Dismissal for Default - Whether Meets the Ends of Justice

(By R. Ramanarayana Prabhu, Advocate, Ernakulam)

Dismissal for default for nonappearance of the plaintiff/petitioner/complainant or the pleader in the date on which the case is posted is the easiest way to dispose of the matter. Is it this type of disposal are expected from the court of law or a quasi-judicial Tribunals/Forum? certainly not. My attempt through this Article is to bring into light the implication of such dismissals, modalities adopted by the Courts for such dismissals by strictly following the law books without considering its practical aspects and the vehemence by which Courts/Tribunals resists restoration application by placing hyper technical objections, lack of jurisdiction etc. so as to finish the litigation without probing the merits of the case or the petition for restoration.

2. There may be several reasons for the non-appearance of plaintiff/petitioner or the pleader on the date on which the case is posted. Many of the times the reasons will be mistake in noting the posting date or inability of the pleader to appear before the Court on such day due to several reasons beyond his control, like traffic block, bandh, harthal, etc. etc. Sometimes though the case is posted on a specific date the same will not be called due to oversight by the Bench clerk and such cases will not be posted in the 'A'-dairy for quite some time. Sometimes the same will be called on a different date after its posting date. Sometimes the case will be called out of turn during the roll call. Therefore it can be revealed by the above illustration, that in most of such cases there will not be any laches or negligence on the part of the plaintiff/ petitioner. The fact being so it is a point to be mooted whether a court of law or quasi judicial tribunals/Forums are justified in dismissing the case for default merely on the ground that on a specific date the plaintiff/petitioner or the pleader fails to appear before it? and whether the framers of the procedure codes and statutes really intended such dismissals which fails to fulfil the ends of justice and goal of justice delivery system, especially in a country like India where there is no efficient and sufficient paraphernalia to dispose the cases on merits in a methodological manner as dreamt by the law framers. In my view giving a second chance to the litigant by the court/tribunals is required in order to see that the non appearance is intentional or as a result of neglect or laches.

3. Before arriving to a conclusion, it is better to refer some of the provisions which empowers Courts or quasi Judicial Tribunals/Forums to dismiss a case/petition for default. One of such provision is O.IX, R.8 of CPC. On going through this provisions carefully, one can see that there is no option for the court under O.IX R.8. One is to dismiss the suit for default and other is to decree the suit to the extent to which the defendant admits the claim. Then O.IX R.9( 1) bars fresh suits on the same cause of action but permits the plaintiff to apply for an order to set the dismissal aside, on showing sufficient cause for a non appearance. But filing of such petition and to get an order to restore the suit on file, takes much time and practically works against the principles of justice and good conscience.

4. Similarly S.256 of Cr. PC. is another provision which empower the Court to dismiss the complaint for default. Unlike O.XI R.9(1) C.P.C., there is no power given to the court which dismisses the complaint for default under S.256, to restore the complaint on file on furnishing sufficient reasons for non appearance by the complainant. Hence the complainant has to file Revision Petition before the District Court against the order of dismissal. And it will consume much time to get the complaint restored to file. Here also the said process works against the principles of justice and good conscience.

