A Division Bench of the Kerala High Court on Tuesday quashed a government order dated January 31, 2019, granting leaves with salary to government employees and teachers who were absent during the nationwide general strike held on January 8 and 9 in protest against the Central government’s economic policies.
The Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chali passed the verdict while allowing a public interest litigation filed by G. Balagopalan, former Director, Police Fingerprint Bureau, State Crime Records Bureau (SCRB), Thiruvananthapuram, challenging the government order. He contended that allowing the employees who took part in the strike to take leave was illegal and an abuse of power.
Not eligible for pay
The court observed that it was clear from the earlier government orders and rules that, if a government servant participated in any strike, the consequential unauthorised absence would be treated as dies non and during the period of dies non, he/she shall not be eligible for a pay and allowances.
The court pointed out that it was clearly specified in Part I of Kerala Service Rules and other conduct rules that if any government servant indulged in strike, he/she was liable to be proceeded in accordance with the provisions of the rules. It was not mentioned in the order that leaves would be granted to eligible persons alone. But on the other hand, it clearly specified that orders were being issued for permitting grant of eligible leave, including casual leave, to the government employees and teachers who had not attended the offices, in connection with the strike. However, quite contrary to the provisions of law, the government had issued a notification absolutely protecting the interests of the government employees, who had struck work.
Against law
The court further observed that going by the proposition of law laid down by the apex court and the rules in vogue, it was clear that not only there was any right conferred on the government servants to go on strike, but also there was clear prohibition under law to call for and participate in strikes. Therefore, the action of the government in issuing the order regularising an illegal act could not be sustained in law.
The court said that the order enabled the striking workers to go scot-free, unmindful of the imperatives contained in the provisions of law, a practice clearly deprecated by the apex court.
The court also directed the heads of departments to scrutinise the attendance registers, and take action, in accordance with law, within two months from the date of receipt of a certified copy of the judgment.
