Informe provisional - Informe núm. 218, Noviembre 1982

1. 655. In a joint letter of 14 December 1981, the All India Trade Union Congress, the Centre of Indian Trade Unions, the Indian National Trade Union Congress (led by Mr. J.S. Dara), Hind Mazdoor Subha, Bhartiya Mazdoor Singh, the United Trade Union Congress, the United Trade Union Congress (Lenin Sarani) and the Trade Union coordination Centre presented complaints of violations of trade union rights in India. These trade union organisations sent further information in a communication dated 27 January 1982. The Government sent its observations in a communication dated 14 May 1982.
2. 656. India has not ratified 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. The complainants' allegation

1. 657. In their letter of 14 December 1981, the complainants allege serious violations of trade union rights over the last one and a half years, culminating in the enactment of the National Security Act of December 1980 and the Essential Services Maintenance Act of September 1981. According to the complainants, the provisions of the National Security Act, according to which the grounds for detention need not be disclosed to the detainee if the Government considers it against the public interest to do so, have been used against trade union officials to deny freedom of association and the right to organise of the working class. They supply a list of persons arrested under the Act: A.K. Roy (official of the Centre of Indian Trade Unions, now released), C.K. Rajanna (President of the All India Loco Staff Running Association), S. Mahalingam (Divisional Secretary of the AILSRA), Jaswant Singh (Branch Secretary of the AILSRA), Nawal Singh (Branch Secretary), Sukh Lal (Working Divisional President), Newton Eliza (AJNI union), Datta Samant (Bombay trade union leader, now released), Mr. Madhukar (leader of the Himachal State Government Employees), Samresh Singh (President of the Bokaro State Rashtriya Mazdoor Singh), Sukhbir Tyagi and Than Singh Tyagi (both Ghaziab trade union activists).
2. 658. Furthermore, the Essential Services Maintenance Act, according to the complainants, gives the Government wide powers to ban strikes in almost every industry in India by virtue of section 2(1)(a)(xvii) which defines essential services to include any service "with respect to which Parliament has power to make laws and which the Central 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 may ... declare to be an essential service". The complainants point out that sections 5 and 7 of this Act impose heavy penalties for participation in or financing of strikes prohibited under the Act, and section 10 empowers any police official to arrest any person without warrant if that person. "is reasonably suspected of having committed any offence under this Act".
3. 659. In addition, the complainants refer to article 311 of the Constitution of India and rule 14(ii) of the Discipline and Appeal Rules of the railways which provide for dismissal from service of certain government employees (such as those in the post and telegraph, railways and public works) without any protection when the responsible authority is satisfied that a prior inquiry is not reasonably practicable and when the President or Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold such prior inquiry. These provisions are allegedly being used to dismiss workers for no valid reasons and some cases of appeal against the dismissals to the civil courts have resulted in orders for reinstatement. However in one such case, concerning government railway employees Tilak Raj, Pritam Singh and Gujjar Mal, the railway administration stated that it could not comply with the court reinstatement order because the dismissals took place under Article 311 which does not require investigation prior to dismissal.
4. 660. The complainants allege that the Government, the largest employer of the country, is refusing to honour the collective agreements which it has signed with unions and is unilaterally changing some of the clauses by official notices without the consent of the trade unions. They cite the examples of the Life Insurance Corporation - a public sector undertaking - which tried to change agreed bonus terms by parliamentary enactment, the General Insurance Sector where a Government Gazette notification changed the conditions of service of its employees, and the Railway Board which has not implemented the ten-hour working shift agreement. The complainants point out that this last example is indicative of the poor industrial relations in the railway sector, where meetings on) any form of agitation within railway premises are prohibited and trade union leaders and unionists are victimised for carrying out normal trade union activities, e.g. Amar Nath Misra, Tej Narain and Girish Chandra Pande, all trade union leaders, were transferred after protesting against the employer's violation of safety rules.
5. 661. The complainants allege that several public undertakings are arbitrarily refusing to recognise previously recognised unions, for example, J.K. Rayon Mills Kanpur refused to negotiate with the J.K. Rayon Workers Union Kanpur and instead entered into an agreement with a "gangster" organisation which attacked the premises of the recognised union and its active members. Such attacks are, according to the complainants, frequent in Haryana State where, for example, at the Gopi Chand Textile Mills, on 19 March 1981, security guards fired on recently unionised workers without any provocation; on 27 April 1981 the police opened fire o:. a peaceful demonstration of the same employees; and on 29 April the President of the Class IV public employees union, Mr. J.P. Pande, was beaten and tortured by the police.
