Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 355, Noviembre 2009

1. 867. The complaint is contained in a communication of the Centre of Indian Trade Unions (CITU) dated 25 November 2008.
2. 868. The Government sent its observations in a communication dated 29 May 2009.
3. 869. 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. 870. In its communication of 25 November 2008, the complainant states that the All India Audit and Accounts Association, Kerala (AIAAK) represents the overwhelming majority of the employees of the Audit and Accounts Department of the Office of the Accountant General, Kerala. The AIAAK is recognized by the Government.
2. 871. The AIAAK undertook peaceful demonstrations, sit-ins and marches on several days in December 2006, January, April and May 2007, and March and April 2008. The actions were intended to protest the outsourcing of substantial portions of the workers’ jobs to a private agency.
3. 872. The complainant indicates that the management responded by issuing charge sheets to employees for having participated in actions during lunch and after office hours, and also undertook extensive disciplinary measures such as demotion, denial of promotion, and reduction in salary increments. These measures resulted in heavy financial losses for the employees concerned.
4. 873. The complainant states that the penalties issued by the management include the following: 33 employees received the punishment of “break in service”, losing all benefits accrued through their past service; 15 employees were denied due and legitimate promotions; eight employees were demoted; and 324 employees were given dies non (non-working, unremunerated days) on the days when actions took place. The complainant further indicates that many employees face criminal charges and most suffered salary deductions ranging from 8,000 to 10,000 rupees per month due to the various disciplinary measures. A copy of one of the charge sheets, listing the names of the employees and the respective penalties incurred is attached to the complaint.
5. 874. Attached to the complainant’s communication are copies of three orders issued by the Office of the Accountant General, dated 19 March, 7 April and 1 August 2008. The said orders bring charges against, and prescribe penalties for, AIAAK Executive Committee member Shri Santoshkumar, AIAAK President Shri N. N. Balachandran and SecretaryGeneral Shri Vijayakumar, respectively, for their participation in protest actions. The penalty of the withholding of a salary increase for five years was issued to President Balachandran, the penalty of dies non was imposed on General Secretary Vijayakumar, and Executive Committee member Santhoshkumar was demoted to a lower post and denied salary increases for a period of three years. According to the complainant, the widespread punishments are clearly reprisals intended to dissuade employees from participating in trade union activities by creating fear.
6. 875. The complainant states that the AIAAK is recognized by the Government as the official representative body of the employees concerned. It further indicates that the right to collectively protest, exercised within the country’s constitutional framework, is an inalienable component of freedom of association and the right to collective bargaining. By declaring these constitutionally-protected rights illegal, and by the aforementioned reprisals, the Government has contravened Conventions Nos 87 and 98.

B. The Government’s reply

1. 876. In its communication of 29 May 2009, the Government indicates that it had examined the complaint in consultation with the Comptroller and Auditor General of India, who oversee the Accountant General of Kerala. The Government states that, as government employees, the AIAAK members’ conduct and service conditions are governed by the Central Civil Services (Conduct) Rules, 1964. Further, section 6(k) of the Central Civil Services (Recognition of Service Associations) Rules, 1993 (the CCS (RSA) Rules) (attached to the Government’s communication) states that service associations are required to abide by the Conduct Rules or the association will no longer be recognized by the Government. The Government further indicates that joint consultative machinery exists under its Department of Personnel and Training to provide redress for grievances.
2. 877. The Government indicates that certain staff associations representing only section employees disturbed office decorum and discipline at the Office of the Accountant General, thus violating the applicable rules of conduct. Accordingly, the employees were subjected to disciplinary actions. The Government adds that the employees have avenues of appeal and review against action taken and that the principle of natural justice is enshrined in the rules concerning disciplinary action.
3. 878. The Government states that trade union rights do not apply to service associations such as the AIAAK, and that the Trade Union Act does not apply to civil servants; bodies such as the CITU have no standing with regard to the Office of the Accountant General’s internal functioning. The Government adds, finally, that there was no infringement of freedom of association rights at the Office of the Accountant General, Kerala, and provides a copy of the CCS (RSA) Rules, 1993.

