IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11/07/2003
CORAM
THE HONBLE MR.B.SUBHASHAN REDDY, CHIEF JUSTICE
And
THE HONBLE MR.JUSTICE K.GOVINDARAJAN
W.A.No.2278 of 2003 and W.A.No. 2279 of 2003
and
W.A.M.P.Nos.3313 to 3316 of 2003
and
W.P.Nos.18545, 18835, 18657, 18849, 18850, 18851, 18852, 18941, 19080,
19147 & 19159 of 2003
and
W.P.M.P.Nos.23176, 23504, 23171, 23504, 23557, 23558, 23680, 23574,
23575, 23576, 23577, 23578, 23579, 23580, 23581, 23582, 23583, 23584,
23585, 23709, 23710, 23883, 23957 of 2003
W.A.Nos.2278 & 2279 of 2003 & W.No.18545 of 2003
1. The Government of Tamil Nadu,
Rep. By the Chief Secretary to Govt.,
Fort St.George, Chennai 9.
2. The Secretary to Government,
Public and Administrative Reforms Department,
Fort St.George,
Chennai 9.
3. The Secretary to Government,
Public Department,
Fort St.George,
Chennai 9.
4. The Secretary to Government,
Home Department,
Fort St.George,
Chennai 9.
5. The Secretary to Government,
Law Department,
Chennai 9.
6. The Director General of Police,
Mylapore,
Chennai 4. ..Appellants in both the Writ Appeals.
& Respondents in W.P.18545/03.
-Vs-
The Tamil Nadu Co-operative Subordinate
Officers Association,
Rep. by its State President
Mr.P.Dhandapani. ..Respondent in both the Writ Appeals.
& Petitioner in W.P.18545/03.
W.P.No.18835 of 2003
C.Kuppusami,
Member of Parliament,
No.10, Thiyagaraya Street,
North Usman Road,
Chennai 600 017. ..Petitioner
Vs.
1.State of Tamil Nadu,
rep. by its Chief Secretary to Govt.,
Fort St.George,
Chennai 600 009.
2.Secretary to Government of Tamil Nadu,
Law Department,
Fort St.George,
Chennai 600 009. ..Respondents.
W.P.No.18657 of 2003
K.R.Ramaswamy @ Traffic Ramaswamy ..Petitioner.
Vs.
1.The State Government of Tamil Nadu
Rep. by its Chief Secretary,
Government of Tamil Nadu,
Fort St.George, Chennai 9.
2.Secretary to Public Department,
Government of Tamil Nadu,
Chennai 9.
3. Secretary to Education Department,
Government of Tamil Nadu,
Fort St.George,
Chennai 9. ..Respondents.
W.P.No.18849 of 2003
All India Trade Union Congress,
Rep. by its General Secretary,
Tamil Nadu Unit,
No.25, Kovur Vidyanathan Street,
Chindadripet, Chennai 2. ..Petitioner.
Vs.
State of Tamil Nadu,
Rep. by its Chief Secretary to Government,
Fort St.George,
Chennai 9. ..Respondent.
W.P.No.18850 of 2003
Thamilaga Aramba palli Aasiriar Kootany,
Rep. by its Secretary I/c Dayalan,
52, Mayor Chitty Babu Street,
Triplicane, Chennai 2. ..Petitioner.
Vs.
State of Tamil Nadu,
Rep. by its Chief Secretary to Government,
Fort St.George,
Chennai 9. ..Respondent.
W.P.No.18851 of 2003
Tamil Nadu Secretariat Officers Association,
Rep. by its President,
Secretariat,
Fort St.George,
Chennai 9. ..Petitioner.
Vs.
1.The State of Tamil Nadu,
rep. by its Secretary to Govt.,
Department of Home,
Fort St.George,
Chennai 600 009.
2.The Chief Secretary,
Government of Tamil Nadu,
Fort St.George,
Chennai 600 009.
3.Secretary to Government,
Personnel and Administrative Reforms Department,
Government of Tamil Nadu,
Fort St.George,
Chennai 600 009.
4.Secretary to Government,
Public Department,
Government of Tamil Nadu,
Fort St.George,
Chennai 600 009. ..Respondents.
W.P.No.18852 of 2003
S.Namasivayam,
W 5 19th Street,
Anna Nagar Western Extension,
Chennai 101. ..Petitioner.
Vs.
1.Government of Tamil Nadu,
rep. by its Chief Secretary to Government,
Fort St.George,
Chennai 600 009.
2.The Secretary to Government,
Law Department,
Fort St.George,
Chennai 9.
3.The Secretary to Government,
Personnel and Administrative Reforms Dept.,
Fort St.George,
Chennai 9.
4.The Secretary to Government,
Finance Department,
Fort St.George,
Chennai 9.
5.The Secretary to Government,
Home Department,
Fort St.George,
Chennai 9.
6.The Secretary to Government,
Legislative Assembly,
Secretariat,
Chennai 9.
7.The Director General of Police,
Chennai 4.
8.The Commissioner of Police,
Chennai 8. ..Respondents.
W.P.No.18941 of 2003
T.K.Rangarajan,
Vice president,
Tamil Nadu State Transport Employees Federation,
52, Cooks Road,
Chennai 12. ..Petitioner.
Vs.
1.The Government of Tamil Nadu,
rep. by its Chief Secretary,
Secretariat,
Chennai 600 009.
2.The Secretary,
Law Department,
Government of Tamil Nadu,
Secretariat,
Chennai 9.
3.The Secretary,
Home Department,
Government of Tamil Nadu,
Secretariat,
Chennai 9. ..Respondents.
W.P.No.19080 of 2003
G.Purushothaman
H 101/G2, Sea View Apartments,
1st Sea Ward Road, Valmiki Nagar,
Thiruvanmiyur,
Chennai 41. ..Petitioner.
Vs.
