{"id":191986,"date":"2002-02-08T00:00:00","date_gmt":"2002-02-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/john-vs-chief-justice-on-8-february-2002"},"modified":"2018-09-15T09:34:07","modified_gmt":"2018-09-15T04:04:07","slug":"john-vs-chief-justice-on-8-february-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/john-vs-chief-justice-on-8-february-2002","title":{"rendered":"John vs Chief Justice on 8 February, 2002"},"content":{"rendered":"
Kerala High Court<\/div>\n
John vs Chief Justice on 8 February, 2002<\/div>\n
Author: K A Gafoor<\/div>\n
Bench: K A Gafoor<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
  K.A. Abdul Gafoor, J.  <\/p>\n
 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.\n<\/p>\n
 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
\nas essential service. High Court is not a service under the Government. No power is
\nconferred on the Hon’ble Chief Justice of the High Court of Kerala to declare the
\nHigh Court as essential service. So the Hon’ble the Chief Justice cannot declare the
\nHigh Court as essential service. Elaborating these contentions Shri M.K. Damodaran,
\nthe learned counsel appearing for the petitioners submits that Clause (a) of Sub-section (i) of Section 2 of
\nthe Act can be invoked by the Government only that too in respect of the services
\nunder it alone. The High Court is not rendering service under the Government in
\nterms of Constitutional structure governing its establishment and functioning. It is a
\ntotally independent body and that independence is one among the salient basic structure
\nof the Constitution of India. So Ext. P3 and P4 notifications cannot take within their
\nfold, the High Court. It is further contended by the learned counsel for the petitioners
\nthat Ext. P4 notification even if issued under Section 2(1)(a)(ii) of the Act cannot cover the
\nHigh Court and High Court service, as those are not matters with respect to which the
\nState Legislature has power to make laws. So on that count also Ext. P4 does not
\ncover the High Court. The Act confers powers to issue notification declaring essential
\nservice or prohibiting strike in the essential service only on Government and not on the
\nChief Justice. Therefore the order issued by the Hon’ble Chief Justice as referred to
\nin Ext. P2 is without jurisdiction.\n<\/p>\n
 3. Referring to the Item No. (vii) “Courts, in Ext. P4, it is contended by the
\nlearned counsel that it takes within it only the subordinate courts and not the High
\nCourt because the State Legislature has power to make laws only with respect to the
\nSubordinate courts and service conditions of officers and employees of the subordinate
\ncourts. Therefore the Courts made mention of in Ext. P4 do not include High Court.
\nThis contention is sought to be fortified, citing the decision of the Supreme Court in
\nHarinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala and Ors. (AIR<\/a> 1961
\nSC 1669).\n<\/p>\n
 4. It is further contended that the legislative power conferred on the Legislature
\nunder Article 225 or Article 229 of the Constitution India does not take any power to
\nlegislate on the total aspects of the High Court. That legislative power is only limited.
\nThe legislative power of the State Legislature has to be understood in the light of
\nArticle 346(3) of the Constitution of India, referring to various entries in List No. II –
\nState List. Entry No. 41 is in respect of State Public Service and State Public Service
\nCommission. It will cover the services in the subordinate judiciary only. It will not
\ncover the services of the High Court. So far no law has been made by the State
\nLegislature in terms of Article 229 of the Constitution of India. Even if any law is so
\nmade by the State Legislature concerning the officers and servants of the High Court,
\nthe power of the Hon’ble the Chief Justice to prescribe service condition is not taken
\naway. The legislative power conferred by Entry No. 3 in the State List is also a
\nlimited power. Therefore on that count also, Government cannot issue a notification
\ndeclaring the High Court as an essential service where strike can be prohibited. There
\nis no law enabling the Chief Justice to declare the High Court as essential service and
\nto prohibit the strike by the officers and members of staff of the High Court of Kerala.
\nThe Act gives power only to Government to declare its services as essential service
\nand to prohibit the strike in their service and not outside that. Prohibition of strike in
\nHigh Court, as per Ext. P2 is therefore without authority of law.\n<\/p>\n
 5. On the other hand, it is contended by the respondents that the legislative
\npower conferred on the State Legislature by Articles 225 and 229 of Constitution of
\nIndia is sufficient enough to take the High Court within the fold of Ext. P4 notification.
