THE controversial Tamil Nadu Essential Services Maintenance Act, 2002 (TESMA) is the most powerful weapon that the AIADMK government has added to its administrative armoury in order to put down struggles by workers, particularly its own employees, as part of a larger effort to promote conditions that will suit the World Bank-driven neo-liberal economic policies it is vigorously pursuing. The Act provides for stringent punishment to not only those who participate in a strike, which involves any one of the "essential services" it lists, but also those who "instigate" workers to go on such an "illegal" strike and those who extend financial aid to those engaged in it. The violation of the law would invite conviction and punishment "with imprisonment for a term which may extend to three years, or with fine, which may extend to five thousand rupees, or with both" under Sections 4, 5 and 6 of the Act.
Even as the relevant Bill was put on the statute book after being rushed through the State Assembly on May 10, 2002, trade union leaders warned of its disastrous implications for the over 12 lakh government employees and workers in the service sector who are under the control of the State government and the local bodies. State president of the Centre of Indian Trade Unions and leader of the Communist Party of India (Marxist) in the Assembly J. Hemachandran termed the Bill "anti-worker" and "fascist". He said it sought to rob the working class of the most important of its hard-won rights - the "right to strike" - and demanded its withdrawal (Frontline, June 7, 2002).
Explaining the purpose of the Act, while piloting the Bill, Finance Minister C. Ponnaiyan told the State Assembly that it was aimed at "enforcing discipline" among the employees and "improving the economic conditions of the State". The `Statement of Objects and Reasons' of the Act is more categorical. It says: "There is at present no law empowering the State government to deal promptly and effectively with strikes in essential services with respect to which the State Legislature has power to make laws to ensure public safety and maintenance of supplies and services necessary for the normal life of the community. Such a law is considered necessary in the present context of the activities of certain persons employed in essential services. Accordingly, it has been decided to enact a law so as to confer adequate powers on the State government to deal promptly and effectively with strikes in essential services."
The immediate provocation for the Act came from a strike notice served on the government by the Federation of Government Transport Employees Unions. (The strike, which was intended to press the federation's demand for a wage hike as also the restoration of certain customary benefits that had been withdrawn a year earlier under the pretext that the State's finances were in a bad shape, did not, however, materialise.)
The Act virtually encompasses all government departments. Besides the services relating to the supply of drinking water and electricity, passenger and goods transport, fire-fighting and public health, civic services provided by the local bodies come under the purview of the Act. The secretariat staff of the State Assembly and "the officers and servants" of the High Court, and "any public services and posts in connection with the affairs of the State" are also covered by the Act. It empowers the State to declare as essential by notification "any other service or employment or class thereof connected with any matter with respect to which the State Legislature has power to make laws under List-II in the Seventh Schedule to the Constitution and which the Government, being of opinion that strikes therein would prejudicially affect the maintenance of any public utility service, the public safety or the maintenance of supplies and services necessary for the life of the community or would result in the infliction of grave hardship on the community..." (Section 2, Sub-section viii).
Among the features of the Act termed "draconian" by trade union leaders is its definition of `strike'. Strike, under the Act, includes not only the refusal of the employees connected with these "essential services" to "continue to work or to accept work assigned" but also the "refusal to work overtime" and "any other conduct which is likely to result in, or results in, cessation or substantial retardation of work in any essential service".
Empowering the State government to prohibit strikes in essential services, Section 3 of the Act says, "If the government are satisfied that in the public interest or in the interest of the public order, it is necessary or expedient so to do, they may, by general or special order, prohibit strikes in such essential services and from such date as may be specified in the order."
Section 7 of the Act makes its clear that any action taken against any person under its provisions "shall not affect, and shall be in addition to, any other action of a disciplinary nature or any consequence which may ensue, and to which the person may be liable, by or under the terms and conditions of his service or employment".
AS though the harsh provisions of TESMA were not enough to meet the situation arising out of the July 2 strike, the State government came out with an ordinance to amend the Act. The Tamil Nadu Essential Services Maintenance (Amendment) Ordinance, 2003, promulgated by the Governor two days after the strike was launched, was made operational with retrospective effect from April 23, 2003. The Ordinance makes the Act more draconian by providing for the summary dismissal of employees who absent themselves during a strike and thereby are "deemed" to be participants in the strike. The "major" punishment prescribed for participation in the strike is either dismissal or break in service, which may badly affect their eligibility for terminal benefits such as pension and gratuity. The amendment thus empowers the government to dismiss the participants in a strike without giving them any hearing or holding any inquiry as provided in normal service rules; this is in addition to prosecuting them under the original Act.
The Ordinance was issued because the Act had not "explicitly provided effective steps to deal with the Government servants who openly defy the notification under Section 3". It said: "Apart from the possible prosecution under Section 4, the Government thought it fit that at present further powers are needed to deal with such defiant persons in a manner effectively affecting their service conditions."
The Ordinance replaced Section 7 of the Act with the following:
"7. Disciplinary Action - (1) Notwithstanding anything contained in any service rules that are made applicable to governmental servants if any notification under Section 3 of the Act has been published by the government in the official gazette, expressing its intention to prohibit strikes in respect of the service defined under Section 2 of the Act, any government servant to whom the Act applies shall at once report to duty where he/she was reporting prior to the strike prohibited by the notification. In case of failing to do so, the said government servant is deemed to have admitted having committed the misconduct knowingly and voluntarily warranting the punishment.
"(2) The Appointing Authority may impose any penalty including a major penalty, viz., dismissal from service or in the alternative a break in service as the case may be for the aforesaid admitted misconduct without conducting any enquiry."
(By way of "explanation" to these two new provisions, the ordinance stated that if a government servant absented himself/herself from attending office, he/she would be deemed to have participated in the strike prohibited by notification under Section 3 and he/she would be deemed to have explicitly admitted the "misconduct". The Ordinance also explained that it was not obligatory on the part of the appointing authority or the government individually to serve the order of dismissal or the order of break in service or any other punishment on the employees and it would be sufficient if the order was published on the notice board of the office where the employee was working or in a newspaper.)
"(3) The Government servant against whom an order of dismissal or an order of break in service or any other punishment has been passed is entitled within one week to approach the Appointing Authority who has passed the order and prove that his/her non-reporting to duty was not due to his/her participation in the strike but due to bona-fide reasons other than participation in the strike.
"(4) If the Appointing Authority is satisfied that he/she did not join the strike, the Appointing Authority may pass orders revoking or modifying the orders passed under Section 7(2) or reject the same.
"If the Government servant is aggrieved by the order passed under Section 7(4) he/she may appeal to the Appellate Authority within two weeks and the order passed by the Appellate Authority shall be final."
The Ordinance explained that the normal appellate authority of the department wherein the employee concerned worked would be the appellate appointing authority for the purpose of the amended Act.