Definitive Report - Report No 93, 1967

Case No 420 (India) - Complaint date: 21-OCT-64 - Closed

1. 138. This case has already been considered by the Committee at its meetings in November 1965 and May 1966, when it submitted to the Governing Body the interim reports contained respectively in paragraphs 85 to 125 of its 86th Report and paragraphs 234 to 254 of its 90th Report. The present report is confined to the allegations concerning which the Committee has not yet submitted its definitive conclusions to the Governing Body.
2. 139. 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. A. The complainants' allegations

1. 140. The complainants alleged that various officers and members of their union had been discriminated against, because of their union affiliation, by being refused or deprived of promotion or being illegally deprived of acquired seniority rights to the advantage of junior or less skilled employees. In this connection the complainants referred to the cases of Mr. A. K. Mukherjee, Mr. N. Das and Mr. Chakraborty, respectively General Secretary, Assistant Secretary and Organising Secretary of the union, and Messrs. D. Singh, S. K. Sarkar, S. J. N. Roy, S. Chatterjee and S. Ghosh, all active members of the union, and also to the case of the greasers employed in the Hydraulic Power Station.
2. 141. The complainants alleged also that unfair labour practices happened daily in Calcutta Port. It was not possible for each workman to go to the courts, stated the complainants, because litigation was expensive and took too long, a few years elapsing before a decision was reached, and because the authorities were vindictive towards workers who took such action.
3. 142. The complainants also criticised the procedure for settling disputes under the Industrial Disputes Act, 1947. In the case of Messrs. Roy, Chatterjee and Ghosh the union formally raised an industrial dispute but, it was alleged, the Regional Labour Commissioner had failed to give a ruling after about three years, while the Minister of Labour had refused to refer the cases of Messrs. Chakraborty and Mukherjee to a tribunal for adjudication.
4. 143. At its meeting in November 1965 the Committee had before it a communication from the Government dated 17 April 1965, stating that most of these cases had been handled without success by the Conciliation Officer and that in each case the action taken by the employers was found to be " in accordance with seniority rules " or employment rules, and that referral to a tribunal for adjudication was refused for this reason or because the allegations of victimisation made were " found to be without substance ".
5. 144. It appeared to the Committee that where employees raise a dispute which is not settled by a Conciliation Officer it does not go forward for settlement by adjudication unless the competent authority gives permission. It was clear that such permission had been refused in the cases of Mr. Chakraborty and Mr. Mukherjee. The position was not clear as regards the case of Messrs. Roy, Chatterjee and Ghosh. The Committee, therefore, having noted also that the Government had not commented on the complainants' allegation that court procedure was too lengthy and expensive for workers to have recourse to it, decided to request the Government to be good enough to explain what remedy is open to the worker whose case is not settled by conciliation and according to what rules and by whom the decision is taken as to whether his case may be adjudicated, and to state how these rules were applied in the particular cases cited.
6. 145. The Government explained in a communication dated 16 April 1966 that under section 12 (1) of the Industrial Disputes Act, 1947, the Conciliation Officer may, where an industrial dispute exists or is apprehended (unless a notice has been given under section 22 of the Act and the dispute relates to a public utility service), hold conciliation proceedings; he intervenes or does not intervene in his discretion. The " appropriate government " need not refer a dispute for adjudication if it is of the opinion that the party raising the dispute has not made out a prima facie case or it would otherwise be inexpedient in the larger interests of industrial peace to refer the dispute for adjudication. The Government repeated that a referral for adjudication was refused in the cases of Messrs. Mukherjee and Chakraborty because the action taken by the management was found to be in accordance with the rules, and in the cases of Messrs. Roy, Chatterjee and Ghosh because the union " could not substantiate its allegations of victimisation or unfair labour practices before the Conciliation Officers concerned ". The Government added that, if a case is not settled by conciliation and referral for adjudication is refused, the parties can issue a writ in the Nigh Court or the Supreme Court claiming that the action of the Government in refusing the dispute for conciliation or arbitration is not in accordance with law.