5. In most of the statutes/acts such as Land Reforms Act, Consumer Protection Act, Income Tax Act, Building Tax Act, etc. there is no provision which empowers the Tribunal/Forum to restore the complaint/petition which was dismissed for default. When the complainant/ Petitioner comes up with a petition to restore the complaint/suit/petition, such petitions/ applications are being dismissed for the reason that the Statute/Act does not empower the Presiding Officer to restore the complaint/petition on file. Now we can examine some of the decisions pronounced by Supreme Court and High Court which invests the Presiding Officer with the power to restore. The Supreme Court of India in IT. Commr. Madras v. Chenniappa (AIR 1969 SC 1068 (F.B.)) held that every Tribunal/Forum has inherent jurisdiction to restore the matter which is dismissed for default and further held that the Tribunal has to dispose of the matter on merits and cannot short circuit the same by dismissing it for default of appearance. Similarly, the High Court of Kerala in Gopalan Bhavani v. Raghavan Aravindakshan (1989 (2) KLT 118 DB). held that 'the Tribunal, if not conferred with specific power to dismiss an application for default and to restore the application dismissed for default has no power to dismiss the application for default or to restore an application dismissed for default. 'It is irrational for a court to hold in the absence of specific provision in the statute that the Tribunal has got only the power to dismiss an application for default and has no power to restore an application dismissed for default'. There are other similar decisions on the subject also like one that reported in l.T. Commissioner Madras's case (supra) which are binding on all the courts and tribunals within the territory of India by the grace of Art141 of the Constitution of India. But it seems that the Consumer Forums and State Commissions and other Statutory Authorities constituted under special statutes, for eg., Building Tax Appellate Authorities, Consumer Forums etc. are not following the law declared and principle laid down by the Apex Court in the above matter and dismisses the petition filed by the complainant to restore the complaint which is happened to be dismissed for non appearance of the complainant or the pleader, on the ground that there is no provision in the Act to restore the complaint on file, by relying on some decisions like one reported in III -1963 CP 1273 wherein the National Commission held that under the Act there is no provision for restoration of a case dismissed for default. Here the moot point is whether the National Commission constituted under Consumer Disputes Act is not duty bound under the Art.141 of the Constitution of India to follow the law declared and principles laid down by the Apex Court on this subject? And if the National Commission does not follow the said principles laid down by the Apex Court in the matter of restoration of cases which are dismissed for default, whether the judicial discipline calls up on the District Forum and the State Commission not to follow the principles/Law declared by the Supreme Court of India ignoring Art.141 of the Constitution of India. All these are delicate issues which requires careful consideration by the hands of the Courts, Tribunals/Forums which undoubtedly derives powers and even its existence from the Constitution of India.

6. Therefore in my opinion the provisions which empower the courts and Tribunals/ Forum to dismiss the case for default for non-appearance of the plaintiff/petitioner or the pleader, if exercised without granting the defaulter a fair chance or chances to show sufficient cause, for the non appearance on the appointed day, would lead to denial of justice and would work against the very principles of Natural Justice and good conscious. Similarly when such power is exercised by the Courts and Quasi-judicial Tribunals/Forums, they are empowered to restore the cases, so dismissed on file if sufficient cause is shown by the petitioner/plaintiff for the non appearance on the appointed date. The Hon'ble High Court of Kerala in a recent decision, H.E. Abdul Azeez Sait v. C.D.R.F., dealing of question whether Consumer Forum has power to restore the complaint, relying on. New India Assurance Co. Ltd. v. Sreenivasan (2000 (2) KLT 462 (SC)) held that if the complainant shows good reasons for the non-appearance, the Consumer Disputes Redressal Agencies concerned has inherent power and jurisdiction to restore the complaint dismissed for default.

7. It is well settled principle that all procedures and powers are open to court in order to meet the end of justice, unless otherwise specifically prohibited. Full Bench of Allahabad High Court in Narasingh Das v. Mangal Dubey (ILR (1883) 5 All. 163) held that "The Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law". The principle was recently considered by the Division Bench of Kerala High Court in M.G. University v. Milu Dandapani (2000 (1) KLT 351). held that "all procedure is always open to a court which is not expressly prohibited".

8. So the interest of justice and good conscious require that power to dismiss for default is to be exercised sparingly after giving the defaulter a fair chance or chances to show sufficient cause for non appearance on the appointed day. In our country litigations are very expensive and consume much time. It is very easy to throw away a case by merely dismissing the same for default. But such kind of dismissals are not expected from a Court of law or from the quasi-judicial Tribunals/Forums. Before dismissing a case for default the courts shall keep in mind the-well settled proposition of law that no person shall deny justice on technicalities. Such dismissal and non inclination for restoration would definitely lead to multiplicity of proceedings and waste of time and mental agony to the parties involved.

Strike, Whether a Fundamental Right?

