{"id":88201,"date":"2003-07-11T00:00:00","date_gmt":"2003-07-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-government-of-tamil-nadu-vs-the-tamil-nadu-co-operative-on-11-july-2003"},"modified":"2014-05-26T11:44:56","modified_gmt":"2014-05-26T06:14:56","slug":"the-government-of-tamil-nadu-vs-the-tamil-nadu-co-operative-on-11-july-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-government-of-tamil-nadu-vs-the-tamil-nadu-co-operative-on-11-july-2003","title":{"rendered":"The Government Of Tamil Nadu vs The Tamil Nadu Co-Operative … on 11 July, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
The Government Of Tamil Nadu vs The Tamil Nadu Co-Operative … on 11 July, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 11\/07\/2003\n\nCORAM\n\nTHE HONBLE MR.B.SUBHASHAN REDDY, CHIEF JUSTICE\nAnd\nTHE HONBLE MR.JUSTICE K.GOVINDARAJAN\n\nW.A.No.2278  of 2003 and W.A.No. 2279 of 2003\nand\nW.A.M.P.Nos.3313 to 3316 of 2003\nand\nW.P.Nos.18545, 18835, 18657, 18849, 18850, 18851, 18852, 18941, 19080,\n19147 & 19159 of 2003\nand\nW.P.M.P.Nos.23176, 23504, 23171, 23504, 23557, 23558, 23680, 23574,\n23575, 23576, 23577, 23578, 23579, 23580, 23581, 23582, 23583, 23584,\n23585, 23709, 23710, 23883, 23957 of 2003\n\n\nW.A.Nos.2278 & 2279 of 2003 & W.No.18545 of 2003\n\n1. The Government of Tamil Nadu,\n    Rep. By the Chief Secretary to Govt.,\n    Fort St.George, Chennai  9.\n2. The Secretary to Government,\n    Public and Administrative Reforms Department,\n    Fort St.George,\n    Chennai  9.\n3. The Secretary to Government,\n    Public Department,\n    Fort St.George,\n    Chennai  9.\n4. The Secretary to Government,\n    Home Department,\n   Fort St.George,\n   Chennai  9.\n5. The Secretary to Government,\n    Law Department,\n    Chennai  9.\n6. The Director General of Police,\n    Mylapore,\n    Chennai  4.                                ..Appellants in both the Writ Appeals.\n                                                  & Respondents in W.P.18545\/03.\n-Vs-\n\n\nThe Tamil Nadu Co-operative Subordinate\nOfficers Association,\nRep. by its State President\nMr.P.Dhandapani.                                 ..Respondent in both the Writ Appeals.\n                                                 & Petitioner in W.P.18545\/03.\n\nW.P.No.18835 of 2003\n\nC.Kuppusami,\nMember of Parliament,\nNo.10, Thiyagaraya Street,\nNorth Usman Road,\nChennai  600 017.                              ..Petitioner\n\nVs.\n\n\n1.State of Tamil Nadu,\n   rep. by its Chief Secretary to Govt.,\n   Fort St.George,\n   Chennai  600 009.\n2.Secretary to Government of Tamil Nadu,\n   Law Department,\n   Fort St.George,\n   Chennai  600 009.                           ..Respondents.\n\n\n\n\n\nW.P.No.18657 of 2003\n\nK.R.Ramaswamy @ Traffic Ramaswamy               ..Petitioner.\n\nVs.\n\n1.The State Government of Tamil Nadu\n   Rep. by its Chief Secretary,\n   Government of Tamil Nadu,\n   Fort St.George, Chennai  9.\n\n2.Secretary to Public Department,\n   Government of Tamil Nadu,\n   Chennai  9.\n\n3. Secretary to Education Department,\n    Government of Tamil Nadu,\n    Fort St.George,\n    Chennai  9.                                                ..Respondents.\n\nW.P.No.18849 of 2003\n\nAll India Trade Union Congress,\nRep. by its General Secretary,\nTamil Nadu Unit,\nNo.25, Kovur Vidyanathan Street,\nChindadripet, Chennai  2.                              ..Petitioner.\n\nVs.\nState of Tamil Nadu,\nRep. by its Chief Secretary to Government,\nFort St.George,\nChennai  9.                                                    ..Respondent.\n\nW.P.No.18850 of 2003\n\n Thamilaga Aramba palli Aasiriar Kootany,\nRep. by its Secretary I\/c Dayalan,\n52, Mayor Chitty Babu Street,\nTriplicane, Chennai  2.                                        ..Petitioner.\n\nVs.\n\nState of Tamil Nadu,\nRep. by its Chief Secretary to Government,\nFort St.George,\nChennai  9.                                                    ..Respondent.\n\nW.P.No.18851 of 2003\n\n\n\n\nTamil Nadu Secretariat Officers Association,\nRep. by its President,\nSecretariat,\nFort St.George,\nChennai  9.                                                    ..Petitioner.\n\nVs.\n\n1.The State of Tamil Nadu,\n   rep. by its Secretary to Govt.,\n   Department of Home,\n   Fort St.George,\n   Chennai  600 009.\n2.The Chief Secretary,\n   Government of Tamil Nadu,\n   Fort St.George,\n   Chennai  600 009.\n3.Secretary to Government,\n   Personnel and Administrative Reforms Department,\n   Government of Tamil Nadu,\n   Fort St.George,\n   Chennai  600 009.\n4.Secretary to Government,\n   Public Department,\n   Government of Tamil Nadu,\n   Fort St.George,\n   Chennai  600 009.                                   ..Respondents.\n\n\n\nW.P.No.18852 of 2003\n\nS.Namasivayam,\nW 5 19th Street,\nAnna Nagar Western Extension,\nChennai  101.                                          ..Petitioner.\n\nVs.\n1.Government of Tamil Nadu,\n   rep. by its Chief Secretary to Government,\n   Fort St.George,\n   Chennai  600 009.\n2.The Secretary to Government,\n   Law Department,\n   Fort St.George,\n   Chennai  9.\n3.The Secretary to Government,\n   Personnel and Administrative Reforms Dept.,\n   Fort St.George,\n   Chennai  9.\n4.The Secretary to Government,\n   Finance Department,\n   Fort St.George,\n   Chennai  9.\n5.The Secretary to Government,\n   Home Department,\n   Fort St.George,\n   Chennai  9.\n6.The Secretary to Government,\n   Legislative Assembly,\n   Secretariat,\n   Chennai  9.\n7.The Director General of Police,\n   Chennai  4.\n8.The Commissioner of Police,\n   Chennai  8.                                         ..Respondents.\n\n\n\n\nW.P.No.18941 of 2003\n\nT.K.Rangarajan,\nVice president,\nTamil Nadu State Transport Employees Federation,\n52, Cooks Road,\nChennai  12.                                           ..Petitioner.\n\nVs.\n1.The Government of Tamil Nadu,\n   rep. by its Chief Secretary,\n   Secretariat,\n   Chennai  600 009.\n2.The Secretary,\n   Law Department,\n   Government of Tamil Nadu,\n   Secretariat,\n   Chennai  9.\n3.The Secretary,\n   Home Department,\n   Government of Tamil Nadu,\n   Secretariat,\n   Chennai  9.                                         ..Respondents.\n\nW.P.No.19080 of 2003\n\nG.Purushothaman\nH 101\/G2, Sea View Apartments,\n1st Sea Ward Road, Valmiki Nagar,\nThiruvanmiyur,\nChennai  41.                                           ..Petitioner.\n\nVs.\n1.State of Tamil Nadu,\n   rep. by the Chief Secretary to Government,\n   Fort St.George, Chennai  9.\n2.Secretary to Government of Tamil Nadu,\n   Law Department, Fort St.George,\n   Chennai  9.                                         ..Respondents.\n\nW.P.No.19147 of 2003\n\nT.Velmurugan\n63, Nattumuthunaicken St.,\nTeynampet,\nChennai.                                                        ..Petitioner.\n\nVs.\n\n1.Government of Tamil Nadu,\n   rep. by its Chief Secretary,\n   Secretariat,\n   Chennai  9.\n2.The Secretary,\n   Law Department,\n   Government of Tamil Nadu,\n   Secretariat,\n   Chennai  9.\n3.The Secretary,\n   Home Department,\n\n\n   Government of Tamil Nadu,\n   Secretariat,\n   Chennai  9.                                         ..Respondents.\n\nW.P.No.19159 of 2003\n1.Era.Mathivanan\n2.V.Karuppasamy\n3.R.Krishnan\n4.M.S.Pasupathi\n5.L.Balan\n6.S.George Alexander\n7.M.Chelladurai\n8.S.Pauldurai\n9.C.Nagarajan\n10.P.Sumathi\n11.G.Kamala\n12.D.Sakunthala\n13.S.Tamil Selvi\n14.N.Sundara Moorthy\n15.M.Jeevanantham                                       ..Petitioners.\n\n\nVs.\n\n1.The State of Tamil Nadu,\n   rep. by its Secretary to Government,\n   Department of Home,\n   Fort St.George,\n   Chennai 9.\n2.The Chief Secretary,\n   Government of Tamil Nadu,\n   Fort St.George,\n   Chennai  9.