Madras High Court
Tamilnadu Arasu Pokkuvarathu Kazhaka … vs The Management Of on 10 June, 2024
Author: N.Seshasayee
Bench: N.Seshasayee
W.A(MD)No.75 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 10.06.2024
CORAM :
THE HONOURABLE MR.JUSTICE N.SESHASAYEE
and
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
W.A(MD)No.75 of 2019
Sl.No. Contents Para No.(s)
I Prelude 1
II Factual Matrix 2-3
III Critical Analysis 4 - 18
IV Comparative constitutionalism – 19 - 48
a tool for justice in labour
jurisprudence
(i)United States 20 - 30
(ii)South Africa 31 - 36
(iii)Europe 37 - 47
V Strike in the context of Indian 48 - 78
Labour jurisprudence
VI Epilogue 79 - 82
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W.A(MD)No.75 of 2019
Tamilnadu Arasu Pokkuvarathu Kazhaka Oozhiyarkal Sangam – CITU,
Rep. By its General Secretary,
Venmani Illam,
Anantha Nambiar Nagar,
Trichy. ...Appellant/Petitioner
Vs.
The Management of,
Tamil Nadu State Transport Corporation (Kumbakonam) Ltd.,
Trichy – Region,
Rep. By its Managing Director,
Trichy. ..Respondent/Respondent
PRAYER: Writ Appeal is filed under Clause 15 of Letter Patent as against the
order passed by this Court dated 14.09.2015 made in W.P(MD)No.16613 of
2015.
For Appellant : Mr.S.Arunachalam
For Respondent : Mr.S.C.Herold Singh
Standing Counsel
JUDGMENT
[Judgment was delivered by L.VICTORIA GOWRI, J.]
I. Prelude:-
“Satyagraha is strike plus something more. This something
makes for better morals amongst those who carry on the fight. It also
means greater loss of morals for the opponent. A satyagrahi is better
non-cooperator than a striker”
– J.B.Kripalani,
Chairman, Fundamental Rights Subcommittee,
Member of Constituent Assembly.
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W.A(MD)No.75 of 2019India is the largest democracy with a living organ as her constitution. The
distinguishing feature of any democracy is the space offered for legitimate
dissent. If we give a glance on the history of labour jurisprudence in India, the
right of strike, though not raised to the high pedestal of a fundamental right, the
same has been recognised as a mode of redress for resolving/ventilating the
grievances of workers/employees. It is ironic to understand that, the right to
strike is not absolute even under our industrial jurisprudence and the same is
subjected to the restrictions enumerated in Chapter III and V of the Industrial
Disputes Act, 1947 (herein after to be metioned as the ‘Act’). Carefully pointing
out that liberty of the citizens if interfered with, under the guise of protecting
public interest by legislative action, such action would tend to be arbitrary, we
are compelled to test the right to strike encompassed in the right to form
associations/unions by harmoniously reading the restrictions mandated in
Chapter III and V of Industrial Disputes Act, 1947, in conjunction with Articles
19(1(3)(4) r/w. Articles 41,42, 43, 43-A and 51-A(b) of the Constitution of
India.
II. Factual Matrix:-
2.The sequence of facts which enwomb the critical question of law for
consideration in the instant case is as to, whether a strike called for by the
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W.A(MD)No.75 of 2019workers in a public utility service, if undergone after giving notice of strike to
the employer, as mandated in Section 22 of the Industrial Dispute Act, 1947, be
termed an illegal strike and whether the right to strike legally as mandated in
Industrial Disputes Act, 1947, is protected under Article 19 and Article 21 of
the Constitution of India. The facts, which ensemble the bone of contention of
the case in hand is the call of the workers of Tamil Nadu Arasu Pokkuvarathu
Kalaga Ooliyargal Sangam – CITU., to recognize their right to strike. The
Appellant Union has challenged the order passed by the Management of Tamil
Nadu State Transport Corporation (Kumbakonam) Limited, that is, the
respondent, dated 07.02.2015, refusing to treat the days 01.10.2007, 05.07.2010
and 27.01.2011 as days of leave availed by the workers, who are the members
of the appellant Union, who participated in the All India strikes on those days,
by deducting the leave available in their leave currency, as like the members of
the Union of ‘Anna Thozhir Sanga Peravai’. The respondent Corporation had
declared the strike of the appellants as an illegal strike. The appellant has
challenged the impugned order of rejection, refusing three days of All India
strike undergone by them as leave availed by the workers on the following
grounds:-
(i).The workers belonging to the appellant Union participated in certain
All India strikes called for by the aforesaid Union opposing the new economic
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W.A(MD)No.75 of 2019policies and decisions of the Central Government on 01.10.2007, 12.04.2010,
13.04.2010, 05.07.2010, 27.01.2011, and 15.12.2012, only after issuing prior
notices by the Trade Union to the employer respondent Corporation. Hence, the
said days of strike cannot be treated by the respondent as absence from
duty/illegal strikes.
(ii).The respondent Corporation, considering the fact that, the appellant
Union had already issued advance call letter announcing the date of All India
strikes, ought to have granted leave to those workers on those days by
deducting the leave available in their currency of leave account, on the ground
that the strikes were not against the respondent Corporation.
(iii).The respondent Corporation, having considered the request of the
workers of Anna Thozhir Sanga Peravai to deduct the leave available in their
leave currency, by treating the days of strike, more particularly, 01.10.2007,
05.07.2010 and 27.01.2011, the days on which the said Union underwent strike
against the economic policies and decisions of the Central Government, as days
of leave, ought to have extended the same/similar treatment to the workers of
the appellant Union as well.
(iv).When the respondent Corporation issued an order dated 24.11.2011,
directing the payment of wages to 671 workers of a particular Union, namely,
‘Anna Thozhir Sanga Peravai’, who also participated in those All India strikes,
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held on 01.10.2007, 05.07.2010, 27.01.2011, by deducting leave in their credit,
the respondent Corporation refused to treat the Petitioner Union alone
discriminatively and the said Act would amount to violation of the equality
clause.
3.The learned Single Judge found no justification to interfere with the
impugned order of the respondent Corporation, relying upon the judgment of
the Hon’ble Apex Court in Ex.Capt. Harish Uppal v. Union of India and
another1 and categorically concluded that any action taken or any agreement
reached, which is not permissible in law cannot be supported by this Court
sitting under Article 226 of the Constitution of India and hence, the appellant
Union’s request to extend the benefit extended to the Anna Thozhir Sanga
Peravai, to the workers of the appellant Union cannot be supported.
Challenging the same, the appellants are before us.
III. A Critical Analysis:-
4.At the first instance, we are not hesitant to observe that the case of Ex-
Captain Harish Uppal2 has nothing to do with the strikes of workers, on the
contrary, the same has dealt with the unreasonable boycott of Courts hindering
1 2003 2 SCC 45
2 Supra 1
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the day-to-day administration of justice by the lawyers. The same is certainly
not applicable to the facts and circumstances of the instant case in hand. The
learned Single Judge ought not to have relied upon the said case law, while
dismissing the Writ Petition. The rational claim of the Appellant Union is that,
the Appellant Union and other Unions called for All India strikes opposing the
economic policies and decisions of the Central Government on various dates,
more particularly, on 01.10.2007, 05.07.2010 and 27.01.2011, after issuing
prior notice of strike to the respondent Corporation and the respondent
Corporation having deducted the leave available in the currency of leave
account, treating those three days as leave availed by the workers pertaining to
Anna Thozhir Sanga Peravai, had categorically refused the same kind of
treatment by crediting the leave available in the currency of leave account of
the workers of the Appellant Union as leave in a discriminative manner. Hence,
to give quietus to the issue in hand, it is necessary to examine whether the
strike called for by the workers of the appellant Union is a legal strike or an
illegal one?
(4A).Relying upon Para 36 of the judgment of the Hon’ble Apex Court in
Ex-Captain Harish Uppal3 case, the learned Single Judge had categorically
undermined the claim of the appellant Union. The learned Single Judge lost
3 Supra 1
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sight as to the proposition of law discussed in Para 39 of the same judgment,
which is extracted as follows:-
“39.Further, strike was a weapon used for getting justice by
downtrodden, poor persons or industrial employees, who were not
having any other method of redressing their grievances. But by any
standard, professionals belonging to a noble profession, who are
considered to be an intelligent class, cannot have any justification
for remaining absent from their duty.”
5.Pointing out strike is bad and the same cannot be justified from any
point of view, if the same is resorted to by Lawyers in boycotting the Courts,
the Hon’ble Apex Court did not hesitate to observe that strike is a weapon of
industrial employees to redress their grievances in the same judgment. Strikes
are dealt with in Chapter V of the Industrial Disputes Act, 1947. Section 22
prohibits strikes and the relevant Provision is extracted as follows:-
“22. Prohibition of strikes and lock-outs.—(1) No person
employed in a public utility service shall go on strike in breach of
contract—
(a) without giving to the employer notice of strike, as
hereinafter provided, within six weeks before striking; or
(b) within fourteen days of giving such notice; or
(c) before the expiry of the date of strike specified in any such
notice as aforesaid; or
(d) during the pendency of any conciliation proceedings before
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W.A(MD)No.75 of 2019a conciliation officer and seven days after the conclusion of such
proceedings.
(2) No employer carrying on any public utility service shall
lock-out any of his workmen—
(a) without giving them notice of lock-out as hereinafter
provided, within six weeks before locking out; or
(b) within fourteen days of giving such notice; or
(c) before the expiry the date of lock-out specified in any such
notice as aforesaid; or
(d) during the pendency of any conciliation proceedings before
a conciliation officer and seven days after the conclusion of such
proceedings.
(3) The notice of lock-out or strike under this section shall not
be necessary where there is already in existence a strike or, as the
case may be, lock-out in the public utility service, but the employer
shall send intimation of such lock-out or strike on the day on which it
is declared, to such authority as may be specified by the appropriate
Government either generally or for a particular area or for a
particular class of public utility services.
(4) The notice of strike referred to in sub-section (1) shall be
given by such number of persons to such person or persons and in
such manner as may be prescribed.
(5) The notice of lock-out referred to in sub-section (2) shall be
given in such manner as may be prescribed.
(6) If on any day an employer receives from any persons
employed by him any such notices as are referred to in sub-section (1)
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W.A(MD)No.75 of 2019referred to in sub-section (2), he shall within five days thereof report
to the appropriate Government or to such authority as that
Government may prescribe the number of such notices received or
given on that day.”
6.Section 23 of the Industrial Disputes Act, 1947, provides for general
prohibition of strikes and lockouts and the same is extracted as follows:-
“23. General prohibition of strikes and lock-outs.—No
workman who is employed in any industrial establishment shall go on
strike in breach of contract and no employer of any such workman
shall declare a lock-out—
(a) during the pendency of conciliation proceedings before a
Board and seven days after the conclusion of such proceedings;
(b) during the pendency of proceedings before 1 [a Labour
Court, Tribunal or National Tribunal] and two months after the
conclusion of such proceedings; 2***
[(bb) during the pendency of arbitration proceedings before an
arbitrator and two months after the conclusion of such proceedings,
where a notification has been issued under sub-section (3A) of section
10A; or]
(c) during any period in which a settlement or award is in
operation, in respect of any of the matters covered by the settlement
or award.”
7.Illegal strikes and lockouts are defined in Section 24 of the aforesaid
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W.A(MD)No.75 of 2019Act and the same is extracted as follows:-
“24. Illegal strikes and lock-outs.—(1) A strike or a lock-out
shall be illegal if—
(i) it is commenced or declared in contravention of section 22
or section 23; or
(ii) it is continued in contravention of an order made under
sub-section (3) of section 10 1 [or sub-section (4A) of section 10A].
(2) Where a strike or lock-out in pursuance of an industrial
dispute has already commenced and is in existence at the time of the
reference of the dispute to a Board, 4 [an arbitrator, a] 2 [Labour
Court, Tribunal or National Tribunal], the continuance of such strike
or lock-out shall not be deemed to be illegal, provided that such
strike or lock-out was not at its commencement in contravention of
the provisions of this Act or the continuance thereof was not
prohibited under sub-section (3) of section 10 4 [or sub-section (4A)
of section 10A].
(3) A lock-out declared in consequence of an illegal strike or a
strike declared in consequence of an illegal lock-out shall not be
deemed to be illegal.”
8.It is needless to state that, the respondent Corporation is a public utility
transport service. Hence, no worker employed in the respondent Corporation
shall go on strike in breach of contract without giving to the employer notice of
strike as provided under Section 22 of the Industrial Disputes Act, 1947, during
any period, in which, a settlement or award is in operation in respect of any of
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W.A(MD)No.75 of 2019the matters covered by the settlement or award. No doubt, in the instant case,
the workers of the appellant Union have issued notice of strike as mandated
under Section 22 of the Industrial Dispute Act, 1947, and the strike was not
with respect to any of the matters covered by any settlement or award entered
into between the workers and the respondent Corporation, but the same is
precisely with respect to opposing the economic policies and decisions taken by
the Central Government. All the workers have sufficient leave in the currency
of their leave account and their only claim is to adjust those leaves on the
particular days, on which they underwent strike towards the leave available in
their leave account. Having accorded the said facility to the workers of one of
the unions which participated in those strikes, namely, Anna Thozhir Sanga
Peravai, there is no reason for the respondent Corporation to reject the similar
claim raised by the workers of the appellant Union. More so, we have no
hesitation to hold that the strike underwent after putting the respondent
Corporation, who is the employer, with notice of strike as mandated in the
Industrial Dispute Act, 1947, cannot be termed as an illegal strike.
9.Now, the question to be decided is as to, whether a legally called strike
is protected under Articles 19 and 21 of the Constitution of India?
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10.A close watch of the evolution of labour jurisprudence in India, in the
context of comparative constitutionalism, on empirical basis in synchronization
with the various conventions of the International Labour Organization would be
relevant. Time and again, the various line of judgments of the Hon’ble Supreme
Court have categorically held that the right to strike is not a fundamental right
as guaranteed by the Constitution of India. The Hon’ble Supreme Court in the
case of Kameshwar Prasad and others V. State of Bihar and another4, in its
Constitutional Bench of Five Judges has held as follows:-
“13.The first question that falls to be considered is whether
the right to make a “,demonstration” is covered by either or both of
the two freedoms guaranteed by Article 19(1)(a) and 19(1)(b). A
“‘demonstration” is defined in the Concise Oxford Dictionary as “an
outward exhibition of feeling, as an exhibition of opinion on political
or other question especially a public meeting or procession”. In
Webster it is defined as “a public exhibition by a party, sect or
society……… as by a parade or mass-meeting”. Without going very
much into the niceties of language it might be broadly stated that a
demonstration is a visible manifestation of the feelings or sentiments
of an individual or a group. It is thus a communication of one’s ideas
to others to whom it is intended to be conveyed. It is in effect
therefore a form of speech or of expression, because speech need not
be vocal since signs made by a dumb person would also be a form of
speech. It has however to be recognised that the argument before us
is confined to the rule prohibiting demonstration which is a form of
4 1960 SCC Online SC 30
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W.A(MD)No.75 of 2019speech and expression or of a mere assembly and speeches therein
and not other forms of demonstration which do not fall within the
content of Article 19(1)(a) or 19(1)(b). A demonstration might take
the form of an assembly and even then the intention is to convey to
the person or authority to whom the communication is intended the
feelings of the group which assembles. It necessarily follows that
there are forms of demonstration which would fall within the
freedoms guaranteed by Article 19(1)(a) and 19(1) (b). It is needless
to add that from the very nature of things a demonstration may take
various forms; It may be noisy and disorderly, for instance stone-
throwing by a crowd may be cited as an example of a violent and
disorderly demonstration and this would not obviously be within
Article 19(1)(a) or (b). It can equally be peaceful and orderly such as
happens when the members of the group merely wear some badge
drawing attention to their grievances.
14.If thus particular forms of demonstration fall within the
scope of Article 19(1)(a) or 19(1)(b), the next question is whether r.
4-A, in so far as it lays an embargo on any form of demonstration for
the redress of the grievances of Government employees, could be
sustained as falling within the scope of Article 19(2) and (3).
These clauses run:
“19. (2) Nothing in sub-clause (a) of clause (1) shall affect the
operation of any existing law, or prevent the State from making any
law in so far as such law imposes reasonable restrictions on the
exercise of the right conferred by the said sub-clause in the interests
of the security of the State, friendly relations with foreign States,https://www.mhc.tn.gov.in/judis
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W.A(MD)No.75 of 2019public order, decency or morality or in relation to contempt of court
defamation or incitement to an offence.
(3)Nothing in sub-clause (b) of the said clause shall affect the
operation of any existing law in so far as it imposes, or prevent the
State from making any law imposing, in the interests of public order’
reasonable restrictions on the exercise of the right conferred by the
said sub-clause.”
The learned Judges of the High Court have, as stated earlier,
upheld the validity of the rule by considering them as reasonable
restrictions in the interest of public order. In coming to this
conclusion the learned Judges of the High Court did not have the
benefit of the exposition of the meaning of the expression in the
interest of public order” in these two clauses by this Court in
Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia.
Speaking for the Court Subba Rao, J., summarised his conclusion on
the point in these terms:
“Public order (Article 19(2) and (3)) is synonymous with ‘public
safety and tranquillity. It is the absence of disorder involving
breaches of local significance in contradistinction to national
upheavals such as revolution, civil strike, war affecting the security
of the State.”
The learned Judge further stated that in order that a legislation may
be “in the interests of public order” there must be a proximate and
reasonable nexus between the nature of the speech prohibited and
public order. The learned Judge rejected the argument that the
phrase “in the interests of public order” which is wider than the
words ‘,for the maintenance of public order” which were found in the
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Article as originally enacted-thereby sanctioned the enactment of a
law which restricted the right merely because the speech had a
tendency however remote to disturb public order. The connection has
to be intimate, real and rational. The validity of the rule now
impugned has to be judged with reference to tests here propounded.
19.We would therefore allow the appeal in part and grant the
appellants a declaration that Rule 4-A in the form in which it now
stands prohibiting “any form of demonstration” is violative of the
appellants’ rights under Article 19(1)(a) and (b) and should therefore
be struck down. It is only necessary to add that the rule, insofar as it
prohibit a strike, cannot be struck down and since there is no
fundamental right to resort to a strike.
11.It is interesting to understand from the extracted operative portion of
the aforesaid judgment that their Lordships of the Hon’ble Supreme Court have
upheld the right of peaceful demonstration, while holding that there is no
fundamental right to resort to a strike. Another Constitutional Bench of Five
Judges of the Hon’ble Supreme Court in the case of Indian bank Employees
Association v. the National Industrial Tribunal (Bank Disputes Bombay and
others)5, has dealt with the right to strike and the relevant portion is extracted
as follows:-
“16.We shall now proceed to consider the soundness and
tenability of the steps in the reasoning. It is not necessary to discuss5 1961 SCC Online SC 5
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W.A(MD)No.75 of 2019in any detail the first step as sub-clause (c) of clause (1) of Article 19
does guarantee to all citizens the right ,“to from associations”. It
matters little whether or not learned Counsel is right in his
submission that the expression “union“ in the clause has reference
particularly to Trade Unions or whether the term is used in a generic
sense to designate any association formed for any legitimate purpose
and merely as a variant of the expression “Association” for
comprehending every body of persons so formed. It is not
controverted that workmen have a right to form “associations or
unions” and that any legal impediment in the way of the formation of
such unions imposed directly or indirectly which does not satisfy the
tests laid down in clause (4) would be unconstitutional as
contravening a right guaranteed by Part III of the Constitution.
