In the High Court of Judicature at Madras W.P.No. 31369 of 2019 Petitioner Dr. P Balakrishnan Respondents The Government of Tamil Nadu & ors. Date of Judgement 28th February 2020 Bench The Honourable Mr.Justice N.Anand Venkatesh
The petitioners were working as Senior Resident/Assistant Professor etc under various departments which were under the control of the Directorate of Medical Education. The Doctors working in the Government Hospitals has various demands for a long period of time, related to revision pay, promotions etc. A meeting was held with various ministries head in which the department heads brought up the long-standing issues. After the deliberations, the Government agreed to form a working group to make a report with the factual status and recommendations to solve the grievances.
However, as there was no progress, they decided to raise their demands by calling an agitation. A PIL was filed to ensure that the doctors do not go on a strike. The learned Advocate General who represented the government stated that a meeting will be held on 8th January 2019 and the developments will be reported to the court.
As there was zero progress, all the Associations came together and formed the “Federation of Government Doctors Association” and went on an agitation. They gave a representation to the Government to settle the dispute, and if they are not settled by 16th July 2019, they will go on a strike for two hours on 18th July 2019.
A meeting was conducted and since the grievances were not addressed, the Associations started the Agitations which escalated every day. The Chief Minister, the Minister for Health and Family Welfare and also the Health Secretary asked the doctors to stop the agitation and assured that the demands will be looked into. In lieu of this the Associations dropped the agitations.
At this stage, the petitioners were given charge memos and transfer orders. The same have been challenged by the petitioners in this writ petition.
- Whether there exists a right with the doctors to go on strike in order, so that their demands are met with?
- Whether the doctor’s going on a strike is due to the inaction of the State Government and such an extreme step could have been avoided if proper steps were taken for addressing the long-standing issues of the doctors?
- Whether the order of transfer and charge memos are in the nature of punishment or malafides?
- Whether the court is inclined to interfere with transfer orders and the charge memos?
Arguments for the Petitioner
- The petitioners contended that the charge memos and transfer order were malafides and were punitive in nature. Out of the 18,000 doctors who went on strike, the doctors who were identified as office bearers were given these orders.
- The petitioners were under the Control of Directorate of Medical Education, and these orders were passed by the Director of Medical and Rural Health services, thus these orders do not have any jurisdiction.
- The doctors falling under one Directorate cannot be transferred by another and this itself shows the hasty manner of passing the order and intention to punish the doctors.
- These orders are also against public interest as these doctors are being transferred to areas with no work or their experience is going to a waste. Also, some transfer orders were later withdrawn for unknown reasons.
- The Government should be a model employer and should not take vindictive actions against employees for demanding rightful claims.
Arguments for the Respondents
- The Respondents contented that whatever might be the reasons, the doctors are not expected to go on a strike as this will have an impact on the life of the citizens.
- The Government in order to take control, took an extreme step. There are certain administrative decisions which cannot be questioned in the court by filing writ petitions.
- The petitioners can submit a reply, on basis of which the department will take a decision. The attitude of the doctors will set a dangerous precedent, if not curtailed and the hospitals will also not be able to run smoothly.
- Judicial review is only applicable to transfers if there is no jurisdiction or the same amounts to punishment or is tainted with malafides. Since, in these they are missing the court cannot interfere.
- They also contended that transfer between the Directorates is based on need and there is no restriction for the same.
- Timely and quality healthcare is an essential and integral part of right to health, which can be seen from Article 25 of the UDHR which especially mentions that it is a part of the right to health and well-being of a person. The same has also been reiterated in the case of Chameli Singh v. State of U.P.
- In the case of Navtej Singh Johar v. Union of India the Supreme Court held under Art 21 of the Indian Constituion, the right to medical care was an important aspect.
- Employees have no fundamental right to go on a strike as held in the case of T.K. Rangarajan v. Govt. of T.N.
- The damage which will be caused if doctors go on strike sometimes can be irreversible. The judicial opinion in the country is that doctors going on strike is ex-facie, illegal and without any justification. For any circumstances the doctors do not have the right to go on a strike or boycott.
- The entire incident could have been avoided if the government was proactive to look into the demands of the doctors. In the view considered by the court, the inaction by the State Government, led the Doctors to go on the strike.
- The doctors went on strike after their demands have not been met on 25th January 2019. This was a wide scale strike in which the allegations were hitting the headlines every day. On 30th October 2019 the Government asked the doctors to come back to work stating that their demands will be met, following which the doctors resumed work as the announcement came from the Hon’ble Minister for Health and Family Welfare.
- After this however the doctor and office bears of the Association who took charge of the agitations were given charge memos and transfer certificate. It is clear that there exists a malafides and are punitive in nature. The action of the Government was not to control the doctor but was a warning in order to control the agitations.
- The government should have been a model employer and seen that solutions to the demands are made, but instead they showed their might.
- Thus, the charge memos and transfer order are clearly malafides and are given with the intention to punish the heads of the agitation. The transfer orders are recalled in the next transfer counselling and the petitioners will be restored to their original position. Thus, the writ petitions are allowed.
“The views of the authors are personal“
 (1996) 2 SCC 549
 (2018) 10 SCC 1
 (2003) 6 SCC 581