\n3.Secretary to Govt. of Tamil Nadu,\n   Personal and Administrative Reforms Department,\n   Govt. of Tamil Nadu,\n   Fort St.George,\n   Chennai  9.\n4.Secretary to Govt.,\n   Public Department,\n   Govt. of Tamil Nadu,\n   Fort St.George,\n   Chennai  9.                                                  .. Respondents.\n\n\n\n        PRAYER:  Appeals against the common interim order passed by the\nlearned single Judge dated 6.7.2003, passed in W.P.M.P.         Nos.23170  and\n23171  of  2003  in  W.P.No.18545  of 2003, and writ petitions praying for the\nissuance of writ of mandamus and other directions, as stated therein.\n\nWrit Petitions filed under Article 226 of the Constitution of India,  for  the\nissuance of a writ of mandamus and other directions as stated therein.\n\n\n\n\n!For Appellants in both\nwrit appeals and Respondents\nin all the Writ Petitions.  :  Mr.  N.R.  Chandran,\n                        Advocate General assisted by Mr.V.Raghupathy\n                        Government Pleader\n                        Assisted by Mr.D.Krishnakumar\n                        Spl.  Govt.  Pleader.\n\n\n^For Respondent in both the    :                Mr.S.M.Subramaniam\nWrit Appeals &  Petitioner  in\nW.P.18545\/03.\n\nMr.R.Viduthalai                 :  For Petitioner in W.P.  No.           18835\nof 2003.\n\nMr.K.Chandru, Senior Counsel    :  For Petitioner in W.P.Ns.  For Mr.R.Ganesan\n                        18849 & 18850\/2003.\n\nMrs.Nalini Chidambaram, :  For Petitioenr in W.P.18851 Senior Counsel     of\n2003.  For M\/s.S.Silambanan\n\nMr.T.R.Rajagopalan,             :  For Petitioner in W.P.18852 Senior Counsel\n                of 2003.  For M\/s.A.V.K.Ezhilmani\n\nMr.N.G.R.Prasad                 :   For  Petitioner in W.P.18941 For M\/s.Row &\nReddy           of 2003\n\nMr.G.Purushothaman              :  For Petitioner in W.P.19080  Party   in  \nPerson                  of 2003.\n\nMr.K.Balu                       :  For Petitioner in W.P.19147           of\n2003.\n\nMr.P.Wilson                     :  For Petitioner in W.P.19159           of\n2003.\n\nK.R.Ramasamy                    :  Party-in-Person in W.P.18657          of\n2003.\n\n\n\n:J U D G M E N T\n<\/pre>\n
THE HONBLE THE CHIEF JUSTICE<\/p>\n
        At  issue,  is  the  constitutionality  of  the  Tamil  Nadu Essential
\nServices Maintenance Act, 2002, as also the Tamil Nadu Ordinance No.3 of 2003,
\nand the consequential actions of dismissals and  arrests,  made  there  under.
\nThe  above  Act  and  Ordinance are hereinafter referred to as the Act and the
\nOrdinance.  The Act was enacted and was brought into force w.e.f.   1.10.2002.
\nSection  3(1)  of  the  Act enables the Government to impose ban on strikes in
\nessential services, as may be notified, and after the imposition of such  ban,
\nany  strike,  in  essential  services,  is treated as illegal and also a crime
\nrendering  the  strikers  punishable  for  the  said  crime,  apart  from  the
\ndisciplinary  actions,  and even the instigators and financiers are punishable
\nfor the crime as abettors.\n<\/p>\n
        2.  The Government had evolved a policy and issued G.O.Ms.Nos.71,  72,
\n73,  74  and  75,  all  dated  19.03.2003, by which the pensioners rights are
\nslightly  affected,  touching  upon  their  qualifying   service,   basis   of
\ncomputation  of  emoluments,  earned leave en-cashments, commutation, basis of
\ncomputation of such commutation, and also the quantum of cash payment  towards
\ngratuity  amount  as  immediate cash payment is restricted to 50% by deferring
\nthe balance of 50% by issuance of Small Savings Certificates  to  be  encashed
\nafter the  period of their maturity.  It is needless to mention that there are
\nseveral associations  of  employees  and  they  made  representations  to  the
\nGovernment to withdraw the above Government Orders, but the Government did not
\nconsider  their  demand  to  review  its  decision,  and  then  the employees
\nAssociations passed resolutions deciding to strike work, until  their  demands
\nare accepted by the Government.  Then the Government issued notification dated
\n23.4.2003, which  reads  thus:    Abstract Essential Services  Maintenance of
\nEssential Services  Prohibiting strikes in certain essential services, public<\/p>\n
services and posts in connection with the affairs of the State   Order  under
\nsub-section  (1) of Section 3 of the Tamil Nadu Essential Services Maintenance
\nAct, 2002  Notified.  PUBLIC (SC) DEPARTMENT<\/p>\n
G.O.Ms.No.415                                                   Dated:\n<\/p>\n
23.04.2003                                                               Read\n\nORDER\n\n<\/pre>\n
        The following  notification  will  be  published  in  the  Tamil  Nadu
\nGovernment Gazette Extraordinary, dated 23.04.2003:\n<\/p>\n
NOTIFICATION    WHEREAS  a  section  of  the members of the essential services
\nspecified in the Annexure to  this  order  have  announced  various  modes  of
\nagitation which includes strike;        AND    WHEREAS   the   Government   is
\nsatisfied that in the public interest and in the interest of public order,  it
\nis necessary to prohibit strike in the said essential services; NOW,
\nTHEREFORE, in exercise of the powers conferred by sub-section (1) of section 3
\nof  the Tamil Nadu Essential Services Maintenance Act, 2002 (Tamil Nadu Act 36
\nof 2002), the Governor of Tamil Nadu hereby prohibits strike in the  essential
\nservices,  specified  in  the  Annexure  to  this  order,  from  the  date  of
\npublication of this Notification in the Tamil Nadu Government  Gazette.\n<\/p>\n
(BY ORDER OF THE GOVERNOR)
\nLAKSHMI PRANESH
\nCHIEF   SECRETARY   TO GOVT.\n<\/p>\n
        3.  The said order has been passed in  exercise  of  powers  conferred
\nunder Sub Section (1) of Section 3 of the Act.  When the employees struck work
\non 1st July 2003, and continued the following days, the Government had invoked
\nthe  provisions  of  the  Act and made arrests and also initiated disciplinary
\nactions.  On 4.7.2003 W.P.No.18545 of 2003 was filed questioning the  validity
\nof the  Act.  Notices were issued by the learned single Judge on the same day,
\nand the matter was posted  to  7.7.2003.    Meanwhile,  late  in  the  day  of
\n4.7.2003,  the  Government has promulgated the ordinance by amending Section 7
\nof the Act and substituting an entirely new  provision,  dispensing  with  the
\naudi  alterm  partem  rule  for inflicting penalties varying from dismissal to
\nbreak in service.  Residence motion was moved before the learned single  Judge
\non 5.7.2003  questioning  the  same, and seeking urgent orders.  After hearing
\nthe parties, the learned single Judge directed the learned Advocate General to
\nseek instructions from the Government as to why the plea of  the  strikers  to
\nwithdraw  the  strike  and  resumption  to  duty  cannot  be considered by the
\nGovernment, by withdrawing the proceedings relating  to  disciplinary  actions
\nand prosecution.    The  matter  came  up  on  6.7.2003, and after the learned
\nAdvocate General reported to the learned single Judge that any decision by the
\nGovernment would be taken only on Wednesday i.e., 7.7.2003,  but  the  learned
\nsingle  Judge  felt  urgency,  and after considering the contentions on either
\nside the learned single Judge has passed the order  in  W.P.M.P.Nos.23170  and
\n23171 of  2003  in  W.P.18545  of  2003.    The relief portion is contained in
\nparagraph  19 of the said order, and the same reads as follows:
\nPara-19 :  For all  these  reasons,  I  am  inclined  to:    (i)  direct  the
\nrespondents  to  release all the Government servants forthwith irrespective of
\nwhether they are members  of  the  petitioner  association  or  not,  who  are
\narrested for the alleged offence punishable under Sections 4 and 5 of the Act,
