Rapport intérimaire - Rapport No. 272, Juin 1990

1. 355. In a communication dated 7 November 1988, the Centre of Indian Trade Unions (CITU) presented allegations of violations of trade union rights against the Government of India. The Government sent its observations on these allegations by communications dated 18 October 1989 and 10 April 1990.
2. 356. 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 complainant's allegations

1. 357. The complainant has presented a series of allegations of violations of trade union rights in relation to its affiliates in the State of Orissa. These alleged violations relate principally to: (i) interference by management of the Heavy Water Project and the State Government of Orissa in the internal affairs of the Heavy Water Project Employees' Union (HWPEU); (ii) false arrests, suspension and other harassment of trade union activists; and (iii) denial of the right of CITU affiliates to hold meetings between January and May 1988.
2. 358. The complainant states that the HWPEU was established in 1975, and obtained its certificate of registration in July 1976. It is the only union representing workers at the Heavy Water Project, Talcher - and has been recognised as such by management for some years.
3. 359. The HWPEU holds elections between January and March each year, on the basis of the membership as of the previous 31 December. At elections held in February 1987, M.D. Parida, G.C. Satpathi and R.C. Nanda were elected President, General Secretary and Treasurer respectively. Mr. Bairagi and N.C. Parida were elected Vice Presidents (henceforth this body is referred to as the "Parida Executive"). These results were notified to all relevant authorities, including the Labour Commissioner-cum-Registrar of trade unions, Orissa.
4. 360. On 6 March 1987 a meeting of the General Body of the HWPEU unanimously resolved that Mr. Bairagi be expelled from the union on the grounds that he had been found "to be acting against the interest of the union". Some time after this, Mr. Bairagi collected signatures to convene an extraordinary General Body meeting of the union. According to the complainant, these signatures were obtained at the point of a dagger, with the active support of the "local police and administration". A supposed "extraordinary meeting" was held on 5 May 1987. This meeting expressed its "serious dissatisfaction over the way of functioning and anti-worker attitude of the present Executive Committee headed by M.D. Parida, President". It also purported to enrol 35 new members of the union, and to elect a new Executive Committee, with Mr. Bairagi as President and R.K. Das as General Secretary (henceforth referred to as the "Bairagi Executive"). The decisions of this meeting were used in order to secure the blocking of the bank accounts of the union. Following strong objections from the CITU, the bank concerned reversed this decision on 11 May 1987.
5. 361. Following the publication of the resolutions passed at the meeting of 5 May, management of the Heavy Water Project requested the Labour Commissioner to ascertain which of the two "Executives" was the true executive of the union. The task of investigating the matter was entrusted to an Assistant Labour Commissioner. The Parida Executive submitted a petition signed by a substantial majority of the members of the union, affirming their allegiance to the executive which had been elected in February 1987. Notwithstanding this, the Assistant Labour Commissioner had not conducted any proper investigation into the matters referred to him.
6. 362. Despite these events, management of the project continued to negotiate with the Parida Executive, and signed an agreement on certain matters with them as late as 26 February 1988. However on 20 February 1988 the Labour Commissioner "most arbitrarily and whimsically without any proper verification of records extended his acceptance to Mr. M. Bairagi's Committee as the real Executive Committee". On 22 February 1988, on the basis of this decision, the local Executive Magistrate issued an order under Article 144 of the Criminal Procedure Code which had the effect of denying access to the premises of the union to the Parida Executive and to ordinary members of the union. This order lapsed on 22 April 1988. The Parida Executive made a number of attempts after that time to obtain access to the premises of the union. Eventually, on 31 July 1988, management, the local police and the local authorities forcibly occupied these premises. The CITU flag was torn down, and the Congress-I flag unfurled in its place. "Anti-social elements" and armed members of the police force "threatened to murder and physically assault" democratically elected leaders of the union. On the same evening Mr. Parida lodged a complaint with the police in relation to this incident.
7. 363. On 28 January 1988 the Parida Executive set in motion the HWPEU election procedures for 1988. The election took place on 25 February 1988, and the results were published on the same day. M.D. Parida was declared elected President. On the same day R.K. Das obtained an interim injunction to restrain the Parida Executive from declaring the results of the election. Mr. Das' application was based on the decision of the Labour Commissioner of 20 February 1988. This injunction was subsequently discharged on the grounds that it would not be proper to interfere with a matter that was pending before the High Court.
