Definitive Report - Report No 19, 1956

Case No 97 (India) - Complaint date: 12-FEB-54 - Closed

1. 39. At its 130th Session (Geneva, November 1955) the Governing Body, when adopting the 17th Report of the Committee on Freedom of Association, approved the recommendations submitted to it by the Committee with respect to a complaint presented in two communications dated 12 February and 20 May 1954 by the Bihar Provincial Insurance Employees' Association containing allegations of infringements of the exercise of trade union rights in India.
2. 40. In accordance with these recommendations, the Governing Body decided that the allegations in the complaint relating to the dismissal of Mr. N. N. Bhattacharya (an employee of the New India Assurance Company, Patna), to industrial relations legislation in India and to the prohibition of an employees' procession did not, subject to the observations contained in paragraph 144 of the 17th Report of the Committee, call for further examination. In that paragraph the Committee had emphasised the importance which it attaches to the principle that workers should enjoy adequate protection against acts of anti-union discrimination in respect of their employment and, in particular, against acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities.
3. 41. With regard to certain other allegations concerning infringements of the trade union rights of employees of the Bank of Bihar (Patna), on which the Government of India had not then presented its observations, the Committee presented an interim report to the Governing Body, it being understood that the Committee would report further thereon when it had received the Government's observations. Accordingly, the Committee asked the Director-General to request the Government to forward its observations on these outstanding allegations and adjourned its examination thereof until its present session. The Director-General informed the Government of India of the Committee's decision by a letter dated 25 November 1955. The Government forwarded the observations requested by the Committee by a communication dated 26 December 1955.
4. 42. The analysis below is confined to those portions of the complaint and of the Government's reply which deal with the outstanding allegations concerning infringements of the trade union rights of employees of the Bank of Bihar.

A. A. The complainants' allegations

• Allegations relating to Infringements of the Trade Union Rights of Employees of the Bank of Bihar (Patna)
  43. 43 It is contended that the Bank practises anti-union discrimination with respect to its employees and that the Government will not intervene. Twenty-four hours after being elected general secretary of the union of workers at the Bank's head office, Mr. K. B. Lal was transferred to a branch 100 miles away in order to prevent him performing his trade union duties. A complaint was filed with the Labour Department of the Government of India and its officers were convinced that the Bank had engaged in anti-union activity, but the Government has taken no action. Similar treatment was accorded to a complaint filed in the case of Mr. Deonath Sinha, who organised a bank employees' association at Motihari, where he was employed at the Motihari branch of the Bank of Bihar, and was immediately transferred to Benares. Mr. K. P. Narayan was employed at the Bank's Buxar branch and was the secretary of the branch union there. He complained that the management was causing the returns showing the number of hours worked to be incorrectly compiled and was transferred to another branch, although the Conciliation Officer had written to the management stating that it should maintain the status quo.
• ANALYSIS OF THE REPLY (Communication dated 26 December 1955)
• Allegations relating to Infringements of the Trade Union Rights of Employees of the Bank of Bihar (Patna)
  44. 44 In its communication dated 26 December 1955 the Government denies the contention that, with respect to the transfers of bank employees referred to, officers of the Labour Department were convinced that the Bank had engaged in anti-union activity but that the Government had taken no action. The Government states that it examined the three cases in question but that in the absence of evidence pointing to victimisation for trade union activities there was no justification for making a reference to an Industrial Tribunal. On the general issue of transfers of bank employees, the Government refers to an award of the Industrial Tribunal, finally upheld on appeal in April 1954, in which the Tribunal, while rejecting a demand that office-bearers of bank employees' trade unions should not be transferred against their will, laid down the following directives : (a) every registered bank employees' union shall, from time to time, furnish the bank with the names of the president, vice-president and secretary of the union ; (b) except in very special cases, whenever the transfer of any of the above-mentioned office - bearers is contemplated, at least five clear working days' notice of such contemplated action should be put on the notice board of the bank ; (c) any representation, written or oral, made by the union shall be considered by the bank ; (d) if any order of transfer is ultimately made, a record shall be made by the bank of such representations and the bank's reasons for regarding them as inadequate ; (e) the decision of the bank shall be communicated to the union as well as to the employees concerned.

B. B. The Committee's conclusions

• Allegations relating to Infringements of the Trade Union Rights of Employees of the Bank of Bihar (Patna)
  45. 45 The essence of the allegations is that three trade union officials employed by the Bank of Bihar were transferred to other branches, one immediately after being elected general secretary of the union at the Bank's head office, one immediately after organising a bank employees' association at his branch and one after he had complained of alleged inaccuracies in the compiling of returns of working hours at the branch where he acted as secretary of the union of employees at that branch, and that these are instances of anti-union discrimination practised by the Bank. The Government admits that the transfers took place, but rejects the complainant's contention that its labour officials were convinced that the Bank was engaging in anti-union activity, stating that investigations in the three cases did not reveal evidence of victimisation for trade union activities which would have justified a reference being made to an Industrial Tribunal.
  46. 46 References of matters to Industrial Tribunals are governed by section 10 of the Industrial Disputes Act, 1947, which provides that, where a dispute exists or is apprehended in other than a public utility service, the appropriate government may refer the matter at issue to an Industrial Tribunal for adjudication, unless both sides (representing a majority of each party) apply for such reference, in which case the reference shall be made.
  47. 47 While it considers that the evidence in the present case does not enable it to determine the actual reasons for which the transfers in question were ordered, the Committee is of opinion that, taking place as they did so shortly after the assumption of trade union office by two of the persons affected and after the making of a complaint of an occupational nature by the third person in his capacity as a trade union official, they may well have occasioned reason for these three persons and their organisations to suppose that they were related to their trade union activities. In this connection, the Committee notes that the directives laid down in the award cited by the Government now provide for five days' notice to be given of the intention to transfer an office-bearer of any registered bank employees' union, so as to enable representations to be made by the union concerned.
  48. 48 In these circumstances, while it considers that the conflict of evidence in this case is such that it cannot conclude that further examination of these allegations by the Governing Body would serve any useful purpose, the Committee emphasises, as it has done in a previous case, 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-and that 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 must have the guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee also considers that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers' organisations should have the right to elect their representatives in full freedom. The Committee therefore recommends the Governing Body to draw the attention of the Government of India to the importance which it attaches to the principles stated above.

The Committee's recommendations

1. 49. In all the circumstances, subject to the observations made in paragraph 48 above and also to the observations referred to in paragraph 40 above which it made in paragraph 144 of its 17th Report, when presenting its interim report on this case, the Committee recommends the Governing Body to decide that the case as a whole does not call for further examination.