Effect given to the recommendations of the committee and the Governing Body - Report No 354, June 2009

Case No 2228 (India) - Complaint date: 30-OCT-02 - Closed

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

1. 108. The Committee examined this case at its November 2005 meeting [see 338th Report, paras 188–201], and on that occasion it:
   • (a) regretted that, since the complaint was filed in 2002, the issue of the alleged cases of anti-union discrimination resulting in imposition of fines, dismissals and suspensions of trade unionists had not been resolved. It requested the Government to take all necessary measures so as to ensure that the alleged cases of anti-union discrimination were examined promptly and, if it was confirmed that the imposition of the dismissals, suspensions and fines were linked with the legitimate trade union activities of the workers, to take measures to ensure that the dismissed workers were reinstated in their jobs without loss of pay and, if reinstatement was not possible and in cases of suspensions and fines, to ensure that adequate compensation, so as to constitute sufficiently dissuasive sanctions, was paid to the workers;
   • (b) requested the Government to keep it informed of the outcome of the independent and thorough investigation, with the cooperation of the complainant organization, carried out in relation to the allegations concerning the brutal suppression of the strike by workers at Worldwide Diamonds Manufacturing Ltd in January and February of 2002, the detention of hundreds of striking workers and a trade union officer by the police, the prohibition of meetings in the complainant’s local office, excessive police violence (caning and chaining of workers), and the visit of police officers to workers’ homes in order to threaten them so that they return to work;
   • (c) requested the Government to provide information on the progress of the pending criminal cases brought by the police against the workers arrested during the strike in January 2002;
   • (d) requested the Government to provide the minutes of the negotiations which, according to the Government, took place in September 2004 between the affiliate of the Centre of Indian Trade Unions (CITU), Visakhapatnam Export Processing Workers’ Union, and the management of Worldwide Diamonds Manufacturers Ltd;
   • (e) noting the Government’s indication that an individual person or body would be entrusted to look after grievances of the workers, requested the Government to keep it informed of the measures taken and the progress made in ensuring that the roles of Grievance Redressal Officer (GRO) and the Deputy Development Commissioner (DDC) in the Visakhapatnam export processing zone (VEPZ) were carried out by different persons or bodies;
   • (f) in respect of the amendment to the Industrial Disputes Act of 1947, noted that, firstly, the right to approach the court directly, without being referred by the State Government, was not conferred on suspended workers and, secondly, that such right was still not conferred on trade unions, and requested the Government to take all necessary measures, including the amendment of the Industrial Disputes Act of 1947, so as to ensure that suspended workers as well as trade unions could approach the court directly;
   • (g) requested the Government to conduct an independent inquiry to thoroughly and promptly consider the allegations of dismissals and suspensions at Synergies Dooray Automotive Ltd and, if it appeared that the dismissals and suspensions occurred as a result of involvement by the workers concerned in the activities of a union, to ensure that those workers were reinstated in their jobs without loss of pay. If the independent inquiry found that reinstatement was not possible, the Committee requested the Government to ensure that adequate compensation, so as to constitute sufficiently dissuasive sanctions, was paid to the workers; and
   • (h) requested the Government to keep it informed of the result of the negotiations held with the workers of the Madras Knitwear (Pvt) Ltd before the Deputy Commissioner of Labour.
2. 109. In its November 2008 communication, the CITU alleges that the Government has failed to take all necessary steps so as to ensure that in the VEPZ the functions of GRO are not performed by the Deputy Development Commissioner (DDC) but by another independent person or body, having the confidence of all parties concerned. Despite prolonged persuasion by the trade union movement in general and the CITU in particular, the Government has not implemented this recommendation, either in the EPZ of Visakhapatnam or in any other EPZ. According to the complainant, some state governments have started introducing the same unjust social practice of vesting the administrative/operational head (as Development Commissioner or DDC for the EPZ) in non-EPZ/special economic zone (SEZ) areas with the power and responsibility of a GRO, and thereby seeking to make it a nationwide practice. The complainant refers to office orders of the government of Uttar Pradesh (Department of Labour) dated September 2008, vesting the power and responsibilities of the Labour Commissioner (Uttar Pradesh) in the Chief Executive Officers of the Noida and Greater Noida regions of Uttar Pradesh. A copy of the orders issued by the government of Uttar Pradesh was attached to the complainant’s communication.
