産 業 關 係 硏 究

第16卷 第1號, 2006. 6, pp. 1～19

ⓒ 韓 國 勞 使 關 係 學 會

産業關係硏究 제16권 제1호

Is Right to Strike Sacrosanct and not Subject to Judicial Interpretation?(G. Jegadeesan)

Is Right to Strike Sacrosanct
and not Subject to Judicial Interpretation?

G. Jegadeesan*

논문접수일 : 2005년 8월 17일, 심사의뢰일 : 2005년 9월 3일, 심사완료일 : 2006년 6월 5일

* Faculty Member, Department of Labour Studies, DDE, Madurai Kamaraj University, Madurai 625021,  jegadees0105@yahoo.com

General strike ‘no doubt’ disturbs normal functions of the administration and causes suffering to the common people, but instead of giving strictures to the Government concerned, which creates conditions compelling the employees to go for strike, to take away the hard owned fundamental rights of the employees itself is a gross injustice. The recent Supreme Court's judgment is having serious implications on the entire trade union movement in India. It is in this context that this paper attempts to study in brief the aspects of direct actions and labour legislation. It also analyses the position of trade unions and their responsibilities to assert their right to strike in the wake of the peremptory actions of the Tamil Nadu Government and the recent Supreme Court verdict denying the basic right of workers.

▶ Keywords: Industrial Relations, Trade Unions, Right to Strike, Judicial Interpretation, Judicial Stringency to Employee

Ⅰ. Introduction

Industrial progress is the outcome mainly of the human and physical resources of production. Sufficient progress has been made in the sphere of physical inputs such as capital and technology. Despite rapid advancements in technology the desired level of economic development and social welfare are yet to be achieved. India has not been able to eliminate mass unemployment, widespread poverty and other problems during the five decades of independence and planning. One of the main causes of failure has been underutilisation and misutilisation of vast human resources in the country. We have one of the leading reservoirs of human talent and technology in the world. Unfortunately the rate of progress in our country has not been commensurate with our potential on account of lack of appropriate work culture. Employers and employees are still looked upon as adversaries rather than as partners in the joint endeavor. Frequent strikes, lockouts and other forms of industrial unrest are symptoms of the prevailing environment in industry.

In this paper an attempt has been made to study in brief the need for industrial harmony by adopting the principles of industrial democracy and by understanding the terms industrial relations and human relations. Further it narrates the recent labour relations scenario in Tamilnadu, one of the states of India, in the context of conflicting situation.

II. Need for Industrial Harmony

Economic progress of a country is vitally bound up with industrial peace. The National commission on labour observed that the concept of industrial peace is somewhat negative and restrictive. It emphasizes absence of strife and struggle. The commission, therefore, preferred to describe its approach in quest of ‘industrial harmony’ to ‘industrial peace’. It is observed in this regard; “A quest for industrial harmony is indispensable when a country plans to make economic progress. It may sound platitudinous but it is nevertheless true that no nation can hope to survive in the modern technological age, much less become strong, great and prosperous, unless it is wedded to industrial development and technological advance. Economic progress is bound up with industrial harmony for the simple reason that industrial harmony inevitably leads to more co-operations between employers and employees, who result in more productivity and there by contributes to all-round prosperity of the country. Healthy industrial relations, on which industrial harmony is founded, cannot therefore be regarded as a matter in which only the employers and employees are concerned; it is of vital significance to the community as a whole.” (N.D. Kapoor, 1995).

The Indian business scenario and the industrial relations system have undergone a vast change during last few years. The new economic policy adopted by the government and the policy of liberalization has brought in new challenge for the Indian corporate world and the employees. The new economic policy has necessitated adopting new and to some extent global concepts for managing human resources in India. Corporate restructuring, new technologies especially information technology, employment generation exit and entry policy, privatization, productivity and quality awareness, training and retraining are new challenges before the human resource managers. The approach towards industrial relation has been changing from conflict resolution to human resources development, team working, participation, employee productivity, retraining workers to cope with the problems of change in technology, information sharing, TQM, bridging the gap between the workers and the organization. On one hand competition and globalization have led to a rise in demand of workers on the other hand the role of union is changing. The unions should constantly interact with their member and the management team and give priority to development of workers. This will enable the parties to enhance mutual understanding, trust and synergy between them. The need to educate workers and imbibe in them a sense of pride and ownership of work should be encouraged. The need of the hour is to create and maintain good relation between the employers and the employees. Thus good relation is the basis on which the development of an industrial democracy depends, which in turn seeks to gain cooperation of the two partners in industry in the field of production and promotes industrial peace (C.B. Memoria, 1976).