(By M. Rajasekharan Nayar, Advocate, Cochin)

Industrial Disputes Act, 1947 is a successor of Trade Disputes Act, 1929. The working of the 1929 Act revealed various defects and to overcome them, a fresh legislation was thought off, which resulted in Industrial Disputes Act, 1947.

Though 1929 Act imposed restrains on the rights of strike and lockout in the public utility service, no provision was made for settlement of Industrial Disputes. This defect was overcome, during the 2nd World War, by framing Rule 81 A of the Defence of India Rules. This R.91A lapsed on 1st October 1946, was kept in force by Emergency Powers (Continuance) Ordinance, 1946 and thereafter the present Industrial Disputes Act, 1947 was enacted.

Chapter V of the Industrial Disputes Act deals with strikes and lockouts. S.22 prohibits strikes and lockouts in public utility service and S.23 deals with strikes and lockouts in the other industrial establishments. S.24 deals with illegal strikes and lockouts and S. 25 prohibits financial aid to illegal strikes and illegal lockouts. From the above provision it could be seen that the strikes and lockouts has got only limited statutory support.

The above statutory provisions were the result of relentless struggle on the part of the workers for more than 100 years. At that time the trade union leaders were dedicated to the cause for which they are struggling. Even Mahatma Gandhi took a prominent part for emancipation of Indigo workers in Chambaran. Gandhiji took the cause of the workers and cultivators only after they agreed to give up some unreasonable demands.

Till the end of 1980 in India, trade unions were led by eminent men and the last of them was late Sri. Ramanujan, who continued as the President of the INTUC till he was appointed as a Governor. But at the same time he was very much worried about the method adopted by the workmen in the organized sector, especially those under the public sector undertakings. By then leaders slowly lost their grip over the workers and who in turn started placing unreasonable demands. As a member of the Central Negotiating Body in the HMT, I was flooded with demands, almost all of them were found to be unreasonable. Even there was claim for split duty allowance for workers who were posted according to their convenience and mainly residing in Company Quarters. The strikes have become an order of the day and it is in this back drop, you have to view the Supreme Court judgment regarding strike.

With the framing of the Indian Constitution, the question that arose was, whether the right to strike is a fundamental right? Art.19(1)(c) recognize right to form associations and unions while under Art.19(4) the Government can impose restrictions on the rights created by Art.19(1)(c). There is no provision in the Constitution, which deals with strike hence cannot be stated that it is a fundamental right. Strike is not mentioned directly in any other enactment, whereas there is indirect references in the Payment of Wages Act, the Bonus Act, the Mines Act and Gratuity Act. According to the provisions of the Minimum Wages Act the worker loses 8 days wages for a day's absence without leave. Mines Act and Bonus Act also indirectly deals with these aspects.

The question whether the right to strike is a fundamental right came up for consideration before the Constitution Bench of the Supreme Court in 1953 (AIR 1954 SC 73) and 1961 (AIR 1962 SC 127). Referring to the above provisions Supreme Court held that the right to strike cannot be equated with that of a fundamental right. The right to form an association cannot be equated with the right strike as a fundamental right because the strike impinges, the right of the general public and hence illegal. Other decisions also has held that the strike has got only limited statutory support and can never be equated with that of a fundamental right ((1989) 4 SCC 710). The observations in the above case are per incurium as the two judges has not referred to the Constitution Bench Decision.

There is another side of the picture. It was not considered by the Courts. When United Nations was formed in 1948, members of General Assembly passed universal declaration of human rights. It was recognized by the members of Nations of United Nations. Art.23(4) states as follows : Everybody has the right to form and to join trade unions for the protection of his interests and sub Arts.2 and 3 states as follows : 2- Everyone, without any discrimination, has the right to equal pay for equal work and 3 says everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other-means of social protection. This necessarily means right to form association and espouse their rights by legitimate actions. This, together with international covenants on economic, social and political rights, to some extend support the contention that strike is legitimate weapon in the armoury of workers.

