Effect given to the recommendations of the committee and the Governing Body - Report No 338, November 2005

Case No 1890 (India) - Complaint date: 29-MAY-96 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 176. The Committee last examined this case, which concerns the dismissal of Mr. Laxman Malwankar, President of the Fort Aguada Beach Resort Employees’ Union (FABREU), the suspension of 15 FABREU members following a strike, and the employer’s refusal to recognize the most representative union for collective bargaining purposes, at its March 2004 session where the Committee requested the Government to rapidly take all appropriate measures to ensure that these pending issues are resolved, in particular as regards Mr. Malwankar’s dismissal [see 333rd Report, paras. 77-79].
2. 177. In a communication dated 27 April 2005, the Government informed that Mr. Mukund Parulekar had been under suspension pending inquiry against him and he was receiving subsistence allowance. Initially, he participated in the inquiry, but then he abstained himself from the proceedings and the inquiry was conducted ex parte. The findings of the inquiry are still awaited. In the case of the inquiry against Mr. Sitaran Rathod concerning his misconduct while on duty, disobeying the transfer order and absence from work, the inquiry was completed and the report on the findings of the inquiry was awaited. The Government further indicated that there were two inquiries against Mr. Sham Kerkar: one for his misconduct while on duty and another for disobeying the transfer order and his absence from duty. Both inquiries had been concluded and the findings of the second inquiry were awaited from the inquiry officer. The management of the enterprise had filed an application for permission before the Industrial Tribunal (No. IT-18/99); this case was still pending and the Government could not interfere in the judicial process. Since Mr. Kerkar had not reported to the place of his transfer, he was not entitled to wages for the period of absence. He was free to report to the place of transfer, as his services were not terminated. As concerns Mr. Ambrose D’Souza, the Government submitted that he had resigned and was accordingly paid his dues. No dispute of any nature was pending in this respect. Finally, the Government stated that it had advised the enterprise management to complete the inquiry proceedings within the shortest possible time.
3. 178. By a communication of 6 September 2005, the Government forwarded a copy of the award passed by the Industrial Tribunal on 4 April 2005 concerning a dismissal of Mr. Malwankar. The award ratified a settlement reached by Mr. Malwankar and the management of the Fort Aguada Beach Resort.
4. 179. The Committee notes the statement of the dispute concerning Mr. Malwankar’s dismissal. As concerns other pending issues of this case, while noting the information provided by the Government, the Committee deeply regrets that nine years after the complaint was filed, the issue of dismissal and suspension of trade unionists has not been resolved and findings from various inquiries are still being awaited. The Committee recalls that cases concerning anti-union discrimination should be examined rapidly so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular lengthy delay in concluding the proceedings concerning reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 749]. The Committee further considers that, in this case, the absence of judgements and excessive delays in dealing with the issues of dismissals and suspensions created a situation of denial of justice, which is extremely damaging to the exercise of trade union rights. The Committee further recalls that when a State decides to become a Member of the Organization, it accepts the fundamental principles embodied in the Constitution and the Declaration of Philadelphia, including the principles of freedom of association [see Digest, op. cit., para. 10]. It therefore once again urges the Government to take the necessary measures in order to ensure a rapid conclusion of all the pending issues of this case in conformity with freedom of association principles and requests the Government to keep it informed of all developments.