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Full Case Details
M. B. SHAH, J. – Leave granted.
- Unprecedented action of the Tamil Nadu Government terminating the services of all
employees who have resorted to strike for their demands was challenged before the High
Court of Madras by filing writ petitions under Articles 226/227 of the Constitution. Learned
Single Judge by interim order inter alia directed the State Government that suspension and
dismissal of employees without conducting any enquiry be kept in abeyance until further
orders and such employees be directed to resume duty. That interim order was challenged by
the State Government by filing writ appeals. On behalf of Government employees, writ
petitions were filed challenging the validity of the Tamil Nadu Essential Services
Maintenance Act, 2002 and also the Tamil Nadu Ordinance No.3 of 2003. The Division
Bench of the High Court set aside the interim order and arrived at the conclusion that without
exhausting the alternative remedy of approaching the Administrative Tribunal, writ petitions
were not maintainable. It was pointed out to the Court that the total detentions were 2211, out
of which 74 were ladies and only 165 male and 7 female personnel have so far been enlarged
on bail, which reveals pathetic condition of the arrestees. The arrestees were mainly clerks
and subordinate staff. The Court, therefore, directed that those who were arrested and lodged
in jails be released on bail. That order is challenged by filing these appeals. For the same
reliefs, writ petitions under Article 32 are also filed. At the outset, it is to be reiterated that
under Article 226 of the Constitution, the High Court is empowered to exercise its extraordinary jurisdiction to meet unprecedented extra-ordinary situation having no parallel. It is
equally true that extra-ordinary powers are required to be sparingly used. The facts of the
present case reveal that this was most extra-ordinary case, which called for interference by the
High Court, as the State Government had dismissed about two lacs employees for going on
strike. - It is true that in L. Chandra Kumar v. Union of India and others [(1997) 3 SCC 261], this
Court has held that it will not be open to the employees to directly approach the High Court
even where the question of vires of the statutory legislation is challenged. However, this ratio
is required to be appreciated in context of the question which was decided by this Court
wherein it was sought to be contended that once the Tribunals are established under Article
323-A or Article 323B, jurisdiction of the High Court would be excluded. Negativing the said
contention, this Court made it clear that jurisdiction conferred upon the High Court
under Article 226 of the Constitution is a part of inviolable basic structure of the Constitution
and it cannot be said that such Tribunals are effective substitute of the High Courts in
discharging powers of judicial review. It is also established principle that where there is an
alternative, effective, efficacious remedy available under the law, the High Court would not
exercise its extra- ordinary jurisdiction under Article 226 and that has been reiterated by
holding that the litigants must first approach the Tribunals which act like courts of first
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instance in respect of the areas of law for which they have been constituted and therefore, it
will not be open to the litigants to directly approach the High Court even where the question
of vires of the statutory legislation is challenged. In L. Chandra Kumar’s case, the Court inter
alia referred to and relied upon the case in Bidi Supply Co. v. Union of India [1956 SCR 267],
wherein Bose, J. made the following observations:— “The heart and core of a democracy lies
in the judicial process, and that means independent and fearless Judges free from executive
control brought up in judicial traditions and trained to judicial ways of working and thinking.
The main bulwarks of liberty and freedom lie there and it is clear to me that uncontrolled
powers of discrimination in matters that seriously affect the lives and properties of people
cannot be left to executive or quasi-executive bodies even if they exercise quasi- judicial
functions because they are then invested with an authority that even Parliament does not
possess. Under the Constitution, Acts of Parliament are subject to judicial review particularly
when they are said to infringe fundamental rights, therefore, if under the Constitution
Parliament itself has not uncontrolled freedom of action, it is evident that it cannot invest
lesser authorities with that power.” - The Court further referred to the following observations from the decision in Kesavananda
Bharati v. State of Kerala [(1973) 4 SCC 225] as under:— “77. From their conclusions, many
of which have been extracted by us in toto, it appears that this Court has always considered
the power of judicial review vested in the High Courts and in this Court under Articles 226
and 32 respectively, enabling legislative action to be subjected to the scrutiny of superior
courts, to be integral to our constitutional scheme.”