1.State of Tamil Nadu,
rep. by the Chief Secretary to Government,
Fort St.George, Chennai 9.
2.Secretary to Government of Tamil Nadu,
Law Department, Fort St.George,
Chennai 9. ..Respondents.
W.P.No.19147 of 2003
T.Velmurugan
63, Nattumuthunaicken St.,
Teynampet,
Chennai. ..Petitioner.
Vs.
1.Government of Tamil Nadu,
rep. by its Chief Secretary,
Secretariat,
Chennai 9.
2.The Secretary,
Law Department,
Government of Tamil Nadu,
Secretariat,
Chennai 9.
3.The Secretary,
Home Department,
Government of Tamil Nadu,
Secretariat,
Chennai 9. ..Respondents.
W.P.No.19159 of 2003
1.Era.Mathivanan
2.V.Karuppasamy
3.R.Krishnan
4.M.S.Pasupathi
5.L.Balan
6.S.George Alexander
7.M.Chelladurai
8.S.Pauldurai
9.C.Nagarajan
10.P.Sumathi
11.G.Kamala
12.D.Sakunthala
13.S.Tamil Selvi
14.N.Sundara Moorthy
15.M.Jeevanantham ..Petitioners.
Vs.
1.The State of Tamil Nadu,
rep. by its Secretary to Government,
Department of Home,
Fort St.George,
Chennai 9.
2.The Chief Secretary,
Government of Tamil Nadu,
Fort St.George,
Chennai 9.
3.Secretary to Govt. of Tamil Nadu,
Personal and Administrative Reforms Department,
Govt. of Tamil Nadu,
Fort St.George,
Chennai 9.
4.Secretary to Govt.,
Public Department,
Govt. of Tamil Nadu,
Fort St.George,
Chennai 9. .. Respondents.
PRAYER: Appeals against the common interim order passed by the
learned single Judge dated 6.7.2003, passed in W.P.M.P. Nos.23170 and
23171 of 2003 in W.P.No.18545 of 2003, and writ petitions praying for the
issuance of writ of mandamus and other directions, as stated therein.
Writ Petitions filed under Article 226 of the Constitution of India, for the
issuance of a writ of mandamus and other directions as stated therein.
!For Appellants in both
writ appeals and Respondents
in all the Writ Petitions. : Mr. N.R. Chandran,
Advocate General assisted by Mr.V.Raghupathy
Government Pleader
Assisted by Mr.D.Krishnakumar
Spl. Govt. Pleader.
^For Respondent in both the : Mr.S.M.Subramaniam
Writ Appeals & Petitioner in
W.P.18545/03.
Mr.R.Viduthalai : For Petitioner in W.P. No. 18835
of 2003.
Mr.K.Chandru, Senior Counsel : For Petitioner in W.P.Ns. For Mr.R.Ganesan
18849 & 18850/2003.
Mrs.Nalini Chidambaram, : For Petitioenr in W.P.18851 Senior Counsel of
2003. For M/s.S.Silambanan
Mr.T.R.Rajagopalan, : For Petitioner in W.P.18852 Senior Counsel
of 2003. For M/s.A.V.K.Ezhilmani
Mr.N.G.R.Prasad : For Petitioner in W.P.18941 For M/s.Row &
Reddy of 2003
Mr.G.Purushothaman : For Petitioner in W.P.19080 Party in
Person of 2003.
Mr.K.Balu : For Petitioner in W.P.19147 of
2003.
Mr.P.Wilson : For Petitioner in W.P.19159 of
2003.
K.R.Ramasamy : Party-in-Person in W.P.18657 of
2003.
:J U D G M E N T
THE HONBLE THE CHIEF JUSTICE
At issue, is the constitutionality of the Tamil Nadu Essential
Services Maintenance Act, 2002, as also the Tamil Nadu Ordinance No.3 of 2003,
and the consequential actions of dismissals and arrests, made there under.
The above Act and Ordinance are hereinafter referred to as the Act and the
Ordinance. The Act was enacted and was brought into force w.e.f. 1.10.2002.
Section 3(1) of the Act enables the Government to impose ban on strikes in
essential services, as may be notified, and after the imposition of such ban,
any strike, in essential services, is treated as illegal and also a crime
rendering the strikers punishable for the said crime, apart from the
disciplinary actions, and even the instigators and financiers are punishable
for the crime as abettors.
2. The Government had evolved a policy and issued G.O.Ms.Nos.71, 72,
73, 74 and 75, all dated 19.03.2003, by which the pensioners rights are
slightly affected, touching upon their qualifying service, basis of
computation of emoluments, earned leave en-cashments, commutation, basis of
computation of such commutation, and also the quantum of cash payment towards
gratuity amount as immediate cash payment is restricted to 50% by deferring
the balance of 50% by issuance of Small Savings Certificates to be encashed
after the period of their maturity. It is needless to mention that there are
several associations of employees and they made representations to the
Government to withdraw the above Government Orders, but the Government did not
consider their demand to review its decision, and then the employees
Associations passed resolutions deciding to strike work, until their demands
are accepted by the Government. Then the Government issued notification dated
23.4.2003, which reads thus: Abstract Essential Services Maintenance of
Essential Services Prohibiting strikes in certain essential services, public
services and posts in connection with the affairs of the State Order under
sub-section (1) of Section 3 of the Tamil Nadu Essential Services Maintenance
Act, 2002 Notified. PUBLIC (SC) DEPARTMENT
G.O.Ms.No.415 Dated:
23.04.2003 Read ORDER
The following notification will be published in the Tamil Nadu
Government Gazette Extraordinary, dated 23.04.2003:
NOTIFICATION WHEREAS a section of the members of the essential services
specified in the Annexure to this order have announced various modes of
agitation which includes strike; AND WHEREAS the Government is
satisfied that in the public interest and in the interest of public order, it
is necessary to prohibit strike in the said essential services; NOW,
THEREFORE, in exercise of the powers conferred by sub-section (1) of section 3
of the Tamil Nadu Essential Services Maintenance Act, 2002 (Tamil Nadu Act 36
of 2002), the Governor of Tamil Nadu hereby prohibits strike in the essential
services, specified in the Annexure to this order, from the date of
publication of this Notification in the Tamil Nadu Government Gazette.
