per Sinha, C .J .:
O n th e 27th Jatiu ary 1967, a t a b o u t 1 p .m . th e em ployees [retrenched
b y th e m anagem ent] along w ith 70 others blockaded the said corpora-
41 4 LABOUR LAW AND LABOUR RELATIONS
tio ii’s premises, com pletely o bstructing th e passage o f personnel an d

goods, including food stuffs fo r th e barricad ed persons inside, w ho
were wrongfully confined therein. T he blockade was lifted a t 3 a .m . o n
28th J a n u a r y 1967 after police intervention. O n the 1st M a rch 1967,
the present G overnm ent in W est Bengal cam e in to office. On 2 n d M arch ,
1967 the retrenched w orkers together w ith o th er employees num bering
about 200 persons gheraoed th e m anager (petitioner N o. 2) a n d o th er
officers at th e ofBce prem ises from 1 p.m . and th e gherao c o n tin u e d fo r
33 hours, being lifted at 10 p.m. o n 3rd M arch 1967. I t is said th a t th e
said persons confined the m anager, the petitio n er N o. 2 and th e o th er
officers, nam ely th e petitioners N os. 3 to 7, tam pered with the c o m p a n y ’s
property spoilt th e wall and continuously shouted insulting and h u m ilia t
ing slogans against the confined persons. Supply o f food to th o se
confined persons was n o t p erm itted except for a nom inal qu an tity a t th e
will o f the beseigers. In form ation was given to the police au th o rities at
H are Street Police S tation, b u t n o action was taken.
O n the 17th A pril, 1967 at 11 a.m . the said retrenched w orkers,

together w ith o th er employees num bering a b o u t 100 to 150 persons
gheraoed th e m anager an d other officials at th e said office and k e p t them
under w rongful confinem ent. The beseigers, trespassed into th e office,
tam pered w ith p ro p erty and shouted insulting an d hum iliating slogans
against th e confined persons. O nly a m inim al am ount of fo o d w as
allowed to be tak en in , at the will o f the beseigers. In fo rm atio n was
given to the police b u t n o action was taken. Subsequently, a n a p p li
cation was m ade before th e C hief Presidency M agistrate, C alc u tta u n der
Section 100 o f th e C rim inal Procedure C ode, who ordered th e officcr-
in-charge. H are Street Police S tatio n to search and rescue th e confined
persons an d produce them before him . T he confined persons w ere
accordingly rescued at about 10 p .m . o n 18th A p ril, 1967.
A gain on 29th M ay 1967, th e M anager and other officers w ere

gheraoed and wrongfully confined in the office fo r over 5 h o u rs, from
10.30 a.m . to 3.30 p.m . Inform ation was given to the police b u t n o
action was taken.
T h e rule in this case was issued on 8th Ju n e 1967 and a n in terim

iajunction was issued directing th a t n o effect should be given t o a
circular issued by G overnm ent dated 27th M arch 1967. It is the com m on
case o f the petitioners in this series o f gherao cases, th a t the p rim ary
reason for the to tal inaction o f th e police, lies in th e fact th a t th e S tate
G overnm ent, through its Jo in t Secretary, in its H om e and P o litical
D epartm ent, has issued tw o circulars as follows :
LOCK-OUTS 415
(1) N o . 513 P .C . D t. 28th M arch 1967, addressed to all D istrict

Olhcers an d th e C om m issioner of Police, C alcutta.
(2) N o. P-914 P.S. D t. 12th June 1967, an d it is by reason o f these
two circulars th a t th e police have been reduced to to ta l inaction.
These tw o circulars, to g eth er w ith th e C abinet decisions upon
which th ey are b ased, as also a previous circular, being M em o
N o . 138— P.S. D t. 7 th F ebruary, 1956 ■will be considered
presently. I t will be ap p ro p riate to m ention here th a t the
learned A dv o cate G eneral, appearing fo r the State G overnm ent
an d o th er officials has tak en u p a strictly p ro p er attitude
th ro u g h o u t th e trial, in keeping w ith th e trad itio n s o f his high
ofBce an d has m ad e it clear th a t in a case o f such public
im portance, he does n o t wish to indulge in petty technical
objections a n d w ill n o t w ithhold from th e C o u rt, any papers or
docum ents th a t it w ants.
U p o n these facts th e follow ing questions have been raised :