III. Climate for the Development
of Industrial Democracy

In a dynamic society like that of India, industrial relation should be based on an ‘integrated’ and ‘synthetic’ approach aiming at the development of a common social, cultural and psychological consensus and understanding in the industrial society on the one hand and retraining the conflict process and struggle complex on the other. The philosophy of industrial relations in a democracy based on social justice must aim at the dignity, welfare and development of an individual into a good citizen meaning thereby freedom from domination, regimentation or arbitrary authority whether exercised by the management, union officials or the government functionaries. Industrial relations involve attempts to arrive at solution between the conflicting objectives and values between profit motive and social gain; between discipline and freedom between authority and industrial democracy; between bargaining and cooperation; and interests of the individual, the group and the community (R.A. Lester, 1954).

For providing the necessary climate for the development of industrial democracy, the establishment of joint councils is very much necessary. Such council should improve the working and living conditions of the employees, to assist in the administration of the laws and agreements, to serve as a channel of communication between management and employees, to create in the employees a sense of participation in the decision making questions and a sense of belonging to the industry. Further human rights in industry are to be recognized in right sense. This implies that labour is no more an article or commodity of commerce’ which can be purchased and disposed of according to the sweet whims and caprices of the employer. They are to be treated as human beings, given a sense of self-respect and their urge for self-expression is to be satisfied. The recognition of labour as human grounds provides the basic pre-requisite for achieving industrial democracy. In India, in order to provide the necessary climate for the development of industrial democracy, an act called ‘Industrial disputes act, 1947, was passed which provides rights for both the workers and employers such as ‘right to strike’ and ‘right to lock out’ respectively.

IV. Demarcation between the Concept
of In-dustrial Rela-tions and Human Relations

‘Industrial relation’ constitutes one of the most delicate and complex problems of modern industrial society. With growing prosperity and rising wages, workers have gained higher living scales, more education, sophistication and generally great mobility. Employees have their unions and employers their bargaining associations to give a tough fight to each other and establish their powers. The government has played a growing role in industrial relations in part by becoming the employers for millions of workers and in part by regulating working conditions in private employment. Non-fulfillment of many demands of the workers has brought industrial unrest. They are the points of flexion and the base of industrial edifice. Rapid changes have taken place in the techniques and method of production and service. All these changes have made employment relationship more complex. Hence a clear understanding about these is as interesting as it is a revealing experience. An attempt to understand the terminology and meaning of industrial relation in line with the term ‘human relation’ is very much necessary in this context.

Industrial relations is a developing and dynamic concept and as such no more limits itself merely to the complex of relation between the unions and management but also refers to the general web of relationships normally obtained between employers and employees- a web much more complex than the simple concept of labour capital conflict (T.N. Kapoor(ed.), 1968). In the broadest sense, the term industrial relation is used to cover the whole field of relationship that grows out of employment. Dale Yoder includes “recruitment, selection and training of workers, personnel management as well as collective bargaining policies and practices in the term industrial relations.” (Dale Yoder, 1969).

Under the heading ‘Industrial relations’ the ILO has dealt with either the relationship between the state and employers and workers organization or the relation between the occupational organizations themselves. The ILO uses the expressions to denote such matters as ‘freedom of association and the production of the right to organize, the application of the principles of the right to organize and right of collective bargaining, collective agreements, conciliation and arbitration and machinery for cooperation between the authorities and the occupational organizations at various levels of economy (quoted by C.B. Kumar, 1961). In the current usage the term ‘personnel management and industrial relations’ are not sharply distinguished and are very often used interchangeably. Dale Yoder has defined ‘personnel management’ as “that phase of management, which deals with the effective control and use of manpower as distinguished from other sources of power ………. Industrial relations are the relation that exist in and grow out of employment. It refers to a wide field of relationship among people, human relationship that exist because of necessary collaboration of men and women in the process of modern industry”. Other American writers have said that, “the objective of personnel administration or industrial relations in an organization is to attain maximum individual development, desirable working relationship between employees and employers and employees and employees and effective moulding of human resources as contrasted with physical resources.” (Scott, Clothier and Sprigel, 1949).

The British institute of personnel management does not make any distinction between personnel management and industrial relations. It defines ‘personnel management’ as “that part of management function which primarily concerned with the human relation with in organisation. Its objective is the maintenance of those relationships on a basis which consideration of the well-being of the individual enables all those engaged in the understanding to maximize their personnel contribution to the effective working of the undertaking.” (J.H. Richardson,1961). The institute thus prefers to include the term methods of recruitment, selection, training, education, proper employment of personnel, terms of employment, methods and standards of remuneration, working conditions, amenities, employee services, joint consultations and procedures for the settlement of disputes. ‘Personnel Administration’ is a code of the ways of organizing and training individuals at work so that they will each get the greatest possible realization of their intrinsic abilities, thus attaining maximum efficiency for themselves and their group, and thereby giving to the enterprise of which they are a part its determining competitive advantage and its optimum results (Thomas G. Spate, American Marketing Association, New York). The term Industrial Relations explains the relationship between employees and Management, which stem directly or indirectly from union-employer relationship. (V. Agnihotri, 1970).

