IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.07.2009 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR Writ Petition No.42633 of 2006 (O.A.No.487 of 1999) Tamil Nadu Government Employees Association, Nilgiris District rep. by its President, Mr.M.K.Sivadasan ... Petitioner Vs. 1.The Director, Medicine and Rural Health Services, Chennai-6. 2.The Joint Director Health Services, Uthagamandalam, Nilgiri District. ... Respondents Prayer: Writ Petition came to be numbered under Article 226 of Constitution of India by way of transfer of O.A.No.487 of 1999 from the Tamil Nadu Administrative Tribunal praying for a writ of Mandamus, to call for records relating to the impugned order of recovery issued by the second respondent in Na.Ka.No.7820/NC.3/98 dated -1-1999 and quash the same and pass such further or other orders. For petitioner : Mr. H. Adaikala Arockiaraj For respondents : Mr.S.Gopinathan, Additional Government Pleader O R D E R: The Tamil Nadu Government Employees registered Association is the petitioner, which representing the employees in Government Hospital, udagamandalam. Being agitated over the orders of transfer issued to two co-employees during the non-transfer period, about 61 persons including Male Nursing Assistants, Female Nursing Assistants, Health Assistants, Sanitary workers and others applied for mass casual leave and struck work on 2.1.1999. All these persons are governed by special rules for Tamil Nadu Basic Service Rules. Subsequently, they resumed for duty. By impugned order dated Nil of January 1998 the Joint Director of Health Services, Uthagamandalam, Nilgiris District directed recovery of one day pay from the salary of the above said 61 employees. 2. Assailing the impugned order of recovery Mr.H.Adaikala Arockiaraj, learned counsel for the petitioner submitted that the impugned order passed without giving any opportunity to the members to show cause, as to why one day pay should not be recovered by them is in violation of the the principles of natural justice. He also submitted that having received the leave application for casual leave, the competent authority ought to have either rejected or sanctioned the leave. It is also his further contention that even the reasons for recovery is not mentioned in the impugned order. Learned counsel for the petitioner further submitted that for participating in a lawful and peaceful agitation to express their grievances, the members of the Association, should not be penalised by recovery which amounts to a penalty and in such circumstances, atleast the members of the association ought to have been put on notice. 3. Based on the averments made in the counter affidavit filed by the Joint Director Health Services, Udhagamandalam, the second respondent, Mr. S.Gopinathan, Additional Government Pleader submitted that one Mr.Gurusamy, Cook was found to have involved in the theft of Diet articles at Government Hospital, Gudalur and he had to be transferred to a place where he could be Kept under constant surveillance. During the same time, another person Mr.D.Sagayanathan, Cook, Government Headquarters Hospital, udagamandalam was found to have indulged in an undesirable and unlawful activities, including creating communal tension. Both of them were transferred on administrative grounds. Mr. Gurusamy, Cook Government Hospital, Gudalur was transferred to Government Head Quarters Hospital, Udhagamandalam and Mr. D. Sagayanathan, Cook, Government Head quarters Hospital, Udagamandalam was transferred to Government Hospital Gudalur by the Joint Director of Health Services, Nilgiris. Aggrieved over the transfer of the above said persons, 61 employees belonging to Tamil Nadu Basic Service including Male Nursing Assistants, Female Nursing Assistants Sanitary workers etc., attached to various government hospitals in Nilgiris District suddenly struck work on 2.1.1999, causing inconvenience to the patients and hospital administration. 4. Learned counsel for the respondents further submitted that Government have issued orders in letter No. 67411/K/98-1/P&AR(k) Department, dated 17.11.98, regarding how the period has to be regulated, when Employees' Association participate in the strike. As per the instructions of the Government in letter No. 10564/K2/91-1 P&AR (per-K) department, dated 13.12.91, the period during which Government servants participate in strike or Demonstration or any other form of agitation, have to be treated only as unauthorised absence and they will not be entitled to pay and allowances for such unauthorised absence on the basis of the principle "No Work, No Pay". These instructions were also reiterated in another Government Letter Number 62864/K/98-1 P&AR (K) department dated 21.10.98. 5. Learned counsel for the respondents further submitted that above said Government instructions are in force from 1998 onwards and therefore government servants are bound by the instructions issued by the Government from time to time. It is also the case of the learned counsel for the respondents that no leave was sanctioned by the competent authority. The basic servants simply left the leave applications and participated in the agitation. Even otherwise mass Casual Leave cannot be sanctioned, as it would be amounting to recognising their unlawful activity if agitating over the transfer of few errant cooks. As per the government instructions regulating the period of unauthorised absence is on the principle of "no work no pay," no show cause notice is required. He further submitted that Mass Casual leave of the employees working in Hospitals would seriously affect the health care to be rendered by the government. For the above said reasons, he submitted that the writ petitioners Association is not entitled to expouse the cause of the members of the Association who had acted against public interest and that too, to protect two of the Cooks who had engaged in theft and other undesirable activities, respectively. Hence, he prayed for dismissal of the writ petition. 