\non  condition  that  they give an undertaking before the Police Station or the
\nJail authority concerned that they will not  either  instigate,  incite  other
\npersons  to  participate  in  the  strike  and  that  they  would  not involve
\nthemselves in any act hereafter which would otherwise attract Sections 4 and 5
\nof the Act.  This, of course, will not  be  applicable  in  the  case  of  the
\npersons  against  whom  the  cases  are registered under the Tamil Nadu Public
\nProperty (Prevention of Damage and Loss) Act, 1992.  The sixth  respondent  is
\ndirected  to give effect to this direction with immediate effect; (ii) all the
\norders of suspension and dismissal of the alleged erred  Government  Servants,
\nmade  without  conducting  any enquiry shall be kept in abeyance until further
\norders of this Court and they shall be permitted to  join  duty  forthwith  in
\nview  of their undertaking given before this Court on 5.7.2003 to withdraw the
\nstrike and resume duty; (iii) the respondents shall not fill up the post  held
\nby  the  alleged erred Government servants against whom order of suspension or
\norder of dismissal  are  pending  without  enquiry;  (iv)  the  above  interim
\ndirections  will  be applicable to only those Government servants who withdraw
\nthe strike unconditionally and join duty  forthwith  ;  and  (v)  these  above
\ninterim  orders  shall  not  stand  on  the  way  of  the  Government  to take
\nappropriate decision; i.  in considering the grievance of the petitioners with
\nregard to (a) the withdrawal of the criminal cases filed against them; (b) the
\nwithdrawal of order of  suspension;  and  (c)  the  withdrawal  of  orders  of
\ndismissal; and  ii.    the  Government on the representation of the Government
\nServants and their associations, is at liberty to resolve the issues raised by
\nnegotiations amicably, pending disposal of the above writ petition.<\/p>\n
        4.  Then the learned single Judge has directed the matter to be posted
\nbefore the Division Bench on 07.07.2003, but the Government  thought  that  it
\nwas  a  matter  of  urgency,  and  residence motion was moved before the Chief
\nJustice by filing writ appeals, and the Division Bench was constituted to hear
\nthe same.  The Division Bench admitted the  writ  appeals  and  suspended  the
\noperation  of  the  order  of the learned single Judge, and posted the matters
\nnext day.\n<\/p>\n
        5.  As the matters are being heard from 7.7.2003, there was a spate of
\nwrit petitions.  The above two writ appeals are directed against  the  interim
\norders passed  in  W.P.No.18545  of  2003.  The other writ petitions are filed
\nchallenging the vires of the Act or the Ordinance or both, with one  exception
\nin  W.P.No.18657 of 2003, which has been filed by a Party-in-Person, seeking a
\nmandamus directing the Government authorities to declare the strike as illegal
\nand unconstitutional.  In W.P.No.18851 of  2003  apart  from  questioning  the
\nOrdinance, the consequential orders of dismissal of employees are sought to be
\nquashed,  with directions to reinstate the said employees by setting at naught
\npunishments inflicted by way of disciplinary action.\n<\/p>\n
        6.  In W.P.No.18941 of  2003  both  the  Act  and  the  Ordinance  are
\nchallenged  and  further seeks to set aside the arrests made and the dismissal
\norders passed against the employees.\n<\/p>\n
        7.    The   matters   were   heard,   and    the    learned    counsel\nM\/s..S.M.Subramaniam,    Nalini    Chidambaram,    R.Viduthalai,    K.Chandru,\n<\/pre>\n
T.R.Rajagopalan, N.G.R.Prasad, R.Vaigai, K.Balu and P.Wilson appeared for  the
\npetitioners questioning the Act, Ordinance and the consequential action by the
\nauthorities,  while Mr.K.Ramaswamy a Party  in  Person has supported the Act
\nand the Ordinance and sought for the issuance of mandamus to enforce the  same
\nin his Writ Petition No.18657 of 2003.\n<\/p>\n
        8.  Mr.N.R.Chandran, learned Advocate General defended the validity of
\nthe Act, Ordinance and the actions taken by the authorities.\n<\/p>\n
        9.    Mr.S.M.Subramaniam,   learned  counsel  for  the  petitioner  in
\nW.P.No.18545 of 2003, submits that the strikers repented striking  work,  that
\nthey  have  stated  before  the  learned single Judge offering to withdraw the
\nstrike, that there was no reason for the Government to reject the said  offer,
\nthat  when the matter was in the process of hearing, the issuance of Ordinance
\nwas uncalled for, that there was also no such urgency to issue the  Ordinance,
\nthat  the  number of dismissals of employees swelled from 4,300 on 4.7.2003 to
\none lakh on 5.7.2003 and 3 lakhs on 7.7.2003, and further went up to  4  lakhs
\non the following day, and that the recourse to High Court under Article 226 is
\nthe only remedy, as the State Administrative Tribunal is functioning only with
\nthe Vice Chairman, and the constitutional validity of the Act or the Ordinance
\ncannot be  challenged  before the said forum.  He also submits that apart from
\nthe above arbitrary dismissals, the employees and  their  family  members  are
\nsought  to be evicted from the government quarters in their occupation, and if
\nsuch arbitrary and capricious act is not immediately  stayed,  then  lakhs  of
\nemployees with their multifold families would be rendered homeless.\n<\/p>\n
        10.   Mrs.Nalini Chidambaram, the learned Senior Counsel appearing for
\nthe petitioner in W.P.No.18851 of 2003 invoked the doctrine of  necessity  for
\nthe same reason that one member State Administrative Tribunal cannot entertain
\na lis  of this nature.  She also raised a point that the lis is not related to
\nthe service conditions of the employees, and the impugned  Act  and  Ordinance
\nare  only  traceable to entry 3 of List III of Schedue VII of the Constitution
\nand as there is no Presidential assent for the  Ordinance,  the  Ordinance  is
\nunconstitutional and  is  bad.   She also submits that the Audi Alteram Partem
\nRule embedded in Article 311 for employees facing dismissal orders  have  been
\ngrossly  violated  and  that  the  ordinance  does  not attract the essentials
\nrequired for the exceptions provided in 2nd proviso to Clause (2)  of  Article
\n311 of  the  Constitution  of  India.  She further submits that apart from the
\nhandicap the Tribunal is facing with only one Vice  Chairman  as  a  Presiding
\nMember,  the  public interest litigation cannot be entertained by the Tribunal
\nand on that count also the writ petitions are maintainable, as they have  been
\nfiled as   public   interest  litigations.    She  further  submits  that  the
\npost-decisional hearing is an empty formality, and the  appropriate  forum  is
\nineffective,  and  that  in any event the punishments proposed and that too en
\nmasse dismissals, even without verifying the gravity in each of the  cases  is
\ngrossly disproportionate.    Lastly,  she submits that the Ordinance is hit by
\nlegal mala fides.\n<\/p>\n
        11.  Mr.R.Viduthalai, the learned counsel submits that the  petitioner
\nis  a  Parliamentarian and concerned with the governmental action and contends
\nthat the impugned Act and Ordinance and consequent dismissals and arrests  are
\nall violative of the fundamental rights guaranteed under Articles 14 and 21 of
\nthe Indian Constitution and also of the constitutional provisions envisaged in
\nArticles 309,  311  of the Constitution of India.  He further submits that the
\nlegislation particularly Ordinance is referable to entries 1, 2, and 3 of  the
\nConcurrent  List and require prior assent of the President, and that Ordinance
\nhaving not been sent to the President for assent is per  se  unconstitutional.
