Essential services maintenance act
sandeep shukla
(Querist) 22 July 2014
This query is : Resolved
is a contract is valid if the same was signed under threat of essntial services maintenance act?
is Section 14, 15 and 16 of the Indian contract act will apply in such case?
may any person compel to perform any work in pursuance of essential services maintenance act, which is not possible (in terms of authorities own reports)?
in the above conditions, compulsion of signing an agreement and further compelling to perform the work is not in violation of Article 14, 16 and 19,(1g) of constitution of India.
i realy need advice on such point as soon as earliest along with case laws.
i will be greatful for expert advice.
malipeddi jaggarao
(Expert) 23 July 2014
Why do you need advice? Your query looks like asking to clarify lesson instead asking to solve the problem. What exactly is the problem. Once you come up with the real probloem, then the analysis of law.;
P. Venu
(Expert) 23 July 2014
No one is required to perform the impossible. Please come up with the complete facts and the problem(s).
ajay sethi
(Expert) 23 July 2014
we dont provide citations .
Guest
(Expert) 23 July 2014
Dear Mr. Sandeep,
It is not understood, how as an advocate you want to link ESMA case with constitutional law?
Secondly, your query being purely academic, you are likely to get mined-up responses even if someone tries to give some solution without knowing the background of the case, as neither anyone can be able to guess whether your intention is to solve some contractual problem or some labout & service problem.
Thirdly, you have not mentioned what type of evidence you have to prove that contract is valid if the same was signed under threat of essntial services maintenance act.
So, better discuss the problem in clear terms if you or your client really face.
sandeep shukla
(Querist) 23 July 2014
Sir, thnx for reply. But my query relates with my case. I m representing rice milllers of uttar pradesh. Custom milling of paddy has been declared essential serices under ESMA. The out turn ratio of rice from the supplied paddy is 67%, fixed by the govt. But actual out turn ratio is much lesser than the demand of 67% OTR. There are several reports of local administration tht the OTR is around 40 to 50% only.basic problem is central govt and FCI fix the OTR on the basis of Tanjavur indian institute of crop processing. But in U.P. mostly rice mills are on traditional technology therefore millers fail to deposite custom mill rice in prescribed Out Turn Ratio as 67%. But the miller hv no choice only to sign agreement under threat of ESM. At present whole rice industry in U.P. is facing big trouble. All those question willbhv to be argued.so I ll b greatful if u may advice some ..... i hv to stablish tht the contract signed by the miller is null n void and imposing ESMA is in clear violation of article 19 (1g) of the constitution of india.
malipeddi jaggarao
(Expert) 24 July 2014
Essential Services Maintenance Act is enacted by the Legislature and all persons need to act under this has to perform their duty. The Government fix the OTR basing on the research and reports to improve the infrastructure to save the food grains which are most sought in India. One of the research on rice summrizes as follows:
"Rice has been the staple food for more than half of humanity in the world. India is the second largest producer of rice in the world, consuming around 95% of what it produces. India is also the third largest
exporter of rice in the world. Due to the high growth of population in recent years, there has been more pressure on arable land. This in turn has created a need for higher productivity in food crops. Concurrently, large quantities of food-grain were reported to be lost due to inefficient milling processes in the country. As such, there have been calls for better processing techniques in order to reduce processing losses. Using 442 sample mills across five major paddy producing States, the conversion ratio from paddy to polished rice was estimated and found to be around 64% for modern and 58.6% for traditional (huller) mills. The variation of conversion ratios among the States was found to be quite negligible, and fractional".
The National Bank for Agriculture report says :
"As per a report given National Bank for Agriculture and Rural Development (NABARD), the recovery ratio of whole grains in a
traditional rice mill by using steel ullers for de-husking was found to be around 52-54 per cent in India [17]. There was excessive loss in the form of coarse and fine broken. Generally, the loss of large portion of endosperm layers accentuated during the de-husking operation. Against it, the recovery ratio of whole grains in modern rice mills using rubber roll shellers for de-husking operation was found to be around 62-64 per cent. Further, the whole grain recovery ratio increased to around 66-68 per cent, in case of milling of parboiled paddy [18].
Therefore, maintaining a good milling ratio is greatly needed by the nation, at least to reduce post-harvest loss and food security problem, to some extent."
All the rice millers are required to adhere to the OTR and improve their infrastructure to achieve the percentage.
However, being a lawyer, you can find out loope-holes in the documents and defend your case. I have given you the back ground. You can not simply say that terms of contract is arbitrary and your clients are compelled to sign the contract. The contract is as per the Legislative Act and your clients could not adhere to the provisions, they can as well close the activity. If their conditions are different from the general conditions, they can as well represent to the Government for reduction of OTR percentage as a special case for that area.