C. The Committee’s conclusions

1. 879. The Committee notes that this case concerns disciplinary action taken against union members for having participated in demonstrations, sit-ins and marches. According to the complainant, members of the AIAAK engaged in several peaceful demonstrations, sit-ins and marches – in December 2006; January, April and May 2007; and March and April 2008 – to protest the outsourcing of a substantial portion of jobs to a private agency. The complainant further alleges that the employer, the Office of the Accountant General, Kerala, responded by issuing the following sanctions: 33 employees received the sanction of “break in service”, losing all benefits accrued through their past service; 15 employees were denied due and legitimate promotions; eight employees were demoted; and 324 employees were given dies non (non-working, unremunerated days) on the days when actions took place. The complainant further alleges that many employees face criminal charges and most suffered salary deductions ranging from 8,000 to 10,000 rupees per month due to the various disciplinary measures.
2. 880. The Committee also notes the Government’s indication that, as government employees, the AIAAK members’ conduct and service conditions are governed by the Central Civil Services (Conduct) Rules, 1964 (the CCS Conduct Rules). The Government further maintains that certain staff association members disturbed office decorum and discipline at the Office of the Accountant General, thus violating the applicable rules of conduct; the parties concerned were accordingly subjected to disciplinary action. In this regard, the Committee further observes that the order of the Office of the Accountant General, imposing disciplinary measures against AIAAK President Balachandran, refers to the following: (a) that he had participated in an “agitation programme” despite a prior warning against such participation by the Deputy Accountant General; (b) that his acts included shouting loud and defamatory slogans within the office buildings and corridors of the Accountant General and the Deputy Accountant General, and the blocking of free passage therein; (c) that he is on record as having been taken into police custody on 12 January 2007 after having blocked the passage leading to the Accountant General’s chamber, and had admitted to the same in his 27 March 2007 reply to the 9 March 2007 memorandum of the Deputy Accountant General; and (d) that although admitting to having participated in the agitational activities as charged, Balachandran denied that they were disruptive of office decorum and discipline. Noting that in earlier proceedings Balachandran had failed to provide evidence that his acts were not disruptive, the Office of the Accountant General found his denial not credible and considered that holding a formal enquiry was not required to prove the charge of misconduct as the same had been proven beyond doubt by credible witnesses and video recordings. The Order further imposed the penalty of withholding salary increments for a period of five years.
3. 881. In respect of AIAAK General Secretary Vijayakumar, he was found to have rushed behind the Accountant General and gesticulated and shouted at the latter, and was issued the penalty of dies non. As regards Executive Committee member Santhoshkumar, he was disciplined for raising his voice and speaking roughly to the Accountant General, and by refusing to obey the Accountant General’s order that he leave the hall. Further, Santhoshkumar was placed on suspension for wilful and blatantly insubordinate behaviour the following day for violating the terms of a suspension order by entering the office premises without obtaining prior permission from the Deputy Accountant General.
4. 882. The order respecting Mr Santhoshkumar further indicates that the latter had refuted all the charges against him, so that an accounts officer was appointed to conduct an inquiry into the matter. In a submission dated 29 August 2007, Mr Santhoshkumar challenged a number of procedural and substantive aspects of the inquiry and requested that the Disciplinary Authority not rely upon the report of the inquiry. The Disciplinary Authority nevertheless relied upon the report of the inquiry, concluded against Mr Santhoshkumar and, in view of his submission that he had no intention of questioning the authority of the Accountant General or disobeying his orders, was given a lenient sanction of demotion to a lower post for three years. The penalty also includes a loss of seniority in the higher post and a postponement of pay increments upon restoration to the higher post.
5. 883. As concerns protests, the Committee recalls that workers should enjoy the right to peaceful demonstrations to defend their occupational interests [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 133]. Nevertheless, trade unions must conform to the general provisions applicable to all public meetings and must respect the reasonable limits which may be fixed by the authorities to avoid disturbances in public places [see Digest, op. cit., para. 144].
6. 884. As concerns freedom of speech, moreover, the Committee recalls that the full exercise of trade union rights calls for a free flow of information, opinions and ideas, and to this end workers, employers and their organizations should enjoy freedom of opinion and expression at their meetings, in their publications and in the course of other trade union activities. Nevertheless, in expressing their opinions, trade union organizations should respect the limits of propriety and refrain from the use of insulting language [see Digest, op. cit., para. 154].