\nHe  also  submits  that  the very fact that the Act was sent for assent of the
\nPresident, makes it ex facie clear that any amendment  thereto  also  requires
\nPresidential  assent,  and  the  Ordinance has been issued hurriedly only as a
\nvindictive measure, even though the  State  Government  fully  knew  that  the
\nOrdinance require   Presidential   assent.      He  further  submits  that  no
\nretrospectivity can be given to the Ordinance, as new rights  are  created  in
\nthe Government and the obligations against the employees.\n<\/p>\n
        12.   Mr.K.Chandru,  learned  Senior  Counsel  submits that before the
\npromulgation of Ordinance only criminal liability was imposed  under  Sections
\n4,  5,  and  6 of the Act, and Section 7 of the Act only mentions that the Act
\nwas in addition to the service rules, which were already in force and  by  the
\nissuance  of  the Ordinance the presumption of strike and the punishment there
\nof are introduced, that the dicta laid down by the Supreme Court in  L.Chandra
\nKumars Case is inapplicable and that in any event the administrative tribunal
\nis  not  competent  to  hear  the  matter  as  there is only one Vice Chairman
\npresiding  over  the  matters  and  he   is   not   entitled   to   test   the
\nconstitutionality of  the  Act  and  the  Ordinance.  He also submits that the
\nOrdinance is violative of Article 20 of the Constitution of India, because  of
\nthe retrospectivity given  to  the  Ordinance  w.e.f.  23.4.2003.  The learned
\nSenior Counsel lastly  submits  that  setting  aside  all  the  technicalities
\nregarding the exhaustion of alternative remedy, an extraordinary situation has
\narisen because of the dismissal of lakhs of employees and arrests of more than
\n2000  of  them,  and  this extraordinary situation warrants invocation by this
\nCourt of its extraordinary jurisdiction under Article 226 of the  Constitution
\nof India.\n<\/p>\n
        13.   Mr.T.R.Rajagopalan,  learned  Senior  Counsel  contends that the
\narrests were illegal and a call given by the Government to call off the strike
\nand attend the duties could not be complied with by  the  arrestees,  as  they
\nwere  in  judicial  remand and that in fact there are no individual complaints
\nand the arrests were made en masse without passing any individual orders.  The
\nlearned Senior Counsel further submits  that  even  assuming  that  the  State
\nAdministrative  Tribunal  has  to  be  approached  first,  the  remedy  is not
\nefficacious, as  already  60000  cases  are  pending  with  one  member  (Vice
\nChairman)  to  decide  the  same, and if this many dismissed employees have to
\ninvoke the jurisdiction of the Tribunal, then even 20 years are not sufficient
\nfor adjudication of their cases, and that circumstance  itself  is  sufficient
\nground  for  the  invocation  of  this  Courts  power  under  Article  226 of
\nConstitution of India.\n<\/p>\n
        14.  Mr.N.G.R.Prasad, learned counsel submits that  the  Act  and  the
\nOrdinance  are violative of Article 14 of the Constitution of India, amounting
\nto legislative despotism imposing legislative conviction and  doing  away  the
\npre-decisional  hearing  and  making  post-decisional  hearing  a  mockery and
\nrobbing the striker of opportunity to explain and that the Act runs contra  to
\nthe  provisions of the Industrial Disputes Act, 1947 and particularly, Section
\n22 there of, and the strike in the Industrial  Disputes  Act  is  not  illegal
\nwhile it is per se made illegal and criminal, under the Act and the Ordinance.
