GHERAO

Gherao, meaning "encirclement", is a word originally from Hindi. It

denotes a tactic used by labour activists and union leaders in India,
it is similar to picketing. Usually, a group of people would surround a
politician or a government building until their demands are met, or
answers given. This principle was introduced as a formal means of
protest in the labour sector by Subodh Banarjee, Labor Minister in
1969 United Front Governments of West Bengal.
refers to the practice of confining a person to a specific location
where they are not allowed to move freely. It essentially involves
physically blocking a target, which could be a manager, managing
director or anyone from the management.
During a gherao, the victim is encircled by workers to prevent them
from entering or leaving a particular place, such as a workshop or
factory. This type of strike involves an element of wrongful restraint
and wrongful confinement.
In some cases, gheraos take a troubling turn where the victim is
subjected to cruel and inhuman confinement without basic
amenities like water and fans. Sometimes, the victim is even denied
food or the ability to communicate with the outside world. This
extreme form of strike may involve physical abuse, humiliation and
a denial of basic human needs. The victim becomes entirely at the
mercy of those conducting the gherao. Gheraos often involve a
disregard for the law.
There are two types of gherao – legal and illegal.
Legal Gherao:
A legal gherao is a peaceful form of protest which does not involve
any use of force or coercion. It is a legitimate form of protest which
is recognized by law. Legal gherao can be done in a peaceful and
non-violent manner and without any obstruction to essential
services or causing harm to any individual or property.
In the case of Management of Safdarjung Hospital v. Kuldip
Singh[10], the Supreme Court held that the right to gherao is a
legitimate form of protest and cannot be banned outright, but it
should be exercised lawfully.

Illegal Gherao:
An illegal gherao is a form of protest which involves the use of force
or coercion to prevent the targeted person from leaving. It is an
unlawful form of protest which is not recognized by law. In illegal
gherao, the protesters may obstruct essential services or cause
harm to individuals or property.
In the case of Jay Engineering Works Ltd vs State of West Bengal and
Ors [11], the Supreme Court held that illegal gherao is not protected
under the right to protest and is punishable under the law.

Bandh
A bandh is a more aggressive form of protest, where the organisers
not only call for a shutdown of services but also enforce it through
coercion or intimidation. Bandhs often result in the complete
stoppage of public life, affecting transportation, business and daily
activities.
“Bundh” is a Hindi word meaning “closed” or “locked”. The
expression therefore conveys an idea that everything is to be
blocked or closed.
Therefore, when the organisers of a bundh, call for a bundh, they
clearly express their intention that they expect all activities to come
to a standstill on the day of the bundh.
A call for a bundh is obviously distinct and different from the call for
a general strike or the call for a hartal. The intention of the callers of
the bundh is to ensure that no activity either public or private is
carried on that day.
It is no doubt true that while calling for a bundh it is not also
announced that any citizen not participating in the bundh will be
physically prevented or attacked. But experience has shown that
when Downloaded by Meet Sethi (sethimeet04@gmail.com)
lOMoARcPSD|17560442 any attempt is made either to ply vehicles
on the day of the bundh or to attend to one’s own work, or to. open
one’s shop to carry on trade, it has resulted in the concerned person
being threatened with consequences if he took out his vehicle, if he
went for his work or if he kept his shop open
It is argued with reference to A. K.Gopalan v. State. AIR 1950 SC 27,
that the right to move about, of free locomotion, is a fundamental
right protected by Article 19 of the Constitution.
Right to use the public roads was recognised as a fundamental right
in Saghir Ahamad v. State.
When a 'bundh' is called, no locomotion is possible, no vehicle can
be put on the road, no student can go to school, no patient can go to
his doctor and no one can reach the Airport to travel abroad. Public
vehicles and private vehicles taken out are attacked and damaged.
Anti-social elements also join in such destruction and sometimes
indulge in looting.
Bharat Kumar K. Palicha v. State of Kerala (1997): In this
landmark judgement, the Kerala High Court declared that bandhs
are unconstitutional, a decision later upheld by the Supreme Court.
The court reasoned that bandhs impose a form of coercion that
infringes on the fundamental rights of others, particularly the right
to free movement and the right to conduct business.