The question then will be, whether these rights guaranteed and recognized by the various international covenants will supersede the rights and limitations prescribed by the fundamental law of respective nations because these covenants say the right to strike could be exercised in conformity the laws of the particular country. Thus the question again raises, the effect of Art.19(1)(c) of the Constitution of India and the law laid down by the Supreme Court, which is binding on all, under Art.141. Even though Supreme Court decision, in Rangarajan's case, 2003 (3) KLT 86 (SC), cannot be said to be wrong, it seems that the judgment is bit harsh.

Homage to Palkhivala - The Greatest Lawyer

(By P.K. Ravindranatha Menon, Sr. Advocate, Ernakulam)

A highly gifted and multi faceted personality, India's far-seeing statesman Shri Rajagopalachari had hailed Palkhivala as a "gift of god to Mother India".

Mr. M.C. Chagla, one of the outstanding Indian patriots and a great judge of international eminence said of Mr. Palkhivala in his autobiography - "Roses in December" - "Mr. Nani Palkhivala is the most brilliant lawyer of our times."

Justice H.R. Khanna, an institution by himself, paying high tributes to Nani Palkhivala's greatness as a lawyer, once said that if a count were to be made of ten top most lawyers of the world, Palkhivala's name would find a prominent place among the ten.

Mr. Palkhivala a legend in his own lifetime had done India proud. Though I did not had the privilege of knowing him, I had the privilege of listening to him and had the greatest privilege of reading hundreds of judgments in cases in which he had appeared before the Supreme Court and before various High Courts.

Mr. Palkhivala had started appearing before the Supreme Court in very important cases even at a very young age of 33.

In the passing of Shri. Palkhivala the Nation has lost not only the greatest lawyer the country had produced but a fine, integrated human being. Mr. Palkhivala's professional skill was legendary. For over half a country he argued thousands of cases, including some of great legal import which have left a deep impact upon our constitutional structure.

Early in his professional career and with the publication of his magnum opus on income tax, he came to be recognized for his pre-eminence as a great expert in the theory and practice of taxation.

"The Law and Practice of Income Tax" authored by Palkhivala, a monumental work, is locus classicus on the subject.

I had the privilege to listen to him. To listen to his arguments in some of the landmark cases in the Supreme Court was to experience the spell of his magic persuasiveness as he would begin to unfold the version of the Founding Fathers of the Constitution and to illumine the path of law.

Mr. Palkhivala was an orator par excellence, he knew that an orator's virtue is to speak the truths He spoke the truth with transparent sincerity and conviction.

It is said 'one moon alone destroys darkness and not millions of stars'. This statement applies with all force and in abundant measure to the life and work of Palkhivala. In the great galaxy of lawyers of this country Palkhivala is a shining moon being the greatest lawyer.

Mr. Palkhi wala was the architect of the basic structure theory of the Constitution. That is the greatest contribution of his to our Nation.

The Securitisation Act - 2002 - A View - From the Far

(By V.K. Babu Prakash, Munsiff, Thrissur)

