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एक छत के नीचे 'प्राइमरी का मास्टर' से जुड़ी शिक्षा विभाग की समस्त सूचनाएं एक साथ

ALLAHABAD HIGHCOURT, STRIKE, CIRCULAR, UPPSS : माननीय उच्च न्यायालय के लखनऊ बेन्च ने राज्यकर्मियों के हड़ताल को अवैध घोषित करते हुए कारवाई का निर्देश दिया, क्लिक कर कोर्ट का आदेश देखें ।

ALLAHABAD HIGHCOURT, STRIKE : माननीय उच्च न्यायालय के लखनऊ बेन्च ने राज्यकर्मियों के हड़ताल को अवैध घोषित करते हुए कारवाई का निर्देश दिया, क्लिक कर कोर्ट का आदेश देखें ।
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 5
Case :- MISC. BENCH No. - 3928 of 2019
Petitioner :- Rajeev Mishra
Respondent :- Union Of India Throu.Secy.Ministry Of Finance N.Delhi & Ors.
Counsel for Petitioner :- Sm Singh Royekwar
Counsel for Respondent :- C.S.C.,A.S.G.
Hon'ble Dr. Devendra Kumar Arora,J.
Hon'ble Ajay Bhanot,J.
1. Heard Sri S.M. Singh Royekwar, learned Counsel for the petitioner and learned Advocate General assisted by Sri Shree Prakash Singh for the State of U.P., Sri Anand Dwivedi, learned Counsel for the Union of India and Sri Upendra Nath Misra, who has put in appearance on behalf of the respondent no.5.
2. The petitioner has instituted the writ petition against the strike call by the respondent no.5 to force their demands on the State Government.
3. The petitioner claims that the petitioner's wife and his parents are undergoing medical treatment in hospital. The striking employees of the State Government are abstaining from work. They have also indulged in other disruptive acts. Consequent to such strike actions, the medical treatment of petitoner's parents and his wife is also being impeded causing a direct and imminent threat to their lives. The petitioner further asserts that the State Government has soft peddled the issue. The State Government has not implemented the law and is reluctant to act against the striking employees. The striking employees of the State government are abstaining from work. They have also indulged in other disruptive acts.
4. The petitioner also contends that lacs of students who are appearing in High School and Intermediate Board Examinations, which are scheduled to commence w.e.f. 06.02.2019, are also adversely impacted by the strike. The lives of the common citizens have been thrown out of gear. Withe the government apparently appeasing the employees union, the common citizens are without any redress.
5. Strike, to start with, began as means of collective bargaining by the employees. However, over the year strikes by employees degenerated into an instrument of throwing public life into disarray and became a weapon of blackmail to force their demands upon the employer, which often is the State or the Central Government. The turmoil caused by strikes in the lives of ordinary citizen was not lost on all the branches of governance.
6. All wings of constitutional governance i.e. the Executive, the Legislature and the Judiciary were alerted to the need for ameliorative measures against strikes. Law has set its face against strikes which disrupt the lives of common citizens and dislocate governance.
7. The Legislature has enacted Uttar Pradesh Essential Services Maintenance Act, 1966 which contemplates stringent penalty against persons, who cause disruption in the lives of ordinary citizen by going on illegal strikes.
8. Service Rules, which are applicable to the State Government Employees, who have gone on strike, were notified under the appellation of Uttar Pradesh Government Servant Conduct Rules, 1956. The provisions relevant to this case are extracted hereunder for ease of reference:
"5-A Demonstration and Strikes - No Government servant shall-
(1) engage himself or participate in any demonstration which is prejudicial to the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign Stales, Public order, decency, or morality, or which involves contempt of court, defamation or incitement to an offence, or
(2) resort to, or in any way abet, any form of strike in connection with any matter pertaining to his service or the service of any other Government servant."
