In Re Disruption Of Power Supply In ... vs State Of U.P. Through Additional ...
2023 Latest Caselaw 7922 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 29
 

 
Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 2349 of 2022
 

 
Petitioner :- In Re Disruption Of Power Supply In Prayagraj
 
Respondent :- State Of U.P. Through Additional Chief Secretary Power U.P. Government And Others
 
Counsel for Petitioner :- Suo Moto,Gaurav Bishan,R.K. Shahi,R.P.S. Chauhan,Ravindra Kumar Tripathi,Tripurari Pal
 
Counsel for Respondent :- C.S.C.,Krishna Agarawal,Praveen Kumar Srivastava
 

 
Hon'ble Pritinker Diwaker,Acting Chief Justice
 
Hon'ble Saumitra Dayal Singh,J.

1. On 02.12.2022, the matter was entertained as a suo motu proceeding. Initial order dated 06.12.2022, records :

"From the minutes produced, it appears that consensus has been arrived on 14 points and, as a result whereof, the Employees' Union has decided to defer the strike for a period of fifteen days. It appears from the minutes of the meeting dated 03.12.2022 that on their request the department has taken a decision to withdraw show cause notices and orders relating to suspension, removal from service and other coercive disciplinary measures which it had adopted against the striking employees.

The aforesaid minutes of the meeting gives us an impression that the employees of the power department are arm-twisting the Department having little regard that disruption of essential services is a very serious issue and is not to be tolerated. The situation therefore needs to be dealt with in a firm manner.

In such circumstances, we deem it appropriate to issue notice to the representatives of Employees' Union so that whenever the matter is listed next, they are given opportunity of being heard."

2. Accordingly, notices were served on Vidyut Karmchari Sanyukt Sangharsh Samiti through Chief Judicial Magistrate, Lucknow. However, none entered appearance in the matter. Upon further application filed by Sri Vibhu Rai, Advocate, vide order dated 17.03.2023 serious note was taken of the 72 hours strike called by the Vidyut Karmchari Sanyukt Sangharsh Samiti. The above strike call involved the working of twenty seven lakh employees of the Uttar Pradesh Power Corporation and various distribution companies. Taking note of a Press Note dated 16.02.2023, issued by the Vidyut Karmchari Sanyukt Sangharsh Samiti bailable warrants came to be issued to the organiser and office bearers of Vidyut Karmchari Sanyukt Sangharsh Samiti on 17.03.2023. The order dated 17.03.2023 records :

"Let notices be issued to Sri Shailendra Dubey, Organizer of Vidyut Karmachari Sanyukt Sangarsh Samiti, U.P. as well as the office bearers named in the press release dated 16th March, 2023 namely, Sri Rajeev Singh, Sri Jitendra Singh Gurjar, Sri Jai Prakash, Sri G.V. Patel, Sri Girish Pandey, Sri Sadaruddin Rana, Sri Rajendra Ghildiyal, Sri Suhel Abid, Sri Mahendra Rai, Sri Chandrabhushan Upadhyay, Sri Shashikant Srivastava, Sri Manish Mishra, Sri P.K. Dixit, Mohd. Waseem, Sri Chhote Lal Dixit, Sri Yogendra Kumar, Sri Ram Charan Singh, Sri Pavan Srivastava, Sri Maya Shanker Tiwari, Sri Vishwambher Singh, Sri Ram Sahare Verma, Sri Shambhu Ratna Dixit, Sri P.S. Bajpayee, Sri G.P. Singh, Sri Rafeeq Ahmad, Mohd. Iliyas, Sri R.K. Singh and Sri Devendra Pandey through the Sangarsh Samiti who have actively participated in convening of the strike call."