(1) W hat is a “ g h erao ” ?
(2) Is ‘gherao ’ as practised in th is case law ful ?
(3) A re the circulars d a te d 22nd M arch 1967 and 12th Ju n e 1967
an d /o r th e decisions, if any, upon which they are based lawful
o f com petent ?
(4) D id th e respondents 6 a n d 7 fail to p erform their legal duties
either in obedience to th e said circulars o r otherw ise ?
(5) T o w hat relief are th e petitioners en titled to ?....
A ‘gherao’ is th e physical blockade o f a targ et, either by encircle

m en t o r forcible o ccu p atio n . T h e ‘targ et’ m ay be a place or a person or
persons, usually th e m anagerial o r supervisory stalf o f a n industrial
establishm ent. T h e b lo ck ad e m ay be com plete o r partial. I f it is
accom panied by w rongful re strra in t, an d /o r w rongful confinem ent or
accom panied by assau lt, crim inal trespass, m ischief to person o r property
unlaw ful assem bly a n d various o th er crim inal offences, used as a
coercive m easure to controllers o f industry to force them to subm it to
th e dem ands o f th e b lo ck ad ers, such a gherao is unconstitutional, th a t
is to say violative o f the provisions o f the C o n stitu tio n , and unlaw ful,
th a t is to say, violative o f th e law s o f th e land. In th e in sta n t case we
a re n o t concerned w ith a peaceful gherao b u t w ith a gherao o f th e latter
kind.
A ‘gherao ’ is n o t a n offence as such m entioned in the In d ia n Penal
C ode. B ut it is a n act indulged by labour against the m anagem ent and
w here it is accom panied by confinem ent, re stra in t o r other oflfences under
th e crim inal law o f th e lan d , th e fact th a t it is d o n e by mejmbers o f a
T rade U nion, and used as an in stru m en t o f collective b arg ain in g , gives-

rise to n o special treatm en t o r exem ption from liability under th e law.
All w orkm en, g u ilty of w rongfully restraining any person belo n g in g to
the m anagem ent, o r wrongfully confining him , during a gherao are guilty
under Section 339 o r 340 o f the In d ia n P enal C ode an d have co m m itted
cognizable offences fo r which they are liable to be arrested w ith o u t
w arrant and p unishable w ith simple im prisonm ent fo r a term w hich m ay
extend to one m o n th o r w ith fine which m ay extend to five h u n d red
rupees or with b o th , for w rongful restrain t and fo r im p riso n m en t o f
either description fo r a term which m ay extend to one year o r w ith fine
which m ay extend to one thousand rupees o r b o th , for w rongful coniine-
m ent, w here th e confinem ent extends to th ree or m ore days th e p u n ish
m ent is im prisonm ent o f either description fo r a term which m ay extend
to tw o years or w ith fine or with bo th . W here th e confinem ent is fo r
ten or m ore days th e punishm ent is im prisonm ent o f either d escription
for a term which m ay extend to three years. T here is a fu rth er liability
to fine. W here there is a concerted in ten tio n to com m it an offence, it
am ounts to crim inal conspiracy u n d er Section 120 A o f the In d ia n P enal
Code and is n o t saved by Section 17 o f the T rade U nions A ct, 1 9 2 6 ....
W here there is a gherao, accom panied by th e com m ission o f an

offence, e.g. w rongful confinem ent, th e executive governm ent has n o
power to give directions, pass orders or issue circulars to the police or
the m agistracy to th e effect th a t th e procedure to be follow ed by th em
should be in any w ay different from o r a t variance w ith w hat h as been
laid dow n by th e C rim inal Procedure C ode or th e Police A cts o r any
other law governing such procedure.
A direction th a t, in the case o f gherao with w rongful confinem ent

which is a congnizable offence u n d er Section 340 o f the In d ia n P en al
Code, no action should be taken by th e police except after o b ta in in g
direction from th e la b o u r m inister, is utterly unlaw ful and n o t w a rran te d
by the law. The la b o u r m inister h as n o pow er or auth o rity u n d er th e
law, to give directions to the Police before ta k in g action where such an
offence has been com m itted or is said to have been com m itted. T h e
action that the police o r m agistrate shall tak e u nder such circum stances,
is provided for in the Crim inal Procedure C ode a n d the relative P o lice
Acts. By executive fiat such procedure can n o t b e altered o r supple
mented or varied.
W h at is legitim ate trad e union law , is contained in the T rad e Unions-