The long awaited Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act - 2002 which will be called hereinafter as Act 54 of 2002 has now come into reality. The ordinance passed had been put into enactment by the Indian Parliament which has come into force on 21.6.02. It has been criticized by the Bank Employee's Association and various other commercial sectors that the Act and the ordinance are the brain child of the World Bank. The Bank Industry in India is slowly passing in to the new work of international prudential norms and account practices. There is no legal provision before coming into force of Act 54 for facilitating the securitisation of financial assets of a bank and financial institutions. Further, unlike international banks the banks and financial institutions in India do not have power to take possession of securities and sell them. The existing legal norm relating to commercial transactions has not kept pace with changing commercial practice and financial sector reforms. This has resulted in slow pace of recovery of defaulting loans and mounting levels of non-performing assets of banks and financial institutions. The Central Government appointed Narasimhom Committee 1 & 2 Andhyarjuna Committee for the purpose of examining banking sector reforms. The Committees have considered the need for changes in the legal system in respect of these areas. The Committees have suggested enactment of a new legislation for securitisation and empowering banks and financial institutions to take possession of the securities and to sell them without the intervention of the Court. Acting on these suggestions an ordinance was promulgated to regulate the same. The act contains the following provisions: (a) the registration and regulation of securitisation companies or reconstruction companies by the Reserve Bank of India, (b) Facilitating securitisation of financial assets of banks and financial institutions with or without the benefit of underline securities, (c) Facilitating easy transferability of financial assets by the securitisation company or reconstruction company to acquire financial assets of banks and financial institutions by issue of debentures of banks or any other security in the nature of a debenture, (d) Empowering securitisation companies or reconstruction companies to raise funds by issue of security receipts to qualified institutional buyers, (e) Facilitating reconstruction of financial assets acquired by exercising powers of enforcement of securities of changes of management or other powers which are proposed to be conferred on the banks and financial institutions, (f) Declaration of any securitisation company or reconstruction company registered with the Reserve Bank of India as a public financial institution for the purpose of S.4(a) of the Companies Act. (g) Defining security interest as any type of security including mortgage and charge of immovable properties given for due repayment of any financial assets given by any bank or financial institution, (h) Empowering banks and financial institutions to take possession of securities given for financial assets and sell or lease the same or take over management in the event of default, (i) Rights of a secured creditor to be exercised by one or more of its Officers authorised in this behalf in accordance with the rules made by Central Government, (j) An appeal against the action of any company or financial institution to the concerned Debts Recovery Tribunal and a second appeal to the appellate Debts Recovery Tribunal, (k) Setting up or causing to set up a Central Registry by the Central Government for the purpose of registration of transactions relating to securitisation, asset, reconstruction and creation of security interest. (1) Application of the proposed legislation initially to banks and financial institution and empowerment of Central Government to extent the application of the proposed legislation to non-banking financial companies and entities. Non-application of the proposed legislation to security interest in agricultural loans and loans not exceeding to Rs. one lakh. The Act contains 42 sections and 6 chapters. Chapter 1 deals with Preliminary matters and definition. Chapter II deals regulations of securitisation and reconstruction of financial assets of banks and financial institutions. S.3 is the important provision which provides registration of securitisation companies or reconstruction companies. S.4 deals with the power of the Reserve Bank to cancel the registration. S.5 deals with the power of the securitisation company or reconstruction companies to acquire the rights or interest or any financial assets of any bank or financial institutions. S.6 provides to issue notice to the obligor and discharge of obligation. S.12 confers power upon Reserve Bank of India to determine policy regarding this Act. Chapter III deals with enforcement of security interest. S.13 deals with the enforcement of security interest, which says that notwithstanding anything contained in S.69 or 69(A) of the Transfer of Property Act any security interest created in favour of any secured creditor may be enforced without the intervention of the Court or Tribunal by such creditor in accordance with the provisions of this Act. This is the important section which gives a sword of weapon to the banking and other securitisation companies to brandish the same against the borrowers as well as obligants. S.14 deals with the power of Chief Metropolitan Magistrate or District Magistrate to assist the secured creditor in taking possession of the secured asset. S.15 deals with the manner in which the effect of take over and management can be made. S.17 deals with the right of appeal. The right of appeal conferred upon the person aggrieved by any order passed under S.13(4) to Debts Recovery Tribunal and jurisdiction in the manner must be exercised within 45 days from the date on which such measure had been taken. S.18 deals with the appellate tribunal from any order made by the Debts Recovery Tribunal under S.17. S.19 deals with the right to receive compensation and cost. Chapter IV is another important provision which deals with the Central Registry under S.20. The Central Government shall have to cause or set up from such date Central Registry with its own seal for the purpose of registration or transaction of securitisation and reconstruction of financial assets and creation of security interest under the Act. Chapter V deals with offences and penalties committed under S. 27. S.27 deals with 3 kinds of default which call for penalty. The first one is, if default is made with respect to filing of transaction of securitisation before the Central Registry and clause (b) says sending of modification security interest and clause (c) deals with in giving intimation regarding the report of satisfaction of security interest to the Central Registrar. S. 28 deals with penalties of non-compliance of direction made by the Reserve Bank from time to time. Regarding offences under S.27 secured creditor is liable to pay fine of Rs.5,000/- for every day during the default continues. It does not carry imprisonment or default sentence. S.28 imposes penalty with fine of which may extend to 5 lakhs rupees and in the case of continuing offences fine extend to Rs.10,000/- for every day as an additional fine. S.30 deals with cognizance of the offence by Judicial First Class Magistrate or Metropolitan Magistrate. Chapter VI deals with Miscellaneous provisions which gives an exemption to the loan of goods by the provisions of the Contract Act or Sale of Goods Act and other various enactments. It also gives an exemption regarding properties not liable to attachment or sale under S.60(1) of CPC. S.34 contains a non-obstante clause which makes a blanket ban upon the Civil Court to entertain any suit or proceedings in respect of any matter which a Debt Recovery Tribunal or the appellate tribunal has been empowered by this Act. No injunction shall be granted by any Court in respect of any manner covered by the Act.

