Challenging TESMA

Dismissed State government employees challenge the orders of the three-Judge panel constituted to review their cases and the constitutional validity of the Tamil Nadu Essential Services Maintenance Act.

in Chennai

AFTER a long wait in the hope that Chief Minister Jayalalithaa will order the repeal of the penal action against them, a large number of the 999 Tamil Nadu government employees who were dismissed from service for instigating and/or participating in the July 2003 strike are once again knocking the doors of the judiciary (Frontline, August 1, 2003). Most of them had sought remedy from the State Administrative Tribunal. Tamil Nadu Government Employees Association (TNGEA) president N.L. Sridharan has filed a petition in the Madras High Court praying for the quashing of the Tamil Nadu Essential Services Maintenance Act (TESMA), 2002, considered one of the most repressive pieces of legislation in labour history. He is also seeking the nullification of his dismissal from service. TNGEA itself has filed a separate petition in the High Court challenging the Act. The Tamil Nadu Government Secretariat Staff Association has, instead, questioned its constitutional validity in the Tribunal.

The 999 persons were among the 6,072 government employees and teachers whose services were terminated by the State government along with over 1.5 lakh employees, who were dismissed summarily within days of the commencement of the indefinite strike on July 2, 2003, but were reinstated after the Supreme Court intervened. The court also ordered the setting up of a three-member panel of retired High Court Judges to hear representations from the 6,000-odd employees charged under TESMA (Frontline, September 12, 2003). The panel in its reports submitted to the government in two instalments, the first in November and the second in the end of December, ordered the reinstatement of 5,073 employees, with a large number of them being punished with fines, a cut in increments or a break in service. Among the dismissed employees were a significant number of union functionaries and activists. Those reinstated had to go without salary for over four months.

THE TESMA, as well as the July 4 (2003) Ordinance which added teeth to the Act, was challenged in the High Court when the Jayalalithaa government used it to suppress the strike with unprecedented vehemence. But the petitions were dismissed as not maintainable, "without exhaustion of the remedy before the State Administrative Tribunal". The Supreme Court, which heard the appeals subsequently was critical of the High Court decision. But the apex court did not proceed to examine the validity of the Act, since it gave priority to deal with the issue of the dismissal of over 1.7 lakh employees. So, if the High Court admits the petitions, the amended Act will be subjected to a full-scale judicial scrutiny for the first time. The scrutiny becomes all the more important because the review panel has taken recourse to certain sections of the Act in dealing with the representations, although the Supreme Court had clearly stated that the representations by the employees must be examined "without taking into consideration Section 7 of the Ordinance".

The petitions challenging TESMA, filed in the High Court on February 5 and February 7 contend that the different sections of the Act are violative of Article 14 (equality before law), Article 19 (protection of certain rights regarding freedom of speech and so on), Article 21 (the right to life), Article 23 (prohibition of traffic in human beings and forced labour), Article 254 (inconsistency between laws made by Parliament and laws made by the Legislatures of the States) and Article 311(2) (dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State) of the Constitution. The petitions also state that the Act infringes on certain conventions of the International Labour Organisation (ILO).

The petitioners contend that the rights to demonstrate, protest or even speak in support of a strike, which Section 5 takes away, have all been held by the Supreme Court as forming part of the fundamental right to speech and expression under Article 19(1)(a) of the Constitution. They cite the Supreme Court judgment in Dr. Ram Manohar Lohia's case to argue that the right can be abrogated only for reasons mentioned in Article 19(2), that is, public order, security of the state and so on. But the restrictions Section 5 of TESMA place, the petitioners say, are not based on the reasons of public safety or security or other grounds mentioned in Article 19(2). The provision under which Sridharan has been punished, it is contended, is unconstitutional. "A citizen does not cease to have the fundamental right of free speech and expression under Article 19(1)(a) merely because he has entered government service," Sridharan's petition states.

