The Telegraph
Since 1st March, 1999
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Strike test for political CEOs
- Supreme Court loads gun but trigger with governments

Aug. 6: The Supreme Court has formally declared that government employees and trade unions have no “legal, fundamental or moral right” to go on strike, but the verdict’s enforcement will depend on whether all political chief executives are willing to act like Jayalalithaa.

The will of the political leadership was put to test hours after the Supreme Court verdict with trade unions — mostly those affiliated to the Left — greeting it with defiance.

“Strikes are justified and they are an employee’s birthright,” said Smarajit Roy Chowdhury, the general-secretary of the CPM-controlled Coordination Committee, the largest government employees’ body in Bengal.

The political leadership, which has now been reassured of legal armour if it wanted to tackle a strike with an iron hand, reserved comment.

Bengal chief minister Buddhadeb Bhattacharjee, whose state has often been held to ransom by employee unions, said he would express his opinion after speaking to his party colleagues. His party colleague and state CPM secretary Anil Biswas described the court verdict as “uncalled for”.

Kerala chief minister and Congress leader A.K. Antony, who had stood up to striking government employees in his state, too, declined comment.

However, if Bhattacharjee and Antony want to crush a strike by dismissing employees as Jayalalithaa did, they have a legal precedent now.

Even if service rules of respective state governments are silent on the legal status of strikes by employees —most states have benign rules on this count — there is an option for tough action.

The administration of the day can amend the dreaded Essential Services Maintenance Act (Esma), declare the strike illegal and dismiss the employees.

Jayalalithaa had done this by issuing an ordinance and then sacking over 1 lakh employees overnight. The number of dismissals eventually crossed 2 lakh, spreading panic among the employees on strike and forcing them to call off the action.

The dismissed employees — barring those against whom FIRs have been filed — were taken back at the behest of the Supreme Court after they apologised and undertook that they would not go on strike in future.

But here, too, the court said it advised so because some of the employees were forced to join the strike, not because the act was not enforceable.

The wave of relief among the chastened employees in Tamil Nadu was perceptible today. The joint action council which spearheaded the strike “thanked” Jayalalithaa for reinstating the employees.

However, if the political leadership decides to continue treating striking employees with kid gloves, there is little the court verdict can achieve.

“It can end up like Pota (the anti-terrorism law which is not being enforced in several states ruled by non-NDA partners). The enforcement of it depends on state governments and the ruling regime,” said Rajinder Sachar, retired chief justice of Delhi High Court.

The unions still have a legal option left. Legal luminaries said trade unions can move the Supreme Court to refer the issue to a larger bench for a comprehensive review of the ruling since labour laws do not forbid strikes.

“For example, a two-week notice period is required normally under law for a union or a group of employees or any similar organisation to inform the management that the workers would resort to strike. Then, the conciliation officer steps in, during which period, of course, there cannot be a strike. If conciliation fails, strike does take place,” Sachar said.

“There may not be a fundamental right to strike, but certainly there is legal or statutory right to strike, as statutes do provide for a properly announced strike with a given notice period,” he added.

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