Definitive Report - Report No 160, March 1977

Case No 832 (India) - Complaint date: 17-NOV-75 - Closed

1. 118. The complaint from the Calcutta Port Commissioners Workers Union is contained in a communication of 17 November 1975. The complainants submitted further information by letters of 29 December 1975 and 5 March 1976. The Government submitted its observations by a communication of 11 August 1976.
2. 119. India has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations by the complainants
  120. 120 In its first communication, the complainant union stated that it had been created in December 1952 and registered in May 1953, after which it had rapidly become, with 10,000 members, the most powerful of the Calcutta port workers' organisations. It was not recognised by the employer, although the latter had undertaken at the time to examine the matter.
  121. 121 The complainants alleged that a dock permits system had been introduced in 1963 to prevent thefts. Permits had been issued to trade union officials not working in the port, and particularly to four of their officials. Subsequently, however, another union (the Calcutta Port and Dockworkers Union) had been registered and obtained withdrawal of the four permits (granted to three advisers and a fourth member of the complainant union). In addition, the chairman of the rival union had been one of the persons appointed as port commissioner, and officers of that union had received posts on various commissions.
  122. 122 The complainant union added that although it had practically 100 per cent membership in some sections, the management had introduced a new system for the allocation of work so as to give a large amount of overtime to workers who agreed to leave the union. For example, it had transferred militants to posts where there was no overtime and adopted a discriminatory shift system. The union had started a strike in October 1973; the regional labour commissioner had failed in his conciliation efforts and the Indian Government, after waiting six months - in order, according to the complainants, to enable the management to persecute the union - had refused to refer the dispute to a labour tribunal. In addition, the management had adopted a different system elsewhere, but always in order not to grant overtime to members of the complainant union. The wages of 16 union members had been reduced and pressure put on other members working in the section to induce them to leave the union, which they had done.
  123. 123 According to the complainants, the management had also arranged for workers to attack three militant members of the union and a fourth person so that the latter could be handed over to the police, and they had been prevented from working for about six weeks, without any charge being upheld against them, and then suspended. Court action had been taken against them on the initiative of the management. During that time, the complainants continue, the employer had concluded a secret arrangement with another union with a view to forcing the members of the complainant union, unknown to it, to reach agreement with the other union. The four persons concerned had been allowed to return to work and received their full wages for the entire period; many workers had left the complainant union to join the other one.
  124. 124 The complainants also referred to a request which they had addressed to the management in about 1972 for certain items of work clothing and travel allowances. The management had turned down the request and the union had referred the matter to the regional labour commissioner. The dispute had lasted two years and the Government had refused to refer the matter to a tribunal. However, when another union asked for clothing the management had reached an agreement with it and this had encouraged workers to join that union. The complainants stated that they had protested to the labour commissioner, but obtained no results and the Government finally had referred only some of the matters in dispute to a tribunal.
  125. 125 The complainants also claimed that the management had reduced the wages of many workers and referred the matter to the regional labour commissioner. Although some of the points had been considered in 1972, 1973 and 1974, none of them had so far been settled, and that had caused many withdrawals from the union. In many cases, added the complainants, when the conciliation procedure had failed, matters had remained in abeyance for months, and they quoted a case involving various wage rates.
  126. 126 The complainant union also stated that its former premises had been raided by extremists and its telephone damaged. It had subsequently moved, but its telephone had been cut off due to delays in the payment of bills. It had asked to be reconnected in 1971, had paid certain amounts, but its line still had not been reconnected. It considered this as yet another measure to weaken the union.
  127. 127 The union's treasurer, Mr. Rambadan Ahir, had been suspended on 7 August 1975 without any charge being upheld against him until 22 September 1975. He had then been accused of occupying lodgings without authorisation, after forcing the door. According to the complainants, over 1,000 persons had done exactly the same thing without action being taken against them and action had been taken in the case in question to induce this person to leave the union and because he had lodged and won an appeal before the labour tribunal of the Central Government (whose decision the authorities had in any case not yet implemented). The management had not allowed the person concerned to consult the documents necessary for his defence. Mr. Rambadan Ahir had applied for accommodation since 1970, but his application had been left aside because of his union membership, and other workers had passed ahead of him; even persons not belonging to the undertaking were occupying accommodation. The complainants quoted yet other abuses on which they claimed that no investigations had been carried out. Moreover, the person in question had been unable to obtain temporary accommodation whilst his wife was sick, contrary to the usual practice and despite the fact that there was accommodation vacant.
  128. 128 The complainants added, in their second communication, that their officials and even their general secretary were not authorised to speak to union members in one section, might not enter the sections to collect contributions, distribute pamphlets or have meetings, whereas the employer allowed about 100 other workers of three other unions to deal solely with union affairs during working hours (the complainants gave the names of three persons).
