Interim Report - Report No 149, November 1975

Case No 793 (India) - Complaint date: 21-MAY-74 - Closed

1. 113. The complaint of the All India Railwaymen's Federation (AIRF) is contained in a communication dated 21 May 1974 and that of the International Transport Workers' Federation (ITF) in a telegram dated 28 May 1974. The Government forwarded its observations in a communication dated 21 October 1974.
2. 114. India has not ratified either 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. 115. The AIRF declares that the strike by nearly 1,700,000 Indian railwaymen could have been averted had there been sincere good faith in collective bargaining on the part of the public authorities. The complainant organisation lists the railwaymen's demands and explains that a number of meetings took place starting on 5 February 1974, mainly with the Minister and Deputy Minister of Railways. According to the AIRF, the union representatives announced that a strike notice would be served on 23 April 1974 and that the strike would begin on 8 May 1974 if no settlement was reached. The discussions continued until 30 April 1974 without any settlement being in sight. On that date the Railway Minister agreed to reopen the discussion on all the demands made and proposed that the next meeting be held on 1 May. The union representatives suggested that the Minister put in writing his objections to each of the demands and that this document serve as the basis for further negotiations. They also requested that the next meeting be postponed to 2 May, and the Minister agreed.
2. 116. However, continue the complainants, on 2 May Mr. George Fernandez, President of the AIRF, was arrested along with many other trade union leaders. Thus the negotiations were "scuttled". Spontaneous work stoppages took place in some areas, and on 8 May 1974 the entire railway system was brought to a halt. What followed, according to the complainants, was a reign of terror and repression: suspension and dismissal of thousands of strikers; eviction with their families from railway quarters; army personnel asking strikers' wives at bayonet point to disclose the whereabouts of their husbands or face eviction; arrest of over 25,000 workers; lastly, Territorial Army personnel who were railwaymen were compelled to run trains even though they had not been given the necessary training. The Home Ministry issued a circular directing state governments to make arrests in consultation with the railway general managers and divisional superintendents.
3. 117. The AIRF points out that its demands have been pending for over a year without any meaningful negotiations taking place nor any genuine efforts being made by the public authorities to resolve the dispute. It alleges that the arrests and repressive measures began long before the strike started. In the event of breakdown of the negotiations the dispute should have been referred to conciliation machinery under the Industrial Disputes Act. According to the complainants the administration has been exhorting union members by threats, intimidation, persuasion or rewards to relinquish their union membership, or causing the dismissal of, or otherwise prejudicing, workers by reason of their union membership.
4. 118. The ITF, for its part, states that more than 60,000 workers have been illegally arrested and detained without trial, that more than 10 million workers have been served with dismissal orders, that approximately 30,000 have been thrown out of their houses or served with eviction notices having immediate effect. According to the ITF, there have been cases of women being raped in eastern areas of the country; there has been ruthless propaganda against railwaymen through the state-owned radio and TV network, the armed forces and police have gone into action and the Government has made use of draconian powers under measures such as those for the maintenance of internal security and the defence of India in wartime. The complainants go on to say that workers have been forced to work at bayonet point; wages have not been paid so as to force the workers into submission; the authorities have unleashed a reign of terror in the railway colony.
5. 119. In its reply the Government begins by describing the background to the dispute. It explains that the Indian Railways are run as a Government undertaking and deemed to be an essential public utility service. They are the life-line of the country's transport system. Besides carrying passengers, goods and freight, they assist in the transportation of coal to power stations, essential raw materials to steel plants and food grains to areas where they are in short supply. They employ 1,400,000 workers and their total wage bill in 1972-73 amounted to 4,800 million rupees.
6. 120. The Government goes on to state that permanent tripartite machinery for the settlement of railway disputes has been functioning since 1952; it was set up in agreement with the unions. In 1966 the Government introduced a scheme for consultation with its employees' organisations through joint councils at the national, regional and office levels. The scheme provides for the settlement of all disputes through joint consultation and compulsory arbitration machinery. Compulsory arbitration is provided for on issues relating to the pay and allowances, weekly hours of work and leave of a grade or class of employees. The scheme further provides that matters determined by the Government in accordance with the recommendations of a commission shall not be subject to arbitration for a period of five years.
