Page 183 - DMGT516_LABOUR_LEGISLATIONS

Labour Legislations

Notes An order under section 10B for prohibiting a lock-out or strike requires finding on facts and an
adjudication thereon before the power under it could be exercised by the appropriate Government.
If an order is made without determining these facts, in certain circumstances it may prove
incapable of implementation, for instance, if for any valid reasons, it has become impossible to
continue the industry, or the employer has disposed of the same, the order under section 10(3)
will become incapable of implementation. The Government may not prohibit the continuance
of a lock-out because the workmen have indulged in unlawful and criminal activities, and there
is scope for apprehension that, if the work is restored, such activities would continue, Non-
compliance with such an order is illegal under section 24(1) (ii) and is punishable with
imprisonment and/or fine under section 26 of the Industrial Disputes Act, 1947.
The power to prohibit a strike or lock-out springs into existence only when such dispute has
been made the subject of reference under section 10(1) of the Industrial Disputes Act, 1947. If
Government feels that it would prohibit a strike under section 10(3) it must give scope for the
merits of all the disputes or demands for which the strike had been called to be gone into by
some adjudicatory body. In regard to such dispute natural justice would depend upon the
circumstances of the case, the nature of enquiry and the subject matter that was being dealt with.

IDA & ESMA (Essential Service Maintenance Act)

ESMA empowers the Central Government to prohibit any and all strikes, lockouts or lay-off in
any essential service, if this is considered necessary in the public interest.
It would publish an order which would remain in force for six months, extendable for another
such period. The order would render such strikes, lockouts, lay-off illegal.
It is the acronym of a law, Essential Services Maintenance Act (Esma), which the government can
invoke to prohibit striking employees from refusing to work in certain essential services, which
are necessary for the maintenance of normal life in the country.

The enactment of this law lists the following:
1. Power to prohibit strikes in certain employments: If the Central Government is satisfied
that in the public interest, it is necessary or expedient to do so. It may, by general or 67
special Order, prohibit strikes in any essential service specified in the Order.
2. The order shall be published in such manners as the Central Government considers the
best calculated manner to bring it to. The notice of the persons affected by the order.
3. The order shall be in force for six months only, but the Central Government may (by a like
order) extend it for any period, that does not exceed six months, if it is satisfied that in the
public interest it is necessary or expedient to do so.
4. Upon the issue of an Order: (a) No person employed in any essential service to which the
order relates, shall go or remain on strike; (b) any strike declared or commenced, whether
before or after the issue of the order, by persons employed in any such service shall be
illegal.
5. Penalty for illegal strikes: Any person who commences a strike which is illegal under this
Act or goes or remains on, or otherwise takes part in, any such strike shall be punishable
by imprisonment for a term, which may extend to six months, by a fine (which may extend
to two-hundred rupees) or both.
6. Penalty for instigation, etc: Any person who instigates, or incites other persons to take
part in, or otherwise acts in furtherance of a strike (which is illegal under this Act) shall be
punishable by imprisonment for a term which may extend to one year, a fine which may
extend to one thousand rupees, or both.

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