17.It is the second step in the argument of the learned Counsel,
viz., that the right guaranteed to form “an union” carries with it a
concomitant right that the achievement of the object for which the
union is formed shall not be restricted by legislation unless such
restriction were imposed in the interest of public order or morality,
that calls for critical examination. We shall be referring a little later
to the authorities on which learned Counsel rested his arguments
under this head, but before doing so we consider it would be proper to
discuss the matter on principle and on the construction of the
constitutional provision and then examine how far the authorities
support or contradict the conclusion reached.
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18.The point for discussion could be formulated thus : When
sub-clause (c) of clause (1) of Article 19 guarantees the right to form
associations, is a guarantee also implied that the fulfilment of every
object of an association so formed is also a protected right, with the
result that there is a constitutional guarantee that every association
shall effectively achieve the purpose for which it was formed without
interference by law except on grounds relevant to the preservation of
public order or morality set out in clause (4) of Article 19? Putting
aside for the moment the case of Labour Unions to which we shall
refer later, if an association were formed, let us say. for carrying on a
lawful business such as a joint stock company or a partnership, does
the guarantee by sub-clause (c) of the freedom. to form the
association, carry with it a further guaranteed right to the company
or the partnership to pursue its trade and achieve its profit-making
object and that the only limitations which the law could impose on the
activity of the association or in the way of regulating its business
activity would be those based on public order and morality under
clause (4) of Article 19? We are clearly of the opinion that this has to
be answered in the negative. An affirmative answer would be
contradictory of the scheme underlying the text and the frame of the
several fundamental rights which are guaranteed by Part III and
particularly by the scheme of the seven freedoms or groups of
freedoms guaranteed by sub-clauses (a) to (g) of clause (1) of Article
19. The acceptance of any such argument would mean that while in
the case of an individual citizen to whom a right to carry on a trade
or business or pursue an occupation is guaranteed by sub-clause (g)
of clause (1) of Article 19, the validity of a law which imposes any
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restriction on this guaranteed right would have to be tested by the,
criteria laid down by clause (6) of Article 19. if however he
associated with another and carried on the same activity-say as a
partnership, or as a company etc., he obtains larger rights of a
different content and with different characteristics which include the
right to have the validity of legislation restricting his activities tested
by different standards, viz., those laid down in clause (4) of Article 19.
This would itself be sufficient to demonstrate that the construction
which the learned Counsel for the appellant contends is incorrect, but
this position is rendered clearer by the fact that Article 19-as
contrasted with certain other Articles like Articles 26, 29 and 30-
grants rights to the citizen as such, and associations can lay claim to
the fundamental rights guaranteed by that Article solely on the basis
of their being an aggregation of citizens, i.e., in right of the citizens
composing the body. As the stream can rise no higher than the source,
associations of citizens cannot lay claim to rights not open to citizens,
or claim freedom from restrictions to which the citizens: composing it
are subject.
19.The resulting position way, be illustrated thus If an
association were formed’ for’ the purpose of carrying on business, the
right to form it would be Guaranteed by sub-clause (c) of clause (1)
of Article 19 subject to any law restricting that right conforming to
clause (4) of Article 19. As regards its business activities, however,
and the achievement of the objects for which it was brought into
existence, its rights would be those guaranteed by sub-clause (g) of
clause (1) of Article 19 subject to any relevant law on the matter
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conforming to clause (6) of Article 19 ; while the property which the
association acquires or possesses would be protected by sub-clause
(f) of clause (1) of Article 19 subject to legislation within the limits
laid down by clause (5) of Article 19.
20.We consider it unnecessary to multiply examples to further
illustrate the point. Applying what we have stated earlier to the case
of a labour union the position would be this : while the right to form
an union is guaranteed by sub-clause (c), the right of the members of
the association to meet would be guaranteed by sub-clause (b), their
right to move from place to place within India by sub-clause(d), their
right to discuss their problems and to propagate their views by sub-
clause (a), their right to hold property would be that guaranteed by
sub-clause (f) and so oneach of these freedoms being subject to such
restrictions as might properly be imposed by clauses (2) to (6) of
Article 19 as might be appropriate in the context. It is one thing to
interpret each of the freedoms guaranteed by the several Articles in
Part III a fair and liberal sense, it is quite another to read which
guaranteed right as involving or including ‘Concomitant rights
necessary to achieve the object which might be supposed to under lie
the grant of each of those rights, for that construction would, by a
series of ever expanding concentric circles in the shape of rights.
concomitant to concomitant rights and so on, lead to an almost
grotesque result.
21.There is no doubt that in the context of the principles
underlying the Constitution and the manner in which its Part III has
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been framed the guarantees embodied in it are to be interpreted in a
liberal way so as to subserve the purpose for which the constitution-
makers intended them and not in any pedantic or narrow sense, but
this however does not imply that the Court is at liberty to give an
unnatural and artificial meaning to the- expressions used based on
ideological considerations. Besides it may be pointed out that both
under the Trade Unions act as well as under the Industrial Disputes
Act the expressions `union signifies not merely a union of workers but
includes also unions of employers. If the fulfilment of every object for
which an union of workmen was formed were held to be a guaranteed
right, it would logically follow that a similar content ought to be
given to the same freedom when applied to an union of employers
which would result in an absurdity. We are pointing this out not as
any conclusive answer, but to indicate that the theory of learned
Counsel that a right to, form unions guaranteed by sub-clause (c) of
clause (1) of Article 19 carries with it a fundamental right in the
union so formed to achieve every object for which it was formed with
the legal consequence that any legislation not falling within clause
(4) of Article 19 which might in any way hamper the fulfilment of
those objects, should be declared unconstitutional and void under Art,
13 of the Constitution, is not a proposition which could be accepted
as correct.
22.Besides the qualification subject to which the right under
sub-clause (c) is guaranteed, viz., the contents of clause (4) of Article
19 throw considerable light upon the scope of the freedom, for the
significance and contents of the grants of the Constitution are best
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understood and read in the light of the restrictions imposed. If the
right guaranteed included not merely that which. would flow on a
literal reading of the Article, but every right which is necessary in
order that the association brought into existence fulfils every object
for which it is formed, the qualifications therefor, would be not merely
those in clause (4) of Article 19, but would be more numerous and
very different, restrictions which bore upon and took into account the
several fields in which associations or unions of citizens, might
legitimately engage themselves. Merely by way of illustration we
might point out that learned Counsel admitted that though the
freedom guaranteed to workmen to form labour unions carried with it
the concomitant right to collective bargaining together with the right
to strike, still the provision in the Industrial Disputes Act forbidding
strikes in the protected industries as well as in the event of a reference
of the dispute to adjudication under Section 10 of the Industrial
Disputes Act was conceded to be a reasonable restriction on the right
guaranteed by sub-clause(c) of clause(1) of Article 19. It would be
seen that if the right to strike were by implication a right guaranteed
by sub-clause (c) of clause (1) of Article 19 then the restriction on
that right in the interests of the general public, viz., of national
economy while perfectly legitimate if tested by the criteria in clause
(6) of Article 19, might not be capable of being sustained as a
reasonable restriction imposed for reasons of morality or public
order. On the construction of the Article, therefore, apart from the
authorities to which we shall refer presently, we have reached the
conclusion that even a very liberal interpretation of sub-clause (c) of
clause (1) of Article 19 cannot lead to the conclusion that the trade
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unions have a guaranteed right to an effective collective bargaining
or to strike, either as part of collective bargaining or otherwise. The
right to strike or the right to declare a lock-out may be controlled or
restricted by appropriate industrial legislation, And the validity of
such legislation would have to be tested not with reference to the
criteria laid down in clause(4) of Article 19 but by totally different
considerations.”
12.The Hon’ble Supreme Court in the above extracted judgment had
categorically settled that the right guaranteed under Sub-clause (c) of Clause (1)
of Article 19, though it extends to the formation of an Association, but the
methods adopted by the Union for achieving the object of its formation are
certainly subject to such laws as might be framed for the said purpose and the
validity of such law cannot be tested by reference to the criteria found in Clause
(4) of Article 19 of the Constitution. The Constitutional Bench of Five Judges
of the Hon’ble Supreme Court in Radheshyam Sarma versus Postmaster
General, Central Circle Nagpur and Others6, dealt with the right to strike and
the relevant portion of the same is extracted as follows:-
“4.The first question that arises is whether Sections 3, 4 and 5
of the Ordinance are violative of any fundamental rights en- shrined
in the Constitution. The Ordinance as its name shows was passed in
order that essential services may be maintained. Its necessity had6 1964 SCC Online SC 269
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W.A(MD)No.75 of 2019arisen because of a threat of strike inter alia by the employees of the
Department. Among “Essential Service” as defined in Section 2 (1) is
included the postal, telegraph or telephone service. Section 3 of the
Ordinance provides that “if the Central Government is satisfied that
in the public interest it is necessary or expedient so to do, it may, by
general or special order, prohibit strikes in any essential service
specified in the Order”. Further upon the issue of such an order no
person employed in any essential service to which the order relates
shall go or remain on strike; and any strike declared or commenced,
whether before or after the issue of the order, by persons employed in
any such service, shall be illegal. Section 4 provides that any person
who commences a strike which is illegal under the Ordinance or goes
or remains on or otherwise takes part in, any such strike shall be
punished with imprisonment. Section 5 provides that any person who
instigates, or incites other persons to take part in, or otherwise acts
in furtherance of, a strike which is illegal under the Ordinance shall
be punishable with imprisonment.
5.The constitutionality of these sections is attacked on the
ground that they violate the fundamental rights guaranteed by
clauses (a) and (b) of Article 19 (1). Under clause (1) (a) all citizens
have the fundamental right to freedom of speech and expression and
under clause (1) (b) to assemble peaceably and without arms.
Reasonable restrictions on these fundamental rights can be placed
under the conditions provided in clauses (2) and (3) of Article 19. We
are of opinion that there is no force in the contentiton that these
provisions of the Ordinance violate the fundamental rights enshrined
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in sub- clauses (a) and (b) of Article 19(1). A perusal of Art. 19(1)
shows that there is no fundamental right to strike, and all that the
Ordinance provides is with respect to any illegal strike as provided in
the Ordinance. This aspect has been elaborately discussed in the
Bank Employees’ case and it has been held that there is no
fundamental right to strike (see All India Bank Employees’
Association V. National Industrial Tribunal).”
13.Reiterating the earlier verdict of the Hon’ble Supreme Court in All
India Bank Employees Association v. National Industrial Tribunal7 in the
above extracted case, the Hon’ble Apex Court endorsed the earlier judgment
that there is no fundamental right to strike, that too, prohibition of illegal strike
cannot be interfered with. The Hon’ble High Court of Andhra Pradesh, at
Hyderabad, in the case of A.P.S.R.T. Corporation Employees Union v.
A.P.S.R.T. Corporation, Hyderabad and Others8 has dealt with the case of
strike wherein it has distinguished between legal strike and illegal strike and
the relevant portion of the same is extracted as follows:-
“3.The question of legality of the strike, raised by the learned
counsel for the management, may be considered first S. 24(i) of the
Industrial Disputes Act declares that a strike shall be illegal if it is
commenced or declared in contravention of section 22 or section
23. We are concerned in the present case with sec; 23(c) which
7 Supra 5
8 1969 SCC Online AP 192
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W.A(MD)No.75 of 2019prohibits a workman from going on strike ‘during any period in
which a settlement or award is in operation, in respect of any of the
matters covered by the settlement or award’. Section 19(2) provides
that a settlement shall be binding for such period as is agreed upon
by the parties, and if no such period is agreed upon for a period of
six months, and shall continue to be binding on the parties after the
expiry of the period aforesaid, until the expiry of two months from
the date on which notice in writing of an intention to terminate the
settlement is given by one of the parties to the other party or parties
to the settlement. It is the case of the management that on the day of
strike i.e. on 28-3-1966, there was in force a settlement in respect of
some of the demands made by the workers in their notice of
strike. ………. Nor am I prepared to hold that a strike, if justified,
could be considered an activity subversive of industrial peace or
opposed to the lawful objects of Trade Unions. A right to strike is
labour’s ultimate weapon and in the course of a hundred years it
has emerged as the inherent right of every worker. It is an element
which is of the very essence of the principle of collective bargaining
and as stated by an eminent English judge the right to strike is an
implication read into, the contract by the modern law as to trade
disputes’. See Lord Denning in Morgan v. Fry. The nature of the
right is such that, it cannot in my view, be abridged or ??? ??? save
in strict conformity with the provisions of the statute providing for
such abridgement or taking away.
4……… In the present case no demand was rejected and two
principal demands were met. The strike was indeed a substantialhttps://www.mhc.tn.gov.in/judis
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W.A(MD)No.75 of 2019success. I am not saying that the Justifiability of a strike, is not to be
judged by the measure of the results of the strike, though that would
certainly be a relevant matter to be considered. In addition to the
reasonableness of the demands we have in this, case the additional
undisputed fact that even after notice of strike was given, the
workers did not adopt a narrow uncompromising attitude. They
suggested, in the course of the conciliation proceedings, that all the
demands may be referred to arbitration. I therefore hold that the
strike was justified and the Tribunal fell into an error and
approached the question from a wrong angle in basing its
conclusion on the numerical percentage of successful demands.”
14.The Hon’ble High Court of Andhra Pradesh has concluded in the
aforesaid case that a strike could be justified only on arriving at a decision as to
whether the strike resorted to by the workers as against the employer is a legal
strike or an illegal one in consonance with Sections 22, 23 and 24 of the
Industrial Disputes Act, 1947. In yet another case of Gujarat Steel Tubes
Limited and Others versus Gujarat Steel Tubes Mastur Sabha and Others9, a
three Judges Division Bench of the Hon’ble Supreme Court dealt with the right
to strike and participation in illegal strike and the relevant portion of the same
is extracted as follows:-
“2……A total strike ensued, whose chain reaction was a
wholesale termination of all the employees, followed by fresh
9 1980 (2) SCC 593
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W.A(MD)No.75 of 2019recruitment of workmen, de facto breakdown of the strike and
dispute over restoration of the removed workmen. This cataclysmic
episode and its sequel formed the basis of Section 10-A arbitration
and award, a writ Petition and judgment, inevitably spiralling up
this Court in two appeals – one by the Management and the other by
the Union – which have been heard together and are being disposed
of by this common judgment.
5.Gandhiji, to whom the Arbitrator has adverted in passing in
his award, way back in March 1946, wrote on Capitalism and Strikes
in the Harijan:
“How should capital behave when labour strikes? This
question is in the air and has great importance at the present
moment. One way is that of suppression named or nicknamed
‘American’. It consists in suppression of labour through organised
goondaism. Everybody would consider this as wrong and
destructive. The other way, right and honourable, consists in
considering every strike on its merits and giving labour its due not
what capital considers as due, but what labour itself would so
consider and enlightened public opinion acclaims as just….
In my opinion, employers and employed are equal partners
even if employees are not considered superior. But what we see today
is the reverse. The reason is that the employers harness intelligence
on their side. They have the superior advantage which concentration
of capital brings with it, and they know how to make use of it….
Whilst capital in India is fairly organised, labour is still in a more
or less disorganised condition in spite of Unions and Federation.
Therefore, it lacks the power that true combination gives.
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8.The course of this precarious coexistence was often ruffled,
and there was now and then, some flare up leading to strike,
conciliation and even reference under Section 10.When no such
reference was pending, another an industrial break-down and a total
strike.
Olive Branch Approach
12.The golden rule for the judicial resolution of an industrial
dispute is first to persuade fighting parties, by judicious suggestions,
into the peacemaking zone, disentangle the difference, narrow the
mistrust gap and convert them through consensual steps, into
negotiated justice. Law is not the law word in justice, especially
social justice. Moreover, in our hierarchical court system, the little
man lives in the short run but most litigation lives in the long run.
So it is that negotiation first and adjudication next, is a welcome
formula for the Bench and the Bar, Management and Union. This
“olive branch” approach brought the parties closer in our Court
and gave us a better understanding of the problem, although we
could not clinch a settlement.
65.In our opinion, the facts of the case before us speak for
themselves. Here are workmen on strike. The strike is illegal. The
Management is hurt because production is paralysed. The strikers
allegedly indulge in objectionable activities. The exasperated
Management hits back by ordering their discharge for reasons set
out in several pages in the appropriate contemporaneous
proceeding. Misconduct after misconduct is flung on the workers tohttps://www.mhc.tn.gov.in/judis
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W.A(MD)No.75 of 2019justify the drastic action. In all conscience and common sense, the
discharge is the punishment for the misconduct. The Management
minces no words. What is explicitly stated is not a colourless
farewell to make way for fresh hands to work the factory until the
strike is settled but a hard hitting order with grounds of guilt and
penalty of removal.
126.We observe here also an unfortunate failure to separate
and scan the evidence with specific reference to charges against
individual workman. On the contrary, all that we find in the award is
an autopsy of the strike by the Sabha and a study of its allegedly
perverse postures. A disciplinary inquiry resulting in punishment of
particular delinquents cannot but be illegal if the evidence is of mass
misconduct by unspecified strikers led by leaders who are perhaps
not even workmen. We are constrained to state that pointed
consideration of facts which make any of the 400 workmen guilty, is
a search in vain. The award being ex facie blank from this vital
angle, the verdict must prima facie rank as void since vicarious guilt
must be brought home against the actively participating members of
a collectivity by positive testimony, not by hunch, suspicion or occult
intuition. The short position is this. Is there a punishment of any
workman? If yes, has it been preceded by an enquiry? If not, does the
Management desire to prove the charge before the tribunal? If yes,
what is the evidence, against whom, of what misconduct? If
individuated proof be forthcoming and relates to an illegal strike, the
further probe is this: was the strike unjustified? If yes, was the
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W.A(MD)No.75 of 2019he play and of what acts was he author? Then alone the stage is set
for a just punishment. These exercises, as an assembly-line process
are fundamental. Generalisation of a violent strike, of a vicious
Union leadership, of strikers fanatically or foolishly or out of fear,
failing to report for work, are good background material. Beyond
that, these must be identified by a rational process, the workmen,
their individual delinquency and the sentence according to their sin.
Sans that, the dismissal is bad. Viewed from this perspective, the
award fails.”
