A STUDY ON STRIKE IN RELATION WITH “NO WORK NO PAY” RULE Karan K. Legal Article Mon, Mar 04, 2024, at ,11:33 PM INTRODUCTION:-The employment relationship is the legal link between employers and employees. It exists when a person performs work or services under certain conditions in return for remuneration. Such remuneration is received as consideration for the work and it's termed as wages. As per section 2(rr) of Industrial Disputes Act, 1947 “wages means any remuneration paid to the workman by the employer, for the work she performs for the employer. It includes benefits and allowances such as dearness allowance or the value of any housing or the supply of light, water, electricity etc. It does not, however, include bonuses, gratuity or any contribution to the pension or provident fund”. The concept of “No Work No Pay” is exalted in the employer – employee relationship where an employee refuses to work as a result of strike, or absent for the work due to any reasons, the employer is not obliged to pay the employee in terms of employment. This rule is enshrined in the Payment of Wages Act, 1936. When we look into section 2(7)(b) of Payment of Wages Act, 1936 it is clearly stated that deduction may be made on wages in case of absence to the work. According to Section 9(1) of Payment of wages Act, 1936 Absence from Duty means the absence of an employed person from the place or places at which he/she is required to work as per the terms of employment for the whole or any part of the period during which he/she is supposed to work. Similarly, as per section 9(2) of Payment of Wages Act, 1936 such deduction of wage however must in no instance be disproportionate to the period of absence from work. However absence from work is not limited to the physical presence of the employee in the place of work. A refusal to work in pursuance of stay in strike or for any other cause which is not reasonable would make the employee who refuses liable for deduction of a proportional amount from his/her wages. When we analyze a situation of a strike, the principle of “No work no way” has maximal connection. So, this Study is on a view to explore the extent of applicability of the said rule in the concept of strike.RESEARCH METHODOLOGY:- I have used doctrinal method of research and also used the data provided by various scholars and research analysts. With this methodology of research, I will provide with the ways that how the “no work no pay” can be applied in various aspects of strikes that are all carried out by the employees in terms of employment.STATUTES:- Industrial Disputes Act, 1947. Payment of Wages Act, 1936. STRIKE:-Section 2(q) of Industrial Disputes Act, 1947 defines a strike as a temporary cessation of work which is carried out by a group of employees belonging to same association for a common allegation with the employer. It is a statutory right provided to the employees’ to claim their relief. In this matter, many disputes will arise which will lead to legal query thereby obtaining clarifications. The Statement of Objects and Reasons of the Industrial Disputes Act itself gives us an idea of the intention of the framers with regards to strike. The Statement reads that “The power to refer disputes to Industrial Tribunals and enforce their awards is an essential corollary to the obligation that lies on the Government to secure conclusive determination of the disputes with a view to redressing the legitimate grievances of the parties thereto, such obligation arising from the imposition of restraints on the rights of strike and lock-out, which must remain inviolate, except where considerations of public interest override such right. Right to strike is a mode of redressal of legitimate grievances of the workers against the employers is recognized under the scheme of the ID Act”. Section 22 and 23 of the Industrial Disputes Act, 1947 provides for the right of strike to the employee and the corollary right of lockout to the employer. Any strike or lockout which is done in contravene to the ways prescribed under the aforesaid section will be held illegal and invalid . In the case of Management of Kairbitta Estate vs Rajamanickam, Justice Gangadragadkar stressed that the weapons like strike is available to the employees’ to seek their rights while the weapon of lockout is available to the employers’ to protect their rights. Strikes are integral to the process of bargaining in an industry . If the worker doesn’t get the increased wage or right to be given he/she shall have the right to involve in strike and this aspect will also extends to Government servants too. In the case of Bank of India vs T.S.Kelawala , it was held that the working class have earned their right to strike after and prolonged and arduous struggle. Amidst of all things, there arised a new question that whether the right to strike is fundamental right or not? The Supreme was on the view that the liberal interpretation of Article 19(1)(c)of the Indian Constitution does not lead to a conclusion that it is a fundamental right. The honourable Supreme Court in T.K. Rangarajan case, held a decision which creates shock and some kind of ruckus around the society. The court held that the right to strike is not a fundamental one, however, it may be treated as a legal right, but it doesn’t extends in case of Government Employees. They have no legal, moral or statutory right to involve in strike. “NO WORK NO PAY” RULE AND ITS APPLICABILITY ON STRIKE:-The remuneration or salary earned by a worker depends on the performance of work in accordance with the contract of employment. No part of the remuneration can be claimed unless the service is completely performed in a situation where the contract provides for payment on the completion of a period of service or a piece of work. The employer may deduct the salary of the entire day if the worker absents even for a period of a few hours. If the employee absents from work without just cause, she commits a breach of the terms of contract. The legal position is that an employee forfeits remuneration when she does not discharge her duty as in the situation of a strike. A strike requires workers to cease doing work or work in a slow manner so as to reduce production. The question that is to be answered is whether the wages of workers can be deducted for the periods when they were on strike. It is pertinent in this context to understand that strikes may be legal or illegal and justified or unjustified. The question of whether the wages of workers could be deducted for the period of strike first came up in the Churakulam Tea Estate case and secondly it was dealt in the case of Crompton Greaves Ltd vs It’s Workman , where the court held that the well