Madras High Court
Tamil Nadu Agricultural University ... vs The Registrar Tamil Nadu G.D. Naidu ... on 1 February, 1999
Equivalent citations: 1999(1)CTC545, (1999)IIMLJ10
ORDER
1. The writ petition is for the issue of writ of certiorari to call for the records of the impugned proceedings No.R2.B.M.VIII.23/90 dated 12.11.1990 of the Tamil Nadu G.D.Naidu Agricultural University insofar as it relates to Non-Teaching Staff Association issued by the first respondent and quash the same.
2. The writ petition has been filed by the Secretary of the Tamil Nadu Agricultural University Non-teaching Staff Association, coimbatore aggrieved by the order of the first respondent, issued in proceedings No.R2.B.M.VIII.23/90 dated 12.11.1990 categorising almost all the non-teaching staff as essential services and also declaring that the employees of non- teaching staff classified under the essential services, who are involved in the illegal activities including strikes are liable for immediate suspension without following the usual procedure and steps. The case of the petitioner's Association is that they have been making representations for improving the conditions of the non-teaching staff who are making some demands. Negotiations have been held between the Association and the University Authorities. Later, the association gave a notice of strike with effect from 6.8.1990 and went on strike which was subsequently called off on 21.9.1990. There seems to be some settlement between the petitioner's association and the respondent university but the settlement was not given full effect by the second respondent. It is averred in the affidavit filed in support of the writ petition that on 12.11.1990 the impugned proceedings were issued by the respondents. In the impugned proceedings, the non-teaching staff has been classified as 'Essential Service' along with the teaching staff. The impugned proceedings also contained the decision of the university that the employees classified as 'Essential Service' who are involved in the illegal activities including strike are liable for immediate suspension without following the usual procedure and steps. The further case of the petitioner is that the impugned proceedings affect the interest of the association and aggrieved by the same they have filed the present writ petition.
3. Learned counsel for the petitioner has argued that there is no provision in the respondent University Act or Regulation or in the Statutes empowering the authorities to declare the non-teaching staff as 'Essential Service'. The action of the respondent in declaring the non-teaching staff as 'Essential Service' is violative and ultra vires to the provisions of the Act, Statutes and Regulations of the concerned University. It has also been contended by the Government that there is no power vested either in the Statute or by Special Resolution with the respondents to declare the services of the non-teaching staff as Essential Service. It has also been contended that the State Government alone has power to declare the services of the petitioners as essential service either by the Act or Legislature or when an ordinance is promulgated. It has been contended that in the absence of specific provision in any Act or under the Statute or under the Regulations of the University, the impugned proceedings dated 12.11.1990 declaring the non-teaching staff as that of one essential service itself is ultra vires and violative of the provisions of the Statute. It has also been argued that the power vested with the respondent University to suspend its employees i.e. non-teaching staff without following the usual procedure is itself contrary to the regulations, violative of Articles 14, 19(1)(b) and 21 of the Constitution of India. Learned counsel has further argued that there is provision under Clause 6 of Appendix VIII of the Regulations of the Tamil Nadu Agricultural University to take disciplinary action against an employee who participates in any demonstration or resorted to any form of strike in connection with their official duties and conduct. There is also Regulation 23(b) read with Appendix-IX and X which lay down the procedure for taking disciplinary action. The pre-conditions for suspending of an employee are also laid under the Regulations and hence the decision of the University Authorities to suspend its employees (non-teaching staff) without following the due procedure is itself illegal and hence the impugned order is liable to be quashed.
4. The respondents University has filed a counter. Learned counsel appearing for the respondents has argued that the Board of Management of the respondents University in its 83rd Meeting held on 29.10.1990 passed a resolution to incorporate some more categories of employees under the 'Essential Service' and declared that those employees classified under the Essential Service who are involved in illegal activities including strike are liable for immediate activities including strike are liable for immediate suspension without following the usual procedure or steps. Learned counsel for the respondent University has argued that for the respondents University, the Board of Management is supreme body to take decisions in respect of administrative matters of the University. The circumstances initiated to take the above resolution was that only to maintain law and order in the University and smooth functioning of the University.
5. The point for consideration in this writ petition is whether the respondents-University has got any power to declare the services of non-teaching staff as 'Essential Service'; and whether the Management of the University has got any power to suspend the so-called classified employees who participated in the illegal activities including strike without following the usual procedure.
6. Learned counsel for the respondents has argued that there is no power vested with the Management of the University to declare the non-teaching staff as 'Essential Service'. However, he has brought to the notice of this court the provisions of the Essential Services Maintenance Act, 1981. Section 2 of the said Act deals with the definition clause. Under the particular Act, Section 2(a) defines the 'Essential Service'. Under Section 2(a) of the Act of 1981, the Essential Services have been defined as that any postal, telegraph or telephone service including any services connected therewith or any services relating to International Airports Authority of India, Ports, any services connected with the customs, or connected with the armed forces of the Union, the services connected with defence and other services like Banks, or any services in, or in connection with, the working of any undertaking owned or controlled by the Central Government; or the services dealing with the production, supply or distribution of petroleum and petroleum products; or any other services connected with matters with respect to which Parliament has power to make laws and which the Central Government being of opinion that strikes therein would prejudicially affect the maintenance of any public utility service ..." From the above, it has to be seen that the Universities have not been included in the definition of 'Essential Services'. The Tamil Nadu Agricultural University has got its own Regulations and Statutes and that University is not established under any Act of the Central Government. Under such circumstances, even assuming that the University can declare the non-teaching staff as 'essential service', the management of the University must have the power to do so in its own Statute. A reading of the University Act shows that there is no such power or the delegation of the powers of the management to declare the services of non-teaching staff as essential service and to suspend such class of employees without following the due procedure. The respondents' counsel was also unable to show any provision with which the Management was vested with the power to declare the non-teaching staff as the essential service. The respondent' counsel was also not able to show any Act or statute by which either the Central Government or the State Government has declared the staff of the Universities as 'Essential Services' and declare the strikes as illegal. Under such circumstances, I have no hesitation to hold that the University has no power to declare the action of the Management of the University Board to declare the non-teaching staff as essential service and also to suspend the employees who participated in the illegal activities including strikes without following usual procedure and steps is without jurisdiction and not borne on the statutes. The Apex Court in a judgment reported in Radhey Shyam Sharma v. Post Master General, has upheld the validity of Sections 3, 4 and 5 of the Essential Services Maintenance Ordinance and has held that they do not contravene the provisions of Article 19(1)(a) and (b). The Apex Court has also held as follows:
"A perusal of Article 19(1) shows that there is no fundamental right to strike, and all that the Essential Services Maintenance Ordinance provides is with respect to an illegal strike as provided in the ordinance. There is no provision in the Ordinance which in any way restricts freedom of speech and expression, nor is there any provision therein which restricts any one from assembling peaceably and without arms. The Ordinance thus has nothing to do with restricting the fundamental rights enshrined in sub-clauses (a) and (b) of Art. 19(1)."
7. In view of the above observations made by the Apex Court it has to be held that there is no fundamental right to strike in the Act 59 of 1968 relied upon by the petitioner. There is no provision restricting freedom of speech and expression, nor is there any provision therein which restricts any one from assembling peaceably and without arms. Consequently, the impugned proceedings No.R2 B.M. VIII. 23 of 1990 dated 12.11.1990 issued by the Board of Management of the University is quashed. The writ petition is allowed. No costs. W.M.P.No.29908 of 1990 is closed.