(BY ORDER OF THE GOVERNOR)
LAKSHMI PRANESH
CHIEF SECRETARY TO GOVT.
3. The said order has been passed in exercise of powers conferred
under Sub Section (1) of Section 3 of the Act. When the employees struck work
on 1st July 2003, and continued the following days, the Government had invoked
the provisions of the Act and made arrests and also initiated disciplinary
actions. On 4.7.2003 W.P.No.18545 of 2003 was filed questioning the validity
of the Act. Notices were issued by the learned single Judge on the same day,
and the matter was posted to 7.7.2003. Meanwhile, late in the day of
4.7.2003, the Government has promulgated the ordinance by amending Section 7
of the Act and substituting an entirely new provision, dispensing with the
audi alterm partem rule for inflicting penalties varying from dismissal to
break in service. Residence motion was moved before the learned single Judge
on 5.7.2003 questioning the same, and seeking urgent orders. After hearing
the parties, the learned single Judge directed the learned Advocate General to
seek instructions from the Government as to why the plea of the strikers to
withdraw the strike and resumption to duty cannot be considered by the
Government, by withdrawing the proceedings relating to disciplinary actions
and prosecution. The matter came up on 6.7.2003, and after the learned
Advocate General reported to the learned single Judge that any decision by the
Government would be taken only on Wednesday i.e., 7.7.2003, but the learned
single Judge felt urgency, and after considering the contentions on either
side the learned single Judge has passed the order in W.P.M.P.Nos.23170 and
23171 of 2003 in W.P.18545 of 2003. The relief portion is contained in
paragraph 19 of the said order, and the same reads as follows:
Para-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.
4. Then the learned single Judge has directed the matter to be posted
before the Division Bench on 07.07.2003, but the Government thought that it
was a matter of urgency, and residence motion was moved before the Chief
Justice by filing writ appeals, and the Division Bench was constituted to hear
the same. The Division Bench admitted the writ appeals and suspended the
operation of the order of the learned single Judge, and posted the matters
next day.
5. As the matters are being heard from 7.7.2003, there was a spate of
writ petitions. The above two writ appeals are directed against the interim
orders passed in W.P.No.18545 of 2003. The other writ petitions are filed
challenging the vires of the Act or the Ordinance or both, with one exception
in W.P.No.18657 of 2003, which has been filed by a Party-in-Person, seeking a
mandamus directing the Government authorities to declare the strike as illegal
and unconstitutional. In W.P.No.18851 of 2003 apart from questioning the
Ordinance, the consequential orders of dismissal of employees are sought to be
quashed, with directions to reinstate the said employees by setting at naught
punishments inflicted by way of disciplinary action.
6. In W.P.No.18941 of 2003 both the Act and the Ordinance are
challenged and further seeks to set aside the arrests made and the dismissal
orders passed against the employees.
7. The matters were heard, and the learned counsel M/s..S.M.Subramaniam, Nalini Chidambaram, R.Viduthalai, K.Chandru,
T.R.Rajagopalan, N.G.R.Prasad, R.Vaigai, K.Balu and P.Wilson appeared for the
petitioners questioning the Act, Ordinance and the consequential action by the
authorities, while Mr.K.Ramaswamy a Party in Person has supported the Act
and the Ordinance and sought for the issuance of mandamus to enforce the same
in his Writ Petition No.18657 of 2003.
8. Mr.N.R.Chandran, learned Advocate General defended the validity of
the Act, Ordinance and the actions taken by the authorities.
9. Mr.S.M.Subramaniam, learned counsel for the petitioner in
W.P.No.18545 of 2003, submits that the strikers repented striking work, that
they have stated before the learned single Judge offering to withdraw the
strike, that there was no reason for the Government to reject the said offer,
that when the matter was in the process of hearing, the issuance of Ordinance
was uncalled for, that there was also no such urgency to issue the Ordinance,
that the number of dismissals of employees swelled from 4,300 on 4.7.2003 to
one lakh on 5.7.2003 and 3 lakhs on 7.7.2003, and further went up to 4 lakhs
on the following day, and that the recourse to High Court under Article 226 is
the only remedy, as the State Administrative Tribunal is functioning only with
the Vice Chairman, and the constitutional validity of the Act or the Ordinance
cannot be challenged before the said forum. He also submits that apart from
the above arbitrary dismissals, the employees and their family members are
sought to be evicted from the government quarters in their occupation, and if
such arbitrary and capricious act is not immediately stayed, then lakhs of
employees with their multifold families would be rendered homeless.
10. Mrs.Nalini Chidambaram, the learned Senior Counsel appearing for
the petitioner in W.P.No.18851 of 2003 invoked the doctrine of necessity for
the same reason that one member State Administrative Tribunal cannot entertain
a lis of this nature. She also raised a point that the lis is not related to
the service conditions of the employees, and the impugned Act and Ordinance
are only traceable to entry 3 of List III of Schedue VII of the Constitution
and as there is no Presidential assent for the Ordinance, the Ordinance is
unconstitutional and is bad. She also submits that the Audi Alteram Partem
Rule embedded in Article 311 for employees facing dismissal orders have been
grossly violated and that the ordinance does not attract the essentials
required for the exceptions provided in 2nd proviso to Clause (2) of Article
311 of the Constitution of India. She further submits that apart from the
handicap the Tribunal is facing with only one Vice Chairman as a Presiding
Member, the public interest litigation cannot be entertained by the Tribunal
and on that count also the writ petitions are maintainable, as they have been
filed as public interest litigations. She further submits that the
post-decisional hearing is an empty formality, and the appropriate forum is
ineffective, and that in any event the punishments proposed and that too en
masse dismissals, even without verifying the gravity in each of the cases is
grossly disproportionate. Lastly, she submits that the Ordinance is hit by
legal mala fides.
