Definitive Report - Report No 45, 1960

Case No 204 (India) - Complaint date: 17-JUN-59 - Closed

1. 30. The complaint of the Calcutta Port Commissioners Workers' Union is contained in two communications addressed directly to the I.L.O on 17 June and 12 August 1959 respectively. The Government forwarded its observations by a letter dated 30 October 1959.
2. 31. The complaint contains allegations in respect of several different matters. These are considered separately below.

A. A. The complainants' allegations

• Allegations relating to Breaches of a Collective Agreement
  32. 32 The complainants allege that the Government, through the Ministry of Transport and Communications, entered into an agreement concerning wages and conditions of employment with the Indian port and dockworkers. The complainant adduces a copy of this document, as published in the Gazette of India. According to the complainant, the Government has failed to take action on most of the " agreed items " in the document in question.
  33. 33 In support of these allegations, the complaining Organisation submits a copy of the memorandum which it addressed to the Government on 1 June 1959. It consists in the main of citations of individual cases of alleged non-compliance with industrial tribunal directives in respect of promotion and recruitment, transfers, victimisation, etc. But it does not explain which of the provisions of the "agreement" have not been honoured. No suggestion is made that any of these questions are directly linked with membership or activities in the complaining organisation or any other trade union.
  34. 34 In its reply the Government declares that the alleged agreement is not an agreement at all. It is a resolution embodying the decisions of the Government on the basis of the findings of a Special Officer appointed by the Government to look into the demands of the port and dockworkers. Further, declares the Government, the terms of the resolution have already been almost fully implemented.
  35. 35 Examination of the documents referred to in the preceding paragraphs would seem to establish the following points.
  36. 36 As to the alleged agreement, the document produced as such by the complainant is entitled, as the Government points out, " Government of India Resolution of 20 July 1958 ", based on a " Report of the Officer on Special Duty appointed to enquire into the demands of port and dock workers ". According to the instruction at the head of the document it was to be published as a Government Resolution in the Gazette of India. The only signature to it is that of the Secretary to the Government of India. It embodies the findings of the officer making the inquiry, his inquiry clearly having led him, among other things, to ascertain the views of both the parties directly concerned. The matters covered are rationalisation of pay scales, recommendations on such matters as hours, overtime, holidays, retirement and travel concessions and decasualisation of the industry. It is in no sense an agreement. The terms of reference, in fact, make it clear that the Special Officer was in no way empowered to make any agreement; his duty was simply to make a report on the position to higher authority.
  37. 37 The other document produced by the complainant-the memorandum sent to the Government on 1 June 1959-deals with a number of matters connected with industrial tribunal awards, together with other alleged cases of individual grievances. But it fails to demonstrate that the aforesaid resolution was an agreement or to show which of its terms have not been adopted and applied by the Government. And in no respect, except briefly with regard to the question of union recognition examined subsequently, does it link any of the matters raised with the question of the exercise of trade union rights.
  38. 38 So far as these allegations are concerned, therefore, it appears to the Committee that the only real matter in which evidence is before it is the disputed issue whether the Government has or has not acted in accordance with the findings of an officer who has made an inquiry into the labour situation in a given industry. The extent to which a government acts upon the findings of an officer who has made an inquiry upon its behalf is entirely within its own sphere of responsibility. Evidence of such findings may be relevant and important if an independent allegation of the violation of a trade union right is under examination, but, in the absence of a direct and specific allegation of interference with freedom of association, an allegation that a government has not acted on such findings does not in itself raise any question of freedom of association. The Committee therefore recommends the Governing Body to decide that these allegations do not call for further examination.
• Allegations relating to Failure to Form a Works Committee in the Port of Calcutta
  39. 39 It is alleged that the Government has failed to establish works committees as required by the Indian Industrial Disputes Act. The complainant cites the relevant provisions of the Act.
  40. 40 The Government declares that the more representative unions are opposed to the establishment of works committees and that, out of deference to the wishes of the representatives of the majority of the workers, such committees have not been set up in the ports of Calcutta or Bombay.
  41. 41 Under Chapter II, section 3 (1) of the Industrial Disputes Act, 1947, as cited by the complainant, the Government may, by Order, require the employer to constitute a works committee. The duties of such a committee are " to promote measures for securing and preserving amity and good relations between the employer and workmen " and " to comment upon matters of their common interest or concern and to endeavour to compose any material difference of opinion "