The Court further held:
“78. …… We, therefore, hold that the power of judicial review over legislative action vested
in the High Courts under Article 226 and in this Court under Article 32 of the Constitution is
an integral and essential feature of the Constitution, constituting part of its basic structure.
Ordinarily, therefore, the power of High Courts and the Supreme Court to test the
constitutional validity of legislations can never be ousted or excluded. - If the power under Article 32 of the Constitution, which has been described as the “heart”
and “soul” of the Constitution, can be additionally conferred upon “any other court”, there is
no reason why the same situation cannot subsist in respect of the jurisdiction conferred upon
the High Courts under Article 226 of the Constitution. So long as the jurisdiction of the High
Courts under Articles 226/227 and that of this Court under Article 32 is retained, there is no
reason why the power to test the validity of legislations against the provisions of the
Constitution cannot be conferred upon Administrative Tribunals created under the Act or
upon Tribunals created under Article 323-B of the Constitution…”
Thereafter, the Court to emphasise that Administrative Tribunals are not functioning properly,
quoted the observations with regard to the functioning of the Administrative Tribunals from
the Malimath Committee’s Report (1989-90), which are reproduced hereunder:—
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“Functioning of Tribunals 8.63 Several tribunals are functioning in the country. Not all of
them, however, have inspired confidence in the public mind. The reasons are not far to seek.
The foremost is the lack of competence, objectivity and judicial approach. The next is their
constitution, the power and method of appointment of personnel thereto, the inferior status
and the casual method of working. The last is their actual composition; men of calibre are not
willing to be appointed as presiding officers in view of the uncertainty of tenure,
unsatisfactory conditions of service, executive subordination in matters of administration and
political interference in judicial functioning. For these and other reasons, the quality of justice
is stated to have suffered and the cause of expedition is not found to have been served by the
establishment of such tribunals.
8.64 Even the experiment of setting up of the Administrative Tribunals under
the Administrative Tribunals Act, 1985, has not been widely welcomed. Its members have
been selected from all kinds of services including the Indian Police Service. The decision of
the State Administrative Tribunals are not appealable except under Article 136 of the
Constitution. On account of the heavy cost and remoteness of the forum, there is virtual
negation of the right of appeal. This has led to denial of justice in many cases and
consequential dissatisfaction. There appears to be a move in some of the States where they
have been established for their abolition.” [It is to be stated that in Tamil Nadu, at present, the
Administrative Tribunal is manned by only one man.] Finally the Court held thus:— “99. In
view of the reasoning adopted by us, we hold that clause 2(d) of Article 323-A and clause
3(d) of Article 323-B, to the extent they exclude the jurisdiction of the High Courts and the
Supreme court under Articles 226/227 and 32 of the Constitution, are
unconstitutional. Section 28 of the Act and the “exclusion of jurisdiction” clauses in all other
legislations enacted under the aegis of Articles 323-A and 323-B would, to the same extent,
be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227
and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable
basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and
Tribunals may perform a supplemental role in discharging the powers conferred by Articles
226/227 and 32 of the Constitution. The Tribunals created under Article 323-A and Article
323-B of the Constitution are possessed of the competence to test the constitutional validity of
statutory provisions and rules. All decisions of these Tribunals will, however, be subject to
scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal
concerned falls. The Tribunals will, nevertheless, continue to act like courts of first instance
in respect of the areas of law for which they have been constituted. It will not, therefore, be
open for litigants to directly approach the High Courts even in cases where they question the
vires of statutory legislations (except where the legislation which creates the particular
Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section
5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have
indicated.”
There cannot be any doubt that the aforesaid judgment of larger Bench is binding on this
Court and we respectfully agree with the same. However, in a case like this, if thousands of
employees are directed to approach the Administrative Tribunal, the Tribunal would not be in
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a position to render justice to the cause. Hence, as stated earlier because of very very
exceptional circumstance that arose in the present case, there was no justifiable reason for the
High Court not to entertain the petitions on the ground of alternative remedy provided under
the statute.
Now coming to the question of right to strike — whether Fundamental, Statutory or
Equitable/Moral Right — in our view, no such right exists with the government employees.
