ESSENTIAL SERVICES MAINTENANCE ACT 1981

THE ESSENTIAL SERVICES MAINTENANCE ACT,1981

ACT No. 40 OF 1981

23rd September, 1981

An Act to provide for themaintenance of certain essential services and the normal life of the community.

BE it enacted by Parliament in theThirty-second Year of the Republicof India as follows: –

1.Short title, extent, commencement and duration: (1) This Act may becalled the Essential Services Maintenance Act, 1981.

(2) It extends to the whole of India:

Provided that it shall not apply to theState of Jammu and Kashmirin so far as it relates to any essential service connected with matters withrespect to which Parliament has no power to make laws for that State.

(3) Sections 8 and 9 shall come into forceat once and the remaining provisions of this Act shall be deemed to have comeinto force on the 26th day of July, 1981.

(4). It shall cease to have effect on theexpiry of 1 [nine years] from the date on which this Act receives the assent ofthe President except as respects things done or omitted to be done before such cesser of operation of this Act, and section 6 of theGeneral Clauses Act, 1897, (10 of 1897) shall apply upon such cesser of operation of this Act as if it had then beenrepealed by a Central Act.

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1. Substituted for the words "fouryears" the Essential Services Maintenance (Amendment) Act, 1985 (49 of1985), Section 2.

2.Definitions: (1) In this Act, unless the context otherwise requires, –

(a) "essentialservice" means-

(i) any postal,telegraph or telephone service, including any service connected therewith;

(ii) any railway service or any transportservice for the carriage of passengers or goods by air or any other transportservice for the carriage of passengers or goods by land or water with respectto which Parliament has power to make laws;

(iii) any service connected with theoperation or maintenance of aerodromes, or with the operation, repair ormaintenance of aircraft, or any service in the International Airports Authorityof India constituted under section 3 of the International Airports AuthorityAct, 1971 (43 of 1971).

(iv) any service, in or in connection withthe working of, any major port, including any service connected with theloading unloading, movement or storage of goods in any such port;

(v) any servicesconnected with the clearance of goods or passengers through the customs or withthe prevention of smuggling;

(vi) any servicein any establishment of, or connected with, the armed forces of the Union or in any other establishments of installationsconnected with defence;

(vii) any servicein any establishment or undertaking dealing with the production of goodsrequired for any purpose connected with defence;

(viii) any servicein any section of any industrial undertaking pertaining to a scheduled industryon the working of which the safety of such undertaking or the employeesemployed therein depends.

Explanation: For the purposes of thissub-clause, the expressions "industrial undertaking" and"scheduled industry" shall have the meanings respectively assigned tothem in clauses (d) and (i) of section 3 of the Industries (Development andRegulation) Act, 1951 (65 of 1951);

(ix) any service in, or in connection with,the working of any undertaking owned or controlled by the Central Governmentbeing an undertaking engaged in the purchase, procurement, storage, supply ordistribution of foodgrains;

(x) any service in, or in connection withthe working of any system of public conservancy, sanitation or water supply,hospitals or dispensaries, in any Union territory, cantonment area orundertaking owned or controlled by the Central Government;

(xi) any servicein connection with or in relation to banking;

(xii) any servicein any establishment or undertaking dealing with the production, supply or distributionof coal, power, steel or fertilizers;

(xiii) any servicein any oilfield or refinery or in any establishment or undertaking dealing withthe production, supply or distribution of petroleum and petroleum products;

(xiv) any servicein any mint or security press;

(xv) any servicein connection with the affairs of the Union,not being a service specified in any of the foregoing sub-clause;

(xvi) any servicein connection with the affairs of the Union,not being a service specified in any of the foregoing sub-clause.

(xvii) any other service connected withmatters with respect to which Parliament has power to make laws and which theCentral Government being of opinion that strikes therein would prejudiciallyaffect the maintenance of any public utility service, the public safety or themaintenance of supplies and services necessary for the life of the community orwould result in the infliction grave hardship on the community, may, bynotification in the Official Gazette, declare to be an essential service forthe purposes of this Act;

(b) "strike" means of thecessation of work by a body of persons while employed in any essential serviceacting in combination or a concerted refusal or a refusal under a commonunderstanding of any number of persons who are or have been so employed tocontinue to work or to accept work assigned, and includes –

(i) refusal towork overtime where such work is necessary for the maintenance of any essentialservice;

(ii) any other conduct which is likely toresult in, or results in, cessation or substantial retardation of work in anyessential service.