Guest
(Expert) 24 July 2014
You have not stated with whom the millers have to sign contract agreement, with the Government or private parties under threat of ESMA and whether the output is ensured to be consumed or not by the state or the principal party of the contract. Further it also need be clarified whether ESMA in itself specifically prescribes the OTR or not.
sandeep shukla
(Querist) 24 July 2014
the millers have signed the agreement with the food and civil supplies dept. of U.P. and other procurement state agencies. sir their is one thing more that the demand of 67% OTR was fixed in the year 2007 before that vide G.O. issued in 2004 OTR was 62%. in the last 5 to 6 years in the eastern U.P. where rice milling is a popular small scale industry, cultivation of Hybrid rice has been enhanced more than 60% of the total cultivation. and it is admitted fact that the OTR from the Hybrid paddy is low than the other country breeds like Mansuri and other common varieties. now the question here is that coz the Rice Mill is a small scale industry n it is not possible for small rice millers to convert in a modern plant by investing a huge amount. in tht circumstance compulsion of custom milling under ESMA by demanding 67% is not in violation of Article 14 and 19(1)g of the constitution of India. and there is a legal Maxim "Lex Non Cogit Ad Impossibilia" will not applicable in this case.
sir i ll mail u some documents in evening. i realy need expert advice in this case coz this will be the mile stone in my carrier.
thnx a lot for ur kind reply.
Guest
(Expert) 24 July 2014
OK, I shall wait for your documents. But still you have not been able to satisfy my earlier queries, like, (1) whether the output is ensured to be consumed or not by the state or the principal party of the contract; and (2) whether ESMA in itself specifically prescribes the OTR of 67% or not.
Still further without seeing the provisions of ESMA of the state, it may not be possible to form any specific opinion, as copy of requisite ESMA is not with me. You may send scanned copy of ESMA also.
P. Venu
(Expert) 24 July 2014
I am afraid the queriest is mistaken. ESMA has been enacted with a different objective: to prevent 'strikes' and other alleged disruptive activities a for the maintenance of certain essential services and the normal life of the community.
Perhaps, the law involved maybe the Essential Commodities Act, 1955.
There appears to a larger issue involved - in facts and in law.
T. Kalaiselvan, Advocate
(Expert) 25 July 2014
Even I am of the same opinion to that of expert Mr. P. Venu that the author has mis-spelt Essential commodities act for essential services maintenance act. the provisions of former law will apply under the given circumstances. Expert Mr. Malipeddi Jagga Rao has given a detailed background on this issue. You have to analyse the issues based on the ground reality to the opinions expressed by the said expert.
sandeep shukla
(Querist) 25 July 2014
Sir, i hvnt wrongly spelled ESMA, thnx to jaggarao sir for informations. In this Case my plea is tht no body can compel to do any thing impossible under law n this is admiitted fact tht 90% of the rice mills are not with modern aminities as this is a small scale industry in eastern U.P. even in the eastern U.P. cultivation of hybrid rice is more than 70%.but on paper govt dont purchase hybrid common paddy. And the present OTR has been fixed on the basis of test hulling of inbred varietis. It is also admitted facts tht otr from hybrid paddy is lower than inbred paddy. OTR are based on test hulling in Indian Inst. Of crop Processing with all modern aminities. But the rice miller fails to achive this OTR. But Govt. Has put custom milling under essential services therefore miller have no choice to accept tht or not. And if he deny he will have to face consequence under ESMA. Therefore I asked tht in above curcumstances can miller b forced to do so which is impossible.
malipeddi jaggarao
(Expert) 26 July 2014
The percentage is fixed basing on a legislative act. If there are aberrations, the Millers association should represent the authorities either for exemption under special circumstances or if not possible for exemption, amendment of the act.
Guest
(Expert) 26 July 2014
In my opinion only services by workers in any industry/ organisation, but not contracts for supply, are normally covered in ESMA.
sandeep shukla
(Querist) 27 July 2014
Thnx to all. Now tomorrow this matter is fix for final hearing.
Guest
(Expert) 28 July 2014
Fight with reference to original ESMA 1966, rather than mere amemdment text about inclusion of one industry in ESMA. My best wishes ar with you.
Guest
(Expert) 28 July 2014
Fight with reference to original ESMA 1966, rather than mere amemdment text about inclusion of one industry in ESMA. My best wishes ar with you.
sandeep shukla
(Querist) 29 July 2014
thnx for the best wishes,
hon'ble court has appreciated my points in this case......
court has suggested to argue on the point that under any legislative act like ESMA fundamental rights under Article 14, 16, 21 and 19(1)(g) can be curtailed.
2. can this matter be sent for arbitration as per provision of contract.
3. any previous judgment in the same matter in which earlier counsel did not argue the case the case with entire facts and legal position, can b treated as precedent?
now the matter is fix for 7th of August
