The Tamil Nadu government agrees, on the Supreme Court's intervention, to take back its striking employees, but serves FIRs on a section of them and prevents them from returning to work.
THE State government machinery in Tamil Nadu, which remained almost paralysed for over three weeks owing to a strike, returned to normal functioning on July 25, with all but about 30,000 of its staff members resuming work. Of the over one million employees who had joined the strike, nearly two lakh were summarily dismissed by the State government. The employees were able to resume duty thanks to the intervention of the Supreme Court, which heard an appeal against a Madras High Court decision dismissing petitions that challenged the summary dismissal of employees under the draconian Tamil Nadu Essential Services Maintenance Act (TESMA), 2002.
A writ petition was filed in the Supreme Court on July 28 by Labour Progressive Front president C. Kuppusami, pleading that the 31,000 employees against whom first information reports (FIRs) had been lodged also be reinstated.
A Supreme Court Bench comprising Justice M.B. Shah and Justice A.R. Lakshmanan, obtained an undertaking from the State government on July 24 that "all the government employees who are dismissed because they had gone on strike, except (i) 2,200 employees who had been arrested and (ii) employees against whom FIRs had been lodged" would be reinstated.
The strike, in which about two lakh teaching and non-teaching employees of State-run and government-aided schools and colleges also participated, was launched on July 2 to press for the repeal of the TESMA, which made participation in or `instigation' of a strike an offence punishable with imprisonment and/or fine. The other principal demands included the restoration of a number of rights and privileges, and the withdrawal of the changes made recently in the rules and procedures governing pension and gratuity (Frontline, August 1).
The government met the strike with the arrest of over 2,000 employees and teachers and the summary dismissal of many others using the power it assumed through an ordinance that amended TESMA. The striking employees could not get any relief from the High Court either, which dismissed their plea against the dismissal as non-maintainable on grounds of jurisdiction. The court merely ordered the release of the arrested leaders and employees, and ruled that the appeal against the dismissals lay with the appointing authority and the Administrative Tribunal alone. It was then that the employees approached the Supreme Court.
Nearly 1.6 lakh government employees who had been dismissed but did not figure in the list of those against whom FIRs had been lodged were allowed to resume work after they gave an "unconditional apology" and an undertaking that they would "abide by Rule 22 of the Tamil Nadu Government Servants Conduct Rules 1973", which prohibits them from resorting to strike. The government, in the proposal it gave the Supreme Court, had stipulated these two conditions for the reinstatement of the dismissed employees. The vast majority of the strikers, who were spared from dismissal and against whom no FIR had been lodged, were also allowed to join duty after they gave an apology and an undertaking that they would abide by Rule 22. (Rule 22 reads: "Strikes. No government servant shall engage himself in strike or in incitements thereto or in similar activities. Explanation... 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 of the Government or any demonstrative fast usually called `hunger strike' for similar purposes.")
It was only in the course of the July 24 Supreme Court hearing that it became known that FIRs had been lodged against a section of the dismissed employees. According to Nalini Chidambaram, senior advocate who has been appearing for one of the petitioners in the Supreme Court, the government counsel had said that about 3,000 employees came under this category.
Although the nearly two lakh employees knew that they had been dismissed through "public" announcements on the departmental notice boards and not through any individual intimation, none of them was aware that FIRs had been lodged against them. It was only when these employees went to their respective offices to resume duty on July 25 that they were served with copies of the FIR and prevented from resuming work. Union leaders said that more than 18,000 employees - and not just 3,000 - had been served with the FIRs.
This has brought in a new irritant in the relations between the government and its employees. The confrontation is likely to continue as the issue has been taken to the Supreme Court.
Criticising the government action as "vindictive", the State Secretariat of the Communist Party of India (Marxist) appealed to the government to permit its employees and teachers to resume work on the lines of its undertaking to the Supreme Court.
T.K. Rangarajan, State secretary, Centre of Indian Trade Unions (CITU), who is one of the petitioners before the Supreme Court pleading for the repeal of TESMA and the revoking of the dismissals, told Frontline that at no point of time during the last three weeks had there been any report about FIRs having been lodged against the dismissed employees.
N.L. Sridharan, State president of the Tamil Nadu Government Employees' Association, said that the lodging of FIRs probably came as an after-thought. This could be seen in the haste with which the FIRs were prepared. The government has been selective in penalising the employees. FIRs have been lodged against a section of the employees who struck work under Section 4 (participating in strike) of TESMA and another section under both Section 4 and Section 5 (instigation of strike). "This amounts to awarding two kinds of punishment for the same offence," Sridharan said. So far as the employees were concerned, the strike was over when the unions called it off on July 4, Sridharan said. They had declared that they would resume work from July 7, but the government did not allow them to.
In the case of the teachers, the problem has been compounded by the fact that teachers of government-aided schools and colleges do not fall under the purview of the amended TESMA. The resumption of duty by thousands of teachers, suspended by the managements, obviously on instructions from the government, has been delayed for want of clear orders.