3. 110. In the case of governments, whether at the Centre or in the provinces/states, the respective Labour Department/Ministry is the dedicated agency/authority for attending to labour-related disputes, and the respective Labour Commissioner heads the machinery for grievance redressal and dispute settlement and enforcement of labour laws, independent of the other administrative departments/ministries and machinery. Disempowering the Labour Commissioner in the matter of labour-related grievance redressal and dispute settlement, etc., has been effected in the case of Noida and the Greater Noida regions (having a concentration of industrial activities and a large number of worker population) of Uttar Pradesh and has also been long continuing in all the SEZs and EPZs in the country, in arrogant disregard for the Committee’s recommendation, and is tantamount to a serious infringement of the trade union rights of Indian workers and of freedom of association principles.
4. 111. In its communication of 25 February 2009, the Government of India forwards the following observations of the government of Andhra Pradesh:
   • – As regards point (a) above, the government of Andhra Pradesh has stated that 39 cases were filed by the dismissed workers under section 2(A)(2) of the Industrial Disputes Act 1947 before the Industrial Tribunal-cum-Labour Court, Visakhapatnam. So far, 20 cases have been disposed of by the chairperson of the tribunal, while 18 cases are pending for want of evidence by the workers, and one case is posted for the passing of award. The adjudications are carried out by independent Labour Courts-cum-Tribunals.
   • – As regards point (b), the Government repeats its previous indication that, as per information from the Commission of Police, the allegations/comments regarding brutal suppression of strike by excessive police violence were untrue. The police had to intervene in a timely manner to maintain law and order.
   • – As regards point (c), the government of Andhra Pradesh has informed that the police authorities of Gajuwaka Police Station, Visakhapatnam City have reported that criminal cases were filed against ten striking workers of M/s Worldwide Diamond Manufacturing Ltd, Visakhapatnam in January 2002. All of the accused, whose names are listed in the Government’s communication, were arrested on 11 January 2002 and sent for remand. They were acquitted of the charges on 29 November 2006, in view of which the government of Andhra Pradesh has stated that no independent inquiry is required since the court has already decided the matter. The Government has been further informed that the Visakhapatnam Export Processing Zone Units Employees’ Union filed a writ petition regarding the alleged victimization/dismissals of workers during the strike, and that the writ has been dismissed by the Andhra Pradesh High Court. It has been ascertained from the management of Worldwide Diamond Manufacturing Ltd that no worker was suspended/fined for taking part in union activities. If specific instances and names are provided by the union, these can be verified through the labour inspectorate machinery of the state government.
   • – As regards point (d), the Government repeats its previous statement that there is no bar in the zone restricting workers from joining a trade union of their choice for the purpose of collective bargaining. M/s Worldwide Diamond Manufacturing Ltd has been directed to allow the trade union to participate in the negotiation process for collective bargaining. The Government refers, as it did previously, to the minutes of a negotiation held on 3 September 2004, a copy of which it states were forwarded to the Committee. (However these have not been received.)
   • – As regards point (e), the Government states that the matter has been taken up with the state government of Andhra Pradesh, and that further information in this regard would be furnished in due course.
   • – As regards point (f), the Government states that there is no need to obtain prior permission from the labour authorities for workers to have access to the courts. Workers are free to approach the labour court directly for justice.
   • – As regards point (g), the Government states that its present position regarding an inquiry into the alleged dismissals and suspensions of workers at M/s Synergies Dooray Automotive Ltd is being ascertained and would be furnished in due course.
   • – As regards point (h), in respect of the negotiations with worker representatives of M/s Madras Knitwear Pvt Ltd by the management, which took place in the presence of the then-Development Commissioner and Deputy Commissioner of Labour, the Government has been informed that the workers were satisfied with the negotiations. Compensation has already been paid to the workers by the management as per the agreed upon settlement between the parties.
5. 112. The Committee notes the information provided by the complainant and the Government. As regards the issue of the alleged cases of anti-union discrimination resulting in imposition of fines, dismissals and suspensions of trade unionists, the Committee notes the information that 20 cases have been disposed of by the chairperson of the tribunal, while 18 cases are pending for want of evidence by the workers and one case is posted for the passing of award. Given that the complaint was filed in 2002, the Committee underlines the excessive delay of the authorities, and it requests the Government to send the judicial resolutions in the 20 cases it states have been disposed of and to keep it informed of any further developments in the 18 pending cases.
6. 113. In respect of allegations concerning the brutal suppression of a strike by workers at Worldwide Diamonds Manufacturing Ltd in January and February of 2002, the detention of hundreds of striking workers and a trade union officer by the police, the prohibition of meetings in the complainant’s local office, excessive police violence (caning and chaining of workers), and the visit of police officers to workers’ homes in order to threaten them so that they return to work, the Committee regrets that the Government reiterates that, according to the Commission of Police, the allegations regarding the brutal suppression of the strike by excessive violence were untrue, and that it makes no reference to its previously expressed commitment to initiate an independent and thorough investigation of these allegations in cooperation with the complainant organization. The Committee requests the Government to institute the independent investigation if it has not done so and to keep it informed of the results.