9. Perusal of the Rules discloses that any form of strike and even abetment of any form of strikes is proscribed conduct for Government Servants. The Government Servants are prohibited from engaging or participating in any demonstration, which is prejudicial to the interest of the sovereignty and integrity of India as well as public order amongst other things. Any form of strike is an act of misconduct by an employee of the state government. Infact such action of strike by any person who is drawing salary from the state exchequer cannot be countenanced. The provisions rest on sound rationale and good public policy. A person drawing salary from the state exchequer holds an office of trust to the citizens at large. He owes an obligation to all citizens to perform the duties of his office in an exemplary fashion. Protest by such employees cannot be at the cost of their official duties or during duty hours. Abstention from work by such employees creates a stasis in governance. Law abhors a vacuum in governance. Constant and unbroken governance is the prerequisite of the rule of law.
10. The State Government on its part is under the mandate of law to initiate disciplinary proceedings against employees who commit the misconduct of going on strike or abet a strike.
11. The fact which can easily be distilled from the Service Rules is that the Government Servants do not have any right to go on strike, which in the instant case is already underway. The strikes of this nature can be called only on the pain of disciplinary action under the Service Rules.
12. Similarly, the judicial authorities in point have also asserted that dissent by employees is not a license to anarchy. Anarchy is not liberty. Creating dislocation in the lives of common people is not the face of dissent. Causing public disorder cannot pass off as a means of collective bargaining in a society ruled by law.
13. Without diluting the rights of the employees to collective bargaining, the Hon'ble Supreme Court in the case of T. K. Rangarajan Vs. Government of Tamil Nadu and Others, reported at (2003) 6 SCC 581, negated the argument that the right to go on strike is a fundamental right. In particular, no such right to go on strike, vests in government employees. The law was laid down in crisp and unequivocal terms:-
"11. 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."
14. The Hon'ble Supreme Court in T. K. Rangarajan (supra) further held the striking employees accountable to law and cautioned them against going on strike in future in terse prose and direct manner.
"Finally, it is made clear that employees who are re-instated in service would take care in future in maintaining discipline as there is no question of having any fundamental, legal or equitable right to go on strike. The employees have to adopt other alternative methods for redressal of their grievances."
15. Going on strike as part of collective bargaining or otherwise could not be reconciled to fundamental rights guaranteed under Article 19(1) (a) and (b) of the Constitution of India did not fall in the ambit of Article 19(1) (a) even on a most liberal construction. This was the position of law enumerated by the Hon'ble Supreme Court in the case of T.K. Rangarajan (supra) on the foot of the judgments in All India Bank Employees Association vs. National Industrial Tribunal and Others reported at AIR 1962 SC 171 and in the judgment of the Hon'ble Supreme Court in the case of Radhey Shyam Sharma vs. The Post Master General Circle, Nagpur, reported at 1965 AIR 311 as well as in Kameshwar Prasad and Others v. State of Bihar and another, reported at AIR 1962 SC 1166.
16. The Hon'ble Supreme Court relied on the judgment of All India Bank Employees Association vs. National Industrial Tribunal and Others (supra) and Kameshwar Prasad and others (supra) in T. K. Rangarajan (supra) and crystallized the position of law:
"(A) There is no fundamental right to go on strike:-
12. Law on this subject is well settled and it has been repeatedly held by this Court that the employees have no fundamental right to resort to strike. In Kameshwar Prasad and Ors. v. State of Bihar and Anr.MANU/SC/0410/1962 :(1962)ILLJ294SC this Court (C.B.) held that the rule in so far as it prohibited strikes was valid since there is no fundamental right to resort to strike.
13. In Radhey Shyam Sharma v. The Post Master General Central Circle, NagpurMANU/SC/0042/1964 :[1964]7SCR403 , the employees of Post and Telegraph Department of the Government went on strike from the midnight of July 11, 1960 throughout India and petitioner, was on duty on that day. As he went on strike, in the departmental enquiry, penalty was imposed upon him. That was challenged before this Court. In that context, it was contended that Sections 3, and 5 of the Essential Services Maintenance Ordinance No. 1 of 1960 were violative of fundamental rights guaranteed by Clauses (a) and (b) of Article 19(1) of the Constitution. The Court (C.B.) considered the Ordinance and held that Sections 3,  and 5 of the said Ordinance did not violate the fundamental rights enshrined in Article 19(1)(a) and (b) of the Constitution. The Court further held that a perusal of Article 19(1)(a) shows that there is no fundamental right to strike and all that the Ordinance provided was with respect to any illegal strike. For this purpose, the Court relied upon the earlier decision in All India Bank Employees' Association v. National Industrial Tribunal and Ors.MANU/SC/0240/1961 :(1961)IILLJ385SC wherein the Court (C.B.) specifically held that even very liberal interpretation of Sub-clause (C) of Clause (1) of Article 19 cannot lead to the conclusion that trade unions have a guaranteed right to an effective collective bargaining or to strike, either as part of collective bargaining or otherwise."
