Read Provision of valid strike rule under the Industrial Dispute Act, 1947-under public utility service

A post with regard to declaration of banking as public utility service is in wide circulation wherein a Circular of PNB has been attached as proof and an attempt has been made to show as if it is the first time that Government has declared banking as Public Utility Service. Through the said post efforts have been made to create panic and develop a reign of fear and terror amongst bank employees by making out that declaration of Banking as Public Utility Service means ban on Indefinite Strike and if Unions give call for indefinite Strike, Government may arrest employees on strike invoking ESMA and force them to work. At this crucial time when Bank Employees are demanding and pressurising their Unions to give call for Indefinite Strike, it appears that it’s a mind game that is being played to justify useless routine one two day strike. Since the intention behind such a wise post does not appear to be genuine, on declaration of Banking as Public Utility Service so that young bank employees become aware of legal position.

(1) It is not the first time that banking has been declared Public Utility Service. Since the learned person who wrote the post has cited PNB Circular as proof, we think it proper to let bank employees know as to how many times and what interval PNB has issued same Circular. This data reveals that this circular is frequent which is being issued after every six months ordinarily though there are exceptions. These Circulars are taken lightly by trade union workers and I have never seen in the past that such a hue and cry would have been made. There are logical reasons for that.

(2) Schedule-I of the Industrial Disputes Act, 1947 provides a list of Industries which may be declared as Public Utility Service. Section 2(n)(vi) gives power to the Government to declare any of the industry given in that list as Public Utility Service.

Now it would be prudent to know about right to strike and what impact declaration of Banking Industry as Public Utility Service has on such right to strike.

The right to strike in the Indian constitution set up is not absolute right but it flow from the fundamental right to form union. As every other fundamental right is subject to reasonable restrictions, the same is also the case to form trade unions to give a call to the workers to go on strike and the state can impose reasonable restrictions. Supreme Court held:

"right to strike or right to declare lock out may be controlled or restricted by appropriate industrial legislation and the validity of such legislation would have to be tested not with reference to the criteria laid down in clause (4) of article 19 but by totally different considerations."

Thus, there is a guaranteed fundamental right to form association or Labour unions but there is no fundamental right to go on strike. Under the Industrial Dispute Act, 1947 the ground and condition are laid down for the legal strike and if those provisions and conditions are not fulfilled then the strike will be illegal.

Provision of valid strike under the Industrial Dispute Act, 1947-

Section 2(q) of said Act defines the term strike, it says, "strike" means a cassation 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 who are or have been so employed to continue to work or accept employment. Whenever employees want to go on strike they have to follow the procedure provided by the Act otherwise there strike deemed to be an illegal strike.

What is the impact of declaration of Banking Industry as Public Utility Service on right to Strike?

Section 22(1) of the industrial Dispute Act, 1947 provides that no person employed in public utility service shall go on strike in breach of contract:

a. Without giving to employer notice of strike with in six weeks before striking; or
b. Within fourteen days of giving such notice; or
c. Before the expiry of the date of strike specified in any such notice as aforesaid; or
d. During the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.

It is to be noted that these provisions do not prohibit the workmen from going on strike but require them to fulfil the condition before going on strike. Further these provisions apply to a public utility service only.

It is also necessary to know what if Banking would not have been declared as Public Utility Service? What difference such declaration has made for which so much hue and cry is being made? The answer can be found in provisions of Section 23 which applies to both Public Utility Service and Non-public utility service as under:

General prohibition of strike-

The provisions of section 23 are general in nature. It imposes general restrictions on declaring strike in breach of contract in the both public as well as non- public utility services in the following circumstances mainly: -

a. During the pendency of conciliation proceedings before a board and till the expiry of 7 days after the conclusion of such proceedings;
b. During the pendency and 2 month’s after the conclusion of proceedings before a Labour court, Tribunal or National Tribunal;
c. During the pendency and 2 months after the conclusion of arbitrator, when a notification has been issued under sub- section 3 (a) of section 10 A;
d. During any period in which a settlement or award is in operation in respect of any of the matter covered by the settlement or award.

Use of ESMA:
Most funny thing in the post is about use of ESMA. A little bit google would make it clear that though Essential Services Maintenance Act is a Centre Act, its implementation is in the hands of State Governments. Strike in essential services like Railways, Roadways, Water, Electricity, Banks etc. are bound to result in great hardship to public. So its natural that any Government would use repressive measures to crush the Strike as was done around 1973 in respect of Strike in Railways. Why Trade Union Leaders must be afraid from going to Jail. Trade Union Leader means a person who has undaunted courage to undergo any sort of humiliation and pressure. At least for our retired leaders, there is no threat of loosing job which is always there for those leaders who are in service.

So no significant change has taken place in the matter of right to Strike. Now a question must peep into the mind of every reasonable person as to why such post has been written and made viral? We give logical answer to this basic question also.

We all know that Strike is most powerful weapon of the workers. As such it must be sparingly used in situation where all possible efforts for realisation of demand have been made but the Government/Management is so adamant that it is not ready to accept reasonable and logical demands. Thus, Strike must not be resorted to in a routine manner by giving call for one-two day’s useless Strike as is being done by our Unions but it must be resorted to as last resort and with “Do or Die” spirit i.e. Ya to Jeetenge ya Haarenge.

Now all of you would have become aware that declaration of Indefinite Strike in an Industry declared as Public Utility Service means threat of compulsory conciliation through intervention of Government Machinery for resolving dispute between workers and their employers. We all know that such conciliation proceedings are carried out by Chief Labour Commissioner/Regional Labour Commissioners. During these conciliation proceedings, discussions held between employer and representatives of workers are recorded as minutes of conciliation proceedings. Copies of such proceedings can be easily obtained. So in the event of call for indefinite Strike, Bank employees will become aware of through records of conciliation proceedings as to what employer is saying and what our representatives are saying. In such situation it would be too difficult to use clever and tactical words like “Decent” “Respectable” etc. If you all will read provisions made in this regard, you will become aware that Conciliation Proceedings are not like Court like proceedings, these have to be concluded within 14 days which may be extended at the discretion of Conciliation Officer and such discretion can’t be for one two years as is the case with our negotiations. If conciliation fails, failure of conciliation report is submitted to the Government and Government is duty bound to refer the dispute to National Tribunal i.e. just like Shastri Tribunal which gave Shastri Award. Those who have read Shastri Award would be aware that it gives details of what parties put forth before the Tribunal. In other words quality of leadership of particular union gets exposed.

Thus, in our considered opinion declaration of Banking as a public utility service has given unions an opportunity to utilise legal position to the advantage of Bank Employees. We know it well that if matter would be decided by a third party, the plea of paying capacity would not work in view of Judgment of Hon’ble Supreme Court in case of NIT of employees of RRBs.