(A) There is no fundamental right to go on strike:– Law on this subject is well settled and it
has been repeatedly held by this Court that the employees have no fundamental right to resort
to strike. In Kameshwar Prasad and others v. State of Bihar and another [(1962) Suppl. 3 SCR
369] this Court (C.B.) held that the rule in so far as it prohibited strikes was valid since there
is no fundamental right to resort to strike.
In Radhey Shyam Sharma v. The Post Master General Central Circle, Nagpur [(1964) 7 SCR
403], the employees of Post and Telegraph Department of the Government went on strike
from the midnight of July 11, 1960 throughout India and petitioner was on duty on that day.
As he went on strike, in the departmental enquiry, penalty was imposed upon him. That was
challenged before this Court. In that context, it was contended that Sections 3, 4 and 5 of the
Essential Services Maintenance Ordinance No.1 of 1960 were violative of fundamental rights
guaranteed by clauses (a) and (b) of Article 19(1) of the Constitution. The Court (C.B.)
considered the Ordinance and held that Sections 3, 4 and 5 of the said Ordinance did not
violate the fundamental rights enshrined in Article 19(1)(a) and
(b) of the Constitution. The Court further held that a perusal of Article 19(1)(a) shows that
there is no fundamental right to strike and all that the Ordinance provided was with respect to
any illegal strike. For this purpose, the Court relied upon the earlier decision in All India
Bank Employees’ Association v. National Industrial Tribunal & others [(1962) 3 SCR 269]
wherein the Court (C.B.) specifically held that even very liberal interpretation of sub-clause
(C) of clause (1) of Article 19 cannot lead to the conclusion that trade unions have a
guaranteed right to an effective collective bargaining or to strike, either as part of collective
bargaining or otherwise. In Ex-Capt. Harish Uppal v. Union of India and Another [(2003) 2
SCC 45], the Court (C.B.) held that lawyers have no right to go on strike or give a call for
boycott and even they cannot go on a token strike. The Court has specifically observed that
for just or unjust cause, strike cannot be justified in the present-day situation. Take strike in
any field, it can be easily realised that the weapon does more harm than any justice. Sufferer
is the society — public at large. In Communist Party of India (M) v. Bharat Kumar and
others [(1998) 1 SCC 201], a three-Judge Bench of this Court approved the Full Bench
decision of the Kerala High Court by holding thus:— “….There cannot be any doubt that the
fundamental rights of the people as a whole cannot be subservient to the claim of fundamental
right of an individual or only a section of the people. It is on the basis of this distinction that
the High Court has rightly concluded that there cannot be any right to call or enforce a
“Bandh” which interferes with the exercise of the fundamental freedoms of other citizens, in
addition to causing national loss in many ways. We may also add that the reasoning given by
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the High Court particularly those in paragraphs 12, 13 and 17 for the ultimate conclusion and
directions in paragraph 18 is correct with which we are in agreement.”
The relevant paragraph 17 of Kerala High Court judgment reads as under:— “17. No political
party or organisation can claim that it is entitled to paralyse the industry and commerce in the
entire State or nation and is entitled to prevent the citizens not in sympathy with its
viewpoints, from exercising their fundamental rights or from performing their duties for their
own benefit or for the benefit of the State or the nation. Such a claim would be unreasonable
and could not be accepted as a legitimate exercise of a fundamental right by a political party
or those comprising it.”
(B) There is no legal / statutory right to go on strike. There is no statutory provision
empowering the employees to go on strike.
Further, there is prohibition to go on strike under the Tamil Nadu Government Servants
Conduct Rules, 1973 (hereinafter referred to as “the Conduct Rules”). Rule 22 provides that
“no Government servant shall engage himself in strike or in incitements thereto or in similar
activities.” Explanation to the said provision explains the term ‘similar activities’. It states that
“for the purpose of this rule the expression ‘similar activities’ shall be deemed to include the
absence from work or neglect of duties without permission and with the object of compelling
something to be done by his superior officers or the Government or any demonstrative fast
usually called “hunger strike” for similar purposes. Rule 22-A provides that “no Government
servant shall conduct any procession or hold or address any meeting in any part of any open
ground adjoining any Government Office or inside any Office premises — (a) during office
hours on any working day; and (b) outside office hours or on holidays, save with the prior
permission of the head of the Department or head of office, as the case may be.