A ct 1926. N either Section 17 or 18 o f th e said A ct exempts a perso n
■who com m its an offence under the C rim inal Law s, save and except u n d e r
Scction 120A o f th e Indian Penal Code u n d er circum stances m en tio n ed
in Section 17 from being proceeded against according to law.
LOCK-OUTS 417
T here is no special p ro ced u re th a t sh o u ld b e ad o p te d w hen an

offence is co m m itted b y m em bers o f a T rade U n io n , even in an attem pted
enforcem ent o f th e ir p o w er o f collective b argaining. T i e p ro ced u re
applicable is th e o rd in a ry p ro ced u re to be ad o p te d in th e case o f such
in fractio n outside th e T rad e U n io n s A ct. T he executive governm ent has
no pow er, ju risd ic tio n o r a u th o rity to add to o r d etract fro m such laws
o r give executive d irectio n s th a t th e p ro ced u re sh ould consist o f any kind
o r special investig atio n , w hich m u st be done, a t a stage n o t contem
p la te d by th e C rim in al P ro ced u re C o d e....
T h e tw o circu lars d ated 2 7 th M arch 1967 a n d 12th Ju n e 1967, m en
tioned above are c o n tra ry to law , w ithout ju risd ictio n and m u st be
declared to be in v a lid a n d be q u a sh e d ....
Before I conclude, I have to relate w ith g reat regret a n d a feeling
o f h o rro r, certain th in g s w hich to o k place in th is C o u rt w hile we were
actually hearing th e gherao cases. W hile h earin g argum ents to the
effect th a t gheraos d id n o t exist in W est B engal, o r if they existed at all,
were peaceful a n d n o n -v io len t, we suddenly w itnessed w ith astonishm ent
th e sight o f a gherao ta k in g p lace in th e H ig h C o u rt itself. V iolent
crow ds invaded th e precin cts o f th e co u rt a n d a ban d o f organised
d em o n strato rs sto o d u n d ern eath o u r window s, shouting deprecatory
slogans to th e effect th a t th e C onstitu tio n sh o u ld be scrapped, th a t
gheraos will co n tin u e w hether th e co u rt decrees it or n o t a n d various
o th e r slogans w hich need n o t b e repeated here. T hings cam e to such a
pass th a t I h a d to a d jo u rn th e co u rt an d to get in to u ch w ith th e C hief
M in ister an d to tell h im th a t if th is sort o f th in g continued I w ould close
th e courts sine die. I reco rd w ith pleasure th a t th e C hief M inister at
once to o k steps to p ro te c t th e courts fro m such unseem ly invasions b u t
it has been fo u n d necessary to keep a large posse o f police to prevent
an o th e r breach o f th e peace. O rders u n d er Section 144 h a d to be
pro m u lg ated in th e ro a d s su rro u n d in g the H igh C o u rt. Such a thing
h a s never h ap p en ed in this C o u rt d uring its h u n d red years o f existence
and I do n o t th in k it has h ap p en ed anyw here else in India. W e have,
therefo re, h a d a v isu al d em o n stratio n o f w hat a gherao m eans a n d w hat
it can achieve. I f a g ro u p o f m ilita n t tra d e u n ionists could dare to
te rro rise th e co u rts in th is fash io n , it can well be as im agined as to the
d ep th s to which we h av e been degraded a n d to th e u tte r helplessness into
w hich industries h av e been th ro w n , as a result o f these lawless activities....
Per Banerj^e, J. :
F o r th e sake o f convenience, we decided th a t th e follow ing points
sh o u ld be specifically d e a lt w ith in th is R ule, nam ely,
1, W h a t is G h e ra o ?
2. Is G h e ra o , as practised in this case, law ful ?
418 LABOUR LAW AND LABOUR. RELATIONS
3. A re the circulars dated 27th M arch 1967 and 12th Ju n e 1967

an d /o r th e decisions, if an y , u p o n w hich th ey are based law ful ?
4. D id the respondents N os. 6 a n d 7 fail to perform th e ir legal
duties either in obedience to th e circulars o r otherw ise ?
5. T o w hat reliefs are the petitio n ers entitled ?
M y answers to the above p o in ts are hereinbelow set o u t :

