Informe provisional - Informe núm. 226, Junio 1983

1. 192. The Committee already examined this case at its November 1982 meeting when it presented interim conclusions to the Governing Body. Since then, the All India Loco Running Staff Association (AILRSA) sent additional information in two communications dated 21 December 1982 and 25 March 1983. The Government sent its observations in communications dated 9 February and 13 May 1983.
2. 193. India has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) or the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. Previous examination of the case

1. 194. The outstanding allegations in this case relate to the detention under the Essential Services Maintenance Act, 1981, and the National Security Act, 1980, of several named trade unionists in the railway sector in connection with a one-day general strike which took place on 19 January 1982; the raid on, and the closure of trade union offices on 31 January 1981 which had been occupied by the complainant union since November 1979; and section 36B of the Industrial Disputes (Amendment) Bill, introduced into Parliament on 23 April 1982, in an attempt - according to the complainant - to remove what little protection railway sector employees have under the industrial disputes legislation. The Government was requested to provide its specific observations on these three points.

B. Further developments

1. 195. In its communication of 21 December 1982, the AILRSA states that the documents and property seized in January 1981 have since been returned to it, but the premises wherein it had its offices have not been released by the Government for occupation by the union. According to the complainant, its occupation of the premises - which belong to the railways - was in accordance with an understanding between it and the railway administration and that it was prepared to pay the 320 rupees per month rent which had been requested; it claims that the rent could not be deposited for wart of direction from the Government. Nevertheless, the complainant stresses that its occupation of the premises cannot be called "unauthorised" because it in fact worked from these premises from November 1979 until the date of the seizure without any complaint being made by the proprietors.
2. 196. In its most recent communication, the AILRSA states that its premises have still not been opened for use by the union and repeats that its union is disadvantaged by the railway management's dealings with other unions and by practices such as secret circulars requesting monthly reports on the activities of the AILRSA. According to the complainant, when it proposed a peaceful demonstration against such action in January 1983, the management refused to grant leave and apparently no demonstration took place. It also refers to the dismissals of railway workers which have been examined by the Committee in Case No. 1024 and states that 15 further dismissals have occurred under rule 14(ii) of the Railways Rules for minimum trade union activities.
3. 197. In its communication of 9 February 1983 the Government denies that new section 36B of the industrial Disputes (Amendment) Bill - since adopted by Parliament - was intended to remove the railways sector from the purview of the Industrial Disputes Act. It explains that this section is only an enabling provision vesting certain powers in the Government and that the manner in which it is to be operated has yet to be finalised because no appropriate notification in the Government Gazette has yet been issued. It states that the intention behind section 36B is to ensure that no category of workers takes advantage of the benefits of both the existing labour laws and the corresponding government rules and regulations. Furthermore, according to the Government, a notification under the new provision shall be issued only if considered absolutely necessary and only in such cases where adequate alternative arrangements exist for the investigation and settlement of industrial disputes. Lastly, the Government gives the assurance that, before issuing any notification, the views of all concerned will be duly taken into consideration.
4. 198. In a further communication of 13 May 1983, the Government points out that the complainant admits that its assets have been returned to it. The Government adds that, as regards office accommodation, the management is under no obligation, legal or otherwise, to provide accommodation to unregistered unions.
5. 199. As regards the other information requested by the Committee in its previous examination of this case, the Government states that it is awaiting the information from the Ministry of Railways and that this will be sent as soon as possible.

C. Conclusions of the Committee

1. 200. The committee notes that the Government has not yet sent the detailed observations requested on the outstanding allegation concerning the detention under the national security legislation of several named railway unionists and on the further allegations of management interference and dismissals of 15 unionists made in the complainant's most recent communication. It requests the Government to send its observations on these matters as soon as possible.
2. 201. The Committee notes the Government's position as regards the premises which were formerly the complainant's offices. It also notes the complainant's admission that, although it had been prepared to pay the agreed rental when it occupied the premises, no rent was in fact paid. In these circumstances, the Committee considers that this aspect of the case does not call for further examination.
3. 202. As regards the allegation that section 36B (Government's discretion to exclude certain public employees from the scope of the principal Act) of the Industrial Disputes (Amendment) Act aims at reducing what little protection the railway sector employees have under the industrial disputes legislation, the Committee notes the Government's statement that this provision has not yet been used and that it will only be used if considered absolutely necessary and then only in cases where adequate alternative arrangements exist for investigation and settlement of industrial disputes. Moreover, the Committee notes the Government's assurance that before this provision is used, the views of all concerned will be duly taken into consideration. Despite the Government's further assurance that this provision was adopted with a view to ensuring that no category of workers takes advantage of the benefits of the labour legislation and the government rules and regulations, the Committee, after examining the provision in question, considers that it would appear to give the Governments concerned an unduly wide discretion to exclude employees of the State from the scope of the Industrial Disputes Act. Although the industrial Disputes Act is not the exclusive means through which employees of the State can settle their industrial disputes (other cases before the Committee concerning India refer, for example, to ad hoc grievances committees (Case No. 1024)), it is the only means through which workers can pursue the settlement of disputes to the courts. The Committee observes that other forms of regulation of disputes, such as the Government Servants' Conduct Rules, do not ensure the same degree of impartiality and independence as is guaranteed by the Industrial Disputes Act.
4. 203. The Committee would point out that Article 8 of convention No. 1512 allows a certain flexibility in the choice of procedures for the settlement of disputes concerning public servants on condition that the confidence of the parties involved is ensured. The Committee itself has stated in relation to grievances concerning anti-union practices in both the public and private sectors that such complaints should normally be examined by national machinery which, in addition to being speedy, should not only be impartial but also should be seen to be such by the parties concerned. In view of these criteria, the Committee considers that the application of section 36B of the industrial Disputes Act to railways employees would place them in a less favourable position than they enjoy at present. It would also expose the railways employees to disputes settlement procedures which do not have the confidence of the workers involved. The Committee would, accordingly, express the hope that the new provision will not be used.