15.Fully fortified by the aforesaid judgment of the Hon’ble Justice
V.R.Krishna Iyer, we are of the considered opinion that, even in the instant lis
in hand, the strike resorted to by the workers of the appellant Union cannot be
construed as an illegal strike for the reason that the said strike was initiated by
the appellant Union, after issuance of notice as mandated in Section 22 of the
Industrial Disputes Act, 1947, and the same was led by leaders across India
agitating against the economic policies and decisions of the Central
Government. Moreover, the said strike was not a violent strike but a peaceful
demonstration and when the respondent Corporation has extended the benefit
of crediting the leave available in the currency of leave account in favour of the
workers of another Union, the same benefit ought to have been extended to the
workers of the appellant Union as well. The Hon’ble Division Bench of the
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Hon’ble Supreme Court in the case of Dharam Dutt and Others versus Union
of India and Others10, reiterated the earlier stand of the various Constitutional
Bench judgments of the Hon’ble Supreme Court that, the right to strike is not a
fundamental right and the relevant portion in para Nos.24 and 28 of the same is
extracted as follows:-
“From a reading of the two decisions, namely, Smt. Maneka
Gandhi’s case (seven-Judges Bench) and All India Bank Employees
Association‘s case (five-Judges Bench), the following principles
emerge : (i) a right to form associations or unions does not include
within its ken as a fundamental right a right to form associations or
unions for achieving a particular object or running a particular
institution, the same being a concomitant or concomitant to a
concomitant of a fundamental right, but not the fundamental right
itself. The associations or unions of citizens cannot further claim as a
fundamental right that it must also be able to achieve the purpose for
which it has come into existence so that any interference with such
achievement by law shall be unconstitutional, unless the same could
be justified under Article 19(4) as being a restriction imposed in the
interest of public order or morality; (ii) A right to form associations
guaranteed under Article 19 (1)(c) does not imply the fulfillment of
every object of an association as it would be contradictory to the
scheme underlying the text and the frame of the several fundamental
rights guaranteed by Part III and particularly by the scheme of the
guarantees conferred by sub-clauses (a) to (g) of clause (1) of Article
19; (iii) While right to form an association is to be tested by
10 2004 (1) SCC 712
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W.A(MD)No.75 of 2019reference to Article 19(1)(c) and the validity of restriction thereon by
reference to Article 19(4), once the individual citizens have formed
an association and carry on some activity, the validity of legislation
restricting the activities of the association shall have to be judged by
reference to Article 19(1)(g) read with 19(6). A restriction on the
activities of the association is not a restriction on the activities of the
individual citizens forming membership of the association; and (iv) A
perusal of Article 19 with certain other Articles like 26, 29 and 30
shows that while Article 19 grants rights to the citizens as such, the
associations can lay claim to the fundamental rights guaranteed by
Article 19 solely on the basis of there being an aggregation of
citizens, i.e., the rights of the citizens composing the body. As the
stream can rise no higher than the source, associations of citizens
cannot lay claim to rights not open to citizens or claim freedom from
restrictions to which the citizens composing it are subject.
28.A right to form unions guaranteed by Article 19(1)(c) does
not carry with it a fundamental right in the union so formed to
achieve every object for which it was formed with the legal
consequence that any legislation not falling within clause (4) of
Article 19 which might in any way hamper the fulfillment of those
objects, should be declared unconstitutional and void. Even a very
liberal interpretation cannot lead to the conclusion that the trade
unions have a guaranteed right to an effective collective bargaining
or to strike, either as part of collective bargaining or otherwise. The
right to strike or the right to declare a lock-out may be controlled or
restricted by appropriate industrial legislation, and the validity of
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W.A(MD)No.75 of 2019criteria laid down in clause (4) of Article 19 but by totally different
considerations. A right guaranteed by Article 19(1)(c) on a literal
reading thereof can be subjected to those restrictions which satisfy
the test of clause (4) of Article 19. The rights not included in the
literal meaning of Article 19(1)(c) but which are sought to be
included therein as flowing therefrom i.e. every right which is
necessary in order that the association, brought into existence,
fulfills every object for which it is formed, the qualifications therefor
would not merely be those in clause (4) of Article 19 but would be
more numerous and very different. Restrictions which bore upon and
took into account the several fields in which associations or unions
of citizens might legitimately engage themselves, would also become
relevant.”
16.The Division Bench of the Hon’ble Supreme Court examined the right
to demonstrate in the case of Bimal Gurung v. Union of India and Others11
and the relevant portion of same is extracted as follows:-
“31.Article 19 of the Constitution of India guarantees some of
most important fundamental rights to the citizens. Article 19 protects
important attributes of personal liberty. Right to freedom of speech
and expression as guaranteed under Article 19(1)(a) and the right to
assemble peaceably and without arms as protected by Article 19(1)
(b) are the rights which in reference to the present case have
importance. The right of freedom of speech and expression coupled
with right to assemble peaceably and without arms are rights
11 2018 (15) SCC 480
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W.A(MD)No.75 of 2019expression of which are reflected in carrying demonstration on
several occasions. Freedom to air once view is the lifeline of any
democratic institution. The word “freedom of speech” must be
broadly construed to include right to circulate once view by word or
mouth or through audio visual instrument. Right of public speech is
one form of expression which is also a part of freedom of speech and
expression. Demonstrations are also a mode of expression of the
rights guaranteed under Article 19(1)(a). Demonstrations whether
political, religious or social or other demonstrations which create
public, disturbances or operate as nuisances, or create or manifestly
threaten some tangible public or private mischief, are not covered by
protection under Article 19(1). A demonstration might take the form
of an assembly and even then the intention is to convey to the person
or authority to whom the communication is intended the feelings of
the group which assembles. From the very nature of things a
demonstration may take various forms; “it may be noisy and
disorderly”, for instance stone-throwing by a crowd may be cited as
an example of a violent and disorderly demonstration and this would
not obviously be within Article 19(1)(a) or (b). We in the present case
are concerned with the demonstrations and the bandh call given by
GJM.
35.A two-Judge Bench of this Court in Anita Thakur and others
vs. Government of Jammu and Kashmir and others, (2016) 15 SCC
525 in which one of us Dr. A.K. Sikri was a member had occasion to
consider Article 19 in reference to a protest march organised by a
group of people. While dealing with the demonstration under Article
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19(1)(a) and (b) following was laid down in paragraph 12: (SCC p.
533)
“12. We can appreciate that holding peaceful demonstration in
order to air their grievances and to see that their voice is heard in
the relevant quarters is the right of the people. Such a right can be
traced to the fundamental freedom that is guaranteed under Articles
19(1)(a), 19(1)(b) and 19(1)(c) of the Constitution. Article 19(1)(a)
confers freedom of speech to the citizens of this country and, thus,
this provision ensures that the petitioners could raise slogan, albeit
in a peaceful and orderly manner, without using offensive language.
Article 19(1)(b) confers the right to assemble and, thus, guarantees
that all citizens have the right to assemble peacefully and without
arms. Right to move freely given under Article 19(1)(d), again,
ensures that the petitioners could take out peaceful march. The “right
to assemble” is beautifully captured in an eloquent statement that
“an unarmed, peaceful protest procession in the land of “salt
satyagraha”, fast-unto-death and “do or die” is no jural anathema”.
It hardly needs elaboration that a distinguishing feature of any
democracy is the space offered for legitimate dissent. One cherished
and valuable aspect of political life in India is a tradition to express
grievances through direct action or peaceful protest. Organised, non-
violent protest marches were a key weapon in the struggle for
Independence, and the right to peaceful protest is now recognised as
a fundamental right in the Constitution.”
17.Though the above extracted portions of the judgment has nothing to
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do with a strike or demonstration resorted to by the employees of any industrial
establishment, but with the call for peaceful demonstration by a political party,
namely, Gorka Janmukti Morcha, the Hon’ble Division Bench of the Hon’ble
Supreme Court had upheld the right of peaceful demonstration by concluding
that the right to hold peaceful demonstration is protected and guaranteed under
Articles 19(1)(a), 19(1)(b) and 19(1)(c) of the Constitution. In yet another case
of B.R.Singh and Others versus Union of India and Others12 the Hon’ble
Supreme Court has dealt with the issue of strike in non-public utility service
and the relevant portion of the same is extracted as follows:-
“The right to form associations or unions is a fundamental
right under Article 19(1)(c) of the Constitution. Section 8 of the
Trade Unions Act provides for registration of a trade union if all the
requirements of the said enactment are fulfilled. The right to form
associations and unions and provide for their registration was
recognised obviously for conferring certain rights on trade unions.
The necessity to form unions is obviously for voicing the demands
and grievances of labour. Trade unionists act as mouthpieces of
labour. The strength of a trade union depends on its membership.
Therefore, trade unions with sufficient membership strength are able
to bargain more effectively with the managements. This bargaining
power would be considerably reduced if it is not permitted to
demonstrate. Strike in a given situation is only a form of
demonstration. There are different modes of demonstrations, e.g., go-
12 (1989) 4 SCC 710
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W.A(MD)No.75 of 2019slow, sit-in, work-to-rule, absenteeism, etc., and strike is one such
mode of demonstration by workers for their rights. The right to
demonstrate and, therefore, the right to strike is an important weapon
in the armoury of the workers. This right has been recognised by
almost all democratic countries. Though not raised to the high
pedestal of a fundamental right, it is recognised as a mode of
redress for resolving the grievances of workers. But the right to
strike is not absolute under our industrial jurisprudence and
restrictions have been placed on it. These are to be found in Sections
10(3), 10-A(4-A), 22 and 23 of the Industrial Disputes Act, 1947 (“ID
Act” for short). Section 10(3) empowers the appropriate Government
to prohibit the continuance of a strike if it is in connection with a
dispute referred to one of the fora created under the said statute.
Section 10-A (4-A) confers similar power on the appropriate
Government where the industrial dispute which is the cause of the
strike is referred to arbitration and a notification in that behalf is
issued under Section 10-A(3-A). These two provisions have no
application to the present case since it is nobody’s contention that the
Union’s demands have been referred to any forum under the statute.
16. The field of operation of Sections 22 and 23 is different.
While Section 10(3) and Section 10-A(4-A) confer power to prohibit
continuance of strike which is in progress, Sections 22 and 23 seek to
prohibit strike at the threshold. Section 22 provides that no person
employed in a public utility service shall proceed on strike unless the
requirements of clauses (a) to (d) of sub-section (1) thereof are
fulfilled. The expression “public utility service” is defined in Section
2(n) and indisputably TFAI does not fall within that expression.
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Section 23 next imposes a general restriction on declaring strikes in
breach of contract during pendency of (1) conciliation proceedings,
(ii) proceedings before Labour Court, Tribunal or National Tribunal,
(iii) arbitration proceedings and (iv) during the period of operation
of any settlement or award. In the present case no proceedings were
pending before any of the aforementioned fora nor was it contended
that any settlement or award touching these workmen was in
operation during the strike period and hence this provision too can
have no application. Under Section 24, a strike will be illegal only if
it is commenced or declared in contravention of Section 22 or 23 or
is continued in contravention of an order made under Section
10(3) ?? 10-A(4-A) of the ID Act. Except the above provisions, no
other provision was brought to our attention to support the
contention that the strike was illegal. We, therefore, reject this
contention.
17. The next question is whether the material on record reveals
that the office- bearers of the Union had given threats to officials of
TFAI as alleged. The Labour Court has negatived the involvement of
office-bearers of the Union in giving threats either in person or on
telephone. We have perused the evidence on record in this behalf and
we are inclined to think that there were angry protests and efforts to
obstruct the officers from entering the precincts of TFAI but there is
no convincing evidence of use of force or violence.
19…….In their frustration they decided to put pressure by
proceeding on strike. During the strike period certain events
happened which we wish were avoided. But fortunately nothing
destructive, meaning thereby damaging to the property of TFAI, took
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place. A few brushes and exchange of strong words appear to have
taken place which are described as threats by the management. The
vast mass of labour was only responding to the call of the Union.
Even the Union representatives were acting out of frustration and not
out of animosity of the officers. The facts of this case, therefore,
demand that we appreciate the conduct of both sides keeping in mind
the prevailing overall situation.
20. Taking an overall view of the facts and circumstances
which emerge from the oral as well as documentary evidence placed
on record, we are of the opinion that while some of the Union leaders
acted in haste, they do not appear to have been actuated by any
oblique motive. The management also took action against the
workmen not because it was unsympathetic towards their demands
but because of the anxiety caused to them on account of untimely
action taken by the Union only a few days before the President’s
scheduled visit to the Fair. The management also felt hurt as its
reputation was at stake since several dignitaries from abroad were
participating in the Fair. Its action must, therefore, be appreciated in
this background.
21. The interest of the institution must be paramount to all
concerned including the workmen. At the same time this Court cannot
be oblivious to the economic hardships faced by labour. We have
already pointed out earlier how both parties reacted to the tense
atmosphere that built up over a period of time. The facts found by the
Labour Court clearly show that while the labour was frustrated as its
demands were outstanding since long and they were finding it
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difficult to combat the inflation without an upward revision in wages,
etc., the management was worried about TFAI’s reputation likely to
be lowered in the eyes of visiting dignitaries because of certain
events that were happening due to the workers’ agitation. In these
circumstances, it would be unwise and futile to embark upon a fault
finding mission.”
18.Taking cue from the aforesaid judgment, we have no hesitation to
observe that the workers of the appellant Union have not resorted to any
violence but have indulged only in a peaceful demonstration in a call for a
national level strike, which was resorted to across the country agitating to the
economic policies and decisions of the Central Government in a peaceful
manner, after giving notice of strike to the employer Corporation. No untoward
incident has been reported and the respondent Corporation has not chosen to
initiate disciplinary action against the strikers as well. In view of the same, the
appellant Association workers are entitled to the benefit extended to similarly
placed workers of another workers Union, namely, Anna Thozir Sanga Peravai.
The Division Bench of the Hon’ble Supreme Court in the case of
T.K.Rangarajan v. Government of Tamil nadu and Others13, reiterated that
there is no moral or equitable justification for the workers to go on strike and
the relevant portion is extracted as follows:-
13 2003 (6) SCC 581
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W.A(MD)No.75 of 2019“(C)There is no moral or equitable justification to go on strike
19.Apart from statutory rights, government employees cannot
claim that they can take the Society at ransom by going on strike. Even
if there is injustice to some extent, as presumed by such employees, in
a democratic welfare State, they have to resort to the machinery
provided under different statutory provisions for redressal of their
grievances. Strike as a weapon is mostly misused which results in
chaos and total maladministration.”
IV. Comparative Constitutionalism – a tool for justice in labour
jurisprudence:
19.No doubt foreign judgments would be persuasive tools in the hands of
Indian Courts to analyse a domestic question, with respect to, whether the right
to strike by workers/employees is protected by the Constitution of India as a
fundamental right? We are aware that the Indian Constitution though not fully,
but to a certain extent is the reflection of various Constitutions, namely, United
States, the United Kingdom, Canada, Australia, Ireland, France and Japan.
Indian Constitution, being a by-product of colonial inheritance, reliance on
other common law traditions, more particularly, United States, United
Kingdom, Canada, etc., by our Constitutional Courts has become inevitable. We
are anxious in experimenting with the relevant foreign judgments in arriving at
a practical solution to the question, which is haunting the Indian labour
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jurisprudence for a long time, as to, why in a Country which gave birth from
Satyagraha’s, demonstrations, non-violent protests and non co-operation
movements, even after 77 years of Independence, right to strike is not
acknowledged as a fundamental right?
(i)United State of America :
20.The US Constitution 1st Amendment and 14th Amendment guarantees
freedom of speech, right of people to assemble peacefully, and prohibits any
state from making or enforcing any law depriving any person of life, liberty or
property under due process of law and equal protection. The 1 st Amendment,
amendment (1791) of the Constitution of United States, that is, part of the bill
of rights reads as follows:-
“U.S.CONSTITUTION FIRST AMENDMENT – Congress shall
make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.”
21.14th Amendment carried out to the Constitution of United States in the
year 1868 granted citizenship, equal civil and legal rights to African Americans
and slaves, who had been emancipated after the American Civil War and the
full text of the Amendment is as follows:-
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W.A(MD)No.75 of 2019“all persons born or naturalized in the United States, and
subject to the jurisdiction thereof, or citizens of the United States and
of the State, wherein they reside. No State shall make or enforce any
law which shall abridge the privileges or immunities of citizens of the
United States: nor shall any State deprive any person of life, liberty, or
property, without due process of law: nor deny to any person within its
jurisdiction the equal protection of laws.
Representatives shall be apportioned among the several States
according to their respective numbers, counting the whole number of
persons in each State, excluding Indians not taxed. But when the right
to vote at any election for the choice of electors for President and Vice
President of the United States, representatives in Congress, the
Executive and Judicial Officers of a State, or the members of the
Legislature thereof, is denied to any of the male inhabitants of such
State, being 21 years of age, and citizens of the United States, or in
any way abridged, except for participation in rebellion, or other
crime, the basis of representation therein shall be reduced in the
proportion, which the number of such male citizens shall bear to the
whole number of male citizens 21 years of age in such State.
No person shall be a senator or representative in Congress, or
elector of President and Vice President, hold any office, civil or
military, under the United States, or under any State, who, having
previously taken an oath, as a member of the Congress, or as an
Officer of the United States, or as a member of any State Legislature,
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W.A(MD)No.75 of 2019Constitution of United States, shall have engaged in insurrection or
rebellion against the same, or given aid or comfort to the enemies
thereof. But Congress may by a vote of two-thirds of each house,
remove such disability.
The validity of the public debt of the United States, authorized
by law, including debts incurred for payment of pensions and bounties
for services in suppressing insurrection or rebellion, shall not be
questioned. But neither the United States nor any state shall assume or
pay any debt or obligation incurred in aid of insurrection or rebellion
against the United States, or any claim for the loss or emancipation of
any slave: but all such debts, obligations and claims shall be held
illegal and void.
The Congress shall have the power to enforce, by appropriate
legislation, the provisions of this Article”
22.In the case of Chas. Wolff Packing Company v. Court of Industrial
Relations14, the US Supreme Court dealt with the validity of the Court of
Industrial Relations Act of Kansas and held that the same is in conflict with the
14th Amendment and it deprives the plaintiff, that is, the worker’s Union of their
property and liberty of contract without due process of law and the relevant
portion of the same is extracted as follows:-
“20. The system of compulsory arbitration which the act
establishes is intended to compel, and if sustained will compel, the14 262 U.S. 522 (1923)
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W.A(MD)No.75 of 2019owner and employees to continue the business on terms which are not
of their making. It will constrain them, not merely to respect the terms if
they continue the business, but will constrain them to continue the
business on those terms. True, the terms have some qualifications, but
as shown in the prior decision the qualifications are rather illusory and
do not subtract much from the duty imposed. Such a system infringes
the liberty of contract and rights of property guaranteed by the due
process of law clause of the Fourteenth Amendment.