11. Mr.R.Viduthalai, the learned counsel submits that the petitioner
is a Parliamentarian and concerned with the governmental action and contends
that the impugned Act and Ordinance and consequent dismissals and arrests are
all violative of the fundamental rights guaranteed under Articles 14 and 21 of
the Indian Constitution and also of the constitutional provisions envisaged in
Articles 309, 311 of the Constitution of India. He further submits that the
legislation particularly Ordinance is referable to entries 1, 2, and 3 of the
Concurrent List and require prior assent of the President, and that Ordinance
having not been sent to the President for assent is per se unconstitutional.
He also submits that the very fact that the Act was sent for assent of the
President, makes it ex facie clear that any amendment thereto also requires
Presidential assent, and the Ordinance has been issued hurriedly only as a
vindictive measure, even though the State Government fully knew that the
Ordinance require Presidential assent. He further submits that no
retrospectivity can be given to the Ordinance, as new rights are created in
the Government and the obligations against the employees.
12. Mr.K.Chandru, learned Senior Counsel submits that before the
promulgation of Ordinance only criminal liability was imposed under Sections
4, 5, and 6 of the Act, and Section 7 of the Act only mentions that the Act
was in addition to the service rules, which were already in force and by the
issuance of the Ordinance the presumption of strike and the punishment there
of are introduced, that the dicta laid down by the Supreme Court in L.Chandra
Kumars Case is inapplicable and that in any event the administrative tribunal
is not competent to hear the matter as there is only one Vice Chairman
presiding over the matters and he is not entitled to test the
constitutionality of the Act and the Ordinance. He also submits that the
Ordinance is violative of Article 20 of the Constitution of India, because of
the retrospectivity given to the Ordinance w.e.f. 23.4.2003. The learned
Senior Counsel lastly submits that setting aside all the technicalities
regarding the exhaustion of alternative remedy, an extraordinary situation has
arisen because of the dismissal of lakhs of employees and arrests of more than
2000 of them, and this extraordinary situation warrants invocation by this
Court of its extraordinary jurisdiction under Article 226 of the Constitution
of India.
13. Mr.T.R.Rajagopalan, learned Senior Counsel contends that the
arrests were illegal and a call given by the Government to call off the strike
and attend the duties could not be complied with by the arrestees, as they
were in judicial remand and that in fact there are no individual complaints
and the arrests were made en masse without passing any individual orders. The
learned Senior Counsel further submits that even assuming that the State
Administrative Tribunal has to be approached first, the remedy is not
efficacious, as already 60000 cases are pending with one member (Vice
Chairman) to decide the same, and if this many dismissed employees have to
invoke the jurisdiction of the Tribunal, then even 20 years are not sufficient
for adjudication of their cases, and that circumstance itself is sufficient
ground for the invocation of this Courts power under Article 226 of
Constitution of India.
14. Mr.N.G.R.Prasad, learned counsel submits that the Act and the
Ordinance are violative of Article 14 of the Constitution of India, amounting
to legislative despotism imposing legislative conviction and doing away the
pre-decisional hearing and making post-decisional hearing a mockery and
robbing the striker of opportunity to explain and that the Act runs contra to
the provisions of the Industrial Disputes Act, 1947 and particularly, Section
22 there of, and the strike in the Industrial Disputes Act is not illegal
while it is per se made illegal and criminal, under the Act and the Ordinance.
He also submits that Article 311 of the Indian Constitution is grossly
violated.
15. Ms.Vaigai, learned counsel submits that the State of Tamil Nadu
has already taken a decision to abolish the administrative tribunal and
conveyed it to the Central Government, and the tribunal is no more to
continue, and apart from the fact that a single member of the tribunal cannot
adjudicate upon the constitutionality of the Act and the Ordinance, there is
no bar for entertaining the writ petition directly and cited the judgment of
the Supreme Court reported in 1997 (10) SCC 663 and particularly referring to
paragraph-6 thereof.