3. Upon the matter being called out today, Sri Vibhu Rai, Sri R.P.S. Chauhan, Sri Rakesh Pande, learned Senior Counsel alongwith Sri Ashok Kumar Singh, Advocates (seeking to intervene on behalf of the High Court Bar Association) and Sri Gajendra Prasad, learned Senior Advocate assisted by Sri Rahul Agarwal, Advocates have appeared on behalf of the above described organiser and functionaries of the Vidyut Karmchari Sanyukt Sangharsh Samiti (hereinafter described as noticed non-petitioners). It was first submitted except one, namely, Sri Girish Pandey all other noticed non-petitioners are present. On behalf of Sri Girish Pandey, it has been submitted, he is bed-ridden having suffered a paralytic stroke. Second, it has been submitted, a detailed affidavit in the shape of counter affidavit had been prepared on behalf of the Vidyut Karmchari Sanyukt Sangharsh Samiti on 16.12.2022. However, it could not be filed in December 2022, owing to some inadvertence. It may be noted, the same has not been filed even though the office of the Court remained open on 18.03.2023. Sri Vibhu Rai has submitted, the Press Note dated 16.02.2023 did not make reference of any affidavit proposed to be filed in the present proceedings.

4. On query made, learned Senior Counsel appearing for the striking employees candidly admits the correctness of such statement. However, it has been further submitted, having realised the ill consequences of their strike, the noticed non-petitioners called off the same on 19.03.2023 after 64 hours from its commencement.

5. Learned Senior Counsel for the noticed non-petitioners and also, counsel appearing on behalf of the striking employees have made efforts to convince the Court as to the genuineness and continued pendency of the valid demands of the employees, as the just cause to go on strike. However, we are disinclined to go into the same at this stage, for reasons noted below.

6. It is a matter of most serious concern that despite cognizance having been taken by this Court - of the threat hurled by the Vidyut Karmchari Sanyukt Sangharsh Samiti to go on strike and, despite specific order dated 06.12.2022, the illegal strike was called and enacted.

7. As a result of such callous conduct orchestrated by the Vidyut Karmchari Sanyukt Sangharsh Samiti vast disruptions were caused involving serious difficulties faced by citizens and others to maintain essential services such as running of hospitals, petrol pumps, institutions, businesses and banking, besides sudden difficulties to students preparing and appearing in various examinations.

8. In Jagdamba Paper Industries (Pvt.) Ltd. & Ors. Vs. Haryana State Electricity Board & Ors., (1983) 4 SCC 508, the Supreme Court had quoted with approval the observation made by the Andhra Pradesh High Court in Kistna Cement Works, Tadepalli Vs. The Secretary, APSEB, Vidyut Soudha, Hyderabad & Ors., which reads as below :

"5.A learned Single Judge of the Bombay High Court without referring to the Allahabad decision came to the conclusion that the scheme of the Act made it clear that it was not open to the licensee to impose any financial burden in addition to what was provided for in the Act itself. If this were not so, the whole object of the Act, which is to ensure the supply of electricity to the consumers in a controlled manner at rates which have to be controlled and approved by the State Government would be destroyed. Because, in addition to the electricity charges, the licensee may, by contract, provide for other charges and thus impose a greater financial burden on the consumer than contemplated in the Act itself. As against these decisions, reliance has been placed on a Bench decision of the Andhra Pradesh High Court inKistna Cement Worksv.Secretary, A.P.SEB[AIR 1979 AP 291 : (1979) 1 Andh WR 469] and a Single Judge decision of the Rajasthan High Court inB.R. Oil Millsv.Assistant Engineer(D),RSEB[AIR 1981 Raj 108 : 1980 Raj LW 121 : 1980 WLN 149] on behalf of the Board in support of the demand of security. The Andhra Pradesh High Court has taken the view that sub-para (a) of the first proviso to clause VI of the Schedule to the 1910 Act would be applicable and what would be sufficient security should be left to the Board to decide. The Andhra Pradesh Electricity Board had adopted similar justification as placed by the Board before us to justify demand of enhanced security and dealing with such stand the learned Judges observed:

?To our mind, this is a quite satisfactory explanation of the reasons behind insistence on cash security. Certainly a public utility service like Electricity Board cannot launch itself on litigation to recover consumption charges on a large scale. Power generation, which it does is an essential service and that shall never be allowed to suffer on account of improper security. We have already referred to the fact that it is reasonable on the part of the Board to require security for three months' consumption charges. Now to require that amount to be deposited in the form of cash is eminently reasonable....?