However, of late, some distinction has been made between the two terms. Personnel Management in its more restricted usage refers to that part of employment relations which is concerned with employees as individual. Group relationships are excluded from its scope and form part of Industrial Relations. Accordingly collective relationships between employers and employees and not the relationships of individual workers with their management constitute the subject matters of industrial relations. The ILO also accepts this view. Recently the term ‘Human Relations’ has also come into vogue. Some people mean by it “the direct relationships existing between the employer and his work people considered as individual, as distinct from the term ‘industrial relations’ which is used to denote collective relations”. In view of some others, ‘Human Relations’ are concerned with relations as a whole at the level of undertaking, whether they are relations with the union or personal relations with the staff, while ‘industrial relations’ would apply to the relations between the organizations of employers and workers at a higher level of economy. Yet others consider human relations as the scientific investigation of the psychological and social interrelations produced in the collective performance of work. In this context, it is pertinent to note the definition given by A.S. Mathur: which reads: “Problems of human relationship arising from the sale of services for wage and working on the premises of employers under their control from the subject matter of industrial relations. They exit and grow out of employment and involve relationship between employees and employers and their organizations.” (A.S. Mathur, 1968). These different interpretations show that while it is difficult to draw a definite line of demarcation between the concept of ‘industrial relations’ and ‘human relations’ a broad distinction can be made. In the current usage the two terms are not sharply distinguished and are very often used interchangeably. However, for maintaining industrial peace, human touch is very much necessary. The psychological and social image of workers should be maintained and at any cost, it should not be tarnished. This paper attempts to brief out how the psychological, social and legal image of the government employees was tarnished in India.

V. Conflict - A Perpetuity Character

No industry can escape its good and bad history of industrial relations. A good history is marked by harmonious relationship between management and workers. Militant strikes and lockouts by contrast characterize a bad history. Both types of history have a tendency to perpetuate themselves. Once militancy is established as a mode of operation there is a tendency for militancy to continue. Or once harmonious relationship is established there is a tendency for harmony to continue. A perpetuating tendency does not mean that a history of conflict cannot be overcome, nor that a history of harmony cannot explode into violence but rather that the probability of conflict is greater when conflict has become accepted as normal and that the probability of peaceful relations is greater when mutual understanding is expected to continue as a part of standard operations (P.C. Tripathi, 1990 : 3).

1. Attitudes of Management and Workers

The term ‘Industrial Relations' is used to denote the collective relationship between management and employees in an industrial organisation. Good industrial relations mean absence of disputes between the two parties and existence of understanding, co-operation and partnership between them. Both management and workers’ representatives in the area of industrial relations come from variety of background in terms of training, education, experience and attitudes. These varying backgrounds play a major role in shaping the character of industrial relations. Generally speaking, well trained and experienced negotiators who are motivated by a desire for industrial peace create a bargaining atmosphere conducive to the writing of adjust and equitable collective agreement. On the other hand, ignorant, inexperienced and ill-trained persons fail because they do not recognize the collective bargaining is different human activity, which deals as much in the emotions of people as in their economic interests. It requires careful preparation and top-notch executive competence. Some easy trick or gimmick does not usually accomplish it. Parties must have trustand confidence in each other. They must possess empathy i.e. they should be able to perceive a problem from the opposite angle with an open mind. They should put themselves in the shoes of the other party and then diagnose the problem. Other factors, which help to create mutual trust, are respect for the law and breadth of vision.  Both parties should show full respect for legal and voluntary obligations and should avoid the tendency to make a mountain out of a molehill (N. Kumar, 2001 : 265).

2. Public Policy and Legislation

When Government regulates employee relations, it becomes a third major force determining industrial relations- the first being the employer and the union. Governments in all countries intervene in management-union relationship by enforcing labour laws and by insisting that the goals of the whole society shall take precedence over those of either of the parties. The Government should play an active role for promoting industrial peace. It should make law for the compulsory recognition of a representative union in each industrial unit. It should intervene to settle disputes if the management and the workers are unable to settle their disputes. Government intervention helps in three different ways: i. It helps in catching and solving problems before they become serious. Almost every one agrees that it is better to prevent fires than to try stopping them after they start; ii. It provides a formalized means to the workers and employers to give emotional release to their dissatisfaction; iii. It acts as a check and balance upon arbitrary and capricious management action.

