JUDGMENT
K.A. Abdul Gafoor, J.
1. Ext. P1 is a strike notice issued by different service organisations of the members of the staff and officers of the High Court of Kerala. Pursuant to the said notice the Registrar of High Court of Kerala has issued Ext. P2 letter informing the Secretary High Court Staff Association that the token strike along with hunger strike proposed to be held on 6.2.2002 was prohibited based on two Government notifications referred to therein. Ext. P2 further reveals that “The Hon’ble the Chief Justice on a due consideration of the Government Notifications referred to above, and the provisions of the Kerala Essential Services Maintenance Act, 1994 has ordered that the above Government notifications be made applicable to the High Court Service,” Notifications referred to are Exts. P3 and P4 is a notification issued by the Government of Kerala exercising the powers vested in Government in terms of Clause (a) of Sub-section (1) of Section 2 of the Kerala Essential Services Maintenance Act, 1994 (6 of 1994), hereinafter referred to as the “Act”. The Government was of the opinion as is revealed in Ext. P4, that the threatened strike by a section of Government employees and teachers w.e.f. 6.2.2002 “would result in the infliction of grave hardship on the community of the State.” Therefore, the Government declared certain services mentioned in Ext. P4 as essential services. In Ext. P4 notification 15 services are enumerated. These include “Courts” also. As a follow up action, Ext. P3 notification was also issued on the same day, exercising the power conferred on Government by Section 3 the Act, prohibiting “strike in the services declared to be essential service”. In Ext. P4, Government issued Ext. notification prohibiting strike as it became necessary in the public interest to do so. It is taking note of these notifications that Ext. P2 had been issued by the Registrar of the High Court.
2. The petitioners have come up challenging Ext. P2 and the order of the Hon’ble the Chief Justice referred to therein and seeking a declaration that Exts. P3 and notifications are not applicable to the High Court service as the High Court is not under Government. In support of these reliefs it is contended that the Government does not have any power to declares the Kerala High Court as an essential service. Section 2 of the Act enables only the Government to declare any service under the Government
as essential service. High Court is not a service under the Government. No power is
conferred on the Hon’ble Chief Justice of the High Court of Kerala to declare the
High Court as essential service. So the Hon’ble the Chief Justice cannot declare the
High Court as essential service. Elaborating these contentions Shri M.K. Damodaran,
the learned counsel appearing for the petitioners submits that Clause (a) of Sub-section (i) of Section 2 of
the Act can be invoked by the Government only that too in respect of the services
under it alone. The High Court is not rendering service under the Government in
terms of Constitutional structure governing its establishment and functioning. It is a
totally independent body and that independence is one among the salient basic structure
of the Constitution of India. So Ext. P3 and P4 notifications cannot take within their
fold, the High Court. It is further contended by the learned counsel for the petitioners
that Ext. P4 notification even if issued under Section 2(1)(a)(ii) of the Act cannot cover the
High Court and High Court service, as those are not matters with respect to which the
State Legislature has power to make laws. So on that count also Ext. P4 does not
cover the High Court. The Act confers powers to issue notification declaring essential
service or prohibiting strike in the essential service only on Government and not on the
Chief Justice. Therefore the order issued by the Hon’ble Chief Justice as referred to
in Ext. P2 is without jurisdiction.
3. Referring to the Item No. (vii) “Courts, in Ext. P4, it is contended by the
learned counsel that it takes within it only the subordinate courts and not the High
Court because the State Legislature has power to make laws only with respect to the
Subordinate courts and service conditions of officers and employees of the subordinate
courts. Therefore the Courts made mention of in Ext. P4 do not include High Court.
This contention is sought to be fortified, citing the decision of the Supreme Court in
Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala and Ors. (AIR 1961
SC 1669).
4. It is further contended that the legislative power conferred on the Legislature
under Article 225 or Article 229 of the Constitution India does not take any power to
legislate on the total aspects of the High Court. That legislative power is only limited.