A demand notice under S.13(2) has to be issued by the secured creditor to the borrower or his obligant. Though as per the rule of Debt Recovery Tribunal, it has got jurisdiction above matter of Rs.10 lakhs the power exercised by the tribunal under the Act is of Appellate authority so that pecuniary question of jurisdiction does not arise therein. Under S.13(7) of the Act the money realised by a secured creditor on sale of security under the Act should be held in trust and is not capable of being appropriated detrimental to the interest of prior charge holders. It is clearly mentioned that the secured creditor cannot take action under S.13(4) unless the claim is made within the period of limitation: The notice contemplated under S.13(2) must be issued within the period of limitation. The limitation period is calculated from the date of cause of action or default after serving notice. As per S.13(1) of the Act any security interest created in agricultural land is excluded from the purview of the Act. Agricultural land and implements are exempted under the provision of CPC which is made applicable so that agricultural land cannot be received as security by the bank. The provision regarding Central Registry is in suspended animation and will come into play only when notified and set up. However, the non constitution of the Central Registry does not in any way affect the right of the bank to enforce security interest ie., hypothecation, mortgage, charge etc. without going to the court as per the provisions of the Act. The authorised Officer of the bank alone is entitled to take possession of the property. After taking possession of the property under the Act till the disposal of the same it should be under the safe custody of the authorised officer. The term District Magistrate includes the District Collector of the area who can assist the creditor to take over the security. Thus the scheme of the Act gives a power upon the creditor himself to move against the security furnished by the borrower. The creditor need not go to the court for enforcing the claim. Thus a new arena is going to veil up thereby the Civil Courts in the country will no more be crammed by money suits of the banking and other institutions hereafter.

(A Trade Union View Point:

Impact of Supreme Court Judgment - Banning Strike by Workers

(By Thampan Thomas)

The Hon'ble Supreme Court Judgment on 6th August in T.K. Rangarajan v. Government of Tamil Nadu & Ors., 2003 (3) KLT 86 (SC), declaring prohibition on workers' strike is responded by workers by calling for strike everywhere. Top intelligentsia including Attorney General of India voiced their decent to the judgment. The right to strike is an inalienable right of the workers. If there is prohibition of strike the net result is bonded labour.

Labour and capital are two components in production. Both are equated in equal terms by every law all over the world. It envisages contractual obligations between the parties. No one either the Government or the employer can compel to work in unacceptable conditions. As early as 1946, when the debate of Industrial Disputes Act went on in the British Parliament, Shri. N.M. Joshi the father of the Indian Trade Union movement asserted that the basic jurisprudence of labour law is contractual and not penal. The principle is accepted and the State is playing the role of an umpire in the matter of dispute between employer and labour.

Court being the guardian angel of safeguarding the interest of justice, equity and good conscience cannot deprive the workers from the right of association and collective bargaining. They are bound to implement the fundamental rights and directive principles enshrined in the constitution. Even the Apex Court cannot give a verdict, which contradict the basic character of the constitution.

