The Telegraph
Since 1st March, 1999
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Staff back with union right to fight sack law

New Delhi, July 24: The Supreme Court today accepted a Tamil Nadu government undertaking to take back about 200,000 employees it had dismissed for going on strike.

A division bench of Justices M.B. Shah and A. Lakshmanan ruled that the employees could resume work from tomorrow after giving “in writing an unconditional apology” and a “written undertaking that they would abide by rule 22” of the government’s service rules that bans strikes by employees in essential services.

The salaries and perks of the employees would start as soon as they return. There would be no break in service and they would be deemed to be continuing in duty. The salary for the strike period would be decided later according to disciplinary rules.

Accepting the undertaking given by senior counsel for Tamil Nadu K.K. Venugopal, the judges, however, allowed “genuine, recognised and registered” trade unions to challenge the amendment to the Essential Services Maintenance Act in Tamil Nadu.

The change provided that striking employees would be dismissed from service if their strike was declared “illegal” under rule 22.

Justices Shah and Lakshmanan refused to entertain public interest litigation in the matter, saying “political petitions are being filed” in the name of PIL, and gave only the trade unions concerned the right to challenge the amendment. The trade unions were asked to move Madras High Court with a writ.

This order came on a petition by the state unit of the All India Trade Union Congress represented by counsel B.K. Pal.

The apex court made a clear distinction between “justifiable strikes and illegal” ones by stating that employees “generally” should not resort to strikes in essential services sectors that have been declared “illegal” by the government. However, the court recognised the trade unions’ role by giving them the right to challenge the legality of a government order declaring a particular strike as “illegal”.

The court had made this distinction earlier during the last hearing, holding that under Article 309, the state government had powers to “recruit, term conditions of service and frame rules” for its employees.

However, today, it clearly stated that “genuine, recognised and registered” trade unions could challenge rules that might be invoked by the government to declare a strike “illegal”.

During proceedings, the court made clear its “general view” on strikes with Justice Shah referring to the declaration of the lawyers’ strike as “illegal” and the apex court’s upholding of the prohibition of “compelling and coercing” the general public and its workers by political parties to organise bandhs.

“There is a section of employees who believe that they have a fundamental right to go on strike. We would like to know which part of the fundamental rights chapter of the Constitution provides for this,” the bench asked as a senior counsel for the petitioners, A.R. Andhiyarjuna, tried to argue that the state government had infringed on the striking employees’ fundamental right.

Aituc general secretary Gurudas Dasgupta reacted strongly against the verdict, saying: “Right to strike is not a subject open to judicial interpretation. Never before has any government sacked over 300,000 workers. It is wrong to ask them to give an undertaking that will strip them of their right to strike.”

The Left trade unions stridently opposed the order asking the sacked employees in Tamil Nadu to give an undertaking that they will not go on strike in future.

The Bharatiya Mazdoor Sangh (BMS), however, took a less aggressive stance and asked government employees not to rush to court at the drop of a hat. “The employees should think twice before knocking on the doors of the judiciary. The consequences can be far reaching. Trade union leaders should keep this in mind,” said BMS general secretary Hansubhai Dave. “Today’s court judgment, for instance, will now act as a brake on other government employees. It will caution them against going on strike.”

Dasgupta said trade unions will raise the issue at tomorrow’s Standing Labour Committee meeting chaired by Union labour minister Sahib Singh Verma. “This is not a matter that can be discussed at tomorrow’s meeting,” countered Dave.

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