The legislative power of the State Legislature has to be understood in the light of
Article 346(3) of the Constitution of India, referring to various entries in List No. II –
State List. Entry No. 41 is in respect of State Public Service and State Public Service
Commission. It will cover the services in the subordinate judiciary only. It will not
cover the services of the High Court. So far no law has been made by the State
Legislature in terms of Article 229 of the Constitution of India. Even if any law is so
made by the State Legislature concerning the officers and servants of the High Court,
the power of the Hon’ble the Chief Justice to prescribe service condition is not taken
away. The legislative power conferred by Entry No. 3 in the State List is also a
limited power. Therefore on that count also, Government cannot issue a notification
declaring the High Court as an essential service where strike can be prohibited. There
is no law enabling the Chief Justice to declare the High Court as essential service and
to prohibit the strike by the officers and members of staff of the High Court of Kerala.
The Act gives power only to Government to declare its services as essential service
and to prohibit the strike in their service and not outside that. Prohibition of strike in
High Court, as per Ext. P2 is therefore without authority of law.
5. On the other hand, it is contended by the respondents that the legislative
power conferred on the State Legislature by Articles 225 and 229 of Constitution of
India is sufficient enough to take the High Court within the fold of Ext. P4 notification.
It is further contended that when the issue is viewed in that angle, necessarily Ext. P4
will cover the High Court as well. In the ordinary meaning, the word Courts will take
in the entire system of courts at different levels where the administration of justice is
dispensed with. It is further contended that Ext. P2 letter issued by the Registrar is
only a communication given as follow up action to Ext. P3 and P4 notifications issued
by Government. It does not have a separate existence. Even without Ext. P2, the
High Court stands declared in terms of Ext. P4 an essential service and consequently
the strike in the High Court stands prohibited in terms of Ext. P3 notification issued
under Section 3 of the Act.
6. These contentions have to be necessarily examined with reference to the
provisions in the statute and the Constitution.
7. Section 2(1)(a)(i) of the Act, 1994 will obviously cover only the services under the
Government. A notification issued under that provision can declare only service under
Government as essential service. High Court is, necessarily, not a service under the
Government. There cannot have any dispute on this. A reading of Ext. P4 will show
that it became necessary to issue that notification, as Government of Kerala was of
the opinion that, the threatened strike would result in the infliction of grave hardship on
the community in the State. This phraseology is adopted from Sub-clause (ii) of Clause (a) of
Sub-section (1) of Section 2 of the Act. That means Ext. P4 is a notification issued in terms of
that clause. The said clause reads:
any other service connected with matters with respect to which the State Legislature has
power to make laws and which the Government, being of opinion that strikes therein would
prejudicially affect the maintenance of any public utility service, the public safety or the
maintenance of supplies and services necessary for the life of the community or would result
in the infliction of grave hardship on the community, may, by notification in the Gazette, declare
to be an essential service for the purpose of this Act.
8. So Government can declare any service as essential service, if it is connected
with matters with respect to which the State Legislature has power to make laws.
9. Article 225 of the Constitution of India make it clear that subject to the provisions
of this Constitution and to the provisions of any law of the appropriate legislature
made by virtue of powers conferred on that legislature by this Constitution, the
jurisdiction of and the law administered shall be the same as immediately before the
commencement of this Constitution. Therefore, by reason of this Article the appropriate
State Legislature is enabled to make laws by virtue of powers conferred on that
legislature by the Constitution.
10. Article 316(3) confers the State Legislature exclusive power to make laws for
such State or any part thereof with respect to any of the mattes enumerated in List II
on the Seventh Schedule. Entry No. 3 in the State list is as follows:
“Officers and servants of the High Court;
Entry 65 in the State List reads as follows:
Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the
matters in the list.
11. Article 229 provides that subject to the provisions of any law made by the
Legislature of the State, the conditions of service of officers and servants of a High
Court shall be such as may be prescribed by the rules made by the Chief Justice of the
Court.
