Informe provisional - Informe núm. 295, Noviembre 1994

1. 548. The Committee has already examined the substance of this case at its March 1994 Session and presented interim conclusions to the Governing Body (see 292nd Report, paras. 633-674, approved by the Governing Body at its March 1994 Session).
2. 549. The Government supplied certain further information on this case in communications dated 2 August and 11 October 1994.
3. 550. India has ratified neither the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) nor the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 551. In its initial complaint, the International Union of Food and Allied Workers' Association (IUF) had raised allegations of interference by the authorities and the management of Hindustan Lever Ltd. in the functioning of an international seminar it had organized, as well as several acts of anti-trade union discrimination and interference in trade union activities.
2. 552. At its March 1994 Session, in the light of the Committee's interim conclusions, the Governing Body approved the following recommendations:
   • (a) The Committee notes with concern that during an international seminar organized by the IUF in Bombay, seminar organizers were interrogated by a police officer and certain participants were asked to report to the police station daily. It requests the Government to ensure that the formalities to which trade unionists and trade union leaders are subject in seeking entry to the territory of a State, or in attending to trade union business there, are based on objective criteria and free of anti-union discrimination. Furthermore, it requests the Government to keep it informed of the outcome of the report that is being prepared on this matter by the state government of Maharashtra.
   • (b) Regretting the slow and bureaucratic nature of procedures concerning allegations of anti-union dismissal, the Committee requests the Government to ensure that workers enjoy adequate protection against all acts of anti-union discrimination in respect of their employment. It draws the Government's attention to the danger that justice will be denied as a result of the slowness of the judicial procedures.
   • (c) In view of the principles enunciated above, the Committee requests the Government to provide information relating to: (i) the progress and the outcome of the proceedings before the Labour Court, Bombay, concerning the dismissal from service of Mr. Ghuge and Mr. Nand Kumar, office-bearers of the Hindustan Lever plant in Bombay; (ii) the progress and the outcome of the judicial proceedings before the Labour Court, Agra, concerning the dismissal from service of Mr. M. Prasad and Mr. B.S. Rawat, office-bearers of the Etah Unit of Hindustan Lever; and (iii) the progress and the outcome of the writ petition filed by the management of the Delhi Branch Office of Hindustan Lever before the Delhi High Court concerning the dismissal of Mr. R.P. Bidani, Chairman of the Ghaziabad Unit of Hindustan Lever, before his transfer to Delhi.
   • (d) The Committee requests the Government to ensure that an independent and impartial inquiry is held with respect to the forced transfers of trade union officials away from factory premises in order to ascertain whether the transfers of these six office-bearers were based on acts of anti-union discrimination and, if so, to ensure that these office-bearers are transferred back to the factory premises of the Hindustan Lever plant in Bombay. It also requests the Government to ensure in future that employers refrain from having recourse to such measures.
   • (e) Taking into account the particular circumstances of this case, the Committee requests the Government to ensure that direct negotiation between the undertaking and its employees does not bypass representative organizations where these exist. The Committee thus requests the Government to keep it informed of the outcome of the applications before the Industrial Court, Bombay, by the Hindustan Lever Employees' Union and the Hindustan Lever Research Centre Employees' Union to be declared as recognized unions and to obtain the status of sole bargaining agents.
   • (f) The Committee requests the Government to keep it informed of the progress and the outcome of the dispute pending before the conciliation authority in Calcutta concerning the retrenchment of 300 contract workers in the Hindustan Lever Unit in Calcutta. It further requests both the complainant and the Government to provide information relating to the exact reasons for the retrenchment of the trade union leader, Mr. S.B. Roy, as well as the reasons as to why the management stopped contract works in the Unit in Calcutta in 1988.
   • (g) The Committee requests the Government to ensure that the principle that workers' and employers' organizations shall enjoy adequate protection against any acts of interference by each other or each other's agents or members in their establishment, functioning or administration is respected.
   • (h) The Committee requests the complainant to provide, as soon as possible, information: (i) giving details on the alleged retrenchments of the five union officials in the Etah Unit of Hindustan Lever Ltd.; (ii) indicating why the termination of services of the contract workers in Taloja, Bombay, constituted acts of anti-union discrimination; (iii) specifying which first-level unions at Hindustan Lever plants are advised by management not to join the trade union federation of Hindustan Lever companies and describing incidents which demonstrate that the management hinders the activities of the federation; (iv) indicating the Hindustan Lever Unit in which retrenched federation leaders Mr. R.L. Gupta, Mr. Patni and Mr. F. D'Souza were previously employed and their respective year of dismissal; and (v) relating to the allegation that during research to compile information leading to the complaint researchers were harassed and/or followed by police and security personnel from Hindustan Lever, and in particular on the names of the six places and 21 establishments that were visited as well as the names of the researchers involved and the dates on which these incidents of harassment and intimidation allegedly occurred.
   • (i) The Committee requests the Government to keep it informed of the progress and outcome of the unfair labour practice complaint pending before the Industrial Tribunal, Bombay, which was filed by the Hindustan Lever Research Centre Employee's Union in connection with the management's actions prohibiting an office-bearer from attending conciliation proceedings pertaining to the union.

