Informe definitivo - Informe núm. 211, Noviembre 1981

101. The complaint of the Centre of Indian Trade Unions (CITU) is contained in a communication dated 23 March 1981. That of the DVC (Damodar Valley Corporation) Staff Association is contained in a communication dated 8 June 1981 and it sent additional information on 6 July 1981. The Government sent its reply in letters dated 21 August and 10 September 1981.

1. 101. The complaint of the Centre of Indian Trade Unions (CITU) is contained in a communication dated 23 March 1981. That of the DVC (Damodar Valley Corporation) Staff Association is contained in a communication dated 8 June 1981 and it sent additional information on 6 July 1981. The Government sent its reply in letters dated 21 August and 10 September 1981.
2. 102. 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 complainants' allegations

1. 103. In its letter, the CITU alleges that employees of the Damodar valley corporation (DVC) - a multi-purpose government-run corporation set up in 1949 - have, since the advent of its new chairman in August 1980, been denied their economic demands and trade union rights. The CITU explains that its affiliate - the DVC Shramik union - organised a hunger strike on 23-24 July followed by submission of a memorandum of demands to the management; mass squatting (dharna) on 27-28 August followed by the submission of a similar memorandum and, there being no management reaction, a duly notified strike on 23-24 September. It claims that against this background of growing struggle, the management, on 21 August, issued a circular banning any discussion with the "unrecognised" unions, depriving the workers of their right to collective bargaining, whereas under a standing order of November 1969 discussion had been allowed irrespective of recognition. According to the complainant, the management then cancelled in contravention of the DVC standing orders the casual leave already granted on personal grounds to some workers who had participated in the hunger strike and dharna. On 3 October 1980, when one of the two recognised unions was "derecognised", orders were given for maintaining "a watch on the known or suspected agitators" and "a continuous dossier on the activities and acts of indiscipline that may be committed by suspects or likely offenders" which the CITU considers intimidated the workers and deprived them of their basic democratic and trade union rights.
2. 104. The CITU then lists specific cases of anti-union victimisation allegedly carried out by the DVC: on 4 September 1980, D. K. Roychowdhury, Treasurer of the DVC Shramik Union, was transferred in violation of all the norms laid down by the DVC; on 1 October 1980, seven workers, including Mr. M.M. Dutta and Mr. Himanshu Roychowdhury, vice-President and member of the Central Committee of the DVC Shramik Union respectively, were suspended on false and fabricated grounds; on 17 October, three more unionised employees were suspended on a baseless allegation that they neglected their duties; one recognised union received favoured treatment over the others as the management allowed leave with pay for its hunger strike and dharna because its members did not participate in the strike of 23-24 September.
3. 105. The DVC Staff Association alleges that the employees of the Damodar Valley Corporation have, since August 1980, been denied their trade union and democratic rights by the following actions by the employer: refusal of discussion, including collective bargaining, with unrecognised registered trade unions despite past practice; salary cuts and caution letters to be applied to workers taking part in industrial action, copies of such letters being kept on the workers, service records; de-recognition of the complainant organisation without giving reasons or allowing it the opportunity of a hearing and consequent refusal of representation on various Committees; the banning of bill posting and rallies in the DVC industrial colony; transfer of employees who took part in trade union activities; the scrapping of collective agreements in favour of unilaterally imposed decisions; and intimidation against the collection of union dues by issuing a show cause notice as to why disciplinary action should not be taken against unionists for such unauthorised action.

