Informe definitivo - Informe núm. 118, 1970

31. The complaint and supplementary information supplied in Case No. 589 are contained in three communications addressed to the ILO by the All-India Railwaymen's Federation on 3 December 1968, 20 March 1969 and 28 May 1969.

1. 31. The complaint and supplementary information supplied in Case No. 589 are contained in three communications addressed to the ILO by the All-India Railwaymen's Federation on 3 December 1968, 20 March 1969 and 28 May 1969.
2. 32. The complaint presented in Case No. 594 is contained in a communication addressed to the ILO on 19 May 1969 by the All-India Trade Union Congress (AITUC) and bearing the signatures of twelve organisations and federations including the All-India Railwaymen's Federation.
3. 33. The text of the complaints and supplementary information submitted by the complainants was transmitted to the Government for comment. By a communication dated 6 September 1969, the Government asked the Committee to specify the points in respect of which it would like to receive the Government's observations. At its meeting in November 1969 the Committee requested the Government to be good enough to comment upon certain specific allegations and the Government replied by a communication dated 11 February 1970, and supplied additional information by a letter dated 14 May 1970.
4. 34. India has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 35. It should be pointed out that, in part, the complaint presented by the All-India Railwaymen's Federation refers to general questions such as the climate of relations between the Government and staff associations and unions in the public sector, though the bulk of it is taken up with allegations of infringements of trade union rights.
2. 36. The All-India Railwaymen's Federation alleges, in substance, that the Government has failed to implement a scheme previously agreed upon with the organisations of its employees whereby machinery was set up for the settlement of disputes through joint consultation and, if necessary, arbitration, in order to obviate the need for strikes. According to the complaint, on 19 September 1968 a token strike of twenty-four hours was called because the Government had refused to refer to arbitration a demand concerning minimum wages. The Railway Board had also refused to refer to arbitration disputes which had been accumulating since 1956, notwithstanding the provision made therefor in the permanent negotiating machinery arrangement drawn up for that branch of activity. The strike was peaceful and its purpose was to bring pressure to bear upon the authorities so as to enable negotiations in the dispute to move on to their logical course. As a result of police intervention in the strike, eight people died and many others were injured. The complaint specifies the places where these incidents occurred and adds details concerning the suspension or termination of the services of large numbers of employees, some of whom were also arrested and charged with offences.
3. 37. The All-India Railwaymen's Federation also asserts that both the Government, in promulgating the Essential Services (Maintenance) Ordinance, 1968, and the Indian Railways (Amendment) Ordinance, and the Railway Board, in invoking the application of the regulations administering these ordinances, have by their interference tended to restrict the right of the Federation to organise its administration and activities and formulate its programme. It adds that penalties have been imposed in the form of withdrawal of recognition and restraints upon freedom of assembly which are tantamount to suspending the functioning of the Federation. It also declares that the Government is bent upon destroying genuine trade unionism, citing as evidence of this an invitation by the Railway Board to the three railwaymen's unions which did not participate in the strike to nominate a ten-man committee to represent all the workers belonging to the Federation.
4. 38. In the complaint presented by the AITUC it is stated that together the signatory organisations represent the overwhelming majority of the organised workers of India, and it is pointed out that the Government has not so far ratified either Convention No. 87 or Convention No. 98, " despite the unanimous demand of all sections of the trade union movement".
5. 39. In general terms there is alleged to be " violation of these two Conventions " and increasing interference by the Government in the trade union field, and it is asserted that the right to strike and the right to bargain collectively are being denied and ever-increasing restrictions put upon them.
6. 40. The complainants state that among the employees of the Government are the railway workers (1,400,000), the postal and telegraphic workers (500,000) and workers in defence production, in the Central Public Works Department, in civil aviation, income tax, audit and accounts and the central secretariat services. In other words, these employees include not only office workers but millions of industrial workers organised in unions which are united in federations.
