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2002 DIGILAW 97 (KER)

John v. Chief Justice

2002-02-08

K.A.ABDUL GAFOOR

body2002
Judgment :- K.A. Abdul Gafoor, J. Ext. PI is a strike notice issued by different service organisations of the members of the staff and officers of the High Court of Kerala. Pursuant to the said notice the Registrar of High Court of Kerala has issued Ext. P2 letter informing the Secretary High Court Staff Association that the token strike along with hunger strike proposed to be held on 6.2.2002 was prohibited based on two Government notifications referred to therein. Ext. P2 further reveals that "The Hon'ble the Chief Justice on a due consideration of the Government Notifications referred to above, and the provisions, of the Kerala Essential Services Maintenance Act, 1994 has ordered that the above Government notifications be made applicable to the High Court Service." Notifications referred to are Exts. P3 and P4. Ext. P4 is a notification issued by the Government of Kerala exercising the powers vested in Government in terms of Cl. (a) of sub-s.(1) of S.2 of the Kerala Essential Services Maintenance Act, 1994 (6 of 1994), hereinafter referred to as the "Act". The Government was of the opinion as is revealed in Ext. P4, that the threatened strike by a section of Government employees and teachers w.e.f. 6.2.2002 "would result in the infliction of grave hardship on the community of the State." Therefore, the Government declared certain services mentioned in Ext. P4 as essential services. In Ext. P4 notification 15 services are enumerated. These include "Courts" also. As a follow up action, Ext. P3 notification was also issued on the same day, exercising the power conferred on Government by S.3 the Act, prohibiting "strike in the services declared to be essential service". In Ext. P4, Government issued Ext. P3 notification prohibiting strike as it became necessary in the public interest to do so. It is taking note of these notifications that Ext. P2 had been issued by the Registrar of the High Court. 2. The petitioners have come up challenging Ext. P2 and the order of the Hon'ble the Chief Justice referred to therein and seeking a declaration that Exts. P3 and P4 notifications are not applicable to the High Court service as the High Court is not under Government. In support of these reliefs it is contended that the Government does not have any power to declares the Kerala High Court as an essential service. P3 and P4 notifications are not applicable to the High Court service as the High Court is not under Government. In support of these reliefs it is contended that the Government does not have any power to declares the Kerala High Court as an essential service. S.2 of the Act enables only the Government to declare any service under the Government as essential service. High Court is not a service under the Government. No power is conferred on the Hon'ble Chief Justice of the High Court of Kerala to declare the High Court as essential service. So the Hon'ble the Chief Justice cannot declare the High Court as essential service. Elaborating these contentions Shri. M.K. Damodaran, the learned counsel appearing for the petitioners submits that Cl. (a) of sub-s.(i) of S.2 of the Act can be invoked by the Government only that too in respect of the services under it alone. The High Court is not rendering service under the Government in terms of Constitutional structure governing its establishment and functioning. It is a totally independent body and that independence is one among the salient basic structure of the Constitution of India. So Ext. P3 and P4 notifications cannot take within their fold, the High Court. It is further contended by the learned counsel for the petitioners that Ext.P4 notification even if issued under S.2(1)(a)(ii) of the Act cannot cover the High Court and High Court service, as those are not matters with respect to which the State Legislature has power to make laws. So on that count also Ext. P4 does not cover the High Court. The Act confers powers to issue notification declaring essential service or prohibiting strike in the essential service only on Government and not on the Chief Justice. Therefore the order issued by the Hon'ble Chief Justice as referred to in Ext. P2 is without jurisdiction. 3. Referring to the Item No. (vii) "Courts, in Ext. P4, it is contended by the learned counsel that it takes within it only the subordinate courts and not the High Court because the State Legislature has power to make laws only with respect to the Subordinate courts and service conditions of officers and employees of the subordinate courts. Therefore the Courts made mention of in Ext. P4 do not include High Court. Therefore the Courts made mention of in Ext. P4 do not include High Court. This contention is sought to be fortified, citing the decision of the Supreme Court in Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhiinjhunwula & Ors. (AIR 1961 SC 1669). 