6. 662. The complainants also state that six workers have been recently killed during agitation by public sector employees when the police fired on them: on 20 January 1981 Messrs. Govindaraju, Krishna and Srinivas were shot dead in Bangalore; on 6 and 10 October 1980, respectively, Prem Singh, and Amar Chand and Rattan Chand were killed in Himachal Pradesh.
7. 663. In their communication dated 27 January 1982, the complainants stress that the Government of India has not yet ratified the two basic ILO Conventions concerning freedom of association and stare that the blatant refusal by the Government to ratify these two Conventions, absolutely essential for the development and even the very existence of a free trade union, amounts to a denial to the working class of its right to organise.
8. 664. The complainants explain that recently all the central trade unions, except the government sponsored and patronised Indian National Trade Union Congress (INTUC) gave a joint call for a one day protest strike on 19 January 1982. The protest action was, inter alia, for the following demands: repeal of the Essential Services Maintenance Act and the National Security Act; recognition of trade unions on the basis of secret ballot; full guarantee of collective bargaining and trade union rights. According to the complainants, despite the solemn promise made by the Government during the debate on the National Security Bill that this measure would not be used against trade unionists, and despite a similar declaration made through the media once the Bill had become an Act, over 50,000 leaders and activists of the trade unions were arrested all over the country. The State and Central Governments were threatening the workers with punishment if they joined the protest strike, such as break in service or wage cuts for seven days. Again, it appears that the most serious anti-strike measures are being carried out in Haryana State where all the employees of Hansi Co-operative Spinning and weaving Mills Ltd. and Haryana Concast Ltd. Hissar, numbering about 3,000, were dismissed from service for participating in the strike.
9. 665. Finally, the complainants draw attention to the question of nomination of the delegation from India to the International Labour Conference. Most of the central trade unions in India have been demanding that the leader of the delegation should be nominated on the basis of rotation, but apparently the Government has been nominating only the representative of its patronised faction of INTUC on the grounds that it was the largest organisation in the country. According to the complainants, this deprives the overwhelming majority of the workers in the country of sending their representatives to the Conference, especially in view of the fact that there is no acceptable method of determining membership strength of organisations. For example, they claim that membership is inflated with the collusion of employers and that the verifying officials act on the orders of the Government; the falsity of the verification procedure has been proved whenever a free ballot of the workers has been taken, the unions declared to be "representative" by the authorities through their method have fared very badly, often receiving the least number of workers votes.

B. The Government's reply

1. 666. In its letter of 14 May 1982 the Government denies that there has been any violation in India of the international standards laid down by the ILO. It states that the complainants represent certain opposition political groups which, being in a minority and having failed in other attempts to weaken the Government, lodged this complaint so as to embarrass the Government in an international forum. It points out that, under the Indian Constitution, freedom of association is protected and the judiciary remains open to those who seek redress where thins right if violated, as is proved by the fact that many of the incidents cited by the complainants are sub judice. The Government recalls that India has not been able to ratify Conventions Nos. 87 and 98, not because it has no respect for the principles contained therein, but because of "certain other technical and administrative reasons" which have been explained to the ILO. In addition, it states that when compared to the total population of India, the complaint only relates to a very small number of persons and should be viewed from a larger perspective.
2. 667. Turning to the specific allegation concerning the adoption and application of anti-union legislation, the Government states that, while it is possible that some of the persons against whom action has been taken under the new legislation happen to be trade unionists, action was taken against them not because of their trade union activities but because of their anti-social or antinational activity for which they cannot claim any immunity. According to the Government, the national authorities are in the best position to judge questions affecting the sovereignty and integrity of the ration and it "may not be proper for any outside authority to question that judgement.".