7. 41. After explaining the reasons for the September 1968 strike in terms almost identical to those used by the All-India Railwaymen's Federation, the AITUC declares that the strike was legal and absolutely justified in view of the Government's attitude. It adds that on 13 September 1968, after Parliament had adjourned, the Government promulgated two ordinances which outlawed the proposed strike, enlarged the definition of a strike and prescribed stringent punishments. This complaint also refers to the deaths, wounding and injuries brought about by police intervention, the dismissal, suspension or other action taken against large numbers of workers and the punishment of strikers by depriving them of their seniority and of the benefits accruing to them thereby.
8. 42. The complaint adds that all the unions which had served strike notices were deprived of recognition and excluded from the joint consultation machinery. This action was taken by means of executive orders of the Government which cannot be challenged in any court except on procedural grounds. In the postal and telegraphic sector three so-called " national unions " were hastily recognised even before their formation or registration under the Trade Unions Act of 1926. Recognition was granted to them in order " to organise an all-India body ". Their office-bearers were not elected but nominated. These unions had no membership on the date of recognition.
9. 43. As regards the private sector, the AITUC claims that the Essential Services Maintenance Act gives powers to the Government to include by executive order in the list of essential services practically any service or industry. To prove its point it quotes section 2 (1) of the Act. Even before the Act was passed, the Government is said to have declared a strike by school teachers in Himachal Pradesh illegal by applying to them the provisions of the Essential Services Maintenance Ordinance. Although Parliament is supposed to be informed of such government decisions and may annul them, the complainants point out that the notifications in respect thereof remain in force for forty days, an ample period for the banning or crushing of a strike.
10. 44. Lastly, according to the complainants, section 36 AD of the Banking Laws (Amendment) Act, 1968, contains a provision which, by prescribing penalties for any action calculated to undermine the confidence of the depositors in a banking company, confers power upon the Government to ban normal activities of trade unions.
11. 45. The AITUC requests the ILO to appoint a commission of inquiry to go into these charges and to take all appropriate steps to rectify the position.
12. 46. In its communication of 6 September 1969 the Government states that it would facilitate consideration of the matters raised in the complaints if the Committee on Freedom of Association would first specify the precise points in respect of which it would like to receive the Government's observations.
13. 47. In its communication of 11 February 1970, and before answering specific points raised by the Committee at its meeting in November 1969, the Government goes over the events that led up to the situation in question.
14. 48. The Government states that in 1966, after consultation with representatives of its employees, it established joint consultative machinery with the object of promoting harmonious relations and of securing the greatest measure of co-operation between the Government, in its capacity as employer, and its employees in matters of common concern and with the further object of increasing the efficiency of the public service. All central government employees, including those in the railways, posts and telegraphs and defence establishments, are covered by this scheme and are represented on its National Council, having facilities for discussions and negotiations in councils established at lower levels. The scope of these councils includes all matters relating to conditions of service and work, welfare of the employees and improvement of efficiency and standards of work. The scheme also provides that in the event of disagreement between the official side and the staff side in these councils, there shall be compulsory arbitration which shall, however, relate only to the pay and allowances, weekly hours of work and leave of a class or grade of employees.
15. 49. Before the introduction of the scheme the Government and the employees' organisations signed a Declaration of Joint Intent under which they agreed to give a fair trial to the scheme for a minimum period of five years, during which all disputes were to be resolved through the machinery of joint consultations and compulsory arbitration.
16. 50. The Government adds that the National Council and the departmental councils met periodically and took decisions on matters such as a leave travel concession, a house rent allowance, and hospital leave, which decisions were duly accepted and implemented by the Government. In 1967 the staff side presented a Charter of Demands on ten issues, the principal demands relating to payment of a need-based minimum wage and the merger of the dearness allowance with the basic pay. These two points were discussed in the National Council at great length but no agreement was reached. Thereupon the staff side demanded arbitration. The Government had no objection to arbitration on the second demand but considered that the first demand appeared to be outside the scope of compulsory arbitration inasmuch as the latter had been set up only for cases concerning a class or grade of employees, whereas the demand for a need-based minimum wage was much wider in scope and would cover all employees. It would also involve wider economic and social issues. The demand could not be considered in isolation for central government employees only, leaving out of consideration a large body of industrial and agricultural workers; the level of the national income and the state of the national economy would also have to be taken into account.