The Hon'ble Supreme Court all the while has stressed the need of keeping the basic character of our constitution. Whenever the executive has gone wrong they have emphatically said that the basic character cannot be changed even by legislation. Kesavanatha Bharathi case is a milestone in this regard.

Justice Shah who wrote the judgment for and on behalf of Division Bench of the Supreme Court in the opening paragraphs have quoted Kesavanatha Bharathi case and other cases to emphasize the right of the Court to interfere in the situation arisen in Tamil Nadu on account of the strike of the government employees. But they failed to apply the same dictum in the succeeding paragraphs while they consider the moral, equitable and legal right for the workers to strike.

The executive, judiciary and legislature are well-demarcated independent institutions under our constitution. The judiciary is not expected to usurp the powers of the executive. In the case referred above instead of giving a verdict on the validity of the amendment of Tamil Nadu Essential Service Maintenance Ordinance 2003, they decided the morality of strike and compel the workers to surrender before the employer. This is an encroachment to the parameters of the executive by the judiciary, which is also a violation of the basic character of the constitution. Judicial confrontation by the Apex Court is a most dangerous phenomenon where no further remedy is available for the affected parties.

The Preamble of the Constitution says "WE THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship, EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the nations;". The preamble, fundamental rights and directive principles are basic character of our constitution. Neither the executive nor the judiciary has any right to curtail the said basic character. The judgment of Justice Shah cuts the root of democracy. The right to decent is germane to democracy. If everyone is only to obey the decayath of (he executive or the employer, then it is not a democracy but a dictatorship. If the conditions under which a worker is compelled to work is subhuman, and the right to decent life is taken a way no doubt slavery will reemerge.

Part III of the Constitution of India enshrines the fundamental rights and Art.19 specifically provides for freedom of association, freedom of speech and freedom of assembly peacefully. Chapter 4 of the Constitution contains Directive Principles of the State policy, which is known as equal to Sanctions given in the American constitution. It is the moving fulcrum of the nation. Equality, decent life and well being of the workers and equal justice are guaranteed therein.

The case one at hand before the Honourable Supreme Court was that of challenging the validity of a draconian law enacted by the Tamil Nadu Government amending the Essential Service Maintenance Act enabling the executive to dismiss their employees without any notice or giving opportunity for hearing in enmasse by publication of a notice. 1.72 lakhs of the government employees were dismissed from the service on the ground that they have participated in a strike.

The strike was called by all recognised and un-recognised unions against an executive action of the Tamil Nadu Government withdrawing pension benefits, leave surrender benefits and payment of Provident Fund in an arbitrary manner. 12 lakhs of the Government employees after giving due notice went on strike for one day. They were confronted with an ordinance which enabled the Government to dismiss all the employees who go on strike. This is a colourful exercise of the power and constitutionally invalid action as it violate the provisions contained in Arts.14, 16 and Arts.309, 310 and 311 of the Constitution of India.

The Hon'ble Supreme Court's decision in this case is not only the result of active judicialism but a confrontation of the poor and exploited working class. They made the workers to kneel before the executive and give apology for reinstatement. This is not an action of saving the workers but a compulsion to surrender self respect. The whole morale of the workers are seriously affected by the suggestions and acceptance of the apology. The working class movement in the country is heavily backtracked on account of the confrontation by the Supreme Court.

While considering the case the two members bench of the Honourable Supreme Court has never cared to examine the land mark judgment of eleven judges bench in 3978 which is known as Bangalore Water Supply case. In the said case the term industry is redefined to include all categories of workers except persons working in defense and institutions discharging sovereign and inalienable powers. The two judgments considered by the learned Judges in denying the right of strike are irrelevant, and matters related to different issues. Captain Hareesh Kumar v. Union of India is a case decided on the right of lawyers to boycott the court and the other case Communist Party of India (M) v. Bharath Kumar & Ors. is on the right to call bandh, which interferes with the freedom of the citizens. The other cases of P & T employees & Bank employees regarding the fundamental right of strike is prior to Bangalore Water Supply case and enactments subsequent thereto.