\nHe  also  submits  that  Article  311  of  the  Indian Constitution is grossly
\nviolated.\n<\/p>\n
        15.  Ms.Vaigai, learned counsel submits that the State of  Tamil  Nadu
\nhas  already  taken  a  decision  to  abolish  the administrative tribunal and
\nconveyed it to the  Central  Government,  and  the  tribunal  is  no  more  to
\ncontinue,  and apart from the fact that a single member of the tribunal cannot
\nadjudicate upon the constitutionality of the Act and the Ordinance,  there  is
\nno  bar  for entertaining the writ petition directly and cited the judgment of
\nthe Supreme Court reported in 1997 (10) SCC 663 and particularly referring  to
\nparagraph-6 thereof.\n<\/p>\n
        16.  Mr.N.R.Chandran, learned Advocate General appearing for the State
\nand  its  authorities  counters the arguments of the learned counsel appearing
\nfor the different petitioners, stating that associations cannot maintain  writ
\npetitions and only affected individual employees are entitled to espouse their
\ncause   by   filing  individual  writ  petitions,  and  that  public  interest
\nlitigations cannot be maintainable in service matters and  the  administrative
\ntribunal  cannot  be  bye passed, merely because the PILs are not maintainable
\nbefore the tribunal and as the administrative tribunal  has  been  constituted
\nfor  the  State  to deal with the service matters and is still continuing even
\nwith one member, it cannot be said that there is no tribunal  at  all  and  so
\nlong  as  even that member, who is the Vice Chairman and retired Judge of this
\nCourt, functions  and  till  the  abolition  of  the  tribunal,  this  Courts
\njurisdiction  in  service  matters  is  barred  until  the  remedies are first
\nexhausted before the tribunal.  The learned Advocate  General  heavily  relies
\nupon  the  Judgment  of the Supreme Court in L.Chandrakumars Case (supra), as
\nalso the later Judgment of the Supreme Court reported in 2002 (4) SCC 145.  He
\nsubmits that Section 7 of the Ordinance only covers  the  government  servants
\nand  not  others  and  there is no material before this Court that persons not
\ncovered  by  the  Act  and  the  Ordinance  have  been  subjected  to   either
\ndisciplinary or  penal  action.    He  further  submits  that  the Act and the
\nOrdinance are referable only to entries 41 and 64 of List-II of  Schedule-VII,
\nand  the  Presidents  assent was obtained for the Act only as a precautionary
\nmeasure, and that in any event as the Ordinance does  not  entrench  upon  the
\nlegislative  field  in  Concurrent  List,  it  is not vitiated for the lack of
\nPresidents assent.  He also submits that  no  arrests  have  been  after  the
\nobservations  made by the learned single Judge during the course of hearing on
\n4th and 5th July, 2003 and that no action will be taken by the Government  and
\nby its authorities to evict any of the government servants from the government
\nquarters they  are  occupying.    He  further  submits  that  the  Act and the
\nOrdinance do not suffer from any  constitutional  infirmities,  and  that  the
\ndismissal   orders   passed  and  the  arrests  made  have  to  be  challenged
\nindividually before the authorities as specified,  and  in  fact  whoever  has
\nfiled  bail  petitions  have been released on bail and the bail pleas were not
\neven contested and other arrestees did not  even  file  bail  petitions.    In
\nanswering the plea of Mrs.Nalini Chidambaram, learned Senior Counsel to invoke
\nthe  doctrine  of necessity, the learned Advocate General submits that in fact
\nthe doctrine of necessity lies otherwise as even assuming that a single member
\nbench of the administrative tribunal cannot adjudicate upon  the  validity  of
\nthe  legislative  action,  be  it  Act  or Ordinance, there being no chance of
\nanother member being appointed, applying the doctrine of necessity, the single
\nmember administrative tribunal consisting of only a Vice Chairman, has got  to
\ndispose  of  matters  of  any  nature  including  the  matters questioning the
\nconstitutionality of the Act and the Ordinance, and cites ILR 1994 (2)  Madras
\n935, in  support  of his contention.  Lastly, he submits that the governments
\naction is not vindictive as this is not the first time that the employees  are
\nstriking  the  work,  but  however  much the Government was lax and lenient in
\nconsidering and acceding to the demands of the employees, the  employees  were
\nnever  satisfied  with  the  concessions  made  by the Government and time and
\nagain, they were holding threats of striking the work, and  in  fact,  did  on
\nsome  occasions, and that the Government had eventually felt that the time has
\ncome to discipline the employees and only as a last resort took  measures  for
\nthe  enactment  of the Act and the promulgation of the Ordinance, and it would
\nconsider the matters in individual cases on applications being filed to  annul
\nthe  punishments of dismissal inflicted on them, basing on the evidence placed
\non record and that the Government neither acted arbitrarily  nor  capriciously
\nand  actions  of  Government are in good spirit and keeping in view the larger
\npublic interest.\n<\/p>\n
        17.  Plethora of precedents have been cited on either side in  support
\nof their  contentions.    But,  insofar  as  the  facts are concerned they are
\ngeneral and bereft of particulars with regard to each  of  the  employees  and
\nparticularly,  there  is  nothing  demonstrated  to show that any employee not
\nattracted by the provisions of Administrative Tribunals Act is either detained
\nin prison or dismissed from service.\n<\/p>\n
        18.   From  the  submissions on either side, the following contentious
\nissues emerge  for  consideration:    (a)  Whether  the  writ  petitions   are
\nmaintainable  without  exhaustion  of remedies before the State Administrative
\nTribunal; (b) Whether the impugned Act  lacks  in  legislative  competence  or
\nviolative  of  fundamental  rights  guaranteed  in  Articles 14, and 20 of the
\nConstitution of India or the constitutional rights provided  in  Articles  309
\nand  311  of  the Constitution of India; (c) Whether the impugned Ordinance is
\nbad for want of Presidential assent  and  even  if  the  said  assent  is  not
\nrequired  is it valid on the touchstone of the fundamental rights, legislative
\ncompetence and the constitutional safety with regard to dismissals as provided
\nunder Article 311 of the Indian Constitution.\n<\/p>\n
        19.   Of  the  above contentious issues, we are obliged to address the
\nfirst issue first, as it touches  upon  the  jurisdiction  of  this  Court  to
\nentertain  the  writ  petitions  directly  without  intervention  of the State
\nAdministrative Tribunal.  If the answer is in the  affirmative,  then  a  need
\narises  to  address  on  other  issues,  but  not  otherwise,  as the cardinal
\nprinciples of law are that once the Court holds that it has no jurisdiction to
\nentertain the cause, then it  is  precluded  from  addressing  on  the  merits
\nthereof.  Hence, we proceed to deal with the first issue.\n<\/p>\n
        20.   Articles  226  and  227  of  the  Constitution  of India provide
\nconstitutional remedies.    Writs  are  issued  under  Article  226   of   the
\nConstitution  of India and such power conferred is extraordinary in nature and
\nhas to be exercised not as an ordinary measure but only for  enforcing  public
\nremedies.   Protection  of  fundamental  rights  and  enforcement thereof fall
\nwithin the realm of public remedies and existence of alternative remedy is  no
\nanswer against  exercise  of  powers  by  the  High  Courts.    Apart from the
\nviolation of fundamental rights, the High Courts intervention is warranted in
\ncase of violation of other constitutional rights, for instance, Articles  300A
\nand 311  of  the Constitution of India.  The High Courts can also interfere by
\nissuance of writs,  where  the  actions  of  statutory  authorities  or  other
\nauthorities  coming  within  the  definition  of  Article  12  of  the  Indian
\nConstitution are assailed to be devoid of jurisdiction or in violation of  the
\naudi alteram partem rule.  The High Courts intervention may be necessary even
\nin  cases  where  the  alternative  remedy  available is either ineffective or
\nentails in delay.  No specific restriction is placed on the  exercise  of  the
\njurisdiction  by  the High Courts for issuance of writs and it is for the High
\nCourt to practice self-restraint while dealing with the issuance of  writs  or
\ndirections  in exercise of the powers under Article 226 of the Constitution of
\nIndia.  But what is stated supra is applicable only when the  jurisdiction  is
\nvested in  the High Court and not when its jurisdiction is excluded.  By that,
\nwe do not mean that the plenary powers conferred on the  High  Courts  by  the
\nconstitutional  makers  under  Article 226 of the Constitution of India or for
\nthat reason Article 227 thereof can be taken away by any statute.    But  they
\ncan  be  taken away by the constitution amendment was the verdict given by the
\nFive-Judge Constitutional Bench of the Supreme Court in S.V.Sampath Kumar  Vs.
\nUnion of  India  (AIR  1987  SC  386).  We may state the origin leading to the
\nabove adjudication.\n<\/p>\n
        21.  Article 323-A was introduced  by  Constitution  (42nd  Amendment)
\nAct, 1976, which came into force from 3.1.1977 enabling the Parliament to make
\nlaw  providing  adjudication  by  administrative  tribunals  of  disputes  and
\ncomplaints with respect to recruitment and conditions of  service  of  persons
\nappointed  to  public services and posts in connection with the affairs of the
\nUnion or of any State or of any Local Authority or other Authority within  the
\nterritory  of  India or under the control of the Government of India or of any
\nCorporation owned or controlled by the Government to the exclusion of the High
\nCourts.  Consequently, the Parliament  had  enacted  Administrative  Tribunals
\nAct, 1985.    Section 14 of the above Act deals with the setting up of Central
\nAdministrative Tribunals  for  Central  Services  and  Section  15  for  State
\nServices.   Enactment  of  42nd  Constitutional  Amendment  Act  incorporating
\nArticle 323-A and the  consequent  Administrative  Tribunals  Act,  1985  were
\nassailed before  the  Supreme  Court  in S.V.Sampath Kumar Vs.  Union of India
\n(AIR 1987 SC 386) and a Five-Judge Constitutional Bench of the  Supreme  Court
\nof  India  upheld  the  constitutional  validity of the above enactments while
\nmaking some suggestions which have been accepted by  the  Central  Government.