B. The Government's reply

1. 106. The Government generally states that while it fully recognises the right of workers to strike, the DVC Staff Association, by its own admission, has been frequently resorting to agitation and coercive methods such as the hunger strike and dharna in July and August 1980 and it points out that the September strike was illegal under the Industrial Disputes Act, 1947 because conciliation proceedings were pending before the Labour Commissioner of West Bengal. More specifically, it claims that it is not correct to say that management had earlier discussed various problems with all registered unions irrespective of whether or not they were recognised - even under the 1469 circular unrecognised registered unions could only discuss individual cases having no general application - and registered unions, even if unrecognised, can always utilise the industrial Disputes Act for settlement of disputes within the meaning of that Act. In addition, the Government points out that agreement has already been reached with the recognised union concerning the demands which gave rise to the industrial action. It claims that the management has been ensuring that the legitimate grievances of workers are settled expeditiously and there is no restriction on their trade union rights.
2. 107. As regards the allegations of anti-union reprisals, the Government states that the casual leave which had been granted was cancelled, and consequent wage cuts for absence ordered, because it had come to the management's notice that the workers had applied for it on private and personal grounds but had in fact taken leave to participate in the hunger strike. It states that the "derecognition" notice of 3 October was issued for the safety of the plant and included orders for surveillance because attempts were made to sabotage the plant after one of the unions had been derecognised. In fact, it alleges that an employee caught taking part in such sabotage was a member of the derecognised union and was arrested under the National Security Act. The Government explains that D.K. Roychowdhury, engineer, was transferred in the interests of the DVC's work and not as a measure of victimisation - the management thought that being a technical hand, his services could be better utilised in construction projects rather than at headquarters. It claims that the suspension of seven workers was not due to their trade union activity, but for their assault and incitement of other employees to assault the Chairman of the DVC on 1 October 1980, as a result of which he had to be hospitalised. It continues that the three other suspensions were due to gross negligence of duty which could have caused serious damage to the plant; these workers were, however, released from suspension and reinstated after admitting their mistake. As regards suspensions in general, the Government points out that the union could have had recourse to the existing legal remedies for settlement, rather than lodging a complaint with the ILO. Lastly, it states that the management's action in allowing leave with pay to certain workers was not to favour them, but was a token of appreciation of their devotion to duty during the September strike.
3. 108. In its communication of 10 September 1981, the Government refers to the banning of bill posting stating that the unions were indulging in sticking posters on the walls of the power plants and other buildings indiscriminately in spite of notice boards provided for that purpose and that they had been warned not to do so; it also mentions that the Government of India in 1970 issued directives to take immediate steps to efface all objectionable writings and posters on the walls of buildings, so the Corporation's action does not affect trade union rights. The Government goes on to state that the allegations of transfer of employees and scrapping of collective agreements are vague and too general to comment on; it does however deny that any person has been transferred by way of victimisation for his trade union activities. Lastly, it claims that the notice regarding the ban of collection of subscriptions within factory/office premises during working hours cannot be objected to as such collection violates Regulation 9 of the DVC Service Conduct/Regulations.