Industrial Dispute Act, 1947 provides clear-cut machinery for the prevention as well as settlement of industrial disputes in our country. The machinery operatesat two levels statutory and voluntary. At the statutory level once again the machinery is governed by the Central legislation like Industrial Dispute Act, and the State machinery is governed largely by the respective State Legislation. The machinery at the voluntary level is governed by the code of discipline, tripartite consultative machinery, collective bargaining, permanent negotiating machinery, and joint consultative machinery (N. Kumar, 2001 : 280). This covers all the industrial employees who come under the definition of a workman under the Industrial Dispute Act and does not cover employees of different ministries and their subordinate organization, which may not be industrial in character.

3 ‘Strikes’ When Justified

Neither all strikes can be regarded as justified nor are all strikes unjustified. According to Gandhi, workers should go on strike only after the capitalists failed to respond to moral appeals and only as a last resort after exhausting all other means of persuading the capitalists to concede the just demands (Subba Rao, 2002 : 601). The Indian ID Act, 1947, recognizes the right to strike declaring strikes during negotiation and adjudication illegal. In fact, Section 22 of the ID Act permits legal strikes even in public utility services provided notice is given. Only sudden ‘wildcat’ strikes are illegal. Strike could be called only by the recognised negotiating agent and that too only after if had conducted a strike ballot amongst all the workers, of whom at least 51 per cent support the strike. Correspondingly, an employer will not be allowed to declare a lock-out except with the approval at the highest level of management except in cases of actual or grave apprehension of physical threat to the management or to the establishment.

The general provisions like giving of notice of not less than 14 days, not declaring a strike or lockout over a dispute which is in conciliation or adjudication and so on will be incorporated in the law.

In this context, National Commission on Labour (Report of the NCL-2002) recommends that an illegal strike or illegal lockout should attract similar penalties. A worker who goes on an illegal strike should lose three days wages for every day of illegal strike, and the management must pay the worker wages equivalent to three days wages per day of the duration of lockout. The Union, which leads on illegal strike, should be de-recognized and debarred from applying for registration or recognition for a period of two or three years. However, the approach of the Commission to treat strikes and lockouts at par is basically unjustified. The basic question, which needs an answer, is what is the proportion of illegal strikes and illegal lockouts in the total man-days lost in each category? Did the commission make a study in this regard? Just by introducing certain penal clauses, do we really succeed in our aim at developing better industrial relations? It appears that the NCL has not tried to strike at the root of the problem (Datt, Ruddar and Sundaram, 2006 : 759). Moreover, the High Court of Bombay in its judgment in the Maharastra General Kamgar Union & Others Vs BalKrishna Pen Pvt. Ltd. (1999) has given the ruling. “A strike or lockout which has commenced before the expiry of 14 days notice period, shall be illegal only for unexpired period of notice and thereafter shall be legal”. (Nabhi’s Labour Laws – 2001). In the light of this judgement, the Commission’s prescription has a very limited value and thus cannot serve the purpose for which it has been designed.  Further, as Justice V.R. Krishna Iyer pointed out in the Gujarat Steel Tube case (1980), even illegal strikes may be justified so as not to attract dismissal.  The right to strike is an important weapon in the armory of workers…. recognized by almost all-democratic countries… as a mode of redress. Thus strikes and demonstrations are legitimate weapon for safeguarding employees' interest. To avoid strike is everyone's responsibility. But to assert that strikes under any circumstances are illegal, immoral, inequitable and unjustified is contrary to our law and industrial jurisprudence. While asserting strike is a legal right for the workers, where the question jumps up now whether the employees have a legal right to strike.  The question comes in the wake of the Supreme Court ruling denying the Government employees their right to strike and the Tamil Nadu Government's response to its employees and teachers' demand for restoration of the curtailed benefits. It is very important to narrate the unprecedented events in labour management relations in Tamil Nadu.

VI. Labour Relations Scenario in Tamil Nadu

During the months of July-August, 2003, there had been an unprecedented and critical situation arising out of the dismissal of 1.70 lakhs of Government employees and trade union leaders in Tamil Nadu. It came in the wake of a severe attack on the rights of public sector trade unionists in Tamil Nadu. The mass dismissal case is one such case. The strike was prompted by the peremptory action of the Tamil Nadu Government to alter pension payments-among other grievances. The Government decided to tackle the workers instead of their grievances. By April 2003, 27 entities were brought under the Tamil Nadu Essential Service Maintenance Act (TESMA). The ‘protest’ strike was intended for July. From around June 30, the arrests and harassment of workers began. On July 3, various Government circulars declared that the strikers could not return to work. On July 4, a draconian Ordinance ‘mass-dismissed’ all workers who did not return to ‘at once’ - even though the July 3 circulars forbade it. But could the employees return to work and also not return to work? The law required the impossible while mass dismissing employees. If the Government's lockout of July 3 was illegal, the ‘mass dismissal’ was possibly the worst known to Indian Labour History. A Government refusing to negotiate to resolve a situation made peremptory arrests, declared an illegal ‘lockout', commanded the employees to return to work which it had itself made impossible and indulged in a mass dismissal unprecedented in labour-management relations (The Hindu, 22.8. 2003).