8. 364. On 27 February 1988 management of the plant indicated that it would have no further dealings with either the union headed by Mr. Parida, or that headed by Mr. Bairagi - despite the fact that it had been negotiating with the Parida Executive up until 26 February.
9. 365. The complainant alleges that the actions of the Labour Commissioner and the Assistant Labour Commissioner were strongly influenced by leaders of the Congress-I party in the State of Orissa. On 24 February 1988, 241 members of the union submitted a memorandum to this effect to the Chief Labour Commissioner in New Delhi. They also asked him to intervene with management, the law and order authorities and the Labour Commissioner, in order to see that justice was done in the matter. One month later, on 24 March 1988, the Parida Executive initiated a High Court challenge to the decision of 20 February 1988. This case is still pending.
10. 366. On 29 February 1988, G.C. Satpathi (who is Treasurer in the Parida Executive) was suspended from duty when he went to meet with management as part of a union delegation. All of the charges levelled against him are false. The President of the union, Mr. Parida, was suspended on 20 April 1988, but no charges had been laid against him. On 23 July 1988 it was announced that between two and five days' pay would be deducted from the salary of some 80 employees. The only explanation given was that they "have not done job". The complainant considers that these suspensions and deductions constitute anti-union harassment.
11. 367. The complainant further alleges that the authorities have laid false criminal charges against members of its affiliates. These charges are intended to interfere with the exercise of the trade union rights of those concerned. A number of the allegations have already been disproved in court.
12. 368. The laying of these charges is contrasted with the alleged failure of the police in Talcher to take action in respect of information laid by members of CITU affiliates in respect of incidents of torture, attacks and threats to life.
13. 369. This failure to lay charges is consistent with a general attitude of belligerency on the part of the police towards CITU and its affiliates. This is evidenced by the fact that between January and May 1988 the police did not permit a single meeting organised by CITU. Among those which were not permitted was the May Day meeting for that year. A meeting was permitted on 4 August 1988, but only the speakers on the dais and 240 members of the HWPEU were allowed to attend. The police kept all others who wished to attend away from the meeting-place.

B. The Government's reply

1. 370. By its communication dated 18 October 1989, the Government replied to the allegations relating to the dispute between the Parida and Bairagi Executives of the HWPEU.
2. 371. The Government states that there is no truth in the allegation that the signatures of workers were obtained forcibly in order to requisition the meeting of 5 May 1987. What happened was that one faction of the union called an extraordinary General Body meeting which dissolved the existing executive, elected a new set of office-bearers and asked for recognition from management.
3. 372. It is also incorrect to state that the Assistant Labour Commissioner did not conduct any inquiry into the matter. On the contrary, after detailed investigation, the Labour Commissioner advised management of the Project that the new Executive Committee had been validly elected and that it enjoyed majority support.
4. 373. The Government points out that on 24 March 1988 the Parida Executive had initiated proceedings in the High Court of Orissa challenging the decision of the Labour Commissioner. The Court granted a "show cause notice" to the parties, which indicates that there is a serious matter to be tried. However it did not issue a Stay Order which might, for example, have confirmed the Parida Executive in office pending trial of the action. In the circumstances, therefore, management decided to accord provisional recognition to the Bairagi Executive, subject to the eventual outcome of the proceedings before the High Court of Orissa. In accordance with this decision, management had asked the Parida Executive to hand over possession of the union office. They had refused to do so. In the circumstances management had no option but to break open the locks and hand the premises over to the Bairagi Executive. This was done in the presence of the police, but they did not intervene at any stage and everything passed off peacefully.
5. 374. In its communication dated 10 April 1990, the Government states that the contention that Messrs. Satpathi and M.D. Parida had been suspended without any charge-sheet is not correct. Charges were framed against both officials, and they have been under suspension since 29 February 1988 and 20 April 1988 respectively. The case of Mr. Satpathi is pending before the Central Administrative Tribunal, whilst departmental proceedings against Mr. Parida are also pending.
6. 375. As regards the false criminal charges which were allegedly laid against members of the HWPEU, the Government states that three of these charges were lodged under section 107 of the Criminal Procedure Code. This provision is intended to prevent the occurrence of violence or other criminal acts in situations where there is an apprehension of such conduct. Preventive measures were taken to maintain law and order when two rival groups of workers were in conflict with each other. Such action does not constitute an attack upon the freedom of association of the workers concerned.