17. 51. The Government also states that, in an attempt to avert the strike, it invited representatives of the staff side to meet a Committee of Ministers consisting of the Minister of Home Affairs, the Minister of Finance and the Minister of Labour for a discussion on the merits of the issue and the question of arbitration. Representatives of some organisations did attend the meeting, but this invitation was turned down by the employees' organisations, which later declared their intention of having a one-day strike of central government employees throughout the country on 19 September 1968. There were also clear indications that this one-day strike was only a prelude to a further indefinite strike; the All-India Railwaymen's Federation had already called for such a strike as from 31 December. It was in these circumstances that the Government of India, in the light of the considerations mentioned by the Minister of Home Affairs, decided to issue an ordinance under which it assumed powers to ban strikes by its employees. The ordinance (which was promulgated when Parliament was in recess) was replaced by an Act of Parliament in December 1968. The Government later announced in Parliament that this Act would shortly be replaced by legislation of a more comprehensive character, providing for the consideration and settlement of the demands and grievances of the employees through joint consultation and compulsory arbitration on a statutory basis (the present scheme is non-statutory in character).
18. 52. The Government adds that, simultaneously and in view of the threat of abandonment by railway employees of running trains on the wayside, with consequent hardship and danger to millions of railway passengers and further threats of squatting on the track, the Government also promulgated the Indian Railways (Amendment) Ordinance, 1968; this ordinance was also later replaced by an Act of Parliament.
19. 53. With regard to demands mentioned previously, the Government states that after further discussion in the National Council of the joint consultative machinery, and on the agreed recommendation of the Council, the Government issued orders in January 1969 whereby a portion of the dearness allowance would be considered as pay for certain purposes. With regard to the need-based minimum wage, the National Commission on Labour has since submitted its report and one of its recommendations is that a pay commission should be appointed to review wages and other conditions of service; the National Commission on Labour observed that fixing of the need-based minimum wage and the task of deciding the Government's capacity to pay should be left to the pay commission. The Government accepted this recommendation and announced its decision to set up a pay commission to study the question of emoluments and conditions of service of all central government employees.
20. 54. The Government supplies the texts of various documents mentioned in its general statement.
    • Allegations concerning the Strike of September 1968 in the Public Sector
21. 55. At its meeting in November 1969 the Committee requested the Government to furnish its observations on the allegations whereby it was given to understand that police intervention in a strike resulted in the death of several persons and that large numbers of workers were dismissed, suspended, arrested or charged with offences or punished by the loss of long-service benefits, because of the same strike (communications from the All-India Railwaymen's Federation of 3 December 1968 and 28 May 1969 and communication from the AITUC of 19 May 1969).
22. 56. In its reply the Government states that the Essential Services Maintenance Ordinance, promulgated on 13 September 1968, empowered the Government to ban strikes in essential services. Orders were issued under the Ordinance to ban the strike by central government employees. Despite these orders a group of employees not only went on strike but also, through violent measures, prevented other employees from attending to their duties. In several places strikers attempted to dislocate essential public services and thus to disturb the life of the community and, in addition, to destroy public property. At these places the police had to intervene in order to curb the strikers' violent activities and to maintain law and order. When the efforts of the police to maintain law and order were violently resisted, the police had no alternative but to resort to baton charges and the use of tear-gas; in a few cases firing was ordered by the authorities duly constituted and empowered for that purpose. The violence of the strikers resulted in ninety members of the police force being wounded and, as a result of police firing, seven railway employees were killed at three different places and about 145 persons received injuries.
