Monday, 12 January 2009

The Morality of Strikes

- Rajesh Tyagi


Once, addressing the Public representatives, Pfone Puttakamer, the then HomeMinister of Prussia, had said in his statement: "Behind every strike stands a monster raising its hundred heads". While saying that, Puttakamer was not expressing his individual opinion, rather the responsible Minister was airing the sentiments of the class, which was frightful of upheaval of mass strikes, spreading throughout Europe those days. It seems that the same monster with a hundred heads has now started appearing in the dreams of those who are ruling in India. Setting aside all ethos, democratic values,and legal proclamations, all forces of this class are joining their heads to fight this monster. In a similar concerted effort, the Government of Tamil Nadu (TN), in 2002 brought onto the statute book a legislative enactment - Tamil Nadu EssentialServices Maintenance Act (TNESMA), with the usual scheme under it. Its own validity remained under the clouds of doubt, as it was in direct conflict with the provisions of the Industrial Disputes Act and other Central Legislations, as far as the rights protected under the scheme of central legislation were overreached and abrogated by such enactment, passed by the State Legislature. Further, one may add, an ordinance introducing amendment to the scheme of TNESMA was promulgated by the TN Government. Thisincorporated provisions empowering the Government to effectuate en-masse disciplinary actions against the employees for violations. Apart from this, that there already existed a Rule No.22 in the TN Government Servants' Conduct Rules, 1973, providing a blanket ban not only on strikes of employees, but any form of demonstration etc. also. Thus an entire regime of laws in the form of enactments, ordinances, notifications etc. was erected in advance to counter the possible action of none other than the Government's own employees. As soon as the strike of employees started, the Government took to its armory and dismissed more than 2 lakh of its employees in an administrative action, which even the Supreme Court has described as "unprecedented". In expectation of justice, the employees approached the High Court of TN at Chennai, but the petitions were thrown out on the ground that the employees should approach the Administrative Tribunal first; then only could they come to the High Court. It was against this judgement of the High Court that the employees had approached the Supreme Court, invoking its appellate jurisdiction. Several Writ Petitions were directly filed before the Supreme Court for safeguarding the fundamental right of the employees against the arbitrary action of the Government. Firstly, the Supreme Court had also chosen to throw out the petitions filed by the employees observing thatthere was no fundamental, equitable or moral right available to the employees to go on strike, and as such, the action taken by the Government dismissing and jailing the employees was valid and justified.While making reference to various judicial precedents in its decision, including that of Kameshwar Prasad's case of 1962, and simultaneously referring to Rule 22 of the TN Government Servants' Conduct Rules, the Supreme Court forgot that similar provisions which imposed a ban on various forms of protest were struck down by itself in the OK Ghosh case and Kameshwar Prasad's case placing reliance upon the ratio of decision in Ram Manohar Lohia's case of 1960. It was held that the blanket ban on all formsof protest without differentiating the legal from the illegal and without showing how such protests were against public order or morality, was illegal, invalid and beyond the legislative capacity of the Government. In OK Ghosh's case it was Rule 4-A and 4-B of the Central Civil Services Conduct Rules and in Kameshwar Prasad's case it was Rule 4-A of Bihar Government Servants Conduct Rules, 1956, which was declared violative of the fundamental rights guaranteed under Article 19 (a), (b), and (c) of the Constitution, and were thus struck down. But this time the Supreme Court refused even to test the validity of the laws on the ground that there was no fundamental right to strike and instead of striking down Rule 22 of the Conduct Rules following the ratio of judgements in Lohia's case, OK Ghosh's case and Kameshwar Prasad's case,rather placed exclusive reliance on Rule 22 to reach the conclusion thatinstead of a statutory right there was a statutory bar against such strikes. While holding that there is no statutory right to strike available to the employees, what was ignored was that these Government Employees serving under various departments and organisations of the TN Government are covered by the provisions of the Industrial Disputes Act, whereunder, the right to strike is a definite stautory right - bare reading of section 23-24 thereof would make it clear. That being so, a statutory right is created in favor of the employees by virtue of no less than a Central Legislation, passed by the Parliament, which in no case could have been abrogated by an enactment like TNESMA passed by the State Legislature. Though an amendment to Section 2 (j) defining "industry" is pending, which would exclude certain categories of Government departments from the purview of the ID Act, but till date all clerical and subordinate staff are covered by the definition of "workmen" under section 2 (s), and all Government departments and other agencies arecovered under the definition of "Industry" under section 2 (j) of the ID Act. As such, the rights, benefits, protection accruing under the ID Act including the right to strike was available to the striking employees, which aspect is totally ignored in the judgement. The Supreme Court has committed an error of law in observing that no statutory right to strike was available to the employees. The provisions of the enactment passed by the State legislature - TNESMA - and the service rules which were violative of such statutory rights, specifically Rule 22 of the Conduct Rules and the Ordinance of 2003, imposing a ban on the right to strike are all illegal and should have been struck down on this ground alone. In a state of conflict between 'recognition' of such rights by central legislation and their 'abrogation' by the State Legislation through TNESMA or rules framed underthe residue power of the Executive like the Conduct Rules, the provisions of the