The Rajasthan High Court has accepted the view of the Andhra Pradesh High Court. We accept the view of the Andhra Pradesh High Court."

(emphasis supplied)

9. Thus, undoubtedly, by nature, production and supply of electricity is an essential service in present day world. In the context of the present scenario, it may also be noted, the U.P. Essential Services Maintenance Act, 1966 (hereinafter referred to as the 'Act'), was enacted to ensure uninterrupted maintenance of essential services. Relevant to the present case, it has been shown, the State Government had issued an order under Section 3 of the Act dated 04.01.2023 declaring illegal, any strike as may result in disruption of supply of electricity in the State of Uttar Pradesh.

10. Then, in full know of the cognizance taken by this Court and despite issuance of the above prohibitory order restraining the employees of the U.P. Power Corporation and the Distribution Companies to go on strike, the noticed non-petitioners passed the resolution dated 16.02.2023 forcing associations and employees of the U.P. Power Corporation and the Distribution Companies to go on 72 hours strike beginning 10:00 pm on 16.03.2023. Solely occasioned by that call, the essential service of supply of electricity was disrupted in the State of Uttar Pradesh. The loss caused by it is yet to be fully determined.

11. Sri Manish Goyal, learned Additional Advocate General submitted, the loss suffered by the U.P. Power Corporation is tentatively estimated at Rs. 2,000 crores in generation, transmission and distribution. Consequential loss suffered by the consumers has been estimated at Rs. 5,000 crores. Prima facie more than 30 lakh consumers spread over various institutions including businesses, hospitals, industries, banks, schools, railways have borne the brunt of the irresponsible and negligent act committed at the instigation of the noticed non-petitioners. Sri Manish Goyal would further inform, about 129 FIRs have been filed against various persons including the noticed respondents.

12. In Radhey Shyam Vs. Post Master General, Central Circle, AIR 1965 SC 311, it had been clearly held, no one has fundamental right to go on strike. It was observed:

"6.Learned counsel for the petitioner in this connection relies on two cases of this Court to which reference has already been made.Kameshwar Prasad case [1962 Supp (2) SCR 369] related to Rule 4-A of the Bihar Government Servants' Conduct Rules, 1956, which provided that no government servant shall participate in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service this Court held in that case that Rule 4-A insofar as it prohibited any form of demonstration, be it however innocent or however incapable of causing a breach of public tranquility was violative of Articles 19(1)(a) and 19(1)(b) of the Constitution this Court also held that insofar as that rule prohibited a strike it was good, since there was no fundamental right to resort to strike. InO.K. Ghosh case [AIR (1963) SC 812] this Court was concerned with Rule 4-A and Rule 4-B of the Central Civil Services (Conduct) Rules, 1955, and following the decision inKameshwar Prasad's case [1962 Supp (2) SCR 369] , Rule 4-A was struck down in part so far as it related to demonstrations and Rule 4-B was also held to be invalid. That case did not deal with the Ordinance at all and the charge in that case did not seem to have been in the same terms as the charge in the present case. No argument appears to have been urged either in the High Court or before this Court about the validity of the Ordinance or about the validity of the impugned order in relation to the Ordinance or the illegal character of the strike. In the circumstances that case is also of no assistance to the petitioner and there was nothing decided there which would in any way affect the validity of the provisions of the Ordinance. We are therefore of opinion that the Ordinance is valid."

