ESMAESSENTIAL SERVICE MAINTENANCE ACT

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…

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

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

Karnataka Essential Services Maintenance

Act

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

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…

News Article Of  Karnataka Essential Services Maintenance Bill, 2009 (by: Dr. Acharya)

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

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

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

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

Government:

State Government

Strike

Cessation of work

Refusal to work overtime where such work is necessary

for the maintenance of any essential service

DEFINITIONS

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

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

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

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

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

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

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

This (Karnataka atyavasyaka sevegala nirvahana adiniyama,2013 ) is published in the official Gazette under clause (3) of Article 348 of the Constitution of India.

EXAMPLES IN KARNATAKA

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.

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…

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..

Thank You. . .