7. 146. After considering this reply at its meeting in May 1966 the Committee decided to request the Government to comment further on the allegation that the union had formally raised an industrial dispute in the cases of Messrs. Roy, Chatterjee and Ghosh but that after three years the Regional Labour Commissioner had failed to give a ruling, and on the contention that litigation by each workman in the courts is too expensive and takes too long for workmen to have recourse to it.
8. 147. At the same time the Committee decided to request the Government to furnish its observations on a complaint dated 3 February 1966, submitted by the same complainant, alleging that disputes had been raised formally with regard to the work required of workers at the main pumping station, the issue of safety clothing and incentive payments for diesel engine employees, but that the Government had blocked every effort by the workers to seek an adjudication.
9. 148. The request for information on these points was brought to the notice of the Government by a letter dated 9 June 1966. The Government replied by a communication dated 16 September 1966.
10. 149. In this communication the Government contends that, whereas it is the function of the Committee to inquire into alleged infringements of trade union rights, the issues raised by the complainants relate mostly to matters not connected with such infringements. The Government feels that time would be saved if the Committee referred to it in future, for its observations, only those specific points in a complaint which are related to infringements of trade union rights. Having made this point, the Government proceeds to comment on the matters concerning which the Committee, at its last session, requested it to furnish its observations.
11. 150. The Government states that the " Calcutta Port Commissioners " is a statutory corporation and that its staff relations and conditions of employment are the responsibility of that body and not of the Government. Industrial disputes between that body and its employees and their unions are on the same footing as disputes involving any other employers.
12. 151. The Government comments at some length on the allegations raised in the complaint dated 3 February 1966. With regard to the question of the workers at the pumping station an attempt was made to conciliate the parties, but a strike was called. No settlement was reached. The question of safety clothing is being reviewed by the Calcutta Port Commissioners. Discussions between the parties have been held on the question of incentive payments. A Joint Committee was set up by the Port Commissioners, including representatives of the two recognised unions, but it has not yet reached a settlement. It is also open to the complainants to put their views before the competent wage board, which is due to submit a report on this question.
13. 152. As regards the specific cases of anti-union discrimination raised in the original complaint, the Government declares that the Regional Labour Commissioner attempted to resolve the issues by conciliation, but the employers maintained that they had acted according to the rules; the Commissioner cannot be accused of delaying his decision for three years because he does not have power to give a binding decision at all.
14. 153. The question of recourse to expensive court procedures, says the Government, is irrelevant to this case. The union raised this point in its complaint in connection with breaches of the Code of Conduct voluntarily agreed to by the central organisations of employers and workers, but there is no provision for litigation if its principles are not followed. The procedure contemplated was for breaches by either side to be submitted to collective bargaining by the organisations of the parties concerned.