The established doctrine is that this liberty may not be interfered with,
under the guise of protecting the public interest, by legislative action
which is arbitrary or without reasonable relation to some purpose
within the competency of the state to effect. Meyer v. Nebraska, 262 U.
S. 390, 399, 43 S. Ct. 625, 627 (67 L. Ed. 1042, 29 A. L. R. 1446).”
23.In the case in Dorchy v. Kansas15 the US Supreme Court held that
neither the common law nor the 14th Amendment confers absolute right to
strike, but the same is subject to reasonable restrictions and the relevant
portion of the same is extracted as follows:-
“The right to carry on business-be it called liberty or property-
has value. To interfere with this right without just cause is unlawful.
The fact that the injury was inflicted by a strike is sometimes a
justification. But a strike may be illegal because of its purpose,
however orderly the manner in which it is conducted. To collect a
stale claim due to a fellow member of the union who was formerly15 272 U.S. 306 (1926)
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W.A(MD)No.75 of 2019employed in the business is not a permissible purpose. In the absence
of a valid agreement to the contrary, each party to a disputed claim
may insist that it be determined only by a court. Compare Guaranty
Trust Co. v. Green Cove R. R., 139 U. S. 137, 143; Red Cross Line v.
Atlantic Fruit Co., 264 U. S. 109. To enforce payment by a strike is
clearly coercion. The legislature may make such action punishable
criminally, as extortion or otherwise. Compare People v. Barondess,
16 N. Y. Supp. 436; 133 N. Y. 649. And it may subject to punishment
him who uses the power or influence incident to his office in a union
to order the strike. Neither the common law, nor the Fourteenth
Amendment, confers the absolute right to strike. Compare Aikens v.
Wisconsin, 105 U. S. 194, 204-5.”
24.It is significant to understand that the amendment ensured federal
protection to all the citizens of America, irrespective of race or earlier condition
of servitude against the assaults both from State and private action and was
popularly known as Civil Rights Amendment. In the international context, the
various labor rights sprang up from the constitutionally guaranteed right of
Association of the various Constitutions across various Nations in the World.
Surprisingly, the Constitution of the United States do not provide any explicit
right to freedom of association. However, a right of association, despite its
significant absence in the constitutional document has been nurtured slowly and
steadily during the Civil Rights Movement in 1958 and finally recognized in
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the case of National Association for the Advancement of Colored People
(NAACP) versus Alabama16, dated 30.06.1958 and the relevant portion of the
same is extracted as follows:-
“Petitioner is a nonprofit membership corporation organized
under the laws of New York for the purpose of advancing the
welfare of Negroes. It operates through chartered affiliates which
are independent unincorporated associations, with membership
therein equivalent to membership in petitioner. It had local
affiliates in Alabama and opened an office of its own there without
complying with an Alabama statute which, with some exceptions,
requires a foreign corporation to qualify before doing business in
the State by filing its corporate charter and designating a place of
business and an agent to receive service of process. Alleging that
petitioner’s activities were causing irreparable injury to the citizens
of the State for which criminal prosecution and civil actions at law
afforded no adequate relief, the State brought an equity suit in a
state court to enjoin petitioner from conducting further activities in,
and to oust it from, the State. The court issued an ex parte order
restraining petitioner, pendente lite, from engaging in further
activities in the State and from taking any steps to qualify to do
business there. Petitioner moved to dissolve the restraining order,
and the court, on the State’s motion, ordered the production of
many of petitioner’s records, including its membership lists. After
some delay, petitioner produced substantially all the data called for
except its membership lists. It was adjudged in con- tempt and fined16 357 U.S. 449 (1958)
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W.A(MD)No.75 of 2019$100,000 for failure to produce the lists. The State Supreme Court
denied certiorari to review the contempt judgment, and this Court
granted certiorari. Held:
1. Denial of relief by the State Supreme Court did not rest on an
adequate state ground, and this Court has jurisdiction to entertain
petitioner’s federal claims. Pp. 454-458.
2. Petitioner has a right to assert on behalf of its members a claim
that they are entitled under the Federal Constitution to be protected
from being compelled by the State to disclose their affiliation with
the Association. Pp. 458-460.
3. Immunity from state serutiny of petitioner’s membership lists is
here so related to the right of petitioner’s members to pursue their
lawful private interests privately and to associate freely with others
in doing so as to come within the protection of the Four- teenth
Amendment. The State has failed to show a controlling justification
for the deterrent effect on the free enjoyment of the right to
associate which disclosure of petitioner’s membership lists is likely
to have. Accordingly, the judgment of civil contempt and the fine
which resulted from petitioner’s refusal to produce its membership
lists must fall. Pp. 460-466.
(a) Freedom to engage in association for the advancement of
beliefs and ideas is an inseparable aspect of the “liberty” assured
by the Due Process Clause of the Fourteenth Amendment. Pp.
460-461.
(b) In the circumstances of this case, compelled disclosure of
petitioner’s membership lists is likely to constitute an effective
restraint on its members’ freedom of association. Pp. 461-463.
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(c)Whatever interest the State may have in obtaining the names of
petitioner’s ordinary members, it has not been shown to be
sufficient to overcome petitioner’s constitutional objections to the
production order.”
26.Later the US Supreme Court in 1960 in the case of Shelton versus
Tucker17, dated 12.12.1960, held an Arkansas statute invalid, because it
deprived teachers of the right of associational freedom protected by the due
process Clause of the 14th Amendment by State action. The relevant portion of
the same is extracted as follows:-
“An Arkansas statute requires every teacher, as a condition of
employment in a state supported school or college, to file annually
an affidavit listing without limitation every organization to which he
has belonged or regularly contributed within the preceding five
years. Teachers in state supported schools and colleges are not
covered by a civil service system, they are hired on a year-to-year
basis, and they have no job security beyond the end of each school
year. The contracts of the teachers here involved were not renewed,
because they refused to file the required affidavits. Held: The statute
is invalid, because it deprives teachers of their right of associational
freedom protected by the Due Process Clause of the Fourteenth
Amendment from invasion by state action.”17 364 U.S. 479 (1960)
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26.In 1972, the US Supreme Court in the case of Healy versus James18
held that, the denial by a State supported college to recognize the students
request to form a local chapter of students for a democratic society as a campus
organization violated the student’s rights guaranteed under the first amendment.
The relevant portion of the aforesaid judgment is extracted as follows:-
“This case, arising out of a deniel by a state college of official
recognition to a group of students who desired to form a local chapter
of students for a Democratic Society (SDS).
4. Petitioners are students attending Central Connecticut State
College (CCSC), a state-supported institution of higher learning. In
September 1969 they undertook to organize what they then referred to
as a ‘local chapter of SDS. Pursuant to procedures established by the
College, petitioners filed a request for official recognition as a
campus organization with the Student Affairs Committee, a committee
composed of four students, three faculty members, and the Dean of
Student Affairs. The request specified three purposes for the proposed
organization’s existence. It would provide ‘a forum of discussion and
self-education for students developing an analysis of American
society’; it would serve as ‘an agency for integrating thought with
action so as to bring about constructive changes’; and it would
endeavor to provide ‘a coordinating body for relating the problems of
leftist students’ with other interested groups on campus and in the
community. The Committee, while satisfied that the statement of
purposes was clear and unobjectionable on its face, exhibited concern
over the relationship between the proposed local group and the
18 408 U.S. 169 (1972)
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W.A(MD)No.75 of 2019National SDS organization. In response to inquiries, representatives
of the proposed organization stated that they would not affiliate with
any national organization and that their group would remain
‘completely independent’.
13. By a vote of six to two the Committee ultimately approved
the application and recommended to the President of the College, Dr.
James, that the organization be accorded official recognition. In
approving the application, the majority indicated that its decision was
premised on the belief that varying viewpoints should be represented
on campus and that since the Young Americans for Freedom, the
Young Democrats, the Young Republicans, and the Liberal Party all
enjoyed recognized status, a group should be available with which
‘left wing’ students might identify. The majority also noted and relied
on the organization’s claim of independence. Finally, it admonished
the organization that immediate suspension would be considered if the
group’s activities proved incompatible with the school’s policies
against interference with the privacy of other students or destruction
of property. The two dissenting members based their reservation
primarily on the lack of clarity regarding the organization’s
independence.
14. Several days later, the President rejected the Committee’s
recommendation, and issued a statement indicating that petitioners
organization was not to be accorded the benefits of official campus
recognition. His accompanying remarks, which are set out in full in
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W.A(MD)No.75 of 2019organization’s philosophy was antithetical to the school’s policies,
and that the group’s independence was doubtful. He concluded that
approval should not be granted to any group that ‘openly repudiates’
the College’s dedication to academic freedom.
15.Deniel of official recognition posed serious problems for the
organization’s existence and growth. Its members were deprived of the
opportunity to place announcements regarding meetings, rallies, or
other activities in the student newspaper; they were precluded from
using various campus bulletin boards; and – most importantly-
nonrecognition barred them from using campus facilities for holding
meetings. This latter disability was brought home to petitioners
shortly after the President’s announcement. Petitioners circulated a
notice calling a meeting to discuss what further action should be
taken in light of the group’s official rejection. The members met at the
coffee shop in the Student Center (‘Devils’ Den’) but were disbanded
on the President’s order since nonrecognized groups were not entitled
to use such facilities.
16. Their efforts to gain recognition having proved ultimately
unsuccessful, and having been made to feel the burden of
nonrecognition, petitioners resorted to the courts. They filed a suit in
the United States District Court for the District of Connecticut,
seeking declaratory and injunctive relief against the President of the
College, other administrators, and the State Board of Trustees.
Petitioners’ primary complaint centered on the denial of First
Amendment rights of expression and association arising from denial
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of campus recognition……
48.We think the above discussion establishes the appropriate
framework for consideration of petitioners’ request for campus
recognition. Because respondents failed to accord due recognition to
First Amendment principles, the judgments below approving
respondents’ denial of recognition must be reversed. Since we cannot
conclude from this record that petitioners were willing to abide by
reasonable campus rules and regulations, we order the case remanded
for reconsideration. We note, in so holding, that the wide latitude
accorded by the Constitution to the freedoms of expression and
association is not without its costs in terms of the risk to the
maintenance of civility and an ordered society. Indeed, this latitude
often has resulted, on the campus and elsewhere, in the infringement
of the rights of others. Though we deplore the tendency of some to
abuse the very constitutional privileges they invoke, and although the
infringement of rights of others certainly should not be tolerated, we
reaffirm this Court’s dedication to the principles of the Bill of Rights
upon which our vigorous and free society is founded.
49. Reversed and remanded.”
27.The US Supreme Court in the case of RICHARD ALYNG, SECRETARY
OF AGRICULTURE v. INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE, & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, ET
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AL.19, while examining the constitutionality of a statutory provision, namely,
Omnibus Budget Reconciliation Act of 1981, which interfered with the right of
the strikers family in the allotment of food stamps, held that, the said Act does
not infringe the right of the workers to express themselves about union matters
free of coercion by the Government, thereby constitutionally recognizing the
right of freedom of Association and precisely, the same explicitly confirms the
constitutional guarantee ensuring the right to strike under the U.S. Constitution
and the relevant portion of the same is extracted as follows:-
“2.A 1981 amendment to the Food Stamp Act states that no
household shall become eligible to participate in the food stamp
program during the time that any member of the household is on
strike or shall increase the allotment of food stamps that it was
receiving already because the income of the striking member has
decreased. We must decide whether this provision is valid under the
First and the Fifth Amendments.
11. Any impact on associational rights in this case results from the
Government’s refusal to extend food stamp benefits to those on
strike, who are now without their wage income. Denying such
benefits makes it harder for strikers to maintain themselves and
their families during the strike and exerts pressure on them to
abandon their union. Strikers and their union would be much better
off if food stamps were available, but the strikers’ right of
association does not require the Government to furnish funds to
maximize the exercise of that right. “We have held in several
19 485 U.S. 360 (1988)
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W.A(MD)No.75 of 2019contexts (including the First Amendment] that a legislature’s
decision not to subsidize the exercise of a fundamental right does
not infringe the right.” Regan v. Taxation with Representation of
Washington, 461 U.S. 540, 549, 103 S.Ct. 1997, 2003, 76 L.Ed.20
129 (1983). Exercising the right to strike inevitably risks economic
hardship, but we are not inclined to hold that the right of
association requires the Government to minimize that result by
qualifying the striker for food stamps.
12. In Ohio Bureau of Employment Services v. Hodory, 431 U.S.
471, 97 S.Ct. 1898, 52 L.Ed.2d 513 (1977), we upheld a statute that
denied unemployment compensation benefits to workers who are
thrown out of work as a result of a labor dispute other than a
lockout, saying that the case “does not involve any discernible
fundamental interest. Id., at 489, 97 S.Ct. at 1908. Although the
complaining worker there was a nonstriking employee of a parent
company that found it necessary to close because its subsidiary was
on strike, it is clear enough that the same result would have
obtained had the striking employees themselves applied for
compensation.
B
13. For the same reasons, we cannot agree that § 109 abridges
appellees’ right to express themselves about union matters free of
coercion by the Government.”
28.In a verdict dated 28.06.2000, in the case of Boy Scoutts of America
versus Dale20, the Supreme Court of US protected the right of private
20 530 U.S. 640 (2000)
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organizations under the umbrella of the 1st Amendment Right under the freedom
of assembly to take decisions as to membership violating anti-discrimination
laws of the State. The relevant portion of the same is extracted as follows:-
“Petitioners are the Boy Scouts of America and its Monmouth
Council (collectively, Boy Scouts). The Boy Scouts is a private, not-
for-profit organization engaged in instilling its system of values in
young people. It asserts that homosexual conduct is inconsistent with
those values. Respondent Dale is an adult whose position as assistant
scoutmaster of a New Jersey troop was revoked when the Boy Scouts
learned that he is an avowed homosexual and gay rights activist. He
filed suit in the New Jersey Superior Court, alleging,inter alia, that
the Boy Scouts had violated the state statute prohibiting
discrimination on the basis of sexual orientation in places of public
accommodation. That court’s Chancery Division granted summary
judgment for the Boy Scouts, but its Appellate Division reversed in
pertinent part and remanded. The State Supreme Court affirmed,
holding, inter alia,that the Boy Scouts violated the State’s public
accommodations law by revoking Dale’s membership based on his
avowed homosexuality. Among other rulings, the court held that
application of that law did not violate the Boy Scouts’ First
Amendment right of expressive association because Dale’s inclusion
would not significantly affect members’ ability to carry out their
purposes; determined that New Jersey has a compelling interest in
eliminating the destructive consequences of discrimination from
society, and that its public accommodations law abridges no more
speech than is necessary to accomplish its purpose; and distinguishedhttps://www.mhc.tn.gov.in/judis
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W.A(MD)No.75 of 2019Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston,
Inc.,515 U. S. 557, on the ground that Dale’s reinstatement did not
compel the Boy Scouts to express any message.
Held: Applying New Jersey’s public accommodations law to require
the Boy Scouts to readmit Dale violates the Boy Scouts’ First
Amendment right of expressive association. Government actions that
unconstitutionally burden that right may take many forms, one of
which is intrusion into a group’s internal affairs by forcing it to
accept a member it does not desire. Roberts v. United States Jaycees,
468 U. S. 609, 623. Such forced membership is unconstitutional if the
person’s presence affects in a significant way the group’s ability to
advocate public or private viewpoints. New York State Club Assn.,
Inc. v.City of New York, 487 U. S. 1, 13. However, the freedom of
expressive association is not absolute; it can be overridden by
regulations adopted to serve compelling state interests, unrelated to
the suppression of ideas, that cannot be achieved through means
significantly less restrictive of associational freedoms.
29.Thus, very interestingly we could conclude that, though the word
Association do not explicitly find its place anywhere in the US Constitution,
the Supreme Court of US since 1958, has evolved by judicial activism, an
active constitutional right to form Associations to the extent of right to
formation of anonymous association, invalidating all those laws requiring
disclosure of membership or financial donations to such associations as
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W.A(MD)No.75 of 2019unconstitutional. It is only from the right of Association does the right to strike
stems up.
30.In 1935, the US Congress passed the National Labor Relations Act
(NLRA), indicating the policy of the United States to encourage collective
bargaining by protecting workers full freedom of Association. The said
advancement in US labor policy fruitened out of the experience, which proved
that protection by law of the right of employees to organize and bargain
collectively safeguards commerce from injury, impairment, or interruption, and
promotes the flow of commerce by removing certain recognized sources of
industrial strife and unrest, by encouraging practices fundamental to the
friendly adjustment of industrial disputes arising out of differences as to wages,
hours, or other working conditions, and by restoring equality of bargaining
power between employers and employees. Section 7 of the National Labor
Relations Act, 1935, provides that all employees shall have the right to self
organization, to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or or
protection, and shall also have the right to refrain from any or all of such
activities except to the extent that such right may be affected by an agreement
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W.A(MD)No.75 of 2019requiring membership in a labor organization as a condition of employment
without interference of the employer.
(ii)South Africa:
31.It is equally significant to appreciate the nuances of the constitutional
democracy of the Republic of South Africa, which adopted its constitution as
the Supreme Law of the Republic of South Africa. The Supreme Law of South
Africa under Chapter 2 provides for Bill of Rights, which is the cornerstone of
the democracy in South Africa codifying the rights of all the people of the
democracy of South Africa. Section 23 under Chapter 2 – Bill of Rights deals
with labor relations and the same provides every worker the right to form and
join a trade union and even a right to strike and the said provision is extracted
as follows:-
“Chapter 2 – Bill of Rights
Labour relations
23. (1) Everyone has the right to fair labour practices.
(2) Every worker has the right—
(a) to form and join a trade union;
(b) to participate in the activities and programmes of a
trade union; and
(c) to strike.
(3) Every employer has the right—
(a) to form and join an employers’ organisation; and
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(b) to participate in the activities and programmes of an
employers’ organisation.
(4) Every trade union and every employers’ organisation has
the right—
(a) to determine its own administration, programmes
and activities;
(b) to organise; and
(c) to form and join a federation.
(5) Every trade union, employers’ organisation and employer
has the right to engage in collective bargaining. National legislation
may be enacted to regulate collective bargaining. To the extent that
the legislation may limit a right in this Chapter, the limitation must
comply with section 36(1).
(6) National legislation may recognise union security
arrangements contained in collective agreements. To the extent that
the legislation may limit a right in this Chapter, the limitation must
comply with section 36(1).”
32.Mandating a national legislation to regulate collective bargaining
among the Employers Organizations and Trade Unions, limiting a right under
Chapter 2 of the Constitution of South Africa, Section 23(5) mandates that the
limitation must comply with Section 36(1) of the Constitution. Section 36 of
the Supreme Law makes it clear that the limitation should be reasonable and
justifiable based on human dignity, equality and freedom, taking into account
all the relevant facts and for better appreciation, Section 36 of the Supreme Law
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is extracted as follows:-
“Chapter 2 – Bill of Rights
Limitation of rights
36. (1) The rights in the Bill of Rights may be limited only in
terms of law of general application to the extent that the limitation
is reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom, taking into account
all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose;
and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other
provision of the Constitution, no law may limit any right entrenched
in the Bill of Rights.”
