Essential Services Maintenance Act -ESMA
Essential Services Maintenance Act (ESMA) is an act of Parliament of
India which was
established to ensure the delivery of certain services, which if obstructed would
affect the normal life of the people. This include services
like public transport (bus services), health services (doctors and hospitals).
·
The ESMA is a law made by the Parliament of India under List No. 33 in Concurrent List of 7th Schedule of Constitution
of India.
·
For any violations in specific regions, State governments alone or together with other
state government can enforce their respective act.
·
Each state has a separate Essential Services Maintenance
Act with
slight variations from the central law
in its provisions.
·
Hence, in case the nature of strike disrupts only a state or states, then the states can invoke it. In
case of disruption
on a national scale, especially railways, the ESMA 1968 can be invoked
by central government.
·
Although it is a very powerful law, which has potential to suppress
genuine demands of employees, its execution rests entirely on the discretion of
the State government in normal circumstances.
·
The
law has seen little use in India, with many strikes by public transport providers or
staff, doctors or Government employees, being continued for weeks without ESMA
being invoked by the Union Government or the State Government.
·
There have been instances of citizens approaching courts for
implementation of ESMA, and the executive being forced by court orders to
declare ESMA over a strike and the strikes being called off overnight
·
Karnataka
govt enacted Karnataka Essential Services Maintenance Act and
was in force since 16 April 1994. The life of the act was ten years as per section 1(3)
and it lapsed
on 15 April 2004
·
The
Government of Karnataka has threatened to invoke the act multiple times since
then even though the act had lapsed in 2004. However, the state has
the power to impose the central law without modification unless it
enacts a new law suitable for it.
CONTENTS
·
Short title, extent, commencement and duration
·
Definitions
·
Power to prohibit strikes in certain employments
·
Dismissal of employees participating in illegal
trikes
·
Penalty for illegal strikes
·
Penalty for investigation , etc
·
Penalty for giving financial aid to illegal strikes
·
Power to prohibit lock-outs in certain
establishments
·
Power to prohibit lay-off in certain establishments
·
Power to arrest without warrant
·
Offences to be tried summarily
·
Act to override other laws
·
Amendment of Act 41 of 1980
·
Repeal and saving
·
An Act to provide for the maintenance of certain essential services and the normal life of the
community.
·
BE it enacted by Parliament in the Thirty-second Year of the Republic of
India
·
Sections 8 and 9 shall come into force at once and the remaining
provisions of this Act shall be deemed to have come into force on the 26th
day of July, 1981.
What are Essential Services?
· any postal, telegraph or telephone service
· any railway service or any transport service for the carriage of passengers
or goods by air, land or water
· any service connected with the operation or maintenance of aerodromes,
or with the operation, repair or maintenance of aircraft, or any service in
the International
Airports Authority of India constituted under section 3 of
the International Airports Authority Act, 1971;43 of 1971).
· any service, in or in connection with the working of, any major port,
including any service connected with the loading unloading, movement or storage of goods in
any such port;
· any services connected with the clearance of goods or passengers through the
customs or with the prevention of smuggling
· any service in any establishment of, or connected with, the armed forces of the
Union or in any other establishments of installations connected
with defence
· any service in any establishment or undertaking dealing with the production
of goods required for any purpose connected with defence;
· any service in, or in connection with, the working of any undertaking
owned or controlled by the Central Government being an undertaking engaged in
the purchase, procurement, storage, supply or distribution of foodgrains;
· any service in, or in connection with the working of any system of public conservancy, sanitation or
water supply, hospitals or dispensaries, in any Union territory,
cantonment area or undertaking owned or controlled by the Central Government
· any service in connection with or in relation to banking
· any service in any establishment or undertaking dealing with the production, supply or distribution of
coal, power, steel or fertilizers;
· any service in any oilfield or
refinery or in any establishment or undertaking dealing with the production, supply or distribution
of petroleum and petroleum products;
· any service in any mint or
security press;
·
any service in
connection with the affairs of the
Union, not being a service specified in any of the foregoing
sub-clause;
·
any other service connected with matters with
respect to which Parliament has power to make laws and which the
Central Government being of opinion that strikes therein would prejudicially affect the maintenance of any
public utility service, the public
safety or the maintenance of supplies and services necessary for the
life of the community or
would result in the infliction grave hardship on the community
, may, by notification in the Official
Gazette, declare to be an essential service for the purposes of this Act;
What is meant by STRIKE
It means the
cessation of work by a body of persons
while employed in any essential service
·
refusal to work overtime where such work is necessary for the maintenance of any essential service;
·
any other conduct which is likely to
result in, or results in, cessation or substantial
retardation of work in any essential service.
3-Power to prohibit strikes
in certain employments
(1) If the central government is satisfied that in the public interest it
is necessary
or expedient so to do, it may,
by general or special
Order , prohibit strikes
in any essential service specified in the order.
