Page 186 - DMGT516_LABOUR_LEGISLATIONS

Unit 7: Dispute Resolution and Industrial Harmony

of views of the statutory legislation challenged. However in a case like this, if thousands Notes
of employees are directed to approach the administrative tribunal the tribunal would not
be in a position to render justice to the cause. Hence, as stated earlier because of the very
exceptional circumstance that arose in the present case, there was no justifiable reason for
the High Court not to entertain the petition on the ground of alternative remedy provided
under the statute. Now coming to the question of the right to strike whether fundamental
statutory of equitable/moral right, in our view no such right exists with the government
employees.
(A) There is no Fundamental Right to go on strike. Law on this subject is well settled and
it has been repeatedly held by this court that the employees have no Fundamental
Right to resort to strike. In Kameshwar Prasad and Other vs. State of Bihar and Another
(1962) Suppl. 3 SCR 369, this Court held that the rule in so far as it prohibited strikes
was valid since there is no fundamental right to resort to strike. In Radhy Shyam
Sharma vs. The Post Master General, Central Circle, Nagpur (1964) 7 SCR 403, the
employees of the Post and Telegraph department of the Government went on strike
th
from the midnight of 11 July 1960 throughout India and the petitioner was on duty
that day. He went on imposing upon him. That was challenged before this court. In
that contest, it was contended that Sections 3,4 and 5 of the Essential Services
Maintenance Fundamental Rights guaranteed by Clauses (a) and of (b) of Article 19
(1) Constitution. The Court considered the ordinance and held that Sections 3, 4, and
5 of the said ordinance did not violate the fundamental right enshrined in Article
19(1) and (b) of the Constitution. The court further held that a perusal of Article 19(1)
(a) shows that there is no fundamental right to strike and all that the ordinance
provided was with respect to any illegal strike. For this purpose the Court relied
upon the earlier decision in All India bank Employees' Association vs. National Industrial
Tribunal and Others (1962) 3 SCR 269, wherein the Court specifically held that even
very liberal interpretation of sub-clause (c) of clause (1) Article 19 cannot lead to the
conclusion that trade unions have guaranteed right to an effective collective
bargaining or to strike either as part of collective bargaining or otherwise. In Ex-
Capt. Harish Uppal vs. Union of India and Another (2003) 2 SCC 45, the Court held that
lawyers have no right to go on strike or give a boycott and even they cannot go on
token strike. The Court specifically observed that for just or unjust cause, strike
cannot be justified in the present day situation. A strike as a weapon, does more
harm than justice. The sufferer is society - the public at large. In Communist Party of
India (M) vs. Bharat Kumar and other (1991) 1 SCC 201, a three judge bench of this court
approved the full bench decision of the Kerala High Court by holding thus:
There cannot be any doubt that the Fundamental Rights of the people as a whole
cannot be subservient to the claim of fundamental right of an individual or only a
section of the people. It is on the basis of this distinction that the High Court has
rightly concluded that there cannot be any right to call or concluded or enforce a
'bandh' which interferes with the exercise of the fundamental freedoms of other
citizens in additions to causing national loss in many ways. We may also add that
the reasoning given by the High Court particularly those in paragraphs 12,13 and 17
for the ultimate conclusion and directions in paragraph 18 is correct with which we
are in agreement. The relevant paragraph 17 of the Kerala High Court judgment
reads as under:
17. Political party or organization can claim that it is entitled to paralyze the industry
and commerce in the entire State or Nation and is entitled to prevent the citizens not
in sympathy with its viewpoints, from exercising their Fundamental Rights or from
performing their duties for their own benefit or for the benefit of the State or the
Contd...

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