B. The Government's observations

1. 553. In its communication of 2 August 1994, the Government provides the following information.
2. 554. As regards the allegations relating to the interference in the IUF seminar in Bombay, the Government states that, according to the authorities of Maharashtra, a Mr. H.H. Daliat (now retired) had been detailed to cover that seminar; however, he did not interrogate any of the organizers. According to the instructions issued by the Government of India and under the provisions of the 1974 India-Pakistan Visa Agreement, every Pakistani national has to report his arrival and departure to a police station within 24 hours; as it had been noticed that some Pakistani nationals who were attending the seminar had not reported their arrival to the Bombay police authorities, they were requested to report their arrival and departure to the police. Upon inquiry, the state government found that none of the seminar participants were required to report to the police station daily. Perhaps, the organizers of the seminar should have taken upon themselves the responsibility of informing the Police Authority about the participation of Pakistani nationals at the seminar, which they had failed to do. As such the action of the state government was in accordance with the instructions in force in the country. Hence, there is no substance in the complaint made by the seminar organizers. The Government submits that the action was free of anti-union discrimination.
3. 555. With respect to the dispute concerning the retrenchment of 300 contract workers in the Calcutta Unit of Hindustan Lever, the Government mentions that, as a result of stoppage of contract labour in Hindustan Lever Ltd., Garden Reach, Calcutta in 1988 about 300 contract labourers were rendered jobless. The Union alleged that the management had intentionally stopped contract work on unreasonable and unjustified grounds. As there was a dispute between two rival factions of the union, the matter was sub judice in the High Court at Calcutta and the Labour Directorate could not arrange conciliation meetings. The dispute has since been resolved by an order of the Calcutta High Court. An understanding was reached in June 1992 between the management and Hindustan Lever Sramik Karmachari Congress to the effect that all monies due to the contract labourers would be cleared by the respective contractors, which they have done now. About 25 workmen employed by the previous contractors have been given employment with the new contractors working at present in Hindustan Lever Ltd. The Government adds that, according to the authorities of West Bengal, the Garden Reach Unit of Hindustan Lever Ltd. has terminated the job contract with nine contractors on 9 January 1988, due to non-availability of work.
4. 556. The Government indicates that, according to the authorities of West Bengal there is no case regarding the retrenchment of Mr. S.B. Roy. However, Hindustan Lever Sramik Karmachari Congress had raised an industrial dispute on 26 February 1990 over the termination of Mr. Basudev Singha Roy, Assistant Secretary of the Union. As the matter could not be settled amicably, it was referred to the Industrial Tribunal. The parties have now filed a compromise petition in terms of which Mr. Basudev Singha Roy was reinstated in his job.
5. 557. In its communication of 11 October 1994, the Government provides the following information with respect to the Committee's third recommendation (c). It states that the writ petition filed by the management of Delhi branch office of Hindustan Lever Ltd. before the Delhi High Court concerning the dismissal of Mr. R.P. Bidani, Chairman of the Ghaziabad Unit of Hindustan Lever, has not been disposed of by the Court as yet. In the case filed by Mr. M. Prasad before the Labour Court, Agra, the matter is sub judice as judicial proceedings are still going on. Mr. B.S. Rawat, Joint Secretary to the Hindustan Lever Workers' Union at Etah was dismissed on account of misconduct. The industrial dispute in this regard was settled in favour of Mr. Rawat by the Labour Court, Agra, vide its Award dated 15 November 1993. However, the management has filed a petition against this Award in the Allahabad High Court. The High Court has issued an interim order regarding payment of 25 per cent of wages to Mr. B.S. Rawat. The management has paid a sum of Rs.60,349 through a bank draft in favour of Mr. Rawat. The case has not yet been finally disposed of by the Court. The case regarding dismissal from service of Mr. Ghuge and Mr. Nand Kumar, office-bearers of Hindustan Lever plant in Bombay, has not been decided as yet by the Labour Court, Bombay. In this matter, the Government of Maharashtra has stated that as soon as the judgements are delivered they will be communicated for onward transmission to the ILO.
6. 558. As regards the forced transfers of six trade union officials from the factory premises of the Hindustan Lever plant in Bombay, the Government replies that in January 1994 these office-bearers were transferred back to the factory premises and that instructions have been issued to all concerned to ensure that in future employers refrain from taking recourse to such measures.
7. 559. With regard to the Committee's recommendation that the Government ensure that direct negotiations between the undertaking and its employees do not bypass representative organizations where these exist, the Government indicates that the state government of Maharashtra is issuing instructions to the Commissioner of Labour to ensure that such direct negotiations do not bypass the representative organizations where these exist. The Government adds that the application made by the Hindustan Lever Ltd. Employees' Union and the Hindustan Lever Research Centre Employees' Union to be declared as recognized unions is still pending before the Industrial Court, Bombay, for arguments and that the judicial process is likely to take its course.

