- (1.) AT issue, is the constitutionality of the Tamil Nadu Essential Services Maintenance Act, 2002, as also the Tamil Nadu Ordinance No. 3 of 2003, and the consequential actions of dismissals and arrests, made there under. The above Act and Ordinance are hereinafter referred to as the Act and the Ordinance. The Act was enacted and was brought into force w. e. f. 1. 10. 2002. Section 3 (1) of the Act enables the Government to impose ban on strikes in essential services, as may be notified, and after the imposition of such ban, any strike, in essential services, is treated as illegal and also a crime rendering the strikers punishable for the said crime, apart from the disciplinary actions, and even the instigators and financiers are punishable for the crime as abettors.
(2.) THE Government had evolved a policy and issued G. O. Ms. Nos. 71, 72, 73, 74 and 75, all dated 19. 3. 2003, by which the pensioners rights are slightly affected, touching upon their qualifying service, basis of computation of emoluments, earned leave encashments, commutation, basis of computation of such commutation, and also the quantum of cash payment towards gratuity amount as immediate cash payment is restricted to 50% by deferring the balance of 50% by issuance of Small Savings Certificates to be encashed after the period of their maturity. It is needless to mention that there are several associations of employees and they made representations to the Government to withdraw the above Government Orders, but the Government did not consider their demand to review its decision, and then the employees' Associations passed resolutions deciding to strike work, until their demands are accepted by the Government. Then the Government issued notification dated 23. 4. 2003, which reads thus; Abstract Essential Services - Maintenance of Essential Services - Prohibiting strikes in certain essential services, public services and posts in connection with the affairs of the State - Order under Sub-section (1) of Section 3 of the Tamil Nadu Essential Services Maintenance Act, 2002 - Notified. PUBLIC (SC) DEPARTMENT G. O. Ms. No. 415 Dated: 23. 4. 2003 Read ORDER The following notification will be published in the Tamil Nadu Governmentgazette Extraordinary, dated 23. 4. 2003: NOTIFICATION WHEREAS a section of the members of the essential services specified in the Annexure to this order have announced various modes of agitation which includes strike; AND WHEREAS the Government is satisfied that in the public interest and in the interest of public order, it is necessary to prohibit strike in the said essential services; NOW, THEREFORE, in exercise of the powers conferred by Sub-section (1) of Section 3 of the Tamil Nadu Essential Services Maintenance Act, 2002 (Tamil Nadu Act 36 of 2002), the Governor of Tamil Nadu hereby prohibits strike in the essential services, specified in the Annexure to this order, from the date of publication of this Notification in the Tamil Nadu Government Gazette. (BY ORDER OF THE GOVERNOR) LAKSHMI PRANESH CHIEF SECRETARY TO GOVT.
(3.) THE said order has been passed in exercise of powers conferred under Sub-section (1) of Section 3 of the Act. When the employees struck work on 1st July 2003, and continued the following days, the Government had invoked the provisions of the Act and made arrests and also initiated disciplinary actions. On 4. 7. 2003 W. P. No. 18545 of 2003 was filed questioning the validity of the Act. Notices were issued by the learned single Judge on the same day, and the matter was posted to 7. 7. 2003. Meanwhile, late in the day of 4. 7. 2003, the Government has promulgated the Ordinance by amending Section 7 of the Act and substituting an entirely new provision, dispensing with the audi alterm partem rule for inflicting penalties varying from dismissal to break in service. Residence motion was moved before the learned single Judge on 5. 7. 2003 questioning the same, and seeking urgent orders. After hearing the parties, the learned single Judge directed the learned Advocate General to seek instructions from the Government as to why the plea of the strikers to withdraw the strike and resumption to duty cannot be considered by the Government, by withdrawing the proceedings relating to disciplinary actions and prosecution. The matter came up on 6. 7. 2003, and after the learned Advocate General reported to the learned single Judge that any decision by the Government would be taken only on Wednesday i. e. , 7. 7. 2003, but the learned single Judge felt urgency, and after considering the contentions on either side the learned single Judge has passed the order in W. P. M. P. Nos. 23170 and 23171 of 2003 in W. P. 18545 of 2003. The relief portion is contained in paragraph 19 of the said order, and the same reads as follows: Para-19 : For all these reasons, I am inclined to: (i) direct the respondents to release all the Government servants forthwith irrespective of whether they are members of the petitioner association or not, who are arrested for the alleged offence punishable under Sections 4 and 5 of the Act, on condition that they give an undertaking before the Police Station or the Jail authority concerned that they will not either instigate, incite other persons to participate in the strike and that they would not involve themselves in any act hereafter which would otherwise attract Sections 4 and 5 of the Act. This, of course, will not be applicable in the case of the persons against whom the cases are registered under the Tamil Nadu Public Property (Prevention of Damage and Loss) Act, 1992. The sixth respondent is directed to give effect to this direction with immediate effect; (ii) all the orders of suspension and dismissal of the alleged erred Government Servants, made without conducting any enquiry shall be kept in abeyance until further orders of this Court and they shall be permitted to join duty forthwith in view of their undertaking given before this Court on 5. 7. 2003 to withdraw the strike and resume duty; (iii) the respondents shall not fill up the post held by the alleged erred Government servants against whom order of suspension or order of dismissal are pending without enquiry; (iv) the above interim directions will be applicable to only those Government servants who withdraw the strike unconditionally and join duty forthwith ; and (v) these above interim orders shall not stand on the way of the Government to take appropriate decision; (i) in considering the grievance of the petitioners with regard to (a) the withdrawal of the criminal cases filed against them; (b) the withdrawal of order of suspension; and (c) the withdrawal of orders of dismissal; and (ii) the Government on the representation of the Government Servants and their associations, is at liberty to resolve the issues raised by negotiations amicably, pending disposal of the above writ petition. ;