State Govt Employees Participating In General Strikes Not Entitled To Constitutional Protection Under Article 19(1)(c): Kerala High Court

The Kerala High Court on Thursday ordered action against government employees who participated in general strikes last year, on March 28 and 29, against Centre's economic policies.

A Division Bench consisting of Chief Justice S Manikumar and Justice Shaji P. Chaly reiterated that Government Employees who participate in general strikes, affecting the normal life of the public and Public Exchequer, are not entitled to be protected under Article 19(1)(c) of the Constitution. The provision protects the right to form associations or unions.

The Court in the case of G. Balagopalan v. State of Kerala and Others had held that there is no legal right in workers or associations, to call for a general strike or instigate the employees to strike, in the guise of the fundamental right guaranteed under Article 19(1)(c) of the Constitution.

Thus relying on the case, the Court observed that erring government servants are liable to be proceeded against in accordance with the provisions of Kerala Service Rules and Kerala Government Servants' Conduct Rules, 1960.

We have also found, in the decision in G. Balagopalan, that Part I of the Kerala Service Rules and Kerala Government Servants' Conduct Rules, 1960, discussed therein, make it clear that if any Government servant indulges in strike, he is liable to be proceeded in accordance with the provisions of the said rules.

The development comes in a lawyer's PIL seeking to declare the General Strike held on 28th and 29th March, 2022, proposing total cessation of work by forcefully preventing citizens of the State by blocking road and rail, as unconstitutional.

Petitioner alleged that the State Government aided and assisted the general strike organized by the trade unions on 28th and 29th of March last year, by permitting eligible leave with salary to the State Government employees who took part in the strike by not by not declaring dies-non, in terms of the directions issued by the High Court previously. 

The Petitioner also alleged that over the past few years, the State Government encouraged the Government servants and teachers to participate in general strike against the policies of Central Government by offering to regularize the absence in strike days as eligible  leave with salary. 

The State (1st respondent) submitted that it had issued directions for preventing general strike and all Heads of Departments have been instructed to treat the unauthorised absence of employees (participating in the strikes) as dies-non under Rule 14 Part I KSR and the pay for the days in which the strike is taking place, to be withheld from their salaries.

Considering that appropriate action is being taken by the State in accordance with the provisions of Kerala Service Rules and other notifications, by identifying employees involved in the general strike, the Court considered it fit to dispose of the matter. It directed the State Government "to proceed with the action and do the necessary, in order to ensure that the erring workers/employees who have acted against the Kerala Service Rules and other Conduct Rules, circulars/notifications issued by the State Government, in regard to participation in strikes, in accordance with law, and culminate in appropriate action."

Advocate Sajith Kumar appeared for the Petitioner.

Senior Advocate Ranjith Thampan and Senior Government Pleader Advocate K.P Harish appeared for the Respondents.

Case Title: Chandra Chooden Nair S v. State of Kerala and Ors.

Citation: 2023 LiveLaw(Ker) 9

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