Central Administrative Tribunal - Delhi
Shri Ram Kishan The General Secretary ... vs Union Of India (Uoi), Through, The ... on 12 February, 2008
ORDER Meera Chhibber, Member (J)
1. This OA has been filed by All India Central Government Heath Scheme Employees Association and three individuals. MA for filing joint application is allowed.
2. Applicants have challenged show cause notice dated 13.8.2007 and order dated 19.11.2007 whereby 17.7.2007 has been treated as dies-non in terms of Rule 7(ii) of CCS (Conduct) Rules and effecting break in service in terms of FR 17A (i) and (ii) of FR & SR causing an interruption in the services thereby forfeiting the past service except for pension and other pensionary benefits (page-15 & 19 respectively).
3. It is stated by the applicants that Association had been requesting the respondents for certain demands including the one to fill up the vacant posts on promotional basis but except giving assurance no action was being taken. They gave a charter of demand also but finding no positive response. Association gave a proper notice on 04.6.2007 (page-29 & 30) under Industrial Disputes Act, 1947 that agitation would be launched phase-wise.
Lunch hour demonstration in front of Administrative office and all station of CGHS on 20th June'07.Members of AICGHSEA will perform work as per their legal status from 25th June'07 to 28th June'07 all over India. 50 Hours Hunger fast by the members of the association in front of administrative office all over India from 3rd July'2007 to 5th July'2007.One day strike on 17th July'2007.
4. The strike was not declared illegal so Association went on strike on 17.7.2007. All the members of Association were given show cause notice dated 13.8.2007 calling upon the members to explain why 17.7.2007 should not be treated as dies-non and break in service. All the applicants gave reply (page-26) taking legal points but without dealing with it, by a non-speaking order, 17.7.2007 was treated as dies-non with break in service.
5. It is in these circumstances that applicants have filed the present OA. Respondents have opposed the OA. They have stated that applicants, being the Central Government employees, are governed under CCS (Conduct) Rules 1964 and any act in contravention of the rule, if committed, by any employee, tantamount to misconduct and also an act unbecoming of a Government servant under Rule 3(2) & 3(3) of CCS (Conduct) Rules 1964, and is violative of Rule 7 of CCS (Conduct) Rules 1964. Some of the charter of demands are of the routine and regular nature and are not of any serious magnitude, which may invite the employees to resort to strike. In the periodical meetings which were held with the representatives of Association on 3rd & 5th April 2007, the minutes of the meeting were forwarded to the petitioner Association vide letter No. 17-1/2006-CGHS/Estt(NG)/4295 dated 23.4.2007 (page-56). The respondents are always willing to settle all the pending issues amicably as such there is no justification on the part of the applicants to resort / indulge in any activity which put lakhs of CGHS beneficiaries in difficulty specially when instructions were already circulated vide letters No. 17-2/2007-CGHS/Estt(NG), dated 12.6.2007 & 12.7.2007, issued by the respondents, advising all such employees to restrain from participating in the strike scheduled for 17th July 2007. Yet they took the risk, therefore, they cannot now complain. The act of the applicants and the other employees of the CGHS in participating in the strike on 17.7.2007 have not only resulted in disruption of normal function, but had hampered the routine work in medical care to lakhs of CGHS beneficiaries across the country. CGHS Delhi is meeting the medical needs of about 15000 patients daily through its 87 Allopatheic and 31 Ayush Dispensaries & the act of the applicants have taken the patients to ransom by depriving them of their health care needs. Repeated strikes and dharnas on 12.4.2007, 01.5.2007 (01 day total strike), 20.6.2007 (demonstration / dharna), 25.6.2007 to 28.6.2007 work to rule, 50 hours Hunger Fast 03 to 05th July, 01 day strike on 17.7.2007. For invoking provisions of FR 17-A, it is necessary on the part of the Respondents to extend to the person concerned a reasonable opportunity to represent. All the applicants were provided with an opportunity to represent vide Show-Cause Notice issued on 13.8.2007 issued by the respondents. There was no request from the applicants for personal hearing. The applicants have already been intimated by the respondents vide communication No. Dy. No. 1191/L/DS (MS)/2007, dated 27th June 2007 that Section 2(i) (ii) (b) (z) of the Industrial Dispute Act stipulates that the hospital and the dispensaries are put out of purview of Industrial Dispute Act 1947 hence the notice served by the applicants for the scheduled strike is uncalled for. They have thus prayed that OA may be dismissed.