33.The national legislation, which was enacted in the Republic of South
Africa in terms of Section 23(5), is the Labor Relations Act, 66 of 1995, (herein
after referred as “LRA”). Section 1 of the LRA provides as follows:-
“The purpose of this Act is to advance economic development,
social justice, labour peace and the democratisation of the work-place
by fulfilling the primary objects of this Act, which are –
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(a) to give effect to and regulate the fundamental rights
conferred by Section 27 of the Constitution;
(b) to give effect to obligations incurred by the Republic as a
member state of the International Labour Organisation,
(c)to provide a framework within which employees and their
trade unions, employers and employers’ organisations can-
(i)collectively bargain to determine wages, terms and conditions
of employment and other matters of mutual interest, and
(ii)formulate industrial policy; and
to promote-
(i)orderly collective bargaining;
(ii)collective bargaining at sectoral level;
(iii)employee participation in decision-making in the work-
place; and
(iv)the effective resolution of labour disputes.”
34.Section 3 of LRA is as follows:-
“Any person applying this Act must interpret its provisions-
(a)to give effect to its primary objects;
(b)in compliance with the Constitution; and
(c)in compliance with the public international law obligations
of the Republic.
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These obligations flow from international instrumenes such as
the Conventions of the ILO that have been ratified by South Africa
and other relevant normatiunal instruments that are binding on South
Africa.”
35.In this background, the constitutional Court of South Africa, in the
case of National Union of Metal Workers of South Africa (Numsa), M
Nkgabutle and 291 others v. Bader Bop (PTY) Limited, the Minister of
Labor21 dated 13.12.2002, dealt with the right of strike given to the minority
Unions for the purpose of acquiring organizational rights. The Constitutional
Court of South Africa, while dealing with the appeal of a Minor Trade Union,
namely, National Metal Workers Union of South Africa, seeking grant of
organizational rights under Sections 12, 13, 14 and 15 of LRA, carefully
considered that the employer Bader Bop (PTY) Ltd negated the demand of the
said Union for grant of organizational rights, with only 26% of the workers on
its fold. The Union declared a dispute over these organizational rights and the
same was referred to the commission for conciliation, mediation and arbitration
(CCMA), a statutory body in South Africa which resolves labor disputes
between the employers and employees. Since the conciliation at CCMA failed,
National Metal Workers Union of South Africa (herein after referred as
‘NUMSA’), informed the employer Bader Bop that its intention of instituting a
21 (2002) ZACC 30
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strike in terms of LRA Section 189(d) of LRA. Contending that in the absence
of organizational rights as provided under Sections 14 and 15 of LRA, the
minority Union cannot strike, the employer approached the learned Labor
Court. The employers application though dismissed by the Labor Court was
later upheld on by the Labor Appeal Court, from where the matter was referred
to the Constitutional Court of South Africa. The Constitutional Court held in
favor of the minority Union upholding that right to strike over organizational
rights. The relevant portion of the same is extracted as follows:-
“13.In section 23, the Constitution recognises the importance
of ensuring fair labour relations. The entrenchment of the right of
workers to form and join trade unions and to engage in strike
action, as well as the right of trade unions, employers and employer
organisations to engage in collective bargaining, illustrates that the
Constitution contemplates that collective bargaining between
employers and workers is key to a fair industrial relations
environment. This case concerns the right to strike. That right is
both of historical and contemporaneous significance. In the first
place, it is of importance for the dignity of workers who in our
constitutional order may not be treated as coerced employees.
Secondly, it is through industrial action that workers are able to
assert bargaining power in industrial relations. The right to strike is
an important component of a successful collective bargaining
system. In interpreting the rights in section 23, therefore, the
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W.A(MD)No.75 of 2019must be understood. It is also important to comprehend the dynamic
nature of the wage-work bargain and the context within which it
takes place. Care must be taken to avoid setting in constitutional
concrete, principles governing that bargain which may become
obsolete or inappropriate as social and economic conditions
change.
……As has already been acknowledged by this Court, in
interpreting section 23 of the Constitution an important source of
international law will be the conventions and recommendations of
the ILO.
29.There are two key ILO Conventions relevant to the issue at
hand: the Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87) and the Right to Organise and
Collective Bargaining Convention, 1949 (No. 98). South Africa is amember of the ILO and has ratified both these Conventions. There
are also two key supervisory bodies engaged in ensuring the
observation and application of these Conventions: the Committee of
Experts on the Application of Conventions and Recommendations;
and the Freedom of Association Committee of the Governing Body
of the ILO. The Committee of Experts is composed of twenty
recognised experts in the field of labour law who are independent of
their governments and appointed by the Governing Body of the ILO
on the recommendation of its Directive-General. It reviews the
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national reports received from member states on the implementation
of the conventions.
30.The Freedom of Association Committee hears complaints
about alleged breaches of the principles of freedom of association
and has developed a complex jurisprudence on freedom of
association. The Committee comprises three representatives each of
governments, employers and workers, with an independent
chairperson. Its decisions are therefore an authoritative
development of the principles of freedom of association contained in
the ILO conventions. The jurisprudence of these committees too will
be an important resource in developing the labour rights contained
in our Constitution.
31.An important principle of freedom of association is
enshrined in Article 2 of the Convention on Freedom of Association
and Protection of the Right to Organise which states:
“Workers and employers, without distinction whatsoever,
shall have the right to establish and, subject only to the rules of the
organisation concerned, to join organisations of their own choosing
without previous authorisation.”Both committees have considered this provision to capture an
important aspect of freedom of association in that it affords workers
and employers an option to choose the particular organisation they
wish to join. Although both committees have accepted that this does
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association, as long as minority unions are allowed to exist, to
organise members, to represent members in relation to individual
grievances and to seek to challenge majority unions from time to
time.
32.Although none of the ILO Conventions specifically
referred to mentions the right to strike, both committees engaged
with their supervision have asserted that the right to strike is
essential to collective bargaining. The Committees accept that
limitations on the right to strike for certain categories of workers
such as essential services, and limitations on the procedures to be
followed do not constitute an infringement of the freedom of
association.
33.These principles culled from the jurisprudence of the two
ILO committees are directly relevant to the interpretation both of
the relevant provisions of the Act and of the Constitution.
34.Of importance to this case in the ILO jurisprudence
described is firstly the principle that freedom of association is
ordinarily interpreted to afford unions the right to recruit members
and to represent those members at least in individual workplace
grievances; and secondly, the principle that unions should have the
right to strike to enforce collective bargaining demands. The first
principle is closely related to the principle of freedom of association
entrenched in section 18 of our Constitution, which is given specific
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content in the right to form and join a trade union entrenched in
section 23(2)(a), and the right of trade unions to organise in section
23(4)(b). These rights will be impaired where workers are not
permitted to have their union represent them in workplace
disciplinary and grievance matters, but are required to be
represented by a rival union that they have chosen not to join.
35.The second principle relates to the right of a union to take
industrial action to pursue its demands. Once again, the question is
whether the workers’ right to strike in order to force an employer to
recognise shop stewards for the purposes of grievance and
disciplinary proceedings, amongst other things, has been limited by
the Act. Prohibiting the right to strike in relation to a demand that
itself relates to a fundamental right otherwise not protected as a
matter of right in the legislation would constitute a limitation of the
right to strike in section 23. No substantial argument was submitted
on behalf of the employer or the Department of Labour as to why
such a limitation would be justifiable.
36.Taking these two principles together, it can be said that the
jurisprudence of the enforcement committees of the ILO would
suggest that a reading of the Act which permitted minority unions
the right to strike over the issue of shop steward recognition,
particularly for the purposes of the representation of union
members in grievance and disciplinary procedures, would be more
in accordance with the principles of freedom of association
entrenched in the ILO Conventions. Similarly, it would avoid a
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limitation of the right of freedom of association in section 18 of our
Constitution; and the rights of workers to form and join trade
unions and to strike; as well as the right of trade unions to organise
and bargain collectively entrenched in section 23 of our
Constitution. It should, however, be emphasised that no substantial
argument was addressed to us as to why an interpretation of the
statute that would have the effect of limiting the constitutional
rights in issue would be justifiable. It is not appropriate therefore to
see grounds for such justification if an interpretation of the Act
which avoids such limitation is possible.
37.The first question that arises is whether the Act is capable
of being interpreted in the manner contended for by the applicants,
or whether it is only capable of being read as the respondents and
the majority judgment in the LAC suggest. If it is capable of a
broader interpretation that does not limit fundamental rights, that
interpretation should be preferred. This is not to say that where the
legislature intends legislation to limit rights, and where that
legislation does so clearly but justifiably, such an interpretation
may not be preferred in order to give effect to the clear intention of
the democratic will of Parliament. If that were to be done, however,
we would have to be persuaded by careful and thorough argument
that such an interpretation was indeed the proper interpretation and
that any limitation caused was justifiable as contemplated by
section 36 of the Constitution.
41.Section 20 of the Act which forms part of Chapter III, Part
A confirms this as follows:
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W.A(MD)No.75 of 2019“Nothing in this Part precludes the conclusion of a collective
agreement that regulates organisational rights.”
42……..On the interpretation of the Act adopted here, section
21 is available in two circumstances. The first is where a sufficiently
representative union wishes to use the procedure to determine the
manner in which the rights are to be exercised. The second is where
there is a dispute as to whether the union is sufficiently
representative or not. Section 21 on its own terms, however, is not
available to a union that admits that it is not sufficiently
representative as contemplated by the Act. On the other hand,
however, section 21 should not be read to deny such unions the right
to pursue organisational rights through the ordinary mechanisms of
collective bargaining.
43.Where employers and unions have the right to engage in
collective bargaining on a matter, the ordinary presumption would
be that both parties would be entitled to exercise industrial action in
respect of that matter. There is nothing in sections 64 or 65
suggesting that there is a limitation on the right to strike in this
regard. Davis AJA in his dissent in the LAC also pointed to the fact
that there was no express limitation on the right to strike in this
respect. It was his view that in the absence of any express
prohibition, the Act should be read so as to afford the right to strike
to minority unions in these cases consistently with the right to strike
in the Constitution.”
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36.The right to strike is elaborated in the case of ESKOM holdings
(PTY) limited and National Union of Mine Workers and Others22, in the
Labor Court of South Africa, Johannesburg, in case No.JR 1576 of 2007 that
the right to strike should not be limited otherwise than as provided under the
relevant labour laws as envisioned by the legislature and the relevant portion of
the same is extracted as follows:-
“There is no doubt that the right to strike is an important right
and that it plays a pivotal role in the collective bargaining process.
See NUMSA v Bader BOP [2003] 2 BLLR 103 (CC) at paragraph
[13]]:
“[13] In section 23, the Constitution recognises the importance
of ensuring fair labour relations. The entrenchment of the right of
workers to form and join trade unions and to engage in strike action,
as well as the right of trade unions, employers and employer
organisations to engage in collective bargaining, illustrates that the
Constitution contemplates that collective bargaining between
employers and workers is key to a fair industrial relations
environment. This case concerns the right to strike. That right is both
of historical and contemporaneous significance. In the first place, it is
of importance for the dignity of workers who in our constitutional
order may not be treated as coerced employees. Secondly, it is through
industrial action that workers are able to assert bargaining power in
industrial relations. The right to strike is an important component of a
successful collective bargaining system. in interpreting the rights in22 [2011] ZASCA 229
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W.A(MD)No.75 of 2019section 23, therefore, the importance of those rights in promoting a
fair working environment must be understood. It is also important to
comprehend the dynamic nature of the wage-work bargain and the
context within which it takes place. Care must be taken to avoid setting
in constitutional concrete, principles governing that bargain which
may become obsolete or inappropriate as social and economic
conditions change.”
28.The importance of the right to strike is further reinforced by
the view that the constitutional right to strike should not, in the
absence of express limitations, be restrictively interpreted. See
Chemical Workers Industrial Union v Plascon Decorative (Inland)
(Pty) Ltd (1999) 20 ILJ 321 (LAC) at paragraphs [27]-[28]
“[27] The arguments of both Mr van der Riet and Mr Loxton
proceeded, also in my view correctly, on the premise that a proper
appreciation of the statutory provisions concerning B strikes depends
on their purpose. Mr van der Riet contended that the purpose of s
64(1)’s procedural requirements is to compel employees to explore the
possible resolution of their dispute through negotiations before
exercising their right to strike. The concept of a protected strike
presupposes such negotiations. Once that purpose has been fulfilled,
no further statutory object would be served by limiting the right to
strike only to employees directly affected by the demand Instead, the
restriction envisaged would place a substantive limitation on the right
of non-bargaining unit union members to strike for which the
provisions of the statute offer no explicit or implicit support. I agree
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with the submission.
[28] The Constitutional Court has itself emphasized the general
Importance of the right to strike
“Collective bargaining is based on the recognition of the fact
that employers enjoy greater social and economic power than
individual workers. Workers therefore need to act in concert to provide
them collectively with sufficient power to bargain effectively with
employers. Workers enjoy collective power primarily through the
mechanism of strike action.’
The court went to point out that the importance of the right to
strike for workers has led to its being entrenched far more frequently
as a fundamental right in constitutions than is the right to lock out,
and that the two rights ‘are not always and necessarily equivalent’ (In
Re: Certification of the Constitution of the Republic of South Africa
1996 (1996) 17 ILJ 821 (CC); G (1996) 10 BCLR 1253 (CC) at 1284-5
para (66).) This is of course not to say that striking should be
encouraged or unprocedural strikes condoned: but only that there is
no justification for importing into the LRA, without any visible textual
support, limitations on the right to strike which are additional to those
the legislature has chosen clearly to express”
29.The right to strike may, therefore, be limited in the same
manner as any other right entrenched in the Constitution but subject to
the provision of the limitation clause contained in section 36(1) of the
Constitution.”
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(iii)Europe:
37.As far as Europe is concerned, the first mass movement of the working
classes is the Chartist movement. The Chartist movement, sprang up in 1838
with six demands, namely, (i)all men have to vote (universal manhood
suffrage), (ii)voting should take place by secret ballot, (iii)parliamentary
elections every year, not once in every 5 years, (iv)constituency should be of
equal size, (v)members of parliament should be paid and (vi)the property
qualification for becoming a member of parliament should be abolished, and
the same paved way for the enactment of the Great Reform Act of Britain in
1867 and 1884.
38.The seeds of the Chartist Movement blossomed into the
Representation of People Act 1918, Equal Franchise Act, 1928, Representation
of the People Act, 1969. The right to strike is a principle enshrined in the 1948
Universal Declaration of Human Rights. In the international level, it has been
augmented by the International Labor Organisation(ILO) supervisory bodies,
though it has not been mentioned explicitly in any of the ILO conventions.
More particularly, the convention Nº87 on freedom of Association and
protection of the right to organize do not contain any specific mention as to the
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right to strike. However, all through these years, the International Labor
Organization has recognized the right to strike as an inseparable corollary to the
right to freedom of Association. Only due to the relentless contribution of the
committee on freedom of association – a committee of the governing body of
ILO with a tripartite composition and the committee of experts on the
application of conventions and recommendations recognised the right to strike
as a fundamental right in the context of the ILO standards.
39.For better appreciation, Part 1, which provides for Freedom of
Association of Convention 87 – Freedom of Association and Protection of the
Right to Organize Convention, 1948, of the International Labor Organization is
extracted as follows:-
“PART I. FREEDOM OF ASSOCIATION
Article 1
Each Member of the International Labour Organisation for which this
Convention is in force undertakes to give effect to the following
provisions.
Article 2
Workers and employers, without distinction whatsoever, shall have the
right to establish and, subject only to the rules of the organisation
concerned, to join organisations of their own choosing without
previous authorisation.
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1. Workers’ and employers’ organisations shall have the right to draw
up their constitutions and rules, to elect their representatives in full
freedom, to organise their administration and activities and to
formulate their programmes.
2. The public authorities shall refrain from any interference which
would restrict this right or impede the lawful exercise thereof.
Article 4
Workers’ and employers’ organisations shall not be liable to be
dissolved or suspended by administrative authority.
Article 5
Workers’ and employers’ organisations shall have the right to
establish and join federations and confederations and any such
organisation, federation or confederation shall have the right to
affiliate with international organisations of workers and employers.
Article 6
The provisions of Articles 2, 3 and 4 hereof apply to federations and
confederations of workers’ and employers’ organisations.
Article 7
The acquisition of legal personality by workers’ and employers’
organisations, federations and confederations shall not be made
subject to conditions of such a character as to restrict the application
of the provisions of Articles 2, 3 and 4 hereof.
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Article 8
1.1. In exercising the rights provided for in this Convention workers
and employers and their respective organisations, like other persons
or organised collectivities, shall respect the law of the land.
2. The law of the land shall not be such as to impair, nor shall it be so
applied as to impair, the guarantees provided for in this Convention.
Article 9
1.1. The extent to which the guarantees provided for in this
Convention shall apply to the armed forces and the police shall be
determined by national laws or regulations.
2. In accordance with the principle set forth in paragraph 8 of Article
19 of the Constitution of the International Labour Organisation the
ratification of this Convention by any Member shall not be deemed to
affect any existing law, award, custom or agreement in virtue of which
members of the armed forces or the police enjoy any right guaranteed
by this Convention.
Article 10
In this Convention the term organisation means any organisation of
workers or of employers for furthering and defending the interests of
workers or of employers.
PART II.PROTECTION OF THE RIGHT TO ORGANISE
Article 11
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Each member of the International Labour Organisation for which this
Convention is in force undertakes to take all necessary and
appropriate measures to ensure that workers and employers may
exercise freely the right to organise.”
40.In similar lines to ILO, the European convention on human rights and
fundamental freedoms (ECHR), do not mention the right to strike in any of its
Articles. Article 11 of the ECHR is extracted as follows:
“Article 11 Freedom of Assembly and Association:-
1.Everyone has the right to freedom of peaceful assembly and
to freedom of association with others, including the right to form
and to join trade Unions for the protection of his interests.
2.No restrictions shall be placed on the exercise of these
rights other than such as are prescribed by law and are necessary in
a democratic society in the interest of national security or public
safety, for the prevention of disorder or crime, for the protection of
health or morals or for the protection of the rights and freedoms of
others. This Article shall not prevent the imposition of lawful
restrictions on the exercise of these rights by the members of the
armed forces, of the police or of the administration of State.”