4. It is further contended that the legislative power conferred on the Legislature under Art.225 or Art.229 of the Constitution India does not take any power to legislate on the total aspects of the High Court. That legislative power is only limited. The legislative power of the State Legislature has to be understood in the light of Art.346(3) of the Constitution of India, referring to various entries in List No. II -State List. Entry No. 41 is in respect of State Public Service and State Public Service Commission. It will cover the services in the subordinate judiciary only. It will not cover the services of the High Court. So far no law has been made by the State Legislature in terms of Art.229 of the Constitution of India. Even if any law is so made by the State Legislature concerning the officers and servants of the High Court, the power of the Hon'ble the Chief Justice to prescribe service condition is not taken away. The legislative power conferred by Entry No. 3 in the State List is also a limited power. Therefore on that count also. Government cannot issue a notification declaring the High Court as an essential service where strike can be prohibited. There is no law enabling the Chief Justice to declare the High Court as essential service and to prohibit the strike by the officers and members of staff of the High Court of Kerala. The Act gives power only to Government to declare its services as essential service and to prohibit the strike in their service and not outside that. Prohibition of strike in High Court, as per Ext.P2 is therefore without authority of law. 5. On the other hand, it is contended by the respondents that the legislative power conferred on the State Legislature by Arts.225 and 229 of Constitution of India is sufficient enough to take the High Court within the fold of Ext. P4 notification. It is further contended that when the issue is viewed in that angle, necessarily Ext. P4 will cover the High Court as well. P4 notification. It is further contended that when the issue is viewed in that angle, necessarily Ext. P4 will cover the High Court as well. In the ordinary meaning, the word Courts will take in the entire system of courts at different levels where the administration of justice is dispensed with. It is further contended that Ext. P2 letter issued by the Registrar is only a communication given as follow up action to Exts. P3 and P4 notifications issued by Government. It does not have a separate existence. Even without Ext. P2, the High Court stands declared, in terms of Ext. P4 an essential service and consequently the strike in the High Court stands prohibited in terms of Ext.P3 notification issued under S.3 of the Act. 6. These contentions have to be necessarily examined with reference to the provisions in the statute and the Constitution. 7. S.2(1)(a)(i)of the Act, 1994 will obviously cover only the services under the Government. A notification issued under that provision can declare only service under Government as essential service. High Court is, necessarily, not a service under the Government. There cannot have any dispute on this. A reading of Ext. P4 will show that it became necessary to issue that notification, as Government of Kerala was of the opinion that, the threatened strike would result in the infliction of grave hardship on the community in the State. This phraseology is adopted from sub-cl. (ii) of Cl. (a) of sub-s.(1) of S.2 of the Act. That means Ext. P4 is a notification issued in terms of that clause. The said clause reads: any other service connected with matters with respect to which the State Legislature has power to make laws and which the Government, being of opinion that strikes therein would prejudicially affect the maintenance of any public utility service, the public safety or the maintenance of supplies and services necessary for the life of the community or would result in the infliction of grave hardship on the community, may, by notification in the Gazette, declare to be an essential service for the purpose of this Act. 8. So Government can declare any service as essential service, if it is connected with matters with respect to which the State Legislature has power to make laws. 9. 8. So Government can declare any service as essential service, if it is connected with matters with respect to which the State Legislature has power to make laws. 9. Art.225 of the Constitution of India make it clear that subject to the provisions of this Constitution and to the provisions of any law of the appropriate legislature made by virtue of powers conferred on that legislature by this Constitution, the jurisdiction of and the law administered shall be the same as immediately before the commencement of this Constitution. Therefore, by reason of this Article the appropriate State Legislature is enabled to make laws by virtue of powers conferred on that legislature by the Constitution. 10. Art.316(3) confers the State Legislature exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II on the Seventh Schedule. Entry No. 3 in the State list is as follows: "Officers and servants of the High Court; Entry 65 in the State List reads as follows: Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in the list. 11. Art.229 provides that subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by the rules made by the Chief Justice of the Court. 