\nIt is further contended that when the issue is viewed in that angle, necessarily Ext. P4
\nwill cover the High Court as well. In the ordinary meaning, the word Courts will take
\nin the entire system of courts at different levels where the administration of justice is
\ndispensed with. It is further contended that Ext. P2 letter issued by the Registrar is
\nonly a communication given as follow up action to Ext. P3 and P4 notifications issued
\nby Government. It does not have a separate existence. Even without Ext. P2, the
\nHigh Court stands declared in terms of Ext. P4 an essential service and consequently
\nthe strike in the High Court stands prohibited in terms of Ext. P3 notification issued
\nunder Section 3 of the Act.\n<\/p>\n
 6. These contentions have to be necessarily examined with reference to the
\nprovisions in the statute and the Constitution.\n<\/p>\n
 7. Section 2(1)(a)(i) of the Act, 1994 will obviously cover only the services under the
\nGovernment. A notification issued under that provision can declare only service under
\nGovernment as essential service. High Court is, necessarily, not a service under the
\nGovernment. There cannot have any dispute on this. A reading of Ext. P4 will show
\nthat it became necessary to issue that notification, as Government of Kerala was of
\nthe opinion that, the threatened strike would result in the infliction of grave hardship on
\nthe community in the State. This phraseology is adopted from Sub-clause (ii) of Clause (a) of
\nSub-section (1) of Section 2 of the Act. That means Ext. P4 is a notification issued in terms of
\nthat clause. The said clause reads:\n<\/p>\n
  any other service connected with matters with respect to which the State Legislature has
\npower to make laws and which the Government, being of opinion that strikes therein would
\nprejudicially affect the maintenance of any public utility service, the public safety or the
\nmaintenance of supplies and services necessary for the life of the community or would result
\nin the infliction of grave hardship on the community, may, by notification in the Gazette, declare
\nto be an essential service for the purpose of this Act.\n<\/p>\n
 8. So Government can declare any service as essential service, if it is connected
\nwith matters with respect to which the State Legislature has power to make laws.\n<\/p>\n
 9. Article 225 of the Constitution of India make it clear that subject to the provisions
\nof this Constitution and to the provisions of any law of the appropriate legislature
\nmade by virtue of powers conferred on that legislature by this Constitution, the
\njurisdiction of and the law administered shall be the same as immediately before the
\ncommencement of this Constitution. Therefore, by reason of this Article the appropriate
\nState Legislature is enabled to make laws by virtue of powers conferred on that
\nlegislature by the Constitution.\n<\/p>\n
 10. Article 316(3) confers the State Legislature exclusive power to make laws for
\nsuch State or any part thereof with respect to any of the mattes enumerated in List II
\non the Seventh Schedule. Entry No. 3 in the State list is as follows:\n<\/p>\n
 “Officers and servants of the High Court;\n<\/p>\n
 Entry 65 in the State List reads as follows:\n<\/p>\n
  Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the
\nmatters in the list.\n<\/p>\n
 11. Article 229 provides that subject to the provisions of any law made by the
\nLegislature of the State, the conditions of service of officers and servants of a High
\nCourt shall be such as may be prescribed by the rules made by the Chief Justice of the
\nCourt.\n<\/p>\n
 12. Thus, with regard the jurisdictional aspect of the High Court, the State
\nLegislature has power to make laws in terms of Entry 65 in List II with Article 225 and
\nArticle 246(3) of the Constitution of India. So also the State Legislature has power to
\nmake law – whether it is made or not is irrelevant regarding the conditions of services
\nof the staff and officers of the High Court, in terms of Article 329(2) of the Constitution
\nof India and Entry No. 3 in List No. II in the Seventh Schedule to the Constitution of
\nIndia.\n<\/p>\n
 13. Sub-clause (ii) of Section 2(1)(a) of the Act does not differentiate between the limited
\nlegislative power and unlimited legislative power. The requirement to issue a notification
\nunder that clause declaring any service as essential service is that the State Legislature
\nshall have power to make laws in respect of the matter which is connected with any
\nservice and the Government shall be of the opinion that the strike would result in the
\ninfliction of grave hardship on the community. The different articles and entries as
\nreferred to and discussed above show that there is legislative power for the State
\nLegislature to make laws either with regard to the jurisdictional aspect of the High
\nCourt and also with regard to the conditions of staff and officers of the High Court.
