Madras High Court
Tamil Nadu Co-Operative Subordinate ... vs Government Of Tamil Nadu, Rep. By The ... on 6 July, 2003
Equivalent citations: 2003(3)CTC193
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
ORDER P.D. Dinakaran, J.
1. In W.P.No. 18545 of 2003, the petitioner seeks a writ of Declaration to declare that the Tamil Nadu Essential Services Maintenance Act, 2002 (Act No. 36 of 2002) is unconstitutional and ultra vires to the fundamental rights ensured under the Constitution of India. Along with the above writ petition three W.P.M.P.Nos. 23169 to 23171 of 2003.
2. In W.P.M.P.No. 23169 of 2003, the petitioner seeks to dispense with the production of the certified copy of the impugned Tamil Nadu Essential Services Maintenance Act, 2002 (Act 36 of 2002).
3. In W.P.M.P.No. 23170 of 2003, the petitioner seeks to stay the operation of the impugned Tamil Nadu Essential Services Maintenance Act, 2002 (Act 36 of 2002).
4. In W.P.M.P.No. 23171 of 2003, the petitioner seeks an order of injunction restraining the respondents and their subordinates from any manner registering the cases or arresting the Tamil Nadu Government Employees, members of the petitioner association under the provisions of the Tamil Nadu Essential Services Maintenance Act, 2002 (Act No. 36 of 2002).
5. When the above matter came for admission on 4.7.2003, this Court discouraging the strike undertaken by the Government servants also expressed great concern about the arrest of the Government servants by the respondents and the matter was adjourned to 7.7.2003.
6. In the meanwhile, the respondents came up with an ordinance No. 3 of 2003 published in Tamil Nadu Government Gazette on 4.7.2003, which necessitated the petitioner to move W.P.M.Ps for (i) to dispense with the production of the certified copy of the impugned Ordinance No. 3 of 2003 published in the Tamil Nadu Government Gazettee on 4.7.2003 (ii) to amend the prayer in the main writ petition No. 18545 of 2003, (iii) to stay the operation of the impugned Ordinance No. 3 of 2003 published in the Tamil Nadu Government Gazette on 4.7.2003.
7. In view of the urgency in the matter the matter was taken up for hearing on 5.7.2003 with the permission of My Lord Chief Justice on 5.7.2003.
8. After hearing both sides, the writ petition was admitted, both W.P.M.Ps. to dispense with the production of the impugned Act and Ordinance were ordered, and an interim order was passed in W.P.M.P.No. 23171 of 2003, which reads as follows:
"The petitioner Association seeks an order of injunction restraining the respondents and their subordinates from any manner registering the cases or arresting the Tamil Nadu Government Employees members of their association under the provisions of the Tamil Nadu Essential Services Maintenance Act, 2002 (Act No. 36 of 2002), pending disposal of the writ petition.
2. Once a person accepts the offer of an appointment to a post or office as a Government servant, he acquires a status and his rights and obligations are no longer determined by the consent of both parties, but by statute and statutory rules. It is a trite law (vide-Roshan Lal Tandon's case, ) that the legal position of a Government servant is one of a status than of a contract. It is obvious that the relationship between the Government and its servant is, therefore, not like an ordinary contract of service between a master and servant. The relationship is something entirely different, and something in the nature of status. It is much more than purely contractual relationship voluntarily entered into between the parties. In the language of jurisprudence, status is a condition of membership of a group of which powers and duties are exclusively determined by law, and not by an agreement between the parties concerned. The duties of status as a Government servant are fixed by law and in the enforcement of these duties, Society has an interest. The hallmark of the status is an attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties.
3. Article 311 of the Constitution of India imposes constitutional restrictions upon the power of removal granted to the President and Governor under Article 310 of the Constitution of India. But, there is no fundamental right for the Government servants to strike. The strike, of course, is a weapon used for getting justice by down-trodden, poor persons or industrial employees, who are not having any other method of redressing their grievances, but, not for the persons of a status as a Government servant, whose grievance, if any, could be put forth in an appropriate legal forum for their redressal. It would be an unethical practice, whether for just or unjust cause, to resort for such strike in the present day of situation, as the strike does more harm than any justice and the sufferer is the society-public at large.
4. The impugned Act is intended to provide for strict enforcement of discipline among certain essential services and to provide for matters connected therewith in order to ensure public safety and maintenance of supplies and services necessary for the normal life of the community. Even though the petitioner association, in the above writ petition, seeks a writ of Declaration, declaring that the Tamil Nadu Essential Services Maintenance Act, 2002 (Act No. 36 of 2002) and the consequential Tamil Nadu Ordinance No. 3 of 2003 published in the Tamil Nadu Government Gazette on 4.7.2003 amending Section 7 of the Act (36 of 2002) and consequentially declare all the actions and orders issued under the impugned Act and the Ordinance are unconstitutional, null and void, the same has to be decided only in the main writ petition.