6. Heard the learned counsel for the parties and perused the materials available on record. 7. As per the Fundamental Rule 67, leave cannot be claimed as a matter of right when the exigencies of the public service so require. Discretion to refuse or to revoke leave of any description is reserved to the authority. It is seen from letter dated 17.11.1998 addressed to the Director of Medical services, Chennai, that earlier, the Service Association had participated in the strike held on 24.9.1998. In letter No. 105654/K2/91-1, dated 13.12.91 of the Secretary to Government, Personal and Administrative Reforms (Per.K) Department, Chennai-9 addressed to all the Secretaries to Government Madras, all Heads of Departments including the Collectors and District Magistrates, etc., instructions were issued by the Government to ensure that if the government servant under their control violates the Tamilnadu Government Servants Conduct Rules by participation in strike, Mass Casual Leave, Massfast etc. The period should be treated as unauthorised absence and that the government servant, is not entitled to pay for the period of absence. The said instructions are extracted hereunder: "I am directed to state that instructions have been issued to the Heads of Departments to ensure that the Government servant under their control violates the Tamilnadu Government Servants Conduct Rules by participation in strike, Mass Casual Leave, Massfast etc. It has also been brought to your notice that participation in demonstration and such other activities is against Rules 20, 22 and 22 A of Tamil Nadu Government servants Conduct Rules. 2.As per the existing orders in force, the participation of Government servants in strike or demonstration or any other form of agitation has to be treated only as unauthorised absence and they will not be entitled to the pay and allowances for such unauthorised absence of Govt. Servants in addition to initiating disciplinary action against them, their absence should be regulated only leave without salary. Further in such cases of violation of Government servants Conduct Rules, the authorities competent under Tamilnadu Civil Services (CCA) Rules should themselves initiate disciplinary action without awaiting further instructions of Government. 3. I am therefore, directed to request the Head of Departments to keep a close watch on the staff participating in strike, agitation etc. And initiate suitable action against them without awaiting further instructions from Government." 8. Subsequently the Government have issued another letter No.62864/K/98-1, dated 21.10.98, reiterating that the instructions issued in the earlier Government Letter dated 18.12.91, should be followed against the staff members who had gone on strike on 24.09.1998. Similar instructions were also issued by the Government in their letter No. 674111/K/98-1, Personal and Administrative Reforms (K) Department, dated 17.11.98, Chennai, addressed to the Directors of Medical Services, Chennai, to regulate the strike held on 24.9.98 as leave on loss of pay i.e. extraordinary leave on private affairs without pay and allowances under the principle of "No work No Pay". Based on the instructions stated supra, by the impugned order, the Joint Director has treated the strike period i.e. 24.9.98 as leave on loss of pay (i.e., extraordinary leave on private affairs without pay and allowances). It could be seen from the instructions of the Government issued from time to time, that for participation of Government servants in Strike or Demonstration or any other form of agitation, the period has to be treated as unauthorised absence and that the government servants are not eligible to pay and allowances on the principle of "No Work No Pay". It could be seen that in addition to the above, instructions were also issued to initiate disciplinary action against them. It is undesirable that the Government Servants, particularly working in Hospitals, which is an essential service, numbering 61 including Male Nursing Assistants, Female Nursing Assistants and Sanitary workers have indulged in Mass Casual Leave and struck work, ignoring the interest of many of patients treated in the Hospitals both as inpatients and outpatients. Needless to say that these male/female nursing assistants, Health Assistants assist the Nurses and Doctors in discharging their duties. And sanitary workers have to keep the hospital premises, particularly the toilets clean. Certainly, their services are incidental and ancillary to the main function of treating the patients. The reasons for transfer of the above two individuals are that they had indulged in theft of Diet articles at Government Hospital, Gudalore and created communal tension, besides indulging in undesirable activities are not disputed. For such type of persons, the members of the petitioners' Association ignoring the nature of their duties in the hospitals, have gone on Mass Casual Leave and struck work. They have simply ignored their public duties, ignoring the interest of many patients. 10. As the government servants are governed by the instructions issued by the government in the matter of regulating the period of unauthorised absence, during strike, demonstrations and agitations, the action of the second respondent in treating the period as leave on loss of pay cannot be said as arbitrary or irrational. Regulation of period of absence is not, on account of any disciplinary proceedings, and therefore no prior notice is required in cases where they indulge in strike. 11. In view of the above, the contention of the learned counsel for the petitioners that the members of the association should be put on prior notice, is rejected. There is no violation of principles of natural justice. Hence the writ petition is dismissed. No Costs. 20.07.2009 Index : Yes/No Internet: Yes/No aes To 1.The Director, Medicine and Rural Health Services, Chennai-6. 2.The Joint Director Health Services, Uthagamandalam, Nilgiri District. S.MANIKUMAR,J. aes W.P.No.42633 of 2006 20.07.2009