6. We have heard both the parties and perused the pleadings as well.
7. Counsel for the applicants strenuously argued that respondents could not have resorted to FR 17A (i) and (ii) both simultaneously. According to him since CGHS has been held to be an industrial organization, applicants would be covered under FR 17A(i) and since strike was not declared as illegal respondents could not declare 17.7.2007 as dies-non resulting in break in service. To buttress his argument he relied on a judgment of this Tribunal dated 27.11.1992 given in TA 570/1996 wherein it was held that CGHS is an industry within the meaning of Section 2(j) of Industrial Disputes Act. It was also held therein that Section 2(c) of Industrial Disputes (Amendment) Act, 1982 has not yet been brought into force. This judgment is reported to have been upheld as SLP was dismissed (page-82).
8. In the instant case, it is not disputed by the applicants that they are government servants. Being government servants they are governed by CCS (Conduct) Rules. Rule 7 of CCS (Conduct) Rules specifically deals with demonstration and strike. It for ready reference reads as under:
'No Government servant shall - engage himself or participate in any demonstration which is prejudicial to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or which involves contempt of Court, defamation or incitement to an offence, or resort to or in any way abet any form of strike or coercion or physical duress in connection with any matter pertaining to his service or the service of any other Government servant.
9. It is further relevant to quote para-2 under Government of India's Instructions, which for ready reference read as under:
Rule 7 (ii) of the Central Civil Services (Conduct) Rules, 1964, provides that no Government servant shall resort to or in any way abet any form of strike in connection with any matter pertaining to his service or the service of any other Government servant. Instances have come to the notice of Government where employees resort to various methods of protests for redress of grievances, some of which are tantamount to strike. References have been received seeking clarification whether certain acts are covered under the definition of 'strike' and if so, whether action can be taken against such employees for violation of the Conduct Rules.
It is, therefore, clarified that 'strike' means refusal to work or stoppage or slowing down of work by a group of employees acting in combination and includes -mass abstention from work without permission (which is wrongly described as 'mass casual leave'); refusal to work overtime where such overtime work is necessary in the public interest; resort to practices or conduct which is likely to result in or results in the cessation or substantial retardation of work in any organization. Such practices would include, what are called, 'go-slow', 'sit-down', 'pen-down', 'stay-in', 'token', 'sympathetic' or any other similar strike; as also absence from work for participation in a Bandh or any similar movements.
Government servants who resort to action of the above kind violate Rule 7(ii) of the Central Civil Services (Conduct) Rules, 1964, and disciplinary action can be taken against them.
From above it is absolutely clear that Rule 7 prohibits government servant from going on strike so there is no question of legal or illegal strike as alleged by the counsel for applicants. Even otherwise when Association had given notice for strike on 04.6.2007, respondents had immediately issued letter dated 12.6.2007 whereby every employee was informed as under:
In this connection, I am to inform you that any type of demonstration/hunger fast/strike is in violation of CCS Conduct Rules 7(i). Therefore, it is requested to inform all the Medical Superintendents of the Hospitals/CMO I/cs. of the dispensaries under your administrative control to bring it to the notice of all Group C & D employees to refrain themselves in indulging demonstrtion/agitation/hunger fast & Strike on the dates mentioned above, failing which necessary disciplinary action will be taken against the employees concerned under Rule 7(i) of the CCS Conduct Rules. The following instructions are also issued in this regard. The employees may also be informed that the principle of 'No Work No Pay' will be enforced in respect of those employees who participate in the strike:
During the Course of demonstration / hunger fast/strike, the Attendance Register may be kept in the custody of the Incharges of the Hospitals / Dispensaries / Offices and also record their remark invariably in the Attendance Register against the names of the employees, who participated in the demonstration/hunger fast/strike on the above mentioned dates and a detailed report may be sent to the concerned Zonal Heads / CGHS (HQ) in this regard.The In-charges may also be requested to ensure that no inconvenience is caused to the CGHS beneficiaries and also keep the medicines available in their custody during the above said day of demonstration / hunger fast / strike so that the CGHS beneficiaries can get the same.Necessary precautionary measures may also be taken at your level so that no untoward incident takes place during the above period.A contingency plan to be followed during the above days is also attached herewith.