5. However, the learned counsel for the petitioner association, with the express consent of the petitioner association as well as similarly placed association of the Government servants, have voluntarily and fairly come forward to withdraw their strike unconditionally, in the interest of the society - public at large. The decision of the Government Servants in this regard is greatly appreciated and put on record.
6. Still, what is being complained in the above interim application is with respect to an alleged excessive and arbitrary arrest of the Government servants, who are said to have participated in the strike, resting their case on Article 21 of the Constitution of India, which provides for protection of life and personal liberty.
7. When the matter came up on 4.7.2003, this Court, of course discouraging the strike resorted by the Government servants, simultaneously expected the Government to refrain from arresting or harassing the Government servants. Both the petitioner association and the Government have, undoubtedly, given serious thought to the views of this Court.
8. At this juncture, the learned counsel for the petitioner association submits that the arrested persons are yet to be released and the Government is passing orders dismissing the Government servants. The learned Advocate General seeks time till 6.7.2003 to report as to the appropriate action to release the Government servants who have participated in the strike forthwith and further time till 7.7.2003 to report as to the decision of the Government with respect to the withdrawal of the cases registered against the Government servants who went on strike and the orders of suspension and dismissal.
9. The request of the petitioner association for the release of the Government servants already arrested, particularly in the context of withdrawal of the strike, in my considered opinion, is, genuine, bona fide and demands highest priority, because, the protection of right to life and personal liberty guaranteed under Article 21 of the Constitution of India includes the right to live with human dignity. The above principle is further extendable to include right to have a peaceful atmosphere in the family of every person, elastically extending the meaning for the words "person" and "personal" found in Article 21 of the Constitution of India to "family" also, whose mental agony has to be taken care of by this Court predominantly in the present situation.
10. Under the above facts and circumstances of the case, applying the 'balancing test' viz. scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant consideration and the 'necessity test', viz. infringement of human rights in question must be by the least restrictive alternative, suffice it to repose confidence on the Government that they would take appropriate decision to release all the Government servants, who are arrested in connection with the strike undertaken by the Government Servants forthwith and report the same to this Court at 10.30 a.m. on 6.7.2003, with further hope that the Government would also take appropriate decision for withdrawal of all the cases and the orders of suspension and dismissal of the Government servants unconditionally and report the matter at 2.15 p.m. on 7.7.2003, to put a quietus to the entire issue, paving way to resolve the issues relating to the service benefits of the Government servants amicably, by negotiation.
With these observations, the matter is adjourned to 6.7.2003.
Index/ yes 5.7.2003 Index/No"
9. In continuation of the order dated 5.7.2003, when the matter was taken up for hearing at 10.30 today, the learned Advocate General sought time till 3.00 pm to report the decision of the Government with respect to the release of the arrested Government servants. At this juncture, learned counsel for the petitioner submitted that when the matter is pending, the Government is proceeding with the issue of orders dismissing the alleged erred Government servants. At the request of the learned Advocate General, the matter was taken at 3.00 p.m.
10. When the matter was taken up at 3.00 p.m. today, the learned Advocate General has taken two preliminary objections as to the maintainability of the above writ petition, viz., (i) the petitioner/association neither have locus standi nor any cause of action; and (ii) this Court has no jurisdiction to entertain the above writ petition as it relates to the service of the Government Servants which has to be agitated only before the Tamil Nadu Administrative Tribunal, even if the petitioner seeks to challenge the provisions of the Act.
11. With regard to the first objection, viz., the petitioner/association neither have locus standi nor any cause of action, it is trite law that technical flaw will not be allowed to defeat the cause the petitioner seeks to justify. Broader conception of locus standi and liberal approach to procedural technicalities has obtained the seal of the Apex Court long back, vide Mumbai Kamgar Sabha v. Abdulbhai Faizullabhai, . This Court is concerned only on the substance of the matter and not the formal defects. Procedural prescriptions are handmaids, not mistresses, of justice and failure of fair play is the spirit in which Courts must view processual deviances. Representative actions and the broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to bypass the real issues on the merits by suspect reliance on peripheral, procedural shortcomings. Article 226 of the Constitution of India, viewed in wider perspective, may be amenable to ventilation of collective or common grievances, as distinguished from assertion of individual rights, although the traditional view, backed by precedents, has opted for the narrower alternative. Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptual latitudinarianism permits taking liberties with individualisation of the right to invoke the higher Courts where the remedy is shared by a considerable number, particularly, when they are weak. Less litigation, consistent with fair process, is the aim of adjectival law.
