Page 185 - DMGT516_LABOUR_LEGISLATIONS

Labour Legislations

Notes The First Schedule of the IDA gives the appropriate Government the power to declare any
industry a public utility and there bye put limitations on the right to strike and lockout. ESMA
gives the power to prohibit strikes, lockouts, and lay-offs outright.
ESMA places the power to prohibit strike/lock out in the hands of the Central Government
whereas in the IDA the power to declare an industry a public utility was shared with the State
Governments. In this respect, power at the centre is increased.
It is but with regard to strikes and lockouts it is becoming more of a Central subject.

Case Study Tamil Nadu Government Staff Strike

he unprecedented action of the Tamil Nadu Government terminating the service of
all employees who had resorted to strike for their demands was challenged before
Tthe High Court of Madras by filling of writ petitions under Articles 226 and 227 of
the Constitution. The learned single judge by an interim order inter alia directed the State
Government that suspension and dismissal of employees without conducting any enquiry
be kept in abeyance until further orders and such employees be directed to resume duty.
The order was challenged by the State Government by filling of writ appeals on behalf of
the government employees challenging the validity of the Tamil Nadu Essential Services
Maintenance Act, 2002 and also the Tamil Nadu Ordinance No. 3 of 2003. The Division
Bench of the Madras High Court set aside the interim order and arrived at the conclusion
that without exhausting the alternative remedy of approaching the administrative tribunal,
writ petitions were not maintainable. It was pointed out to the Court that the total detentions
were 2211, of which 74 were women and only 65 men; seven female personnel had so far
been freed on bail, which reveals the pathetic conditions of the arrestees. The asserters
were mainly clerks and subordinate staff.
The Court, therefore, directed that those who were under arrest and lodged in jails be
released on bail. That order was challenged by filling these appeals. For the same relief,
writ petitions under Article 32 were also filed. Under Article 226 of the Constitution, the
High Court is empowered to exercise its extraordinary situation having no parallel. It is
equally true that extraordinary powers are required to be sparingly used. The facts of the
present case reveal that this was a most extraordinary case, which called for the interference
by the High Court, as the State Government had dismissed about 200,000 employees for
going on strike. It is true that in L Chandra Kumar vs. Union of India and Others (1997) 3 SCC
261, this Court had held that it will not be open to the employees to directly approach the
High Court even where the question of views of the statutory legislation is challenged.
The question which was decided by this court when it was sought to be contended that
once the tribunals are established under Article 323A or Article 323B, the jurisdiction of
the High Court would be excluded. Negating the said contention this court made it clear
that jurisdiction conferred upon the High Court under Article 226 of the Constitution is a
part of the inviolable basic structure of the Constitution and it cannot be said that such
tribunals are an effective substitute to the High Courts in discharging powers of judicial
review. It is also an established principle that where there is an alternative, effective,
efficacious remedy available under the law, the High Court would not exercise its
extraordinary jurisdiction under Article 226 and that has been reiterated by holding that
the litigants must first approach the tribunals, which act like courts of first instance in
respect of the areas of law for which they have been constituted and therefore, it will not
be open to the litigants to the directly approach the High Court even where the question
Contd...

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