\nThese are matters with respect to which the State Legislature has power to make
\nlaws. In view of the above, necessarily Government can declare the High Court also
\nas essential service, provided, Government is of the opinion that the threatened strike
\ncould result in the infliction of grave hardship on the community.\n<\/p>\n
 14. The next thing to be examined is the contention of the petitioners that the
\nHigh Court will not come within the purview of item No. (vii), Courts in Ext. P4. The
\ndecision of the Supreme Court relied on by the Counsel for the petitioners in Harinagar
\nSugar Mills Ltd. v. Shyam Sunder Jhunjhunwala & Ors. (AIR<\/a> 1961 SC 1669) is
\nwith respect to totally different circumstances as to whether the adjudication of a
\ndispute by Government can be stated to be an adjudication by Court. It is in that
\nperspective the Supreme Court held when the Constitution speaks of Courts in Articles
\n136, 227, 228 or in Articles 233 to 237 or in the lists, it contemplates Court of Civil
\nJudicature but not the Tribunals. It is to be remembered that even in Articles 136 and
\n227, apart from the word ‘Courts’, the word ‘Tribunal’ is also made mention of. Even
\ninspite of that, the Supreme court held that the word Court will not include the Tribunal.
\nThe word ‘Court’ in Article 136 which has noticed by the Supreme Court in the said
\ndecision include the High Court as well. So also the word Court in Entry 63, excepting
\nthe Supreme Court, is understood as including the High Court. Even otherwise, the
\nordinary meaning of the Court as is revealed in the decision reported supra is an
\nassembly of Judges or other persons legally appointed and acting as Tribunal to hear
\nand determine any cause, civil, ecclesiastical, military or naval. When the word Courts
\nhas not been specifically defined in the Act or the notification issued thereunder, the
\nword Courts used in Ext. P4 shall get the ordinary meaning which includes all bodies
\nwhere adjudicatory process is going on or forming part of the systems for administration
\nof justice. In such circumstances, there is no reason to exclude the High Court from
\nthe purview of the word Courts appearing in Ext. P4.\n<\/p>\n
 15. A reading of Ext. P4 shows that the notification was issued in terms of
\nClause (a)(ii) of Sub-section (1) of Section 2 of the Kerala Essential Services Maintenance Act, 1994.
\nNecessarily the Government will have power to declare the High Court also as essential
\nservice as the State Legislature has power to make laws on High Court or High Court
\nservices as already discussed and found above. So Exts. P3 and P4 are applicable to
\nthe High Court also.\n<\/p>\n
 16. Challenge is against Ext. P2 letter and the order issued by the Hon’ble Chief
\nJustice as referred to therein. A reading of Ext. P2 makes it clear that what the
\nHon’ble Chief Justice has done was to make applicable Ext. P3 and P4 notifications to
\nHigh Court services. The Hon’ble Chief Justice was not issuing any notification either
\nunder Section 2 or 3 of the Act declaring High Court as an essential service or prohibiting
\nthe strike. Ext. P2 is not an order by itself; but only an information to the concerned
\nthat the strike by the members of staff and officers of the High Court is prohibited.
\nWhen Exts. P3 and P4 are applicable to High Court, as found above, necessarily there
\nis nothing illegal in Ext. P3 communication of the order of the Hon’ble Chief Justice
\nreferred to therein.\n<\/p>\n
 Therefore, the petitioners are not entitled to any of the reliefs claimed in the
\nOriginal Petition. Dismissed. No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court John vs Chief Justice on 8 February, 2002 Author: K A Gafoor Bench: K A Gafoor 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-191986","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nJohn vs Chief Justice on 8 February, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/john-vs-chief-justice-on-8-february-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"John vs Chief Justice on 8 February, 2002 - 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