Lockout under Industrial Disputes Act, 1947

The term “lock” here means ‘not a permanent fixture that remains
closed or open at all times’, while the word “out” in this context
refers to ‘the temporary exclusion of employees and management
from the establishment until the issues get resolved’, which leads to
the declaration of a lockout.
A lockout can be defined as a situation where an employer prevents
workers from entering the workplace and carrying out their duties,
usually due to a labor dispute. A lockout is an employer’s equivalent
of a strike, and it is initiated to put pressure on workers to accept
the employer’s demands or to resolve a labor dispute. Lockouts can
also be illegal, and the penalty for engaging in illegal lockouts is
severe.
As described above, a lockout is a tool by which the employer fulfils
his demands from the employees who are already working for and
under him. He makes his demands agreed upon by using various
methods that pressurise the workers to agree to his demands
related to their employment with the employer.
Thus, it means there is an element of demand for which the place of
employment is locked out or closed. Although declaring lockouts is
not illegal, but conducting them without complying with the legal
formalities and regulations could be deemed illegal.
A lockout is a weapon in the hands of the employer, similar to that of
strike in the armoury of workmen used for compelling persons
employed by him to accept his terms or conditions of or affecting
employment .
In lockout employer shuts down his place of business as a result of
dispute/conflict, or as an instrument of coercion or as a mode of
exerting pressure upon the employees with a view to dictate his own
terms
Under Section 2(l) of the Industrial Dispute Act, 1947, the term
‘lockout’ is defined, and according to this definition, it means “the
temporary closing of a place of employment, or the suspension of
work, or the refusal by an employer to continue to employ any
number of persons employed by him”.

Essentials of lockout in Labour Law

To constitute a lockout in labour law, the following conditions must
be met:
 Temporary closure of the workplace by the employer or the
suspension of work by the employer or the employer’s refusal
to continue employing any number of workers.
 These actions should be motivated by coercion.
 It should relate to an industry as defined in the Act.
 There should be a dispute in the industry.

Types of Lockouts.
Offensive Lockout: An offensive lockout is an employer-initiated
work stoppage that seeks to pressure employees to accept the
employer’s demands. It is used to gain leverage in negotiations, and
it is often initiated in response to a perceived threat, such as an
impending strike.
Defensive Lockout: A defensive lockout is a work stoppage that is
initiated by the employer in response to an unauthorized strike by
the employees. In most cases, the lockout is intended to prevent
damage to property or to maintain control over the workplace
 A lockout declared in violation of Section 10(3), Section
10A(4A) (i.e., declaring a lockout when an industrial dispute
has been referred) is considered illegal. Additionally, a lockout
declared without complying with Section 22 and 23 (i.e.,
issuing a notice before the lockout) is illegal (Section 24(1)).
 However, a lockout declared in response to an illegal strike is
considered legal (Section 24(3)). A legal lockout can become a
powerful tool for an employer in critical situations.
 Management of Dimakuchi Tea Estate v. Their Workmen
(1958)In this case, the Supreme Court of India addressed the
legality of a lockout. The court held that the employer’s right to
lockout is recognized under the Industrial Disputes Act, 1947,
but it must be exercised in good faith and for legitimate
reasons such as protecting the property or business interests
of the employer. The court emphasized that a lockout cannot
be used as a weapon to punish or harass the workers.

