Essential services maintenance act
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Transcript of Essential services maintenance act
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ESMAESSENTIAL SERVICE MAINTENANCE ACT
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ESMA is an act established to ensure delivery of certain essential services, which if obstructed would affect the normal life of the community
It is a law made by the Parliament of India; but the discretion on execution of it mostly lies with the state governments
Extends to the whole of India except the state of Jammu and Kashmir
The essential services include postal, telegraph or telephone service, all transport services, health services among others
ESMA…
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It has the power to prohibit strikes in any essential service Upon issue of an order under this act, no person employed
in any essential service shall go or remain on strike Any strike declared before or after the issue of the order,
shall be deemed illegal Penalty for instigation of strike, giving financial aid for
strike Punishment in the form of imprisonment or fine The right to arrest without warrant
Salient Features of The Act
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A strike by 2000 resident doctors in New Delhi in June
2015 was called off after the invocation of the ESMA
as disruption of medical services was causing
inconvenience and hardship to the general public
In 2005, the Hyderabad government invoked the
ESMA against striking chemists since pharmacies are
an essential service
Examples of ESMA Being Evoked
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Karnataka Essential Services Maintenance
Act
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The Government of Karnataka enacted Karnataka Essential Services Maintenance Act in 1994 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
BACKGROUND
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The Government of Karnataka has planned to reintroduce ESMA with Karnataka Essential Services Maintenance Bill, 2009 which will be tabled in the winter session of the legislature
ESMA has been re-introduced in Karnataka effective from 09/06/2015
BACKGROUND CONTD…
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News Article Of Karnataka Essential Services Maintenance Bill, 2009 (by: Dr. Acharya)
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An Act to provide for the maintenance of certain essential services.
It enacted by the Karnataka State Legislature in the 64th year of the Republic of India.
THE KARNATAKA ESSENTIAL SERVICES MAINTENANCE ACT, 2013
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1. Short title, extent and commencement 2. Definitions 3. Power to prohibit strike in certain essential services 4. Penalty for illegal strike 5. Penalty for instigation 6. Penalty for giving financial aid to illegal strike 7. Action under sections 4, 5 or 6 in addition to other
disciplinary action 8. Power to arrest without warrant 9. Act to override other laws
SECTIONS
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This Act may be called the Karnataka Essential Services Maintenance Act, 2013.
It extends to the whole of the State of Karnataka. It shall come into force at once and remain in force
for a period of ten years.
Short Title, Extent And Commencement
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Essential service
Any service connected with production, generation, storage, transmission, supply or distribution
transport service for the carriage of passengers any other service or employment connected where laws are
applicable Government being of the opinion that refusal to work therein
would prejudicially affect the maintenance of any public utility services or the public safety or the maintenance of supplies and service necessary for the life of the community.
DEFINITIONS
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Government:
State Government
Strike
Cessation of work
Refusal to work overtime where such work is necessary
for the maintenance of any essential service
DEFINITIONS
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1. In public interest by general or special order2. An order made under sub-section (1) shall be
published in such manner as the Government consider best calculated to bring it to the notice of the persons affected by the order
3. under sub-section (1) shall be in force for one year, but the Government may, by a like order, published in the like manner, extend it for any period not exceeding six months
Power To Prohibit Strike In Certain Essential Services
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4. Upon the issue of an order under sub-section (1)(a) no person employed in any essential service to which
the order relates shall go or remain on strike; or (b) any strike declared or begun or continued, whether
before or after the issue of the order, by any person employed in any such service, shall be illegal.
Power To Prohibit Strike In Certain Essential Services
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At any time, be rescinded by the Government, but such rescission shall not affect the previous operation of such order or anything duly done or suffered there under, and shall not affect any obligation or liability accrued or incurred or any penalty or punishment incurred in respect of any offence committed against this Act before such rescission
Power To Prohibit Strike In Certain Essential Services
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Shall on conviction, be punished with imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both.
Penalty For Illegal Strike, Penalty For Instigation, Penalty For Giving
Financial Aid To Illegal Strike
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Any action taken against any person under sections 4, 5 or 6 shall not affect and shall, be in addition to, any other action of a disciplinary nature or any consequence which may ensue, and to which the person may be liable by or under the terms and conditions of his service or employment
Action Under Sections 4, 5 Or 6 In Addition To Other Disciplinary
Action
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1. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), any police officer may arrest without warrant any person who is reasonably suspected of having committed any offence under this Act.
2. All offences in this Act shall be non-bailable
Power To Arrest Without Warrant
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The provisions of this Act and any order issued there under shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force: Provided that the provisions contained in this Act shall not override any of the provisions of the Electricity Act, 2003 or rule or orders made thereunder.
Act To Override Other Laws
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This (Karnataka atyavasyaka sevegala nirvahana adiniyama,2013 ) is published in the official Gazette under clause (3) of Article 348 of the Constitution of India.
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EXAMPLES IN KARNATAKA
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State government of Karnataka invoked ESMA Against government doctors
Reason:- To prevent them from going on strike and also for failing to make alternative arrangements for patients in advance.
The court also said that doctors on government duty cannot go on strike and they would have to approach legal forums such as the courts for getting their grievances redressed if the government failed to honour their reasonable demands
High Court Pulls Up State, Doctors October 29, 2014 Published In THE HINDU News Letter.
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Public interest litigation was filed by Mr. Amrutesh against doctors who were on strike
A Division Bench comprising Justice K.L. Manjunath and Justice Ravi Malimath made these observations
Doctors reported back to duty next day but they would work for a month though many of them had submitted their resignation
President of the Karnataka Medical Officers’ Association to be present in the court
Incident…
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Questions discussed… why the government did not invoke ESMA against the doctors
when the High Court had issued specific directions in 2005 and 2009 when a group of doctors went on strike ??
why the government did not act when it was fully aware of the demands of the doctors more than three months ago??
What alternative arrangements were made by the government at its hospitals when the association issued notice one month ago about the strike and indicating that they would resign en masse??
“You should have accepted their resignation and made alternative arrangements”
Contd..
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Thank You. . .