Can Invoke ESMA If Ongoing KSEB Strike Causes Disruption To Its Operations: Kerala High Court Issues Interim Order

In a major setback to the ongoing strike organised by the KSEB Officers' Association, the Kerala High Court on Tuesday issued an interim order in a Public Interest Litigation (PIL) seeking to declare the ongoing strike by the Kerala State Electricity Board (KSEB) officers as illegal. 

A Division Bench of Justice C.S Dias and Justice Basant Balaji opined that the State Government has an obligation to act as a conciliator between the KSEB, which is a State Public Sector Undertaking, and its employees to settle their differences amicably, without causing any disruption to the normal lives of citizens.

"Therefore, any disruption in power supply due to the cessation of work, concerted refusal, or retardation of work by the employees of the Board would prejudicially affect and inflict grave hardship on the normal life of the citizens in general andconsumers of the Board in particular, which necessarily has to be prevented by the 1st respondent. At the same time, we are of the definite view that the Government has to play an active role as a Conciliator between the Board and its employees and amicably sort out their differences which would be in the better interest of all the stakeholders."

The Court was prima facie satisfied that, in public interest, an interim order has to be passed directing the State government to initiate conciliation talks with the KSEB employees, failing which it must invoke the Kerala Essential Services Maintenance Act.

"Nonetheless, if the employees of the 2nd respondent Board go ahead and indulge in any conduct falling within the purview of Section 2 of the Kerala Essential Services Maintenance Act, 1994, under any banner or nomenclature, in violation of the rules of the Board, which disrupts the generation, distribution and supply of electricity in the State of Kerala, the 1st respondent (State Government) shall immediately issue appropriate orders under the Kerala Essential Services Maintenance Act, 1994, and prohibit such conduct. Needless to mention, the Board would be at liberty to take appropriate action against the erring employees in accordance with law."

The face-off between KSEB Chairman and Managing Director B. Ashok and the KSEB Officers' Association was initiated after the management suspended three of its leaders; State president M.G. Suresh Kumar, general secretary B. Harikumar and executive committee member Jasmine Banu.

Although this suspension was revoked at a later stage, the strike continued for several reasons. The indefinite strike organised in front of Vaidyuthi Bhavan was temporarily suspended recently.  

Meanwhile, this petition was filed alleging that the strike was illegal and it had affected the fundamental rights of the public. It was argued that no organisation could hold the public to ransom for meeting their demands and that the officers were expected to serve the public, as they were paid by the public. The plea was moved through Advocates Alen J. Cheruvil, A.J.Riyas, Saritha Thomas and Alex.M.Scaria.

The petitioner further submitted that the strike would disrupt the power supply in the State which would, in turn, affect tourism and other sectors. It would also contribute to global warming as business establishments would start using diesel generators in the event of power disruptions, it was stated.

Further, it was pointed out that power supply was a part of the essential services and for that reason, the strike should be called off. Advocate KM Sathyananda Menon appeared for the KSEB and its managing director. Advocate M Sasindran appeared for the KSEB Officers Association.

Accordingly, the PIL sought action against the President of the Association M.G. Suresh Kumar. 

The KSEB Authorities informed the court that a detailed circular of instructions had been issued against the general strike, through which grant of all non-essential leave has been revoked other than on medical grounds. Rule 86 of the Kerala Government Servants' Conduct Rules, 1960, is applicable to employees of the KSEB and prohibits partaking in any strike or dilatory activity during duty hours.

They claimed that if the strike continues, it will derail the service level applications of the utility and cause huge commercial losses, which will, in turn, affect the revenue commitments to procure power and defray the employee charges in May 2022.

However, the KSRB Officers Association contended that its members have not resorted to a strike but have only conducted a 'relay sathyagraha', as a part of collective bargaining for which they have a right.

The Court noted that a Division Bench of the Court had inter alia, held that any sort of strike by government servants is illegal. It was also held that merely because disciplinary action is provided under the Rules does not absolve the State government from taking preventive action.

Therefore, the Court directed the State to initiate talks to arrive at an amicable settlement or invoke the provisions of ESMA to prevent disruption of power supply in the state.

When the matter was taken up earlier on April 22, the Court had wondered how KSEB Officers' Association was entitled to go on a strike since they did not have any trade union rights. However, it had refused to intervene in the strike. 

Case Title: Arun Jose v. State of Kerala

Citation: 2022 LiveLaw (Ker) 196

Click Here To Read/Download The Interim Order