(3) An
order made under sub-section (1) shall be in force for six months only
,but the central government may, by a like order , extend it for
any period not
exceeding six months if it is satisfied that in
the public interest it is necessary or
expedient so to do.
(4)(a) no person
employed in any essential service to which the order
shall go or remain
on strike;
(4)(b) any strike declared or commenced whether before or after the issue
of the order , by persons employed in any such
service shall be illegal.
4. Dismissal of employees
participating in illegal strikes
Any person :
(a) Who commences a strike which is illegal under this Act or goes or remains on,
or otherwise takes
part in, any such strike ; or
(b) who instigate or incites
other persons to commence , or go or remain on ,
or otherwise take part in , any such strike,
shall be liable to disciplinary action (including
dismissal ) in accordance with the provisions as are applicable
for the purpose of taking such disciplinary action (including
dismissal ) on any other ground under the terms and conditions of
service applicable to him in relation to his employment.
(1)Any
person who commences a strike
which is illegal under this Act or goes or remains on , or otherwise takes part in , any such
strike shall be punishable
with imprisonment for a term which may extend to six months, or with fine
which may extend to
one thousand rupees , or with both.
6.Penalty for instigation ,
etc
(1) Any
person who incites other persons to take part in, or
otherwise acts in furtherance
of , a strike which is illegal under this
act shall be punishable with imprisonment for a
term which may extend
to one year, or with fine which may
extend to two thousand rupees
, or with both.
7. Penalty for giving
financial aid to illegal strikes
Any
person who knowingly
expends or supplies any money in
furtherance or support
of strike which is illegal under this act shall
be punishable
with imprisonment for a term which may extend to one year, or with
fine which may extend to two
thousand rupees , or with both.
8.Power to prohibit
lock-outs in certain establishments
(1) If the central government is
satisfied that in the public interest it is necessary or
expedient so to do , it may by general or special order, prohibit lock-outs
in any establishment
pertaining to any essential service specified in
the order.
(3) An order
made by sub-section (1) shall be in force
for six months only, but the central government may, by a like order extend it
for any period not
exceeding six months if it is satisfied that in the
public interest it is necessary so to do.
(4) Upon the issue of an order under,
sub-section (1),
(a) no employer in
relation to an establishment to which the order
applies shall commences
any lock-out;
(b) any lock-out declared or commenced
whether before or after
the issue of the order by
any employer in relation to an establishment
to which the order applies
shall be illegal .
(5)
Any employer
in relation to an establishment who commences
continues or otherwise acts in furtherance of a lock-out
which is illegal under this section, shall be punishable with imprisonment
for a term which may extend
to six months , or with fine which may extend to one thousand
rupees or with both.
9.Power to prohibit lay-off in certain
establishments
(1) If the central government is
satisfied that in the public
interest it is necessary or expedient so to do ,
it may , by general
or special order, prohibit
lay-off, on any ground
other than shortage of
power or natural calamity, of any workman
(other than a badli
workman or a casual
workman ) whose name is borne on the muster rolls of
any establishment pertaining to any essential
service specified in the order.
(3) A n order
made by sub-section (1) shall be in
force for six months only, but the central government
may, by a like order ,extend
it for any period not exceeding six months
if it is satisfied that in the public interest it is
necessary or expedient so to do.
(4) Upon the issue of an
order under sub-section (1),-
(a) no employer in relation to
an establishment to which the order applies shall lay-off or continue the lay-off
and any laying off
or continuation of laying-off shall unless
such laying-off or continuation of laying-off is
due to shortage of power or to natural
calamity , be illegal;
(b) a workman whose laying-off is illegal
under clause (a) shall be
entitled to all
the benefits under any law for the time
being in forces as if he had not been laid-off.
(5)
Any employer in relation to an establishment who lays
off or continues the laying off of any workman shall,
if such laying-off or continuation of laying-off
is illegal under this section, be punishable with imprisonment
for a term which may extend to six months , or with fine which may
extend to one
thousand rupees, or with both.
10. Power to arrest without
warrant
Notwithstanding
anything contained in the code of criminal
procedure , 1973, any police officer may
arrest without warrant any person who is
reasonably suspected of having committed
any offence under this Act (2 of 1974).
11. Offences to be tried
summarily
Notwithstanding
anything contained in the code of criminal procedure , 1973, all
Offences under this Act shall be tried in a summary way by
any metropolitan
magistrate , or any
judicial magistrate of the first class
specially empowered in this behalf by
the state government
The
provisions of this Act and of any order
issued thereunder shall effect notwithstanding anything inconsistent
therewith contained in the industrial
disputes Act,1947,(14 of 1947) or any other law for the time
being in force.
The
Essential Services Maintenance Ordinance , 1981, is here by
repealed.
