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5 TESMA sections challenged

By Our Staff Reporter

CHENNAI, FEB. 5. The Tamil Nadu Secretariat Association has challenged the Tamil Nadu Essential Services Maintenance Act in the State Administrative Tribunal and sought to declare five Sections of the amended Act unconstitutional.

The Tribunal Vice-Chairman, Justice I. David Christian, admitted the application, filed by the association secretary N. Asokan, and ordered notice to the Chief Secretary, returnable in eight weeks.

The applicant assailed the clauses giving retrospective effect to the Ordinance; the deeming provision that absence from duty in essential services during strike days be deemed participation and dispensing with individual notice and replacing it with publication of list of government servants dismissed en masse on noticeboard or in newspapers.

Sections 2-7 of were "omnibus provisions liable to be used arbitrarily and misused with mala fide intentions as is evident from First Information Reports" filed against government employees. "Section 7 coming into force with retrospective effect is bad in law in so far as the striking employees were not informed of the consequences before the commission of the act. It would be tantamount to punishing a person by ex post facto law and is violative of the spirit of Article 20 of the Constitution."

The deeming provision in the Section would "clothe the appointing authority with arbitrary and unbridled powers and would be used to victimise the employees for reasons unconnected with the strike." Describing the post-decisional hearing provided for in the amended Act as an "empty formality," Mr. Asokan said the hearing was confined to representations relating to absence due to bona fide reasons other than participation in strike and did not take into consideration other "mitigating circumstances." He alleged that the Act was enacted with a "mala fide intention to deny the collective bargaining power of employees and teachers," and added that the right to strike without notice in non-utility services and strike with notice in public utility services were recognised by the Industrial Disputes Act 1947.

Meanwhile, the Tribunal admitted scores of new applications from government employees dismissed under the TESMA. The judge ordered notices to the Government and a panel of judges, which heard the representations, returnable by February 16. He adjourned to February 11 a batch of applications, which had been admitted.

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