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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.