Under the Industrial Relations Code, 2020 a strike includes concerted casual leave taken on a given day by fifty per cent or more of the workers employed in an industry. That is in the definition in Section 2(zk), not in a proviso or an explanation. So a coordinated mass leave day is a strike, and if the notice requirements in Section 62 were not followed, it is an illegal strike, with penalties that fall on the individual workers who took part.
Part of the employment and labour law practice at S Jain & Attorneys, Bangalore.
This is a change worth knowing before you are asked to sign up to one. The old assumption was that leave is an entitlement, that applying for it is not a cessation of work, and that a protest organised as leave therefore sat outside the strike provisions. The Code removed the argument by writing the practice into the definition.
What the definition now says
Section 2(zk) defines a strike 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. Then it adds the words that matter. It includes the concerted casual leave on a given day by fifty per cent or more workers employed in an industry.
Three elements have to be present. The leave must be concerted, meaning arranged rather than coincidental. It must be on a given day. And it must involve fifty per cent or more of the workers employed. Fall below any of those and the inclusion does not apply, though the general limbs of the definition may still catch a coordinated refusal to work by another name.
Fifty per cent
Concerted casual leave on a given day by half or more of the workers employed is a strike by definition, whatever the leave application says.
Every establishment
The notice requirement in Section 62 applies to any industrial establishment. It is no longer confined to public utility services as it was under the old law.
Sixty and fourteen
Notice must be given within sixty days before striking, and the strike cannot begin within fourteen days of that notice or before the date specified in it.
The worker pays
A worker who acts in furtherance of an illegal strike faces a fine of one thousand to ten thousand rupees, or imprisonment up to one month, or both.
Section 62 applies to every industrial establishment now
This is the second change and it is at least as important as the first. Section 62(1) opens with the words no person employed in an industrial establishment shall go on strike, in breach of contract, and then sets out the conditions. There is no restriction to public utility services. Under the repealed Industrial Disputes Act, 1947 the strike notice requirement applied to public utility services, and strikes elsewhere were regulated differently. Under the Code the notice regime covers every industrial establishment.
The seven conditions in Section 62(1) are cumulative. A strike is in breach of the section if it is commenced or declared without giving the employer notice of strike within sixty days before striking, or within fourteen days of giving that notice, or before the expiry of the date of strike specified in the notice, or during the pendency of conciliation proceedings before a conciliation officer and seven days after their conclusion, or during the pendency of proceedings before a Tribunal or National Industrial Tribunal and sixty days after their conclusion, or during the pendency of arbitration proceedings and sixty days after their conclusion where a notification under Section 42(5) has been issued, or during any period in which a settlement or award is in operation in respect of any of the matters covered by it.
| Requirement under Section 62(1) | What it means in practice |
|---|---|
| Notice within sixty days before striking | The notice cannot be given more than sixty days before the strike date, so a notice served far in advance goes stale |
| Not within fourteen days of giving notice | A cooling period. The strike cannot begin until fourteen days have passed from the notice |
| Not before the date specified in the notice | Striking early, on a different day from the one notified, breaches the section even though notice was given |
| Not during conciliation, and seven days after | Once a conciliation officer is seized of the dispute, a strike is barred until seven days after those proceedings conclude |
| Not during Tribunal proceedings, and sixty days after | The longest bar. Filing before the Tribunal takes strike action off the table for the duration and for sixty days afterwards |
| Not during arbitration, and sixty days after | Applies where a notification under Section 42(5) has been issued in the arbitration |
| Not while a settlement or award is in operation | Only in respect of the matters that the settlement or award covers, so a dispute on a different subject is not barred |
The mirror provisions in Section 62(2) bind the employer on lock-outs in identical terms, which is worth remembering. The obligations are symmetrical.
Deadline warning. The two conditions that catch people are the fourteen day cooling period and the sixty day bar after Tribunal proceedings conclude. A workforce that has just been through an unsuccessful adjudication and walks out in frustration is striking inside the sixty day window, and the strike is illegal from the first hour regardless of how strong the underlying grievance is.