C. The Committee's conclusions

1. 109. This case concerns allegations that after engaging in industrial action in July, August and September 1980, certain unions and employees of the government-run Damodar Valley Corporation were victimised by the management by the banning of any discussion with the "unrecognised" unions which allegedly deprived the workers of their right to collective bargaining; cancellation of the casual leave already granted to some participants in the industrial action; "derecognition" of one of the unions involved and the ordering of a watch and continuous dossiers on known or suspected agitators; transfer of the Treasurer of one of the unions involved; suspension of ten workers including the Vice-President and a Central Committee member of the same union; favoured treatment to members of another union which did not participate in the September 1980 strike; and additional allegations concerning the banning of bill posting, rallies and of collection of union dues at the workplace.
2. 110. As regards the allegation that the management's banning of any discussion with the "unrecognised" unions deprived workers of their right to collective bargaining, the Committee notes the Government's statement that discussion with "unrecognised" unions had only taken place in respect of individual cases having no general application and that these unions have the same right as other registered unions to settle disputes through the industrial Disputes Act. Furthermore, the Committee notes that, according to the Government, the demands which gave rise to the industrial action have been settled by agreement with the recognised union. The Committee has considered in the past that a refusal by an employer to bargain with a particular union need not constitute an infringement of freedom of association; it has adopted this attitude on the basis of the principle that collective bargaining must, if it is to be effective, assume a voluntary character and not entail recourse to measures of compulsion which would alter the voluntary nature of such bargaining. It is therefore of the opinion that this aspect of the case does not call for further examination.
3. 111. As concerns the cancellation of the casual leave already granted to some participants in the industrial action, the Committee notes that the CITU itself admits - in accordance with the Government's justification - that the leave had been claimed on personal grounds and was subsequently used for participation in a hunger strike and dharna directed against the DVC. In these circumstances, the Committee considers that the subsequent retroactive cancellation of the leave granted and the consequential wage-cuts for unauthorised absence do not appear, in this particular case, to constitute acts of anti-union discrimination. It accordingly considers that this aspect of the case does not call for further examination.
4. 112. Regarding the "derecognition" notice ordering the maintenance of a watch on known or suspected agitators and a continuous dossier on the suspects' acts of indiscipline, the Committee notes the Government's explanation that this was done for the safety of the plant, particularly in view of a recently-foiled sabotage attempt by an employee, a member of the "derecognised" union. While acknowledging the employer's right to protect his plant, the Committee finds it difficult to accept that the action of one unnamed employee should justify the continuous surveillance of all members of his union, indeed, of all the employees of the undertaking who are "known or suspected agitators". In this connection, it would recall the ILO Resolution concerning trade union rights and their relation to civil liberties' which makes special mention of the right to freedom and security of person as one of the civil liberties essential for the normal exercise of trade union rights and the right to inviolability of trade union premises as well as of correspondence and telephonic conversations.
5. 113. As for the transfer of D.R. Roychowdhury, the Treasurer of one of the unions involved in the industrial action, the Committee notes that the CITU alleges that this was due to his trade union activities, whereas the Government explains that this was done in the interests of the DVC's work since he was a technical hand who could be better utilised in construction projects than at headquarters. In view of this reply and the absence of evidence to support the allegation, the Committee would simply recall that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of antiunion discrimination in respect of their employment, this protection being particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they must have the guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee considers that this aspect of the case does not call for further examination.
6. 114. As regards the suspension of 10 workers, including Mr. M.M. Dutta and Mr. Himanshu Roychowdhury, the Vice-President and a Central Committee member of one of the unions involved in the industrial action, the Committee notes that the CITU alleges this was done on false and baseless grounds, whereas the Government claims that it was due, in the case of the seven workers suspended on 1 October, to their violent assault on the Chairman of the Corporation, and in the case of the three suspended on 17 October, to their gross neglect of duty. The Committee further notes that, according to the Government, these latter three were released from suspension and reinstated after admitting their mistake, so it is only the situation of the seven workers suspended on 1 October that is outstanding. In cases involving allegations of anti-union discrimination, the Committee has referred to the difficulty that a worker may have in furnishing proof of such an act of which he claims to have been the victim and it has drawn attention to the Workers' Representatives Recommendation, 1971 (No. 143) which recommends, as one of the measures that should be taken to ensure the effective protection of workers' representatives, provision for laying on the employer, in the case of any alleged discriminatory dismissal or unfavourable change in the conditions of employment of a workers' representative, the burden of proving that such action was justified. In the present case, the Government has not supported its explanation of the suspensions with concrete evidence; its claim that the union could have had recourse to the existing legal remedies for settlement, rather than lodging a complaint with the ILO, does not justify the DVC's actions. The Committee, when examining other cases in the past, has stated that in view of the nature of its responsibilities it cannot consider itself bound by any rule that national procedures of redress must be exhausted. It would therefore draw the Government's attention to the abovementioned principle that workers, especially trade union officials, should enjoy adequate protection against acts of anti-union discrimination in their employment and would request the Government to consider the possibility of revoking the suspension of the seven unionists and trade union leaders involved.
7. 115. As concerns the alleged favoured treatment given by the management to the members of one union which did not participate in the strike in September 1990, the Committee notes the Government's reply that the allowance of leave with pay to certain workers was a token of appreciation of their devotion to duty. In this connection, the Committee would recall that by placing one organisation at an advantage or at a disadvantage in relation to the others, a government may either directly or indirectly influence the choice of workers regarding the organisation to which they intend to belong, since they will undeniably want to belong to the union best able to serve them, even if their natural preference would have led them to join another organisation for occupational, religious, political or other reasons.
8. 116. As regards the allegations presented by the DVC Staff Association concerning transfer of employees who took part in trade union activities and of scrapping of collective agreements in favour of unilaterally imposed decisions by management, the Committee notes the Government's statement that these are vague and general allegations and that in the absence of any specific instances being cited, no comments can be given beyond a general denial of any transfers of personnel because of trade union activities. In view of the lack of detailed information as to these two allegations, either in the original complaint or in the additional information, the Committee cannot but come to the conclusion that this aspect of the case does not call for further examination.
9. 117. Regarding the allegation of the banning of bill posting and rallies, the Committee notes that according to the Government, this was justified because the unions had, despite warnings to the contrary and the provision of notice boards, been indiscriminately sticking posters on the walls of Corporation buildings. It does not specifically refer to the alleged ban on rallies. In this connection, the Committee would, while noting the lack of specific details given by the DVC Staff Association, generally point out that the ILO Resolution concerning Trade Union Fights and their Relation to Civil Liberties' lists freedom of assembly and freedom to impart information and ideas through any media as among the civil liberties which are essential for the normal exercise of trade union rights.
10. 118. As concerns the banning of the collection of union dues within the undertaking's premises and during working hours, the Committee notes the Government's statement that such collection violates the Corporation's Service Regulations. In this connection, it would draw the Government's attention to ILO Recommendation No. 143 concerning Protection and Facilities to be Afforded to Workers' Representatives in the Undertaking, which provides that in the absence of other arrangements for the collection of trade union dues, workers' representatives authorised to do so by the trade union should be permitted to collect such dues regularly on the premises of the undertaking. It would accordingly request the Government to consider taking steps to bring Regulation 9 of the Corporation's Service Regulations into line with this provision of Recommendation No.