TMI Blog2003 (8) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissal 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 tiled challenging the validity of the Tamil Nadu Essential Services Maintenance Act 2002 and also the Tamil Nadu Ordinance No. 3 of 2003. 3. 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. 4. That order is challenged by filing these appeals. For the same reliefs, writ petitions under Article 32 are also filed. 5. At the outset, it is to be reiterated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rimination 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 nor uncontrolled freedom of action, it is evident that it cannot invest lesser authorities with that power. 8. The Court further referred to the following observations from the decision in Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461 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. 9. The Court further held: 78. ...... We, therefore, hold that the power of judicial review over le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbers 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 sonic of the States where they have been established for their abolition. 11. [It is to be stated that in Tamil Nadu, at present, the Administrative Tribunal is manned by only one man.] 12. Finally the Court held thus:-- 99. In view of the reasoning adopted by us. we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, 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 323A and 323B would, to the same extent be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shyam Sharma v. The Post Master General Central Circle, Nagpur [1964]7SCR403 , 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 and Ors. (1961)IILLJ385SC wherein the Court (C.B.) specifically held that even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 'simile 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 last 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. 21. Apart from statutory rights. Government employees cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: 1. The State Government will re-instate all the government employees who are dismissed because they had gone on strike, except (i) 2,200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aff 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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