Report in which the committee requests to be kept informed of development - Report No 204, November 1980

Case No 922 (India) - Complaint date: 29-JAN-79 - Closed

1. 206. The Committee examined this case in February 1980 submitting interim conclusions in paragraphs 260 to 282 of its 199th Report, approved by the Governing Body at its 212th Session (March 1980). The Government sent its observations on the complaint of the National Union of Race Employees of India (NUREI) in a letter dated 13 May 1980.
2. 207. 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. Previous examination of the case

1. 208. In its previous examination of Case No. 922, the Committee considered allegations of dismissals, non-recognition of a union and suppression in favour of a rival trade union presented by the Balmer Lawerie and Co. Shramik Union. The Governing Body, on the Committee's recommendation, decided that these aspects of the case did not call for further examination. It noted, however, that the Government had not yet sent its observations on the allegations of the NUREI and requested it to communicate them as soon as possible.

B. Allegations of the complainant

1. 209. The complaint of the NUREI, contained in a letter of 22 February 1979, concerns dismissal and victimisation of several trade union officials, as well as non-recognition of this organisation by the employer. The complainant explains that under the provisions of the Shops and Establishments Act, which applies to the Tollygunge Club Ltd., the race course establishment which employs members of the union, no employer can employ any workman for more than eight hours a day and without giving any weekly rest off. The NUREI states that the management has intentionally flouted this Act with a view to depriving the workers of benefits such as annual leave with pay, sick leave with pay, weekly time off and overtime wages for extra duties, and it supplies a copy of its letter dated 31 January 1976 to the Additional Chief Inspector, Shops and Establishments, Government of West Bengal, complaining against the management for violation of the Act. In this letter the union states that it originally submitted its complaint on 22 February 1977, but after furnishing various records to prove that the management is covered by the Act, no official action has been taken.
2. 210. According to the complainant on 16 August 1977 the management illegally dismissed four employees, Messrs. Harekrishna Sharma, Balaram Sharma, Abdul Hamid and Rambalak, who were stalwarts of the union forced Mr. Khalil Miah, the treasurer of the union to retire before attaining the superannuating age and reverted the head doorman to a lower post as a measure of victimisation to stop their trade union activities. The complainant supplies a copy of the letter which it wrote to the West Bengal Labour Commissioner on 23 August 1977 protesting the dismissal of the four union members. In the letter the union explains chat the workers were charge-sheeted and suspended on 24 June 1977 for allegedly abusing and assaulting the Labour Advisor; they were arrested and released on bail that same day but their case has not yet been heard. The NUREI states that another member of the union executive, Shri Satyanarayan, was dismissed on 31 May 1977 because he wished to give evidence in the union's case under the Shops and Establishments Act. The complainant encloses a copy of its letter dated 1 June 1977 addressed to the Assistant Labour Commissioner of West Bengal requesting reinstatement of this worker, and states that no action has been taken by the Government since then.
3. 211. According to the NUREI, at the time of hearing the dismissal cases of the four workmen, the management indicated to the Conciliation Officer that it could not negotiate with this union as it recognised another union in the establishment, namely the Tollygunge Club Employees' Union. The complainant states that this rival union should not exist as it had been abolished by amalgamation when the NUREI was formed and because its registration had been cancelled for failure to submit annual returns under the Indian Trade Unions Act. The NUREI states that the Government took some time to decide this question, an intentional delay aimed at depriving the workers of their dues and at crushing the NUREI. During the delay, the management registered a new union, the Tollygunge Club Staff and Workers' Union, with a new registration number but with the same executive and continued recognition. The complainant supplies a copy of its letter dated 23 May 1978 to the West Bengal Department of Labour disputing the legitimacy of this rival union which represents only 20 to 25 of the employees whereas the NUREI represents 130 of the 160 permanent employees. It has requested the Labour Department or the Labour Directorate to conduct a secret ballot vote to determine which of the two unions should be recognised by the management for the purpose of collective bargaining in this connection, the complainant states that the management has taken various measures to stop its activities such as bringing false criminal cases against union leaders (a copy of the Show Cause Notice of the Alipore District Court is supplied) and obtaining an interim injunction restraining all the activities and functions of the union, the hearing of which has been continuously adjourned.