(emphasis supplied)

13. Then, in T.K. Rangarajan v. Govt. of T.N., (2003) 6 SCC 581, the Supreme Court reiterated its above view and further, went to the extent of observing, there exists no moral or equitable justification to go on strike. It would be useful for our purpose to quote those observations in entirety. They read:

"(A)There is no fundamental right to go on strike

12. Law on this subject is well settled and it has been repeatedly held by this Court that the employees have no fundamental right to resort to strike. InKameshwar Prasadv.State of Bihar[AIR 1962 SC 1166 : 1962 Supp (3) SCR 369] this Court (Constitution Bench) held that the rule insofar as it prohibited strikes was validsince there is no fundamental right to resort to strike.

13. InRadhey Shyam Sharmav.Post Master General[AIR 1965 SC 311 : (1964) 7 SCR 403] the employees of Post and Telegraph Department of the Government went on strike from the midnight of 11-7-1960 throughout India and the petitioner was on duty on that day. As he went on strike, in the departmental enquiry, penalty was imposed upon him. That was challenged before this Court. In that context, it was contended that Sections 3, 4 and 5 of the Essential Services Maintenance Ordinance 1 of 1960 were violative of fundamental rights guaranteed by clauses (a) and (b) of Article 19(1) of the Constitution. The Court (Constitution Bench) considered the Ordinance and held that Sections 3, 4 and 5 of the said Ordinance did not violate the fundamental rights enshrined in Articles 19(1)(a) and (b) of the Constitution.The Court further held that a perusal of Article 19(1)(a) shows that there is no fundamental right to strike and all that the Ordinance provided was with respect to any illegal strike. For this purpose, the Court relied upon the earlier decision inAll India Bank Employees' Assn.v.National Industrial Tribunal[AIR 1962 SC 171 : (1962) 3 SCR 269] wherein the Court (Constitution Bench) specifically held that even a very liberal interpretation of sub-clause (c) of clause (1) of Article 19 cannot lead to the conclusion that trade unions have a guaranteed right to an effective collective bargaining or to strike either as part of collective bargaining or otherwise.

14.InEx-Capt. Harish Uppalv.Union of India[(2003) 2 SCC 45] the Court (Constitution Bench) held that lawyers have no right to go on strike or give a call for boycott and they cannot even go on a token strike. The Court has specifically observed that for just or unjust cause, strike cannot be justified in the present-day situation. Take strike in any field, it can be easily realised that the weapon does more harm than any justice. Sufferer is the society ? the public at large.

15.InCommunist Party of India (M)v.Bharat Kumar[(1998) 1 SCC 201] a three-Judge Bench of this Court approved the Full Bench decision of the Kerala High Court [Bharat Kumar K. Palichav.State of Kerala, AIR 1997 Ker 291 : (1997) 2 KLT 287 : (1997) 2 KLJ 1 (FB) [full judgment reproduced in SCC at (1998) 1 SCC p. 202]] by holding thus: (SCC p. 202, para 3)

"There cannot be any doubt that the fundamental rights of the people as a whole cannot be subservient to the claim of fundamental right of an individual or only a section of the people. It is on the basis of this distinction that the High Court has rightly concluded that there cannot be any right to call or enforce a 'bandh' which interferes with the exercise of the fundamental freedoms of other citizens, in addition to causing national loss in many ways. We may also add that the reasoning given by the High Court, particularly those in paragraphs 12, 13 and 17 for the ultimate conclusion and directions in paragraph 18 is correct with which we are in agreement."

16.The relevant paragraph 17 of the Kerala High Court judgment reads as under:

"17. No political party or organisation can claim that it is entitled to paralyse the industry and commerce in the entire State or nation and is entitled to prevent the citizens not in sympathy with its viewpoint, from exercising their fundamental rights or from performing their duties for their own benefit or for the benefit of the State or the nation. Such a claim would be unreasonable and could not be accepted as a legitimate exercise of a fundamental right by a political party or those comprising it."