As such, consequent to legal proceedings, the Supreme Court, in order to quell the situation, passed the order that all of the 1,70,241 employees were to be reinstated except 6072. The court moulded the relief. Having moulded the relief and virtually remanded the matter, the Supreme Court should not have gone further. That would have been fair to both sides. But Justice Shah had strong views on ‘strikes', which were strongly stated in his minority judgement in the Lawyers’ strike case (2002) where the majority countenanced one-day lawyer's strikes in the rarest of rare cases. But to be fair, during the hearings in the Tamil Nadu case, he did not mince his words, made his views known and indicated that he would put them in the judgement. The judgement takes on extreme view on strikes-contrary to the letter and sprit of the law, including Supreme Court judgements. The judgement as a whole denies the legal, moral and equitable right to strike for everyone everywhere. No one is expected such a wide overstatement of the law. Strikes and demonstrations are a democracy's hard-fought weapons against oppression. They can not be wished away by a Supreme Court, which has hitherto supported their disciplined use. What is at issues is democracy itself. Strikes empower the disempowered to fight justice in oppressive case when no constructive option is left. It took one and a half centuries to discipline strikes into responsible governance. This cannot be wiped out in a few sentences, which should not have been written. This needs urgent review by the Supreme Court itself (The Hindu, 22.8. 2003).

In an unprecedented legal decision in India, the Supreme Court ruled that public workers no longer have a legal right to strike. The decision was a direct result of the government staff and teachers in Tamil Nadu. In a so-called ‘Concession’, 156,106 of the sacked Tamil Nadu workers may be retired providing they apologies and sign a no-strike agreement six days after the SC ruling, the Government of Tamil Nadu (ALU, 2003) took official measures to de-register 26 key trade Unions and 200 affiliate Unions, as well as remove recognition of the JACTO and COTA Union federations. Over 6000 sacked strikers were not re-instated, instead they were charged with violence and inciting to strike and they will be judged by a panel of three retired judges (Yahoo, India News, 2003). SC’s ruling on right to strike is a blatant attack on democracy and will disarm the working class of its right to collective bargaining and protest, including the right to strike. The anti-democratic ruling has come just on the eve of “Quit India Movement day”, the day when in 1942 the whole nation started the historic movement to free itself from the stranglehold of British imperialism and establish democratic republic in India (ML Update, 2003).

VII. Rationale behind the Judgement
of Supreme Court of India

In response to the strike organised by 12 lakh government employees in Tamil Nadu, the Supreme Court delivering its final verdiction on August 6, 2003 made if amply clear that government employees have no fundamental, legal, moral or equitable right, to go on strike thus holding the state machinery and citizens to ransom. Reiterating its decision in All-India Bank Employees’ Association in 1962 in which it had held that “trade unions had no guaranteed right to an effective collective bargaining or to strike or otherwise, the Court maintained, no political party or organisation can claim a right to paralyse the economic and industrial activities of a state or the nation or inconvenience the citizens. In case of strike by a teacher, (the) entire educational system suffers; many students are prevented from appearing in their examinations, which ultimately affect their whole career. In case of strike by doctors, innocent patients suffer, if transport employees go on strike, the entire movement of society comes to a standstill and business is adversely affected”. Coming down heavily on the attitude of persons who take it easy after securing employment in a government organization, it added, “as there are long queues for employment in public sector undertaking, there cannot be strike in these organisations on any ground”.

There is no doubt that strikes should not be indiscriminate and resorted to for trivial reasons ……. Strikes in essential services, more especially, cause grave inconvenience to the public and the functioning of the government, but it is equally true that the employers are also insensitive to some of the real grievances of the employees which need redressal. Strike is a powerful weapon of the working class to bring the employers to the negotiating table. Instead of finding a solution to the dilemma of prohibiting strikes for trivial reasons and a way to permitting them for genuine reasons, the Apex Court has thrown its weight entirely in favour of employers (Datt, Ruddar and Sundharam, 2006 : 735). The opposed opinions and actions of various functionaries of the trade unions, leaders of political parties and legal experts with regard to the Supreme Court judgement are furnished in the following paras.

