The Essential Services Maintenance Act (ESMA Act) is an act of the Indian Parliament enacted to assure the supply of certain services that, if impeded, would harm people’s daily lives. It includes public transportation (bus services) and health care (doctors and hospitals).
In 2016, the Indian Parliament passed ESMA under List 33 of the Concurrent List of the 7th Schedule of the Constitution. As a result, it preserves national consistency by providing the bare minimum of vital services across the country.
State governments, acting alone or collaborating with other state governments, can enforce their respective acts in specified territories.
Each state has its own Essential Services Maintenance Act, with provisions that differ slightly from the federal statute. As a result, if the nature of the strike disturbs only one or more states, the states can initiate it. In a nationwide interruption, particularly involving railways, the central government may activate the ESMA 1968.
What are the essential services under ESMA Act?
Essential services get defined as any service for which the Parliament has the jurisdiction to establish legislation or the government believes that its cessation would jeopardise the preservation of life-sustaining supplies and services. The following are examples of essential services:
- some service for the mail, telegraph, or telephone
- any service relating to aircraft operation or maintenance, or aircraft operation, repair, or maintenance
- any railway service, or other transport services authorised by Parliament to make laws for the transportation of passengers or goods by land, water, or air
- any operation relating to the clearance or prevention of smuggling of goods or passengers
- any loading, unloading, transportation, or storage service in any port;
Which services fall under this category?
Services relating to public conservation, sanitation, water supply, hospitals, or national defence are essential.
Any establishment involved in producing, delivering, or distributing petroleum, coal, electricity, steel, or fertiliser also gets classified as providing essential services. Aside from that, any banking-related service may be subject to Esma.
This statute also applies to communication and transportation services and any government initiative relating to the acquisition and distribution of food grains. Employees are not even allowed to refuse to work overtime if necessary to maintain any of the critical services.
What is the Essential Commodity Act?
Essential Commodities Act grants the government authority over the production, supply, and distribution of specific goods. The legislation ensures that supplies are maintained and/or increased and distributed fairly and at a reasonable price. The act is also meant to combat unethical business activities such as hoarding and black-marketing.
Applicability of ESMA Act
Each state in the Union of India has its own State Essential Services Maintenance Act, with slight differences in its provisions from national legislation. In India, the Act has not been frequently used, and several strikes have been ongoing for a long time without the invoking ESMA by the Union or State governments.
Citizens have petitioned courts in issues involving the execution of the ESMA, and court decisions have caused the administration to proclaim ESMA over a strike and strikers to get discharged overnight.
While ESMA, 1968 is a central piece of law, certain states have chosen to create state legislation, such as:
- Rajasthan passed the law as RESMA (1970);
- The Maharashtra Essential Services Maintenance Law was implemented in the state of Maharashtra. Maharashtra Essential Services Maintenance Act in 2017, and Andhra Pradesh established the Andhra Pradesh Essential Service Maintenance Act in 1971.
- The Kerala Maintenance Act of Essential Services got passed in 1994. In Kerala, this law has been in effect since 1994. The terms of the legislation from the central act differ slightly, as is the typical rule. Before this statute, there was the Kerala Service Maintenance Order of 1993.
The Maharashtra Essential Services Maintenance Act, 2011
MESMA Act No. 12 of 2012
An act to provide for the sustaining of certain essential services and the regular life of the community, as well as things related to or incidental to those services and the community’s normal existence.
Whereas it is necessary to provide the maintenance of certain vital services and the normal life of the society and to provide for things connected with or incidental to it, the following gets enacted in the Sixty-second Year of the Republic of India:
- Short title, scope, start, and end date:
- The Maharashtra Essential Services Maintenance Act, 2011
- The [State of Maharashtra] is included.
- It shall take effect on the date that the State Government may specify by announcement in the Official Gazette, and shall cease to have effect five years after that date, with the exception of items done or neglected to be done before that day. On the termination of operation of this Act, Section 7 of the Bombay General Clauses Act, 1904, will operate as if it had been repealed by a Maharashtra Act.
- Definitions: – “Essential service” means unless the context dictates otherwise, –
- “Essential service” means
- Any mode of transportation for the carrying of persons or commodities by land or water over which the State Legislature has legislative authority;
- Any service related to the delivery of gas, milk, water, or electricity over which the State Legislature has legislative authority;
- Any service related to maintaining public health and sanitation, such as hospitals and clinics;
- Any official position, post, or job connected with the State’s activities, including those assigned to the secretarial staffs of both Houses of the State Legislature, as well as officers and servants of the High Court;
- Any function or post connected with the local government’s business;
- Any other service, position, or type of employment related to topics over which the State Legislature has legislative power, and when the State Government believes that a strike in such service, post, employment, or class thereof would jeopardise public safety or the provision of essential supplies or services to the community, or would cause grave hardships to the community, and which the State Government has determined.
- A “strike” is defined as a coordinated stoppage of work by a group of people engaged in critical service, or a concerted refusal, or a refusal under a shared understanding, by a group of people hired to continue working or accept work, and includes:
- refusing to work overtime unless required for the continued operation of a critical service;
- any other behaviour that is likely to cause, or does cause, the stoppage or significant delay of employment in any essential service;
- Terms and phrases not specified above but defined under the Industrial Disputes Act, 1947, will have the significance accorded to them in that Act in sections 5 and 6.
- “Essential service” means
- Notification of each House of the State Legislature: –
- If a notice is issued under subclause (vi) of clause (a) of section 2, it must be brought before each House of the State Legislature immediately after it is issued. It is now in session or will be on the first day of the next session of the House, if it is not in session, it shall cease to operate forty days after it is placed or from the State Legislature’s re-assembly, except before the expiry of forty days from the date of its being so, as the case may be.
