The Significance Of Right To Wages During Strikes And Lockouts

This article has been written by Siddharth Kohli, Law Student at Jindal Global Law School.

Importance and Constitutionality of strikes in India

Industrial disputes arise because of dissatisfaction and frustrations in the workplace which take many forms like inadequate wage structures, bad working conditions, unstable employment, etc. Strikes are considered as an integral part of the collective bargaining process used by the workers as a recognised weapon for settling disputes with the management and forcing them to accept their demands. With different types of strikes being carried out by the workers like 'go slow', 'pen down', 'stay in' and others, the right to strike has evolved overtime and its constitutionality has often been questioned in India. In T.K Rangarajan v. Govt. of Tamil Nadu (2003)[i] the Hon'ble Supreme Court held that there is no Fundamental Right to go on strike. The interpretation by the court largely depended on the fact that strikes are frequently misused and lead to improper administration halting the society's production.[ii] However, given that strikes are considered a labour's ultimate weapon against any prejudice faced at the workplace, it is an inherent right of every worker and hence, carries a great deal of importance. The employers also possess a counter weapon often used against the actions of the employees in the form of lock-outs, which gives similar powers to the employers for collective bargaining and forcing the employees to, in turn, accept their demands.[iii] During both situations of strikes and lock-outs, there is a big concern of workers losing out on their much-needed wages. In a country like India, where many workers are dependant on earning daily wages to satisfy basic necessities of life, the significance of losing out on wages needs to be seen as a paramount concern.

According to international standards, right to strike is given constitutional recognition under instruments like International Covenant of Economic, Social and Cultural Rights (ICESCR) 1966 that ensures everyone has right to enjoy fair working conditions and right to strike can be exercised in conformity with laws of the specific country.[iv] The ILO gives importance to the freedom of association and protection of the right to form organisations which are used as tools for collective bargaining by the workers.[v] In India, Article 51 (c) and 37 of the Constitution requires to comply with treaty obligations and international norms. However, the right to strike is still not given constitutional recognition and the courts have often used the same as a shield to validate restrictions on right to strike.[vi] The right to "peaceful demonstrations" has been recognised in India under Article 19 of the Constitution and one would assume a strike, in a given situation can also be a "peaceful demonstration", then why are strikes still not given Constitutional recognition.[vii] India needs to acknowledge the right as a constitutional right rather than just a legal remedy to ensure conformity with international laws and give further protection to the workers. The requirement of such a step is highlighted while considering the necessity of wages during strikes and lock-outs and how the right to wages has been interpreted by the courts in India, leading to workers often losing out due to lack of proper protection.

The contingency of wages on the Legality and Justification of Strikes and Lock-outs

All strikes which take place in contravention of section 10 (3), 10A (4A), 22 and 23 of the Industrial Disputes Act, 1947 are considered illegal and liable for punishment under section 26. One such consequence of carrying out illegal strikes is the denial of wages to the workers that are involved. The issue of the right to wages during strikes has been under constant scrutiny by the Judiciary and has resulted in differing opinions over the years that emanate confusion. In the case of Bank of India v. T.S Kelawala (1990)[viii] the Hon'ble Supreme Court came to the conclusion that the employees are not entitled to wages during the period of strike, without even evaluating whether the strike was legal or illegal. The inquiry about justification was not raised at all in this case and hence the question of whether there is a right to wages during strikes if it was justified, was not given consideration. In another case of Syndicate Bank v. K. Umesh Nayak (1995)[ix] the constitution bench of the Supreme Court came to a differing view that employees are entitled to wages during strikes if it can be established that the strike was "legal as well as justified". While legality depends on whether there has been a violation of the statutory provisions, justification depends on factors like fairness, reasonableness, causes, urgency and nature of demands, etc which can vary in different cases.[x]

Similar to strikes the employers have the option of a lock-out which is considered as the antithesis of a strike. The employer would be liable to pay wages to their employees in case the dual condition of legality and justification is not fulfilled for a lock-out.[xi] There can be situations in which an unjustified or illegal strike is followed by the employer with a lock-out, which turns into an unjustified lock-out as it continues for an unreasonably long duration. In such cases, the Labour Tribunals have to apply their minds to determine the question of apportionment of the blame on the employer and the workmen. Accordingly, the workmen will get wages after such evaluation and the quantum of wages will be decided through their conduct at the relevant time. Working on such fine margins, on top of deciding the already complex question of legality and justification can become difficult.[xii] Many concerns like partiality, corruption and political favouritism affect the outcomes and the workmen who are already at a disadvantaged position and dependant on the Tribunal's decision for earning their much-needed wages, come out at a loss.[xiii] Hence, there is a need to settle disputes through independent and impartial machinery like mediations, conciliations and arbitration, with people who possess expert knowledge in the field and work to warrant the confidence of both parties.

It is recommended that the parties opt for voluntary methods of dispute resolution as they would generally abstain from resorting to strikes and lock-outs when such voluntary mechanisms are in progress. In case of an arbitration proceeding the parties should willingly accept its award and the services can be made as cost-effective as possible so access is given to even the most deprived party.[xiv] The process of dispute settlement should be such that it is impartial, speedy and effective in which the employers and the workmen can participate at every stage and the awards are precisely implemented.[xv] The drafting of dispute resolution clauses cannot be emphasized enough, as it would provide give equal powers to both sides and make sure no party faces discrimination. There is a need to settle grievances with effective procedures that have been adapted to consider the economic status and take appropriate measures to safeguard workers rights' like right to wages during strikes and lock-outs.