WHAT IS A STRIKE?
One vital piece of legislation that governs the Indian Labour Law
with regard to trade unions and individual workers engaged in any
industry in India is the Industrial Disputes Act, 1947. It was put into
effect in order to provide access to tools and machinery as well as
procedures for investigation and resolution, irrespective of the size
of the industry.
Labour strikes in India are not uncommon and they occur across
various industries and sectors. These strikes are often a result of
disputes between workers and employees regarding wages working
conditions benefits or other likewise issues. The number of labour
strikes can vary depending upon the prevailing socio-economic and
political factors in the country.
As per the Cambridge Dictionary, “Strike is to refuse to continue
working because of an argument with an employer about working
conditions, pay levels, or job losses”.
A strike is a powerful weapon used by trade unions or other
associations or workers to put across their demands or grievances
by employers or management of industries. In another way, it is the
stoppage of work caused by the mass refusal in response to
grievances. Workers put pressure on the employers by refusing to
work till the fulfilment of their demands. Strikes may be fruitful for
workers’ welfare or they may cause economic loss to the country.
In protecting the legitimate rights and interests of workers, the right
to strike plays a vital role. It is one of the most effective weapons of
the worker in its struggle with capital to secure economic justice, as
it empowers the vulnerable workers to fight oppressive cases when
no possible constructive option is left to them.
Strike is a very powerful weapon used by trade unions and other
labor associations to get their demands accepted. It generally
involves quitting of work by a group of workers for the purpose of
bringing the pressure on their employer so that their demands get
accepted.

For strike, the Industrial Dispute Act under 2 (q) defines strikes as “a
cessation 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 to accept employment”.
Essential requirements for a strike
 There must be a cessation of work. Cessation means
abandonment, stoppage of work or reluctance to perform the
duties of their posts. It is the most important characteristic of
the strike.
 The strikers must have been acting in combination or
concerted action under common understanding
 The strike must be the result of an industrial dispute
 The person must be employed in an industry according to the
definition of strike for the applicability of this Act

RIGHT TO STRIKE?
Every right comes with its own duties. Most powerful rights have
more duties attached to them. Today, in each country of globe
whether it is democratic, capitalist, socialist, give right to strike to
the workers. But this right must be the weapon of last resort
because if this right is misused, it will create a problem in the
production and financial profit of the industry
In India unlike America right to strike is not expressly recognized by
the law. The trade union Act, 1926 for the first time provided limited
right to strike by legalizing certain activities of a registered trade
union in furtherance of a trade dispute which otherwise breach of
common economic law.
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

In the All India Bank Employees Association v. I. T. , the

Supreme Court held,

"the 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."
In protecting the legitimate rights and interests of workers, the right
to strike plays a vital role. It is one of the most effective weapons of
the worker in its struggle with capital to secure economic justice, as
it empowers the vulnerable workers to fight oppressive cases when
no possible constructive option is left to them.
The right to strike is considered an essential component of the right
to association. If the right to strike of the workers is denied, then
the right to form unions would be an empty right.
The essence of forming and joining a trade union would be
ineffective if workers could not exercise the right to strike as a
legitimate right. It is also complimentary to freedom from slavery
and forced labour.
The right to strike is not only a significant right but is an integral part
of collective bargaining. Where collective bargaining breaks down,
workers tend to resort to strikes to get their demands fulfilled. For
the trade unions, the threat of a strike is a useful weapon for
compelling employers to come forward for bargaining.
It plays a rightful role as an incentive for management and labour to
get their differences settled. The two sides are compelled to make
compromises and negotiate so as to come to an agreement because
of the hovering prospect of economic sanctions.

Right to strike is not fundamental right under constitution of

India
The Right to strike is universally recognized as fundamental human
right, but Indian constitution has not recognized as fundamental
right. The right to strike has not been specifically covered by any of
the entries in the seven scheduled of the Indian constitution
In the case of kameshwar Prasad v. The state of Bihar [20] , the
court held that the strike is not fundamental right government
employees have no legal or moral right to go on strike.
Similarly, the Court view that right to strike is an important weapon
in the armory of employees as a mode of redress. It is a right earned
by the employees as form of direct action during their long struggle.
It is a weapon to safeguard and preserve the liberty. It is an inherent
right of every employee [21] . According to court observed that the
right to strike is central to collective bargaining.
It further stated that right to strike is a legal right though not
elevated to the status of a fundamental right [22] . The court held
that there is no fundamental right for workers to go on strike”

National Union of Commercial Workers v. P. R. Ramakrishnan

& Ors (1961)
In this case, the Supreme Court of India upheld the constitutional
validity of the right to strike as an essential element of the freedom
of association under Article 19(1)(c) of the Indian Constitution. The
court ruled that the right to strike is not an absolute right but a
qualified one, subject to reasonable restrictions in the interest of
public order and public morality.