Another contention is that Sections 4 to 6 are "too oppressive and hence amount to an unreasonable restriction on the right to life guaranteed by the Constitution under Article 21. The petitions claim that Section 2 of the Act, which classifies all government and public services as "essential", is "too wide" in its sweep. "A provision which restricts the rights of employees and citizens to protest the government's action cannot be so wide," it is pointed out. In this context the ILO resolution that governments can prohibit strikes only in services that are strictly essential, such as hospitals, water and electricity supply, and that are necessary for protecting the health and safety of the society, is cited. Strikes can be prohibited in departments that perform strictly sovereign functions, such as the police force or the judiciary, provided in all these cases compensatory relief procedures such as compulsory negotiation or adjudication are provided for in order to remove the grievances of employees.

Another point raised by Sridharan in his petition is that no guidelines have been provided in the Act for the government to issue the prohibitory notification under Section 3. It contends that most of the 27 services, in which strikes were prohibited by the government's notification dated April 23, 2003, "can hardly be called essential". The notification, which "ultimately results in deprivation of life and livelihood, cannot be upheld", the petition contends and avers that Sections 2 and 3 are thus "violative of Articles 14 and 21 of the Constitution and suffer from excessive delegation".

In the opinion of R. Vaigai, an advocate, one of the technical contentions that can be a good ground for striking down TESMA is the fact that the State law overlaps a Central Act, the Industrial Disputes Act, and therefore it cannot prevail unless the State Act gets a specific assent from the President. Elaborating this point, Vaigai told Frontline that the State government had got powers under the State List to pass an Act only with reference to government services. She said that "essential services" encompassed both governmental and non-governmental or private services. Hence "essential services" fell under the Concurrent List. If a State Act on a subject under the Concurrent List overlapped a Central Act on the same subject, the State Act, if it is to prevail over the Central Act, should get a very specific assent with reference to the particular Central law (in the present case the Industrial Disputes Act) from the President and a blanket assent would not be enough, Vaigai said. "This kind of assent has not yet been obtained for TESMA and so TESMA must go," she said.

Another ground on which the validity of TESMA has been challenged relates to Section 7 of the Act. Section 7(1) says: "The government servant is deemed to have admitted having committed the misconduct," instead of merely stating "deemed to have committed".

Thus it introduces an irrefutable presumption of guilt by a legal fiction and is opposed to the Rule of Law. This is fortified further by the fact that the representation under Section 7(3) can be preferred only in cases of "non-participation in strike" and the authority can revoke the penalty under Section 7(4) only if the employee did not participate in the strike. "Thus, the right to represent is wholly illusory."

The petition avers that Section 7 is "unconstitutional" on the grounds that "it retrospectively deprives the government servants of their constitutional right to remain in service until lawfully removed as per Article 311(2)". The Constitution guarantees a fair procedure under Article 322 and only in cases mentioned in Article 311(2), such as public order and state security, could an inquiry be dispensed with. Section 7 of TESMA is thus ultra vires of Article 311, since Article 309 says that even an Act of Legislature to regulate the conditions of service of government employees has to be subject to the Constitution, the petition contends. Moreover, Section 7 does not provide for a full-fledged inquiry even at the appellate stage, as held by the Supreme Court in Satyavir Singh vs. Union of India (1985), but only a mere review, "which is just an eyewash as done in this case".

As for the procedure followed by the review panel, Vaigai said: "It appears that the permission granted by the Supreme Court (for holding) such review has been misunderstood by the government as if the Supreme Court permitted penalty orders to be passed based on this kind of proceedings." Reasonable opportunities were not provided for the employees to make their representations and defend themselves. Most of the cases were heard in less than three minutes.

The affected employees were not provided with copies of the government's replies to their representations, about which there was mention in the final orders. And also different persons charged with the same offences and figuring in the same first information report (FIR) were handed different kinds of penalties, apparently in the absence of proper guidelines.

For instance, a union functionary who has been found "guilty" has been reinstated with a minor punishment, while many others accused of the same offence have been dismissed. The Supreme Court's direction that the representation be considered "without reference to the Ordinance" does not seem to have been followed by the review panel, Vaigai observed.