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Notice of change, strikes and lock-outs

Labour and Industrial Law I · Unit II · Topic 4 of 14 · 8 min read

When an employer must give notice before changing conditions of service, what counts as a strike or lock-out, the notice and other conditions that now apply to every industrial establishment, illegal strikes and their penalties, and why there is no fundamental right to strike.

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On this page
  1. 1. Notice of change (Chapter V)
  2. 2. Definitions
  3. 3. Prohibition of strikes and lock-outs: section 62
  4. 4. Illegal strikes and lock-outs: sections 63 and 64
  5. 5. Consequences beyond the penal sections
  6. 6. Is there a right to strike?
  7. 7. Problem
  8. How this is examined
Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The headline change. Under the Industrial Disputes Act a strike notice was needed only in a public utility service (old section 22). Under section 62 of the IR Code, notice is needed before a strike or lock-out in every industrial establishment, and “strike” now includes mass casual leave by half or more of the workers. Most answers on this topic will be judged on whether you know that.

1. Notice of change (Chapter V)

Section 40 (old section 9A): an employer who proposes to change any condition of service listed in the Third Schedule (old Fourth Schedule) must not do so (i) without giving the affected workers notice of the nature of the change in the prescribed manner, or (ii) within twenty-one days of the notice. The Third Schedule lists: wages; provident fund and pension contributions; allowances; hours of work and rest intervals; leave and holidays; shift working other than under standing orders; classification by grades; withdrawal of a customary concession or privilege; new rules of discipline; rationalisation likely to lead to retrenchment; and increase or reduction (other than casual) in the number of persons employed.

No notice is needed where the change is under a settlement or award, or under government orders; for workers governed by the Fundamental Rules, Civil Services Rules, Railway Establishment Code and similar rules; or, in an emergent situation, for a change of shift made in consultation with the Grievance Redressal Committee. The Government may exempt a class of establishments if applying the section would cause serious repercussions on the industry (section 41).

Separately, while a dispute is pending before a conciliation officer, arbitrator or Tribunal, the employer may not alter conditions of service to the prejudice of workers concerned in the dispute, or punish them for misconduct connected with it, without the authority's written permission (section 90; old section 33). A worker aggrieved may complain under section 91 (old section 33A).

2. Definitions

Strike — section 2(zk) (old section 2(q)): 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 employed to continue to work or to accept employment, and includes the concerted casual leave on a given day by fifty per cent or more workers employed in an industry. Three elements: (i) plurality of workers, (ii) cessation or refusal of work, (iii) concert or common understanding. A go-slow is not a strike (there is no cessation), but it is an unfair labour practice by workers (Second Schedule, Part II, item 5).

Lock-out — section 2(u) (old section 2(l)): the temporary closing of a place of employment, or suspension of work, or refusal by an employer to continue to employ any number of persons employed by him. It is the employer's counterpart of a strike. A lock-out is temporary; closure (section 2(h)) is the permanent closing down of a place of employment.

3. Prohibition of strikes and lock-outs: section 62

No person employed in an industrial establishment shall go on strike in breach of contract:

Section 62(2) places identical restrictions on an employer declaring a lock-out. Notice is not needed where a strike or lock-out already exists, but the employer must intimate it to the specified authority that day (section 62(3)). The employer must report notices received or given to the Government and the conciliation officer within five days (section 62(6)). Because a strike notice starts conciliation (sections 53(1) and 60(1)), and a strike is barred during conciliation and seven days after, the Code builds in a cooling-off period in every establishment.

4. Illegal strikes and lock-outs: sections 63 and 64

Penalties — section 86 (old sections 26 to 28):

Advising or instigating an illegal strike is also an unfair labour practice by workers, and proposing or continuing an illegal lock-out one by employers (Second Schedule). A worker who refuses to join an illegal strike cannot be expelled or penalised by his union (section 93).

5. Consequences beyond the penal sections

6. Is there a right to strike?

The right to strike is a statutory right hedged by conditions, not a fundamental right.

The Code's approach matches this: section 62 does not abolish the right but conditions it on notice and on the absence of pending proceedings or a binding settlement.

7. Problem

In a garment factory with 400 workers, 260 workers apply for casual leave on the same day to protest against a delay in bonus. No notice of strike has been given. The employer treats it as an illegal strike and deducts a day's wages. Advise the workers.

Issue. Whether mass casual leave is a strike, whether it is illegal, and whether wages can be cut.

Law. Section 2(zk) includes concerted casual leave on a given day by fifty per cent or more workers. Section 62(1) requires sixty days' notice and a fourteen-day wait in every industrial establishment. Section 63(1) makes a strike in breach of section 62 illegal; section 86(13) punishes participants. Syndicate Bank v. Umesh Nayak on wages.

Application. 260 out of 400 is 65 per cent, above the fifty per cent line, and the leave was taken in concert for a common demand, so it is a strike. No notice was given, so it is illegal. Under the old Act this would not have been illegal for want of notice in a garment factory, since notice was needed only in public utility services; the Code changes the answer. An illegal strike cannot be justified for wage purposes, so the deduction is lawful. Individual workers face possible prosecution under section 86(13) (only on a complaint by or under the authority of the Government, section 87) and disciplinary action, which must still be proportionate.

Conclusion. The workers have no remedy against the wage cut. They should raise the bonus demand through conciliation and, if they wish to strike, give notice under section 62(1).

How this is examined

As an essay: “Discuss the provisions relating to strikes and lock-outs. When is a strike illegal?” or “Is the right to strike a fundamental right?” Cover the definitions, section 62, section 63, penalties, and the three cases. Short notes: notice of change, lock-out, go-slow, illegal strike. The mass casual leave problem is the most likely problem on this topic after the Code.

Now try the real questions: Labour and Industrial Law I past question papers.