DISMISSAL OF WORKMEN AND ILLEGAL STRIKE :
If workers participate in an illegal strike, the employer is within his right to dismiss the striking workmen on ground of misconduct. For this it is necessary that a proper and regular domestic enquiry is held. In the case of Indian General Navigation and Rly. Co. v. Their Workmen, the Supreme Court laid down the general rule that mere taking part in an illegal strike without anything further would not necessarily justify the dismissal of all workmen taking part in the strike and that it was necessary to hold a regular inquiry after furnishing charge-sheet to each of the workman sought to be dealt with for his participation in the strike. It was further observed, that because workmen go on strike, it does not justify the management in terminating their services. In any case if allegations of misconduct have been made against them, those allegations have to be enquired into by charging them with specific acts of misconduct and giving them an opportunity to defend themselves at the enquiry. In the case of Express Newspaper (P) Ltd. v. Michael Mark, (1962) II L.L.J. 220 (S.C.), the Supreme Court held that where the workmen who had participated in an illegal strike, did not join their duties which resulted in their dismissal under the Standing Orders, participation in strike means that they have abandoned their employment. However, the employer can take disciplinary action against the employees under the Standing Orders and dismiss them.
Further, the quantum of punishment should depend upon the extent of involvement in the strike. Those who are guilty of violence, encourage other workers to join an illegal strike and physically obstruct the loyal workers from joining their duties, they can be dismissed from their service. But dismissal of peaceful strikers who merely acted as dumb-driven cattle cannot be justified. The question of punishment has to be considered by the industrial adjudication keeping in view the overriding consideration of the full and efficient working of the industry as a whole.
The Apex Court went to observe that strike as a weapon is mostly used which results in chaos and total mal administration. The judgement has evoked a lively debate for and against the proposition.
The Supreme Court has agreed to hear a petition seeking review of its judgement banning strike by all government employees and it is expected that the inconsistencies in the judgement are likely to be resolved.