An Analysis of Government Employees’ Right to Strike

In today’s civilized world, the right to strike is becoming acknowledged as an inalienable natural right — an inherent right. The right to strike is regarded as a “basic” right in the sense of an inalienable right even in nations whose constitutions do not include the right to association. The US Supreme Court has expressly interpreted such a right in due process clause in the 14th Amendment of the US Constitution in two decisions – Jones & Laughlin Steel Corporation and The Amalgamated Utility Workers’ lawsuit. Unfortunately, Indian courts are taking a step backwards by treating the right to strike as an illegal behavior rather than a worker conspiracy, an attitude that was common in the early nineteenth century.

In India, industrial employees have been given the legal right to strike.[1]. It is not, however, a basic right under the Constitution, unlike the freedom to organise an organisation or union. However, unlike in many other nations, the right to strike for public employees is neither restricted nor authorised, as it is for industrial employees. Departmental behavior regulations are used to deal with government employee strikes. Strikes by government employees were not explicitly prohibited until 1957, even in the behavior regulations. Strikes, on the other hand, were viewed as an illegal absence from duty that was subject to disciplinary action by the authority responsible in the absence of any particular ban.

The Government of India modified the Central Civil Services (Conduct) Rules 1955 in August 1957, specifically prohibiting government employees from striking or protesting (rule 4 A).[2] The Government of India modified the Central Civil Services (Conduct) Rules 1955 in August 1957, specifically prohibiting government employees from striking or protesting (rule 4 A). It said, “No Government servant shall engage in any protest or resort to any type of strike in connection with any topic relevant to his or her condition of employment.” This restriction was originally extended to industrial employees employed by state-owned or state-managed enterprises other than railways, to whom these behaviour regulations applied. The unions argue that Article 19(1)(c) of the Constitution guarantees the freedom to organise an association or union, which includes the right to strike.

The Supreme Court in All India Bank Employees Associations v. National Industrial Tribunal,[3] ruled that there is no basic right to strike and that the freedom granted by Article 19 of the Constitution does not include the right to strike. As a result, while the right to strike is not a basic right for Indian citizens, it can be denied to one set of people while being restricted to another. In Meghraj v. State of Rajasthan,[4] the right to strike is not a basic right under our Constitution. A citizen may be able to go on strike or withhold his labour. When a private company goes on strike, different concerns apply than when government employees go on strike.

The Allahabad High Court in Bencheylal v. State of U.P.,[5] stated that while an individual’s suspension of work may be for a variety of reasons, when such action (strike) is conducted as a protest in an organized fashion, it may be considered a breach of discipline and a violation of the terms of service’ norms. Thus, even if no other punishment is imposed, government employees who go on strike are subject to disciplinary action, which may include firing.

Strikes by government employees are not rare in India. Government employees have been on strike since the turn of the century. In 1903, for example, there was a walkout at the Madras Government Press in protest of overtime work without additional compensation.[6] In 1905, employees of the Government of India Press in Calcutta went on strike for not being paid on Sundays and gazetted holidays.

For overtime labour, they wanted a larger wage. In 1907, workers at the Samastipur Railway Workshop went on strike in protest of salary increases. Their demand was met within a week of the strike.[7] There were strikes in the railway workshops, mint, and dockyards in January and February 1919. The requests for increased salaries were fulfilled, therefore the strikes were short-lived. In Bombay, railway men, municipal employees, and postal workers went on strike once more in 1920.[8] The Prince of ‘Wales’ visit prompted a walkout at North Western Railways, which was the most prominent of the decade. The railways had been completely crippled by the strike.

It got the workers a lot of concessions that they hadn’t even thought of asking for.[9] There have been some sympathetic strikes too. The employees of Assam and Bengal Railways struck work in sympathy with the plantation workers of Assam. The strike continued for a good number of days.[10] There were a series of railway strikes between 1925 and 1930, protesting salary cutbacks, retrenchment, and a variety of other acts of discrimination and oppression by the railway administration. These strikes were relatively protracted and violent, and many people died as a result.

International Treaties

The blanket limitation on the right to strike also goes against the International Labour Organization’s (ILO) conventions.[11] The law of India cannot be read lightly, as it was in the Rangarajan case. As a member to the Covenant, India is obligated to provide for striking employees under Article 2 (1). None of the above-mentioned ILO Conventions are signed by India. It has, nevertheless, been a member of the International Labour Organization (ILO) since 1919[12]. India, as a member, is obligated to uphold at least the fundamental rights espoused by the Conventions, regardless of whether it has ratified them[13].

The Convention No. 87 had been ratified by 144 countries, while the Convention No. 98 had been ratified by 154 countries.[14]. India has not ratified any of these treaties. The government’s unwillingness to push unionization of government employees in a highly politicized trade union system is the fundamental reason we have not ratified these two conventions. Our constitution ensures freedom of expression, association, and democracy in its most basic form.

Workers in India are exercising their rights in a free and democratic society because the government has promoted and implemented the ideals and rights described in these two agreements. Government employees are guaranteed job security, social security, and fair working conditions and remuneration by our Constitution. Alternative grievance settlement systems, such as the Joint Consultative Machinery and the Central Administrative Tribunal, have also been offered. Despite the fact that these conventions were not ratified, the need for them was not realized until the Supreme Court decision prohibiting the right to strike.