Invocation of ESMA since 2015
UP Government Invokes ESMA, Bans Strike In State Universities and
affiliated colleges Till June 2019
The
higher education regulator University Grants Commission or UGC has, through an
order dated 12th September, 2018, directed to constitute a working group to
study the Delhi University Act with 'the perspective of relevance and
uniformity in today's context including bringing Exam/Teaching/ Learning/Evaluation
under Act of the Essential Services Maintenance Act (ESMA)'.
Responding
to a circular sent by University Grants Commission (UGC) to the University,
Delhi University Teachers Association (DUTA), said the circular is exploring
the 'possible alterations that may dissolve the University's institutional
autonomy and suspend the democratic rights of its academic community'.
'To
try and bring university teachers under ESMA is a draconian and foolish move as
teachers are not mere service providers. Teachers are creators and
disseminators of knowledge and informed opinion. The Government's move to curb
the democratic rights of teachers through ESMA and CCS indicates desperation
and nervousness about introducing changes that cannot stand up to academic
scrutiny," a statement from the Teachers Association said.
ESMA TO PUT AN END TO STRIKE BY
NURSES IN DELHI
Around 80 nurses of
Ram Manohar Lohia Hospital were detained by Delhi Police for going ahead with
the strike.The agitation has badly hit over 40 central and state government
hospitals in Delhi, at a time when dengue and chikungunya cases are soaring.Delhi
Lt Governor Najeeb Jung invoked the ESMA against the striking nurses, terming
the agitation completely illegal.The nurses' agitation is across the country,
and affected hospital services badly.The Health Ministry said that more states
are likely to invoke the ESMA act by Saturday, depending on the condition of
hospitals.
Under ESMA, police can arrest anybody for
violating the act's provisions without a warrant.According to the All India
Government Nurses Federation (AIGNF), the core demands include that the entry
pay grade for staff nurses be enhanced to ₹ 5,400 from the
existing ₹ 4,600 and nursing allowance be raised
to ₹ 7,800.Risk and night duty allowances should be given to all
nurses. Asked if they were not concerned at striking work at a time when dengue
and chikungunya patients were flooding hospitals, Ramchandani said: "How
does it matter? Even if we are on duty there are hardly any facilities for the
patients. There are no beds, no facilities, so what difference is it going to
make even if we return to duty. Government cannot blackmail with the name of
dengue and chikungunya."
According to Manchandani, there is a feeling
among officials that all the good and efficient nurses move out of India in
pursuit of better pay scale and those left behind in India are of inferior
quality, who can be minimally paid.The ministry urged the nurses to get back to
work and continue the talks.However, the nurses federation said they have not
received any direct communication from the ministry on the issue.
Resident
Doctors in Delhi Call Off 2-day Long Strike
Doctors in the national capital
called off their two-day long strike tonight, hours after Delhi government
invoked Essential Services Maintenance Act (ESMA) against them to normalise the
functioning of the hospitals run by it.
Earlier in the day, Delhi government invoked ESMA to force an end to the strike
which had crippled healthcare services in government-run hospitals across the
city.
The doctors were on strike since yesterday pressing for hike in salaries as
well as seeking government's intervention in other issues.
Chief Minister Arvind Kejriwal had yesterday said that government had accepted
all the demands of the doctors and that there was no need for a strike.
Mr Jain had earlier said that the government "accepted 19 demands"
put forth by the striking doctors during parleys between the two sides."During
the meeting, they made five more demands which, too, were accepted and (we)
also circulated the minutes of the meeting," added Mr Jain.
Bus Drivers Call Off Strike After
Delhi Government Evokes ESMA
Drivers of the Delhi Transport
Cooperation (DTC) today called off their strike protesting the killing of a
fellow driver by a biker after the AAP government imposed the Essential Service
Maintenance Act (ESMA).
Delhi Chief Minister Arvind Kejriwal today met the family members of the
deceased driver and promised ₹ 10 lakh to his family and job to one
of the members.
The calling off of the nearly two-day-long strike came as a breather for over
40 lakh people who were left stranded on Monday after DTC's 4,705 buses went
off the roads.
"It has been notified that the Haryana Essential Services Maintenance Act
(HESMA) 1974 is imposed in NCT (National Capital Territory) of Delhi which
prohibits the strike of DTC employees in NCT of Delhi for a period of six
months," a government statement said.
Delhi govt invokes ESMA in view of Trade Unions strike
In view of today's nation-wide strike
called by a number of trade unions, Delhi government on Monday clamped the
Essential Services Maintenance Act (ESMA) on all power companies in the city to
ensure that there is no disruption in electricity supply in the national
Capital.
"Delhi government has clamped ESMA on all power companies including
generation, distribution and other power companies in view of the proposed
strike on Tuesday," a statement issued by the Chief Minister's office
said.
It said the ESMA would remain in force for next six months. Banking, insurance
and industry are likely to be affected today with all major unions calling a
countrywide strike to protest the "anti-labour" policies of the
government, rising prices and disinvestment of PSUs. In Delhi, autos and taxis
have gone off the road from midnight.
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