(c) words andexpressions used in section 8 and 9 not defined, but defined in the IndustrialDisputes Act, 1947 (14 of 1947) shall have the meanings respectively assignedto them in that Act.

(2) Every notification issued undersub-clause (xvii) of clause (a) of sub-section (1) shall be laid before eachhouse of parliament immediately after it is made if it is in session and on thefirst day of the commencement of the next session of the House if it is not insession, and shall cease to operate at the expiration of forty days from thedate of its being so laid or from the re-assembly of Parliament, as the casemay be, unless before the expiration of that period a resolution approving theissue of the notification is passed by both Houses of Parliament.

Explanation: Where the Houses of Parliamentare summoned to reassemble on different dates, the period of forty days shallbe reckoned from the later of those dates.

(3) Any reference in this Act to any lawwhich is not in force in any area and to any authority under such law shall, inrelation to that area be construed as a reference to the corresponding law inforce in that area and to the corresponding authority under such correspondinglaw.

3.Power to prohibit strikes in certainemployments: (1) If the central government is satisfied that in the publicinterest it is necessary or expedient so to do, it may, by general or specialOrder, prohibit strikes in any essential service specified in the order.

(2) An order under sub-section (1) shall bepublished in such manner as the central government considers best calculated tobring it to the notice of the person affected by the order.

(3) An order made under sub-section (1)shall be inn force for six months only, but the central government may, by alike order, extend it for any period not exceeding six months if it issatisfied that in the public interest it is necessary or expedient so to do.

(4) Upon the issue of an order undersub-section (1), –

(a) no personemployed in any essential service to which the order shall go or remain onstrike;

(b) any strikedeclared or commenced whether before or after the issue of the order, bypersons 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 illegalunder this Act or goes or remains on, or otherwise takes part in, any suchstrike ; or

(b) whoinvestigate or incites other persons to commence, or go or remain on, orotherwise take part in, any such strike,

shall be liable to disciplinary action (including dismissal) inaccordance with the same provisions as are applicable for the purpose of takingsuch disciplinary action (including dismissal) on any other ground under theterms and conditions of service applicable to him in relation to hisemployment.

5.Penalty for illegal strikes: Any person who commences a strike which isillegal under this Act or goes or remains on, or otherwise takes part in, anysuch strike shall be punishable with imprisonment for a term which may extendto six months, or with fine which may extend to one thousand rupees, or withboth.

6.Penalty for investigation, etc: Any person who investigates or incitesother persons to take part in, or otherwise acts in furtherance of, a strikewhich is illegal under this act shall be punishable with imprisonment for aterm which may extend to one year, or with fine which may extend to twothousand rupees, or with both.

7.Penalty for giving financial aid to illegal strikes: Any person whoknowingly expends or supplies any money in furtherance or support of strikewhich is illegal under this act shall be punishable with imprisonment for aterm which may extend to one year, or with fine which may extend to twothousand rupees, or with both.

8.Power to prohibit lock-outs in certainestablishments: (1) If the central government is satisfied that in the publicinterest it is necessary or expedient so to do, it may by general or specialorder, prohibit lock-outs in any establishment pertaining to any essentialservice specified in the order.

(2) An order made under sub-section (1)shall be published in such manner as the central government considers bestcalculated to bring it to the notice of the persons affected by the order.

(3) A n order made by sub-section (1) shall be in force for six monthsonly, but the central government may, by a like order extend it for any periodnot exceeding six months if it is satisfied that in the public interest it isnecessary so to do.

(4) Upon the issue of an order under,sub-section (1), –

(a) no employer inrelation to an establishment to which the order applies shall commences anylock-out;

(b) any lock-outdeclared or commenced whether before of after the issue of the order by anyemployer in relation to an establishment to which the order applies shall beillegal .