23. 57. The Government adds that, as the strike had been declared illegal under the ordinance, those employees who had abstained from work were guilty of participating in an illegal strike. Despite the large number of strikers, only 9,996 were arrested, of whom 8,162 were suspended and 106 dismissed. In accordance with Service Rules, unauthorised absence automatically constitutes a break in service which results in the loss of certain benefits. For this reason nearly all the strikers became liable to the loss of these benefits. Although the action taken against striking employees was in accordance with the law and the Service Rules, the Government, responding to the representations made by the employees, subsequently reinstated 7,993 suspended employees; some of the cases of the remaining 169 were under review. Where the striking employees were not involved in violent activities, intimidation or active instigation, steps were taken to reinstate them. As regards the loss of certain benefits, the heads of the departments have been authorised to condone the break in service due to the strike after observing the conduct of the employees concerned for a specified period.
24. 58. In its communication of 14 May 1970 the Government states that in February 1970 eighty-seven employees were still suspended but that in March it ordered the reinstatement of all employees who were either suspended or had been dismissed, without prejudice to the cases pending in the courts or under departmental proceedings or to their liability for appropriate disciplinary action under the Service Rules; the Government also ordered that the break in service arising out of the unauthorised absence in connection with the strike should be condoned and announced that henceforth the participation of employees in the said strike would not be taken into account for purposes of their confirmation, declaration of quasi-permanency or promotion.
25. 59. The Committee has always applied the principle that allegations relating to the right to strike are not outside its competence in so far as they affect the exercise of trade union rights. On these occasions it has pointed out that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised.
26. 60. Furthermore the Committee has held that, while restrictions on the right to strike in the public service or in essential services could be accepted, there should, in such cases, be adequate guarantees to safeguard the interests of the workers who are thereby deprived of an essential means of defending their occupational interests, which implies that such restrictions should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures in which the parties concerned can participate at all stages.
27. 61. In the present case the information submitted both by the complainants and by the Government reveals that the 24-hour strike of 19 September 1968 was declared by organisations of employees of the Central Government of India and that it was designed to stop work in the public administration services and in other state public services such as the railways. This necessarily resulted in the State and the public being deprived of essential services. The strike was declared when the Government refused to submit to arbitration a demand which it considered to be outside the scope of the machinery previously established on the basis of a declaration of joint intent by the parties concerned. Prior to the date in question legislation had been promulgated whereby the Government could ban strikes by its employees. The Government states that it applied this legislation in order to prevent the strike dealt with in this case.
28. 62. In these circumstances and having regard to the principle contained in paragraph 60 above and to the fact that machinery existed (set up by mutual agreement between the parties) to settle disputes, the ban by the Government on the strike of its employees cannot in itself be considered to have constituted an infringement of trade union rights. Furthermore, the Committee notes the information submitted by the Government concerning the reinstatement of all the strikers who had been suspended or dismissed.
29. 63. Also, in the light of what is stated in paragraph 60 above, the Committee considers that it should examine other aspects of this question. First of all it appears desirable to determine whether or not there has been a change in the situation that prevailed before the strike as regards the machinery for consultation and settlement of disputes in the sector in question, that is to say the joint consultative machinery which had been established on the basis of an understanding between the Government and the associations of employees. In accordance with the Government's statement the National Council of the joint consultative machinery appears to have continued to examine the demand concerning the merger of the dearness allowance with basic pay and, in accordance with a recommendation made by the Council to the Government, it has already taken measures which appear to imply partial acceptance of this demand. As regards the payment of a minimum wage to all government employees, the matter was submitted to another body-the National Commission on Labour-which recommended the appointment of a special pay commission. The latter would determine the need-based minimum wage and decide the Government's capacity to pay it. The Government states that it has accepted this recommendation, which it intends to implement.