\nConsequently, amendments were made.  The Supreme Court ruled that exclusion of
\njurisdiction  of  High Court under Articles 226 and 227 of the Constitution of
\nIndia in service matters is valid, as an efficient  alternative  institutional
\nmechanism  has been provided by setting up of the Administrative Tribunals and
\nthe said Administrative Tribunals  function  as  substituted  authorities  for
\njudicial review  in  service  matters in place of the High Courts.  Because of
\nthe  said  authoritative  pronouncement,  High  Courts  were  precluded   from
\nentertaining any dispute for adjudication relating to service matters and they
\nwere being dealt with by the administrative tribunals, at the places they have
\nbeen set  up.    This continued for a decade and then came another Seven-Judge
\nConstitutional Bench Judgment in L.Chandrakumar Vs.  Union of India and Others
\n(AIR 1997 SC 1125), striking a  different  note  but  retaining  the  original
\njurisdiction of the administrative tribunals to deal with the service matters.
\nWhile  in  Sampathkumars  case  (1st  supra)  the Supreme Court held that the
\nadministrative tribunals, which are set up, act as substitutes  for  the  High
\nCourts  to  the  total  exclusion  of  the  jurisdiction of the High Courts in
\nservice matters, L.Chandrakumars case (2nd supra) took a view that  the  role
\nof  the  administrative  tribunals  is  only  supplemental  and  they  are not
\nsubstitutes of High Courts and the tribunals act as primary  authority,  after
\nwhich  their  decisions  can  be  scrutinized by the High Court in exercise of
\npowers of judicial review under Articles 226 and 227 of  the  Constitution  of
\nIndia.   In effect, the jurisdiction of the High Courts to exercise the powers
\nof judicial review has been restored, but with a condition that the High Court
\nshall not entertain any matter relating to service disputes unless the  remedy
\nis first exhausted before the administrative tribunals.  The argument that the
\nadministrative  tribunals  cannot  test the legislative action was repelled by
\nthe Supreme Court, and we feel it apt to extract what the Supreme  Court  said
\nin paragraph  93  of its Judgment.  Before moving on to other aspects, we may
\nsummarise our conclusions of the jurisdictional  powers  of  these  Tribunals.
\nThe  Tribunals  are  competent  to  hear  matters where the vires of statutory
\nprovisions are questioned.  However, in discharging this duty, they cannot act
\nas substitutes for the High Courts and  the  Supreme  Court  which  under  our
\nconstitutional  set  up,  been specifically entrusted with such an obligation.
\nTheir function in this respect is only supplementary and all such decisions of
\nthe Tribunals will be subject to scrutiny  before  a  Division  Bench  of  the
\nrespective High  Courts.   The Tribunals will consequently also have the power
\nto test the vires of subordinate legislations and rules.  However, this  power
\nof the  Tribunals  will  be subject to one important exception.  The Tribunals
\nshall not entertain any question regarding the vires of their parent  statutes
\nfollowing  the settled principle that a Tribunal which is a creature of an Act
\ncannot declare that very Act to be unconstitutional.  In such cases alone, the
\nconcerned High Court may be approached directly.  All other decisions of these
\nTribunals,  rendered  in  cases  that  they  are  specifically  empowered   to
\nadjudicate  upon  by  virtue of their parent statutes, will also be subject to
\nscrutiny before a Division Bench of their respective High Court.  We  may  add
\nthat  the Tribunals will, however, continue to act as the only Courts of first
\ninstance in respect of the areas of law for which they have been  constituted.
\nBy  this,  we mean that it will not be open for litigants to directly approach
\nthe High Courts even in cases where  they  question  the  vires  of  statutory
\nlegislations  (except,  as  mentioned, where the legislation which creates the
\nparticular Tribunal is challenged) by  overlooking  the  jurisdiction  of  the
\nconcerned Tribunal.  (Emphasis is ours).\n<\/p>\n
        22.   No  exception  are  provided  by  the Supreme Court in L.Chandra
\nKumars Case (2nd supra) to skip the administrative tribunal and make a direct
\napproach to the High Court.  But, all the learned counsel for the  petitioners
\nargued  in  one  voice  relying  upon the observations of the Supreme Court in
\nparagraph-98 in L.Chandrakumars judgment (2nd supra) in support of their plea
\nthat one member (Vice Chairman), even if he is a retired Judge of  this  Court
\nwould  not  satisfy the requirement of hearing the matter by a Division Bench,
\nbecause of the challenge of the  constitutional  vires  of  the  Act  and  the
\nOrdinance.  There, the Supreme Court was dealing with the interpretation to be
\ngiven  to  Sections  5(2)  and  5(6)  of the Administrative Tribunals Act, and
\nparticularly, in the context of what has been stated  in  a  previous  Supreme
\nCourt Judgment  in  Dr.Mahabal  Rams  Case3  (1994  (2) SCC 401).  Apart from
\nDr.Mahabal Rams case (3rd supra) yet another Judgment, which is  relevant  to
\nbe mentioned  and that is Amulya Chandra Kalita Vs.  Union of India and Others
\n(1991 (1) SCC 181) 4 .  There  the  interpretation  of  Section  5(2)  of  the
\nAdministrative  Tribunals  Act came up for consideration and the Supreme Court
\nheld that the matter therein pertain to transfer and decided by a single Bench
\nconsisting of an administrative member was invalid,  as  only  Division  Bench
\nconsisting  of  both  judicial  member  and  administrative member should have
\ndecided and on that count the order of the Central Administrative Tribunal was
\nset aside and the matter was remitted back.  Sub Section (6) of Section  5 of
\nthe Administrative  Tribunals  Act  was  not  cited  for  consideration.    In
\nDr.Mahabal  Rams  Case  (3rd  supra)  decided by the Supreme Court, which also
\nrelated to transfer and in which dispute was decided by the single  member  of
\nthe  Central Administrative Tribunal, the impact of Sub Section (6) of Section
\n5 of the Administrative Tribunals Act vis a vis Sub Section (2) of Section
\n5  was  considered,  and  it  was  held  that both the sub sections have to be
\nharmoniously construed, and it would be open to either party appearing  before
\nthe  single  member  to  suggest that the matter be referred to the bench of 2
\nmembers and on such request the member should ordinarily allow the  matter  to
\ngo  to  the  bench  of  2  members,  and  in that way sufficient protection is
\nafforded.\n<\/p>\n
        23.   The  said  view  was  affirmed   by   the   Supreme   Court   in
\nL.Chandrakumars  case  (2nd  supra) in paragraph  98 thereof, further adding
\nwe shall, to make it clear that whether a question  involving  interpretation
\nof  a  statutory  provision or rule in relation to the Constitution arises for
\nconsideration of a single member bench of  the  administrative  tribunal,  the
\nproviso  to  Section  5(6)  will  automatically  apply and the Chairman or the
\nMember concerned shall refer the matter to the Bench consisting of  atleast  2