Types of Strike in Labour Law

General Strike
A general strike is when workers come together with a shared
understanding and stop working, causing significant disruption to
their employer’s operations.
These types of strike in Labour Law strikes are often used to demand
improvements in economic aspects such as basic pay, bonuses,
leaves and holidays. They are commonly seen in industries like
Railways, the Post and Telegraph Department and among
government employees.
Mass Casual Leave
Mass casual leave is another method used by workers to express
their grievances. In this approach, all employees take leave
simultaneously, in contrast to the rules stated in their employment
guidelines.
Normally, employees are allowed to take leave based on established
procedures, but workers use mass casual leave as a way to pressure
management into addressing their demands and entering into
discussions.
Stay in, Sit Down, Pen Down Strikes
In this type of strikes, workers gather at their workplace but refrain
from working or leaving the premises. This situation can become
complicated legally when workers refuse to vacate the workplace,
essentially squatting on the premises. This can be considered a form
of criminal trespass. Strikes, especially in banks, are sometimes
intended to undermine the bank’s reputation in the market.
Prolonged strikes can harm the employer’s reputation and even lead
to negative incidents.
In the case of Bank of India v. T.S. Kelavala, it was noted that
labourers, often in a vulnerable position, engage in battles against
powerful management. While industrial legislation acknowledges the
right to strike, it also imposes limitations and conditions for a strike
to be legal. Engaging in an illegal strike may not result in direct
disciplinary action, but workers may lose their wages for the
duration of the strike.
Go-Slow
A “go-slow” strike involves workers intentionally slowing down the
production process while pretending to be engaged in their work.
This is considered a harmful practice that dissatisfied and
disgruntled workers may resort to. It can be seen as a form of
dishonesty because it results in delayed production, reduced output
and often causes machinery to operate at a lower speed, which can
be detrimental to the equipment.
Despite this deliberate slowdown, workers are still entitled to their
full wages, benefits and other conditions of service that they would
normally receive. However, management does not achieve the
expected level of production for the salaries they pay in these types
of strike.
Token Strike
Token strikes are such types of strike where it is staged as a
symbolic protest against specific grievances that workers have.
These strikes are typically of short duration, but they still meet the
criteria to be considered a strike, as defined in section 2(q) of the
relevant legislation.
Hunger Strike
A hunger strike is a form of protest in which the striking workers
refrain from eating and also stop working. Mahatma Gandhi’s hunger
strike, known as ‘satyagrah,’ aimed to achieve noble goals related to
truth. However, hunger strikes by other workers are typically a
means to attain monetary objectives.
It’s important to note that individuals participating in a hunger strike
may be liable under section 309 of the Indian Penal Code, which
deals with attempted suicide. Not all strikes lead to penalties, but if
the strikers reach a stage where there is a clear risk of suicide,
section 309 may apply
Sympathetic Strikes
Sympathetic strikes are organised to show support for another union
that is already on strike against their management. In these strikes,
the workers do not have grievances of their own; instead, they are
expressing solidarity with another union’s cause. These strikes are
not justified and are also illegal, as they do not meet all the
criteria outlined in section 2(q) of the Industrial Disputes Act of
1947.