16. Mr.N.R.Chandran, learned Advocate General appearing for the State
and its authorities counters the arguments of the learned counsel appearing
for the different petitioners, stating that associations cannot maintain writ
petitions and only affected individual employees are entitled to espouse their
cause by filing individual writ petitions, and that public interest
litigations cannot be maintainable in service matters and the administrative
tribunal cannot be bye passed, merely because the PILs are not maintainable
before the tribunal and as the administrative tribunal has been constituted
for the State to deal with the service matters and is still continuing even
with one member, it cannot be said that there is no tribunal at all and so
long as even that member, who is the Vice Chairman and retired Judge of this
Court, functions and till the abolition of the tribunal, this Courts
jurisdiction in service matters is barred until the remedies are first
exhausted before the tribunal. The learned Advocate General heavily relies
upon the Judgment of the Supreme Court in L.Chandrakumars Case (supra), as
also the later Judgment of the Supreme Court reported in 2002 (4) SCC 145. He
submits that Section 7 of the Ordinance only covers the government servants
and not others and there is no material before this Court that persons not
covered by the Act and the Ordinance have been subjected to either
disciplinary or penal action. He further submits that the Act and the
Ordinance are referable only to entries 41 and 64 of List-II of Schedule-VII,
and the Presidents assent was obtained for the Act only as a precautionary
measure, and that in any event as the Ordinance does not entrench upon the
legislative field in Concurrent List, it is not vitiated for the lack of
Presidents assent. He also submits that no arrests have been after the
observations made by the learned single Judge during the course of hearing on
4th and 5th July, 2003 and that no action will be taken by the Government and
by its authorities to evict any of the government servants from the government
quarters they are occupying. He further submits that the Act and the
Ordinance do not suffer from any constitutional infirmities, and that the
dismissal orders passed and the arrests made have to be challenged
individually before the authorities as specified, and in fact whoever has
filed bail petitions have been released on bail and the bail pleas were not
even contested and other arrestees did not even file bail petitions. In
answering the plea of Mrs.Nalini Chidambaram, learned Senior Counsel to invoke
the doctrine of necessity, the learned Advocate General submits that in fact
the doctrine of necessity lies otherwise as even assuming that a single member
bench of the administrative tribunal cannot adjudicate upon the validity of
the legislative action, be it Act or Ordinance, there being no chance of
another member being appointed, applying the doctrine of necessity, the single
member administrative tribunal consisting of only a Vice Chairman, has got to
dispose of matters of any nature including the matters questioning the
constitutionality of the Act and the Ordinance, and cites ILR 1994 (2) Madras
935, in support of his contention. Lastly, he submits that the governments
action is not vindictive as this is not the first time that the employees are
striking the work, but however much the Government was lax and lenient in
considering and acceding to the demands of the employees, the employees were
never satisfied with the concessions made by the Government and time and
again, they were holding threats of striking the work, and in fact, did on
some occasions, and that the Government had eventually felt that the time has
come to discipline the employees and only as a last resort took measures for
the enactment of the Act and the promulgation of the Ordinance, and it would
consider the matters in individual cases on applications being filed to annul
the punishments of dismissal inflicted on them, basing on the evidence placed
on record and that the Government neither acted arbitrarily nor capriciously
and actions of Government are in good spirit and keeping in view the larger
public interest.
17. Plethora of precedents have been cited on either side in support
of their contentions. But, insofar as the facts are concerned they are
general and bereft of particulars with regard to each of the employees and
particularly, there is nothing demonstrated to show that any employee not
attracted by the provisions of Administrative Tribunals Act is either detained
in prison or dismissed from service.
18. From the submissions on either side, the following contentious
issues emerge for consideration: (a) Whether the writ petitions are
maintainable without exhaustion of remedies before the State Administrative
Tribunal; (b) Whether the impugned Act lacks in legislative competence or
violative of fundamental rights guaranteed in Articles 14, and 20 of the
Constitution of India or the constitutional rights provided in Articles 309
and 311 of the Constitution of India; (c) Whether the impugned Ordinance is
bad for want of Presidential assent and even if the said assent is not
required is it valid on the touchstone of the fundamental rights, legislative
competence and the constitutional safety with regard to dismissals as provided
under Article 311 of the Indian Constitution.
19. Of the above contentious issues, we are obliged to address the
first issue first, as it touches upon the jurisdiction of this Court to
entertain the writ petitions directly without intervention of the State
Administrative Tribunal. If the answer is in the affirmative, then a need
arises to address on other issues, but not otherwise, as the cardinal
principles of law are that once the Court holds that it has no jurisdiction to
entertain the cause, then it is precluded from addressing on the merits
thereof. Hence, we proceed to deal with the first issue.
20. Articles 226 and 227 of the Constitution of India provide
constitutional remedies. Writs are issued under Article 226 of the
Constitution of India and such power conferred is extraordinary in nature and
has to be exercised not as an ordinary measure but only for enforcing public
remedies. Protection of fundamental rights and enforcement thereof fall
within the realm of public remedies and existence of alternative remedy is no
answer against exercise of powers by the High Courts. Apart from the
violation of fundamental rights, the High Courts intervention is warranted in
case of violation of other constitutional rights, for instance, Articles 300A
and 311 of the Constitution of India. The High Courts can also interfere by
issuance of writs, where the actions of statutory authorities or other
authorities coming within the definition of Article 12 of the Indian
Constitution are assailed to be devoid of jurisdiction or in violation of the
audi alteram partem rule. The High Courts intervention may be necessary even
in cases where the alternative remedy available is either ineffective or
entails in delay. No specific restriction is placed on the exercise of the
jurisdiction by the High Courts for issuance of writs and it is for the High
Court to practice self-restraint while dealing with the issuance of writs or
directions in exercise of the powers under Article 226 of the Constitution of
India. But what is stated supra is applicable only when the jurisdiction is
vested in the High Court and not when its jurisdiction is excluded. By that,
we do not mean that the plenary powers conferred on the High Courts by the
constitutional makers under Article 226 of the Constitution of India or for
that reason Article 227 thereof can be taken away by any statute. But they
can be taken away by the constitution amendment was the verdict given by the
Five-Judge Constitutional Bench of the Supreme Court in S.V.Sampath Kumar Vs.
Union of India (AIR 1987 SC 386). We may state the origin leading to the
above adjudication.
21. Article 323-A was introduced by Constitution (42nd Amendment)
Act, 1976, which came into force from 3.1.1977 enabling the Parliament to make
law providing adjudication by administrative tribunals of disputes and
complaints with respect to recruitment and conditions of service of persons
appointed to public services and posts in connection with the affairs of the
Union or of any State or of any Local Authority or other Authority within the
territory of India or under the control of the Government of India or of any
Corporation owned or controlled by the Government to the exclusion of the High
Courts. Consequently, the Parliament had enacted Administrative Tribunals
Act, 1985. Section 14 of the above Act deals with the setting up of Central
Administrative Tribunals for Central Services and Section 15 for State
Services. Enactment of 42nd Constitutional Amendment Act incorporating
Article 323-A and the consequent Administrative Tribunals Act, 1985 were
assailed before the Supreme Court in S.V.Sampath Kumar Vs. Union of India
(AIR 1987 SC 386) and a Five-Judge Constitutional Bench of the Supreme Court
of India upheld the constitutional validity of the above enactments while
making some suggestions which have been accepted by the Central Government.