(C) There is no moral or equitable justification to go on strike. Apart from statutory rights,
Government employees cannot claim that they can take the society at ransom by going on
strike. Even if there is injustice to some extent, as presumed by such employees, in a
democratic welfare State, they have to resort to the machinery provided under different
statutory provisions for redressal of their grievances. Strike as a weapon is mostly misused
which results in chaos and total maladministration. Strike affects the society as a whole and
particularly when two lakh employees go on strike enmasse, the entire administration comes
to a grinding halt. In the case of strike by a teacher, entire educational system suffers; many
students are prevented from appearing in their exams which ultimately affect their whole
career. In case of strike by Doctors, innocent patients suffer; in case of strike by employees of
transport services, entire movement of the society comes to a stand still; business is adversely
affected and number of persons find it difficult to attend to their work, to move from one
place to another or one city to another. On occasions, public properties are destroyed or
damaged and finally this creates bitterness among public against those who are on strike.
Further, Mr. K.K. Venugopal, learned senior counsel appearing for the State of Tamil Nadu
also submitted that there are about 12 lacs Government employees in the State. Out of the
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total income from direct tax, approximately 90% of the amount is spent on the salary of the
employees. Therefore, he rightly submits that in a Society where there is a large scale
unemployment and number of qualified persons are eagerly waiting for employment in
Government Departments or in public sector undertakings, strikes cannot be justified on any
equitable ground.
We agree with the said submission. In the prevailing situation, apart from being conscious of
rights, we have to be fully aware of our duties, responsibilities and effective methods for
discharging the same. For redressing their grievances, instead of going on strike, if employees
do some more work honestly, diligently and efficiently, such gesture would not only be
appreciated by the authority but also by people at large. The reason being, in a democracy
even though they are Government employees, they are part and parcel of governing body and
owe duty to the Society.
We also agree that misconduct by the government employees is required to be dealt with in
accordance with law. However, considering the gravity of the situation and the fact that on
occasion, even if the employees are not prepared to agree with what is contended by some
leaders who encourage the strikes, they are forced to go on strikes for reasons beyond their
control. Therefore, even though the provisions of the Act and the Rules are to be enforced,
they are to be enforced after taking into consideration the situation and the capacity of the
employees to resist. On occasion, there is tendency or compulsion to blindly follow the
others. In this view of the matter, we had suggested to the learned senior counsel Mr.
Venugopal that employees who went on strike may be reinstated in service and that
suggestion was accepted by Mr. Venugopal after obtaining instructions from the State
Government. Hence, on 24.7.2003, we had passed the following order:— “Heard the learned
counsel for the parties.
Mr. K.K. Venugopal, the learned senior counsel appearing for the State of Tamil Nadu after
obtaining necessary instructions states that: - The State Government will re-instate all the government employees who are dismissed
because they had gone on strike, except (i) 2,200 employees who had been arrested and (ii)
employees against whom FIR had been lodged. - This reinstatement in service would be subject to unconditional apology as well as
undertaking to the effect that employees would abide by Rule 22 of the Tamil Nadu
Government Servants Conduct Rules 1973 which provides as under: –
“22. Strikes: No Government servant shall engage himself in strike or in incitements thereto
or in similar activities.”
Explanation — For the purpose of this rule the expression ‘similar activities’ shall be deemed
to include the absence from work or neglect of duties without permission and with the object
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of compelling something to be done by his superior officers or the Government or any
demonstrative fast usually called “hunger strike” for similar purposes.”
It is also stated that Government will proceed under the Disciplinary Rules only against those
employees who had indulged in violence and who had incited the other employees to go on
strike.
From 25th July such employees would be reinstated in service subject to their giving
unconditional apology for resorting to strike and also an undertaking to the effect that in
future he would abide by Rule 22. He also states that for the employees who would be
reinstated in service with regard to the period for which they remained absent, appropriate
order would be passed by the State Government for regularizing their absent. However, this
would not be treated as a break in service.
Ordered accordingly.
For further orders and directions list the matter on 31.7.2003.”