41.It is interesting to understand that, in interpreting Article 11 and the
other Articles of ECHR treating the same as a living document, the European
Court of Human Rights in Strasbourg (ECtHR) has evolved through its various
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verdicts nurturing and metamorphosing the right to strike into an absolute
fundamental right. In the landmark case of Demir and Beykara versus
Turkey23, the European Court of Human Rights (ECtHR) upheld the right of
forming a Trade Union by the civil servants of municipalities and their right to
exercise collective bargaining and reach collective agreements in the aforesaid
case. In the said case, using international law as a tool for interpreting
European human rights law, the European Court of Human Rights passed a
favourable order in favour of the Trade Union. The relevant portion of the same
is extracted as follows:-
“15.The trade union Tüm Bel Sen was founded in 1990 by civil
servants from various municipalities whose employment was
governed by the Public Service Act (Law no. 657). Under Article 2 of
its constitution, the trade union’s object is to promote democratic
trade unionism and thereby assist its members in their aspirations
and claims. Its head office is located in Istanbul.
16.On 27 February 1993, Tüm Bel Sen entered into a collective
agreement with the Gaziantep Municipal Council for a period of two
years, effective from 1 January 1993. The agreement concerned all
aspects of the working conditions of the Gaziantep Municipal
Council’s employees, such as salaries, allowances and welfare
services.
17.As the said Gaziantep Municipal Council had failed to fulfil
certain of its obligations under the agreement, in particular its23 (2008) ECHR 1345
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W.A(MD)No.75 of 2019financial obligations, the second applicant, as President of the trade
union, brought civil proceedings against it in the Gaziantep District
Court (“the District Court”) on 18th June 1993.
18. In a judgment of 22th June 1994, the District Court found in
favour of Tüm Bel Sen. The Gaziantep Municipal Council appealed
on points of law.
19. On 13th December 1994 the Court of Cassation (Fourth Civil
Division) quashed the District Court’s judgment. It found that, even
though there was no legal bar preventing civil servants from forming
a trade union, any union so formed had no authority to enter into
collective agreements as the law stood.
20. In arriving at this conclusion, the Court of Cassation took into
account the special relationship between civil servants and the public
administration as regards recruitment, the nature and scope of the
work concerned, and the privileges and guarantees afforded to
officials by virtue of their status. It considered that this relationship
was different from that which existed between employers and
ordinary contractual staff (that is to say, employees in the private
sector together with manual workers employed by a public
administration). As a result, Law no. 2322, governing collective
agreements and the right to take strike or lock-out action, could not
apply to relations between civil servants and a public administration.
Any agreement of a “collective” nature between civil servants’ unions
and a public administration had to be grounded in specific
legislation.
21. In a judgment of 28th March 1995, the Gaziantep District Court
stood by its original judgment on the ground that, despite the lack of
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express statutory provisions recognising a right for trade unions
formed by civil servants to enter into collective agreements, this
lacuna had to be filled by reference to international treaties such as
the conventions of the International Labour Organisation (ILO)
which had already been ratified by Turkey and which, by virtue of the
Turkish Constitution, were directly applicable in domestic law.
22. Among other things, the District Court indicated, firstly, that the
trade union Tüm Bel Sen was a legally established entity which had
filed its constitution with the provincial governor’s office a long time
ago and which, since then, had carried on its activities without the
slightest intervention by the competent authorities. The court added
that, on this matter, there was no discrepancy between its judgment
and that of the Fourth Civil Division of the Court of Cassation.
23.As regards the right of civil servants to enter into collective
agreements, the court considered that, even if there was an omission
in Turkish law on this point, the court to which a dispute was referred
had an obligation, under Article 1 of the Civil Code, to make good
the omission itself and to adjudicate the case. In the court’s view, the
same obligation also arose from Article 36 of the Turkish
Constitution, under which everyone was afforded the right of access
to a court. In this context the relevant provisions of the ILO
conventions ratified by Turkey had to be applied in the case, even
though the specific national laws had not yet been enacted by the
legislature. Directly applying the relevant provisions of these
international instruments ratified by Turkey, the court considered that
the applicant trade union did have the right to enter into collective
agreements.
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24. As to the question whether the validity of the collective agreement
in question was affected by the fact that it had not been provided for
by any legislation at the time it was entered into, the court considered
that, since it concerned employer-employee relations, the agreement
was of a private-law nature. In the context of the limits imposed by
Articles 19 and 20 of the Code of Obligations, namely compliance
with statutory provisions, customary law, morals and public order,
the parties had been freely entitled to determine the content of this
collective agreement. An examination of the text of the collective
agreement in question did not reveal any contradiction with those
requirements. Consequently, the court found that the collective
agreement between the applicant trade union and the Gaziantep
Municipal Council had been a valid legal instrument with binding
effect for the parties.
25.The court awarded Mr Kemal Demir a sum equivalent to the
increases in pay and allowances provided for by the collective
agreement in question.
26. In a judgment of 6th December 1995, the Court of Cassation
(combined civil divisions) quashed the District Court’s judgment of
28th March 1995. It found that certain rights and freedoms mentioned
in the Turkish Constitution were directly applicable to litigants,
whereas others were not. In fact, the Constitution, by the indication
“the exercise of this right shall be governed by legislation” clearly
earmarked the rights and freedoms which, to be used and applied,
required the enactment of specific legislation. Absent such
legislation, these rights and freedoms, which included the freedom to
join a trade union and to bargain collectively, could not be exercised.
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27. The Court of Cassation further considered that the principle of
the individual’s free will was not absolute in respect of the
establishment of legal entities. They could acquire legal personality,
distinct from their constituent persons, only by complying with the
formal conditions and procedures laid down by law for that purpose.
The creation of a legal entity was no more than a legal consequence
conferred by the law on an expression of free will by the founders.
28. The Court of Cassation pointed out that the freedom to form
associations, trade unions and political parties, even if provided for
in the Turkish Constitution, could not be exercised simply by a
declaration of the free will of individuals. As there was no specific
law on the subject, the existence of such a legal entity could not be
recognised. According to the Court of Cassation, this finding was not
at odds with the principles of “the rule of law” and “democracy”
mentioned in the Constitution, since supervision of legal entities by
the State, in order to ensure public usefulness, was necessary in any
democratic legal system.
29. The Court of Cassation further pointed out that the legislation in
force at the time when the trade union was founded did not permit
civil servants to form trade unions. It added that the amendments
subsequently made to the Turkish Constitution, recognising the right
of civil servants to form trade unions and bargain collectively, were
not such as to invalidate the finding that Tüm Bel Sen had not
acquired legal personality and, as a result, did not have the capacity
to take or defend court proceedings.
30. An application by representatives of the trade union for
rectification of that decision was rejected by the Court of Cassation
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on 10th April 1996.
31. Following an audit of the Gaziantep Municipal Council’s
accounts by the Audit Court, the members of the trade union Tüm Bel
Sen had to reimburse the additional income they had received as a
result of the defunct collective agreement. The Audit Court, in a
number of decisions that it gave as the court of last resort in respect
of the collective agreements entered into by the trade union, pointed
out that the rules applicable to civil servants, including the salaries
and allowances to which they were entitled, were laid down by law. It
further considered that, since the amendment on 23th July 1995 of
Article 53 of the Turkish Constitution and the enactment on 25th June
2001 of Law no. 4688 on civil servants’ trade unions, such unions
were admittedly entitled to engage in collective bargaining under
certain conditions of representation, but were not entitled to enter
into valid collective agreements directly with the authorities
concerned, unlike trade unions of ordinary contractual employees
who could enter into such agreements with their employers. If an
agreement was entered into between the employing authority and the
trade union concerned, it could only become binding following its
approval by the Council of Ministers. The Audit Court, after finding
that the collective agreement entered into by the applicant trade
union had not fulfilled these conditions, decided that the accountants
who had authorised higher payments than those provided for by law
should reimburse the surplus amounts to the State’s budget.
32. The Audit Court refused to apply section 4 of Law no. 4688,
which required the discontinuance of any administrative, financial or
judicial proceedings brought against accountants who were
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responsible for such payments. It considered that this provision did
not render the collective agreements valid and did not release the
accountants in question from the obligation to reimburse the State for
any losses sustained by it as a result of payments made in accordance
with those agreements.
33.The accountants concerned in turn brought proceedings against
the civil servants who were members of the trade unions and had
benefited from the additional payments granted under the defunct
collective agreements.
96. The Court must now deal with the Government’s objection that
the application is incompatible ratione materiae with the provisions
of the Convention on the ground that Article 11 of the Convention is
not apptieable to “members of the administration of the State It is
true that Article 11 § 2 in fine clearly indicates that the State is bound
to respect the freedom of association of its employees, subject to the
possible imposition of lawful restrictions on the exercise by members
of its armed forces, police or administration of the rights protected in
that Article (see Swedish Engine Drivers’ Union v. Sweden, 6
February 1976, § 37. Series A no. 20).
97. In this connection, the Court considers that the restrictions
imposed on the three groups mentioned in Article 11 are to be
construed strictly and should therefore be confined to the “exercise”
of the rights in question.
101. The Court observes that the right of public officials to join
trade unions has been confirmed on a number of occasions by the
Committee of Experts on the Application of Conventions and
Recommendations. This Committee, in its Individual Observation to
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the Turkish government concerning ILO Convention No. 87,
considered that the only admissible exception to the right to organise
as contemplated by that instrument concerned the armed forces and
the police (see paragraph 38 above).
102. The Court further notes that the ILO Committee on Freedom
of Association adopted the same line of reasoning as regards
municipal civil servants. In the Committee’s view, local public service
employees should be able effectively to establish organisations of
their own choosing, and these organisations should enjoy the full
right to further and defend the interests of the workers whom they
represent (see paragraph 39 above).
103. The instruments emanating from European organisations also
show that the principle whereby civil servants enjoy the fundamental
right of association has been very widely accepted by the member
States. For example. Article 5 of the European Social Charter
guarantees the freedom of workers and employers to form local,
national or international organisations for the protection of their
economic and social interests and to join those organisations.
National legislation may impose partial restrictions on the police and
total or partial restrictions on members of the armed forces, but no
possibility of restriction is provided for in respect of other members
of the administration of the State.
104. The right of association of civil servants has also been
recognised by the Committee of Ministers of the Council of Europe in
its Recommendation No. R (2000) 6 on the status of public officials in
Europe. Principle 8 of which declares that public officials should, in
principle, enjoy the same rights as all citizens, and that their trade-
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union rights should only be lawfully restricted in so far as that is
necessary for the proper exercise of their public functions.
107. The Court concludes from this that “members of the
administration of the State” cannot be excluded from the scope of
Article 11 of the Convention. At most, the national authorities are
entitled to impose “lawful restrictions” on those members, in
accordance with Article 11 § 2. In the present case, however, the
Government have failed to show how the nature of the duties
performed by the applicants, as municipal civil servants, requires
them to be regarded as “members of the administration of the State
subject to such restrictions.
108. Accordingly, the applicants may legitimately rely on Article 11
of the Convention and the objection raised by the Government on this
point must therefore be dismissed.”
42.The Court interpreted the European Convention on Human Rights in
the light of international treaties and the relevant Rules of International Law as
recognized by civilized countries to uphold the right of Municipal Officials to
establish Trade Unions. Article 11 of the Convention No.7 of Freedom of
Association of ILO and Convention 87 on Freedom of Association of ILO was
interpreted by the Court. Based on ILO Convention Nos.87, 98 and 151 and on
the pronouncements of ILO supervisory bodies, the Court ruled that there had
been a violation of Article 11 of the European convention on human rights.
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43.In yet another case of Enerji Yapi-Yol Sen v. Turkey24, the European
Court of Human Rights upheld the right of strike of public sector employees.
The principal facts of the aforesaid case is as follows:-
“Enerji Yap?-Yol Sen is a union of civil servants which was
founded in 1992 and is active in the fields of land registration, energy,
infrastructure services and motorway construction. It is based in
Ankara and is a member of the Federation of Public-Sector Trade
Unions. On 13 April 1996 the Prime Minister’s Public-Service Staff
Directorate published circular no. 1996/21, which, inter alia,
prohibited public-sector employees from taking part in a national one-
day strike organised in connection with events planned by the
Federation of Public-Sector Trade Unions to secure the right to a
collective-bargaining agreement. On 18th April 1996 some of the trade
union’s board members took part in the strike and received disciplinary
sanctions as a result. Appeals lodged by Enerji Yap?-Yol Sen were
dismissed, the Turkish courts considering in particular that the aim of
the impugned circular was to remind public servants of the legislative
provisions governing the conduct expected of them.”The summary of the aforesaid judgment as provided by the Registry of the
European Court of Human Rights is as follows:-
“Complaint
Relying on Article 11, Enerji Yap?-Yol Sen alleged that the Turkish
authorities had breached its right to trade-union freedom.
24 (2000) ECHR 2251
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W.A(MD)No.75 of 2019Decision of the Court
Concerning the general principles relating to the obligations
incumbent on the States under Article 11, the Court referred to its
case-law set out in its Grand Chamber judgment in the case of Demir
and Baykara v. Turkey (12 November 2008, application no. 34503/97).
It pointed out, inter alia, that the impugned circular had been adopted
five days before the action planned by the Federation of Public-Sector
Trade Unions, at a time when work was under way to bring Turkey’s
legislation into line with international conventions on the tradeunion
rights of State employees and the legal situation of public servants was
unclear. The Court acknowledged that the right to strike was not
absolute and could be subject to certain conditions and restrictions.
However, while certain categories of civil servants could be prohibited
from taking strike action, the ban did not extend to all public servants
or to employees of State-run commercial or industrial concerns. In this
particular case the circular had been drafted in general terms,
completely depriving all public servants of the right to take strike
action. Furthermore, there was no evidence that the national action
day on 18 April 1996 had been prohibited. In joining in the action the
members of the applicant trade union had simply been making use of
their freedom of peaceful assembly. In the Court’s view the disciplinary
action taken against them on the strength of the circular was capable
of discouraging tradeunion members and others from exercising their
legitimate right to take part in such one-day strikes or other actions
aimed at defending their members’ interests. Furthermore, the Turkish
Government had failed to justify the need for the impugned restriction
in a democratic society.
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The Court found that the adoption and application of the circular did
not answer a “pressing social need” and that there had been
disproportionate interference with the applicant union’s rights. There
had therefore been a violation of Article 11.”
44.As far as the United Kingdom is concerned, the said Country has
ratified the UN instruments, namely, International Covenant on Economic,
Social and Cultural Rights – Article 8 and International Covenant on Civil and
Political Rights – Article 22. With respect to the various instruments of the
International Labour Organization, the UK has ratified the following:-
(1).Convention No.87 concerning Freedom of Association and Protection
of the Right to Organize as ratified on June 27, 1949.
(2).Convention No.98 concerning the right to organize and to bargain
collectively as ratified on June 30, 1950.
(3).Convention No.151 concerning labour relations (public service) as
ratified on March 19, 1980. However, the UK did not ratify convention No.154,
collective bargaining convention, 1981. In the European level, the UK has
ratified the European social charter (European treaty) series No.35 as on 11 th
July 1962 and the same came into force on 26th February 1965. The UK has
incorporated the European convention on human rights into national law
through the Human Rights Act, 1998. However, the UK did not ratify the
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W.A(MD)No.75 of 2019revised European charter (European treaty) Series No.163 nor the collective
complaints procedure protocol. The labour jurisprudence in UK has evolved in
the general legislation on industrial action, that is, the Trade Union and Labour
Relations (Consolidation) Act, 1992, (hereinafter referred as TULRCA) and the
same as recently amended by the Trade Union Act, 2016, (hereinafter referred
as TUA). In UK, to resort to a lawful strike, the Trade Union has to comply the
mandatory procedures in TULRCA, 1992, as modified by the Trade Union Act,
2016.
45.It is pertinent to mention here that TUA, 2016, applies to Great
Britain alone. A strike is defined in TULRCA, 1992 as “any concerted stoppage
of work”. Needless to state that the right to strike is recognized as a
fundamental right and the same is protected under Article 11 of the European
Convention on Human Rights. Though the prominent provisions of TULRCA,
1992, do not give workers a specific right to strike though Section 146 of
TULRCA, 1992, seems to be a worker friendly provision, it protects the
workers from detriment on grounds related to union membership or activities
however, taking part in the industrial action by resorting to the right to strike
has not been considered as one covered as a protected activity under Section
146 of TULRCA, 1992.
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46.In the case of Secretary of State for Business and Trade versus Mrs.
Mercer25, the question as to whether Section 146 of TULRCA, 1992, could be
interpreted to provide such protection which is compatible with Article 11 of
the European convention of human right came to be considered. The crux of the
same as decided by Lady Simler (with whom Lord Lloyd – Jones, Lord
Hamblen, Lord Burrows and Lord Richards agree) is as follows:-
“102…….In my judgment, the Court of Appeal was correct to
hold that a Convention compatible interpretation of section 146 of
TULRCA is not possible and would amount to impermissible judicial
legislation rather than interpretation. I recognise that section 3 of
the HRA can require a court to read in words which change the
meaning and the effect of the legislation to achieve a compatible
interpretation. However, I do not consider that there is a single,
obvious legislative solution that will ensure compliance with article
11 while at the same time maintaining an appropriate balance
between the competing rights of employers and their workers in this
politically and socially sensitive context. Moreover, to interpret
section 146 in the way proposed by the appellant would contradict a
fundamental feature of the legislation. My reasons for these
conclusions follow.
103. First, although article 11 may well require some
protection (as opposed to none) for detriment short of dismissal in
this context, I have rejected the argument advanced by the appellant25 (2024) UKSC 12
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W.A(MD)No.75 of 2019that universal protection from all detriments is inevitably required by
article 11. Having reached that conclusion, it is far from obvious to
me what the nature, scope and structure of the requisite protection
should be. As I have said, I cannot rule out the possibility that,
consistently with the UK’s positive obligations under article 11, there
might be some circumstances where it would be permissible for a
private employer to impose a sanction of some kind for participation
in lawful industrial action (which may take many forms). I cannot
assume that Parliament would necessarily choose to legislate to
prohibit all forms of detriment, including, for example, reduction of a
discretionary bonus or removal of a non-contractual benefit,
irrespective of the application of the “sole or main purpose” test.
104. There are other policy choices that will have to be made
if Parliament decides that legislative protection is required. The
formulation currently proposed by the appellant would permit an
employer to dismiss a “limb (b) worker” (that is to say, a worker
who is not an employee but who nonetheless enjoys protection within
the wider definition of “worker”, including those engaged under
contracts to perform work personally) for participating in lawful
industrial action (there being no other prohibition on dismissing
workers as opposed to employees); and would prohibit an employer
from subjecting an employee to any detriment short of dismissal in
circumstances where the employer would be lawfully permitted to
dismiss that employee under section 238A of TULRCA. It follows
that the introduction of legislation in this area would necessarily
require consideration of whether the protection in section 146 should
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W.A(MD)No.75 of 2019limited protection against dismissal on grounds of taking industrial
action contained in sections 237 to 238A of TULRCA, thus
permitting detrimental action short of dismissal in certain
circumstances. Related to this, and depending on the formulation
adopted, there may have to be consideration of whether limb (b)
workers should enjoy greater protection for detriment by way of
dismissal for lawful participation in a strike.