B. B. The Committee's conclusions

1. 154. The Committee wishes first of all to refer to the Government's comment that many issues in this case have no relation to trade union rights. In its 85th and 90th Reports the Committee recommended the Governing Body to dismiss allegations relating to workers' housing rights, to the granting of loans, to casual labour, and to disciplinary measures against workers who occupied vacant quarters. The Committee fully appreciates that these matters, indeed, related to various conditions of employment and questions of employee discipline which would not per se, in the absence of evidence of breaches of statutory rights or collective agreements, specifically involve trade union rights. But they were submitted in this case by the complainants as matters in respect of which members of the complaining organisation were discriminated against, as compared with other employees, precisely because they were members of the organisation in question. The allegations were dismissed because the complainants had failed to prove their contentions as to anti-union discrimination in the instances cited, that being the issue which came within the competence of the Committee and with regard to which, accordingly, the Government was asked to furnish its observations. Similarly, with regard to the issues relating to particular conditions of employment raised in the complaint dated 3 February 1966, the question relating to alleged infringements of trade union rights was not these conditions of employment as such but the fact alleged by the complainants that they were being improperly denied recourse to statutory procedures for the settlement of issues which had given rise to collective labour disputes. The Committee wishes to make it clear that it is only where they are thus related to a specific allegation of the infringement of a trade union right that it has examined and will examine in substance matters submitted to it by complainants.
2. 155. With regard to the factual question as to whether Mr. Mukherjee and the other persons referred to in paragraph 140 above were subjected to measures of anti-union discrimination, the Committee is faced by a direct conflict of evidence between the statements of the complainants and the reasons put forward by the labour authorities for refusing to refer their cases for adjudication. In these circumstances it is impossible for the Committee to formulate specific conclusions on these specific cases.
3. 156. There remains the question of the machinery for the settlement of disputes in India which has been criticised by the complainants as providing an inadequate remedy because recourse to them can be had only if permission is granted, in their discretion, by the competent labour authorities. That this permission is in fact necessary and can be refused, in the discretion of those authorities, is perfectly clear from the Government's communication dated 16 April 1966 referred to in paragraph 145 above.
4. 157. The Committee feels that it is necessary to distinguish between collective disputes relating to conditions of employment, trade union rights, etc., and individual grievances. Issues of both kinds have been raised in this case.
5. 158. Section 2 of the Industrial Disputes Act, 1947, defines an industrial dispute for the purposes of the Act as a " dispute or difference ... connected with the employment or non-employment or the terms of employment or with the conditions of labour q/ any person ". In the event of such a dispute or difference the conciliation officer, according to section 12, may (apart from cases involving a public utility service in which, if statutory notice has been given, he shall) attempt to conciliate the parties. If this fails he must report to the appropriate government stating, inter alia, the facts and circumstances and the reasons on account of which, in his opinion, a settlement could not be arrived at; the government then decides whether the matter shall be referred to a board or tribunal. It would appear from the wording of the Act and from the evidence adduced in this case that the discretionary reference of a dispute for adjudication applies equally to collective labour disputes and to individual cases of alleged anti-union discrimination. The grounds on which the discretion is exercised are not clear. The Government interpreted the position in its letter dated 16 April 1966 (see paragraph 145 above) as being that reference for adjudication is refused if the party raising the dispute has not made out a prima facie case or it would otherwise be inexpedient in the larger interests of industrial peace to refer the dispute for adjudication. But the reason given for refusing a reference in the cases of Messrs. Roy, Chatterjee and Ghosh was not that their union failed to make out a prima facie case but that it " could not substantiate its allegations " before the conciliation officers.
6. 159. It appears to the Committee that some of the individual cases raised by the complainants are of a type which might have been settled by appropriate grievance procedures. In this connection the International Labour Conference, at its 50th Session (June 1966), approved certain proposed conclusions with a view to the adoption in 1967 of a Recommendation concerning examination of grievances within the undertaking with a view to their settlement. In particular, Point 18 of the proposed conclusions suggests that, where the parties have failed to settle a grievance by negotiation, certain other procedures should be envisaged, including conciliation or arbitration by the competent public authorities, decision of a labour court or other judicial authority, or any other procedure which may be appropriate under national conditions.
7. 160. The Committee also recalls that in Case No. 179 relating to Japan, which was referred to the Fact-Finding and Conciliation Commission on Freedom of Association with the consent of the government concerned, the Commission was called upon to consider among other things various cases of alleged anti-union discrimination against workers of a nature comparable to the individual instances raised in the present case. In its findings and conclusions the Commission stressed the importance of providing expeditious, inexpensive and wholly impartial means of redressing grievances; it drew attention to the desirability of settling grievances wherever possible by discussion without treating the process of determining grievances as a form of litigation but, concluded the Commission, in cases where there will be honest differences of opinion or viewpoint resort should be had to impartial tribunals or individuals representing the final step of the grievance procedure.

The Committee's recommendations

1. 161. In all the circumstances the Committee recommends the Governing Body:
   • (a) to note that, with regard to the individual instances of alleged anti-union discrimination raised in this case, the Committee, in view of the conflicting evidence submitted to it and of the fact that the issues involved therein have not been referred by the competent authorities for adjudication pursuant to the Industrial Disputes Act, 1947, is unable to formulate conclusions on the merits;
   • (b) to suggest to the Government that, having regard to the considerations set forth in paragraphs 156 to 160 above, it may care to give consideration to the possible amendment of its legislation relating to the settlement of disputes with a view to:
   • (i) affording to the workers and their organisations a fuller right to have access to statutory procedures for the settlement of disputes by conciliation and, if conciliation fails, by adjudication;
   • (ii) giving greater encouragement to the establishment and utilisation by the parties of effective grievance procedures for dealing with individual cases of alleged antiunion discrimination and other grievances and to the provision by law for reference of such grievances, in the last resort, for final settlement by a labour court or by such other inexpensive, expeditious and impartial instances as may be appropriate.