7. 885. In respect of the matters contained in the present case, the Committee notes, firstly, that the complainant’s allegations and the Government’s observations are generally of a contradictory nature. The peaceful demonstrations alleged by the complainant are characterized, by the Government, as breaches of office decorum and discipline. The Committee further observes that the disciplinary orders respecting AIAAK President Balachandran and Executive Committee member Santhoshkumar refer to challenges made by the latter in the context of their respective inquiries and proceedings. In particular, the Disciplinary Authority had refused to conduct a formal inquiry regarding Balachandran’s assertion that his acts were not disruptive in nature, and had concluded against Santhoshkumar in spite of his challenges to the report of the inquiry. Noting with concern, moreover, the severity of the sanctions handed down against trade union leaders Balachandran, Vijayakumar and Santhoshkumar and the serious dampening effect such action may have on trade union activity, the Committee requests the Government to ensure that the complainants have access to a review and appeal, consistent with freedom of association principles or, in the absence of such access, to undertake a full and independent investigation into the matter. If it is found that the three trade union leaders were sanctioned for having engaged in peaceful demonstrations, the Government should ensure that they are fully compensated for the penalties imposed upon them, including the reinstatement of their prior entitlements and posts. The Committee requests to be kept informed in this regard.
8. 886. In addition, the Committee observes that the Government in its reply only refers to the specific acts of the three abovementioned leaders and does not indicate the basis for the numerous and severe sanctions imposed on the hundreds of other employees. The Committee requests the Government to ensure that these matters also be subject to a review and appeal consistent with freedom of association principles or, failing that, to undertake a full and independent investigation into all the allegations of anti-union discrimination and keep it informed of the outcome. If the review or investigation finds that the parties concerned were sanctioned for having carried out peaceful demonstrations, the Committee requests the Government to ensure that they are fully redressed for the penalties imposed upon them.
9. 887. The Committee notes that the Order concerning General Secretary Vijayakumar contains an annexure referring to the latter’s participation, along with 40 others, in a demonstration to protest, inter alia, the issuance of a 29 April 2008 Order imposing sanctions on Vijayakumar. The document further states that this act of protesting against a lawful order of the competent authority imposed violates section 6(b) of the CCS (RSA) Rules which states that the service association shall not espouse or support the cause of individual Government servants relating to service matters. The Committee recalls, in this respect, that the denial of the right of workers in the public sector to set up trade unions, where this right is enjoyed by workers in the private sector, with the result that their “associations” do not enjoy the same advantages and privileges as “trade unions”, involves discrimination as regards government-employed workers and their organizations as compared with private-sector workers and their organizations. Such a situation gives rise to the question of compatibility of these distinctions with Article 2 of Convention No. 87, according to which workers “without distinction whatsoever” shall have the right to establish and join organizations of their own choosing without previous authorization, as well as with Articles 3 and 8, paragraph 2, of the Convention [see Digest, op. cit., para. 222]. The Committee considers, in light of the above-cited principle, that section 6(b) of the CCS (RSA) Rules restricts the freedom of association rights of service associations. The Committee further notes that section 5(c) also restricts freedom of association principles, by restricting membership in a service association to “a distinct category of civil servant having [a] common interest”.
10. 888. The Committee also notes the Government’s indication that service associations are required to abide by the Conduct Rules or the association will no longer be recognized by the Government. It observes in this regard that section 8 of the CCS (RSA) Rules provides that if, in the opinion of the Government, a service association recognised under the CCS (RSA) Rules has failed to comply with any of the conditions set out in sections 5, 6 and 7, the Government may, after giving an opportunity to the service association to present its case, withdraw the recognition accorded to the latter. It considers that section 8 of the CCS (RSA) Rules violates freedom of association, in that it provides for the possibility of withdrawal of recognition for failure to comply with rules that are themselves not in conformity with freedom of association principles, and apparently without a right of appeal. Accordingly, the Committee requests the Government to take the necessary measures to amend sections 5, 6 and 8 of the CCS (RSA) Rules, in order to ensure the freedom of association rights of civil servants.
11. 889. Finally, the Committee invites the Government to seek the technical assistance of the Office with a view to considering the ratification of Conventions Nos 87, 98 and 151.