3. 668. As regards the National Security Act, the Government states that it has been made clear, both in and outside Parliament, that its provisions will only he used against anti-social or anti-national persons and to this end the Central Government has issued, from time to time, detailed guidelines and clarifications to all state governments. According to the Government, the Act contains sufficient safeguards against misuse, in particular, section 8 (grounds of order of detention to be disclosed to persons affected within five days so that they may at the earliest opportunity make a representation against the order to the appropriate government, but nothing shall require the disclosure of facts considered to be against the public to disclose) and sections 9, 10 and 11 (advisory boards consisting of three High Court judges - whether acting or not - shall within seven weeks from the date of detention report to the appropriate government as to whether or not there is sufficient cause for the detention of the person concerned). As regards the arrests under the Act listed by the complainants, the Government gives the following explanations: Mr. Foy was detained on 11 November 1980 for criminal activities affecting the maintenance of public order and having nothing to do with the pursuit of trade union rights; the order was revoked and he was released three days later. The six listed railway employees were also not detained for trade union activities and are no longer in detention. According to information received from the State Government of Bihar, Mr. Samresh Singh was never detained in 1981 under this Act. The Government states that Dr. Datta Samant, a strong-arm tactics trade unionist, was detained on 24 June 1981 to prevent him from acting in a manner prejudicial to the maintenance of public order on the grounds that 70 violent incidents had occurred as a result of his provocative speeches; he was released by the Bombay High Court on 28 July, detained again on the same day and released again by the same court on 17 August, both releases being ordered on technical grounds and one of the judges recognising that he posed a serious threat to the industrial peace of the State. According to the Government, Mr. Mr. Madhukar sabotaged the Government's efforts to resolve a strike by employees of the State of Himachal and was detained for activities prejudicial to the State on 3 October 1980; he was released nine days later when the employees unconditionally called off their strike. Mr. Sukhbir Singh Tyagi was detained on 3 June 1981 for criminal activities; he was released on the advice of the advisory board on 27 July 1981. Mr. Than Singh Tyagi was detained on 7 October 1980 and released on 20 June 1981 by order of the Delhi High Court.
4. 669. As regards the Essential Services Maintenance Act, the Government refers to its comments thereon previously submitted to the ILO during the examination of Case No. 1091 concerning this legislation. It reiterates that this Act is an economic measure only and has been used in only one case (the strike by workers of the Maharashtra State Electricity Board), the two other cases mentioned in the reply to Case No. 1091 having nothing to do with trade union rights.
5. 670. As regards the allegation concerning article 311(2)(c) of the Indian Constitution, the Government points out that action to dismiss a government employee under this provision is only taken in extreme cases where that person is engaged in or associated with subversive activity and is decided by a high-level Committee of Advisors on the merits of each case. The Government states that the court case concerning the three dismissed railway workers mentioned by the complainants is independent of the disciplinary action taken against them under the Discipline and Appeal Rules; the employees have in fact filed petitions with the Delhi High Court against their removal from service.
6. 671. As regards the alleged non-implementation of collective agreements, the Government states that in the case of the Life Insurance Corporation, when the agreement in question expired on 31 March 1977, the Government and management made several attempts to rectify certain anomalous provisions concerning bonuses and allowances. The employees took the matter to the Supreme Court which decided that the provisions continued to operate until a fresh agreement, award or legislation replaced them. The Government, accordingly, decided to amend the life Insurance Corporation Act Rules regarding bonuses and allowances. The employees challenged the amendments in the Supreme Court but the amendments were upheld. In the case of the General Insurance Corporation, the Government states that the terms and conditions of employment are governed by the General Insurance Business (Nationalisation) Act and that the 1980 amendments thereto did not affect the employees detrimentally, but substantially improved their service conditions. As regards the situation in the railways sector, the Government considers that the issue of circulars prohibiting demonstrations during working hours at the workplace in no way violates trade union rights. Furthermore, in reply to the alleged de-recognition of certain recognised unions, the Government refers to the Committee's examination of similar cases concerning India.
7. 672. As regards the alleged suppression of trade union rights in Haryana State, in particular the example of the Gopi Chand Textile Mills, the Government states that a registered trade union has been operating in this establishment under the name of Gopi Chand Textile Mazdoor Union since 1970 and that another union, the Textile Mill Workers Union, is at the moment contesting the refusal of the Registrar of Trade Unions to register it in respect of the same undertaking. According to information received from the Haryana Government, there is a history of worker violence at this establishment and the incident of 19 March 1981 was investigated by the police, resulting in actions under the Penal Code and Arms Act. The workers resorted to strike action from 23 March and, despite Government efforts at conciliation and arbitration, on 27 April a violent mob attacked the police station seriously injuring officials. The Government states that the police showed commendable restraint in dealing with the situation and that the alleged incidents of 29 April are completely false.