(B)There is no legal/statutory right to go on strike

17. There is no statutory provision empowering the employees to go on strike.

18.Further, there is prohibition to go on strike under the Tamil Nadu Government Servants Conduct Rules, 1973 (hereinafter referred to as "the Conduct Rules"). Rule 22 provides that "no government servant shall engage himself in strike or in incitements thereto or in similar activities". Explanation to the said provision explains the term "similar activities". It states that "for the purpose of this rule the expression 'similar activities' shall be deemed to include the absence from work or neglect of duties without permission and with the object of compelling something to be done by his superior officers or the Government or any demonstrative fast usually called 'hunger strike' for similar purposes". Rule 22-A provides that

"no government servant shall conduct any procession or hold or address any meeting in any part of any open ground adjoining any government office or inside any office premises ? (a) during office hours on any working day; and (b) outside office hours or on holidays, save with the prior permission of the head of the department or head of office, as the case may be".

(C)There is no moral or equitable justification to go on strike

19. Apart from statutory rights, government employees cannot claim that they can take the society at ransom by going on strike. Even if there is injustice to some extent, as presumed by such employees, in a democratic welfare State, they have to resort to the machinery provided under different statutory provisions for redressal of their grievances. Strike as a weapon is mostly misused which results in chaos and total maladministration. Strike affects the society as a whole and particularly when two lakh employees go on strike en masse, the entire administration comes to a grinding halt. In the case of strike by a teacher, the entire educational system suffers; many students are prevented from appearing in their exams which ultimately affects their whole career. In case of strike by doctors, innocent patients suffer; in case of strike by employees of transport services, entire movement of the society comes to a standstill: business is adversely affected and number of persons find it difficult to attend to their work, to move from one place to another or one city to another. On occasions, public properties are destroyed or damaged and finally this creates bitterness among the public against those who are on strike."

(emphasis supplied)

14. Thus, prima facie, we find that the noticed non-petitioners have flouted the law. Not only they could not have called for or incited others to go on a strike but they had been legally prohibited from acting in that manner, upon issuance of the order under Section 3 of the Act on 04.01.2023. As if by caveat, the noticed non-petitioners were specifically cautioned upon judicial cognizance taken by this Court well before the offending call for strike was issued by them on 16.02.2023. Prima facie, it not only appear that the noticed non-petitioners did not heed to the above order, they further appear to have acted in wholesome disregard of the orders passed by this Court inasmuch as despite service of notice (of these proceedings) through the Chief Judicial Magistrate, Lucknow, they chose not to appear before the Court and further chose not to inform the Court of any just grievance that may have existed with them, at that stage. Thus, for no rhyme and reason they failed to act within the ambit of law - by seeking lawful resolution of any just dispute that they may have claimed to exist. Prima facie, that act of defiance shown to the authority of law may be willful.

15. Even today upon repeated opportunities being granted, the noticed non-petitioners appear to have taken a stand to confront the rule of law by not offering any assurance to the Court that their act of calling the illegal strike would not be repeated. That despite their first statement offering regret at having caused inconvenience and disturbance to the citizens. Here it may be noted, a clear suggestion was given to the learned counsel appearing for the noticed non-petitioners and those who are present in person, in that regard. Twice opportunity was offered to them to rethink their stand and to come back after some time. On all occasions when the matter was taken up, the noticed non-petitioners remained evasive and adamant. They did not make any commitment to the Court to refrain from repeating the illegal act of going on strike again.

16. Present is a case where sufficient opportunities, warnings and hints were given to the noticed non-petitioners to not go on strike. They were reminded of the consequences of the same, yet they chose to go on strike by violating the orders and expectation to act lawfully, expressed by this Court. Their act may be a sort of gross contempt of this Court and the orders passed by it. At this stage, this Court is refraining from initiating such action, but if the conduct of the noticed non-petitioners and their collaborators remains the same, under that compelling circumstance, that drastic action may have to be taken by this Court, to ensure the rule of law.