12. Thus, with regard the jurisdictional aspect of the High Court, the State
Legislature has power to make laws in terms of Entry 65 in List II with Article 225 and
Article 246(3) of the Constitution of India. So also the State Legislature has power to
make law – whether it is made or not is irrelevant regarding the conditions of services
of the staff and officers of the High Court, in terms of Article 329(2) of the Constitution
of India and Entry No. 3 in List No. II in the Seventh Schedule to the Constitution of
India.
13. Sub-clause (ii) of Section 2(1)(a) of the Act does not differentiate between the limited
legislative power and unlimited legislative power. The requirement to issue a notification
under that clause declaring any service as essential service is that the State Legislature
shall have power to make laws in respect of the matter which is connected with any
service and the Government shall be of the opinion that the strike would result in the
infliction of grave hardship on the community. The different articles and entries as
referred to and discussed above show that there is legislative power for the State
Legislature to make laws either with regard to the jurisdictional aspect of the High
Court and also with regard to the conditions of staff and officers of the High Court.
These are matters with respect to which the State Legislature has power to make
laws. In view of the above, necessarily Government can declare the High Court also
as essential service, provided, Government is of the opinion that the threatened strike
could result in the infliction of grave hardship on the community.
14. The next thing to be examined is the contention of the petitioners that the
High Court will not come within the purview of item No. (vii), Courts in Ext. P4. The
decision of the Supreme Court relied on by the Counsel for the petitioners in Harinagar
Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala & Ors. (AIR 1961 SC 1669) is
with respect to totally different circumstances as to whether the adjudication of a
dispute by Government can be stated to be an adjudication by Court. It is in that
perspective the Supreme Court held when the Constitution speaks of Courts in Articles
136, 227, 228 or in Articles 233 to 237 or in the lists, it contemplates Court of Civil
Judicature but not the Tribunals. It is to be remembered that even in Articles 136 and
227, apart from the word ‘Courts’, the word ‘Tribunal’ is also made mention of. Even
inspite of that, the Supreme court held that the word Court will not include the Tribunal.
The word ‘Court’ in Article 136 which has noticed by the Supreme Court in the said
decision include the High Court as well. So also the word Court in Entry 63, excepting
the Supreme Court, is understood as including the High Court. Even otherwise, the
ordinary meaning of the Court as is revealed in the decision reported supra is an
assembly of Judges or other persons legally appointed and acting as Tribunal to hear
and determine any cause, civil, ecclesiastical, military or naval. When the word Courts
has not been specifically defined in the Act or the notification issued thereunder, the
word Courts used in Ext. P4 shall get the ordinary meaning which includes all bodies
where adjudicatory process is going on or forming part of the systems for administration
of justice. In such circumstances, there is no reason to exclude the High Court from
the purview of the word Courts appearing in Ext. P4.
15. A reading of Ext. P4 shows that the notification was issued in terms of
Clause (a)(ii) of Sub-section (1) of Section 2 of the Kerala Essential Services Maintenance Act, 1994.
Necessarily the Government will have power to declare the High Court also as essential
service as the State Legislature has power to make laws on High Court or High Court
services as already discussed and found above. So Exts. P3 and P4 are applicable to
the High Court also.
16. Challenge is against Ext. P2 letter and the order issued by the Hon’ble Chief
Justice as referred to therein. A reading of Ext. P2 makes it clear that what the
Hon’ble Chief Justice has done was to make applicable Ext. P3 and P4 notifications to
High Court services. The Hon’ble Chief Justice was not issuing any notification either
under Section 2 or 3 of the Act declaring High Court as an essential service or prohibiting
the strike. Ext. P2 is not an order by itself; but only an information to the concerned
that the strike by the members of staff and officers of the High Court is prohibited.
When Exts. P3 and P4 are applicable to High Court, as found above, necessarily there
is nothing illegal in Ext. P3 communication of the order of the Hon’ble Chief Justice
referred to therein.
Therefore, the petitioners are not entitled to any of the reliefs claimed in the
Original Petition. Dismissed. No costs.