Central Legislation would hold ground. Leaving apart the aforesaid question, if we come to the question of the validity of the provisions of TNESMA and the Ordinance of 2003, it becomes glaring that the same is invalid on another count also, i.e. hitting at the principle of natural justice, which says that nobody can be condemned without hearing. While making provision for unguided executive power arming the Government with power to dismiss the employees en-masse, no mechanism is provided to give an opportunity of hearing to the charged employee. The piece of legislation - TNESMA and Ordinance of 2003 - both should have been struck down on this ground as well. These instruments, which conferred absolute and unbridled power upon the executive, which the legislative/conferring body, the Legislative Assembly itself does not have under the Constitution, were totally illegal and beyond the legislative competence of the Assembly and fell totally outside the scope of the executive/residue power available to the State Government. The Supreme Court, realising the fatal discrepancy in the impugned laws, instead of striking down the same on the ground of being violative of Art. 14, covered up the defect by appointing a panel of three High Court Judges, as a substitutive mechanism and referred to them about 6,000 cases in which they would complete the process of hearing within a month, which means if a judge continuously works 8 hours a day and 7 days a week, hardly 5 minutes time would be given to each case, in which time after going through rival contentions the Judge would record his decisions also. The right to hearing would thus remain illusory and nothing more than a formality in law. Instead of adding such a cosmetic mechanism and legalising an otherwise illegal piece of legislation, the Supreme Court should have decided the legality of such a legislation and the executive action taken thereunder. After ruling upon non-existence of the statutory right of employees to strike, the Supreme Court proceeded to even alien areas of morality and equity, observing that there was no moral or equitable right to strike. Commenting adversely against the strikes in general, the Hon'ble Judges suggest two channels to the employees, to air their grievances - firstly that they should work more honestly, diligently and efficiently so that their gesture is appreciated not only by the general public but by the employers also and secondly, if any grievance remains, they should resort to the mechanism provided under the law. Needless to say the Government, by promulgating laws like ESMA, even before hand, has shown how it welcomes the gesture of those who dare to raise their heads. But there is no doubt that the gesture of those would be surely appreciated not only by the Tamil Nadu Government or the Hon'ble Courts but by the employers as a whole, who take pledge never to raise their heads, rather would work 'honestly, diligentlyand efficiently to express their grievances'. This is the first way of redressal of grievances suggested by the Hon'ble Court. And, the second one is to approach the forum provided by law. For instance, labour courts which are comparatively more accessible to employees of lower ranges. Industrial Disputes Act stipulated that the dispute referred to the Industrial Tribunal/Labour Court by the appropriate Government would be decided within a period of 3 months. But as everyone who approaches such legal fora knows that it takes no less than three years even in petty cases to be decided by the Tribunal and Labour Courts. Even the first date of notice is of more than three months. This is after preliminary exercise of conciliation process and then of reference by the appropriate Government. Several years would be spent in the labour courts, then the High Court takes its own time where already 4-5 years of backlog of cases remains pending and then they come before the Supreme Court. This is the legal process, which the Supreme Court advises the employees to resort to. The Judges comment with notable concern that strike as a weapon is mostly misused which results in chaos and total mal-administration. Then comes the descriptory part - to quote - "in the case of a strike by a teacher, theentire educational system suffers. In case of strike by a doctor, innocent patients suffer. In case of strike by employees of the transport services, the entire movement of society comes to a standstill, business is adverselyaffected (this is the real concern!) and a number of persons find it difficult to attend to their work, to move from one place to another or from one city to another. "Business is adversely affected - this is the main concern - the real issue behind the smokescreen. As far as the movement of public is concerned, the same is affected to inconvenience of people manytimes more by the illegal halting of traffic and blocking of roads for free and privileged movement of VIPs. Secondly the instances of strike by teachers, doctors, transport workers etc. are only illustrative in character. Lordships would find, to their dismay that the 'public' to which they are referring in abstract terms, is composed mainly of working sections, including employees, and apart from them there is no 'public' left! Outside this section there are the privileged few - the Ministers, the bureaucrats and the Hon'ble Judges. Thus, the right to strike does not in any way come in the way of exercise of rights of the general public, except for the privileged few. This is why they always see the "hundred-headed monster" behind the strikes. Lastly, we must make a passing reference to the fact that today the right to strike is being recognised as an inalienable natural right - an inherent right - in the entire civilised world. Even in countries where the Constitution does not grant the right to Association, the right to Strike is recognised as a "fundamental" right in the sense of an integrated and inalienable right. The US Supreme Court, in two cases - Jones and Laughlin Steel Corporation case Amulgamated Utility Worker's case, has specifically read such right in due process - clause in 14th Amendment of the US Constitution. But the Courts in India are taking retrogade steps while looking down upon the right to strike as an outlawed activity, rather a conspiracy of workers, an approach, which was prevalent in early nineteenth-century Europe.

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