Consequently, amendments were made. The Supreme Court ruled that exclusion of
jurisdiction of High Court under Articles 226 and 227 of the Constitution of
India in service matters is valid, as an efficient alternative institutional
mechanism has been provided by setting up of the Administrative Tribunals and
the said Administrative Tribunals function as substituted authorities for
judicial review in service matters in place of the High Courts. Because of
the said authoritative pronouncement, High Courts were precluded from
entertaining any dispute for adjudication relating to service matters and they
were being dealt with by the administrative tribunals, at the places they have
been set up. This continued for a decade and then came another Seven-Judge
Constitutional Bench Judgment in L.Chandrakumar Vs. Union of India and Others
(AIR 1997 SC 1125), striking a different note but retaining the original
jurisdiction of the administrative tribunals to deal with the service matters.
While in Sampathkumars case (1st supra) the Supreme Court held that the
administrative tribunals, which are set up, act as substitutes for the High
Courts to the total exclusion of the jurisdiction of the High Courts in
service matters, L.Chandrakumars case (2nd supra) took a view that the role
of the administrative tribunals is only supplemental and they are not
substitutes of High Courts and the tribunals act as primary authority, after
which their decisions can be scrutinized by the High Court in exercise of
powers of judicial review under Articles 226 and 227 of the Constitution of
India. In effect, the jurisdiction of the High Courts to exercise the powers
of judicial review has been restored, but with a condition that the High Court
shall not entertain any matter relating to service disputes unless the remedy
is first exhausted before the administrative tribunals. The argument that the
administrative tribunals cannot test the legislative action was repelled by
the Supreme Court, and we feel it apt to extract what the Supreme Court said
in paragraph 93 of its Judgment. Before moving on to other aspects, we may
summarise our conclusions of the jurisdictional powers of these Tribunals.
The Tribunals are competent to hear matters where the vires of statutory
provisions are questioned. However, in discharging this duty, they cannot act
as substitutes for the High Courts and the Supreme Court which under our
constitutional set up, been specifically entrusted with such an obligation.
Their function in this respect is only supplementary and all such decisions of
the Tribunals will be subject to scrutiny before a Division Bench of the
respective High Courts. The Tribunals will consequently also have the power
to test the vires of subordinate legislations and rules. However, this power
of the Tribunals will be subject to one important exception. The Tribunals
shall not entertain any question regarding the vires of their parent statutes
following the settled principle that a Tribunal which is a creature of an Act
cannot declare that very Act to be unconstitutional. In such cases alone, the
concerned High Court may be approached directly. All other decisions of these
Tribunals, rendered in cases that they are specifically empowered to
adjudicate upon by virtue of their parent statutes, will also be subject to
scrutiny before a Division Bench of their respective High Court. We may add
that the Tribunals will, however, continue to act as the only Courts of first
instance in respect of the areas of law for which they have been constituted.
By this, we mean that it will not be open for litigants to directly approach
the High Courts even in cases where they question the vires of statutory
legislations (except, as mentioned, where the legislation which creates the
particular Tribunal is challenged) by overlooking the jurisdiction of the
concerned Tribunal. (Emphasis is ours).
22. No exception are provided by the Supreme Court in L.Chandra
Kumars Case (2nd supra) to skip the administrative tribunal and make a direct
approach to the High Court. But, all the learned counsel for the petitioners
argued in one voice relying upon the observations of the Supreme Court in
paragraph-98 in L.Chandrakumars judgment (2nd supra) in support of their plea
that one member (Vice Chairman), even if he is a retired Judge of this Court
would not satisfy the requirement of hearing the matter by a Division Bench,
because of the challenge of the constitutional vires of the Act and the
Ordinance. There, the Supreme Court was dealing with the interpretation to be
given to Sections 5(2) and 5(6) of the Administrative Tribunals Act, and
particularly, in the context of what has been stated in a previous Supreme
Court Judgment in Dr.Mahabal Rams Case3 (1994 (2) SCC 401). Apart from
Dr.Mahabal Rams case (3rd supra) yet another Judgment, which is relevant to
be mentioned and that is Amulya Chandra Kalita Vs. Union of India and Others
(1991 (1) SCC 181) 4 . There the interpretation of Section 5(2) of the
Administrative Tribunals Act came up for consideration and the Supreme Court
held that the matter therein pertain to transfer and decided by a single Bench
consisting of an administrative member was invalid, as only Division Bench
consisting of both judicial member and administrative member should have
decided and on that count the order of the Central Administrative Tribunal was
set aside and the matter was remitted back. Sub Section (6) of Section 5 of
the Administrative Tribunals Act was not cited for consideration. In
Dr.Mahabal Rams Case (3rd supra) decided by the Supreme Court, which also
related to transfer and in which dispute was decided by the single member of
the Central Administrative Tribunal, the impact of Sub Section (6) of Section
5 of the Administrative Tribunals Act vis a vis Sub Section (2) of Section
5 was considered, and it was held that both the sub sections have to be
harmoniously construed, and it would be open to either party appearing before
the single member to suggest that the matter be referred to the bench of 2
members and on such request the member should ordinarily allow the matter to
go to the bench of 2 members, and in that way sufficient protection is
afforded.
23. The said view was affirmed by the Supreme Court in
L.Chandrakumars case (2nd supra) in paragraph 98 thereof, further adding
we shall, to make it clear that whether a question involving interpretation
of a statutory provision or rule in relation to the Constitution arises for
consideration of a single member bench of the administrative tribunal, the
proviso to Section 5(6) will automatically apply and the Chairman or the
Member concerned shall refer the matter to the Bench consisting of atleast 2
members, one of whom must be of judicial member. This will ensure that
questions involving the vires of a statutory provision or rule will never
arise for adjudication before a single member bench or a bench which does not
consist of a judicial member. So construed, Section 5(6) will no longer be
susceptible to charges of unconstitutionality.