\nmembers, one  of  whom  must  be  of  judicial  member.  This will ensure that
\nquestions involving the vires of a statutory  provision  or  rule  will  never
\narise  for adjudication before a single member bench or a bench which does not
\nconsist of a judicial member.  So construed, Section 5(6) will  no  longer  be
\nsusceptible to charges of unconstitutionality.<\/p>\n
        24.  In view of the  above  emphatic  statement  of  legal  principles
\nrevolving  around Sections 5(6) of the Administrative Tribunals Act, we cannot
\naccede to the contention of  the  learned  Advocate  General  that  the  above
\nstatement  of  the  Supreme  Court is not a statement of legal principles, but
\nhave to be read as mere observations not amounting to obiter dicta.\n<\/p>\n
        25.  Now, there is a piquant situation.    On  one  side  there  is  a
\nmandate  by  the  Supreme  Court in L.Chandrakumars case (2nd supra) that the
\nHigh Court is not entitled to entertain any matter relating to  service  until
\nthe  exhaustion  of the remedy firstly before the administrative tribunal, and
\non the other the same judgment  enunciated  a  legal  principle  that  when  a
\nconstitutional  validity  of  an Act or Ordinance or Rule is challenged before
\nthe Administrative Tribunal, then only  a  Division  Bench  should  hear  such
\nmatters.   Now, the Tamil Nadu State Administrative Tribunal has a lone member
\nviz., Justice I.David Christian, a retired  Judge  of  this  Court.    He  was
\nappointed  as  the  Vice  Chairman,  and  as the previous Chairman has retired
\nduring last year and nobody having been appointed in his place, the above Vice
\nChairman  is  treated  as  Chairman  by  virtue  of  Section   7(1)   of   the
\nAdministrative Tribunals  Act.    It  is  needless to mention that there is no
\nother members either judicial or administrative as on date.  Now, the question
\narises as to whether we should ignore the  very  existence  of  the  Tribunal,
\nmerely  because  there  is  only  one  member  manning  the  tribunal, whether
\ndescribed as Vice Chairman or Chairman, as the case may be.    This  situation
\ndid  not  arise  in the cases decided by the Supreme Court earlier, as such we
\nhave to understand the judgment of the Supreme Court in L.Chandrakumars  case
\n(2nd  supra),  as also Dr.Mahabal Rams case (3rd supra) that only if there is
\nmore than one member  then  seeking  a  reference  to  a  division  bench  for
\nadjudication  shall  arise,  but not when there is a sole adjudicator as is in
\nthe instant case.  This is more so, because sub section (6) of  Section  5  of
\nthe  Administrative  Tribunals  Act is still in the statute book, and the Vice
\nChairman, who is the Chairman, is the only person who can hear and dispose  of
\nthe  cases  and  there  being  none else, the question of seeking reference to
\nDivision Bench does not arise at all and the proviso to  sub  section  (6)  of
\nSection 5  of  the  Administrative Tribunals Act is inapplicable.  That apart,
\nthe stress is on the participation of a judicial member in  matters  involving
\nadjudication  of  lis, questioning the vires of statutory provisions, and that
\nis basing upon the observations of the Supreme Court  in  Sampathkumars  case
\n(1st  supra),  and  upheld  in  Dr.Mahabal  Rams  case(3rd supra) and further
\napproved by a larger Bench of the Supreme Court in L.Chandrakumars case  (2nd
\nsupra), and  which  reads thus:  It is necessary to bear in mind that service
\nmatters which are removed from  the  jurisdiction  of  the  High  Court  under
\nArticles  226  and 227 of the Constitution and entrusted to the Administrative
\nTribunal set up under the impugned Act for adjudication involve  questions  of
\ninterpretation  and  applicability  of  Articles 14, 15, 16 and 311 in quite a
\nlarge number of cases.  These questions require for  their  determination  not
\nonly  judicial  approach  but  also knowledge and expertise in this particular
\nbranch of constitutional law.  It is necessary that those who adjudicate  upon
\nthese  questions  should  have  same  modicum  of  legal training and judicial
\nexperience because we find that some of these questions are so  difficult  and
\ncomplex  that  they baffle the minds of even trained judges in the High Courts
\nand the Supreme Court.<\/p>\n
                26.  We are fortified in our view above from a different angle
\nalso and that is doctrine of necessity.  The doctrine of necessity has  to  be
\ninvoked to affirm the jurisdiction and not to avoid.  In this connection it is
\nrelevant  to  refer  a  decision  of  the  Division  Bench  of  this  Court in
\nDr.Subramaniam Swamy Vs.  J.Jayalalitha and Others ( I.L.R.  (1994)  2  Madras\n<\/p>\n
935).   In  the  said  case  the  appellant  had  sought for an enquiry on his
\npetition filed before the Governor under Article 192 of  the  Constitution  of
\nIndia  to disqualify the first respondent in terms of Article 191(1)(e) of the
\nConstitution of India, for the reasons stated therein.  The  first  respondent
\nhad  filed a writ petition before the learned single Judge raising the plea of
\nbias against the  then  Chief  Election  Commissioner  Mr.T.N.Seshan,  and  to
\nrestrain  the  Governor  from  forwarding  the  application  to  the  Election
\nCommission of India, and the said plea was  accepted  by  the  learned  single
\nJudge, and  writ  was issued as prayed for.  The same was appealed against and
\nthe Division Bench has disposed of the  writ  appeal  by  its  judgment  dated
\n15.11.1993,  directing  the  enquiry  by the Election Commission, but sans the
\nparticipation of Mr.T.N.Seshan on the ground of bias.  The  matter  ultimately
\nlanded  in  the  Supreme Court in Election Commission of India and Another Vs.
\nDr.Subramaniam Swamy ( 1996 (4) SCC 104), and the Supreme Court held  that  in
\nas much as the Election Commission consists of the Chief Election Commissioner
\nand  2  other  Election Commissioners, should there be concurrence between the
\ntwo Election Commissioners, the matter may be decided accordingly,  but  there
\nis no such concurrence and the opinion is divided, then Mr.T.N.Seshan, who was
\nthe  Chief  Election  Commissioner  was entitled to adjudicate upon the matter
\neven if the plea of bias was made out.  We feel it apt to extract the findings
\ncontained in paragraphs 16 and 17 of the above judgment, which are relevant in
\nthis context.  Para-16 :  We must have a clear conception  of  the  doctrine.
\nIt  is well settled that the law permits certain things to be done as a matter
\nof necessity which it would otherwise not countenance  on  the  touchstone  of
\njudicial propriety.    Stated  differently, the doctrine of necessity makes it
\nimperative  for  the  authority  to  decide  and  considerations  of  judicial
\npropriety must  yield.  It is often invoked in cases of bias where there is no
\nother authority or Judge to decide the issue.  If the doctrine of necessity is
\nnot allowed full play in certain unavoidable situations, it would  impede  the
\ncourse  of  justice  itself  and the defaulting party would benefit therefrom.
