D B BINU Vs. STATE OF KERALA

JUDGEMENT

(1.) These writ petitions under Section 226 of the Constitution of India challenge the constitutional validity of Section 6 of the Kerala Essential Services Maintenance Act, 1994 (hereinafter referred to as KESMA ). The petitions have been brought by different organizations representing government servants and individual government servants. Since they raise the same question, they are heard together and disposed of by a common judgment.

(2.) On account of the financial stringency faced by the State Government, the State Government by an order dated 16-01-2002 curtailed, modified and postponed some of the benefits available to government servants. There was wide spread opposition to this move of the Government and different organization representing government servants threatened to go on strike. Anticipating such a strike, the State Government issued a notification dated 1st February, 2002, in exercise of its powers under Section 2(1) (a) of KWAMA declaring the services connected with 15 Departments to be essential services for the purpose of KESMA. By another notification of the same date, in exercise of its powers under Section 3(1) of KESMA, the Government of Kerala being satisfied that it was necessary so to do, prohibited strikes in the services declared as essential services by the earlier notification. The strike of the Government servants commenced on 6th February, 2002, continued for about a month and was finally withdrawn with effect from 9th March, 2002. Scheme of KESMA:

(3.) As indicated in the preamble to the Act, the Act is intended to provide for the maintenance of certain essential services and the normal life of the community in the State of Kerala . Section 2(1) (a) (i) of KESMA defines the expression essential Service , interalia, to mean any service under the Government which the Government may by notification declare to be an essential service for the purpose of the Act. Section 2(b) defines strike as cessation of work by a body of persons employed in any essential service acting in combination or a concerted refusal or a refusal under a common understanding of any number of persons who are or have been so employed to continue to work or to accept work assigned . There is certain inclusive definition with which we are not concerned. Section 3 empowers the Government, if satisfied that it is necessary and expedient so to do in public interest, by general or special order, prohibit strikes in any essential service specified in the order. Such an order is required to be published in an appropriate manner and shall be in force for a period of three months only. The Government, however, has the power to extend such an order for a further period not exceeding three months, if satisfied that it is necessary or expedient to do so in public interest.