C. The Committee's conclusions

1. 376. The allegations in this case relate to three principal sets of issues: (i) interference by management of the Heavy Water Project and the State Government of Orissa in the internal affairs of the HWPEU, a union which is affiliated to the complainant organisation; (ii) false arrests, suspension and other harassment of trade union activists; and (iii) denial of the right of CITU affiliates to hold meetings between January and May 1988.
2. 377. The Committee notes that the events which form the subject-matter of this complaint took place in the first half of 1988, and that the complainant transmitted its allegations to the Office in November 1988. The Committee recognises that this is not an "urgent case" in the sense of one which involves "human life or personal freedom, or new or changing conditions affecting the freedom of action of a trade union movement as a whole ... (or) ... a continuing state of emergency ... (or) ... the dissolution of an organisation (Digest of decisions and principles of the Freedom of Association Committee, third edition, 1985, para. 55). Nevertheless, the Committee feels bound to express its concern at the fact that the Government did not furnish a full reply to the allegations in this case until almost 18 months after they had been communicated to it by the Office. This is particularly regrettable in the light of the fact: (a) that two of the employees to whom the allegations relate are still under suspension from their employment, and (b) that the Government has not in fact replied to all of the complainant's allegations. In particular, it has not replied to the allegations relating to: (i) the denial of the right of CITU affiliates to hold meetings between January and May 1988; (ii) the failure to investigate the police complaint lodged by Mr. M.D. Parida on 31 July 1988; and (iii) the deduction of between two and five days' pay from 80 employees of the Heavy Water Project on 23 July 1988. The Committee asks the Government to respond to these allegations as a matter of priority. In doing so it draws the attention of the Government to the long-standing view of the Committee that governments should recognise the importance for their own reputation of formulating, so as to allow objective examination, detailed replies to the allegations brought against them (Digest, para. 59).
3. 378. As regards the alleged false prosecutions of trade union members and officials, the Government has stated that in three cases prosecutions were initiated under a provision of the Criminal Procedure Code which is intended to prevent the occurrence of acts of violence or other criminal activity. It does not, however, provide any information as to the nature of the alleged offences, or the outcome of any subsequent court proceedings. Furthermore, the Government's reply relates to only three cases. The complainant has alleged that proceedings under section 107 were instituted against 44 members of affiliated unions between December 1987 and August 1988. It also alleges that (unspecified) criminal charges were initiated against a further 23 members in the same period. The complainant has furnished documentary evidence in relation to 22 of the section 107 cases, and in relation to one other matter. The Committee requests the Government to provide more detailed information as to the criminal charges laid against 22 named individuals on 16 March 1988, and the outcome of any subsequent court proceedings.
4. 379. As regards the suspension from duty of Messrs. Satpathi and M.D. Parida, the Committee notes that according to the Government, charge-sheets were laid against both workers and that proceedings are pending before the Central Administrative Tribunal in relation to Mr. Satpathi, and that internal proceedings are pending against Mr. Parida. The Government does not provide any information as to the nature of the allegations against either worker, although the complainant did provide particulars of the charges laid by management against Mr. Satpathi (essentially, they relate to his involvement in a noisy protest demonstration, during working hours, at his place of work, on 29 February 1988).
5. 380. On the evidence available to it, the Committee is not in a position to express any view as to whether the proposed disciplinary action against Messers. Satpathi and Parida constituted anti-union discrimination within the meaning of the principles of freedom of association. It must, however, express its concern at the fact that these charges appear still to be outstanding more than two years after they were first laid. It must also point out that:
   • One of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment such as dismissal, demotion, transfer or other prejudicial measures. This protection is 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 should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions (Digest, para. 556).
   • It follows that it is necessary to exercise great care when instituting disciplinary proceedings against workers who happen to be trade union officials or members to ensure that there can be no reasonable apprehension that the proposed disciplinary action relates to the legitimate trade union activities of the worker(s) concerned.
