The Hindu : Justice denied

Online edition of India's National Newspaper
Saturday, Jul 12, 2003

Opinion

Opinion - Editorials

Justice denied

THE MADRAS HIGH Court, by rejecting the petition filed by dismissed Tamil Nadu Government employees, has caused deep disappointment not only among the large workforce but also in a much wider community concerned about fairness and basic rights. Although the Court's order to release arrested employees on bail will be greeted with relief, the substance of the ruling in this landmark case amounts to denial of justice. This is particularly so in the light of observations made by the Judges in the course of the hearing, emphasising the core issue as one of justice and not merely of law and expressing doubts as to whether there had been application of mind in the summary dismissal of about 200,000 employees. The ruling does not seem to reflect the perception that the questions involved in the petitions were of too fundamental a nature to fall in the realm of administrative tribunals.

For the State Government's actions in the past week, by any yardstick, were an extraordinary case of deployment of State power against its own employees. The Tamil Nadu Essential Services Maintenance Act (TESMA) 2002, itself a draconian law, was first invoked in response to an indefinite strike by employees in pursuance of demands relating to pension benefits that had been curtailed on grounds of a resource crunch. The Government then came up with an ordinance giving itself the summary power of dismissal en masse, without any application of mind and without giving the employees an opportunity to be heard. The ordinance, which amended TESMA (Section 7), provides for treatment as "deemed participation" in the banned strike any absence of employees irrespective of the actual reason for their abstention from duty after the promulgation of the ordinance. Midnight arrests of employees and their leaders, retrospective effect sought to be given to the ordinance and dismissals without giving individual notices all show that the Government was intent upon crushing the strike by any means.

The Tamil Nadu Chief Minister, Ms Jayalalithaa, acted within her rights in declaring in the course of negotiations that her Government would concede the demands only to a specified extent. But nothing, including a fiscal crisis (which, by its nature, involves many factors such as taxation, devolution of Central funds, and effective management of public finances), can justify resort to an ESMA-plus ordinance of the kind introduced in the State. It is relevant in this context to note that the Second National Commission on Labour, which submitted its report to the Centre last year, recommended the withdrawal of the Centre's own ESMA, enacted in 1981. It suggested an alternative scheme whereby, in the case of an unresolved dispute in "essential services," a strike was to be "deemed to have taken place" once a strike ballot received the support of 51 per cent of employees, and the dispute would be referred to compulsory arbitration. The clear opinion against ESMA thus pronounced by the Commission and its emphasis that India had an obligation to fulfil the International Labour Organisation's four-point Declaration on Fundamental Principles of Rights at Work 1998, show how ESMA is by universal standards a lawless law. In this day and age, when in the manufacturing and service industries human resource development and employee empowerment are cited as the most effective ways of improving efficiency, summary dismissal and the overnight arrest of hundreds of thousands of employees have no place. Such powers and actions are in profound conflict with fundamental rights, the basic norms of democracy, and enlightened self-interest.

Printer friendly page
Send this article to Friends by E-Mail

Opinion

Stories in this Section

Justice denied

Falling behind

Morality and `new terrorism'

Mushrooming universities