Page 181 - DMGT516_LABOUR_LEGISLATIONS

Labour Legislations

Notes withhold their labour. Consequently they cannot expect to be paid (Bank of India vs. T.S.
Kelawala, 1990 I CLR 748).

The employer is not liable to pay either full day salary or even the pro rata salary for the
hours of work that the employees remained in the work place without doing any work. It
is not the mere presence of the workmen at the place of work, but the work that they do
according to the terms of the contract which contributes to the fulfilment of the contract of
employment and for which they are entitled to be paid [Bank of India vs. T.S. Kelawala, 1990
II LLJ 39 (SC)].
The effect of an illegal strike on the demand of the workmen to wages or compensation
and their liability to punishment, according to one view is based on the strike being
justified. Mere illegality of the strike does not end the matter. It means if the strike is
illegal, and at the same time unjustified, the workmen have no claim to wages and must
also be punished, if it is justified, they have a right to claim wages. This view is based on
a Full Bench decision of the Labour Appellate Tribunal in a reference on question "whether
the employer can dismiss a workman for joining a strike which is not illegal but unjustified".
It was held in this case that the right to strike is recognised by implication. For various
reasons a strike may be unjustified, for example:

(1) demands may be unreasonably high,
(2) demands may be made with extraneous motives,
(3) steps taken by employer to redress the alleged grievances through negotiation or
conciliation.
The strike does not, by itself put an end to the employer-employee relationship, nor can
an employer discharge a workman for mere participation in a strike which is not illegal,
or in an illegal strike where there was no appropriate provision in the Standing Orders.
Illegal Strike Amount to Misconduct
Going on illegal strike, is certainly "misconduct". The punishment for misconduct is
dismissal, or, in the alternative suspension, for a period not exceeding four days. If the
management had, without any regard to what happened, in respect of the first strike,
imposed punishment under clause 22 of the Standing Orders in respect of an illegal strike,
which is "misconduct" after a fair enquiry, the punishment, meted out being a managerial
function, would not be normally interfered with also of the view that the punishment is
unconscionable and unjustified. It is on these grounds that the Labour Court has interfered
with the order or dismissal, passed by the management.
In Gujarat Steel Tube case S.C. (1980), the S.C. rejected the theory of community guilt and
collective punishment and ruled that no worker will be dismissed save on the proof of his
individual delinquency.
Strike and Other Forms of Strikes Like; Bandh, Picketing, Gherao, etc.

In Bharat Union Palicha vs. State of Kerala the Full Bench of Kerala High Court held bundh to
be illegal, unconstitutional and violative of Articles 19 and 21 of the Constitution. This
was also upheld by Supreme Court (1997).

Strike vs. Stoppage of work: Strike under ID Act unlike Bombay Industrial Relations Act
need not be related with pending disputes; there is a provision for work stoppage in BIR
Act. A concept of stoppage is wider than strike.
Right of employer to compensation for loss caused by illegal strike: In Rohtas Industries v.
its Union, the Supreme Court held that the remedy for illegal strike has to be sought
Contd...

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