24. In view of the above emphatic statement of legal principles
revolving around Sections 5(6) of the Administrative Tribunals Act, we cannot
accede to the contention of the learned Advocate General that the above
statement of the Supreme Court is not a statement of legal principles, but
have to be read as mere observations not amounting to obiter dicta.
25. Now, there is a piquant situation. On one side there is a
mandate by the Supreme Court in L.Chandrakumars case (2nd supra) that the
High Court is not entitled to entertain any matter relating to service until
the exhaustion of the remedy firstly before the administrative tribunal, and
on the other the same judgment enunciated a legal principle that when a
constitutional validity of an Act or Ordinance or Rule is challenged before
the Administrative Tribunal, then only a Division Bench should hear such
matters. Now, the Tamil Nadu State Administrative Tribunal has a lone member
viz., Justice I.David Christian, a retired Judge of this Court. He was
appointed as the Vice Chairman, and as the previous Chairman has retired
during last year and nobody having been appointed in his place, the above Vice
Chairman is treated as Chairman by virtue of Section 7(1) of the
Administrative Tribunals Act. It is needless to mention that there is no
other members either judicial or administrative as on date. Now, the question
arises as to whether we should ignore the very existence of the Tribunal,
merely because there is only one member manning the tribunal, whether
described as Vice Chairman or Chairman, as the case may be. This situation
did not arise in the cases decided by the Supreme Court earlier, as such we
have to understand the judgment of the Supreme Court in L.Chandrakumars case
(2nd supra), as also Dr.Mahabal Rams case (3rd supra) that only if there is
more than one member then seeking a reference to a division bench for
adjudication shall arise, but not when there is a sole adjudicator as is in
the instant case. This is more so, because sub section (6) of Section 5 of
the Administrative Tribunals Act is still in the statute book, and the Vice
Chairman, who is the Chairman, is the only person who can hear and dispose of
the cases and there being none else, the question of seeking reference to
Division Bench does not arise at all and the proviso to sub section (6) of
Section 5 of the Administrative Tribunals Act is inapplicable. That apart,
the stress is on the participation of a judicial member in matters involving
adjudication of lis, questioning the vires of statutory provisions, and that
is basing upon the observations of the Supreme Court in Sampathkumars case
(1st supra), and upheld in Dr.Mahabal Rams case(3rd supra) and further
approved by a larger Bench of the Supreme Court in L.Chandrakumars case (2nd
supra), and which reads thus: It is necessary to bear in mind that service
matters which are removed from the jurisdiction of the High Court under
Articles 226 and 227 of the Constitution and entrusted to the Administrative
Tribunal set up under the impugned Act for adjudication involve questions of
interpretation and applicability of Articles 14, 15, 16 and 311 in quite a
large number of cases. These questions require for their determination not
only judicial approach but also knowledge and expertise in this particular
branch of constitutional law. It is necessary that those who adjudicate upon
these questions should have same modicum of legal training and judicial
experience because we find that some of these questions are so difficult and
complex that they baffle the minds of even trained judges in the High Courts
and the Supreme Court.
26. We are fortified in our view above from a different angle
also and that is doctrine of necessity. The doctrine of necessity has to be
invoked to affirm the jurisdiction and not to avoid. In this connection it is
relevant to refer a decision of the Division Bench of this Court in
Dr.Subramaniam Swamy Vs. J.Jayalalitha and Others ( I.L.R. (1994) 2 Madras
935). In the said case the appellant had sought for an enquiry on his
petition filed before the Governor under Article 192 of the Constitution of
India to disqualify the first respondent in terms of Article 191(1)(e) of the
Constitution of India, for the reasons stated therein. The first respondent
had filed a writ petition before the learned single Judge raising the plea of
bias against the then Chief Election Commissioner Mr.T.N.Seshan, and to
restrain the Governor from forwarding the application to the Election
Commission of India, and the said plea was accepted by the learned single
Judge, and writ was issued as prayed for. The same was appealed against and
the Division Bench has disposed of the writ appeal by its judgment dated
15.11.1993, directing the enquiry by the Election Commission, but sans the
participation of Mr.T.N.Seshan on the ground of bias. The matter ultimately
landed in the Supreme Court in Election Commission of India and Another Vs.
Dr.Subramaniam Swamy ( 1996 (4) SCC 104), and the Supreme Court held that in
as much as the Election Commission consists of the Chief Election Commissioner
and 2 other Election Commissioners, should there be concurrence between the
two Election Commissioners, the matter may be decided accordingly, but there
is no such concurrence and the opinion is divided, then Mr.T.N.Seshan, who was
the Chief Election Commissioner was entitled to adjudicate upon the matter
even if the plea of bias was made out. We feel it apt to extract the findings
contained in paragraphs 16 and 17 of the above judgment, which are relevant in
this context. Para-16 : We must have a clear conception of the doctrine.
It is well settled that the law permits certain things to be done as a matter
of necessity which it would otherwise not countenance on the touchstone of
judicial propriety. Stated differently, the doctrine of necessity makes it
imperative for the authority to decide and considerations of judicial
propriety must yield. It is often invoked in cases of bias where there is no
other authority or Judge to decide the issue. If the doctrine of necessity is
not allowed full play in certain unavoidable situations, it would impede the
course of justice itself and the defaulting party would benefit therefrom.
Take the case of a certain taxing statute which taxes certain perquisites
allowed to Judges. If the validity of such a provision is challenged who but
the members of the judiciary must decide it. If all the Judges are
disqualified on the plea that striking down of such a legislation would
benefit them, a stalemate situation may develop. In such cases the doctrine
of necessity comes into play. If the choice is between allowing a biased
person to act or to stifle the action altogether, the choice must fall in
favour of the former as it is the only way to promote decision-making. In the
present case also if the two Election Commissioners are able to reach a
unanimous decision, there is no need for the Chief Election Commissioner to
participate, if not the doctrine of necessity may have to be invoked.