7. 114. In respect of the criminal cases brought by the police against the workers arrested during the strike in January 2002, the Committee notes the information submitted by the Government and, in particular, that all of the workers were acquitted of the charges on 29 November 2006. The Committee recalls the principle that the arrest of trade unionists against whom no charge is proved involves restrictions on freedom of association, and governments should adopt measures for issuing appropriate instructions to prevent the danger involved for trade union activities by such arrests.
8. 115. As regards the question of restrictions on the right to collective bargaining of workers in the VEPZ and on the right of the Visakhapatnam Export Processing Workers’ Union to take part in negotiations with the management of the Worldwide Diamonds Manufacturers Ltd, the Committee notes that the Government repeats its previous statement that there is no bar in the Zone restricting workers from joining a trade union of their choice for the purpose of collective bargaining. M/s Worldwide Diamond Manufacturing Ltd has been directed to allow the trade union to participate in the negotiation process for collective bargaining. The Committee repeats its request that the Government provide a copy of the minutes of the joint meeting held on 3 September 2004 that led to the lifting of the employer’s lockout, which the Government indicates it has forwarded to the Committee but which have still not been received. The Committee also requests the Government to provide information on the evolution of collective bargaining and to send any agreement reached by the parties.
9. 116. As regards the request that the Government take necessary steps to ensure that in the EPZ of Visakhapatnam the functions of GRO are not performed by the Deputy Development Commissioner (DDC) but by another independent person or body having the confidence of all parties concerned, the Committee notes the Government’s indication that the matter has been taken up with the state government of Andhra Pradesh, and that further information in this regard would be furnished in due course. The Committee notes the allegations of the CITU that the Government has failed to implement this recommendation, either in the EPZ of Visakhapatnam or in any other EPZ/SEZ, and that some state governments, particularly the government of Uttar Pradesh, have started introducing the same unjust practice of vesting administrative/operational heads in non-EPZ/SEZ areas with the power and responsibility of a GRO, thereby seeking to make it a national practice. The Committee notes in this regard the office orders of the government of Uttar Pradesh (Department of Labour) dated September 2008, vesting the power and responsibilities of the Labour Commissioner (Uttar Pradesh) in the Chief Executive Officers of the Noida and Greater Noida regions of Uttar Pradesh. Noting also the Government’s previous indication that an individual person or body would be entrusted to look after grievances of the workers, the Committee expects the Government to make quick progress on steps taken to ensure that the roles of GRO and DDC are carried out by different persons or bodies, and thereby to promote the settlement of disputes and grievances through inexpensive, expeditious and impartial conciliation procedures. The Committee requests the Government to provide further information in this regard as soon as possible, as well as its observations on the allegations in respect of the state government of Uttar Pradesh.
10. 117. As regards the request that the Government take all necessary measures, including amending the Industrial Disputes Act of 1947, so as to ensure that suspended workers as well as trade unions could approach the court directly, without being referred by the state government, the Committee regrets that the Government has provided no new information in this regard. The Committee previously noted that a new subsection (2) was inserted to section 2A of the Industrial Disputes Act 1947, which provides that in disputes relating to discharge, dismissal, retrenchment or otherwise termination of services of an individual worker, such worker may make an application directly to the labour court for adjudication of this dispute. Collective disputes are required to be raised first before a conciliation officer (section 4 of the Industrial Disputes Act) and the appropriate government could refer such disputes for adjudication or arbitration under section 10 and 10A of the same Act. Recalling the principle that “workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial” [see Digest of decisions and principles of the Freedom of Association Committee, 5th edition, 2006, para. 820], the Committee repeats its request concerning the need of amending the legislation.
11. 118. As regards the Committee’s request that the Government conduct an independent inquiry in order to thoroughly and promptly consider the alleged dismissals and suspensions at the Synergies Dooray Automotive Ltd, the Committee notes the Government’s indication that its present position regarding such an inquiry was being ascertained and would be furnished in due course. Recalling that cases concerning anti-union discrimination should be examined rapidly so that the necessary remedies can be really effective [see Digest, op cit., para. 826], the Committee requests the Government to institute expeditiously the inquiry and to keep it informed of the outcome in this regard.
12. 119. As regards the Committee’s request that the Government keep it informed of the result of the negotiations held with the workers of the Madras Knitwear (Pvt) Ltd before the Deputy Commissioner of Labour, the Committee takes note of the Government’s indication that negotiations between worker representatives and the management of Madras took place in the presence of the then-Development Commissioner and Deputy Commissioner of Labour, and that it has been informed that the workers were satisfied with the negotiations. Compensation has already been paid to the workers by the management as per the agreed upon settlement between the parties.