Lawfarm Team
Asked December 25, 2015

what can government and the employees do to defend themselves in a strike?

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Under S.3(1) of the  Rajasthan Essential Services Maintenance Act, 1970 what  can  government and the employees do to defend themselves?

Answer 1

A strike is when a number of employees discontinue their employment, or reduce the normal performance of their employment.[1]

Under the Central and State Essential Services Maintenance Act (“ESMA”), “strike” means the cessation of work by a body of persons employed in any essential service, which includes-

(i) refusal to work overtime where such work is necessary for the maintenance of any essential service;

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

Sub-section (1) of section 3 of that Act confers upon the State Government the power, by general or special order, to prohibit strikes in any essential service specified in the order if the State Government is satisfied that in the public interest it is necessary or expedient to do so. ESMA prohibits strike by certain categories of employment such as transport, railways. This prohibition of striking applies only when:

  • The employees are employed in an essential service, and these essential services are defined in S. 2 (1)(a).
  • The strike must affect public interest. A clear definition of the public interest has not been provided in the Act. The legislatures have intentionally left the matter to be dealt with on a case by case basis.
  • ESMA gives police the right to arrest, without a warrant, anybody violating the Act’s provisions. Any person who commences a strike or otherwise takes part in any such strike shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to two hundred rupees, or with both. Even a person who instigates a strike which is illegal under this Act shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. Under sub-section (2)of section 3, such order is to be published in such manner as the State-Government considers best calculated to bring the order to the notice of the persons affected by it.

    In Punjab National Bank v. Their Employees [2], it was held that in the case of strike, the employer might bar the entry of the strikers within the premises by adopting effective and legitimate method in that behalf. He may call upon employees to vacate, and, on their refusal to do so, take due steps to suspend them from employment, proceed to hold proper inquires according to the standing order and pass proper orders against them subject to the relevant provisions of the Act.

    The Delhi Government invoked ESMA during the doctor’s strike earlier this year and recently, the Rajasthan Government under RESMA has issued strike ban notices to persons employed in Vidyut Nigams and power companies. [3]

    Since generally the government does not want to seem like it does not listen to its unhappy employees, it will be eager to settle the matter. The Rajasthan Government has launched a Single Point Grievance Redressal Portal and Digitally Signatured Certificate System named “SUGAMRPG”. The portal is designed and developed jointly by the Central Government's Department of Administrative Reforms and Public Grievances and The Government of Rajasthan’s Department of Administrative Reforms. Through this portal people can lodge their grievance against any department at any office of the State Government through e-mails, manually, by post, through telephone and mobile phones, in addition to lodging it through the portal. This is not only for the common man but it also enables the State Government departments and offices to effectively redress public grievances in a time bound manner. [4]

     [1] Legal Dictionary definition

    [2] AIR 1953 SC 296

    [3]http://www.rvunl.com/pdf/Ban%20on%20strike%20in%20Nigam%20imposed%20under%20the%20RESMA.pdf

    [4] The Hindu, Rajasthan Launches New Grievance Redressal Portal, available at http://www.thehindu.com/todays-paper/tp-national/tp-newdelhi/rajasthan-launches-new-grievance-redressal-portal/article2014650.ece

     

    Agree Comment 0 Agrees about 1 year ago

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