7. 121. The Government adds that railwaymen are government servants and that the same pay scales and service conditions are applicable to them as to employees in other Government departments. They are also bound by the same rules as concerns, inter alia, strikes, and their pay scales and service conditions are determined by high-level pay commissions appointed by the Government from time to time. A third pay commission was set up in 1970 to review the pay scales and service conditions of all government servants. Both the railwaymen's federations - one being the AIRF - took the opportunity to present their views before this commission. The commission submitted its report in March 1973. The Government, anxious to evolve an agreed wage system for its employees, provided ample opportunity to their organisations - including the two federations of railwaymen - to discuss these matters under the joint consultation machinery mentioned above. Discussions were also held with a group of ministers headed by the minister of Finance. At these discussions, continues the Government, the unions assured the Government that they would not insist on arbitration for a period of five years if the Government modified certain recommendations of the pay commission in a manner more beneficial to the employees. After extensive discussions with the employees' representatives, the Government finally announced its decisions on the pay commission's recommendations in October 1973.
8. 122. Despite the agreement reached under the joint consultation machinery, continues the Government, the AIRF submitted on 8 November 1973 a six-point memorandum demanding, inter alia, further changes in the pay scales and in the dearness allowance formula. In the opinion of the Government this was a clear transgression of the spirit of the agreement in question. Sporadic work stoppages took place, and notwithstanding the talks he had with the Minister of Railways, Mr. George Fernandes, President of the AIRF, threatened to call a strike if the demands were not accepted by 10 April 1974, even though strikes in an essential service like the railways were prohibited because of the disturbed conditions prevailing for the past year. The Government adds that acceptance of the AIRF's demands would have entailed an additional expenditure of 4,500 million rupees, which was beyond the capacity of the Government in the present context of the country's economy. However, with a view to avoiding any disruption of the smooth working of the railways, and to finding ways and means of arriving at a settlement, the Railway Minister and his deputy started negotiations with the AIRF and the other recognised federation.
9. 123. Nevertheless, continues the Government, the AIRF refused to make any concession and served strike notices on 22 and 23 April 1974 for a general strike on 8 May 1974, albeit stating that this was a mere formality, and that its main objective was to secure a negotiated settlement. As a result of the negotiations most of the issues raised had been resolved and the amount of benefits deriving from the negotiated settlement over these demands totalled about 800 million rupees a year (in addition to the 1,100 million rupees accruing out of the implementation of the pay commission's recommendations). Two of the demands could not be accepted; revision of pay scales because they had already been considerably improved upon, and dearness allowance and bonuses because the matter was under consideration by a bonus review Committee.
10. 124. Notwithstanding the Government's readiness to resolve the difference through negotiations - continues the Government - and in breach of the joint consultation machinery agreement, the AIRF proceeded from 20 to 30 April 1974 with all-out preparations for a strike designed to cripple the national economy. Mr. George Fernandes toured the whole country openly inciting his followers to violence and sabotage. A large number of instances of intimidation, assaults on officers and supervisors and a general atmosphere of violence were reported. By 30 April 1974 the negotiations had reached a decisive stage and a measure of agreement was in sight; it was accordingly agreed that what had already been achieved should be put in writing so that the agreed minutes could be discussed and accepted on 1 May. Mr. Fernandes stated that he was unable to come and the meeting was postponed until the next day. But the President of the AIRF was already announcing that the railwaymen had decided to strike on 8 May 1974. In the absence of this federation the minutes were accepted by the other recognised railwaymen's federation.
11. 125. The Government adds that this other railwaymen's federation had openly declared that it would not join the strike. In fact, out of 1,400,000 employees, only about 550,000 - i.e. less that half - took part in the strike. It was on this account, according to the Government, that the AIRF resorted to violence even while the negotiations were going on. The Government had to act in the interest of the nation and of the majority of the staff who wanted to stay at their posts. It was on this account that preventive arrests had to be made of Mr. Fernandes and his close associates. The strike commenced on 8 May 1974, accompanied, according to the Government, by acts of organised violence, intimidation and attacks on loyal workers, and reported cases of sabotage leading to wanton destruction of railway property and premises. The number of strikers soon dwindled to 250,000, and the strike was called off unconditionally after three weeks.