Judicial Precedents

In Kameshwar Prasad[15], Supreme Court was presented with a writ petition challenging the constitutional legality of Rule 4-A, which was included into the Bihar Government Servants’ Conduct Rules, the Court may have equated the right to strike with the freedom to demonstrate. Its definition of “demonstration” technically includes all of the elements of a strike. Except for the permitted constraints stated in article 19(1)(a) and (1), demonstrations cannot be prohibited arbitrarily (b).

The court determined that the right to strike is not a basic right, and that government employees do not have the legal or moral right to strike. The Court, on the other hand, believed that the right to strike is a crucial tool in the arsenal of employees’ redress options. It is a right that employees have acquired by direct action throughout the course of their lengthy fight. It’s a tool for defending and preserving liberty. Every employee has the right to do so.[16] The freedom to strike, according to the court, is essential to collective bargaining. It further declared that the right to strike is a legal right, but not one that has been raised to the level of a fundamental right.[17] Workers do not have a basic right to strike, according to the court.[18]

In fact, a combined reading of B R Singh[19] and Kameshwar Prasad[20] makes it abundantly clear that, because there is a fundamental right to “peaceful demonstration” flowing from the explicit rights to speech and expression and peaceful assembly in article 19, and strike is one such mode of “peaceful demonstration” by workers for their rights, it should be understood to be implicitly guaranteed and protected under article 19.

Conclusion

The Supreme Court made a legal mistake in concluding that government employees are a distinct group with no right to strike, and that the state government was within its rights to retaliate against striking employees. All people engaged to conduct any manual, technical, clerical, supervisory, skilled or unskilled labour fall within the purview of the word ‘workman,’ according to section 2(s) of the Industrial Disputes Act. Section 2(j) of the Act, which defines the word “industry,” is broad enough to encompass both commercial and government businesses.

Section 2(j) of the Industrial Disputes Act applies to all businesses, regardless of their status, whether they are owned and operated by the government or by private entrepreneurs. Thus, a combined reading of two sections of the Industrial Disputes Act, namely section 2(j) and section 2(s), makes it abundantly clear that those employed in government departments and concerns are well covered by the Act. One of the most important rights accessible to persons protected by the Act is the ability to strike.

The Supreme Court of India has held that the right of government employees to strike is not a statutory right, but an unqualified legislative right. The court overlooked the fact that they work for the Tamil Nadu government’s various departments and organisations, and are covered by the Industrial Disputes Act[21]. The Supreme Court made a legal blunder when it stated that the employees of the Tamil Nadu government had no statutory right to strike. As a result, the rights, benefits and protections conferred by the Industrial Disputes Act are unquestionably available to government workers[22]. This part of the case was overlooked in the decision.

About the Author: Aryan Rakesh is a student at Symbiosis Law School, Pune.

Note: The views in this article are personal only.

End Notes

[1] The right to strike to the private sector employees has been recognized by the implication of the Industrial Disputes Act, 1947.

[2] A threat of strike in 1957, by the Post and Telegraph employees backed by the Confederation of Central Government Employees Union forced the government to amend the Central Civil Services (Conduct) Rules 1955, to prohibit the strike by government employees. This may be pointed out that this was the first time that specific restrictions on strike were imposed in the Conduct Rules.

[3] All India Bank Employees Associations v. National Industrial Tribunal, A.I.R. 1962 S.C. 171.

[4] Meghraj v. State of Rajasthan, A.I.R. 1956 Raj. 28.

[5] Bencheylal v. State of U.P, A.I.R. 1959 All. 61 at 64.

[6] Karnik, V.B., Indian Trade Unions (2nd ed. 1966).

[7] Ibid.

[8] Burnett-Hurst, Labour and Housing in Bombay (1925), quoted by Karnik, supra note 1, at 34.

[9] Karnik, V.B., supra note 1 at 230-31.

[10] Karnik, V.B., supra note 1 at 144.

[11] Convention 87, adopted by the General Conference of the I.L.O. in its Thirty-first Session on July 09, 1948 is a ‘core’ Convention and forms part of the I.L.O. Declaration of Fundamental Principles of Right at Work, 1998.

[12] ILO Declaration on Fundamental Principles and Rights at Work, 86th Session, Geneva, June 19th 1998, available online at: www.csmb.unimore.it/on-line/Home/Prova/documento36007698.html (Last visited on March 17, 2022)

[13] Bernard Gernigon et.al., Principles of the Committee on Freedom of Association Concerning Strikes, 126 INT’L LAB. REV. 543

[14] C. E. Landau, Influence of ILO Standards on Australian Labour Law and Practice, 126 INT’L LAB. REV. 669 (1987)

[15] Kameshwar Prasad v. The State of Bihar, AIR 1962 SC1166.

[16] B.R. Singh & Ors. v. Union of India & Ors. 1989 SCR Supl. (1) 257.

[17] T.K. Rangarajan v Government of Tamil Nadu 2003(6) SCALE 84.

[18] Radhey shyam sharma v Post Master General central circle Nagpur 1965 AIR 311, 1964 SCR (7) 403.

[19] B.R. Singh & Ors. v. Union of India & Ors. 1989 SCR Supl. (1) 257.

[20] Kameshwar Prasad v. The State of Bihar, AIR 1962 SC1166.

[21] T.K. Rangarajan v Government of Tamil Nadu 2003(6) SCALE 84.

[22] T.K. Rangarajan v Government of Tamil Nadu 2003(6) SCALE 84.