  42. 42 This section is discretionary and in no way mandatory so far as the Government is concerned. It would also seem, from the Government's reply, that of the several unions concerned only the complaining organisation desires the Government to oblige the port authorities to take steps to establish works committees. The complaining organisation itself does not attempt to maintain that the non-establishment of works committees in this instance, at the request of only one of the unions concerned, involves the denial of a trade union right, but claims that the Government has failed to perform a statutory duty. As is clear from the complainant's citation, no such statutory duty exists; the Government merely has a statutory power, which has not been exercised, according to the Government, because the majority of the unions in this case do not want it to be exercised.
  43. 43 The responsibility of the Committee is to examine violations of trade union rights ; where there is no specific allegation of such a violation it is not within the competence of the Committee to entertain general allegations that a government has failed to discharge a statutory duty or to exercise a statutory discretion in respect of a matter within the field of industrial relations which does not raise any question of interference with freedom of association. In these circumstances, the Committee recommends the Governing Body to decide that these allegations do not call for further examination.
• Allegations relating to Non-Implementation of Awards
  44. 44 It is alleged that the Government does not obey the directives of the Industrial Tribunal. Examples alleged are failure to pay to masons in the Calcutta Port wages according to the scales laid down by an award and failure to promote and recruit workmen as directed. The complainant also refers to the length of time during which the application of an award can be delayed by the lodging of appeals with successive appellate instances. A number of cases of individual workmen are cited, in which it is alleged that, for one reason or another (e.g. failure to offer bribes in the proper quarter, personal unfairness on the part of superiors, etc.), they have been refused promotions to which they were entitled. No allegation is made, however, that such refusals have any connection with the exercise of trade union rights by those concerned.
  45. 45 In its reply, the Government states that it has received no complaints of any mason being paid less than he was entitled to under the award; some complaints with respect to payments made to rivetmen had been received and had been investigated. Investigation has also shown that the directives of the Industrial Tribunal with respect to promotion have been followed, outsiders being given promotion only to vacant posts which could not be filled by promotion of departmental candidates because the latter did not possess the minimum requisite qualifications.
  46. 46 The Committee considers that the only evidence adduced by the complainant in support of the allegation of non-compliance with awards of the Industrial Tribunal lies in the grievances of a number of named individuals because they have not had promotions which they had earned. While some of these cases may or may not have involved unfair or illegal treatment of the individuals concerned, and on this question it would be improper to express any opinion without a full examination of the individual cases on their merits, the Committee considers that, in the absence of any evidence relating their cases to the exercise of trade union rights, these individual cases are outside the competence of the Committee and are a matter for the jurisdiction of the domestic courts or tribunals concerned. In these circumstances, the Committee recommends the Governing Body to decide that these allegations do not call for further examination.
• Allegations relating to Non-Application of Legislation
  47. 47 The complainant alleges that the Government disobeys the labour laws. Especially, it is alleged, the provisions of the Factories Act and other laws respecting employment of workers on overtime prior to commencing their normal work are flouted. The result is, according to the complainants, that some workmen are arbitrarily discriminated against in respect of the number of hours they have to work.
  48. 48 The Government makes no reference to the legislation referred to, but in this case again, the complaining organisation adduces no evidence to show that the matters complained of have any relation to the exercise of trade union rights by those said to be discriminated against or that there has been a violation of trade union rights in other respects. In these circumstances, the Committee considers that the complainants have not offered sufficient evidence to show that the matters referred to in these allegations involve any specific violation of trade union rights, and therefore recommends the Governing Body to decide that the allegations do not call for further examination.
• Allegations relating to Unfair Labour Practices
  49. 49 A considerable number and variety of matters are raised in these allegations. It is alleged, for example, that some workmen are allowed to work overtime in preference to others, " gross irregularities " occurring in the process ; that housing allowances, rents and the vacation of premises are unfairly administered; that registered letters have not been delivered to the addresses and that employees of the Postal Department have been guilty of illegal practices ; etc., etc. A number of individual cases are mentioned. Thus, it is alleged that Shri Ramdes Mistry was not paid arrears of wages to which he was entitled ; that Shri Setaloo Jeswara could not prove his age by documentary means, so that, according to the rules in such cases, his age had to be assessed by the medical authorities, a procedure regarded by the complainants as illegal although embodied in an award of the Industrial Tribunal : that Shri Asrafali fell sick as a result of overwork, was recommended leave by the Port Medical Officer and was then dismissed for absenting himself without leave ; that three electricians were transferred through the manoeuvring of a foreman whose partiality to corruption is well known and whose immediate senior is his puppet ; etc., etc.