  129. 129 The complainants also provided details of the shift system introduced (see paragraph 122 above) which, they stated, was a source of injustice. They added that the telephone had been connected following the complaint to the ILO.
  130. 130 As regards the union's treasurer, the Indian Government had refused to take action on the regional labour commissioner's report and to decide whether the suspension of the worker without charges being brought against him had been justified or not; the union had collected precise information on the allegations made previously regarding the allocation of accommodation.
  131. 131 The complainants further quoted the case of Mr. Paresh Chandra Ghosh, member of the union, who had been downgraded for unjustified absence, although he had submitted a sickness certificate, duly registered at the hospital set up by the employer. The complainants had initiated a conciliation procedure, but had failed; the Indian Government had refused to refer the matter to a tribunal because the Port Trust did not see any objection to the person concerned appealing to the competent authority against the decision taken against him. The person concerned had appealed in June 1975 and had received no news since then. According to the complainants, the Government follows no code nor regulations in settling disputes and it takes years to obtain satisfaction by the conciliation procedure. The complainants further quoted the case of workers forced to drive motorised trucks, although their load prevented them seeing in front of them. One of them, Mr. Rajkaran Yadar, had refused to drive under those conditions and had been punished with a warning and retention of seven-and-a-half hours' wages. Another, Mr. Md. Salim, had knocked over and killed a workmate in that way and disciplinary action had been initiated against him. The union had introduced conciliation procedure which had failed and the Government had refused to refer the matter to a tribunal for decision.
  132. 132 In their third communication, the complainants stated that their telephone had once again been cut off and their treasurer forced to leave his accommodation and live in the street with his family; the person in question had appealed on 28 January 1976, but the employer had not yet acknowledged receipt of the letter.
• The Government's reply
  133. 133 The Government stated firstly that the complainant union had only a negligible following amongst the employees of the Calcutta Port Trust. During the last verification of union memberships (31 December 1972), it had declared a total membership of 765, i.e. 2.5 per cent of the total union members (31,455) (however, the union had failed to produce its records at the time of the verification and its membership had therefore been treated as nil). It was common practice, where one or more recognised and representative unions existed, for employers not to deal with an unrepresentative union on general matters affecting all the employees. Minority unions often tried to raise disputes even on matters which had been settled with the recognised unions. Encouragement to such minority unions would intensify inter-union rivalry and foster unhealthy trade unionism. The Government also pointed out that the union in question had already submitted complaints to the ILO in Cases Nos. 149, 204 and 420.
  134. 134 The Government went on to reply in detail to the various allegations made by the complainants. It denied, in particular, that it had ever undertaken to consider recognition of that union; the Committee on Freedom of Association had already rejected similar allegations in Cases Nos. 149 and 2041 and there existed three recognised unions for the port workers.
  135. 135 Dock permits had been introduced in 1960 in order to restrict entry to the docks to bona fide users of the port and port employees. The officers of the unrecognised union, who were not port employees, did not fall into any of those categories. Moreover, since that union had pockets of membership only in the Chief Mechanical Engineer's workshop, it was unnecessary to issue permanent dock permits. As the general secretary of the union was an employee of that workshop, he held a permit, but the four persons mentioned by the complainant were advisers, and not union officers. Moreover, appointments to the Port Trust Hoard were made on the basis of the verified union strengths.
  136. 136 It further declared that although the workplace was not meant for trade union activities, no restrictions were placed on the trade union activities of the port employees and the complainant union also had the benefit of that liberal attitude; it was false to claim (see paragraph 128 above) that its general secretary, who was an employee, was not authorised to talk to members of the union. The facility of collecting subscriptions in the sections had not been granted even to the recognised unions. Moreover, the persons named by the complainants carried out their allotted work every day in full and did trade union work in their spare time only.
  137. 137 The Government added that the complainants' claim regarding the proportion of their membership in various sections was incorrect. The transfers of workers had not been designed to disrupt union activities, but represented a legitimate managerial function and such transfers were carried out whenever necessary. The Government's decision not to refer the matter to the tribunal had been based on the merits of the case and there had been no undue delay, much less a delay designed to enable management to victimise the union; moreover, the latter had not mentioned a single specific case in that connection. In view of the requirements of the minimum Wages Act of 1948, giving workers entitlement to overtime for work beyond nine hours in a day or 48 hours in a week, the port authorities could not refuse such overtime. Redeployment of workers was necessary for administrative or economic reasons. It was possible that the overtime earnings of some workers might have been adversely affected, but overtime could not be claimed as a matter of right and it was the administration's policy to reduce overtime so far as possible.
  138. 138 Regarding an alleged attack on certain workers, the Government stated that criminal action had been undertaken under the Port's Discipline and Appeal Rules against some persons involved in a quarrel, and that the allegations against the administration were baseless.