Gherao
EFFECT OF STRIKE
1. Employees:
• Loss of Income: Striking employees often face immediate
financial challenges due to the loss of wages during the strike
period. This can create hardships for workers, especially those
living paycheck to paycheck.
 • Job Security: In some cases, participating in a strike can lead
to disciplinary actions by employers, including suspension or
termination of employment. This threat to job security can cause
anxiety and uncertainty among striking workers.
• Solidarity and Unity: Strikes can foster a sense of solidarity
among workers as they come together to voice their grievances
collectively. This unity can strengthen Labour movements and
bargaining power in the long term.
• Impact on Morale: Extended strikes may lead to fatigue and
frustration among workers, particularly if the strike does not
result in desired outcomes. Low morale can affect productivity
and overall job satisfaction.
2. Employers:
• Disruption of Operations: Strikes disrupt normal business
operations, leading to delays in production, delivery, and service
provision. This disruption can result in financial losses for
employers, especially if the strike lasts for an extended period.
• Costs of Replacement Workers: Employers may incur
additional costs to hire temporary or replacement workers to
maintain essential services during the strike. These costs can
significantly impact the company's budget and profitability.
• Damage to Reputation: Public perception of the employer
may suffer during a strike, especially if the issues at stake are
perceived as legitimate. Negative publicity can tarnish the
company's reputation and affect customer loyalty.
• Legal and Regulatory Compliance: Employers must ensure
compliance with Labour laws and regulations during strikes, including
providing adequate notice to employees and refraining from unfair
Labour practices. Failure to comply can result in legal consequences
and penalties.

Prohibition of Strikes and Lock-outs in Public Utility

Services
SECTION 22. Prohibition of strikes and lock-outs.—
(1) No person employed in a public utility service shall go on strike
in breach of contract—
(a) without giving to the employer notice of strike, as hereinafter
provided, within 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.
(2) No employer carrying on any public utility service shall lock-out
any of his workmen—
(a) without giving them notice of lock-out as hereinafter provided,
within six weeks before locking out; or
(b) within fourteen days of giving such notice; or
(c) before the expiry the date of lock-out 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.
(3) The notice of lock-out or strike under this section shall not be
necessary where there is already in existence a strike or, as the case
may be, lock-out in the public utility service, but the employer shall
send intimation of such lock-out or strike on the day on which it is
declared, to such authority as may be specified by the appropriate
Government either generally or for a particular area or for a
particular class of public utility services.
(4) The notice of strike referred to in sub-section (1) shall be given
by such number of persons to such person or persons and in such
manner as may be prescribed.
(5) The notice of lock-out referred to in sub-section (2) shall be given
in such manner as may be prescribed.
(6) If on any day an employer receives from any persons employed
by him any such notices as are referred to in sub-section (1) or gives
to any persons employed by him any such notices as are referred to
in sub-section (2), he shall within five days thereof report to the
appropriate Government or to such authority as that Government
may prescribe the number of such notices received or given on that
day.
General Prohibition of strikes and lock-outs
23. General prohibition of strikes and lock-outs.—
No workman who is employed in any industrial establishment shall
go on strike in breach of contract and no employer of any such
workman shall declare a lock-out—
(a) during the pendency of conciliation proceedings before a Board
and seven days after the conclusion of such proceedings;
(b) during the pendency of proceedings before 1 [a Labour Court,
Tribunal or National Tribunal] and two months after the conclusion of
such proceedings; 2*** 3
[(bb) during the pendency of arbitration proceedings before an
arbitrator and two months after the conclusion of such proceedings,
where a notification has been issued under sub-section (3A) of
section 10A; or]
(c) during any period in which a settlement or award is in operation,
in respect of any of the matters covered by the settlement or award.

24. Illegal strikes and lock-outs.—

(1) A strike or a lock-out shall be illegal if—
(i) it is commenced or declared in contravention of section 22 or
section 23; or
(ii) it is continued in contravention of an order made under sub-
section (3) of section 10 1 [or sub-section (4A) of section 10A].