When a strike becomes illegal, and what it costs
Section 63 provides that a strike or lock-out is illegal if it is commenced or declared in contravention of Section 62, or continued in contravention of an order made under Section 42(7). There is one saving in Section 63(2). Where a strike was already in existence when the application relating to the dispute was filed in the Tribunal or referred to an arbitrator or National Industrial Tribunal, its continuance is not illegal, provided it was not illegal at its commencement and was not prohibited under Section 42(7). And under Section 63(3) a lock-out declared in consequence of an illegal strike, or a strike declared in consequence of an illegal lock-out, is not itself illegal.
The penalties are in Section 86 and they are allocated carefully.
| Who | Penalty under Section 86 |
|---|---|
| A worker who commences, continues or acts in furtherance of an illegal strike | Fine of not less than one thousand rupees, up to ten thousand rupees, or imprisonment up to one month, or both |
| An employer who commences, continues or acts in furtherance of an illegal lock-out | Fine of not less than fifty thousand rupees, up to one lakh rupees, or imprisonment up to one month, or both |
| Any person who instigates or incites others to take part in an illegal strike or lock-out | Fine of not less than ten thousand rupees, up to fifty thousand rupees, or imprisonment up to one month, or both |
| Any person who knowingly spends or applies money in furtherance or support of an illegal strike or lock-out | Fine of not less than ten thousand rupees, up to fifty thousand rupees, or imprisonment up to one month, or both |
Section 64 separately provides that no person shall knowingly spend or apply any money in direct furtherance or support of any illegal strike or lock-out, which is the provision the last row enforces. Note that the exposure for instigating is ten times the exposure for participating, which is a deliberate allocation of risk towards organisers.
The protection you lose, and the protection you keep
This is the part that decides whether the distinction matters to an individual employee, and it does. The Second Schedule to the Code, which lists unfair labour practices, makes it an unfair labour practice on the part of an employer to discharge or dismiss a worker for taking part in any strike, so long as that strike is not one deemed illegal under the Code. It is also an unfair labour practice for the employer to recruit workers during a strike that is not illegal, and to insist that workers on a legal strike sign a good conduct bond before resuming work.
All of that protection is conditional on legality. Take part in a lawful strike and dismissal for it is a named unfair labour practice. Take part in an illegal one and the protection is gone, the employer may treat participation as misconduct, and separate penal consequences attach to you personally. The full list is set out in our guide on unfair labour practices under the Second Schedule.
Common mistake. Believing that calling it leave changes the analysis. The definition in Section 2(zk) looks at what the workforce did and how many of them did it, not at what the leave application said. Fifty per cent or more, concerted, on a given day, is a strike, and the employer's human resources system will produce the attendance data that proves all three elements without anyone having to investigate anything.
What the notice actually involves
- The notice of strike is given by such number of persons, to such person or persons, and in such manner as may be prescribed by rules. It is a formal notice, not an email from a group of employees.
- It must specify a date of strike, and the strike cannot begin before that date or within fourteen days of the notice.
- The notice must be given within sixty days before striking, so it cannot be issued indefinitely far in advance.
- Where a strike or lock-out is already in existence, Section 62(3) says no notice is necessary, but the employer must send intimation of it on the day it is declared to the authority specified by the appropriate Government.
- On receiving a strike notice, or giving a lock-out notice, the employer must report it within five days to the appropriate Government or the prescribed authority.
Because the notice has to be given in the prescribed manner and by the prescribed persons, this is in practice a union function. An unorganised workforce that agrees among itself to take a day off is very unlikely to have complied, which is exactly why the mass leave route is now the risky one rather than the safe one.
Count before you act
The fifty per cent threshold is measured against the workers employed. Knowing whether the action will cross it changes its legal character entirely.
Check what is pending
Conciliation, Tribunal or arbitration proceedings on the same dispute bar a strike, and the bar continues for seven or sixty days after they conclude.