(5) Any employer in relation to anestablishment who commences continues or otherwise acts in furtherance of alock-out which is illegal under this section, shall be punishable withimprisonment for a term which may extend to six months, or with fine which mayextend to one thousand rupees or with both.

9.Power to prohibit lay-off in certain establishments: (1) If the centralgovernment is satisfied that in the public interest it is necessary orexpedient so to do, it may, by general or special order, prohibit lay-off, onany 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 anyessential service specified in the order.

(2) An order made under sub-section (1)shall be published in such manner as the central government considers bestcalculated to bring it to the notice of the persons affected by the order.

(3) A n order made by sub-section (1) shall be in force for six monthsonly, but the central government may, by a like order, extend it for any periodnot exceeding six months if it is satisfied that in the public interest it isnecessary or expedient so to do.

(4) Upon the issue of an order undersub-section (1), –

(a) no employer in relation to anestablishment to which the order applies shall lay-off or continue the lay-offany workman ( other than a badli workman or a casualworkman ) whose name is borne on the muster rolls of such establishment unlesssuch lay-off is due to shortage of power or to natural calamity and any layingoff or continuation of laying-off shall unless such laying-off or continuationof laying-off is due to shortage of power or to natural calamity, be illegal;

(b) a workman whose laying-off is illegalunder clause (a) shall be entitled to all the benefits under any law for thetime being in forces as if he had not been laid-off.

(5) Any employer in relation to anestablishment who lays off or continues the laying off of any workman shall, ifsuch laying-off or continuation of laying-off is illegal under this section, bepunishable with imprisonment for a term which may extend to six months, or withfine 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, anypolice officer may arrest without warrant any person who is reasonablysuspected 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, allOffences under this Act shall be tried in a summary way by any metropolitanmagistrate, or any judicial magistrate of the first class specially empoweredin this behalf by the state government and the provisions of sections 262 to265 (both inclusive) of the said code shall as far as may be apply to suchtrial; (2 of 1974).

Provided that in a case of conviction forany offence in a summary trial under this section, it shall be lawful for themagistrate to pass a sentence of imprisonment for any term for which suchoffence is punishable under this Act.

12.Act to override other laws: Theprovisions of this Act and of any order issued thereundershall effect notwithstanding anything inconsistent therewith contained in theindustrial disputes Act, 1947, (14 of 1947) or any other law for the time beingin force.

13.Amendment of Act 41 of 1980: During thecontinuance in force of this Act, the Essential Services Maintenance (Assam) Act,1980, shall have effect as if; –

(a) in section 2, –

(1) in sub-section (1), –

(i) clause (a) had been omitted ;

(ii) for clause (b), the following clauseshad been substituted, namely: –

(b) "essential service " means –

(i) any transport service for the carriageof passengers or goods by land or water, with respect to which the legislativeAssembly of the state of Assamhas power to make laws;

(ii) any service connected with theproduction, storage, or distribution, as the case may be of gas or water;

(iii) any service connected with themaintenance of public health and sanitation, including hospitals anddispensaries.

(iv) any public services and posts inconnected with the affairs of the state, and also persons appointed to thesecretarial staff of the legislative Assembly of the state of Assam;

(v) any other services or employment orclass thereof, connected with matters with respect to which the legislativeAssembly of the state of Assam has power to make laws and which the stategovernment, being of opinion that strikes therein would prejudicially affectthe maintenance of any public utility service, the public safely of themaintenance of the supplies and services necessary for the life of thecommunity or would result in the infliction of grave hardship on the community,may, by notification in the official gazette, declare to be an essentialservice for the purposes of this Act;

(bb) " state government " meansthe state government of Assam;”;

(2) in sub-section (2) for the words,brackets and figures "under sub-clause (xiv) ", the words, bracketsand figure "under sub-clause (v) " had been substituted;

(b) in sections 3 and 9, for the words"appropriate government ", wherever they occur, the words "stategovernment " had been substituted.

14.Repeal and saving: (1) The EssentialServices Maintenance Ordinance, 1981, is here by repealed.

(2) Notwithstanding such repeal, anythingdone or any action taken under the said ordinance shall be deemed to have beendone or taken under the corresponding provisions of this Act.