Essential Services Maintenance Act (ESMA), 1968: Features and Penalties

Objective of the Legislation

Essential Services Maintenance Act (ESMA) is an Indian central legislation enacted in 1968. The objective of this legislation is to ensure the delivery of those services which are necessary for maintaining normal life of the community. If these services are obstructed, it would adversely impact the normal functioning of the society. The Act empowers the government to prohibit bandhs, bans or strikes by the employees or service providers of those establishments/services that falls under the definition of “essential services” within the purview of the Act.

What is the extent of applicability of ESMA?

ESMA extends to whole of India except Jammu & Kashmir. However, the Act will be applicable to the Union employees (central government employees) even in Jammy Kashmir.

What are the “essential services” under the ESMA?

Section 2 (1) (a) of the Essential Services Maintenance Act defines the term “essential services” and it includes the following services:

• Postal, telegraph or telephone service
• Railway service
• Transport service carrying passengers or goods
• Operation or maintenance of aerodromes, or aircraft
• Goods storage, its movement, loading and unloading in any port
• Custom clearance of goods or passengers
• Mint or security press
• Defense establishments
• Service in connection with the affairs of the Union, not being a service specified in any of the foregoing sub- clauses
• Any other service which the government may declare to be an essential service for the purposes of this Act.

What is a strike?

When body of persons providing any essential service ceases to work it would be termed as a strike. This definition of strike also includes refusal to do work overtime when necessary for the maintenance of any essential service. It also includes any other conduct which leads to cessation or substantial retardation of work in any essential service.

Key Features of the ESMA

• Employees can not refuse to work overtime when any work is considered necessary for the maintenance of any of the essential services.
• Any any person who is reasonably suspected for committing an offense under the ESMA may be arrested by a police officer without warrant.
• A general or specific order may be issued by the central government to prohibit strikes in any essential services if it is in public interest under Section 3(1) of the ESMA.
• An order prohibiting strikes in any essential services under Section 3(1) of the ESMA is valid for a period of 6 months. It can be extended for up to 6 months more, if necessary.
• While ESMA is a central legislation, a few of the Indian states have opted for state specific legislation in this regard. For example:
  • Andhra Pradesh Essential Services Maintenance Act of 1971,
  • Kerala Essential Services Maintenance Act of 1994,
  • Rajasthan Essential Services Maintenance Act of 1970

Penalty & Punishments under ESMA