  139. 139 Regarding the uniforms and travel allowances, the Government explained that another union (which was both recognised and the most representative) had asked a few years previously for uniforms to be supplied for workers in one of the workshops. The complainant union had raised the question in 1975. In the meantime, the port authorities had reached agreement with the recognised union on 4 January 1975, following bipartite discussions. The complainants had nevertheless sought certain additional benefits, such as winter uniforms, raincoats, etc. The matter had been fully examined in the Ministry of Labour and only the demand for raincoats had been found fit for reference to the tribunal. The Government gave technical reasons for this and explained that the complainants had filed an application with the tribunal for withdrawal of the matter referred to it, in order to induce the Government to make a new reference more in line with its wishes.
  140. 140 Regarding the reductions in some pay scales, the Government stated that anomalies had arisen as a result of the revision of pay scales, made in compliance with the Wage Board's recommendations, whereby the pay of certain young workers had been fixed higher than that of their seniors. The management was considering the adjustments necessary. The Government rejected the complainants' allegation concerning another case said still to be pending in the Ministry of Labour (see paragraph 125 above); the management and the union had been informed by a letter of 6 October 1975 that the employer's decision not to include certain workers in a specified pay scale could not be considered as unjustified. In any case, the pay structure of port and dockworkers was under review by the Wage Revision Committee for Port and Dockworkers and the matter had been referred to it.
  141. 141 The Government considered that the allegations regarding the telephone concerned neither the Port Trust nor the Ministry of Labour and did not affect the exercise of trade union rights. According to the union itself, the trouble had been caused by miscreants and was a matter of law and order. The disconnection or reconnection of a telephone was decided by the Telephones Department of the Government, in accordance with rules specified for the purpose.
  142. 142 The Government then referred to the question of the union's treasurer and stated that the port authorities were in no way attempting to persecute the officers of the complainant union. It was a long-standing practice on their part to suspend a worker from pay and duty pending the investigation of a case of unauthorised occupation of quarters, following forcible entry. It expressed surprise at the complainants' argument that charges were unjustified because similar cases existed: action was taken in every case as soon as it was detected. The tribunal's award to which the complainants referred, had nothing to do with the suspension, but related solely to a disagreement on seniority between the person concerned and another worker. There was a great demand for quarters and a list of candidates had been drawn up on the basis of seniority, exceptions being made in cases enumerated by the Government. The person concerned appeared on the list, but his application on the basis of his former grade had become invalid when he was promoted. The Government also rejected as groundless the allegation that the person concerned applied to the authorities for a special allocation because of his wife's illness. The Ministry of Labour had examined the case on two occasions, contrary to the claims made by the complainants, and had concluded that the decision to suspend him was not inconsistent with the rules, which provided that the head of a department might suspend an employee whose monthly wages did not exceed Rs.350 if disciplinary proceedings were contemplated or pending. The Government denied that 40 per cent of residential accommodation was occupied without proper authorisation; the management had started investigations into the cases mentioned by the complainant and the necessary action would be taken in accordance with the rules if the accusations appeared to be founded. It also explained the humanitarian and compassionate grounds on which the management had decided not to take action against certain workers who were illegally occupying quarters before 1973; the matter had not been completely settled and some cases were still under examination as regards the action which might be taken. The person concerned had vacated the quarters on 27 January 1976 and had therefore been authorised to resume duty.
  143. 143 The case of Shri Paresh Chandra Ghosh (see paragraph 131 above), continued the Government, was re-examined by the management following an appeal from him and his period of demotion had been reduced from two years to one, without affecting his future increments. That of Shri Rajkaran Yadar had been fully investigated through the Industrial Relations Machinery of the Ministry of Labour. The worker's contentions were found to be baseless because the work which he had refused to do had been performed smoothly by another driver. He had been given a warning and paid for the work actually performed. The Ministry of Labour had also looked into the case and found it unfit for reference to adjudication. The Dock Safety Inspectorate had investigated the case of Shri Mohd Salim and charges had been brought against him in the light and on the basis of its recommendations; the Inspectorate had found no defect in the forklift truck. The management was still investigating the matter.
  144. 144 The Government considered, in conclusion, that the complainant union was in the habit of twisting facts and lodging baseless complaints with the ILO containing not only false allegations, but also ill-founded and mischievous accusations against the Government regarding delays, partiality, etc. Matters raised by this union or by any other union were duly considered by the Government and the decision whether or not to refer a dispute to adjudication was taken on merits. Five disputes raised by the complainants had been referred to tribunals during 1975.