settled principle of law that in order to be entitled to wages for the period of strike, the strike must be both legal and justified and that a strike cannot be said to be unjustified unless the reasons for it are unreasonable or perverse. So, in these two cases the court granted the wages to the workers. It will be evident that when a strike is both legal and justified, the rule of “no work no pay” can’t be applied. “However, in the T.S. Kelawala case, the Supreme Court observed that in a situation where the contract, standing orders or service rules are silent, the management can deduct wages for the period of absence when such absence is not disputed and is the result of a concerted action on part of the workers. s “whether the strike is legal or illegal, the workers are liable to lose wages for the period of strike. The liability to lose wages does not either make the strike illegal as a weapon or deprive the workers of it. When workers resort to it, they do so knowing full well its consequences”.Most importantly proposition that has been laid down by the court is “ “whether the strike is legal or illegal, the workers are liable to lose wages for the period of strike. The liability to lose wages does not either make the strike illegal as a weapon or deprive the workers of it. When workers resort to it, they do so knowing full well its consequences”. Therefore, while holding that workers ostensibly have a right to strike, the Court stated that no wages could be paid for the period of strike irrespective of whether the strike was legal or illegal. This pronouncement created a conflict with the two decision discussed previously. On the issue of a workman’s entitlement to wages during a strike, regardless of its legality, the Supreme Court was faced with a conflict in itself – Churakulam and Crompton Greaves emphasized on the legality of the strike by saying that only during legal and justified strikes will a workman be entitled to wages while the case of Kelawala opined that a workman is not entitled to wages during a strike irrespective of it being legal or illegal. To solve this dichotomy, the Constitution Bench of the SC took up the case of Umesh Nayak. Here, the Bench distinguished the two sides to specifically point out that Kelawala never addressed the issue of entitlement to wages during a justified strike because it did not even address the issue of whether the strike in question (in the case) was justified or not. It further distinguished the two sides by stressing on how the two cases of Chitrakulam and Crompton Greaves were not cited in Kelawala which leads to the conclusion that no apparent conflict arises between them – and hence, these two cases should have not been considered in Kelawala case. It clarified the stand in the two decisions of Churakulam and Greaves – that even if the strike is legal but is unjustified, the workman would not be entitled to her wages; and if the strike is illegal but justified, she would still not be entitled hence stressing on the need for a legal and justified strike.In facts pertaining to Umesh Nayak, the SC followed this same line of reasoning – it asked for a legal and justified strike for the workman to demand for her wages (during the period of Strike). On the substantive question of whether a strike is legal or justified, the Supreme Court categorized it to be questions of facts that can only be decided by the industrial adjudicator based on the evidence she receives. But the Court did give its opinion on how to identify legality and justifiability of a strike – a strike is legal if it is carried out in accordance with the Industrial Disputes Act and a strike is justified based on examining factors which pushed for the strike such as the nature of demands sought, its causes and urgency, conditions of service, reasons for avoiding the mechanisms under the Act et al.CONCLUSION:-In conclusion it must be said that the rights of workers have not been upheld by the courts as they should have. First, the right to strike is a universally recognized right. Article 8 of the International Covenant on Economic Social and Cultural Rights (ICESCR) recognizes a right to strike. India being a member of the Covenant is bound to provide such a right to its workmen. While statutory provisions such as those contained in the ID Act or the Trade Unions Act provide some recognition to the right, recent judicial decisions have a struck a hammer blow. The earlier judgements such as Gujarat Steels were in consonance with the existence of the right. However, the Supreme Court’s decision in T.K. Rangarajan has virtually negated the existence of the right for employees. Therefore, with respect to the right to strike, it is recommended that the decision in the Rangarajan case be considered. An enactment or amendment to existing acts in order to expressly recognize the right to strike would go a long way in protecting the interests of workers. Given that the balance of power is in favour of the management, it is necessary to protect weapons such as strike which the worker may use to have her demands heard and acted upon. With respect to the principle of no work no pay, it is submitted that the judgement in the T.S. Kelawala is erroneous in so far as it does not consider the decisions in Crompton Greaves and Churakulam Tea Estate. Workers must be entitled to wages for strikes which are justified and legal. Legality involves following the procedure laid down in various provisions whereas justification requires the absence of perverse reasons. Both must be ascertained on a case to case basis. Therefore, the decision of the Supreme Court in the Syndicate Bank case is correct and holds the field as far as the principle of “no work no pay” is considered. Recently, the Supreme Court has observed that the principle of ‘No Work No Pay’ can be applied when the employee was not kept away from work by any order of the employer. The bench comprising Justice Ashok Bhushan and Justice Navin Sinha, reiterated the settled principle that nobody could be directed to claim wages for the period that he remained absent without leave or without justification. Hence, it will be very essential to obviate the erroneous in application of law and the said principles is to applied in a fair way that no employee or employer should get damaged or biased i.e., in the interest of justice, equity and good conscience. REFERENCES:- Books: “Srikanta Mishra, LABOUR LAWS AND INDUSTRIAL RELATIONS, Deep and Deep Publications, 1995.” Websites: https://www.livelaw.in/amp/top-stories/principle-of-no-work-no-pay-when-applies-146347 - last accessed on 19/02/2024. https://www.scconline.com/blog/post/2021/09/01/no-work-no-pay/amp/ - last accessed on 19/02/2024.