  50. 50 The Government observes that none of the unfair labour practices alleged have any relation to the right to organise. The Government declares that these allegations as to injustice done to workers in respect of hours of work, transfer, promotion, distribution of overtime, wage rates, house rents, etc., are within the administrative competence of the port authorities, but that representations thereon can be made to the Government. Some of the allegations, it is claimed, have been investigated and found to be without basis.
  51. 51 Without expressing any view as to the merits of the various matters alleged, the Committee observes that in no case is any evidence adduced to suggest that any of these matters are directly related to the exercise of trade union rights. In these circumstances, the Committee recommends the Governing Body to decide that the allegations do not call for further examination.
• Allegations in General Terms with Respect to the Exercise of Trade Union Rights
  52. 52 It is alleged that the minimum labour standards prescribed are not effectively applied in small, private industries and that any attempt to form trade unions by the employees concerned leads to the workmen being dismissed or otherwise penalised by the employer. Sometimes, it is alleged, the registration of trade unions is intentionally delayed for six or seven months at the instance of the employer in order to disrupt the solidarity of the workers.
  53. 53 These allegations, to which the Government makes no allusion, are in very general terms and unsupported by references to any specific instances. In these circumstances, the Committee considers that the allegations made are too vague to permit of a consideration of the matter on its merits and therefore recommends the Governing Body to decide that this aspect of the case does not call for further examination.
• Allegations relating to the Non-Recognition of the Complaining Organisation
  54. 54 It is alleged that the Calcutta Port Commissioners Workers' Union was formed on 27 December 1952, with a bona fide membership of over 10,000, but that the authorities have refused to recognise the union. The complainant alleges that recognition was given to the National Union of Port Trust Employees although it had a smaller membership, because it is part of the Indian National Trade Union Congress favoured by the Government. When the Regional Labour Commissioner's Office in Calcutta inquired into the membership of the complaining union, the inquiry, it is alleged " was inconclusive and a tendentious report was given ".
  55. 55 The complainant declares that, according to a Home Ministry circular, any union with over 15 per cent membership among the total regular employees (i.e. some 3,900 members among the 26,000 regular employees in the port of Calcutta) should be recognised. The complaining organisation says that it has 3,600 members in the Chief Mechanical Engineer's Department alone.
  56. 56 In Case No. 149 relating to India, the Committee examined allegations which were identical with those raised in the present case except in one particular-in the former case, the same signatory as has signed the present complaint claimed for his union a maximum membership of 5,887, whereas he now refers to a figure, in its earliest days, of over 10,000.
  57. 57 In Case No. 149 also it was alleged that the Calcutta Port Commissioners Workers' Union was the strongest in the port and entitled to recognition for collective bargaining purposes in accordance with the Home Ministry circular referred to above, but that this recognition was refused although numerically weaker unions were recognised. The Committee then had before it evidence from the Government to the effect that the two unions which were recognised had respective memberships of 17,634 and 4,404, whereas the complaining organisation's own statutory return in 1953 claimed only 2,229 members, contrary to the figure of over 5,000 mentioned in the complaint. In view of the precise nature of the information before it, the Committee considered that the complaining organisation's claim to be the strongest organisation of the workers concerned had not been established. The Committee went on to recall that, in Case No. 57 relating to British Guiana, where employers had recognised five unions in an industry but would not recognise a sixth, on the ground that adequate representation for collective bargaining was already thus ensured, the Committee, noting that the sixth union had been legally registered so that it was legally free to seek to conclude collective agreements but that the Government was not bound by any law to enforce collective bargaining by compulsory means, had taken the view that a complainant had not offered sufficient proof that trade union rights had been infringed. In Case No. 149, observing that the complaining organisation did not allege that it had been denied the right to exist under the law of the land or show that the Government was bound by any law to force the employers to recognise it for the purpose of collective bargaining, the Committee concluded that the complainant had not offered sufficient proof to show that trade union rights had been infringed. In the present case, except for the new figure as to membership which contradicts its own previous evidence, the complaining organisation has adduced no new evidence beyond that submitted in respect of the same allegations in Case No. 149. In these circumstances, the Committee recommends the Governing Body to decide that this aspect of the case does not call for further examination.

The Committee's recommendations

1. 58. In all the circumstances the Committee recommends he Governing Body to decide that the case as a whole does not call for further examination.