Boundaries of Contra-Strike Verdict of Supreme Court

In an unprecedented judgment in T.K. Rangarajan v. GoVt. of Tamil Nadu, (2003 Lab IC 2646 : AIR 2003 SC 3032, the Hon’ble Supreme Court has held that the Government employees have no fundamental right, statutory or equitable or moral to resort to strike and that they cannot take the society at ransom by going on strike, even if there is injustice to some extent. The Hon’ble Court has gone to observe that strike as a weapon is mostly used which results in chaos and total maladministration. The metaphysics of this contra-strike pronouncement has evoked a lively debate for and against the proposition.

The right to work, as a human right is provided for in several international documents. Though not expressly stated it is implicit in the two basic texts of the International Labour Organisation, namely the Constitution of 1919 and the Declaration of Philadelphia of 1944. The right to work is included in the Universal Declaration of Human Rights (1948) and the international Convenant on Economics, Social and Cultural Rights; accordingly every one is entitled to the right to work. In the Constitution of India, there is mandate that the State shall within the limits of its economic capacity and development, make effective provisions for securing the right to work. It may be stated that the United States Supreme Court has regarded right to work as the most precious liberty in the case of Baskey v. Broad of Regents 347 MJ 442 (1954). The Hon’ble Supreme Court of India in Olga Telli’s case AIR 1986 SC 180 has placed reliance upon the observation of Douglas J. in Baskey case. In Delhi Transport Corporation v. DTC Mazdoor Congress the Apex Court has held that income is the foundation of many fundamental rights and when work is the source of income the right to work becomes as much fundamental. In another case of Delhi Development Horticulture Employees’ Union :1992 Lab IC 347 : AIR 1992 SC 789 the Apex Court has observed that this country has so far not attained the capacity to guarantee it. However, It is clear from both the cases that the Supreme Court has not diluted its observation in “Olga Telli’s” that right to life includes the right to livelihood. In fact if the cases be discussed properly in the perceived background in which the judgment was delivered, it would appear as held by Orissa High Court in Bijaylaxmi Tripathy v. Managing Committee that right to life would include right to livelihood and therefore, right to work. It would be relevant to mention that Douglas J of the United State Supreme Court in Baskey v. Board of Regents held that the right to work is the most precious liberty that man possesses. It is thus clear that “man has indeed, as much right to work as he has to live, to be free, to own property...” To work means, to eat. It also means to live. If a person has a right to work then conversely he has a right not to work. All rights have their positive as well as negative aspect. The principle seems to be that whereas man has a right. The law should provide a remedy. It is for this reason that right to strike has been recognized as an inherent right of every employee. It is an accepted principle of industrial adjudication that employees can resort to strike. The industrial adjudications have recognized strike as a legitimate weapon in the matter of industrial relations. The strike as a weapon was evolved by the employees as a form of direct action during their long struggle with the employers. The employees fought bitterest battles to acquire this weapon, However, the cessation or stoppage of work by the employees has always been regarded as detrimental to the production, economy and well being of the society as a whole and the industrial legislation while recognizing the right of workmen to strike has tried to regulate it. In case where such laws are not applicable the service rules may provide for resolution of the dispute. The “whys’ “whens” and “if at alls” of the strike became pertinent questions.

It is true as long back held by the Apex Court in Kameswar Prasad v. State of Bihar AIR 1962 SC 1166 that there is no fundamental right to strike and it is equally true that the Apex Court in B.R. Singh case (1990 Lab IC 389 : AIR 1990 SC 1 has observed that the right to strike is an important weapon in the armalry of employees as a mode of redress. It is a right earned by the employees as a form of direct action during their long struggle. It is a weapon to safeguard and preserve the liberty. It is an inherent right of every employee. The echo of this right is heard in Article 41 of the Constitution of India. No statutory provision is needed to enable employees to resort to strike. The Industrial Disputes Act, 1947 deals with strike. The right to strike is employees’ ultimate weapon and in the Court of the century, it has emerged as an inherent right of every employee. In Kairbetta Estate v. Rajmanickan (1960) 2 LLJ 275 (SC) Gajendragadkar J. said that “in the struggle between the capital and labour the weapon of strike is available to labour”. Thus the right to strike has been recognized even by the Hon’ble Supreme Court. Sections 22 and 23 of the Industrial Disputes Act, 1947 indirectly recognized the right of the employees to go on strike. Section 22 of the Industrial Disputes Act, 1947 says that no person employed in public utility service shall go on strike. Section 22 does not cover only workmen as defined under the Industrial Disputes Act but takes within its ambit all persons employed in public utility services which means any railway service or transport service for the carriage of passengers or goods by air, any service in or in connection with the working of any major part or dock, any postal, telegraph or telephone service, any industry which supplied power, light or water to the public, any system of public conservancy sanitation and any industry which may be declared to be public utility services under Section 2 (n) (vi) or of the Act of 1947 such as Banking Service in hospitals and dispensaries, India Government Mints, India Security Press, Mining etc. strike is prohibited under certain circumstances, under Sections 22 and 23 of the Act of 1947. Any strike if it is commenced in contravention of Section 22 or Section 23 shall be illegal under Section 24 of the Act of 1947. Strike may be justified or unjustified.

