"Government servant has no right to participate in any strike:" Kerala High Court bars govt servants from taking part in national strike

The Kerala High Court on Monday barred government servants from participating in the ongoing national strike that was organised by the National Convention of Workers in protest against the policies of the Central government [Chandra Choodan Nair v State of Kerala]..A Division Bench of Chief Justice S Manikumar and Justice Shaji P Chaly pulled up the State government for not having issued orders restraining its employees in advance. "From the material on record, we find that Government has not issued orders well in advance preventing any such Government servant from taking part in the strike nor provided any machinery enabling others to attend office," the Court noted in its judgement..The Bench interpreted the provisions Kerala Government Servants’ Conduct Rules, 1960 to mean that not only do government servants have no right to take part in strikes but also that the government is obliged to enable its employees to work on such days. "This we say because, one way of looking at the Rule is that the Government servant has no right to participate in any strike. Equally, it is the duty of the Government to prevent the Government servant from joining in strikes," the judgement stated. The Court also noted that merely because the Rules provide for disciplinary action does not absolve the State government from taking preventive action. "A post decision on the alleged failure of the government servants in not attending duty is entirely different from the Government exercising its power and duty to ensure operation of buses with sufficient police protection, to ensure attendance. If this practice is allowed to continue, then Government can always take shelter under Rule 14A which deals with 'dies non'. Disciplinary action can be taken if only there is participation of the Government servant, which fact again requires a detailed enquiry," the Court said. .Therefore, it directed the State government to issue orders to ensure strict compliance with the Rules preventing government employees from taking part in strikes and to ensure smooth functioning of public buses and other modes of transport to enable employees to reach their offices. .The Court was considering a public interest litigation petition moved by a lawyer practicing in Thiruvananthapuram, through advocate Sajith Kumar V, which sought to ensure that government servants do not participate in the nationwide general strike held on March 28 and 29. .The petitioner cited several previous judgments of the Court regarding bandhs, hartals and strikes.In Bharathkumar v State of Kerala, the Kerala High Court had declared bandhs as illegal and the same was later upheld by the Supreme Court. In G Balagopalan v State of Kerala, the Kerala High Court had quashed a Government Order which had permitted the State government employees and teachers to avail casual leave and other eligible leave on certain days when they were absent from duties as part of the National General Strike in January 2019..Moreover, as per Kerala Government Servants Conduct Rules, 1960, Rule 77(b)(2), a service association cannot resort to any strike or use threat of strike as a means of achieving any of its purposes or for any other reasons. As per Rule 77 (b)(10), a service association cannot do any act which if done by a government servant amounts to contravention of any of the provisions of the Kerala Government Servants Conduct Rules. In Rule 86, there is an express prohibition from taking part in the strike. It was contended that these provisions, read together, restrain government servants or associations from resorting to strike against the policies of the government. .The petitioner submitted that 'dies-non' (a day on which no legal business can be done) used to be declared in advance by the State government informing that the pay for the day in which strike is taking place will be withheld from the salary of government servants. Provisional recruits were warned with extreme penalty of removal from service in case of absence on the day of strike.However, it was contended that this time, the State government had not taken any steps to issue Government Orders mandating the attendance of employees or directing that the absence on the striking days will be declared as 'dies-non'. .According to the petitioner, the inaction of the government in not mandating attendance of government servants amounted to unbridled support of the strike which was made more concrete in light of the support offered by trade unions that are allegedly associated with the ruling party. .On these, among the other grounds, the petitioner sought an order from the Court to the State Government, compelling it to ensure compulsory attendance of government servants on the days of general strike and to initiate disciplinary proceedings as per the Service Rules against the employees abstaining from work on March 28 and 29..[Read Order]