1. Etym ologically, “ G h erao ” m eans encirclem ent. E ncirclem ent
b y a crow d m ay be due to various reasons, say for exam ple,
there m ay be encirclem ent o f a p o p u la r leader by an adm ii'ing
crow d, th e leader him self enjoying th is fo rm o f d em o n stratio n .
E ncirclem ent m ay also be m ade by a h o stile crow d say o f w o rk
m en, who elect w rongfully to confine the m anagem ent, so as to
coerce th em to concede to th e ir dem ands, “ G h erao ” as such,
th a t is to say simple encirclem ent, is n o offence u n d e r the
C rim inal L aw o f this country. B ut a “ G h erao ” accom panied
by violence and diverse form s o f crim es resulting in w rongful
confinem ent or w rongful restrain t o f the encircled p erso n o r
persons, is a crim inal activity n o t because it is encirclem ent b u t
it is encirclem ent “ with m o re” . T he form o f “ G h e ra o ” th a t
I have to consider is encirclem ent “ w ith m ore” , w hich is
crim inal an d punishable u n d er the law.
2. T he G herao as practised in this case, I find on th e m aterials on
th e record, was unlaw ful.
3. T h e circulars, dated M arch 27 an d June 12, 1967, a n d th e
C abinet decisions upon w hich they are based are unlaw ful.
T here is n o legislative au th o rity behind th e executive action.
T h e action was discrim inatory in so far as it denied to w rong
fully confined o r w rongfully restrained m anagerial staff o f
industrial establishm ents, p ro m p t police intervention as p ro v id
ed for by th e law o f th e land. In so doing the executive
violated its duties under A rticle 256 o f the C onstitution.
4. T h e respondents police officers failed to perform th e ir legal
duties in trying to obey th e im pugned circulars.
5. I agree w ith the form o f re lie f indicated in the ju d g m en t by
my L ord th e C hief Justice an d need n o t repeat th e sam e. T his
R ule should be m ade absolute to th e extent indicated in th e
judgm ent o f H is L ordship th e C hief Justice and I express m y
agreem ent w ith him .
Per R&y5 J* •
I agree with th e judgm ent and o rd er passed by ray L ord th e C hief
Justice.

Strikes and Lock-Outs

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Strikes and Lock-Outs

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PART V

STRIKES AND LOCK-OUTS

Strike a n d lo c k -o u t— useful and pow erfu l w eapons in the arm o u ry

Skilful use o f th ese w eapons, th reaten ed o r actu al, m ay help one

T he sta te o f In d ia ’s econom y calls fo r m o re a n d m o re p ro d u c tio n .

The In d u s tria l D isp u te s A ct seeks, fo r these reasons, to regulate or

A strik e, acco rd in g to Section 2 (q) o f th e In d u stria l D isputes A ct,

a S t r i k e can exist even th o u g h it is n o t p a rt o f an in d u stria l d isp u te in

L o ck -o u t, |as th e antithesis o f strike, is tem p o rary clo su re o f a place

A p erm an en t discontinuance o f business is n o t a lo c k -o u t, because

A fter a declaration o f lo ck -o u t by an em ployer the w o rk m en are n o t

1. G.D, Dalvi V. GoodJass Wall L td.. Bombay. (1956) II L.L.J. 278.

. Sections 22 to 24 o f th e In d u strial D isp u tes A ct deal w ith p ro h ib i­

The A c t classifies industries in to p u b lic-u tility services and o th ers,

In a p u b lic-u tility service a strike i-equires a notice o f n o t less th an

A strik e legally in existence a t th e tim e o f a reference to a trib u n a l,

Tlie G overn m e n t h olds o ne m o re w eap o n — an ultim ate w eap o n —

Strikes (legal o r illegal) have been classified in to justified a n d u n ­

In deciding the questio n o f p u n ish m en t o f strikers, a com p an y m ust

Even peaceful strikers in a strike th a t is legal and ju stified , have no

[The B an k dismissed 150 em ployees for talcing p a rt in a pen-dow n

The first co n ten tio n raised b y th e b a n k is in regard to th e c o n d u ct

Is th is pen-dow n strike a strike w ith in S. 2 (q) o f th e A c t o r n o t ?

