The Uttar Pradesh government has invoked the Essential Services Maintenance Act (ESMA) banning strikes in all departments and corporations under it for a period of six months.
The ESMA, as it is commonly known, gives the police right to arrest without a warrant anybody violating the Act's provisions. It has been invoked after taking permission from Governor Anandiben Patel and a notification in this regard has been issued by Mukul Singhal, Additional Chief Secretary.
Under ESMA, employees in a long list of "essential services" like post and telegraph, railway, airport and port operations are prohibited from going on strike.
The Act mandates imprisonment for a term which may extend to one year, or fine which may extend to one thousand rupees, or with both, to any person who instigates a strike which is illegal under this Act.
Toeing the Centre's line, the Uttar Pradesh government had last month decided to put on hold dearness allowance (DA) increase for its 16 lakh employees. The DA increase was due from January 1, 2020.
The state government also decided not to pay the DA installments which will be due from July 1, 2020, and January 1, 2021
RIGHT TO STRIKE
Every right comes with its own duties. Most powerful rights have more duties attached to them. Today, in each country of globe whether it is democratic, capitalist, socialist, give right to strike to the workers. But this right must be the weapon of last resort because if this right is misused, it will create a problem in the production and financial profit of the industry. This would ultimately affect the economy of the country.
In India, right to protest is a fundamental right under Article 19 of the Constitution of India. But right to strike is not a fundamental right but a legal right and with this right statutory restriction is attached in the industrial dispute Act, 1947.
POSITION IN INDIA
In India unlike America right to strike is not expressly recognized by the law. The trade union Act, 1926 for the first time provided limited right to strike by legalizing certain activities of a registered trade union in furtherance of a trade dispute which otherwise breach of common economic law.
The right to strike in the Indian constitution set up is not absolute right but it flow from the fundamental right to form union. As every other fundamental right is subject to reasonable restrictions, the same is also the case to form trade unions to give a call to the workers to go on strike and the state can impose reasonable restrictions. In the All India Bank Employees Association v. I. T. , the Supreme Court held,"the right to strike or right to declare lock out may be controlled or restricted by appropriate industrial legislation and the validity of such legislation would have to be tested not with reference to the criteria laid down in clause (4) of article 19 but by totally different considerations."
Thus, there is a guaranteed fundamental right to form association or Labour unions but there is no fundamental right to go on strike. Under the Industrial Dispute Act, 1947 the ground and condition are laid down for the legal strike and if those provisions and conditions are not fulfilled then the strike will be illegal.
PROVISION OF VALID STRIKE UNDER THE INDUSTRIAL DISPUTE ACT, 1947-
Section 2(q) of said Act defines the term strike, it says, "strike" means a cassation of work by a body of persons employed in any industry acting in combination, or a concerted refusal, or a refusal, under a common understanding of any number of persons who are or have been so employed to continue to work or accept employment.
· Whenever employees want to go on strike they have to follow the procedure provided by the Act otherwise there strike deemed to be an illegal strike. Section 22(1) of the Industrial Dispute Act, 1947 put certain prohibitions on the right to strike. It provides that no person employed in public utility service shall go on strike in breach of contract:
(a) Without giving to employer notice of strike within six weeks before striking; or
(b) Within fourteen days of giving such notice; or
(c) Before the expiry of the date of strike specified in any such notice as aforesaid; or
(d) During the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.
· It is to be noted that these provisions do not prohibit the workmen from going on strike but require them to fulfill the condition before going on strike. Further these provisions apply to a public utility service only. The Industrial Dispute Act, 1947 does not specifically mention as to who goes on strike. However, the definition of strike itself suggests that the strikers must be persons, employed in any industry to do work.
GENERAL PROHIBITION OF STRIKE-
The provisions of section 23 are general in nature. It imposes general restrictions on declaring strike in breach of contract in the both public as well as non- public utility services in the following circumstances mainly: -
(a) During the pendency of conciliation proceedings before a board and till the expiry of 7 days after the conclusion of such proceedings;
(b) During the pendency and 2 month's after the conclusion of proceedings before a Labour court, Tribunal or National Tribunal;
(c) During the pendency and 2 months after the conclusion of arbitrator, when a notification has been issued under sub- section 3 (a) of section 10 A;
(d) During any period in which a settlement or award is in operation in respect of any of the matter covered by the settlement or award.
The principal object of this section seems to ensure a peaceful atmosphere to enable a conciliation or adjudication or arbitration proceeding to go on smoothly. This section because of its general nature of prohibition covers all strikes irrespective of the subject matter of the dispute pending before the authorities. It is noteworthy that a conciliation proceedings before a conciliation officer is no bar to strike under section 23.
Section 24 provides that a strike in contravention of section 22 and 23is illegal. This section is reproduced below:
(1) A strike or a lockout shall be illegal if,
(i) It is commenced or declared in contravention of section 22 or section 23; or
(ii) It is continued on contravention of an order made under sub section (3) of section 10 or sub section (4A) of section 10-A.
(2) Where a strike or lockout in pursuance of an industrial dispute has already commenced and is in existence all the time of the reference of the dispute to a board, an arbitrator, a Labour court, Tribunal or National Tribunal, the continuance of such strike or lockout shall not be deemed to be illegal;, provided that such strike or lockout was not at its commencement in contravention of the provision of this Act or the continuance thereof was not prohibited under sub section (3) of section 10 or sub section (4-A) of 10A.
(3) A strike declared in the consequence of an illegal lockout shall not be deemed to be illegal.
The right to strike is not fundamental and absolute right in India in any special and common law, Whether any undertaking is industry or not. This is a conditional right only available after certain pre-condition are fulfilled. If the constitution maker had intended to confer on the citizen as a fundamental right the right to go on strike, they should have expressly said so.
On the basis of the assumption that the right to go on strike has not expressly been conferred under the Article 19(1) (c) of the Constitution.
Every dispute between an employer and employee has to take into consideration the third dimension, viz. the interest of the society as whole.
Demonstrations and processions usually involve three fundamental rights; freedom of speech, freedom of assembly, and freedom of movement. Uttar Pradesh government can defend by justifying this step as necessary to maintain social distancing but somewhere it will encourage the employer to exploit this opportunity which will end up into injustice to poor employees.