12. Thus, with regard the jurisdictional aspect of the High Court, the State Legislature has power to make laws in terms of Entry 65 in List II with Art.225 and Art.246(3) of the Constitution of India. So also the State Legislature has power to make law - whether it is made or not is irrelevant regarding the conditions of services of the staff and officers of the High Court, in terms of Art.329(2) of the Constitution of India and Entry No. 3 in List No. II in the Seventh Schedule to the Constitution of India. 13. Sub-cl. (ii) of S.2(1) (a) of the Act does not differentiate between the limited legislative power and unlimited legislative power. 13. Sub-cl. (ii) of S.2(1) (a) of the Act does not differentiate between the limited legislative power and unlimited legislative power. The requirement to issue a notification under that clause declaring any service as essential service is that the State Legislature shall have power to make laws in respect of the matter which is connected with any service and the Government shall be of the opinion that the strike would result in the infliction of grave hardship on the community. The different articles and entries as referred to and discussed above show that there is legislative power for the State Legislature to make laws either with regard to the jurisdictional aspect of the High Court and also with regard to the conditions of staff and officers of the High Court. These are matters with respect to which the State Legislature has power to make laws. In view of the above, necessarily Government can declare the High Court also as essential service, provided, Government is of the opinion that the threatened strike could result in the infliction of grave hardship on the community. 14. The next thing to be examined is the contention of the petitioners that the High Court will not come within the purview of item No. (vii), Courts in Ext. P4. The decision of the Supreme Court relied on by the Counsel for the petitioners in Harinagar Sugar Mills Ltd. v. Shyarn Sunder Jhunjliiinwala & Ors. (AIR 1961 SC 1669) is with respect to totally different circumstances as to whether the adjudication of a dispute by Government can be stated to be an adjudication by Court. It is in that perspective the Supreme Court held when the Constitution speaks of Courts in Arts.136, 227, 228 or in Arts.233 to 237 or in the lists, it contemplates Court of Civil Judicature but not the Tribunals. It is to be remembered that even in Arts.136 and 227, apart from the word 'Courts', the word Tribunal' is also made mention of. Even inspite of that, the Supreme court held that the word Court will not include the Tribunal. The word 'Court' in Art.136 which was noticed by the Supreme Court in the said decision included the High Court as well. So also the word Court in Entry 63, excepting the Supreme Court, is understood as including the High Court. Even inspite of that, the Supreme court held that the word Court will not include the Tribunal. The word 'Court' in Art.136 which was noticed by the Supreme Court in the said decision included the High Court as well. So also the word Court in Entry 63, excepting the Supreme Court, is understood as including the High Court. Even otherwise, the ordinary meaning of the Court as is revealed in the decision reported supra is an assembly of judges or other persons legally appointed and acting as Tribunal to hear and determine any cause, civil, ecclesiastical, military or naval. When the word Courts has not been specifically defined in the Act or the notification issued thereunder, the word Courts used in Ext. P4 shall get the ordinary meaning which includes all bodies where adjudicatory process is going on or forming part of the systems for administration of justice. In such circumstances, there is no reason to exclude the High Court from the purview of the word Courts appearing in Ext. P4. 15. A reading of Ext. P4 shows that the notification was issued in terms of Cl.(a)(ii) of sub-s.(1) of S.2 of the Kerala Essential Services Maintenance Act, 1994. Necessarily the Government will have power to declare the High Court also as essential service as the State Legislature has power to make laws on High Court or High Court services as already discussed and found above. So Exts. P3 and P4 are applicable to the High Court also. 16. Challenge is against Ext. P2 letter and the order issued by the Hon'ble Chief Justice as referred to therein. A reading of Ext.P2 makes it clear that what the Hon'ble Chief Justice has done was to make applicable Ext.P3 and P4 notifications to High Court service. The Hon'ble Chief Justice was not issuing any notification either, under S.2 or 3 of the Act declaring High Court as an essential service or prohibiting the strike. Ext. P2 is not an order by itself; but only an information to the concerned that the strike by the members of staff and officers of the High Court is prohibited. When Exts. P3 and P4 are applicable to High Court, as found above, necessarily there is nothing illegal in Ext.P3 communication of the order of the Hon'ble Chief Justice referred to therein. When Exts. P3 and P4 are applicable to High Court, as found above, necessarily there is nothing illegal in Ext.P3 communication of the order of the Hon'ble Chief Justice referred to therein. Therefore, the petitioners are not entitled to any of the reliefs claimed in the Original Petition. Dismissed. No costs.