105. For this reason, seeking to interpret section 146 using
section 3 of the HRA in this way, is tantamount to judicial
legislation. It fundamentally alters the scope and structure of the
rights conferred by TULRCA, re-drawing the balance between
workers’ and employers’ rights. There is no formulation that does not
involve making a series of policy choices that may have far-reaching
practical ramifications. This goes beyond the permissible boundary
of interpretation.
…….
120. In my view this is not one of those cases where it is
inappropriate to make a declaration of incompatibility. The ultimate
legislative solution to the problem identified in this case may call for
enquiry. Questions of policy will have to be addressed and evaluated,
their practical ramifications considered, and a fair balance struck
between all the competing interests at stake. But the existence of
policy choices in the means of giving effect to the lawful strike rights
protected by article 11 is a reason in favour of making a declaration
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of incompatibility, not refusing one. It is for Parliament to decide
whether to legislate and, if so, the scope and nature of such
protection. Moreover, resolution of these issues being pre-eminently
a matter for Parliament, it may consider that section 146 is not after
all the correct vehicle to remedy the problem. That too is not a
reason for refusing a declaration in this case. No legislation is
pending or envisaged in this area, that might make it premature to
make a declaration. Indeed, I can discern no good reason for
rejecting the remedial measure provided for by section 4 of the HRA
by making such a declaration.
121. Accordingly, I would make a declaration under section 4
of the HRA (Human Rights Act) that section 146 of TULRCA is
incompatible with article 11, insofar as it fails to provide any
protection against sanctions, short of dismissal, intended to deter or
penalise trade union members from taking part in lawful strike
action organised by their trade union. To that extent, I would allow
this appeal.”
47.As detailed above the Supreme Court of UK concluded that a fair
balance has not been struck by Article 146 of TULRCA, 1992, and the same has
resulted in breach of UK’s obligations under Article 11.
V. Strike in the Context of Indian Labour Jurisprudence:
48.The Constitution of India is a living organ constituted by the people
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of India, resolving to constitute India into a Sovereign, Socialist, Secular,
Democratic, Republic and to secure justice, liberty, equality and fraternity to all
its citizens. The clamour for constitutional reforms is an adventurous journey of
judicial activism without distorting the doctrine of separation of powers. Hence,
we are extremely cautious in the interpretation of right to strike from the
context of Indian Labour Jurisprudence in conjunction with Part III of the
Constitution of India.
49.Article 19 provides for protection of certain rights regarding freedom
of speech, etc., and the right to strike as a fundamental right could be
interpreted only through the prism of Article 19, provided by the Constitution
of India in Part III. Article 19(1) for the said purpose is extracted as follows:-
“19. Protection of certain rights regarding freedom of speech, etc.
(1)All citizens shall have the right-
(a) to freedom of speech and expression;
(b)to assemble peaceably and without arms;
(c)to form associations or unions or co-operative societies;
(d)to move freely throughout the territory of India;
(e)to reside and settle in any part of the territory of India;and
(f)sub-clause (f) shall be omitted;
(g)to practise any profession, or to carry on any occupation,
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50.The rights guaranteed under Article 19(1) are subject to the
restrictions in Articles 19(3) & 19(4) and the same are extracted as follows:-
“19(3).Nothing in sub-clause (b) of the said clause shall affect
the operation of any existing law in so far as it imposes, or prevent the
State from making any law imposing, in the interests of the
sovereignty and integrity of India or public order, reasonable
restrictions on the exercise of the right conferred by the said sub-
clause.
19(4).Nothing in sub-clause (c) of the said clause shall affect the
operation of any existing law in so far as it imposes, or prevent the
State from making any law imposing, in the interests ofthe sovereignty
and integrity of India or public order or morality, reasonable
restrictions on the exercise of the right conferred by the said sub-
clause.”
51.Time and again, the Hon’ble Supreme Court of India had made it clear
that even in liberal interpretation of Clause (c) of Article 19, right to strike and
collective bargaining cannot be granted to the Trade Unions for the said right is
not a fundamental right. The primordial verdicts of the Hon’ble Supreme Court
in this line are, All India Bank Employees Association versus National
Industrial Tribunal and others26, Kameshwar Prasad and others versus the
State of Bihar and another27, and Radheyshyam Sharma v The Post Master
26 Supra 5
27 Supra 4
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General Central Circle28, all three of which were decided by the Five Judges
Constitutional Bench of the Hon’ble Apex Court during 1961, 1962 and 1964
respectively. The proposition of law, which evolved in these three precedents is
that there is no fundamental right to strike under the Indian Constitution.
52.As far as the Government employees are concerned, the substantial
nature of their roles in discharge of their duties by acquiring the status of
Government servants would subject them to the limitation of enjoying the
fundamental rights within the parameters of their respective service laws and
the prevailing statutory labour laws of the country. Following those verdicts of
the different Constitutional Benches of the Hon’ble Supreme Court, thereafter a
fleet of Supreme Court decisions followed endorsing and reiterating the same
position of law, as far as the right to strike is concerned.
53.The statement of object and reasons of the Industrial Disputes Act,
1947, reveals, the need for a permanent legislation to rectify the defects felt by
the experience of the working of the Trade Disputes Act, 1929, by the impact of
the restraints, which have been imposed on the right of strike and lockout in
public utility services and the absence of provision to institute proceedings for
the settlement of industrial dispute in the aforesaid Act, as early as during 1947,
28 Supra 6
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as a result of which, the Industrial Disputes Act, 1947, generally acceptable to
both employers and workmen intact became inevitable. Precisely, the Industrial
Disputes Act, 1947, was enacted with the prime object of envisaging collective
bargaining and settlement between union representing the workmen and
management and also the same provides for investigation and settlement of
industrial disputes. Promoting industrial peace and harmony and the same is the
ultimate pursuit of the aforesaid Act. The said Act was enacted with the object
of improving the service conditions of industrial labour, providing and
regulating their service conditions, bringing about the existence of harmony
and cordial relationship between the employers and the employees. The term
‘strike’ is defined in Section 2(q) of the Industrial Disputes Act, 1947, and the
same is extracted as follows:-
“’strike’ means a cessation of work by a body of persons
employed in any industry acting in combination, or a concerted
refusal, or a refusal, under a common understanding, of any number
of persons who are or have been so employed to continue to work or
to accept employment;”
54.Strikes are categorized into two, namely, legal strikes and illegal
strikes. Illegal strikes and lockouts are expanded and explained in Section 24
and the same is extracted as follows:-
“24. Illegal strikes and lock-outs.- (1) A strike or a lock-out
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(i)it is commenced or declared in contravention of section
22 or section 23; or
(ii)it is continued in contravention of an order made under
sub-section (3) of section 10 [or sub-section (4-A) of section 10-A].
(2)Where a strike or lock-out in pursuance of an industrial
dispute has already commenced and is in existence at the time of the
reference of the dispute to a Board, [an arbitrator, a] [Labour Court,
Tribunal or National Tribunal], the continuance of such strike or
lock-out shall not be deemed to be illegal, provided that such strike
or lock-out was not at its commencement in contravention of the
provisions of this Act or the continuance thereof was not prohibited
under sub-section (3) of section 10 [or sub-section (4-A) of section
10-A].
(3)A lock-out declared in consequence of an illegal strike or
a strike declared in consequence of an illegal lock-out shall not be
deemed to be illegal.”
55.Thus, it has become clear from the import of Sections 22, 23 and 24 of
Act, 1947, that the right to strike is confined only within the parameters of
Sections 22, 23 and 24 of the Industrial Disputes Act, 1947. Time and again, the
Hon’ble Supreme Court has categorically held that the right to strike can never
ever be a fundamental right under the Constitution, but the workers/labour’s
right to strike flows from the statutory labour laws of the nation, precisely
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concluding that the said right is not a fundamental one, but a statutory right.
56.Now, coming to our task in analyzing the scope of interpreting the
right to strike under the Constitution of India has fastened us with the
responsibility of invoking our discretion to comparative constitutionalism in
consensus with the various conventions of the International Labour
Organization.
57.India is a founder member of the International Labour Organization,
which came into existence in 1919. India is one among the 185 members of
ILO. The significant role of ILO is to ensure the growth of its tripartite system
in the member Countries. The Governments succumbing to the tripartite
character of ILO associates itself with the two other social partners, namely,
workers and employers in making its policy decisions pertaining to labour
jurisprudence in the Nation. The governing body of ILO consists of the
following committees:
(I)program, planning and administrative;
(II)Freedom of Association;
(III)legal issues and international labour standards;
(IV)employment and social policy;
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(V)technical cooperation and;
(VI)sectoral and technical meetings and related business
and India is a member of all the six committees of the governing body of
ILO.
58.International labour standards promoted by ILO has always been
India’s parameters to be achieved, which is continuously taken into account
while devising guidelines and evolving legislative and administrative measures
for the protection and advancement of the interest of labour in India. Of the
eight core conventions of ILO, which is also called the fundamental/human
rights conventions, India has ratified only the following:-
(i)small element, forced labour convention (No.29).
(ii)abolition of forced labour convention (No.105).
(iii)equal remuneration convention (No.100).
(iv)discrimination (employment occupation convention No.111).
59.The conventions which are not ratified by India are as follows:-
(i)freedom of Association and Protection of Right to organised
Convention (No.87).
(ii)right to organise and collective bargaining convention (No.98).
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(iii)minimum age convention (No.138).
(iv)worst forms of child labour convention (No.182).
60.Consequent to the World Summit for Social Development in 1995, all
the above extracted seven conventions were categorised as the fundamental
human rights conventions or the core conventions by the Indian Labour
Organisation. Later Convention No.181 was also added to the list and the same
was not ratified by India. It is pertinent to understand that Convention No.87
concerning Freedom of Association and protection of the right to organise
provides for the right of workers and employers, without any distinction, to
establish and join organisations of their own choosing without authorisation
including the right to form or join federations and confederations, including,
those at the international level is not ratified by India so far.
61.We are inclined to adopt the dualistic approach of considering the
International Law and the domestic law as separate entities in interpreting the
right to strike in the context of the case in hand. Appreciating the caveat of the
Government of India by not recognising Convention No.87 of the International
Labour Organisation, we are careful enough to concede that the International
Law will not bind the Indian Courts in interpreting the right to strike until the
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same is incorporated in the domestic laws through appropriate legislation.
Schedule VII of the Constitution delineates the powers of the Central
Government and that of the States respectively. Entry 13, which provides for
the participation in international conferences, Associations and other bodies
and implementing of decisions made thereat and Entry 14 entering into treaties
and agreement with foreign countries and implementing of treaties, agreements
and conventions with foreign countries, vests the Union Government with the
power to enter into treaties agreements and conventions with foreign countries.
The treaty making power of the Executive is propounded in Article 253 of the
Constitution and the same is extracted as follows:-
“Article 253 – Legislation for giving effect to international
agreements. – notwithstanding anything in the foregoing provisions of
this Chapter, parliament has power to make any law for the whole or
any part of the territory of India for implementing any treaty,
agreement or convention with any other Country or Countries or any
decision made at any international conference, Association or other
body.”
62.From a careful reading of Article 253, we make it clear that, until and
unless invoking the law making power, the Parliament enacts any law for
implementing any treaty, agreement or convention, even the conventions of the
international organizations ratified by our Country cannot become a part of this
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Country’s law to be implemented in the Nation. Those conventions of the
various international organizations even those ratified by our Nation will
remain mute ambitious directives enwombed with the Parliament for applying
those principles in making laws in future. Hence, akin to the Directive
Principles of State Policy envisioned in Part IV of our Constitution, all the
International Conventions, whatever, ratified by India would remain spirited
public monumental letters awaiting State action. Until and unless, State dwells
into enacting respective legislations, the Courts cannot embark upon
interpreting fundamental rights in consonance with international conventions or
significant precedents of foreign nations. In such background, now, our task to
interpret the right to strike is limited within the boundaries of the various
provisions of the Constitution of India and the prevailing labor laws of the land.
63.At this juncture, we are inclined to point out the fact that, the various
judgments, which have dealt with the right to strike by the various courts of this
country, should be analyzed from the perspective of Part IV and Part IV – A of
the Constitution of India. The fundamental duties in Part IV-A was inserted by
the Constitution (42nd Amendment) Act, 1976, with effect from 03.01.1977.
Hence, the judgments of the Hon’ble Supreme Court and the various other
Courts, which have dealt with the right to strike can be classified into two,
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namely, those pronounced prior to the 42nd Amendment of the Constitution and
those pronounced after the 42nd Amendment of the Constitution. Following the
verdict of the Constitutional Bench of the Hon’ble Supreme Court in the case of
All Indian Bank Employees Association versus National Industrial Tribunal
and others29, Kameshwar Prashad versus State of Bihar30, time and again the
Hon’ble Supreme Court in various judgments has concluded that the right to
strike can never ever be a fundamental right as guaranteed under Article 19(1)
(c) of the Constitution of India.
64.We cautiously bring on record that even post 1942 Constitutional
Amendment, while interpreting Article 19, with respect to the
workers/employees/labors right to strike and right of collective bargaining not
even in one occasion, Article 19 was read in conjunction with Article 51-A of
the Constitution of India for the critical analysis of the right to strike and right
of collective bargaining, which has been already ratified by the various
international treaties and conventions and by the various other countries.
Though we are satisfied that while interpreting the aspect of right to strike, we
are bound only by the domestic laws and not by the international conventions
or judicial pronouncements/precedents of foreign countries, we are of the
considered view that Article 51-A if read in conjunction with Article 19, the
29 Supra 5
30 Supra 4
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same would evolve a tool for liberal interpretation of the right to strike in the
context of Indian Labor jurisprudence. Even before the 42nd Amendment of the
Constitution, the highest Court of this land has recognized the fundamental
duties, which is vested with the Citizens of India as a consequence of the
fundamental rights enjoyed by them. Fundamental duties are the duties that
citizens owe to the State. For better clarity, Article 51-A is extracted as
follows:-
“51A. Fundamental Duties.
It shall be the duty of every citizens of India –
(a) to abide by the Constitution and respect its ideals and
institutions, the National Flag and the National Anthem;
(b) to cherish and follow the noble ideals which inspired our
national struggle for freedom;
(c) to uphold and protect the sovereignty, unity and integrity of
India;
(d) to defend the country and render national service when
called upon to do so;
(e) to promote harmony and the spirit of common brotherhood
amongst all the people of India transcending religious, linguistic and
regional or sectional diversities; to renounce practices derogatory to
the dignity of women;
(f) to value and preserve the rich heritage of our composite
culture;
(g) to protect and improve the natural environment including
forests, lakes, rivers and wild life, and to have compassion for living
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(h) to develop the scientific temper, humanism and the spirit of
inquiry and reform;
(i) to safeguard public property and to abjure violence;
(j) to strive towards excellence in all spheres of individual and
collective activity so that the nation constantly rises to higher levels
of endeavour and achievement.
(k) who is a parent or guardian to provide opportunities for
education to his child or, as the case may be, ward between the age of
six and fourteen years.”
65.Even before the 42nd Amendment Act was passed by the Government
in 1976, the Hon’ble Supreme Court in the case of Chandra Bhavan Boarding
and Lodging, Bangalore v. State of Mysore31 has upheld that the State has
power to impose duties on its citizens and the relevant portion of the same is
extracted as follows:-
“Freedom of trade does not mean freedom to exploit. The
provisions of the Constitution are not erected as the barriers to
progress. They provide a plan for orderly progress towards the
social order contemplated by the preamble to the Constitution. They
do not permit any kind of slavery, social, economic or political. It is
a fallacy to think that under our Constitution there are only rights
and no duties. While rights conferred under Part III are
fundamental, the directives given under Part IV are fundamental in
31 (1969) 3 SCC 84
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the governance of the country. We see no conflict on the whole
between the provisions contained in Part III and Part IV. They are
complementary and supplementary to each other. The provisions of
Part IV enable the legislatures and the Government to impose
various duties on the citizens. The provisions therein are
deliberately made elastic because the duties to be imposed on the
citizens depend on the extent to which the directive principles are
implemented. The mandate of the Constitution is to build a welfare,
society in which justice social, economical and political shall
inform all institutions of our national life. The hopes and
aspirations aroused by the Constitution will be belied if the
minimum needs of the lowest of our citizens are not met.”
66.The Hon’ble Supreme Court in the case of M.C.Mehta and another v.
Union of India and Others32 has dealt with fundamental rights and the relevant
portion is extracted as follows:-
“Law has to grow in order to satisfy the needs of the fast
changing society and keep abrest with the economic developments
taking place in the Country. As new situations arise the law has to
be evolved in order to meet the challenge of such new situations.
Law cannot afford to remain static. We have to evolve new
principles and lay down new norms which would adequately deal
with the new problems which arise in a highly industrialised
economy.”32 (1987) 1 SCC 395
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67.In yet another case dealt with by the Hon’ble Supreme Court post 42nd
Constitutional Amendment, in the case of M.C.Mehta versus Kamal Nath and
and Others33 has dealt with fundamental duties and the relevant portion is
extracted as follows:-
“4.Mr.M.C.Mehta, who has been pursuing this case with his
usual vigour and vehemence, has contended that if a person
disturbs the ecological balance and tinkers with the natural
conditions of rivers, forests, air and water, which are the gifts of
nature, he would be guilt of violating not only the fundamental
rights, guaranteed under Article 21 of the Constitution, but also be
violating the fundamental duties to protect the environment under
Article 51-A(g) which provides that it shall be the duty of every
citizen to protect and improve the natural environment including
forests, lakes, rivers and wildlife and to show compassion for living
creatures.”
68.The relevant portion with respect to fundamental duties in the case of
Javed and Others versus State of Haryana and Others34 dealt with by the
Hon’ble Supreme Court is extracted as follows:-
“Fundamental rights are not to be read in isolation. They have
to be read along with the Chapter on Directive Principles of State
Policy and the Fundamental Duties enshrined in Article 51A.”33 (2000) 6 SCC 213
34 Writ Petition (Civil) No.302 of 2001
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69.In the case of Ranganath Mishra versus Union of India and Others35
the Hon’ble Supreme Court has dealt with fundamental duties and the relevant
portion is extracted as follows:-
“1.A letter written by the petitioner herein to the Chief Justice
of India requesting this Court to issue necessary directions of the
State to educate its citizen in the matter of fundamental duties so that
a right balance may emerge between rights and duties, was treated
as a writ petition.