VIII. Battle Against the ‘Black Laws’
and Su-preme Court Judgement

The right to strike for workers and employees is the product of a long history of struggle and sacrifice by the working class since the pre-independence days. It was not just conferred on them or doled out incharity. The workers and employees, including in the government sector, earned this right by exercising this right braving force and coercion from the days when it was not at all recognised. The existing labour related legislations recognising the right to strike came into being much afterwards. The ILO conventions(No. 87, 98, 151 and 154), adopted with the concurrence of government of India, upheld this right of employees of both the government and private sector subsequently.

Thereafter, on many occasions workers and employees in various sectors had to assert their right to strike through strike action in the face of arbitrary prohibitive orders by the government declaring the strike illegal. The railway strike of 1974, the port and dock workers strike in the 1970s and in 2000, the telecom strike and the postal employees strike in the 1990s were examples of such assertion of the right to strike by the working class. This right is organically linked with the right to collective bargaining and will continue to remain an inalienable part of various modes of response/expression by the working people, wherever the employer-employee relationship exists, whether recognised or not. The apex court failed to apprehend this very dynamics or the evolution of the right to strike.

The judgement has a comment that “Strike as a weapon is mostly misused which results in chaos and total maladministration”. Is this a fact? The right to strike is always exercised by the workers and their unions as a last resort, after exhausting all other avenues of grievance redressal. It is not for pleasure or for fun the workers resort to strike, as even if the demand is achieved through strike, the workers will lose their wages for the strike period. In the Tamil Nadu case also, the concerned employees had resorted to strike only when their months-long persuasion for a hearing of their grievances on unilateral and arbitrary curtailment of their pensionary and other benefits failed owing to the arrogance of the authorities concerned. But, the offender has been lauded for its offensive deeds and those affected by the offence have been penalised.

While referring to the situation arising out of the government employees strike in Tamil Nadu, the apex court made too generalised comments on the working class without any substantiation by facts. It said that the through strikes, the employees are holding the society to ransom. The fact is just otherwise. The number of mandays lost due to strikes has gone down substantially during the last five years while there has been a steep rise in the mandays lost due to lock-outs, due to closures and lay-offs (Annual Report of the Union Labour Ministry, 2002-03). In 2001, mandays lost due to lock-out had been three times more than that due to strike. In 2002 (January-september) lock-outs wasted four times more mandays that the strikes. Who are holding the production process to ransom? Definitely, not the workers. The apex court preferred to overlook the recent strike by the business class against the value added tax and also the transport company’s strike against the judicial directive on usage of non-polluting fuel, both of which created much more chaos and inconvenience to the common people. Should not the apex court consider banning closures, lock-outs, muscle-flexing by the business class etc, which not only put people to inconvenience but also throw the workers, who are also part of the people, into starvation? (People’s Democracy, 2003).

The trade unions faulted the order that employees had no right to strike work. ‘The verdict’ which appears to state that strike work is illegal, is quite shocking. The Tamil Nadu Government order asking employees to give an apology and an undertaking that they will not participate in any strike in future endangers freedom of expression and labour rights established after a long struggle, “the AITUC State general secretary, S.S.Thyagarajan told the media. The CITU State general secretary, T.K. Rangarajan, told the media that the trade union’s battle against the Essential Services Maintenance Act (ESMA) and the recent ordinance amending the Act would continue until the ‘black laws’ were unconditionally withdrawn (The Hindu, 7.8.03). The Communist Party of India (Marxist) has described as unprecedented the Supreme Court judgement that said the Government employees and trade unions had no right to go on strike. The judgement in one stroke deprived lakhs of Government employees of their basic right to organize and resort to strike. It was contrary to the Fundamental Rights in the Constitution and ILO Conventions to which India was a party. The ruling made ‘unwarranted assertions’ against the political parties and organizations that sought to register the protest of people suffering severe socio-economic oppression. Instead of safeguarding the rights of citizens, the judgement had more or less endorsed the “draconian ordinance” amending the Tamil Nadu Essential Service Maintenance Act (TESMA). It is unfortunate that the highest court in the country, which is expected to uphold basic rights and check arbitrary state action against citizens, has come out with such a retrograde judgement. The democratic forces in the country will find this judgement unacceptable as it aimed at scuttling the workers’ and employees’ legitimate activities and democratic rights. It will hamper any efforts for collective bargaining, as strike is the last action the worker resorts to (The Hindu, 7.8. 2003).

Activities of the All India Central Council of Trade Unions (AICCTU) and the Communist Party of India (Marxist-Leninist) stayed demonstrations across the country to protest against the Supreme Court ruling banning strikes by Government employees and trade Unions. The agitators demanded a review of the Supreme Court judgement. They said, “In a constitutional democratic republic, the Supreme Court is supposed to safeguard the democratic rights of the people that are under fierce attack from fascists, multinationals and big corporates. The Supreme Court must not Shrink from this responsibility. Describing the judgement as a blatant attack on democracy, they said the right to strike was sacrosanct, not subject to judicial interpretation. The ruling was simply aimed at disarming the working people of their right to collective bargaining and protest in a situation when the pro-multinational and pro-big corporate policies are playing havoc with their lives (The Hindu, 10.08.2003).