John Rawls who elucidates the significance of 'self-respect' in his Theory of Justice[xvi] gives no recognition to the individual's right to work or right to strike. For Rawls self-respect is considered as one of the most important primary good and his ideas are built around principles of fairness that encourage sharing with the ones who are worst off in society.[xvii] One can argue that the idea of self-respect includes a wider range of rights, than what is specified by Rawls, and should include the right to work as well as the right to get paid. A worker's right to wages is indeed necessary to strengthen their entitlement of welfare rights and realise their place as members within a community. The workers are prevented from exercising their civil liberties when wages are deducted during the period of strikes and lock-outs, while also being averted from functioning as working members of a society as it practically has the effect of forced unemployment. Although there are some jurisdictions that have taken a step forward in recognising the importance of right to strike of the workers and granted additional protections.

Comparative Analysis of right to wages during strikes with other jurisdictions: -

The right to strike is given Constitutional recognition in countries like France and Italy, which explicitly guarantee the right within their statutory framework considering it essential to facilitate collective bargaining.[xviii] In France, there is a requirement of grave misconduct to constitute a breach of contract when workers go on strike, which is determined by the behaviour of the workers or by participation in an unlawful strike.[xix]In Italy, the Courts have come to an interesting conclusion of holding that a strike is not unconstitutional but it leads to suspension of contract and hence the employers do not have to pay wages during the period of strikes.[xx] It is pertinent to note that a right to strike is not a privilege and has been held to include certain limitations even if it has been Constitutionally recognised. Although awarding constitutional absolutism is not possible in any democracy, structuring the exceptions and limitations to the right is something which can very well be achieved, to ensure the right is not misused.

Amidst all this, there is also the question of the rights of workers who do not participate in strikes. In Italy, the non-participating workers also end up losing out on their wages when work cannot be continued further because of strikes.[xxi] Contrastingly, in Countries like Lithuania, the workers who do not participate in strikes and are unable to work as a result of the strikes are still entitled to claim their wages as it is the notion that the cessation of work was not their fault.[xxii] The Committee on Freedom of Association (CFA) has not criticized the approach taken by some States that deduct wages during the period of strikes expressing that the parties should have the freedom to determine the scope of their negotiable issues.[xxiii] When analysed, this can be a problematic position as more often than not, the workers do not hold the same bargaining powers and also lack adequate knowledge, skills, resources, etc, as opposed to their well-versed employer counterparts. No single authority is capable of resolving labour disputes alone hence, the governments of respective countries have to work together with concerned parties to form a consensus-based dispute resolution system that best represents their socio-economic and political conditions.


Throughout this paper, I have argued that right to wages during strikes and lock-outs is an essential right that should be given due recognition and a higher threshold must be set, than the one which currently exists, to deny this right. The new Industrial Relations Code (IRC) is, unfortunately, a step backwards in protecting the rights of workmen as it extends the restrictions on strikes to all establishments, that were previously only applicable to public utility services. It has further amended the definition of strike to include "mass casual leave" and mandatorily prohibits going on strikes during the conciliation period. It remains to be seen how these changes will affect the workers and their right to strike, although one can assume it won't be in a positive manner. Needless to say, the jurisprudence on disputes regarding right to wages during strikes and lock-outs needs to evolve further to ensure there is an equitable balance between the rights of the workers and the employers while granting additional safeguards and preventing exploitation of the workers. Instead of focusing merely on resolving disputes, emphasis should be on establishing a system that promotes cooperation and fairness to reach the ultimate goal of industrial peace.

Keywords: Right to strike in India, Right to wages for employees, Justification and Legality of strikes.

[i] T.K. Rangarajan v. Government of Tamil Nadu, AIR 2003 SC 3032. [ii] Ibid. [iii] Management of Kairbetta Estate v. Rajmanickam AIR 1960 SC 893. [iv] Article 8(d) of the International Covenant on Economic Social and Cultural Rights ("I.C.E.S.C.R."). [v] Convention No.87 ILO. [vi], I.J. of, International Journal of Law. Available at: [Accessed November 22, 2020]. [vii] Ibid. [viii] Bank of India vs. T.S. Kelawala (1990) II LLJ 39. [ix] Syndicate Bank v. K. Umesh Nayak, AIR 1995 SC 319. [x] Singh, K.V., 2016. Wages During Strike Period Legal Interpretation - Employment and HR - India. Welcome to Mondaq. Available at: [Accessed November 22, 2020]. [xi] Ibid. [xii] 2020. [online] Available at: [Accessed 10 November 2020]. [xiii] Ibid. [xiv] ILO: Freedom of Association. Digest of Decisions…., op. cit § 602. [xv] Case no 2277, op. cit.; ILC, 81st session (Geneva, 1994), Freedom of Association and Collective Bargaining, Report III (Part 4B), ILO, Geneva, 1994, §§136–176; ILO, Freedom of Association. [xvi] Rawls, J. (1972) A Theory of Justice (Oxford, Oxford University Press), see pp. 178-83, 440-46, 535-47. [xvii] Id. at 440. [xviii] See para 7 of the preamble to the French Constitution of 1946; art 40 of the Indian Constitution. [xix] See Loi 11.2.1950 (No 50-205) concerning procedures to regulate labour conflicts in the private sector and Loi 31.7.1963 (No 63-777) concerning strikes in the public sector. [xx] See Corte de Cassaziotie 7.6.1952 No 1628 Riv dir lav 1952 part II. [xxi] Ibid. [xxii] Article 82 (3) of the Labour Code. [xxiii] ILO, 1998d, p. 224.

Disclaimer: This article is an original submission of the Author.

NLR does not hold any liability arising out of this article.