\nTake the case of a certain taxing  statute  which  taxes  certain  perquisites
\nallowed to  Judges.  If the validity of such a provision is challenged who but
\nthe members of  the  judiciary  must  decide  it.    If  all  the  Judges  are
\ndisqualified  on  the  plea  that  striking  down  of such a legislation would
\nbenefit them, a stalemate situation may develop.  In such cases  the  doctrine
\nof necessity  comes  into  play.    If the choice is between allowing a biased
\nperson to act or to stifle the action altogether,  the  choice  must  fall  in
\nfavour of the former as it is the only way to promote decision-making.  In the
\npresent  case  also  if  the  two  Election  Commissioners are able to reach a
\nunanimous decision, there is no need for the Chief  Election  Commissioner  to
\nparticipate, if not the doctrine of necessity may have to be invoked.\n<\/p>\n
Para-17:  We  think that is the only alternative in such a situation.  We are,
\ntherefore, of the opinion that the proper course to follow is that  the  Chief
\nElection  Commissioner  should  call  a  meeting of the Election Commission to
\nadjudicate on the issue of disqualification of Ms.J.Jayalalitha on the grounds
\nalleged by Dr.Swamy.  After calling the meeting he should act as the  Chairman
\nbut  then he may recuse himself by announcing that he would not participate in
\nthe formation of opinion.  If the two Election Commissioners reach a unanimous
\nopinion, the Chief Election Commissioner will have the opinion to  communicate
\nto the  Governor.   If the two Election Commissioners do not reach a unanimous
\ndecision in the matter of expressing their opinion on the  issue  referred  to
\nthe  Election  Commission,  it  would  be  necessary  for  the  Chief Election
\nCommissioner to express his opinion on the doctrine of necessity.    We  think
\nthat  in the special circumstances of this case this course of action would be
\nthe most appropriate one to follow because if the two  Election  Commissioners
\ndo not agree, we have no doubt that the doctrine of necessity would compel the
\nChief  Election Commissioner to express his views so that the majority opinion
\ncould be communicated to the Governor to enable him  to  take  a  decision  in
\naccordance therewith as required by Article 192(1) of the Constitution.<\/p>\n
        27.   In  view  of what is stated supra, we hold that the present Vice
\nChairman of the State Administrative Tribunal is entitled  to  adjudicate  the
\ndisputes  relating  to  service  matters  of  the  State including that of the
\nconstitutionality of Statue or Ordinance or Rules, as the case may be.\n<\/p>\n
        28.   But,  Ms.Vaigai,  learned  counsel  draws  our  attention to yet
\nanother Judgment of the Supreme Court reported in 1997 (10) SCC 663 (Union  of
\nIndia and  another  Vs.    P.Sathikumarn  Nair  and  Others),  in which a writ
\npetition relating to service dispute was entertained directly by  the  Supreme
\nCourt.  The said Judgment is inapplicable as the writ petition was entertained
\ndirectly  by  the Supreme Court under Article 32 of the Constitution of India,
\nand Section 28 of the Administrative Tribunals Act excludes  the  jurisdiction
\nof  the  High  Court, but not of the Supreme Court, and it is so expressly and
\nspecifically stated.\n<\/p>\n
        29.   In  view  of  what  is  stated  supra,  we  hold that these writ
\npetitions are not maintainable without exhaustion of  the  remedy  before  the
\nState Administrative Tribunal.  However, having regard to the magnitude of the
\nproblem  and  the  urgency  involved,  should any cause be espoused before the
\nState  Administrative  Tribunal,  the  State  Administrative  Tribunal   shall
\nadjudicate the  dispute,  as  early as possible.  It shall also be open to the
\naggrieved  parties  to  file  application  before  the  appropriate  authority
\nindicated  under  the  impugned  Ordinance  for  revocation of the punishments
\ninflicted on them and if any  such  applications  are  filed,  they  shall  be
\ndisposed of by the State Authorities not later than one month from the date of
\nreceipt of such application, by affording reasonable opportunity.\n<\/p>\n
        30.  Insofar as, the argument touching upon  the  Article  20  of  the
\nConstitution  is  concerned,  we  do not see any infraction of the fundamental
\nright guaranteed in Clause (1) there of, as no new offence  has  been  created
\nunder the  impugned  Ordinance.  The Act, which came into effect on 1.10.2002,
\nin its Sections 4, 5 and 6 already described the conviction and punishment for
\nthe striker, instigator and the financier respectively.  We  have  adjudicated
\nupon this aspect, as it falls beyond the sphere of service law.\n<\/p>\n
        31.  Coming to the arrests, doubtless, bail petitions have to be filed
\nas  the  offences  are  cognisable  and  non-bailable, but that is in ordinary
\ncases.  In a matter like this, where more than 2000 persons have been arrested
\nand the offences being quite different than usual offences  like  the  one  in
\nIndian  Penal  Code,  the  offences  under the Act, cannot be viewed with such
\nseverity, at least in the context of enlarging the arrested personnel on bail.
\nIn fact, the learned Advocate General submitted that whoever  has  filed  bail
\napplications  have been let off on bail, but still as on date 2046 persons are
\nlodged in jails for the last 12 days.  Total detentions are 2211, out of which
\n74 were ladies and as on date only 165 male and 7 female personnel have so far
\nhave been enlarged on bail, and that  shows  the  pathetic  condition  of  the
\narrestees.   Among  the  arrestees the official cadre are less, while ordinary
\nstaff of clerks and sub-staff are more in number.  The sub-staff includes  the
\nattenders and  sanitary staff including sweepers.  It will not be unreasonable
\nto presume that the personnel who were languishing in jail for  12  long  days
\nfor  the offences of this nature, who cant be called criminals stricto senso,
\nare totally dejected having last their source of livelihood and there  may  be
\nseveral  reasons  disabling  them  from filing bail applications including the
\nfinancial aspect.  We have already expressed that this Court not only a  court
\nof  law  but  the  court  of  justice  too, and court of justice does not mean
\nanything if it is not tempered with mercy.  For that reason we  dispense  with
\nthe  formalities  of  filing  bail  petitions  and  direct the respective jail
\nauthorities to forthwith release all the arrested persons who are in  judicial
\ncustody, in connection with the offences charged under Sections 4, 5, and 6 of
\nthe  Tamil  Nadu  Essential  Services Maintenance Act, 2002 on taking personal
\nbonds for Rs.1,000\/- each.  This order shall be communicated by the  Registrar
\nGeneral  of  this  Court  by a Special Messenger to the Chief Secretary to the
\nState of Tamil Nadu, who shall in turn direct all the jail authorities in  the
\nState of  Tamil  Nadu to comply with this order forth with.  We would be happy
\nto see all the arrestees out of jail by the dawn of Saturday i.e., 12.07.2003.\n<\/p>\n
        32.   In  the  result,  the writ appeal and all the writ petitions are
\ndisposed of accordingly.  No costs.  Consequently, connected  W.A.M.Ps.    and
\nW.P.M.Ps.  are closed.\n<\/p>\n
Internet :  Yes<\/p>\n
sm\/js<\/p>\n
Copy to\n<\/p>\n
1.    The  Government  of  Tamil Nadu, Rep.  By the Chief Secretary to
\nGovt., Fort St.George, Chennai  9.\n<\/p>\n
2.  The Secretary to  Government,  Public
\nand Administrative Reforms  Department,  Fort St.George, Chennai  9.\n<\/p>\n
3.  The Secretary to Government, Public Department,
\nFort St.George, Chennai  9.\n<\/p>\n
4. The Secretary to Government, Home Department, Fort St.George, Chennai  9.\n<\/p>\n
5. The Secretary to  Government,  Law  Department, Chennai  9.\n<\/p>\n
6.  The Director General of Police, Mylapore, Chennai  4.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Government Of Tamil Nadu vs The Tamil Nadu Co-Operative … on 11 July, 2003 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 […]<\/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":[8,13],"tags":[],"class_list":["post-88201","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Government Of Tamil Nadu vs The Tamil Nadu Co-Operative ... on 11 July, 2003 - 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\/the-government-of-tamil-nadu-vs-the-tamil-nadu-co-operative-on-11-july-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Government Of Tamil Nadu vs The Tamil Nadu Co-Operative ... on 11 July, 2003 - 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