30. 64. On the basis of the information available there does not seem to have been any change in the principles governing the present system of joint machinery for consultation and arbitration on specific issues; in this respect the Government states that it intends to provide the machinery with a statutory basis. It should be pointed out, incidentally, that under the present system the arbitration board appointed when no agreement is reached by the National Council or the departmental councils consists of a member selected from a list of five names proposed by the official side, one member selected from a similar list put forward by staff representatives on the Council, and one independent person as chairman; subject to the overriding authority of Parliament, the recommendations of the arbitration board are binding on both parties.
31. 65. As regards the special commission which the Government proposes to appoint to fix the minimum wages of all employees in the public sector, the Committee calls attention to certain principles contained in the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113), which advocate consultation and co-operation between public authorities and occupational organisations, with the particular aim of ensuring that the authorities seek the views, advice and assistance of such organisations in an appropriate manner in respect of such matters as the preparation and implementation of laws and regulations affecting their interests. The same Recommendation also states that such consultation and co-operation should be facilitated by promotional action on the part of the public authorities.
32. 66. The Committee recommends the Governing Body to draw the Government's attention to the importance of these principles and to express the hope that they will be taken into account in connection with the work of the special commission.
33. 67. Secondly, it appears from the information submitted both by the complainants and by the Government that police intervention during the strike caused the death of a number of railway workers by shooting, as well as injuries to a number of persons. The Committee recalls that in other cases in which it was alleged that people had been killed, it stated that it attached special importance to the circumstances being fully investigated by an immediate and independent special inquiry and to the regular legal procedure being followed to determine the justification and responsibility for the action taken by the police. In the present case the Committee observes that the Government has furnished explanations according to which police intervention was motivated by acts of violence on the part of the strikers, the police having acted under orders from the competent authorities. The Committee recommends the Governing Body to take note of this statement by the Government.
34. 68. For the reasons stated above, the Committee recommends the Governing Body:
    • (a) to decide, for the reasons stated in paragraph 62, that the Government's ban on the strike declared by employees in the public sector did not constitute an infringement of freedom of association;
    • (b) to take note of the information supplied by the Government according to which all employees who had been suspended or dismissed because of the strike have been reinstated;
    • (c) to take note of the Government's statement according to which police intervention was motivated by acts of violence on the part of the strikers, the police having acted under orders from the competent authorities;
    • (d) to draw the Government's attention to the principles mentioned in paragraph 65 above and to express the hope that they will be taken into account in connection with the work of the special commission that will examine the question of minimum wages for government employees.
      • Allegations respecting Penalties Imposed on Associations of Employees
    • 69. The Committee had requested the Government to furnish its observations on allegations made by the AITUC according to which the trade unions which had served strike notices were punished by withdrawal of recognition and exclusion from the joint consultation machinery.
35. 70. In this respect the Government states that the declaration of joint intent on the setting up of the joint consultation machinery contains an implicit obligation to settle disputes without recourse to strikes, violence, intimidation or coercion. By calling and promoting an illegal strike and by resorting to acts of intimidation and violence in pursuance thereof, certain associations like the All-India Railwaymen's Federation and the National Federation of Postal and Telegraph Employees lost their right to enjoy recognition under the joint machinery scheme. Consequently, recognition of these associations was withdrawn by the government departments concerned.
36. 71. The Government adds that the matter has been re-examined and that in September and October 1969 orders were issued whereby the federations, unions and associations whose recognition had been withdrawn because of their participation in the strike were to be accorded " fresh and interim " recognition. It has further been decided that such organisations should also be granted recognition for the purpose of participating in the joint machinery, provided they were already participating in it before their recognition was withdrawn. In accordance with this decision the All-India Railwaymen's Federation and the National Federation of Post and Telegraph Employees have been granted fresh recognition. The recognition is "interim" only in the sense that it is intended to last until fresh recognition rules are framed after the comprehensive legislation to place the joint machinery on a statutory basis (already referred to) has been passed.
37. 72. In the circumstances, in view of the Government's statement that recognition of the capacity of employees' organisations to negotiate has been restored and that these organisations appear once more to enjoy the same rights as before the strike, the Committee recommends the Governing Body to decide that it would be pointless to pursue its examination of this aspect of the case.