Right of strike of the workers is entirely different from the right of boycott of the lawyers and calling bandh by political parties. It is a statutory right of the workers as a part of collective bargaining as last weapon. Unless that right is given no employer will yield to any reasonable demands of the worker. Even to make the conciliation machinery effective the said right is to be accepted and to be exercised, S.12 of the Industrial Disputes Act makes it obligatory to initiate conciliation proceedings on strike notice.

Strike by the workers is a statutory right. The Industrial Disputes Act define the strike as "cessation of work by body of persons employed in any industry acting in combination, or a concerted refusal, or, the refusal under a common understanding, of any number of persons who are or have been so employed, to continue to work or to accept employment". S. 22 to 28 deals with strikes and penalties for illegal strike, its instigation and financial aid. When the law makes clear demarcation for illegal strike, the presumption is there are legal strikes, which are permissible. R.71 of the Kerala Industrial Disputes Rules prescribes the mode of giving notice for strike. Similar provisions are there in Central and other State enactments.

The strike is provided as a statutorily approved weapon of the working class. In the judgment of Government employees are prevented from resorting to strike and other employees are cautioned that they have no legal or moral right to strike. The Industrial Disputes Act is made applicable for 26 lakhs railway, P & T and defence employees who are Central Government employees. When the statute provides right to strike no Court can take away that right without annulling the said enactment. No judgment can take away that by a mere stroke of their pen.

The international conventions and accepted principles recognize collective bargaining as a fundamental right of the workers. Convention 87 and 98 of the International Labour Organisation accept this principle. These conventions are known as the core conventions of the ILO. In not ratifying the convention Government of India tells the ILO that our Constitution and labour laws gives that right.

The Hon'ble Supreme Court is to deal the worker and the employer in equal terms in accordance with the jurisprudence of the Industrial Disputes Act, basic character of Constitution of India and ILO Conventions. The Apex Court had made the right of the employers to close down a factory or to declare lay off a fundamental right. An impartial court is expected to say that the workers have got the right of cessation of their work in unacceptable conditions. Different yardsticks cannot be applied to the management and the workers in the matter of strikes and lockouts.

The Hon'ble Judges of the Supreme Court gave this verdict taking judicial notice of current events. When the Judges are taking judicial notice of what is happening around us, they are also bound to take notice of the conditions of the common people including the worker. The recent strike by the truck operators, which caused loss of billions of rupees for the exchequer and closure of factories in lakhs, was not taken judicial notice. The impoverishment of the country on account of globalization and marginalisation of the poor and the working class are not taken note off. 480 million people in India are living with less than an income of one dollar per day. More than 2 crores of employees have been thrown out of employment. About 6 lakhs industries are closed down. These are not on account of strike by the workers but on account of implementation of new economic policy. Working days lost in India on account of closure and lock out by the management is more than that of strike by the workers. The Supreme Court cannot make the workers a scapegoat for the malignancy of the society. The rulers, bureaucracy and the persons controlling the capital are answerable for that. Persons in high ups cannot understand the sufferings of the poor. The workers who get a meager income, when that is curtailed they resist. The Tamil Nadu Government snatched away the pension benefits, which is an entitlement for the past service for a peaceful life in distress. This is the only consolation for the retired persons. It is a social security for the workers on their retirement. When it is withdrawn there is no other way but to go on strike. This action is an infringement on the right of life.

The Hon'bie Supreme Court has forgotten the historical background of the strike by the workers. Even the strikes in 1920's by the Buckingham & Karanatik mill workers and the Court verdict against them gave birth to the Trade Union Act of 1926 and Industrial Disputes Act. The workers have achieved their right not by mere orders of the executive or judgment of the Court but by relentless sacrifices and struggle. Now the judgment of the Hon'bie Supreme Court has paved the way for more strikes and struggle by the workers in the background of globalization.