As regards justification of strike as back as in 1960 the Hon’ble Supreme Court in Chandramala Estate v. Its workmen, AIR 1960 SC 902 speaking through Das Gupta, J. stated as under:

“While on the one hand it has to be remembered that strike is a legitimate and sometimes unavoidable weapon in the hands of labour, it is equally important to remember that indiscriminate and hasty use of their weapon should not be encouraged. It will not be right for labour to think that for any kind of demand a ‘strike’ can be commenced with impunity, without exhausting the reasonable avenues for peaceful achievement of their objects. There may because where the demand is of such an urgent and serious nature that it would not be reasonable to expect the labour to wait after asking the Government to make a reference, In such cases, the strike, even before such a request has been made, may well be justified”.

In the case of T.K. Rangarajan v. Govt. of Tamil Nadu, the Supreme Court has observed as under:Â

“Now coming to the question of right to strike - Whether fundamental, statutory or equitable/moral right-in our view no such right exists with the Government employees”.

It is submitted that the above opinion may be considered to be the personal view of the two learned judges. The statement that there is no moral or equitable justification to go on strike is contrary to the opinion expressed by the Hon’ble Supreme Court in the earlier cases. The strike may be illegal or unjustified but all strikes are not to be condemned as immoral. The Supreme Court was considering that case of Government employees; as such the ratio of the case should be restricted to them only. However the question still arises as to who are Government-employees to whom it may be applicable.

The relevant question that requires to be considered is as to what is meant by “industry” as defined in the Industrial Disputes Act. It is now settled view of the Hon’ble Supreme Court that all activities of the Government do fall under the category of “Industry” except the activities which are known as regal or sovereign function, such are the legislative powers administration of laws, the exercise of the judicial power. Thus economic adventures and welfare activites undertaken by Government or statutory bodies are covered under the definition of industry. The Irrigation Department, Forest Department, Public Works Department, Public Health Engineering Department, Social Welfare Department, Tourists Department, etc., will come under the ambit of industry. The Government employees of the said departments are all workmen excepting those discharging management functions. For them the opinion expressed may be said to be “obiter dicta”. Since the Hon’ble Supreme Court has not considered the right of the employees of other industrial establishments to go on strike, as such, the observations for them are also in the nature of ‘obiter’. Still a new law is innovated, which, with due deference it is submitted bristles with factual inaccuracies and untenable assumptions.

The Tamil Nadu Government Servants Conduct Rules 1973 in Rule 22 provide that no Government employee shall engage himself in strike. There is similar provision (rule 9) in the Rajasthan Civil Services(Conduct) Rules 1971, which provides that no Government servant shall resort to strike. The said provisions are violative of the inherent right of the employees to go on strike. In Morgan v. Fry Lord Denning M.R. 1968 (3) WLR 506 said that “the nature of the right is such as in my view cannot be abridged or taken away save in strict conformity with the provisions of the statute providing for such abridgment or taking away”. In fact sections 22 and 23 of the Industrial Disputes Act, 1947 have abridged the right of strike by allowing it as a weapon with certain restrictions. In Conway v. Wade 1909 AC 506 Lord Louwhunn L.C. described strike as a weapon allowed by law. In B.R. Singh’s case 1990 Lab IC 389 : AIR 1990 SC 1 case Ahmedi J, observed that right to strike is not absolute and industrial jurisprudence has placed restrictions on it. In the light of such weighty observations it may be inferred that the Service Rules providing complete prohibition are arbitrary and violative of Article 14 of the Constitution of India. The concepts of strike by Government servants and employees of industrial establishments, ostensibly being distinct, shall therefore, have to yield to each other and it is felt that sooner or later the judicial verdicts too shall attune and synchronise thing accordingly.

In these two concepts there is definitely a partnership, kinship and affinity interwoven and the rare judicial vision of our Apex Court would delineate the thin divide. However in the changed context lackluster performance by Government servants or employees of industrial establishment has no place in economy whose caravan shall push on traversing all these terrain of employment styles.Â

It is expected that the above-referred inconsistencies are likely to be resolved, as the Supreme Court has agreed to hear a petition seeking review of its judgement that banned strike by all Government employees.

Author Name: Hon’ble Justice Panachand Jain