12. 126. The Government further points out that the Railway Ministry has perfected its own machinery for the adjustment of disputes, viz. the Permanent Negotiating Machinery, which comprises representatives of both the recognised federations, including the AIRF; this machinery is fully competent to deal with any disputes arising in the railways. The AIRF, says the Government, has contended that after the negotiations failed the dispute should have been referred to the conciliation machinery under the Industrial Disputes Act. However, the complainant federation's demands concerning the revision of wage scales, changes in the dearness allowance formula and the payment of bonuses could not be dealt with through the conciliation machinery. These were issues with wider financial implications; they had already been settled by the third pay commission or were under consideration by the bonus review Committee. The AIRF, goes on the Government, forms part of the joint consultation machinery and is therefore a party to the agreement whereby, when pay scales are revised by a duly constituted pay commission and when these pay scales are accepted by the public authorities or improved upon, they become not arbitrable for a period of five years. There was therefore no justification for the decision to strike, which involved a distinct breach of faith in the established machinery for the settlement of disputes in the railways.
13. 127. The Government goes through the strikers' demands one by one and explains its position at length in respect of each. The Government adds that the Indian Railways have a wide network with vital installations and yards spread over the different states. The Central Home Ministry, as the general custodian of law and order, had to keep a close watch on the developing situation; it consequently alerted the state governments and suggested certain steps to be taken to deal with breaches of law and order. Where there was concrete evidence of acts of sabotage the Government had to take the prompt preventive action necessary for the safety and security of a large body of railwaymen and of the travelling public, and in the national interest. The Government denies that the action taken under these circumstances was prejudicial to the negotiations.
14. 128. In order to enforce discipline and restore order, the Government admits to having been obliged to have recourse to preventive detention, but only in respect of those who had indulged in violent activities. Some such workers were subsequently dismissed or removed from service under the disciplinary rules applicable to railwaymen. The affected workers were free to make individual appeals; in fact, such appeals have been received and are now under consideration. It is a gross exaggeration, according to the Government, to say that army personnel were deployed to terrorise the wives of strikers; as a safeguard against sabotage and to protect the lives and property and families of workers who had stayed at their posts it was found necessary to provide pickets at strategic points and in the railway colonies as well as arranging for patrolling of the railway tracks.
15. 129. The Government points out that the Territorial Army personnel involved are railwaymen with long years of service who are recruited to meet national emergencies, to move essential traffic and to prevent the country from sliding into a state of economic paralysis. They ran thousands of trains during the strike without violating any safety rules. Out of 1,400,000 railway employees, continues the Government, 19,883 were arrested during the strike; all except seven were later released. The number of regular employees removed from service was 16,749; on the basis of individual appeals 10,561 of them have already been reinstated; further appeals are being looked into sympathetically. The Government considers that bearing in mind the number of strikers (550,000) and the enormity of the violence, sabotage and intimidation, the number affected was only a small fraction.
16. 130. According to the Government, all those who actively participated in the strike - declared illegal under the Defence of India Rules, 1971 - had to forgo their pay for the period of absence on strike. This break in service, however, did not imply any reduction in pay or loss of seniority, but only forfeiture of earned leave up to the period of the strike, certain travel concessions and other advantages accorded during the earlier period for good and faithful service. The Government goes on to state that, as a large number of workers were intimidated into striking by terrorist methods, individual cases are being looked into and reviewed sympathetically this break in service has already been condoned in the case of nearly 270,000 employees, and the process is continuing. These measures should clearly indicate that at no time did the Government take a vindictive attitude or resort to victimisation.
17. 131. The Government concludes by stating that by resorting to a strike and reopening issues which had been settled by joint discussions, the AIRF infringed the agreement it had reached with the Government whereby all disputes were to be resolved through the joint consultation machinery. It was also responsible for violating the law of the land, which prohibits strikes in the railways, run as an essential service. The allegations contained in the complaint cannot therefore be sustained.

B. B. The Committee's conclusions

1. 132. This case is thus concerned essentially with a labour dispute which arose in the Indian railways in May 1974. To deal with claims submitted by the AIRF in breach, according to the Government, of agreements which had just been concluded, negotiations were begun at the highest level. The discussions with this federation were broken off after the arrest of its president and a number of other trade union leaders. According to the Government the AIRF was making preparations not only for a strike but also for acts of sabotage, violence and intimidation, and cases of assault had already been reported. The strike was declared illegal, and the Government ordered the arrest, dismissal, removal from service and - according to the complainants - eviction from their homes of thousands of strikers. Brutality on the part of the police and armed forces was also alleged.