    • Allegations concerning the Application of Two Ordinances
38. 73. The Government had been requested to furnish its observations on the allegations according to which the purpose of the Essential Services Maintenance Ordinance, 1968, and the Indian Railways (Amendment) Ordinance was to restrict trade union rights (communication of the AITUC) and that they were applied to the All-India Railwaymen's Federation in order to hamper its activities and the exercise of the right of assembly (communication of the All-India Railwaymen's Federation dated 20 March 1969).
39. 74. The Government has replied that the Essential Services Maintenance Ordinance, 1968, was issued in order to empower the Government to deal with a grave national emergency arising from a threatened country-wide strike, including the disruption of transport services, causing grave dislocation to the life of the community. The ordinance was replaced by an Act of Parliament in December 1968. Similarly, the Indian Railways (Amendment) Ordinance, 1968, was issued on 14 September 1968 to deal with cases where railway employees abandoned their duty in running trains, with a consequent grave risk to the lives of large numbers of passengers, and also to deal with cases arising out of squatting on the railway track for the purpose of hampering the peaceful working of the railways. It was made quite clear before Parliament that the purpose of the ordinance was not to restrict the trade union rights of workers. This ordinance was also replaced by an Act of Parliament which came into force on 20 December 1968.
40. 75. According to the Government, the fact that the unions and associations which did not participate in the strike continue to be recognised and that even those organisations whose recognition had been withdrawn have now had it restored proves that the Government of India had no intention at any time of banning, curbing or in any way interfering with genuine trade unionism among its employees. The Government adds that neither the Essential Services Maintenance Ordinance nor the Indian Railways (Amendment) Ordinance restricted the right of peaceful assembly enjoyed by workers under Indian law.
41. 76. The Government has supplied the texts of both ordinances, which it states have been replaced by Acts of Parliament. The first of these ordinances, after defining the " essential services " and empowering the Government to ban strikes in these services, deems illegal any strikes declared in services specified in the relevant orders, prescribes penalties for persons instigating such strikes or taking part in them, for persons who incite others to strike or support such strikes in whatever manner and for persons who knowingly supply money in furtherance of a strike. The other ordinance provides for the insertion of two new sections in the Indian Railways Act of 1890. These sections prescribe penalties for persons who abandon trains or other rolling stock between stations without authorisation, and for railway workers or other persons who obstruct or attempt to obstruct trains or other rolling stock.
42. 77. Considering that the allegations consist of general statements on the restriction of trade union rights by means of the two ordinances mentioned above and that they are not supported by more specific evidence, and taking into account the information supplied by the Government, the Committee recommends the Governing Body to decide that this aspect of the case calls for no further consideration.
    • Allegations concerning the Creation of Parallel Unions
43. 78. The Committee requested the Government to furnish its observations on the allegations whereby it was given to understand that the Government promoted the forming of and recognised parallel unions in the postal and telegraphic sector (communication of the AITUC) and that the Railway Board invited three unions which had not participated in the strike to nominate persons to represent all the workers belonging to the All-India Railwaymen's Federation (communication from the latter dated 28 May 1969).
44. 79. The Government states that after the illegal strike the recognition that had been granted to the National Federation of Posts and Telegraphs Employees and its federated unions was withdrawn. Simultaneously, as the result of a decision reached at an informal Convention held at Nagpur on 28 and 29 September 1968 and attended by employees of the Posts and Telegraphs Department who believed in democratic trade unions of employees managed and controlled by the employees themselves, three new unions of postal employees were formed. These three unions claimed 20 per cent of posts and telegraphs employees as their members. As the Government was anxious that the channel of communications between the administration and the staff should not be closed for any length of time after the withdrawal of recognition from the National Federation of Posts and Telegraphs Employees, it granted recognition on a provisional and ad hoc basis to the new unions, which, were of a representative character.