A compliance and attendance reports may also be sent to this office latest by 4.00 PM on 20th June, 2007, 25th June to 28th June, 2007, 3rd July to 5th July, 2007 & 17th July, 2007 duly compiled in r/o all the dispensaries / units / offices without fail.
10. It is thus seen that employees were warned not to go on strike as action would be taken against them yet if they proceeded to go on strike, they cannot have any grievance. In rejoinder applicants have stated that letter dated 12.6.2007 was not served on any of the applicants or Association. However, perusal of letter dated 12.6.2007 shows it was addressed to (1) The Addl. Director, Central Zone/North Zone/ East Zone/ South Zone, (2) The Addl. Director (MSD), (3) All Branch Officers, H.Q., (4) The Medical Supdt., Genl. Hospital, Timar Pur / Police Hospital, Kingsway Camp / M&G Hospital, R.K. Puram / Mat. Centre, Sriniwas Puri / Ayur Hospital, Lodhi Raod and (5) CMO I/cs, Ayur/Hom./Unani Store Depot, C.G.H.S., New Delhi with instructions that it should be circulated at every dispensary, unit, hospital, store depot etc. Obviously respondents could not have intimated each person individually. We had asked counsel for the applicants what was the number of members of this Association, to which he stated there are about 2000 members so the only way how these 2000 persons could be warned was to put this letter on notice board in each dispensary, hospital or unit, store etc. It cannot be that this letter was not put on notice board of any of the units / dispensaries / hospitals. In any case if applicants say this letter was not put up on notice board then they should have impleaded their respective Incharges of dispensaries / hospitals or Store etc. so that they could have given reply to it. From para-4.2 of OA it is clear that even these three applicants were posted in different places e.g. applicant No. 1, General Secretary is posed as Laboratory Technician in CGHS dispensary Shriniwas Puri, Delhi. Applicant No. 2 is posted as Lower Divisional Clerk in C.G.H.S. Dispensary Constitution House. Applicant No. 3 is posted as Lower Divisional Clerk in C.G.H.S. Headquarters, Bikaner House, New Delhi. Applicant No. 4 is posted as Ayurvedic Pharmacist in C.G.H.S. Ayurvedic Hospital, Lodhi Road, New Delhi. Correctness of their averment could have been tested only if they had impleaded their respective dispensaries or Hqrs through their Incharges. In the absence of it applicants' averment cannot be accepted on face value. Of course it would have been better for the respondents to endorse a copy of this letter to the Association also but simply because it was not endorsed, it cannot be said that they were not aware of this letter dated 12.7.2007 specially when another letter dated 27.6.2007 was already written to the General Secretary of All India Central Government Heath Scheme Employees Association informing him as follows:
I am also directed to state that Section 2 (j) (ii) (b) (2) of the Industrial Disputes Act, 1947 stipulates that hospitals and dispensaries are out of the purview of the Industrial Disputes Act, 1947, and hence the notice served by you for agitational programme is not valid.
11. Though this letter was referred to in respondents' reply but copy of same was not annexed so we had directed the respondents' counsel to produce the said letter. He has produced it, which is taken on record. Thus it is wrong on the part of applicants to state they were not aware of it.
12. Admittedly, members of Association had gone on strike, which is evident from their reply also so the next question is whether it could be termed as a legal strike as suggested by the counsel. This would not take long deliberation because this aspect has already been dealt with by the Hon'ble Supreme Court in the case of T.K. Rangarajan v. Govt. of Tamil Nadu and Ors.reported in 2004 (1) AISLJ 457. In the said case, Writ Petitions were filed by the employees, who were terminated by Tamil Nadu Government for resorting to strike. It was held that:
(A) There is no fundamental right to go on strike: 11. 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 Ors. v. State of Bihar and Anr. [(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.
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13. In Ex-Capt. Harish Uppal v. Union of India and Anr. [(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 - public at large.