Para-17: We think that is the only alternative in such a situation. We are,
therefore, of the opinion that the proper course to follow is that the Chief
Election Commissioner should call a meeting of the Election Commission to
adjudicate on the issue of disqualification of Ms.J.Jayalalitha on the grounds
alleged by Dr.Swamy. After calling the meeting he should act as the Chairman
but then he may recuse himself by announcing that he would not participate in
the formation of opinion. If the two Election Commissioners reach a unanimous
opinion, the Chief Election Commissioner will have the opinion to communicate
to the Governor. If the two Election Commissioners do not reach a unanimous
decision in the matter of expressing their opinion on the issue referred to
the Election Commission, it would be necessary for the Chief Election
Commissioner to express his opinion on the doctrine of necessity. We think
that in the special circumstances of this case this course of action would be
the most appropriate one to follow because if the two Election Commissioners
do not agree, we have no doubt that the doctrine of necessity would compel the
Chief Election Commissioner to express his views so that the majority opinion
could be communicated to the Governor to enable him to take a decision in
accordance therewith as required by Article 192(1) of the Constitution.
27. In view of what is stated supra, we hold that the present Vice
Chairman of the State Administrative Tribunal is entitled to adjudicate the
disputes relating to service matters of the State including that of the
constitutionality of Statue or Ordinance or Rules, as the case may be.
28. But, Ms.Vaigai, learned counsel draws our attention to yet
another Judgment of the Supreme Court reported in 1997 (10) SCC 663 (Union of
India and another Vs. P.Sathikumarn Nair and Others), in which a writ
petition relating to service dispute was entertained directly by the Supreme
Court. The said Judgment is inapplicable as the writ petition was entertained
directly by the Supreme Court under Article 32 of the Constitution of India,
and Section 28 of the Administrative Tribunals Act excludes the jurisdiction
of the High Court, but not of the Supreme Court, and it is so expressly and
specifically stated.
29. In view of what is stated supra, we hold that these writ
petitions are not maintainable without exhaustion of the remedy before the
State Administrative Tribunal. However, having regard to the magnitude of the
problem and the urgency involved, should any cause be espoused before the
State Administrative Tribunal, the State Administrative Tribunal shall
adjudicate the dispute, as early as possible. It shall also be open to the
aggrieved parties to file application before the appropriate authority
indicated under the impugned Ordinance for revocation of the punishments
inflicted on them and if any such applications are filed, they shall be
disposed of by the State Authorities not later than one month from the date of
receipt of such application, by affording reasonable opportunity.
30. Insofar as, the argument touching upon the Article 20 of the
Constitution is concerned, we do not see any infraction of the fundamental
right guaranteed in Clause (1) there of, as no new offence has been created
under the impugned Ordinance. The Act, which came into effect on 1.10.2002,
in its Sections 4, 5 and 6 already described the conviction and punishment for
the striker, instigator and the financier respectively. We have adjudicated
upon this aspect, as it falls beyond the sphere of service law.
31. Coming to the arrests, doubtless, bail petitions have to be filed
as the offences are cognisable and non-bailable, but that is in ordinary
cases. In a matter like this, where more than 2000 persons have been arrested
and the offences being quite different than usual offences like the one in
Indian Penal Code, the offences under the Act, cannot be viewed with such
severity, at least in the context of enlarging the arrested personnel on bail.
In fact, the learned Advocate General submitted that whoever has filed bail
applications have been let off on bail, but still as on date 2046 persons are
lodged in jails for the last 12 days. Total detentions are 2211, out of which
74 were ladies and as on date only 165 male and 7 female personnel have so far
have been enlarged on bail, and that shows the pathetic condition of the
arrestees. Among the arrestees the official cadre are less, while ordinary
staff of clerks and sub-staff are more in number. The sub-staff includes the
attenders and sanitary staff including sweepers. It will not be unreasonable
to presume that the personnel who were languishing in jail for 12 long days
for the offences of this nature, who cant be called criminals stricto senso,
are totally dejected having last their source of livelihood and there may be
several reasons disabling them from filing bail applications including the
financial aspect. We have already expressed that this Court not only a court
of law but the court of justice too, and court of justice does not mean
anything if it is not tempered with mercy. For that reason we dispense with
the formalities of filing bail petitions and direct the respective jail
authorities to forthwith release all the arrested persons who are in judicial
custody, in connection with the offences charged under Sections 4, 5, and 6 of
the Tamil Nadu Essential Services Maintenance Act, 2002 on taking personal
bonds for Rs.1,000/- each. This order shall be communicated by the Registrar
General of this Court by a Special Messenger to the Chief Secretary to the
State of Tamil Nadu, who shall in turn direct all the jail authorities in the
State of Tamil Nadu to comply with this order forth with. We would be happy
to see all the arrestees out of jail by the dawn of Saturday i.e., 12.07.2003.
32. In the result, the writ appeal and all the writ petitions are
disposed of accordingly. No costs. Consequently, connected W.A.M.Ps. and
W.P.M.Ps. are closed.
Internet : Yes
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Copy to
1. The Government of Tamil Nadu, Rep. By the Chief Secretary to
Govt., Fort St.George, Chennai 9.
2. The Secretary to Government, Public
and Administrative Reforms Department, Fort St.George, Chennai 9.
3. The Secretary to Government, Public Department,
Fort St.George, Chennai 9.
4. The Secretary to Government, Home Department, Fort St.George, Chennai 9.
5. The Secretary to Government, Law Department, Chennai 9.
6. The Director General of Police, Mylapore, Chennai 4.