8. 673. As regards the six workers allegedly killed by police firing during public sector strikes, the Karnataka Government states that during a violent strike which commenced on 21 January 1981 the police were forced to open fire, after due warning and in self-defence, on a dangerous mob of about 5,000 persons; three persons died as a result of this and, in a parallel incident, a fourth (presumably Mr. Srinivas mentioned by the complainants) was shot and later died. The Government stresses that a total of 57 policemen were injured during these incidents and that government funds have paid 5,000 rupees relief to the families of persons who died. The deaths in Himachal Pradesh, according to the Government, occurred during the strike of September/October 1980 at two violent and unlawful meetings. The police firing in both incidents was ordered by a magistrate and the Government has granted Mr. Prem Chand's widow gainful employment and a family pension, as it had done for the next of kin of the other two government employees who were shot.
9. 674. In reply to the complainant's second communication, the Government states that it made all possible efforts to avoid the general strike called for 19 January 1982 which it considered would disrupt essential services and dislocate industrial production, thus aggravating the already difficult economic situation. It had no option but to take certain preventive measures against anti-social and anti-national persons under the National Security Act, although the bulk of the arrests were made under preventive sections of the law other than this Act. According to the Government, only those persons arrested for violent acts are likely to be proceeded against under the law and most of them have been released on tail.
10. 675. As regards the examples of anti-strike measures in Haryana State referred to by the complainants, the Government explains that the workers of the Hansi Co-operative Spinning and Weaving Mills had signed an agreement in December 1981 renouncing strike action. When they then joined the general strike in January 1982 the management was forced to declare a lock-out which only lasted until 26 February 1982. As for the Haryana Concast Ltd., the Government explains that the management terminated the service of a number of workers because they had participated in the January 1981 strike, but had reinstated them as from 23 January 1982. The Government concludes that such action was only taken in the face of country-wide violence and was not an attempt to suppress genuine and lawful trade union rights.
11. 676. Finally, as regards the allegation concerning India's delegation to the International Labour Conference, the Government states that there is a specific procedure laid down in the ILO Constitution for the selection of workers delegates to the annual session of the Conference and that the Credentials Committee of the Conference deals with matters such as those raised by the complainants. Accordingly, it does not consider it necessary to comment further on this aspect of the complaint.

C. The Committee's conclusions

1. 677. This case concerns allegations that two recent enactments (the National Security Act and the Essential Services Maintenance Act), as well as article 311(2) of the Indian constitution, are being used against workers and trade unionists and that the Government has resorted to other anti-union measures such as arbitrary modification of collective agreements, de-recognition of registered unions and police firing on meetings of striking workers. There is also an allegation concerning the composition of India's delegation to the International Labour Conference.
2. 678. As regards the alleged abuse of the detention provision contained in the National Security Act, the Committee notes that the complainants do not attempt to substantiate their claim that 12 unionists (whose name they supply) were in fact arrested for carrying out trade union activities. It notes, on the other hand, that the Government explains in detail the reasons for each detention and that the safeguards against misuse incorporated into the Act or a settlement of the situation which had prompted the arrests have resulted in the release of all detained persons. The Committee therefore considers that this aspect of the case does not call for further examination.
3. 679. As for the Essential Services Maintenance Act, the Committee would refer to the comments which it has recently formulated in this connection when examining Case No. 10911, in particular, on section 2 (definition of "essential services" in respect of which strikes can be banned), section 5 (imprisonment of up to 12 months and/or fines of up to 2,000 rupees for financially aiding illegal strikes) and section 10 (arrest without warrant of suspected strikers). In that case the Committee recalled that the right to strike may be restricted or ever prohibited in the civil service or fn essential services in the strict sense of the term, i.e. services whose interruption would endanger the existence or well-being of the whole or part of the population, but was of the opinion that the range of services described as essential under the Act was an extensive one, going well beyond the concept of essential services as defined above. It expressed the hope that the Government would consider the possibility of reviewing the legislation, by narrowing down the list of services in which strikes may be prohibited to essential services in the strict sense of the term and requested the Government to indicate any steps taken to this effect. Furthermore, in view of the nature of the procedures and the severity of the penalties available against workers who participate in or persons who support certain strikes, the Committee considered that the legislation was not conducive to the development of harmonious industrial relations. While reiterating these conclusions in relation to the present case, the Committee intends to pursue developments as regards this Act in the framework of case No. 1091.