17. The prescient observations of the Hon'ble Supreme Court in the case of T. K. Rangarajan (supra) apply with full force to the facts of this case:
"(B) There is no legal / statutory right to go on strike.
17. There is no statutory provision empowering the employees to go on strike.
18. Further, There is prohibition to go on strike under the Tamil Nadu Government Servants Conduct Rules, 1973 (hereinafter referred to as "the Conduct Rules"). Rule 22 provides that "no Government servant shall engage himself in strike or in incitements thereto or in similar activities." Explanation to the said provision explains the term 'simile activities'. It states that "for the purpose of this rule the expression 'similar activities' shall be deemed to include the absence from work or neglect of duties without permission and with the object of compelling something to be done by his superior officers or the Government or any demonstrative last usually called "hunger strike" for similar purposes. Rule 22-A provides that "no Government servant shall conduct any procession or hold or address any meeting in any part of any open ground adjoining any Government Office or inside any Office premises -- (a) during office hours on any working day; and (b) outside office hours or on holidays, save with the prior permission of the head of the Department or head of office, as the case may be.
(C) There is no moral or equitable justification to go on strike.
19. Apart from statutory rights. Government employees cannot claim that they can take the society at ransom by going on strike. Even if there is injustice to some extent as presumed by such employees, in a democratic welfare State, they have to resort to the machinery provided under different statutory provisions for redressal of their grievances. Strike as a weapon is mostly misused which results in chaos and total maladministration. Strike affects the society as a whole and particularly when two lakh employees go on strike en masse, the entire administration comes to a grinding halt. In the case of strike by a teacher, entire educational system suffers; many students are prevented from appearing in their exams which ultimately affect their whole career. In case of strike by Doctors, innocent patients suffer; in case of strike by employees of transport services, entire movement of the society comes to a stand still; business is adversely affected and number of persons find it difficult to attend to their work, to move from one place to another or one city to another. On occasions, public properties are destroyed or damaged and finally this creates bitterness among public against those who are on strike.
18. The Hon'ble Supreme Court expanded the prohibition on strikes to the legal fraternity as well, in the case of Roman Services Pvt. Ltd. Vs. Subhash Kapoor, reported at (2001) 1 SCC 118 by holding thus:
"15. Thereafter, we permit the appellant to realise half of the said amount of Rs. 5000 from the firm of advocates M/s B.C. Das Gupta & Co. or from any one of its partners. Initially we thought that the appellant could be permitted to realise the whole amount from the said firm of advocates. However, we are inclined to save the firm from bearing the costs partially since the Supreme Court is adopting such a measure for the first time and the counsel would not have been conscious of such a consequence befalling them.Nonetheless we put the profession to notice that in future the advocate would also be answerable for the consequence suffered by the party if the non-appearance was solely on the ground of a strike call. It is unjust and inequitable to cause the party alone to suffer for the self-imposed dereliction of his advocate. We may further add that the litigant who suffers entirely on account of his advocate's non-appearance in court, has also the remedy to sue the advocate for damages but that remedy would remain unaffected by the course adopted in this case. Even so, in situations like this, when the court mulcts the party with costs for the failure of his advocate to appear, we make it clear that the same court has power to permit the party to realise the costs from the advocate concerned. However, such direction can be passed only after affording an opportunity to the advocate. If he has any justifiable cause the court can certainly absolve him from such a liability. But the advocate cannot get absolved merely on the ground that he did not attend the court as he or his association was on a strike. If any advocate claims that his right to strike must be without any loss to him but the loss must only be for his innocent client such a claim is repugnant to any principle of fair play and cannons of ethics. So, when he opts to strike work or boycott the court he must as well be prepared to bear at least the pecuniary loss suffered by the litigant client who entrusted his brief to that advocate with all confidence that his cause would be safe in the hands of that advocate.