12. The learned Advocate General, of course, pointed out that the Government has not even been furnished with the names of the members of the petitioner associations. In my considered opinion, in the matter of this nature, where the rights of numerous Government servants is alleged to have been prejudiced, it may not be proper for this Court to frustrate the claim of the Government Servants, merely on the ground of vagueness, assuming it exists, accepting the subversive technicality.
13. The other objection, viz., this Court has no jurisdiction to entertain the above writ petition as it relates to the service of the Government Servants which has to be agitated only before the Tamil Nadu Administrative Tribunal, even if the petitioner seeks to challenge the provisions of the Act, in my considered opinion, requires a deeper consideration, which shall be gone into in the main writ petition.
14. It is rather unfortunate to observe that the Government was reluctant to take any decision in the matter in spite of the matter being adjourned since Friday (4.6.2003) and being heard even during the Court holidays, considering the urgency and the public interest involved in the matter. The attitude of the Government in postponing and delaying in taking appropriate decision in the matter, in spite of the voluntary undertaking given by the Government servants to withdraw the strike, is deeply regretted, which, of course, necessitates the Court in passing this immediate interim orders.
15. It is true judicial intervention should be resorted to very cautiously. But, once the Court is convinced and the legacy of the rule of law warrants such judicial intervention, the Court should not also feel reluctant to proceed with, as otherwise it will amount to stabbing 'the rule of law', resulting in failure of 'judicial activism'.
16. I have given "gateways" to the respondents to take appropriate decision, taking into consideration all contingencies of the public interest involved; but the respondents, it appears, are only particular about their 'power' to bring 'discipline' at any cost, even without appreciating the undertaking offered by the Government Servants to withdraw the strike and to resume the duty forthwith.
17. At this juncture, it may not be proper for this Court to go into the main issues raised in the above writ petition as to validity of the Act as amended by the Ordinance. Therefore, instead of taking a "hard look" decision on the rival contentions of the parties, even before going into the substance and merits of their respective case, as the Government failed to come out with an appropriate decision in the matter for releasing the Government Servants who were arrested for the offences alleged to have been committed under Sections 4 and 5 of the Act and also as to the withdrawal of the orders of suspension and the dismissal made pursuant to the powers conferred on the Government under the Act, and on the other hand, have chosen to proceed with new recruitments in the place of the alleged erred employees even without holding an enquiry into the matter, the prerogative conferred on the Court under Article 226 of the Constitution of India demands to apply the "balancing test" and "necessity test".
18. The "balancing test" viz. scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant consideration and the "necessity test", viz. infringement of human rights in question must be by the least restrictive alternative, in my considered opinion, lies in favour of the Government servants. If the issues raised in the above writ petition are ultimately decided in favour of the petitioner, they will be greatly prejudiced, if no interim orders are passed now. On the other hand, if it is decided against the petitioner, viz., Government Servants, the Government is always at liberty to take appropriate action against them. That apart, by postponing the event of granting interim relief would further complicate the issue giving room for the third parties interest, who are likely to be appointed in. the place of the alleged erred Government servants.
19. For all these reasons, I am inclined to:
(i) direct the respondents to release all the Government servants forthwith irrespective of whether they are members of the petitioner association or not, who are arrested for the alleged offence punishable under Sections 4 and 5 of the Act, on condition that they give an undertaking before the Police Station or the Jail authority concerned that they will not either instigate, incite other persons to participate in the strike and that they would not involve themselves in any act hereafter which would otherwise attract Sections 4 and 5 of the Act. This, of course, will not be applicable in the case of the persons against whom the cases are registered under the Tamil Nadu Public Property (Prevention of Damage and Loss) Act, 1992. The sixth respondent is directed to give effect to this direction with immediate effect;
(ii) all the orders of suspension and dismissal of the alleged erred Government Servants, made without conducting any enquiry shall be kept in abeyance until further orders of this Court and they shall be permitted to join duty forthwith in view of their undertaking given before this Court on 5.7.2003 to withdraw the strike and resume duty;
(iii) the respondents shall not fill up the post held by the alleged erred Government servants against whom order of suspension or order of dismissal are pending without enquiry;
(iv) the above interim directions will be applicable to only those Government servants who withdraw the strike unconditionally and join duty forthwith; and
(v) these above interim orders shall not stand on the way of the Government to take appropriate decision:
i. In considering the grievance of the petitioners with regard to (a) the withdrawal of the criminal cases filed against them; (b) the withdrawal of order of suspension; and (c) the withdrawal of orders of dismissal; and ii. The Government on the representation of the Government Servants and their associations, is at liberty to resolve the issues raised by negotiations amicably, pending disposal of the above writ petition.
20. Considering the grievance of the Government Servants, the gravity of the issue, and the public interest involved, in my considered opinion, it is more appropriate that the matter shall be heard by a Division Bench and therefore, the Registry is directed to place the papers before My Lord, the Chief Justice for necessary further orders.
Notice to the respondents by two weeks.