45. 80. Furthermore, the Government states that the All-India Railwaymen's Federation and six of the unions affiliated to this Federation which had participated in the illegal strike had forfeited their recognition and consequently lost their rights and privileges as regards negotiation with the Railway Board. Three unions affiliated to the Federation had dissociated themselves from participation in the illegal strike and therefore continued to be recognised. These were, however, local unions and as such could not have negotiating facilities with the Railway Board at the national level. It was therefore decided, in the interests of smooth labour-management relations in the railways, that these three unions could be asked to form, for a temporary period, an ad hoc body to negotiate with the Railway Board. This decision, however, was never put into effect as the All-India Railwaymen's Federation had in the meantime been given fresh and interim recognition and the possibility to negotiate with the Railway Board.
46. 81. In the present case, as regards the postal and telegraphic sector, there appears to be a contradiction between the statements of the complainants and those of the Government. The former maintain that the Government promoted the creation of the three new unions and granted them immediate recognition " even before their formation or registration under the Trade Unions Act of 1926 ", and despite the lack of elected representatives and members (see paragraph 42 above). The Government states that these new unions, constituted at an " informal " Convention of employees, were representative in character. As regards the railway sector, the Government appears to recognise that the authorities decided to request the three unions to form " an ad hoc body " to negotiate with the Railway Board at the national level. In both cases the Government emphasises that recognition to negotiate on behalf of workers in each sector was granted on a provisional basis. Despite this, the Committee deduces that in at least one of the cases the rights to represent all the employees in the sector in question appear to have been granted to organisations which were representative to only a limited extent at the national level.
47. 82. The Committee considers that, if national legislation establishes machinery for the representation of the occupational interests of a whole category of workers, this representation should normally lie with the organisations which have the largest membership in the category concerned, and the Government should refrain from any intervention that might undermine this principle.
48. 83. In the circumstances and subject to this principle, in view of the fact that recognition has been restored to the National Federation of Posts and Telegraphs Employees and the All-India Railwaymen's Federation, together with the right of representation for purposes of negotiation with the authorities at the national level, the Committee recommends the Governing Body to decide that it would be pointless to pursue its examination of this aspect of the case.
    • Allegations concerning the Legal Definition of "Essential Services"
49. 84. The Committee requested the Government to furnish its observations on the allegations according to which it was given to understand that, under new legislative provisions, practically any service or industry may be included by the Government in the list of essential services, a case in point being that of the schoolteachers of Himachal Pradesh (communication of the AITUC).
50. 85. The Government states that the Essential Services Maintenance Ordinance enabled the Government to prohibit strikes in essential services as defined in the ordinance. According to the text of the ordinance, supplied by the Government, the term " essential service " means any postal, telegraph or telephone service; any railway service or other transport service for the carriage of passengers or goods by land, water or air; any service connected with the operation or maintenance of aerodromes, or the operation, repair or maintenance of aircraft; any service connected with the loading, unloading, movement or storage of goods in any port; any service connected with the clearance of goods or passengers through the customs, or with the prevention of smuggling; any service in any mint or security press; any service in any defence establishment of the Government of India; any service connected with the affairs of the Union, not being a service specified in any of the foregoing sub-clauses. This list is followed by a final clause whereby the same category is deemed to include any other service connected with matters in respect of which Parliament has power to make laws and which the Central Government, by notification in the Official Gazette, declares to be an essential service. The Government can make this notification if, in its opinion, strikes in this service would be prejudicial to the maintenance of any public utility service, 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 latter.
51. 86. The Government refers to the provision (now contained in an Act) according to which every notification which the Government decides to make in accordance with what is stated at the end of the previous paragraph must be communicated to Parliament immediately after it is made if Parliament is in session, or on the first day of the commencement of the next session, and ceases to operate at the expiration of forty days from the date of communication or from the reassembly of Parliament unless, before the expiration of that period, a resolution approving the issue of the notification is passed by both Houses of Parliament.