B. B. The Committee's conclusions

• Conclusions of the Committee
  145. 145 Some of the allegations made by the complainant union relate to refusal by the port authorities to recognise it and to the difficulties which it encounters in gaining acceptance of its views in collective disputes (allegations concerning working clothing, travel expenses and certain pay scales) or in obtaining certain facilities for the exercise of its activities within the undertaking (allegations concerning port permits). The others relate to measures of which it claims that the union itself or its members are victims (allegations concerning the allocation of overtime, disciplinary measures and pressure on certain members).
  146. 146 As regards refusal by the management to recognise the complainant union and its difficulties in negotiating on general matters concerning conditions of employment, the Committee recalls that it has already received similar allegations from the same organisation.) In Case No. 149 (examined by the Committee in November 1956), the information provided by the Government showed that two recognised unions had 17,634 and 4,404 members respectively, whereas the complainant organisation, according to its own annual figures, had only 2,229 members (and not over 5,000 as stated in the complaint). The Committee considered that the complainant union had not offered sufficient proof that trade union rights had been infringed. In Case No. 204 (examined by the Committee in February 1960), except for the new membership figure which conflicted with its own previous evidence, the complainants had adduced no new evidence beyond that submitted in respect of Case No. 149 and the Committee had therefore recommended the Governing Body to decide, in these circumstances, that the allegations did not call for further examination. In the case now before the Committee, it finds that although the complainant union, which is registered, is still not recognised, unlike three other organisations, this is because it apparently represents only 2.5 per cent of the unionised port workers. The Committee considers, under these circumstances, that the employer's refusal to recognise this minority unit or its preference for negotiation with representative organisations does not represent an infringement of the principles of freedom of association.
  147. 147 The Committee also notes the explanations provided by the Government regarding facilities which the complainants claim have been refused in the exercise of their activities within the undertaking. These questions include those which, in the absence of special legislation, are a subject for collective bargaining and, therefore, depend on the degree of representativity of the unions involved.
  148. 148 Moreover, the complainants merely state that the difficulties encountered in obtaining the connection of their telephone (which are bound up, according to their own statements, with delays in the payment of certain bills) were intended to prejudice them, but they do not add any evidence in support of their statements.
  149. 149 As regards the allegations concerning measures taken against certain union members, it should be pointed out, firstly, that the Committee is not competent to consider these unless they have a bearing on the exercise of trade union rights. This does not appear to be the case as regards those concerning Shri Paresh Chandra Ghosh, Shri Rajkaran Yadar and Shri Mohd Salim (see paragraphs 131 and 143 above) which relate solely to the justification for certain disciplinary actions. However, the complainants mention several cases in which they claim that pressure was brought to bear on their members or that retaliatory action was taken because of their trade union membership; the latter allegations are rejected by the Government.
  150. 150 The Committee has always pointed out the importance which it attaches to the principle that workers should enjoy adequate protection against all forms of anti-union discrimination in respect of their employment and that this protection should apply more particularly to acts calculated to cause the dismissal of a worker or prejudice him in any other way on account of his trade union membership or activities.
  151. 151 In the present case, the Committee has before it information contained in statements made by the complainants and by the Government which are contradictory, and it is therefore unable to reach specific conclusions on the matters referred to it. Such complaints regarding anti-trade union practices can best be dealt with by national procedures.
  152. 152 It can nevertheless be seen from both the information supplied and sections 2(k), 10 and 22 of the Industrial Disputes Act of 1947 that the initiation of conciliation procedures and reference of a matter to the tribunal are not automatic, but are left to the discretion of the competent authorities. The complainants in fact mentioned the refusal by these authorities to refer a matter to the tribunal after the failure of conciliation efforts. In another case concerning India, which was fairly similar, the Committee and the Governing Body proposed, in particular, that the Government give consideration to the possible amendment of its legislation relating to the settlement of disputes with a view to giving greater encouragement to the establishment and utilisation by the parties of effective grievance procedures for dealing with cases of alleged anti-union discrimination 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. The Committee considers that the same conclusions could be reached in the present case.

The Committee's recommendations

1. 153. Under these conditions, and with regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) as regards refusal by the employer to recognise the complainant union, and as regards the difficulties encountered by the latter in negotiating on general questions relating to conditions of employment or in obtaining facilities for the exercise of its activities in the undertaking, to decide, for the reasons set out in paragraphs 146 and 147 above, that these aspects of the case do not call further examination;
   • (b) to decide, for the reasons given in paragraph 148 above, that the allegations concerning use of the telephone also do not call for further examination;
   • (c) as regards the individual cases of trade union discrimination raised by the complainants:
   • (i) to note that the Committee is unable to reach specific conclusions on the actual cases referred to it since the information available is contradictory;
   • (ii) to suggest to the Government that it give consideration to the possible amendment of its legislation regarding the settlement of disputes, with a view to encouraging the establishment and utilisation by the parties of effective grievance procedures for dealing with cases of alleged anti-union discrimination, 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.