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CASE NO.:

Appeal (civil) 5556 of 2003

PETITIONER:

T.K. Rangarajan

RESPONDENT:

Vs.

Government of Tamil Nadu & others

DATE OF JUDGMENT: 06/08/2003

BENCH:

M.B. SHAH & AR LAKSHMANAN.

JUDGMENT:

J U D G M E N T

(Arising out of SLP (C) No.12224 of 2003)

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.

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 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

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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 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:â\200\224

"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:â\200\224

"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. â\200¦â\200¦ 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

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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.

81. 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:â\200\224

"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:â\200\224

"99. In view of the reasoning adopted by us, we

hold that clause 2(d) of Article 323-A and clause 3(d) of

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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 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 â\200\224 whether

Fundamental, Statutory or Equitable/Moral Right â\200\224 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

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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 â\200\224 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:â\200\224

"â\200¦.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:â\200\224

"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

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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 â\200\224 (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 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

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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:â\200\224

"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:

1. 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.

2. 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 â\200\224 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.

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

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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:â\200\224

"6. The following details are submitted for reference of this

Hon'ble Court:â\200\224

1. Total number of Government servants 1,70,241

dismissed as per Section 7 of TESMA

and teachers of Aided Colleges suspended.

2. Total number reinstated so far, as per the 1,56,106

statement made before this Hon'ble Court.

3. 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.

(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

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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 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.