Case study report on SC judgement on TN Govt.

Staff Strike Ayodhya Paikaray

Supreme Court Judgement in The Case of Tamil Nadu Govt.

Staff Strike

The Indian Supreme Court ruled in August that there is no fundamental right to go
on strike. The Indian Supreme Court made this declaration as a result of a writ
petition brought by public sector employees of the Tamil Nadu State Government
who had been dismissed for launching a statewide strike.

The strike itself was the product of resistance by government workers to the erosion
of pensions and other rights by the AIADMK state government. Workers lost benefits
worth between 90,000 rupees and 125,000 rupees as a result of cutbacks over the
past two years, provoking a series of strikes and protests.

The strike was started on 2nd July’ 2003 by Unions affiliated to INTUC, CITU, AITUC,
HMS, LPF. An estimated 90 percent of the public sector workforce, or more than a
million workers, stopped work on July 2. Clearly shaken by the turnout, Chief
Minister Jayalalithaa rammed through an emergency amendment to the ESMA on
July 4 providing her with retrospective powers to dismiss strikers and to impose
substantial fines and jail terms on anyone found guilty of striking or instigating a
strike.

Over the next few days, almost 200,000 workers were summarily sacked in the
largest mass dismissal in Indian history. Workers not only lost their jobs but, in
many cases their housing as well. To fill the positions, Jayalalithaa began to hire
thousands of strikebreakers on short-term contracts-many with close affiliations to
the ruling AIADMK. At the same time, police continued to make arrests.

On July 11, the Tamil Nadu High Court dismissed legal petitions to overturn the
sackings on the grounds that the workers had not sought reinstatement through the
State Administrative Tribunal - a body consisting of one judge already inundated
with cases. The High Court agreed to only one point of the petitions: the release
of those who had been arrested.

With the strike ended and no broad campaign against the sackings, the Indian
Supreme Court seized on the opportunity to establish a far-reaching precedent. On
July 24, a panel of two judges declared that employees did not have any
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fundamental right to strike and that such illegal strikes had to be dealt with firmly
by the authorities. It “suggested,” but did not order, that the state government
reinstate the sacked workers, provided that they offered an unconditional apology.

Following the reinstatement of some 165,000 workers, the Supreme Court brought
down its final judgment on August 6 which dismissed the challenge to the ESMA law
and declared that employees had “no fundamental, legal, moral or equitable
right” to strike.

In a 21-page ruling thoroughly permeated with hostility to the working class, the
judges declared: “No political party or organisation can claim a right to paralyse the
economic and industrial activities of a state or nation or inconvenience citizens.”

After stating that strike action was “mostly misused,” they suggested that, for
redressing grievances, employees should do “more work honestly, diligently
and efficiently” to impress their employer.

The Tamil Nadu government immediately took the Supreme Court ruling as a green
light to intensify its offensive.

On August 12, Chief Minister Jayalalithaa began steps to deregister 26 major trade
unions and another 200 affiliated unions. Recognition of the JACTO and COTA
federations was withdrawn. More than 6,000 dismissed workers accused of
“violence” and “instigating” others to strike have not been reinstated and are to be
dragged before a panel of three retired judges from the Madras High Court.

Rights and freedoms

The Courts have also relied on the principle that each person’s fundamental rights
cannot be exercised in a manner that unduly interferes with the rights and
freedoms of other citizens.

In 1998 the Kerala High Court observed as follows:

“There cannot be any doubt that the fundamental rights of the people as a whole
cannot be subservient to the claim of fundamental right of an individual or only a
section for the people.”
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Case study report on SC judgement on TN Govt. Staff Strike Ayodhya Paikaray

The Kerala High Court went on to say: “No political party or organization can claim
that it is entitled to paralyze the industry and commerce in the entire State or
nation.”

In Tamil Nadu, the Government Servants’ Rules of 1973 expressly prohibited

government servants in the State from engaging in strikes or inciting others to do
so.

In considering these Rules, the Court observed that:

Moral justification

“There is no moral or equitable justification to go on strike. Government servants

cannot claim that they can take the society at ransom by going on strike. Even if
there is injustice to some extent, as presumed by such employees, in a democratic
welfare State they have to resort to the machinery provided under different
statutory provisions for redress of their grievances.”

The Court referred to doctors, teachers and public transport employees as

categories of State sector workers who, by striking, could bring society to a
standstill. It also noted the high proportion of the State’s tax revenue that was
spent paying the salaries of public employees.

Duties and responsibilities

The Court stressed the need for people to be conscious not only of their rights, but
also of their duties and responsibilities. It stated that in a democracy, Government
employees, they are part and parcel of the governing body and owe a duty to
society.

However the Court also tempered justice with mercy. It noted that sometimes even
if employees do not agree with their leaders, they are forced to go on strike for
reasons beyond their control. Therefore, even while enforcing the laws, the capacity
of the employees to resist should also be taken into account.

For this reason, the Court suggested that the State government, which had sacked
the striking workers, should reinstate them, except for those who had been arrested
or against whom complaints had been made to the Police.
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However the Court also ruled that such reinstatement was to be on condition that
the workers tendered an “unconditional apology” and agreed to abide by the no-
strike rules of the State. The action of the Indian Courts appears to be in
conformity with the relevant Conventions of the International Labour
Organization (ILO) that confer a right to form and join unions and engage in
collective bargaining, but do not confer a right to strike.

ILO Convention

Article 8 of ILO Convention 151 on Labour Relations in the Public Service provides as
follows:

“The settlement of disputes arising in connection with the determination of terms

and conditions of employment shall be sought, as may be appropriate to national
conditions, through negotiation between the parties or through independent and
impartial machinery, such as mediation, conciliation and arbitration, established in
such a manner as to ensure the confidence of the parties involved.”

Legal action

Section 27 gives trade unions immunity from legal action in respect of any
“tortious” (i.e. delictual) act alleged to have been committed by or on behalf of a
trade union. There is no immunity for unions or their members in respect of criminal
acts.

Conclusion

• There is no fundamental right to go on strike:

Law on this subject is well settled and it has been repeatedly held by the
Court that the employees have no fundamental right to resort to strike.

• There is no legal / statutory right to go on strike.

There is no statutory provision empowering the employees to go on strike.

Further, there is prohibition to go on strike under the Tamil Nadu
Government Servants Conduct Rules, 1973 (hereinafter referred to as "the
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Case study report on SC judgement on TN Govt. Staff Strike Ayodhya Paikaray

Conduct Rules"). Rule 22 provides that "no Government servant shall

engage himself in strike or in incitements thereto or in similar activities."

Rule 22-A provides that "no Government servant shall conduct any
procession or hold or address any meeting in any part of any open ground
adjoining any Government Office or inside any Office premises

 during office hours on any working day

 outside office hours or on holidays, save with the prior

permission of the head of the Department or head of office, as
the case may be.

• There is no moral or equitable justification to go on strike

Government employees cannot claim that they can take the society at
ransom by going on strike. Even if there is injustice to some extent, as
presumed by such employees, in a democratic welfare State, they have to
resort to the machinery provided under different statutory provisions for
redressal of their grievances. Strike as a weapon is mostly misused which
results in chaos and total maladministration.

There exists other alternative mechanism for their grievances. Such as

 Meaningful dialogue-collective bargaining

 Written complaints

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