16. In all cases where the court is satisfied that the ex parte order (passed due to the absence of the advocate pursuant to any strike call) could be set aside on terms, the court can as well permit the party to realise the costs from the advocate concerned without driving such party to initiate another legal action against the advocate.
17. We may also observe that it is open to the court as an alternative course to permit the party (while setting aside the ex parte order or decree earlier passed in his favour) to realise the cost fixed by the court for the purpose, from the counsel of the other party whose absence caused the passing of such ex parte order, if the court is satisfied that such absence was due to that counsel boycotting the court or participating in a strike."
(emphasis supplied)
19. Following the law laid down in the case of Roman Services Pvt. Ltd. (supra), the Hon'ble Supreme Court in Harish Uppal Vs. Union of India and Others reported at (2003) 2 SCC 45, reiterated the settled position of law on strikes, in the following terms:
"19. Thereafter in the case of Roman Services Pvt. Ltd. vs. Subhash Kapoor reported in MANU/SC/3014/2000 : (2001) 1 SCC 118, the question was whether a litigant should suffer a penalty because his advocate had boycotted the Court pursuant to a strike call made by the Association of which the advocate was a member. In answer to this question it has been held that when an advocates engaged by a party is on strike there is no obligation on the part of the Court to either wait or adjourn the case on that account. It was held that this Court has time and again set out that an advocate has no right to stall court proceedings on the ground that they have decided to go on a strike. In this case it was noted that in Mahabir Prasad's case (supra), it has been held that strikes and boycotts are illegal. That the lawyers and the Bar understood that they could not resort to strikes is clear from statement of Senior Counsel Shri. Krishnamani which this Court recorded. The statement is as follows:
"13. Shri Krisnamani, however, made the present position as unambiguously clear in the following words:
"Today, it a lawyer participates in a Bar Association's boycott of a particular court that is ex facie bad in view of the clear declaration of law by this Hon'ble Court. Now, even if there is boycott call, a lawyer can boldly ignore the same in view of the ruling of this Hon'ble Court in Mahabir Prasad Singh MANU/SC/0706/1998 : AIR1999SC287 ."
Thus a Constitution Bench of this Court has held that the Bar Councils are expected to rise to the occasion as they are responsible to uphold the dignity of Courts and majesty of law and to prevent interference in administration of justice. In our view it is the duty of Bar Councils to ensure that there is no unprofessional and/or unbecoming conduct. This being their duty no Bar Council can even consider giving a call for strike or a call for boycott. It follows that the Bar Councils and even Bar Associations can never consider or take seriously any requisition calling for a meeting to consider a call for a strike or a call for boycott. Such requisitions should be consigned to the place where they belong viz. the waste paper basket. In case any Association calls for a strike or a call for boycott the concerned State Bar Council and on their failure the Bar Council of India must immediately take disciplinary action against the Advocates who give a call for strike and if the Committee Members permit calling of a meeting for such purpose against the Committee Members. Further it is the duty of every Advocate to boldly ignore a call for strike or boycott."
20. In this manner, the line of judicial authorities is long and there is consensus of judicial opinion on the point that the government servants and other employees who draw their salaries from the public exchequer do not have any fundamental, statutory, equitable or moral right to go on strike.
21. A similar sentiment was echoed by a Division Bench of Uttarakhand High court in the case of In the matter of Prevention of Recurrent Strikes Organized by various Government/ Non Government Unions/ Organizations Vs. State of Uttarakhand and another [Writ Petition (PIL) No. 115 of 2018].
22. We quote with profit the following observations made by the learned Division Bench of the Uttarakhand High Court in the matter of Prevention of Recurrent Strikes Organized by various Government/Non Government Unions/Organizations Vs. State of Uttrakhand and another in Writ Petition (PIL) No. 115 of 2018;-
"9. It is the duty cast upon the State Government to ensure that there is no indiscriminate strike by the employees of the State Government, Public undertakings owned or controlled by the State of uttarakahand to maintain calm and peace in the State. The delivery of essential services cannot be permitted to be affected.