6. 381. In order to enable it adequately to consider the allegations of anti-union harassment in the present case the Committee requests the Government to provide further particulars as to the disciplinary charges against Messrs. Satpathi and Parida, and any other officials or members of the HWPEU. It also asks the Government to endeavour to ensure that all outstanding charges are determined as quickly as possible, and to communicate the outcome of all relevant proceedings to the Committee. It would also be of assistance to the Committee to know whether Messrs. Satpathi and Parida are entitled to be paid during the currency of their suspension.
7. 382. As regards the alleged interference by management of the Heavy Water Project and the State government of Orissa in the internal affairs of the HWPEU, the Committee would first of all point out that it has consistently taken the view that it is not competent to make recommendations in relation to internal disputes within trade unions, so long as neither the Government nor an employer intervenes in a manner which might affect the exercise of trade union rights and the normal functioning of the organisation(s) concerned (see, for example, 217th Report, Case No. 1086 (Greece), para. 93, and 259th Report, Case No. 1410 (Liberia), para. 96). In the present case this means that the Committee is not competent to express any view as to which of the "Parida Executive" or the "Bairagi Executive" should properly be regarded as the executive of the HWPEU. It is, however, competent to determine whether the behaviour of the public authorities, and of management of the Heavy Water Project, was consistent with the principles of freedom of association.
8. 383. The Committee recognises that there is a need for a mechanism whereby intra-union disputes (as to elections, administration, etc.) can be resolved through third-party intervention. However, it is also conscious of the fact that any intervention by the public authorities in trade union elections runs the risk of appearing to be arbitrary, and thus to constitute an interference in the functioning of workers' organisations in a manner which is incompatible with their right to elect their representatives in full freedom. Where, therefore, it is necessary for public authorities to intervene in the electoral process, it is most important that such intervention be subject to examination by the judicial authorities (see Digest, paras. 455-456).
9. 384. Provision for examination of internal disputes by an official such as the Labour Commissioner, and access to judicial review of the decision of the Commissioner, appear to be broadly consistent with these principles. However, in the present case the complainant alleges that the Labour Commissioner "most arbitrarily and whimsically without any proper verification of records" accepted the Bairagi Executive as the true executive of the HWPEU, and that in doing so he acted "as per the direction of the political party in power". The Government rejects the allegation that the Labour Commissioner did not conduct any proper inquiry, and points out that the Parida Executive subsequently challenged the Commissioner's decision in the High Court of Orissa. This challenge is still pending.
10. 385. The Committee can only view with concern a situation where a dispute as to the leadership of a union remains unresolved more than two years after the event. This is especially unsatisfactory in view of the fact that elections for the executive of the HWPEU are conducted on an annual basis. This means that any subsequent vindication of the interim "loser" could have little or no practical effect. It also means that the interim "winner" enjoys the advantages which are inevitably enjoyed by incumbents in subsequent annual elections. Accordingly, the Committee calls upon the Government to adopt measures to provide for the speedy resolution of intra-union disputes, and to advise it as to the outcome of the High Court proceedings in the present case.
11. 386. The evidence before the Committee does not disclose whether the Labour Commissioner is required to provide written reasons for his decision in relation to a dispute such as that between the "Parida" and "Bairagi" Executives. In the opinion of the Committee it is important that such reasons be provided in order to guard against the appearance of arbitrary interference by the public authorities in the internal affairs of trade unions. This precept should be taken into account in the context of the legislative changes proposed in the previous paragraph.
12. 387. The Committee considers that respect for the principles of freedom of association requires that the public authorities exercise great restraint in relation to intervention in the internal affairs of trade unions. It is even more important that employers exercise restraint in this regard. They should not, for example, do anything which might seem to favour one group within a union at the expense of another. It follows that in the present case it was not compatible with the principles of freedom of association for the management of the Heavy Water Plant unilaterally to decide "to extend provisional recognition to the new Executive Committee subject to the outcome of the case pending in Orissa High Court". Such "recognition" was, or ought to have been, the responsibility of the High Court. The fact that the Court refused to make an order to the effect that the "Bairagi Executive" should be regarded as the provisional executive makes the behaviour of management all the more inappropriate. By the same token, it was not compatible with the principles of freedom of association for management of the Project to be in any way involved in the forcible entry of the premises of the union on 31 July 1988. Even assuming that forcible entry was necessary, that is a matter which should have been left entirely to the public authorities. The Committee asks the Government to take appropriate legislative or administrative measures to prevent such interference by employers in the internal affairs of trade unions in the future.