On 31st, number of affidavits were filed contending that large number of employees are not
reinstated in service despite the assurance given by the State Government. Matter was
adjourned at the request of learned counsel for the respondent for verification of the said
contention. After verification, additional affidavit has been filed by Secretary to Government,
Personnel and Administrative Reforms Department, Secretariat, Chennai, revealing the exact
figures with regard to dismissed and reinstated employees. In paragraph 6, it has been stated
as under:— “6. The following details are submitted for reference of this Hon’ble Court:— - Total number of Government servants 1,70,241 dismissed as per Section 7 of TESMA and
teachers of Aided Colleges suspended. - Total number reinstated so far, as per the 1,56,106 statement made before this Hon’ble
Court. - Number of employees and teachers not 14,135 reinstated.
CATEGORIES OF EMPLOYEES AND GOVERNMENT TEACHERS WHO CANNOT
CLAIM A RIGHT TO BE REINSTATED.
(a) Government servants arrested. 2,211
(b) Secretariat staff for the reasons mentioned 2,215
earlier.
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(c) Officers holding higher position. 534
(d) Government servants (other than the 1,112
Secretariat staff) involved in offences
Under Section 5 or Section 5 read with Section 4 of TESMA.
Total number of persons who cannot 6,072
Claim a right to be reinstated.
REMAINING NUMBER OF EMPLOYEES 8,063
WHOM THE STATE GOVERNMENT IS WILLING TO REINSTATE.”
For the categories (b) and (c) i.e. Secretarial staff of 2215 and 534 officers holding higher
positions, it is agreed and made clear that they would be treated as suspended instead of
dismissed. Remaining 8063 employees, as stated above, will be reinstated in service (w.e.f.
25th July, 2003) on their tendering unconditional apology for resorting to strike and also an
undertaking to abide by Rule 22 of Conduct Rules in future. He further makes a statement that
with regard to the representations which are made or are to be made by the employees who
are in category (a), (b), (c) and (d), the same would be considered by three retired High Court
Judges to be named by the Chief Justice of the High Court of Madras. Each Judge would
decide approximately representations of 2000 employees within a period of one month or
thereabout from the date of allocation of representations. For this purpose, a convenient place
for their office work and the secretarial staff would be made available to all the three Judges
by the State Government within a period of seven days from today without fail. The
concerned Judges would decide the representation of the employees without taking into
consideration Section 7 of the Ordinance and as far as possible in accordance with the
Conduct Rules and equity. Retired Judges to be paid honorarium at the rate of Rs.50000/- per
month. All the three Judges are requested to evolve a common procedure for disposing of the
representations. The decision of the Judge on the representation would be binding to the State
Government and the State Government would act in accordance with the same. However, if
any of the employees is aggrieved, it would be open to such employee to challenge the same
before an appropriate forum.
Finally, it is made clear that employees who are re-instated in service would take care in
future in maintaining discipline as there is no question of having any fundamental, legal or
equitable right to go on strike. The employees have to adopt other alternative methods for
redressal of their grievances. For those employees who are not re- instated in service on the
ground that FIRs are lodged against them or after holding any departmental enquiry penalty is
imposed, it would be open to them to challenge the same before the Administrative Tribunal
and the Tribunal would pass appropriate order including interim order within a period of two
weeks from the date of filing of such application before it. It is unfortunate that the concerned
authorities are not making the Administrative Tribunals under the Administrative Tribunal
Act, 1985, functional and effective by appointing men of caliber. It is for the High Court to
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see that if the Administrative Tribunals are not functioning, justice should not be denied to the
affected persons. In case, if the Administrative Tribunal is not functioning, it would be open
to the employees to approach the High Court.
Lastly, we make it clear that we have not at all dealt with and considered the constitutional
validity of Tamil Nadu Essential Services Maintenance Act, 2002 and the Tamil Nadu
Ordinance No.3 of 2003 or interpretation of any of the provisions thereof, as the State
Government has gracefully agreed to re-instate most of the employees who had gone on
strike. For this, we appreciate the efforts made and the reasonable stand taken by the learned
Counsel for the parties. Further, we have not dealt with the grievances of the employees
against various orders issued by the State Government affecting their service benefits. We
hope that Government would try to consider the same appropriately.
The Appeals and Writ Petitions are disposed of accordingly. There shall be no order as to
costs.