17. The noticed non-petitioners and their collaborators are also the part of the society. They too have families. Their children and parents like many others, at times require urgent medical treatment. Also, children whether studying for any important Board or other examination or whether preparing for any important competitive examination to secure a job, were suddenly disrupted in their studies. They could not fully use their communication and internet facilities upon power outage caused by the strike. All these important facts have been completely ignored knowingly by the noticed non-petitioners while calling for the strike - a man made disaster.

18. At present, prima facie, we find no substance in the oral defence being attempted by the noticed non-petitioners that no heed was paid by the Government and the Department while considering their demands. Howsoever genuine the demand may be claimed and preserving their right to negotiate on that, they were not entitled to go on strike and to paralyze the entire electricity distribution system. There are certain fields in life where one cannot even think to go on strike as may discontinue the supply of essential commodities. Demands can be settled or fulfilled through discussions and negotiations or by showing protest in some other way and same may remain unfulfilled, but life cannot be brought to a stand still to seek such selfish goals. If allowed that would amount to holding the society to a ransom. Career of students cannot be put at risk. If a student looses a single mark in his examination, he cannot be compensated. These days, for each mark students are fighting and devoting themselves to hours of studies. We cannot allow any one to play foul with the career and future of the innocent and the young.

19. During COVID-19 pandemic, the country faced and suffered immense loss of human lives. Everybody appeared to have understood the value of life, but it appears that the noticed non-petitioners and their collaborators are either still unaware about the adverse consequences of their actions to the human life, or have forgotten that unfortunate experience.

20. Surprisingly, when this Court queried, the noticed non-petitioners present in the Court and asked if they would give positive assurance against going on strike again, their attitude appeared to be adamant. That indeed is a very sorry state of affair.

21. Prima facie, the noticed non-petitioners and their collaborations may have exposed themselves to legal action, including contempt of Court proceedings - for such grossly illegal and negligent act. In any case, the Court also intends to fix responsibility for losses, that may have been suffered by the common citizenry and also institutions and establishments for reason of the illegal acts of the non-petitioners.

22. Before notice is issued and that liability may be fixed and recovery directed to be made from the erring individuals, a proper estimation of the same is required. Accordingly, the State is directed to file a proper affidavit to categorise the areas and sectors where such losses may have occurred and to offer a fair estimation of the same based on objective assessment based on power outages suffered. It may also bring on record details of all employees unions and individuals who may have collaborated with the noticed non-petitioners in the conduct of the illegal strike. Those may then be also held responsible for the losses, after due opportunity.

23. As an interim measure, it is provided, one month salary payment and/or pension payment, as the case may be - of the noticed non-petitioners be withheld, pending further orders of the Court. It may serve a token warning to them and others who may be intending to embarrass or outrun the rule of law. However, no final opinion as to confiscation of that amount (thus withheld), has been formed. That may be done only after exchange of affidavits and after hearing the noticed non-petitioners. Considering the difficulties and inconveniences as also disruption of essential services that resulted from the earlier prima facie illegal acts of the noticed non-petitioners and in view of the position that has emerged thereupon, the said noticed non-petitioners and their collaborators are cautioned to remain mindful of the serious concern expressed by the Court.

24. Thus, no such act may be repeated as may force the Court to take stern action against all who may be involved. Repeat actions will invite consequences in law. Innocent citizens cannot be inconvenienced and functioning of various essential institutions such as hospitals, banks etc. cannot be disrupted. However, this order may not hinder any discussions, meetings and negotiations between the employees Union etc. on one hand and their employees and government on the other. Those may go on as before.

25. List this matter on 24.04.2023. If however any urgent circumstance arises, the parties are at liberty to mention the matter.

Order Date :- 20.3.2023

Abhilash

.

(S. D. Singh, J) (Pritinker Diwaker, ACJ)