The Hindu : `Madras HC ought to have interfered'

Online edition of India's National Newspaper
Thursday, Aug 07, 2003

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`Madras HC ought to have interfered'

By J. Venkatesan

NEW DELHI Aug. 6. Describing the dismissal of 1.70 lakh employees by the Tamil Nadu Government as an unprecedented, extraordinary situation without parallel, the Supreme Court today said that the Madras High Court ought to have interfered while exercising its writ jurisdiction under Article 226 of the Constitution.

A Bench, comprising Justice M.B. Shah and Justice A.R. Lakshmanan, said "it is true that extraordinary powers are required to be sparingly used". The facts of the present case revealed that it was a most extraordinary case which called for interference by the High Court.

It was true that in the `Chandrakumar case', the apex court had held that it would not be open to the employees to directly approach the High Court when an alternative remedy was available, the judges said.

"However, in a case like this, if thousands of employees are directed to approach the Administrative Tribunal, the Tribunal would not be in a position to render justice to the cause. Hence, because of the very, very exceptional circumstance that arose in the present case, there was no justifiable reason for the High Court not to entertain the petitions on the ground of alternative remedy provided under the statute," the Bench observed.

It said that in respect of 2,215 Secretariat staff and 534 officers holding higher positions, it was agreed and made clear that they would be treated as having been suspended instead of dismissed. The remaining 8,063 employees would be reinstated in service with effect from July 25 on their tendering an unconditional apology for resorting to strike and also an undertaking to abide by Rule 22 of the Service Conduct Rules in future.

In respect of the 6,072 employees not to be reinstated (including 2,749 to be treated as having been suspended), their representations would be considered by three retired High Court judges to be named by the Madras High Court Chief Justice.

Each judge would decide approximately 2,000 representations within one month from the date of allocation of representations.

The Bench also made it clear that the concerned judges would decide the representations without taking into consideration Section 7 of the Ordinance amending the Tamil Nadu Essential Services Maintenance Act (TESMA), 2002 and as far as possible in accordance with the Service Conduct Rules and equity.

The judges' decision would be binding on the State Government and it would act in accordance with the same. However, if any of the employees was aggrieved it would be open to such employee to challenge the same before an appropriate forum.

The Bench made it clear that employees who were re-instated in service would take care in future in maintaining discipline and they had to adopt other alternative methods for redress of their grievances. It indicated that if an employee approached the State Administrative Tribunal, either challenging the FIR or against imposition of any penalty, the Tribunal should pass appropriate orders including interim order within two weeks from the date of filing of such application.

Referring to the fact that only the Vice-Chairman functioning in the Tribunal, the Bench said it was unfortunate that the authorities concerned were not making the administrative tribunals functional and effective by appointing men of calibre.

It was for the High Court to ensure that if the administrative tribunals were not functioning, justice should not be denied to the affected persons and it would be open to the employees to approach the High Court.

The Bench made it clear that it had not dealt with and considered the constitutional validity of the TESMA and the ordinance as the State Government had gracefully agreed to re-instate most of the employees who had gone on strike.

"For this, we appreciate the efforts made and the reasonable stand taken by counsel for the parties. Further, we have not dealt with the grievances of the employees against various orders issued by the State Government affecting their service benefits.

``We hope that the Government would try to consider the same appropriately," the Bench said.

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