Organisers carry more
Instigating an illegal strike carries a fine up to fifty thousand rupees against up to ten thousand for taking part. The risk is not shared equally.
Where this leaves an ordinary employee
Most people reading this are not planning a strike. They are being asked to join one, usually informally, usually by a group message, and usually with the assurance that because it is being done as leave nothing can happen. The honest answer is that the assurance was true under the old law and is not true now.
If a grievance is real, the Code provides routes that carry no penal exposure at all. An establishment employing twenty or more workers must have a Grievance Redressal Committee, and an aggrieved worker may apply to it within one year of the cause of action. A change to conditions of service requires notice under Section 40, dealt with in our guide on notice of change and the twenty one day rule. A dispute can be taken to conciliation and then to the Industrial Tribunal, and the sequence is set out in our guide on wrongful termination and employee remedies. None of those routes expose you to a fine or to a month's imprisonment. A mass leave day does.
One thing we notice in these files. The workers who end up carrying the consequences are almost never the ones who organised the action. They are the ones who were on the group message, took the day, and are identifiable from the attendance record, while the organisers arranged it verbally and applied for leave on a different day. If you are being asked to take part, that asymmetry is worth thinking about before the day rather than afterwards. Whether any of this reaches you at all depends first on whether you are a worker within the Code, which we deal with in our guide on worker status under the Industrial Relations Code.
Frequently Asked Questions
Is taking casual leave really a strike?
It is if it is concerted, on a given day, and taken by fifty per cent or more of the workers employed. Section 2(zk) of the Industrial Relations Code, 2020 includes that situation within the definition of strike. Individual leave, or leave by a smaller proportion of the workforce, is not caught by that inclusion.
What if only forty per cent of us take leave?
The specific inclusion does not apply below fifty per cent. But the main limbs of the definition still cover a concerted refusal, or a refusal under a common understanding, to continue to work, so a coordinated stoppage can still be a strike on the general wording even below the threshold.
Does the strike notice requirement apply to my company, or only to essential services?
To every industrial establishment. Section 62(1) is not confined to public utility services, which is a change from the position under the repealed Industrial Disputes Act, 1947. If the establishment is an industrial establishment and you are a worker, the notice regime applies.
How much notice is required?
Notice must be given within sixty days before striking, and the strike cannot begin within fourteen days of the notice or before the date of strike specified in it. It must be given by the persons, to the persons, and in the manner prescribed by the rules.
Can I be dismissed for going on strike?
Not for a strike that is not illegal. The Second Schedule makes it an unfair labour practice for an employer to discharge or dismiss a worker for taking part in a strike other than one deemed illegal under the Code. Where the strike is illegal that protection does not apply.
What is the penalty for taking part in an illegal strike?
Under Section 86 a worker who commences, continues or otherwise acts in furtherance of an illegal strike is punishable with a fine of not less than one thousand rupees, extending to ten thousand rupees, or imprisonment up to one month, or both. Instigating others carries a fine of ten thousand to fifty thousand rupees.
We already have a case pending before the Tribunal. Can we strike?
No. Section 62(1) bars a strike during the pendency of proceedings before a Tribunal or National Industrial Tribunal and for sixty days after those proceedings conclude. A strike during that window is illegal under Section 63 whatever the merits of the dispute.
Is a go slow safer than a strike?
No. A wilful go slow is separately listed in the Second Schedule as an unfair labour practice on the part of workers, and the Code defines it as more than one worker conjointly working more slowly and with less effort than usual to press a demand. Squatting on the premises after hours and gherao of managerial staff are listed in the same item.
This article is for general informational purposes only and does not constitute legal advice. Consult a qualified advocate for advice on your specific situation.
Related Guides
- Unfair Labour Practices: The List of Things an Employer Cannot Do
- Are You a Worker Under the Industrial Relations Code?
- Notice of Change: The Twenty One Days Before Your Terms Can Be Altered
- The Four Labour Codes: What Actually Changed for Employees
- Wrongful Termination in India: Employee Rights and Remedies
- Employment Agreements in India