At no point of time in the history of independent India was the right to strike by the Government employees questioned by the judiciary at any level. In fact, the Central and State employees had exercised the right of strike on many occasions in the past. The right to strike is sacrosanct and in consonance with the letter and sprit of the Constitution of India. It also formed part of the ILO Convention, AITUC General Secretary Gurudas Dasgupta said. Further he urged the Union Government to bring in a constitutional Amendment to negate the Supreme Court ruling in Tamil Nadu Government employees dismissal case. There were instances, especially in the Shah Bano case, of the Constitution being amended to negate a Supreme Court verdict. A national conclave would be organized in New Delhi next month to express solidarity with the workers in Tamil Nadu and to protest the Supreme Court judgement, he said (The Hindu, 22.8. 2003).

Labour Unions across the board have been stung by the supreme Court ruling that going on strike is not a fundamental right. General Secretary of the Centre for Indian Trade Unions (CITU) M.K.Pandhe told the Tribune that the Supreme Court has gone beyond its powers. Right to strike is not a right subject for judicial interpretation. The ILO has already accepted this right as a part of the right of collective bargaining. This aspect is covered in the Declaration of ILO on Fundamental Principles of Rights at work. Further he added that two years ago the Supreme Court gave a judgement upholding the ban on bandhs. After that more than 20 bandhs have taken place in different parts of the country without any action from the Centre or the States. In a similar manner, the judgement of the Supreme Court will not prevent strikes from occuring in the country. The central and the state government employees are planning one-day strike all over India in protest against the retrograde judgement. The trade unions will raise the issue in the forthcoming session of the Indian Labour Conference and demand steps from the Central Government to negate the impact of the Supreme Court judgement. There will be a powerful countrywide movement to register protest by the Indian working class. The CITU has already filled a complaint with the ILO against the repression let loose by the Tamil Nadu government against the state government employees. No trade Union thinks that strike is the only means to protest against the action of the management. Only if all the measures fail to give any satisfactory results they go on strike as a last resort (The Tribune, 2003).

The CPI Central Secretariat described the ruling as a ‘judicial assault’ on the democratic rights of workers and employees who had won those rights including the right to strike, through more than a hundred years of sacrifices and bitter struggles in India and Abroad. Referring to the judgement that states that employees have to resort to the machinery provided under different statutory provisions for the purpose of redress of their grievances, the party wondered: “what happens when the authorities arbitrarily and unilaterally deprive the employees of long existing benefits and facilities, and then refuse to have any talk or negotiation with associations and unions which exist under legal provision and also the Constitutional rights to freedom of Association? As for legal and moral rights, let us state emphatically that both collective bargaining and right to strike (under certain conditions, of course) exist both in the Conventions adopted by the ILO and ratified by the Government of India, as well as in legislation such as the ID Act. “Are these negated in one stroke? (The Hindu, 8.8.03). As the Attorney General, Soli Sorabjee has rightly said, the strike is an invaluable and inherent right of workers. The court should have come down equally vehemently on layoffs and lockouts and unilateral withdrawal of benefits by Governments in the name of austerity. To cap with, the ILO has asked the Government of India to take urgent step to reaffirm trade union right and restore industrial relations in Tamil Nadu. The ILO's intervention comes in the wake of the Supreme Court ruling denying the Government employees their right to strike and the Tamil Nadu Governments's response to its employees and teachers’ demand for restoration of the curtailed benefits (The Hindu, 25.8. 2003).

