Informe provisional - Informe núm. 211, Noviembre 1981

1. 527. The complaint of the Centre of Indian Trade Unions (CITU) is contained in a communication dated 3 February 1981. The Government sent its observations in a communication dated 7 May 1981.
2. 528. India has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 529. The complainant alleges that the Government arrested a large number of locomotive crew of the Indian Railways at a peaceful movement demanding an eight-hour day and an end to victimisation. It claims that there is reckless use of blacklists and mass dismissals to suppress its struggle and that freedom of association and collective bargaining are denied.

B. The Government's reply

1. 530. The Government explains that in the Indian railway sector there are two types of unions: recognised unions enjoying a permanent negotiating machinery which takes into account their demands within the existing rules and financial and administrative constraints; and unrecognised unions whose problems are discussed at informal meetings and whose demands are considered on their merits. The Loco Running Staff Association (LRSA), in respect of whose members the complaint has been made, is unrecognised but, on two occasions (after the August 1973 strike and the March 1979 threatened strike), it has enjoyed the services of ad hoc grievances Committees.
2. 531. The Government states that, despite the setting up of this machinery on the last occasion, the LRSA continued to resort to agitation, particularly during crucial periods and in sensitive areas. In January/February 1981, the LRSA held some work stoppages against alleged wrongful harassment of railway workers by local anti-social elements. When the management took action against the members, the LRSA gave the administration a 72-hour ultimatum for withdrawal of the victimisation and mass sick leave was consequently taken on 28/29 January. According to the Government, the notice for this action was not in accordance with section 22(l) of the Industrial Disputes Act, 1947; nor was it peaceful, as other workers were intimidated, their families harassed and sabotage and violence took place.
3. 532. The Government considers that, in view of this, action had to be taken and arrests were made under section 121 of the Indian Railways Act, 1890 (which provides that if a person wilfully obstructs or impedes any railway servant in the discharge of his duty, he shall be punished with imprisonment up to six months or with a fine of up 500 rupees, or both) and other such legal provisions in force. A number of railway employees were also dismissed from service and compulsorily retired after following the procedure laid down in the rules.
4. 533. Finally, the Government states that the LRSA ceased its agitation as from 25 February 1981 and that the employees against whom action has been taken have, under the rules, the right to appeal upon which suitable action is always taken by the competent authority on the merits of each case. It concludes that action was taken, legally, against the employees not for their trade union activities and that no government can afford to allow a small section of the employees to hold the entire country to ransom in a strategic sector such as the railways.

C. The conclusions of the Committee

1. 534. This case concerns arrests and dismissals in January/February 1981 of a large number of locomotive crew-members of the Loco Running Staff Association - employed by the Government run Indian Railways.
2. 535. The complainant alleges that the arrests and dismissals occurred after a peaceful movement over conditions of work and as a denial of freedom of association and collective bargaining. The Government claims that not only was the industrial action taken on 28/29 January illegal in that insufficient notice was given under the industrial Disputes Act, but it was also violent. According to the Government, the arrests were made legally under the Indian Railways Act and other such legal provisions in force and a number of railway employees were dismissed and compulsorily retired in accordance with the rules; in addition, all employees concerned enjoy the right of appeal.
3. 536. The Committee notes the conflicting nature of the complainant's and the Government's statements and would observe that it would have liked to have had more information from the complainant so as to be in a better position to examine the facts. In addition, the Committee notes from the Government's explanations that the Association in question had at least on two occasions in the past been able to discuss its demands with the government employer through grievances Committees, thus avoiding recourse to industrial action. It considers that the parties on this occasion ought to have made an effort to reconstitute this consultation machinery with a view to avoiding the dispute.
4. 537. Furthermore, the Committee wishes to emphasise, firstly, the importance which it attaches to the recognition of the right to strike of workers and their organisations as a legitimate means of defending their occupational interests. In a number of cases, however, the Committee has agreed that the right to strike can be restricted or even prohibited, in the civil service or in essential services, to the extent that a strike could cause serious hardship to the national community, and provided that the restrictions are compensated by corresponding guarantees. The Committee has nevertheless pointed out on several occasions, particularly with reference to the transport sector, that the principle concerning the prohibition of strikes in essential services may well become meaningless if a strike in an undertaking which does not supply an essential service in the strict sense of the word, i.e. a service whose interruption would endanger the existence or well-being of the whole or part of the population, is declared illegal.
5. 538. The Committee is aware that a total and prolonged r stoppage of railway services throughout the country might lead to a situation such as to endanger the well-being of the population. It would accordingly seem justified to provide for a minimum service in the event of a strike whose extent and duration might be such as to provoke circumstances of acute national emergency. In order to be acceptable, a minimum service of this kind should on the one hand be restricted to operations strictly necessary to avoid endangering the existence or well-being of the whole or part of the population, and, on the other hand, workers' organisations should be able to participate in defining such a service in the same way as employers and the public authorities.
6. 539. In the present case, the Committee notes that the industrial action was relatively short - two days - and accordingly it would point out, as it did in other cases and in particular in a case concerning a strike of railway workers in India, that arrests and dismissals of strikers on a large scale involve serious dangers of abuse and place freedom of association in grave jeopardy; it considers that the competent authorities should be given appropriate instructions so as to obviate the dangers to freedom of association implied by such arrests and dismissals.
7. 540. Although the Government states that a right of appeal against the measures taken exists, and that suitable action is always taken by the competent authority on the merits of each case, the Committee notes that no appeals appear to have been lodged and no reinstatements appear to have occurred. In consideration of the principle set out above, the Committee requests the Government to supply information on the present situation of the arrested and dismissed members of the Loco Running Staff Association, giving details in particular as to whether any persons remain under arrest, how many persons were tried and sentenced to fines or imprisonment and whether any appeals have been lodged or reinstatements occurred.