10. However, at the same time, it is also the duty of the State to redress the genuine grievances raised by the employees from time to time."
23. Coming to the facts of the case, the disruption caused by the strike which is underway need not be catalogued for it is too obvious for all to see. The learned Advocate General on the basis of instructions submits that about 10% of the State Government employees have actually gone on strike in response to the aforesaid strike call. However, some of the disruptions may now be discussed. The striking employees include some teachers. Clearly this would adversely impact the examinations which are underway.
24. Further it has been informed at the Bar that as a result of the strike by the employees of the government press, the cause list of this Court has also not been printed on time causing an impediment in the functioning of the Court.
25. The learned Advocate General could not point out any specific disciplinary action taken by the State Government against the striking employees. Similarly, UPESMA, 1965 has been invoked but not implemented in a concrete manner. The issue is not the existence of law but the execution of law. Sub-optimal levels of governance have devalued the rule of law in this country. Reluctance to implement the law is fatal to the constitutional order. Failure to take action as per law only to placate the employees' unions is fatal to the rule of law. The response of the state government is half hearted and not conducive to uphold the writ of the law.
26. In such view of the matter, we are constrained to issue the following directions:
(i). The strike call declared by the respondent no.5 is declared illegal. The respondent no.5 and any other Employees Union of the State Government are prohibited from resorting to any strike.
(ii) The State Government shall create an Institutional avenue for discussion and redressal of the grievance of the employees.
(iii) The grievance redressal mechanism of the State Government shall be headed by a senior most officer of the State Government not below the rank of Principal Secretary.
(iv) The State Government shall take disciplinary action as per the Service Rules against the employees, who have gone on strike pursuant to the strike call. The progress of the disciplinary action shall be intimated to the Court by an Affidavit filed on behalf of State within a period of one month from today.
(v) The places where the employees are proposing to go on strike or 'Dharnas' shall be video recorded and the actions, demonstrations of striking employees shall also be video recorded.
(vi) The attendance of the employees shall be made compulsory and it shall be attested on daily basis by a senior officer of the concerned department.
(vii) The Chief Secretary shall ensure that compliance of these directions is monitored by the respective heads of departments.
27. At this stage, it is also pertinent to refer some of the arguments advanced by Sri Upendra Nath Misra, learned counsel who has entered appearance on behalf of the respondent no.5.
28. Sri Upendra Nath Misra contends that various demands relating to grant of pension have not been acceded to by the State Government. This has forced the hand of the employees. Though the learned Counsel concedes that the matter relating to pension is engaging the attention of this Court.
29. This Court feels that arguments on grievances and threats of strike cannot go hand in hand. The controversies which are pending before this Court have to be decided in accordance with the provisions of law and the constitution. The action of strike has to be sternly curbed in the light of the law discussed in the earlier part of the order. The issues have to be clearly bifurcated. The perceived genuineness of the demands by the employees cannot justify the actual action of strike by the employees.
30. The attempt of the learned Counsel to integrate the action of the strike with the justification of the pensionary demand is rejected.
31. On the facts, the learned Advocate General disputed all the assertions made on behalf of the respondent no.5.
32. The learned Advocate General submits that the amount which is payable by the State Government and was admittedly not paid in the past is now proposed to be paid in the next financial year along with interest. Further the State Government is looking into various measures to ensure that pensionary scheme of the employees is managed professionally and with probity and is insulated from any malpractices. Checks and balances are in place. The contribution of the State Government has been raised from 10% to 14%.
33. Be that as it may, the arguments have been recorded since the submissions have been made on behalf of the respondent no.5. However, the merits of the demand of the State Government employees do not have any bearing on the controversy at hand. The grievance have to be pursued and redressed before the competent authority or courts of law.
34. As prayed, four weeks' time is allowed to the respondents to file counter affidavit in response to the averments made in the writ petition.
35. Rejoinder affidavit may be filed within two weeks thereafter.
36. Name of Sri Upendra Nath Misra be shown in the cause list as Counsel for the respondent when the case is listed next.
37. Learned Advocate General and the learned Counsel for the respondent no.5 are directed to communicate this order to the respective parties.
Order Date :- 7.2.2019
akverma















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