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By A. Subramani
Declaring as not maintainable a batch of 11 petitions from various staff unions challenging the validity of the T.N. Essential Services Maintenance Act and a subsequent ordinance dispensing with pre-decisional hearing to strikers, the First Bench asked the aggrieved employees to approach either the State Administrative Tribunal or use an appeal provision found in the ordinance. "It is open to the aggrieved parties to file application before the appropriate authority indicated under the impugned ordinance for revocation of the punishments inflicted on them. If any such applications are filed, they shall be disposed of by the State authorities not later than one month, after affording reasonable opportunity," the Bench, comprising the Chief Justice, B. Subhashan Reddy and Justice K. Govindarajan, stated.
`Release arrested staff'
The Bench, however, directed the Government to release all the 2,000-odd arrested persons without insisting on them moving bail plea before competent courts. "Doubtless, bail petitions have to be filed as the offences are cognisable and non-bailable. But that is in ordinary cases. In a matter like this, where more than 2,000 persons have been arrested, and the offences being quite different than usual offences, it cannot be viewed with such severity, at least in the context of enlarging the arrested personnel on bail. "This court is not only a court of law but the court of justice too, and court of justice does not mean anything if it is not tempered with mercy. For that reason, we dispense with the formalities of filing bail petitions and direct the respective jail authorities to forthwith release all the arrested persons who are in judicial custody, in connection with the offences under Sections 4, 5 and 6 of the T.N. ESMA, on taking personal bonds for Rs. 1,000 each," the Judges ordered. Declaring all the writ petitions as "not maintainable", the Bench said: "We hold that these writ petitions are not maintainable without exhaustion of the remedy before the State Administrative Tribunal." The Judges cited the Supreme Court ruling in the L. Chandrakumar's case and said, "... the High Court shall not entertain any matter relating to service disputes unless the remedy is first exhausted before the administrative tribunals". Rejecting the argument of the petitioners' counsel that the Tribunal, which had only one member (Vice-Chairman, I. David Christian) as on date, could not hear matters relating to the constitutionality of a statute or ordinance or Rule, the Bench said that merely because there was only one member manning the forum its "very existence could not be ignored". "We hold that the present Vice-Chairman of the Tribunal is entitled to adjudicate the disputes relating to service matters of the State, including that of the Constitutionality of Statute, Ordinance or Rules, as the case may be." The Judges, however, said, "having regard to the magnitude of the problem and the urgency involved, the Tribunal shall adjudicate the dispute as early as possible". As for the arguments touching upon Article 20 of the Constitution, the Bench said, "we do not see any infraction of the fundamental right guaranteed in Clause(1) thereof, as no new offence has been created under the ordinance. The Act, which came into effect on October 1, 2002, in its Sections 4, 5 and 6 already described the conviction and punishment for the striker, instigator and the financier respectively".
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