Southern States - Tamil Nadu   

Ordinance suffers from mala fide: Secretariat officers

By A. Subramani

CHENNAI JULY 10. The Tamil Nadu Secretariat Officers Association, one of the petitioners in the Madras High Court challenging the validity of the Essential Services Maintenance Act, has contended that the July 4 ordinance paving the way for mass, summary dismissals `suffered from legal mala fides'. In an additional written submission made before the First Bench, the association counsel, Nalini Chidambaram, pointed out that the legislation was given retrospective effect to `ensure that the employees, who struck work on July 2, did not take advantage of the direction in the ordinance to report for duty at once'.

The impugned ordinance was also repugnant to the Industrial Disputes Act, as some of the government servants coming under its ambit, were also workmen covered by the provisions of the ID Act. ``Hence it is the constitutional obligation on the part of the Government to send the ordinance to the President for instructions as required under Article 213'', she said.

Relying on the figures furnished by the Advocate-General, N.R. Chandran, before the Bench, the additional written submission said though the July 2 strike was `near-total', only 1,69,670 Government servants were dismissed. More importantly, the Government had not disclosed to the court `any yardstick adopted to determine who deserved dismissal and why others were spared'. ``Even the arrests have been made in a discriminatory manner'', it said.

On the government argument that the dismissals were necessitated to instil a sense of discipline in the employees, counsel said, ``even granting it as a laudable objective, the Government should observe the due process of law while making statutes. The stand of the Government is that the due process of the law cannot be observed in emergent situations. This is a wholly untenable argument and should be rejected outright''.

About `reading down' the provisions of the ordinance to make it legal, she said the question would arise only when the Government conceded certain illegality and unconstitutionality in the ordinance. ``Under these circumstances, the court has no option but to strike down the law as unconstitutional", it read.

Another written submission, made by a group of 15 dismissed employees from the Law and Cooperation departments, contended that the employees had a right to hold the post till the age of superannuation or some specified time, and it could not be defeated by an administrative exigency or by abolition of the post.

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