52. 87. It may thus be seen, the Government continues, that all cases where the Government exercises the power to notify an industry as an essential service have to be approved by Parliament at the earliest opportunity.
53. 88. The Government adds that government schoolteachers in union territories (such as the territory of Himachal Pradesh), being engaged in the affairs of the Union, belong to the category of essential services under the Essential Services Maintenance Ordinance, 1968. Therefore, according to the terms of the notification issued on 13 September 1968 they could not go on strike. No separate notification was issued for the schoolteachers of Himachal Pradesh.
54. 89. The Committee has already stated (in paragraph 60) that, subject to certain provisions designed to safeguard the interests of workers who would be deprived of the right to strike as a means of defending their occupational interests, the banning or restriction of strikes in the civil service or in essential services does not necessarily constitute an infringement of freedom of association.
55. 90. The Committee nevertheless wishes to insist on the fact that in referring to essential services it has used this expression in its strictest sense. It has indicated that it is not desirable for all publicly owned undertakings to be treated on the same footing as regards limitations on the right to strike, without a distinction being established in the corresponding legislation between those that are really essential because their interruption would involve serious difficulties for the public and others that are not essential according to this criterion. In one case a in which the Committee found that the law left the government a good deal of latitude in deciding which activities were considered to be public services-which, in certain cases, might not coincide with those that came under the heading of an " essential service "-it recommended the Governing Body, having regard to the effects which the prohibition of strikes might have on the exercise of trade union rights, to suggest to the government concerned the possibility of considering an amendment to the provision in question so that, if it should be decided to prohibit strikes in certain cases, the latter should be confined to services which were essential in the strict sense of the word.
56. 91. In the present case the Committee observes that the law establishes a list of government services which also include other activities that do not appear to be similarly essential in character such, for example, in normal circumstances, as general dock work, aircraft repairs and all transport services, and that the Government can extend this list.
57. 92. In these circumstances the Committee recommends the Governing Body to draw the Government's attention to the principles and considerations mentioned in paragraphs 89 and 90 above and to suggest to it the desirability of considering the reforms that are necessary to bring its legislation into harmony with them.
    • Allegations concerning a Section of the Banking Laws (Amendment) Act, 1968
58. 93. Lastly, at its meeting in November 1969 the Committee requested the Government to furnish its observations on the allegations in respect of section 36 AD of the Banking Laws (Amendment) Act, 1968. According to the complainants this provision confers powers upon the Government to ban the normal activities of trade unions (communication of the AITUC).
59. 94. The Government states that the allegation is unfounded and supplies the text of the section in question. Under this provision no person may obstruct anyone from lawfully entering or leaving any office or place of business of any banking company, or hold any demonstration which is violent or which prevents or is calculated to prevent normal banking activities, or act in a manner calculated to undermine the confidence of the depositors in the banking company.
60. 95. The Government formulates various considerations regarding the characteristics of banking activities and the responsibility of the Government to ensure normal operation during the usual business hours. It adds that the provisions of the section to which the complainants refer cannot be said to restrict any trade union rights, exercised in an orderly manner and after due notice. This section only prohibits acts which are clearly undesirable in the public interest; this applies to all persons and not only to bank employees. The Government also points out that two writ petitions against the provisions of the section were dismissed by the High Court of Judicature at Madras; it supplied the text of the judgment of this Court, in which the petition is rejected on the grounds that there had been no infringement of the rights of individuals. In its communication of 14 May 1970 the Government states that it subsequently decided to delete section 36 AD of the Act. In March 1970 an assurance to this effect was given in Parliament and a Bill for the purpose will be introduced at a suitable opportunity.
61. 96. In view of the fact that the complainants have failed to supply evidence in support of their allegations, and having regard to the explanations given by the Government and particularly the information according to which it has decided to repeal the section in question, the Committee recommends the Governing Body to decide that this aspect of the case calls for no further examination.