I t w as...u rg ed [by th e bank] th a t th e entry o f th e strikers in the

[T]he decision o f th is tech n ical p o in t w o u ld d epend on w hether or n o t the

(Ludw ig T eller’s “ L a b o u r D isp u tes a n d C ollective B arg ain in g ,” V ol. II ,

I t is [next] arg u ed th a t th e co n d u c t o f th e em ployees am o u n ts to

In resisting th e em ployees’ claim f o r rein statem en t o n the g ro u n d

employees continued.... It h ad also taken the view th a t it had jurisdictiotv

“ did n o t intend to compel em ployers to retain persons in their

I t was also held th a t

“ the Congress was in ten t upon protection o f em ployees’ right to self­

In considering the question as to w hether th e principle underlying

[The C ourt then n arrated the facts o f the Fansteel case.]

strikers a n d th e sh eriff’s m en; a strilce co n tin u ed by the strikers even after

“ th e strik e in q u estio n can b e m ore accu rately defined as a strik e in

T herefore, in o u r o p in io n , th is decision does n o t assist th e b a n k in su p ­

F o rtu n a te ly as th e In d ia n T rad e U n io n s A ct 16 o f 1926, th e In d u s­

It has been stren u o u sly urged b efore us th a t in th e case o f a b an k

enter th e prem ises o f th e fa c to ry a n d sit aro u n d th e p la n t in large

[The C o u rt dism issed th is p o rtio n o f th e appeal.]

[The C om pany carries o n a business o f inland w ate r tra n s p o rt, and

In M ay 1954 the C om pany agreed to abolish th e c o n tra c t system

be adopted progressively, w ith o u t prejudicing th e agreem ent o f M ay 1954.

The first question th a t arises in this connection, is w hether the strike

T he trib u n al, having held th a t the strike was illegal proceeded to

i.e., by departmental, or domestic enquiry. Eds.

acted as m er^. dum b-dri.ven caM o frp m th o se w ho have ta k e n a n active

[The C o u rt then co nsidered the reasons w hich h a d Jed th e trib u n a l to

I t w as, in p u rsu an ce o f ...[an o rd e r o f th e jo in t agent p o stp o n in g

[The C o u rt then proceeded to discuss the question “ w h at pun ish m en t

[Excerpts from the judgm ent or K rish n a Iyer J. follow :]

A very sh o rt question as to the scope o f Section 10 (3) o f th e In d u s­

Two conditions are necessary to m ake Section 10(3) applicable.

the disp u te is a b u n d a n tly b ro u g h t o u t in th e preceding p o rtio n o f the

[T here w as a d isp u te betw een a w o rk m a n a n d th e m anagem ent o f

“ individual dispute” becam e an “ in d u strial dispute’” in view o f th e

G overnm ent referred the “ in d u strial d isp u te ” to a L a b o u r C o u rt fo r

....Section 23, in so far as it is relevant fo r the purposes o f this case,

The im p o rta n t w ords are “ during th e pendency o f proceedings” . U n ­

individual w o rk m a n b ar th e o th er w o rk ers fro m reso rtin g to a strik e ?

[The C o u rt then referred to th e p ro v isio n s o f S ection 2 A and 2 (k)

..,.I t is in in te rp re tin g th is clause [Section 2 (k)] th a t it h as been held

In the S tatem en t o f O bjects an d R easo n s o f th e Bill w hich resulted

. Sections 22 to 24 o f th e In d u strial D isp u tes A ct deal w ith p ro h ib i

Strikes (legal o r illegal) have been classified in to justified a n d u n

“ the Congress was in ten t upon protection o f em ployees’ right to self

T herefore, in o u r o p in io n , th is decision does n o t assist th e b a n k in su p

F o rtu n a te ly as th e In d ia n T rad e U n io n s A ct 16 o f 1926, th e In d u s

A very sh o rt question as to the scope o f Section 10 (3) o f th e In d u s

The im p o rta n t w ords are “ during th e pendency o f proceedings” . U n

jo in e d illegal strik e. T he m a jo rity o f em ployees in the th re e key d e p a rt

Industrial policy, as other policies, m u st...b e governed by (D irec

I t is cerntainly true as L o rd D enning has observed in Ji. V. M e tro

T he trib u n al itself appears to h av e been in tw o m inds o n th e ques