- When a notice ceases to operate as a result of or pursuant to subsection (1), the cesser is without prejudice to anything done or failed to get done before the cesser.
Explanation: If the Houses of the State Legislature are called to reassemble on separate dates, the forty-day term begins on the later of those dates.
- Authority to prohibit strike action in certain occupations: –
- If the State Government gets convinced that it is necessary or expedient to do so in the public interest, it may, subject to the requirements of subsection (5), ban strike in such essential service by general or special order, beginning on the date stated in the order.
- An order issued under subsection (1) must get published in the manner determined by the State Government to be most effective in bringing the order to the attention of those affected by it.
- An order made under sub-section (1) is in effect for six months from the date specified therein. But the State Government may, If it is satisfied that doing so is necessary or expedient in the public interest, it may extend it for another six months by a similar order published in the same manner and subject to the provisions of subsection (5).
- Upon the issuance of an order according to subsection (1) or (3),
- No one working in any essential service covered by the order may strike or stay on strike;
- Any strike proclaimed or started by anyone engaged in such service is illegal, whether before or after the order’s issuance.
- No order may be issued under section (1) or (3) in respect of-”
- Unless the Speaker of the Legislative Assembly and the Chairman of the Legislative Council specifically request it, personnel appointed to the secretarial staff of the Houses of the State Legislature;
- Officials and servants of the High Court, unless the High Court Chief Justice requests it.
- Authority to prevent lockouts in specific establishments: –
- If the State Government determines that it is necessary or expedient to do so in the public interest, it may issue a general or special-order prohibiting lockout in any establishment relevant to any essential service indicated in the order.
- Any framework of laws according to paragraph (1) published in the manner determined by the State Government to be most effective in bringing the order to the attention of those affected by it.
- An order made under sub-section (1) is in effect for six months only, but the State Government may, by a similar order, extend it for another six months if it gets convinced that it is essential in the public interest.
- Upon the issuance of an order according to subsection (1) or (3),
- No employer shall proclaim or begin a lockout concerning an enterprise to which the order applies;
- Any lockout proclaimed or started by any employer regarding an establishment to which the order applies, whether before or after the order’s issuance, is illegal.
- Any employer in respect to an establishment who begins, continues, or otherwise acts in support of a lock-out that is illegal under this section is subject to imprisonment for a term of up to six months, a fine of up to two thousand rupees, or both, if convicted.
- Power to prohibit lay-off in certain establishments: –
- If the State Government determines that it is necessary or expedient to do so in the public interest, it may issue a general or special order prohibiting the layoff of any workman whose name appears on the muster roll of any establishment providing any essential service specified for any reason other than a shortage of power or natural calamity.
- An order issued under subsection (1) must get published in the manner determined by the State Government to be most effective in bringing the order to the attention of those affected.
- An order made under sub-section (l) is only in effect for six months. Still, the State Government may extend it for another six months by issuing a similar order if it gets convinced that it is necessary or expedient to do so in the public interest.
- If an order gets issued under subsection (1) or (3),
- No employer shall lay-off or continue the lay-off of any workman whose name is on the establishment’s summon up roll unless such lay-off is due to a lack of power or natural calamity, and any trying to lay off or continued existence of laying off shall be illegitimate unless such laying off or continuation of laying off is due to a shortage of power or natural calamity.
- A worker whose laying off is unlawful under subsection (a) is entitled to all benefits provided by any legislation in effect at the time as if he had not been laid off.
- On conviction, any employer who lays off or continues to lay off any workman must be punished by imprisonment for up to six months or a fine of up to two thousand rupees, or both, if the laying off or continuing of laying off is illegal under this section.
- Penalty for an unlawful strike: – On conviction,
- any person who begins a strike that is illegal under this Act, or goes or remains on, or
- otherwise participates in any such strike,
will be punished with imprisonment for a term of up to one year, or a fine of up to two thousand rupees, or both.
- Penalty for instigation: – Any person who instigates or incites others to participate in, or otherwise acts in support of, a strike prohibited by this Act shall, on conviction, receive a period of imprisonment of not more than one year or a fine of not more than two thousand rupees, or both.
- Penalty for providing financial help to an illegal strike: – Any person who intentionally expends or donates money in furtherance or support of an unlawful strike under this Act will be sentenced to a year in jail or a fine of not more than two thousand rupees, or both, if convicted.
- In addition to disciplinary punishment, action under sections 7, 8, or 9 may be taken: – Any action taken under sections 7, 8, or 9 shall not impact and shall be in addition to any disciplinary action or consequence that may follow and to which any person may be due under the terms and conditions of his service or employment.
- Power to arrest without a warrant and non-bailable offences: –
- Notwithstanding anything in the Code of Criminal Procedure, 1973, any Police Officer shall arrest without the need for a warrant any person reasonably suspected of having committed any offence under this Act.
- All offences under this Act are not subject to bail.
- Other laws are to be overridden by this act: – Despite anything in the Bombay Industrial Relations Act, 1946, the Industrial Disputes Act, 1947, or any other legislation to the contrary, the statutory provisions, or any order issued under it, will apply.
Conclusion
The Essential Services Maintenance Act of 1968 is one of the essential legislations in the country for protecting the public interest. The federal government has considerable authority under ESMA Act to keep critical services for ordinary persons running smoothly. To avoid unwanted assaults, the Essential Services Maintenance Act (ESMA) gets used.
If employees from any important department join the strike and the government refuses to meet their requests for an end to the strike. Still, the workers do not; the government takes action against them under ESMA regulations. It gives the government the authority to prohibit strikes in some “important” businesses and require conciliation or arbitration. However, the definition of “vital services” differs from state to state. When a dispute develops, this Act provides legal means for disputing a judgement.