C. The Government's reply

1. 212. In its letter of 13 May 1980, the Government states that, as regards the allegation of non-observance of the Shops and Establishments Act, an inquiry is being carried out by the West Bengal authorities concerned and appropriate action, if considered necessary, will be taken to secure the implementation of the Act, It mentions that the NUREI did not respond to a request for assistance from the Investigating Officer.
2. 213. Regarding the removal from service of Messrs. Harekrishna Sharma, Balaram Sharma, Abdul Hamid and Joy Bahadur, the Government states that conciliation under the Industrial Disputes Act has been undertaken with a view to promoting a settlement; conciliation proceedings are still continuing. As for Khalil Miah and Satya Narayan, the State Government is considering the Conciliation Officers' reports with a view to deciding whether the cases are fit for reference to adjudication,
3. 214. In regard to the alleged non-recognition of the NUREI, the Government states that there is no central law it India for recognition of unions which is generally governed by the voluntary Code of Discipline so that an employer cannot be legally forced to recognise a particular union. It joints out that the complainant's request for determination of representativity by secret ballot cannot be met since the criteria for Recognition of Unions appended to this Code provide for verification by the paid-membership method. It further states that on 24 December 1979, the Registrar of Trade Unions was informed by 134 employees of the Tollygunge Club Ltd. that at a meeting on 11 December, the members of the NUREI and the Tollygunge Club Staff and Workers' Union decided not to be represented in any matter before any authority by either or both of these two unions; the workers elected seven persons to represent them and deal with all their problems.

D. Conclusions of the Committee

1. 215. The case concerns allegations of dismissal and victimisation of several trade union officers and discrimination against the complainant union by recognition of an unrepresentative rival union and by vexatious legal proceedings.
2. 216. As regards the dismissal on 16 August 1977 of four union members, the forced retirement of the union treasurer and the dismissal on 31 May 1977 of another union executive, the Committee notes the Government's statement that conciliation proceedings are underway for the four workers listed and that the State Government is considering the conciliation reports in the two other cases with a view to deciding whether they are fit for reference to adjudication. In this connection, the Committee would recall generally the oft-quoted principle fundamental to freedom of association 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 held from their trade unions. The Committee would like to be kept informed of the outcome of these proceedings and deliberations.
3. 217. As regards the complainant's allegation of no recognition and the hampering of its activities through vexatious legal proceedings, the Committee would point out, as it has in the past, that it attaches considerable importance to the principle whereby employers should recognise organisations that are representative of workers in a particular industry for the purposes of collective bargaining, and that the competent authorities should, in all cases, have the power to proceed to an objective verification of any claim by a union that it represents the majority of the workers in an undertaking, provided that such a claim appears to be plausible. Nevertheless, the Committee notes in the present case that, according to the Government, in December 1979 the members of the complainant union and the rival union met and decided not to be represented in any matter before any authority by either or both of these two unions and elected new representatives who presumably are recognised by the employer for collective bargaining purposes in particular. The Committee is therefore of the opinion that this aspect of the case does not call for further examination.

The Committee's recommendations

1. 218. In these circumstances, the Committee recommends the Governing Body:
   • (a) as regards the dismissal of five union members and forced retirement of a union official:
   • (i) to note that conciliation proceedings and consideration by the State Government concerning adjudication are underway;
   • (ii) to recall generally in this connection the principle set out in paragraph 216 above concerning the right of workers to enjoy adequate protection against acts of anti-union discrimination such as dismissal; and
   • (iii) to request the Government to keep the Committee informed of the outcome of the proceedings and deliberations;
   • (b) as regards the allegation of discrimination against the complainant by recognition of a rival union, to draw the Government's attention to the principles set out in paragraph 217 above that employers should recognise organisations representative of workers and that there should be objective verification of any plausible claim to majority representation but nevertheless, noting that the members of the two unions involved have settled the matter themselves, to decide that this aspect of the case dogs not call for further examination.