2. 133. The Committee has frequently pointed out that the right of workers and their organisations to strike is generally recognised as a legitimate means of defending their occupational interests, and that where this right is restricted or even prohibited in the civil service or in essential services, adequate guarantees should be ensured to safeguard to the full the interests of the workers thus deprived of an essential means of defending their occupational interests. In the present case, the Committee notes that according to the information supplied by the Government the railways are a key sector in the life of the country. It does not therefore appear possible for major strikes to take place in this public service without causing serious inconvenience to the national community.
3. 134. The Committee notes that according to the complainants the dispute should have been referred to the conciliation machinery under the Industrial Disputes Act. The Government states that the complainants' demands concerning the revision of pay scales, changes in the method of calculating the dearness allowance and the payment of bonuses could not be referred to this conciliation machinery. According to the Government, the AIRF participates in the joint consultation machinery and is therefore a party to the agreement whereby pay scales have to be revised by a duly constituted pay commission and may not be referred to arbitration for a period of five years once the recommendations of the pay commission have been accepted or improved upon by the public authorities.
4. 135. The Committee notes, with respect to the different types of machinery described by the Government, that the Indian National Commission on Labour has drawn attention to certain defects in the functioning of the joint consultation and arbitration machinery in the public sector in India. This Commission observed that the Government appears to have vested in itself the power to place or not to place certain items on the agenda for discussion by the consultation machinery, and pointed out in particular that the final decision lies with the Government as to whether or not an issue should be referred to arbitration if a settlement cannot be reached through the consultation machinery. The Committee recalls that it has frequently pointed out that the restriction or prohibition of the right to strike in essential services should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures, in which the parties can take part at every stage and in which the awards are binding in all cases on both parties and are fully and promptly implemented.
5. 136. It would seem that in the present case the guarantees designed to compensate for the forfeiture of the right to strike are not adequate, since the Government has the final say as to whether or not a dispute should go to arbitration. Such a situation may create an atmosphere of tension hardly favourable to the development of harmonious industrial relations.
6. 137. According to the Government the intervention of the armed forces was for the purpose of preventing sabotage and protecting the lives, property and families of workers who had stayed at their posts. Mr. Fernandes and his associates were arrested because they had been preparing for the strike while the negotiations were going on and had been inciting their followers to violence and sabotage, and strikers were arrested because the authorities had evidence of acts of sabotage and were therefore obliged to take the necessary action promptly and to make preventive arrests. The Government states that nearly 20,000 strikers were arrested but all except seven were released, that two-thirds of the 16,700 or so railwaymen dismissed have been reinstated after appealing and that other appeals are under consideration.
7. 138. The Committee notes the Government's explanations. It considers nevertheless that arrests and dismissals of strikers on such a large scale involve serious dangers of abuse and place freedom of association in grave jeopardy. The Committee has always expressed the view that intervention by security forces should be limited to the maintenance of public order, and considers that the competent authorities should be given appropriate instructions so as to obviate the dangers to freedom of association implied by such arrests or dismissals.
8. 139. The Committee notes that two-thirds of the dismissed railwaymen have been reinstated and that appeals are pending against other dismissals. The Committee expresses the hope that the Government will adopt a lenient attitude in these various cases, as this would be more likely to facilitate the development of harmonious industrial relations than an attitude of inflexibility.

The Committee's recommendations

1. 140. In these circumstances, and with regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) to draw the Government's attention to the considerations expressed in paragraphs 135 and 136, and to point out in particular that the restriction or prohibition of the right to strike in essential services should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures, in which the parties can take part at every stage and in which the awards are binding in all cases on both parties and are fully and promptly implemented;
   • (b) to draw the Government's attention to the considerations expressed in paragraphs 138 and 139, and in particular to express the hope that the Government will adopt a lenient attitude in regard to the reinstatement of the dismissed railwaymen, such an attitude being more likely to facilitate the development of harmonious industrial relations in the railways;
   • (c) to request the Government to specify whether Mr. Fernandes and his close associates are still in prison, and to supply information concerning the strikers still in custody, indicating in particular whether legal proceedings have been initiated against them and, if so, what the outcome has been
   • (d) to take note of the present interim report, on the understanding that the Committee will report to the Governing Body again when it is in possession of the information requested in subparagraph (c) above.