3. When the matter was taken up for hearing, the learned
amicus curiae brought to our notice the report of the National
Commission to Review the Working of the Constitution wherein a
report made by a committee commonly known as “Justice J.S. Verma
Committee on operationalization of fundamental duties of citizens
has been accepted and a strong suggestion has been made for their
early implementation. The Commission, inter alia, recommends:
“3.40.2. Education is not confined only to the time spent in
schools and colleges. Education begins at birth in the subconscious
and continues till death. Anyone who says that he has nothing more
to learn is already brain-dead. It follows that the influences that play
on a child at home are of great importance. Parents should
understand that education begins at home, the examples they set, the
environment of enlightenment and tolerance that is necessary to
produce good citizens cannot be subcontracted to formal schooling,
important though this is. Schemes should, therefore, be framed that35 (2003) 7 SCC 133
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W.A(MD)No.75 of 2019include parents in social activities that have as their objective the
country’s age-old traditions, its welcome to the persecuted of every
faith, its virtues of tolerance of and respect for all religions and a
certain pride in belonging to this land and in being considered as
Indian. The highest office in our democracy is the office of citizen;
this is not only a platitude, it must translate into reality. The
distinction is not illusory. This country has given far too much
Indulgence to an attitude of mind that acts on the question what is
there in it for me? Education and the process of inculcating
unselfishness and a sense of obligation to one’s fellowmen should
inspire the question where does my duty lie? The transformation has
the potential to make our nation strong, invincible and able to
command the respect of the world.
3.40.3. (1) The Commission recommends that the first and
foremost step required by the Union and State Governments is to
sensitise the people and to create general awareness of the
provisions of fundamental duties amongst the citizens on the lines
recommended by the Justice Verma Committee on the subject.
Consideration should be given to the ways and means by which
fundamental duties could be popularized and made effective; (ii)
right to freedom of religion and other freedoms must be jealously
guarded and rights of minorities and fellow citizens respected; (iii)
reform of the whole process of education is an immediate.
4.In its recommendations, the Justice Verma Committee in the
chapter entitled “Salient Recommendations” under the heading
“Operationalization Overview” observes as under:
“Duties are observed by individuals as a result of dictates of
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influence of role models, or on account of punitive provisions of law.
It may be necessary to enact suitable legislation wherever necessary
to require obedience of obligations by the citizens. If the existing
laws are inadequate to enforce the needed discipline, the legislative
vacuum needs to be filled. If legislation and judicial directions are
available and still there are violations of fundamental duties by the
citizens, this would call for other strategies for making them
operational.
The desired enforceability can be better achieved by providing not
merely for legal sanctions but also combining it with social sanctions
and to facilitate the performance of the task through exemplar, role
models. The element of compulsion in legal sanction when combined
with the natural urge for obedience of the norms to attract social
approbation would make the citizens willing participants in the
exercise. The real task, therefore, is to devise methods which are a
combination of these aspects to ensure a ready acceptance of the
programme by the general citizenry and the youth, in particular.
The Committee is strongly of the view that the significance of dignity
of the individual in all its facets and the objective of overall
development of the personality of the individual must be emphasized
in the curriculum at all the stages of education. This requires
consciousness of citizenship values which are a combination of
rights and duties, and together give rise to social responsibilities.
Methods must be devised to operationalize this concept as a
constitutional value in our educational curriculum and in co-
curricular activities, in schools and colleges.”
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5. Various recommendations have been made in the said report as
regards the mode and manner to be adopted for generating
awareness and consciousness of the citizens towards their
fundamental duties.
6. Keeping in view the fact that the Government of India would take
notice of the recommendations of the aforesaid
Commission/Committee, we agree with Shri K. Parasaran that the
same may be considered in their right earnestness by the Central
Government and we accordingly direct it to do spas also to take
appropriate steps for their implementation as expeditiously as
possible.”
70.In Ramlila Maidan Incident versus Home Secretary36 the Hon’ble
Supreme Court has relied upon Article 51-A and the relevant portion is
extracted as follows:-
“2. It appears justified here to mention the First Amendment to
the United States (US) Constitution, a bellwether in the pursuit of
expanding the horizon of civil liberties. This Amendment provides for
the freedom of speech of press in the American Bill of Rights. This
Amendment added new dimensions to this right to freedom and
purportedly, without any limitations. The expressions used in
wording the Amendment have a wide magnitude and are capable of
liberal construction. It reads as under:
Congress shall make no law respecting an establishment of
36 (2012) 2 MLJ 32 (SC)
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freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress
of grievances.
3. The effect of use of these expressions, in particular, was that
the freedom of speech of press was considered absolute and free from
any restrictions whatsoever. Shortly thereafter, as a result of
widening of the power of judicial review, the US Supreme Court
preferred to test each case on the touchstone of the rule of ‘clear-
and-present- danger. However, application of this rule was unable to
withstand the pace of development of law and, therefore, through its
judicial pronouncements, the US Supreme Court applied the doctrine
of ‘balancing of interests’. The cases relating to speech did not simply
involve the rights of the offending speaker but typically they
presented a clash of several rights or a conflict between individual
rights and necessary functions of the Government. Justice
Frankfurter often applied the above-mentioned Balancing Formula
and concluded that “while the Court has emphasized the importance
of ‘free speech’, it has recognized that free speech is not in itself a
touchstone. The Constitution is not unmindful of other important
interests, such as public order, if free expression of ideas is not found
to be the overbalancing considerations.
6…..The Indian Constitution spells out the right to freedom of
speech and expression under Article 19(1)(a). It also provides the
right to assemble peacefully and without arms to every citizen of the
country under Article 19(1)(a). However, these rights are not free
from any restrictions and are not absolute in their terms and
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application. Articles 19(2) and 19(1)(a), respectively, control the
freedoms available to a citizen. Article 19(2) empowers the State to
impose reasonable restrictions on exercise of the right to freedom of
speech and expression in the interest of the factors stated in the said
clause. Similarly, Article 19(3) enables the State to make any law
imposing reasonable restrictions on the exercise of the right
conferred, again in the interest of the factors stated therein.
19. Artide 51A deals with the fundamental duties of the
citizens. It, inter alia, postulates that it shall be the duty of every
citizen of India to abide by the Constitution, to promote harmony and
the spirit of common brotherhood, to safeguard public property and
to abjure violence.
20. Thus, a common thread runs through Parts III, IV and IVA
of the Constitution of India. One Part enumerates the fundamental
rights, the second declares the fundamental principles of governance
and the third lays down the fundamental duties of the citizens. While
interpreting any of these provisions, it shall always be advisable to
examine the scope and impact of such interpretation on all the three
constitutional aspects emerging from these parts. It is necessary to be
clear about the meaning of the word “fundamental” as used in the
expression “fundamental in the governance of the State to describe
the directive principles which have not legally been made
enforceable.”
71.The introduction of Article 51-A enumerating the various
“fundamental duties” of the citizens of India, by the 42nd Amendment Act, has
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paved way to interpret the Constitution facilitating the Citizens of India to
exercise their fundamental duties, so as to kindle the uniqueness of the
indigenous democratic system to perfection. While the makers of our
Constitution having rendered the fundamental rights as enforceable and the
Directive Principles of State Policy enumerated under Part IV of the
Constitution as unenforceable, as far as Part IV-A, which provides for
fundamental duties is silent as to whether these duties are enforceable or not in
a Court of law. In the absence of a specific bar as to its enforceability as
enumerated in the Constitution of India, the positive presumption would be that
the fundamental duties are enforceable. If we view the right to strike through
the prism of fundamental duties enumerated under Article 51-A read with
Articles 19(1)(a), 19(1)(b) and 19(1)(c) of the Constitution of India, the
spectrum of legal principles, which refracts encourages us to give a liberal
interpretation elevating the right to strike from one as statutory right to that of
fundamental right. Article 51-A(b) mandates that it shall be the duty of every
citizen of India to cherish and follow the noble ideals which inspired our
national struggle for freedom: Article 19(1)(a) proclaims the right to freedom
of speech and expression, Article 19(1)(b) the right to assemble peacefully and
without arms and Article 19(1)(c) to form associations or unions, however,
subject to the restrictions enumerated in Articles 19(3) and 19(4).
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72.The fundamental duty to cherish and follow the noble ideals, which
inspired our national struggle for freedom would create rights in favour of
citizens who may benefit from the observance of the said duty. The term
“strike” is the quintessence of our national struggle for freedom. The
democratic system of this Country has evolved from the decision of the people
of this Country to constitute a sovereign, socialist, secular, democratic,
republic, exclusively for the purpose of securing to all its citizens justice,
liberty, equality and fraternity. The making and carving of Indian democracy
has a checkered history of various strikes spanning over a prolonged period of
time led by the various National leaders of this proud Nation. The first of all its
kind was in 1908, when a strike was organized at the European Coral Mill in
Thoothukudi, Tamil Nadu, by the renowned National leader V.O.Chidambaram
Pillai, Subramanya Shiva and Padmanabha Iyengar digladiating against the
poor working condition of 1695 workers, of whom 59 percent were aged 14 to
16 in the said Coral Mills owned by the British. Demanding reduction in the
number of working hours and an increase in pay, the leaders augmented the
spirit of strike among the voiceless workers in support of labour welfare
quickly gaining the sympathy and support of the people of Thoothukudi.
Though the agitation on 12th March 1908, resulted in remanding all the three
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leaders to the District Jail, the fury of the people of Tirunelveli resulted in an
uncontrollable riot in the locality, compelling the British administration to heed
to the demands of the striking workers.
73.By the same time, over 2000 people were struck in Transvaal, South
Africa, defying the “Black Act”, that is, “the Asiatic Law Amendment
ordinates”, a law passed in South Africa in 1906, to limit the number of Indians
entering the Transvaal. On 10th January 1908, Mohandas Karamchand Gandhi,
an Attorney in Johannesburg appeared before the Magistrates Court for defying
the said Black Act and for disobeying an order to leave Transvaal within 48
hours. Thousands of people who defied the Black Act, including MK Gandhi
were sent to prison and some of them repeatedly. The continuous struggle,
strike and satyagraha resulted in the formation of the Union of South Africa,
following which, the satyagraha was suspended in 1911, hoping for a
negotiable settlement, however, negotiations failed. Adding oil to fire, the Cape
Supreme Court, South Africa mandated that all marriages not performed
according to Christian rights were invalid, making the children born out of
Indian marriages illegitimate depriving them of inheritance. This ultimately
resulted in resuming satyagraha in September 1913, both in Natal and Transvaal
with a stupendous participation of men, women and children. Gandhiji led the
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great march of 2200 workers along with their families from Newcastle to the
Transvaal border resulting in imprisonment of thousands of workers with
family. Finally, the British were forced to sign an agreement with Gandhiji
fulfilling all the demands of the satyagrahis.
74.After Gandhiji arrived in India in July 1914, the spirit of strike and
satyagraha reached its ultimatum in the freedom struggle of India. Gandhiji’s
first satyagraha in British India is the Chambaran satyagraha. The Chambaran
Satyagraha Movement in 1917 was the biggest revolt against the British
colonial authorities, forcing the farmers to grow indigo instead of food crops.
Gandhiji’s leadership inculcated the fighting spirit of the voiceless peasants in
the Chambaran district of Bihar. Gandhiji’s relentless participation in the
Chambaran Movement compelled the British planters eventually meet the
farmers demand resulting in cancellation of revenue hikes and collection until
the famine ended. Following the Chambaran satyagraha, Gandhiji led the
famous Ahamdabad Mill strike, which was the biggest civil disobedience
movement during that period of time, in which Gandhiji in the form of hunger
strike confronted the British, which resulted in a 35 percent wage hike for the
workers. The Rowlatt Act, officially known as the Anarchical and
Revolutionary Crimes Act, 1919, curtailing civil liberties was opposed by
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Gandhiji, declaring the same as that which reflected the distrust of common
man, which compelled Gandhiji and his supporters to form the satyagraha
sabha in Bombay during March 1919 to revolt and strike against the Rowlatt
Act. The situations which emanated from the enactment of Rowlatt Act led to
the non-cooperation movement during 1920 to 1922, as led by Mahatma
Gandhi against the British rule in India.
75.Quoting Leo Tolstoy’s letter in reply to one from the editor of Free
Hindustan, Mahatma Gandhiji lamented, “if we do not want the English in
India, we must pay the price. Tolstoy indicates it. Do not resist evil, but also do
not yourself participate in evil – in the violent deeds of the administration of the
law courts, the collection of taxes and, what is more important, of the soldiers,
and no one in the world will enslave you, “passionately”, declares the sage of
Yasnaya Polyana. Who can question the truth of what he says in the following:
“a commercial company enslaved a nation comprising 200
millions. Tell this to a man free from superstition and he will fail to
grasp what these words mean. What does it mean that 30,000
people, not athletes, but rather ordinary people, have enslaved 200
millions of vigorous, clever, capable, freedom – loving people? Do
not the figures make it clear that not the English, but the Indians,
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76.On the clarion call of Mahatma Gandhiji to this enslaved nation, lakhs
and lakhs of men, women and children plunged into the freedom movement
armed with the tool of the most powerful strike, named, Satyagraha, have had
forcefully reaped the fruits of strike, that is, the free India, independent from the
British. Ironically, in independent India, the spirits of strike, that is, the right to
strike which was watered, showered, nurtured and grown by the father of this
Nation is time and again held not to be the fundamental right of the citizens of
India.
77.The Martin Luther King, Jr., in his article, “My trip to the land of
Gandhi” published in Ebony magazine about his trip to India during July 1,
1959 to July 31, 1959, remarked as follows:-
“The trip had a great impact upon me personally. It was
wonderful to be in Gandhi’s land, to talk with his son, his grandsons,
his cousin and other relatives: to share the reminiscences of his close
comrades: to visit his ashram, to see the countless memorials for him
and finally, to lay a wreath on his entombed ashes at Rajghat. I left
India more convinced than ever before that non-violent resistance is
the most potent weapon available to oppressed people in their struggle
for freedom. It was a marvellous thing to see the amazing results of a
non-violent campaign. The aftermath of hatred and bitterness that
usually follows a violent campaign was found nowhere in India. Today,
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acquiescence leads to moral and spiritual suicide. The way of violence
leads to bitterness in the survivors and brutality in the destroyers. But,
the way of non-violence leads to redemption and the creation of the
beloved community.
The spirit of Gandhi is very much alive in India today. Some of
his disciples have misgivings about this when they remember the
trauma of the fight for national independence and when they look
around and find nobody today who comes near the stature of the
Mahatma………
India can never forget Gandhi. For example, the Gandhi
Memorial Trust, (also known as Gandhi’s Marak Nidhi), collected
some 130 million dollars soon after the death of the Father of the
Nation. This was perhaps the largest, spontaneous, mass monetary
contribution to the memory of a single individual in the history of the
World. This fund, along with support from the Government and other
institutions, is resulting in the spread and development of Gandhian
philosophy, the implementing of his constructive program, the erection
of libraries and the publication of works by and about the life and
times of Gandhi. Posterity, could not escape him even if it tried. By all
standards of measurement, he is one of the half dozen greatest men in
World history.”
78.It is needless to state that our Father of Nation, Mahatma Gandhi ji as
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the crusader against the colonial imperialism of the British, without arm
twisting and without rasing even his fingers against the British, adorned the
non-violent weapon called Satyagraha to oust the British out of our motherland.
And the foremost fundamental duty of every Indian is to cherish and to follow
the noble ideals of satyagraha, which inspired our national struggle for
freedom. Exhuming the historical ideals which inspired our national struggle
for freedom, time and again, our Courts have resorted to a speech-restrictive,
narrow interpretation of Article 19 of the Constitution of India, concluding that
the right to strike is not a fundamental right, rather the said right flows from the
statutory labour laws and the same is a sheer statutory right. We are duty bound
to point out that in all those judgments, which have reduced the right to strike
as a sheer statutory right is the result of a narrow interpretation of Article 19
without reading the same in conjunction with Article 51-A of the Constitution
of India.
VI. Epilogue:-
79.In a democratic Country, peaceful demonstrations and strikes are tools
of labour jurisprudence. No doubt, right to strike is a part of freedom of
Association and therefore, the same is protected under Article 19 read with
Article 51-A(b) of the Constitution of India. Right to strike is an inevitable
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corollary of the right to freedom of Association. Liberty in our Constitution is
the freedom of the Indian citizens to act without unreasonable restrictions and
the same includes the right of thought, speech and expression, right to assemble
peacefully and without arms, right to form associations or unions, etc. In a
democratic country, liberty is the general rule and restraint the exception. Thus,
prohibiting legal strikes and demonstrations organized following the mandates
of Chapter V of the Industrial Disputes Act, 1947, even in any essential services
listed by the State would be protected under Article 19(a)(b)(c) read with
Article 51-A(b) of the Constitution of India. On the enactment of the Industrial
Disputes Act, 1947, strikes have ostensibly become legal within the parameters
of Chapter V of the aforesaid Act. The fundamental duties being a part of the
concept of the “welfare State”, Article 51-A(b) entails the corresponding right
to form associations or unions to the citizens of India and the right to assemble
peacefully without arms with freedom of speech and expression.
80.In the light of the foregoing analysis, we are more fully satisfied that
we have the discretionary power to determine the constitutionality of the right
to strike in the light of Chapter III, Chapter IV and Chapter IV-A of the
Constitution of India. A harmonious interpretation of Article 19(a)(b)(c) in
conjunction with Article 41, 42, 43, 43-A and 51-A(b) would make it clear that
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the fundamental duty under Article 51-A(b) gives every worker/employee with
a right to legal strike which also imposes a collective duty on the state to
facilitate the citizens to discharge the obligation of right to strike against any
unreasonable/illegal stand of the employer.
81.Hence, we have no hesitation to conclude that the fundamental duty
mentioned in Article 51-A(b) may be relied upon by any citizen of India to
compel the officers of the State to acknowledge the duty of the
employees/workers to strike in contributing towards the goal of the
Constitution of India in establishing a welfare state and the said duty springs up
from their fundamental right to assemble without arms with freedom of speech
and expression, i.e., their right to strike, which is nothing but a corollary to the
right to form associations or unions, guaranteed under Article 19(c) of the
Constitution of India. In the instant case, when the strike resorted to by the
workers of Aringar Anna Peravai has been treated as a legal strike and the days
of strike has been credited and accounted with the available currency of casual
leave, the respondent Corporation ought to have extended the same benefit to
the employees of petitioner Union as well. Holding that the right to strike
resorted to by the workers of the petitioner organisation was one which was
called upon as provided under Chapter V of the Industrial Disputes Act, 1947,
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we have no hesitation to conclude that the same is protected under Article 19(1)
(a), 19(1)(b) and 19(1)(c) read with Articles 41, 42, 43, 43-A and 51-A(b) of the
Constitution of India. In fine, we mindfully conclude that, the right to strike
within the parameters of Chapter V of the Industrial Disputes Act, 1947, is a
fundamental right guaranteed by the Constitution of India.
82.Accordingly, the order of the learned Single Judge is set aside and the
Writ Appeal is allowed. There shall be no order as to costs. Consequently,
miscellaneous petition is closed.
(N.S.S., J.) (L.V.G., J.)
10.06.2024
Index : Yes / No
Neutral Citation : Yes / No
Internet : Yes / No
Mrn
To
Tamil Nadu State Transport Corporation (Kumbakonam) Ltd.,
Trichy – Region,
Rep. By its Managing Director,
Trichy.
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N.SESHASAYEE, J.
and
L.VICTORIA GOWRI, J.
MRN
Judgment MADE IN
W.A(MD)No.75 of 2019
10.06.2024
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