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15. There is no statutory provision empowering the employees to go on strike.
16. Further, there is prohibition to go on strike under the Tamil Nadu Government Servants Conduct Rules, 1973 (hereinafter referred to a "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 - (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,...
13. Pausing here for a while it would be relevant to mention that similarly Rule 7(2) of CCS (Conduct) Rules also prohibits strike as far as Central Government employees are concerned which have already been quoted above.
14. In T.K. Rangarajan's case (supra), it was further held that:
17. 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 pubic against those who are on strike.
15. Again pausing for a while it would be relevant to mention here that applicants in the instant case belonged to CGHS dispensaries / hospitals, it goes without saying that strike by them affected the patients at large.
16. From above, it is clear that it has already been conclusively settled by Hon'ble Supreme Court that government servant cannot resort to strike. If they have any grievance they can resort to the remedies available to them for redressal of their grievance. Therefore, resorting to strike had to be curled with an iron hand.
17. In view of above judgment of Hon'ble Supreme Court right on the issue, reliance placed by applicants on any judgment given by the Tribunal is of no value specially when amendment has been carried out in sub Section (j) of Section 2 of Industrial Disputes Act, which is evident from the book of G.M. Kothari on Industrial Law Fifth Edition 2000. In the explanation to sub-section (j) hospitals and dispensaries have been excluded.
18. In view of above contention of applicants' counsel that CGHS is an industry and Association had gone on valid strike is not sustainable in law. The said contention is accordingly rejected. In view of above, the second contention of counsel for applicants that they are covered under FR 17A(i), is also rejected. Merely because FR 17A(i) was also mentioned in Show Cause Notice or the order, it would not vitiate the order. It is now settled law that so long power to pass an order is available it would not vitiate the order if some wrong provision is used. In the case of Collector of Central Excise, Calcutta v. Pradyumna Steel Ltd. reported in 2003 (9) SCC 234, Hon'ble Supreme Court has held as under:
It is settled that mere mention of a wrong provision of law when the power exercised is available even though under a different provision, is by itself not sufficient to invalidate the exercise of that power.
19. At this juncture it would be relevant to quote FR 17A, which for ready reference reads as under:
F.R. 17-A. Without prejudice to the provisions of Rule 27 of the Central Civil Services (Pension) Rules, 1972, a period of an unauthorized absence in the case of employees working in industrial establishments, during a strike which has been declared illegal under the provisions of the Industrial Disputes Act, 1947, or any other law for the time being in force; in the case of other employees as a result of action in combination or in concerted manner, such as during a strike, without any authority from, or valid reason to the satisfaction of the competent authority; and in the case of an individual employee, remaining absent unauthorizedly or deserting the post, shall be deemed to cause an interruption or break in the service of the employee, unless otherwise decided by the competent authority for the purpose of leave travel concession, quasi-permanency and eligibility for appearing in departmental examination, for which a minimum period of continuous service is required.
EXPLANATION 1.- For purposes of this rule, 'strike' includes a general, token, sympathetic or any similar strike, and also participation in a bundh or in similar activities.
From above, it is absolutely clear that it is by fiction of law that if a person absents unauthorizedly due to strike, it shall be deemed to cause an interruption or break in service of the employees, unless it is decided otherwise. In this case, since competent authority did not decide otherwise, the break in service is automatic. The only requirement was that before doing so Show Cause Notice was required to be served. This requirement was complied with as Show Cause Notice was admittedly given to all. It is not the case of the applicants that Show Cause Notice was not given or that any one of the applicants had not participated in the strike, on the contrary counsel for the applicants was put this question specifically. He stated categorically that the applicants had gone on strike but they were not on illegal strike. This contention cannot be accepted, therefore, we find no merit in the OA. The same is accordingly devoid of any merit.
20. However if there be any individual who had not participated in the strike and had stated so in his reply, it would be open to such individual to give his representation along with supporting document to substantiate his claim. If any such representation is given by any individual through proper channel within two weeks from the date of receipt of copy of this order, respondents shall consider the same by verifying the records and pass reasoned orders thereon within a period of two months thereafter under intimation to the said individual.
21. With above observations, OA stands dismissed. No order as to costs.