C. The Committee's conclusions

1. 560. The Committee takes note of the information provided by the Government as regards the allegations made by the complainant organization concerning the Bombay seminar and observes that they differ in their appreciation of the authorities' actions in the circumstances. The IUF alleges that these amounted to anti-trade union interference, whereas the Government considers that the state authorities were merely applying the existing law in respect of certain Pakistani nationals, namely the 1974 India-Pakistan Visa Agreement. The Committee recalls that, whilst workers and organizations, like other persons and collectivities should respect the law of the land, as provided in Article 8 of Convention No. 87, the right of assembly for trade union purposes constitutes a fundamental aspect of trade union rights (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 140). The Committee suggests that, when two such legitimate and fundamental rights have to be reconciled, restraint should be exercised on both sides with a view to ensuring that, on the one hand, the freedom of assembly of trade unionists be fully respected and, on the other hand, the law of the land compatible with the freedom of association principles be complied with. Trusting that the Government will take all these aspects into consideration in the future, the Committee recalls another related principle: "Participation in the work of international organizations must be based on the principle of the independence of the trade union movement. Within the framework of this principle, full freedom should be given to representatives of trade unions to take part in the work of the international workers' unions to which the organizations they represent are affiliated" (Digest, ibid., para. 535).
2. 561. As regards the situation in the Garden Reach unit of the company, the Committee notes that, according to the information provided by the Government, the labour dispute was apparently linked in part to a conflict between two rival unions and in part to the termination of a contract with a number of contractors, which had caused the retrenchment of 300 contract labourers. The Committee further observes that the issue has been resolved by an order of the Calcutta High Court, that the contract workers have received the monies owing to them and that 25 of them were rehired by new contractors. The Committee notes that it did not receive the information requested from the complainant on these issues and in particular on the reasons why the management stopped contract work (292nd Report, para. 674(f)) which might have shed light on, and provided evidence supporting the initial allegations. In these circumstances, and without the benefit of both points of view, the Committee may only recall that it is not competent to make recommendations on internal dissensions within the trade unions, as long as the Government does not intervene in a manner inconsistent with the exercise of trade union rights (Digest, ibid., para. 666).
3. 562. The Committee notes with interest that the parties signed a memorandum of agreement under which Mr. Basudev Singha Roy was reinstated in his job.
4. 563. As regards Mr. B.S Rawat, Joint Secretary to the Hindustan Lever Workers' Union at Etah, who was dismissed on account of misconduct, the Committee notes that the industrial dispute in this matter was settled in favour of Mr. Rawat by the Agra Labour Court in an Award dated 15 November 1993. The Committee notes, however, that the management filed a petition against this Award in the Allahabad High Court which issued an interim order regarding payment of 25 per cent of wages to Mr. B.S. Rawat. Although the management has paid a certain sum of money to Mr. Rawat, the case has not yet been finally disposed of by the Court. The Committee therefore requests the Government to provide information on the outcome of this case pending before the Allahabad High Court.
5. 564. As regards the forced transfers of six trade union officials from the factory premises of the Hindustan Lever plant in Bombay, the Committee notes from the information provided by the Government that these six office-bearers have been transferred back to the factory premises. Moreover, it notes that the Government has issued instructions to all concerned to ensure that in future employers refrain from taking recourse to such measures. The Committee requests the Government to ensure in future that such instructions are strictly complied with by the concerned parties.
6. 565. Noting the Government's undertaking to provide the other information requested, the Committee reiterates the requests in question and draws once again the Government's attention to the fact that some of the issues raised in this case have been pending for a lengthy period. In this respect, the Committee also draws the Government's attention to the danger that justice will be denied as a result of the slowness of the judicial procedures. It urges the Government to provide said information as soon as possible.