'Regularized An Illegal Act': Kerala HC Quashes GO That Granted 'Eligible Leave' To Employees During Nationwide General Strike

The Kerala High Court quashed the State Government order that granted eligible leave/casual leave to the Government employees and teachers who had not attended their offices during the nationwide general strike held on 8th and 9th January 2019.

There is clear prohibition under law to call for and participate in  strikes and therefore the action of Government regularising an illegal act, cannot be sustained in law, the bench comprising the Chief Justice S. Manikumar and Justice Shaji P Chaly observed while allowing a Public Interest Litigation filed in 2019 by G Balagopalan, a lawyer.

The bench also directed the Principal Secretary and the Heads of the Departments to scrutinize the attendance registers, and take action, in accordance with law, within two months. 

Joint Committee of trade unions had called for a General Strike/Bharath Bandh against the policies of the Central Government for two days from 8th to 9th January, 2019. The Government issued a GO by which it granted permission to the employees under it and teachers who had not attended the offices during the national strike on 8th and 9th January, 2019, to avail eligible leave including Casual Leave. This GO was challenged by Advocate Balagopalan. 

Referring to Kerala Service Rules and other conduct rules, the bench noted that if any Government servant indulges in strike, he is liable to be proceeded in accordance with the provisions of the said rules.

However, quite contrary to the provisions of law, Government have issued Exhibit-P1 notification absolutely protecting the interests of the Government employees, who had struck work. It is not reflected in the said Government order, as to whether the Government have made necessary inquiries on the basis of the appropriate Government orders, as stated in the counter affidavit of the 2nd respondent. It is not spelt out in Exhibit-P1 Government order that leave would be granted to eligible persons alone, but on the other hand, it clearly specifies that orders are being issued for permitting grant of eligible leave, including casual leave to the Government employees and teachers, who have not attended the offices, in relation to the WP(C):5752/2019 56 national general strike on 8th and 9th of January, 2019

It can be deduced from the statutory provisions dealing with the prohibition of Government servants participating in strike, and the decisions cited supra, that the Government servants had struck work in violation of the  rules/notifications/ circulars issued by the State Government affecting the normal life of the public and public exchequer, and it is also clear from the proposition of law laid down by the Hon'ble Apex Court that even though right to form association is a right guaranteed under Article 19(1)(c) of the Constitution of India, there is no legal right for the workers/such associations, to call for a general strike or instigate the employees to strike, in the guise of the said fundamental right. Apparently, consequent to the strike of the Government servants and others, the offices came to a standstill for two days and the public had suffered substantially on account of the same.

The bench also rejected the submission that the grant of leave to the employees, who had not attended for duty on the day of strike called by trade unions is a policy decision of the Government and that no writ is maintainable challenging the said policy. In this regard, the court said:

"We do not think that Government are at liberty to take any policy decision in absolute violation of the rules in vogue and the proposition of law laid down by the Hon'ble Apex Court in regard to the illegal strike of the Government servant...Government cannot take shelter under the guise of a policy decision taken by them. Moreover, it is not an absolute rule that Court cannot interfere with the policy decisions of the Government. Even if it is a policy decision, Court can look into the legality, correctness or arbitrariness of the same, and interfere, by exercising the power under Article 226 of the Constitution of India, if such a policy is against the statutory provisions."

CASE: G. BALAGOPALAN vs. STATE OF KERALA [WP(C):5752/2019  ]

CORAM: Chief Justice S. Manikumar and Justice  Shaji P Chaly

COUNSEL: ADV SAJITH KUMAR V,  Sr. GP P. NARAYANAN, ASG P. VIJAYAKUMAR 

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