(2) Where a strike or lock-out in pursuance of an industrial dispute

has already commenced and is in existence at the time of the
reference of the dispute to a Board, 4 [an arbitrator, a] 2 [Labour
Court, Tribunal or National Tribunal], the continuance of such strike
or lock-out shall not be deemed to be illegal, provided that such
strike or lock-out was not at its commencement in contravention of
the provisions of this Act or the continuance thereof was not
prohibited under sub-section (3) of section 10 4 [or sub-section (4A)
of section 10A].
(3) A lock-out declared in consequence of an illegal strike or a strike
declared in consequence of an illegal lock-out shall not be deemed
to be illegal. 25.
Prohibition of financial aid to illegal strikes and lock-
outs.—No person shall knowingly expend or apply any money in
direct furtherance of support of any illegal strike or lock-out.
26. Penalty for illegal strikes and lock-outs.—
(1) Any workman who commences, continues or otherwise acts in
furtherance of, a strike which is illegal under this Act, shall be
punishable with imprisonment for a term which may extend to one
month, or with fine which may extend to fifty rupees, or with both.
(2) Any employer who commences, continues, or otherwise acts in
furtherance of a lock-out which is illegal under this Act, shall be
punishable with imprisonment for a term which may extend to one
month, or with fine which may extend to one thousand rupees, or
with both.
27. Penalty for instigation, etc.—
Any person who instigates or incites others to take part in, or
otherwise acts in furtherance of, a strike or lock-out which is illegal
under this Act, shall be punishable with imprisonment for a term
which may extend to six months, or with fine which may extend to
one thousand rupees, or with both.
28. Penalty for giving financial aid to illegal strikes and
lock-outs
Any person who knowingly expends or applies any money in direct
furtherance or support of any illegal strike or lock-out shall be
punishable with imprisonment for a term which may extend to six
months, or with fine which may extend to one thousand rupees, or
with both.

Difference Between Strike and Lockout

Aspect Strike Lockout

Meaning Employees who go The employer

on strike use compels the workers
 industrial action to
compel their
to agree to their
company to comply
conditions of
with certain requests,
employment by
such as better
closing the factory,
working
which is known as a
environments,
lockout.
greater pay, or union
recognition.

The goal of a strike is A lockout allows the

to pressure the employer to acquire
employer to act on influence in labor
the workers' talks by placing
Purpose concerns or requests, pressure on workers
such as greater or their unions to
salaries, better accept specific
working conditions, conditions or
or enhanced benefits. compromises.

Strikes occur when Lockouts occur when

employees or employers prevent
workers collectively employees from
quit work as a form reaching their places
Participants
of protest or of employment and
negotiation weapon performing their jobs
against their until the labor
employer. dispute is settled.

Legal Implications Participating in an In reaction to a

unsecured strike may protest or to impose
be a just cause for certain conditions,
firing someone; employers lock out
fundamental and workers. Legal
administrative ramifications of a
considerations will lockout include
determine how just following certain
the firing was. protocols and laws to
guarantee equity in
handling staff
members throughout
 the lockout.

Strikes can last from Lockouts can also

several hours to vary in length due to
many weeks, and the time it takes to
Duration sometimes longer, settle the labor
depending on the disagreement or for
outcome of the labor the parties to achieve
dispute. a negotiated solution.

Prolonged lockouts
often cause the
Strikes impede
company to operate
regular company
outside of its routine.
operations, cutting
Reduced output,
output and
postponed tasks, and
Impact on postponing projects.
supply chain
operations In sectors like
disruptions occur. A
transportation,
lockout's possible
strikes make it harder
effects on the
for workers to go to
employer's activities
their jobs.
increase with its
duration.

Lockouts are an
A strike is an employer's weapon
Perspective employee strain of choice to put
tactic. pressure on staff
members.

Illegal lock-out under

Illegal strikes carry a the Act carries a one-
Fines and one-month jail month jail sentence,
Penalties sentence, a fifty a one-thousand
rupee fine, or both. rupee fine, or both
penalties.

Labor issues, often

Motivation Workers' complaints
including discussions.