4. 680. As regards the alleged abuse of the Constitutional provision allowing dismissal of government employees without prior inquiry the Committee notes that the complainants do not allege that the dismissal of three named railway employees was due to their trade union activities. Moreover, it notes the Government's reply that such action is only taken in extreme cases where persons are engaged in or associated with subversive activity and that decisions are taken by a high-level Committee of Advisors on the merits of each case. In view of the additional fact that the workers in question have been able to challenge their dismissals before the High Court, the Committee does not consider that it need examine this aspect of the present case further.
5. 681. The Committee notes the Government's reply to the allegation that it arbitrarily modifies collective agreements in the public sector, in particular the fact that the Supreme Court has upheld such amendments when made in the legislative context. In this connection, the Committee has stated in the past that a legal provision which could be applied so as to call into question the provisions laid down in collective agreements or to prevent the workers from negotiating such conditions as they wish in future collective agreements would, if so applied, infringe the right of the workers concerned to bargain collectively through their trade unions. The Committee would accordingly draw this principle to the Government's attention in the hope that it will find it possible not to resort to such action in the future. It requests the Government to inform it of the outcome of the Supreme Court case brought by certain public service employees against amendments to the General Insurance Business (Nationalisation) Act.
6. 682. The Committee notes that the Government has not replied to the allegation that three named trade union leaders in the railways sector - a sector allegedly suffering particular anti-union victimisation - were transferred for carrying out normal trade union activities, namely for protesting the employer's violation of safety rules. It accordingly requests the Government to send its observations on this aspect of the case.
7. 683. As regards the allegation that other normal trade union activities, such as meetings, are prohibited in this sector, the Committee notes from the Government's reply that this prohibition applies only during working hours. This being so, the Committee considers that this aspect of the case calls for no further consideration on its part.
8. 684. The Committee notes that in reply to the allegation that several public sector undertakings are arbitrarily de-recognising recognised trade unions, the Government refers to the Committee's previous examination of such allegations in Case No. 1050. In that case the Committee concluded that a refusal by an employer to bargain with a particular union need not constitute an infringement of freedom of association because 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. In the present case the Committee would, accordingly, reaffirm this principle and at the same time express the hope that the Government will take whatever steps might be possible to encourage the development of harmonious industrial relations in this sector.
9. 685. As regards the alleged suppression of trade union rights in Haryana State, the Committee notes the Government's denial that the police opened fire on a peaceful demonstration of textile mill trade unionists on 27 April 1981 and that a named leader of the public employees trade union was tortured two days later. Faced with directly contradictory statements and lacking substantiating evidence from both parties, the Committee can only recall that it has always stressed the importance of a prompt and independent legal investigation into alleged cases of death, assault or ill-treatment of trade unionists with a view to elucidating the facts in full, to identifying the persons responsible and to taking procedures against them.
10. 686. As regards the similar allegation that six named workers were killed during agitation by public sector employees by police firing, the Committee notes that the Government admits these deaths, but claims that in each incident the firing was carried out as a last resort after due warning and in self-defence, adding that more than 50 policemen were injured during the disturbances. It also notes the Government's statement that the next of kin of the deceased have been paid compensation from Government funds. While observing that it has not been supplied with specific information as to the trade union functions of the deceased, the Committee can only deeply regret the loss of human life and the injuries that occurred and would draw the Government's attention to the principle set out in the preceding paragraph.
11. 687. The Committee notes the Government's reply as regards the alleged reprisals (over 50,000 arrests and 3,000 dismissals) against trade unionists for participating in the general strike of 19 January 1982, in particular the fact that most of the persons arrested have been released on bail and that the strikers dismissed from at least one undertaking in Haryana State have been reinstated as from 23 January 1982. Nevertheless, the Committee considers that it should draw the Government's attention to the fact that the development of harmonious industrial relations could be impaired by an inflexible attitude being adopted in the application of severe sanctions to workers who participate in strikes, and in particular that massive dismissals following strikes involve a serious threat to freedom of association.
12. 688. Lastly, as regards the alleged lack of representativity of India's delegation to the international Labour Conference, the Committee notes the Government's reply and adds that it is not competent to express an opinion on the subject since article 26.3 of the Standing Orders of the International Labour Conference provides that the Credentials Committee appointed by the Conference "shall consider any objection concerning the nomination of any delegate or advisor". It should be pointed out in this respect that none of the eight complainant organisations have submitted objections to the Credentials Committee at recent sessions of the International Labour Conference.