All trade unions in the country had stoutly opposed the judgement and demanded the government to take prompt action in negating the impact of the said judgement through suitable legislation. The All India Trade Union Convention on Right to Strike held on 26th September 2003 at New Delhi, participated by the trade unions of various sectors of all affiliations except BMS, unanimously adopted a Declaration which, inter alia, stated : “The Convention, therefore, declares that the Right to Strike is sacrosanct and is not subject to any judicial interpretation ………… The convention demands upon the Central Government to take appropriate steps to negate the pernicious impact of the SC judgement on the right to strike. The Convention declares that if the Central Government remains insensitive to the demands of the entire trade union movement, there will be no other alternative for the trade unions but to intensify the movement including going on strike”. The NDA Governments has not only remained insensitive, it also revealed an attitue of arrogance. While addressing the 39th Indian Labour Conference, held on 16-18 October 2003, the Prime Minister stated evasively that like all others, he might not be happy on the development and ways were to be found out through dialogue. Months have passed on ; but the promissed dialogue with the Prime Minister has not materialized yet, despite a categorical commitment by the Union Labour Minister. Meanwhile, on 13th December 2003, the BMS leadership had a suo moto meeting with the Prime Minister assured to review the matter pertaining to right to strike. On the same day, the Prime Minister’s Office issued a press release giving out a rejoinder. The PMO release categorically mentioned: “The Prime Minister had not given any indication that the Government was not in favour of banning the right to strike and had sought the opinion of legal experts on the issue.” (Tapen Sen, 2004). Is anything more required to assess the “insensitivity of the Government?” It is not mere insensitivity but a clear-cut refusal by the Government to take any legislative action to “negate the pernicious impact of the SC judgement”. In this background, it has become imperative that the working class must react by a powerful countrywide strike action in pursuance of the 26th September, 2003 Declaration.

IX. Conclusion

It is unfortunate that there are a lot of inconsistencies in the judgements by the same court on the same issues at different point of time. The Tamil Nadu Government employees did not resort to strike for an increase in salary. It was against the reduction of pension benefits. The court did not suggest an alternative to collective bargaining and strike in a situation where the Government refuses to negotiate. When existing facilities are summarily withdrawn, strike would be justified. Collective bargaining is the ultimate in negotiations and is possible only when workers’ and employees’ organisations are equally strong, mature and conscious of their rights and duties. It is a tragedy that the Supreme Court sent out a wrong signal. Powerful politicians have an entirely different set of rights. It seems that judicial stringency applies only to the small, powerless citizens.

References

1. Agnihothri, V.(1970), Industrial Relations in India, p.2.

2. Annual Report of the Union Labour Ministry, 2002–03.

3. Asian Labour Update, Issue No. 48, July–September 2003.

4. Datt, Ruddar and K.P.M. Sundharam(2006), Indian Economy, Fifty Second Edition, S. Chand & Company Ltd., New Delhi, p.759.

5. Kapoor, N. D.(1995), Handbook of Industrial Law, Sultan Chand & Sons, New Delhi, p.363.

6. Kapoor, T.N.(1968), Personnel Management and Industrial Relations in India, p.106.

7. Kumar, C.B.(1961), Development of Industrial Relations in India, p.ix.

8. Kumar, N. and R. Mittal(2001), Personnel Management and Industrial Relations, Anmol Publications Pct. Ltd, New Delhi, I Edition, p.265.

9. Lester, R.A.(1954), Labour and Industrial Relations, p.398.

10. (L–1) ML Update, Vol. 6, No. 32, 6–12 Aug. 2003.

11. Mathur, A.S.(1968), Labour policy and Industrial Relations in India.

12. Memoria, C.B.(1976), Industrial Labour and Industrial Relations in India, Vol.II, Kitab mahal, Allahabad, p.1.

13. People’s Democracy, Vol. XXVII, No. 35, 31 Aug 2003.

14. Quoted by Ajay Kumar, Nabhi’s Labour Laws, 2001.

15. Rajeev Dhavan, ‘The right to strike’ The Hindu, dated 22.8. 2003.

16. Report of the National Commission on Labour(2002), Vol. II, p.47.

17. Richardson, J.H.(1961), An Introduction to Study of Industrial Relations, p.26.

18. Scott, Clothier and Sprigel(1949), Personnel Management, p.23.

19. Spate, Thomas G. “An Objective Scrutiny of Personnel Administration”, Personnel Series No.75, American Marketing Association, New York.

20. Subba Rao, P.(2002), Essentials of Human Resources Management and Industrial Relations, Himalaya Publishing House, Mumbai, p.601.

21. Tapan Sen(2004), “Whither Strike to Depend Right to Strike,” working class, January.

22. Tripathi, P.C. and C.B. Gupta(1990), Industrial Relations and Labour Laws, Sultan Chand and Sons, New Delhi, p.3.

23. Yoder, Dale(1969), Personnel Management and Industrial Relations.

24. The Tribune, Editorial, Chandigarh, India, 2003.

25. Yahoo, India News, 7 August 2003.

26. ‘A shocking verdict: trade unions’, The Hindu dated 7.8. 2003.

27. ‘SC verdict denies basic right of workers’, The Hindu, 7.8. 2003.

28. ‘A judicial assault on workers’ right : CPI’, The Hindu, 8. 8. 2003.

29. ‘Bring in amendment to negate SC ruling’, The Hindu, 22.8. 2003.

30. ‘ILO asks India to reaffirm trade union rights’, The Hindu, 25.8. 2003.

31. ‘Protests against SC ruling on strike’, The Hindu, Online Edition, 10.08. 2003.