During the July 24 hearing, the Supreme Court recorded another undertaking from the State government that the latter would pass "appropriate orders" in the case of the reinstated employees regarding the period of their absence and that this period would not be treated as "break in service". Senior counsel for the government K.K. Venugopal also told the court that the government would launch proceedings under the Disciplinary Rules only against those employees who had resorted to violence and those who had incited other employees to go on strike.
While defending the government's action in the context of the strike, Venugopal argued that the State government spent Rs.13,160 crores on the salaries and pension benefits of its employees. Stating that the employees enjoyed 169 paid holidays a year, he said that they thought they were a "class apart" and that owing to their agitations on five occasions in the past two years, about 312 man-days had been lost.
Senior counsel for employees' unions, T.R. Andhysrujina and P. Chidambaram, said that the employees struck work only when they were "pushed to a corner". Chidambaram recalled that in July 1991 the Tamil Nadu government itself had asked its employees to absent themselves from work for a day on the issue of the sharing of the Cauvery waters with Karnataka.
The Bench made a significant observation when it said that the High Court should have exercised its "extraordinary" power (under Article 226) "in an extraordinary situation like this" and should not have asked the dismissed employees to go to the Administrative Tribunal. That would have been an impossible task for the tribunal, which at present functions with just one member.
SOME of the observations of the same Bench during the earlier hearing of the same case on July 22 caused concern among trade unions in general. Even while it suggested that the Tamil Nadu government reinstate its 1.76 lakh dismissed employees, the court was critical of the strikers for "holding the State to ransom" and "bringing the administration to a grinding halt". The Bench observed: "Strike as a weapon is always misused, which results in chaos and total maladministration." In yet another observation, it said, "There is no constitutional provision under which the government employees can claim as a matter of right to go on strike."
Referring to the court's judgment declaring a lawyers' strike illegal, the Bench observed: "The State has taken appropriate action as there is no alternative today to deal with the strike." It also observed that the employees had no fundamental right to go on strike and such illegal strikes had to be dealt with by the authorities. It said that government servants all over the country should take a message from the Tamil Nadu government's tough stand on its striking employees; the message was that "maladministration could be cured this way". The Tamil Nadu government asked for time until July 24 to consider the court's suggestion that the dismissed employees, barring those against whom there were specific cases of violence, be reinstated on "compassionate" grounds.
The all-India general council of the CITU, at its meeting in Cuttack on July 26, adopted a resolution expressing concern over the judicial observations on the government employees' strike and the "misuse of strike as a weapon". The council said that the number of man-days lost was much more in the case of layoffs, lockouts and closure of workplaces by employers than that in the case of strike by workers and other employees. "It is highly regrettable that the apex court has failed to take note of the stark reality that the employees were lodging their protest over arbitrary encroachments into their pensionary and other benefits," the resolution said. The CITU objected to the "draconian measures" employed by the government to put down the strike.
Expressing "grave concern" over some of the observations, the Polit Bureau of the Communist Party of India (Marxist) said in a statement: "The observations amount to denial of the hard-won democratic right of the workers and employees to strike work. Stoppage of work is recognised as an inalienable right, a democratic expression of opinion and as a legitimate method of protest in all civilised societies." Referring to the Tamil Nadu government's ordinance to amend TESMA, the party said that it was a grave attack on the basic right of employees to have security in employment and an attack on the fundamental rights of the citizen.
According to some trade union leaders, the mobilisation of support from political parties to the striking employees was slow in coming. Although newspaper statements were issued by leaders of all hues, there was little effort to make any united move. Even the Left parties regretted that they could organise an all-party meeting only on July 19, more than a fortnight after the arrests and summary dismissals.
The speakers at the all-party meeting took objection to Chief Minister Jayalalithaa's remark at a function in Namakkal that she could not sacrifice the interests of 98 per cent of the people of Tamil Nadu for the sake of 2 per cent (government employees). They said that the condition of the 98 per cent of the public was no better either. The government did not pay due attention to the needs of other sections of the people such as agriculturists, agricultural workers, weavers and small merchants, they said.
Dravida Munnetra Kazhagam president M. Karunanidhi wrote twice to Prime Minister A.B. Vajpayee appealing for the Centre's intervention to settle the strike. Bharatiya Janata Party leaders in the State were critical of the employees for going on strike, but appealed to the government to help resolve the issue through negotiations. Members of Parliament belonging to the DMK, the Marumalarchi Dravida Munnetra Kazhagam and the Pattali Makkal Katchi met the Prime Minister and sought his intervention in the matter.
At the other end of the political spectrum is Dravidar Kazhagam general secretary K. Veeramani, who congratulated the Chief Minister on showing "courage and determination in putting down the recalcitrant action of the government employees in resorting to strike".