Vs. Government of Tamil Nadu & Others  Insc 357 (6 August 2003)
Shah & Ar Lakshmanan.
out of SLP(C) No.12224 of2003) WITH WRIT PETITION (C) Nos. 298, 308 & 330
OF 2003 & C.A. Nos. ____________OF 2003 ARISING
OUT OF SLP (C) Nos.12577 & 13102 OF 2003. Shah, J.
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
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.
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.
order is challenged by filing these appeals. For the same reliefs, writ
petitions under Article 32 are also filed.
outset, it is to be reiterated that under Article 226 of the Constitution, the
High Court is empowered to exercise its extra- ordinary 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.
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 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.
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:—
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
…… 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.
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:— "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.
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.
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
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.
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
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 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.
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
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.
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.
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
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.
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 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:—
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.
is no statutory provision empowering the employees to go on strike.
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
office hours on any working day; and
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.
There is no moral or equitable justification to go on strike.
from statutory rights, Government employees cannot claim that they can take the
society at ransom by going on strike.
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.
occasions, public properties are destroyed or damaged and finally this creates
bitterness among public against those who are on strike.
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 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
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.
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.
K.K. Venugopal, the learned senior counsel appearing for the State of Tamil Nadu after obtaining necessary
instructions states that:
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: -
Strikes: No Government servant shall engage himself in strike or in incitements
thereto or in similar activities."
— 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." 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.
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.
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.
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.
OF EMPLOYEES AND GOVERNMENT TEACHERS WHO CANNOT CLAIM A RIGHT TO BE REINSTATED.
Government servants arrested. 2,211
Secretariat staff for the reasons mentioned 2,215 earlier.
Officers holding higher position. 534
Government servants (other than the 1,112 Secretariat staff) involved in
offences Under Section 5 or Section 5 read with Section 4 of TESMA.
number of persons who cannot 6,072 Claim a right to be reinstated.
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.
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.
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 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
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
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.
Appeals and Writ Petitions are disposed of accordingly.
shall be no order as to costs.