Report in which the committee requests to be kept informed of development - Report No 338, November 2005

Case No 2364 (India) - Complaint date: 21-MAY-04 - Closed

Allegations: The complainants allege denial of the right to negotiate terms and conditions of services for government employees and teachers and violation of their right to strike. They further allege that the Government withdrew the recognition of almost all government employees’ and teachers’ associations and sealed the Office of the complainant organization

959. The complaint is set out in communications by the Trade Unions International of Public and Allied Employees (TUIPAE) and the Tamilnadu Government Officials’ Union (TNGOU) dated respectively 21 and 29 May 2004. The World Federation of Trade Unions (WFTU) and Public Services International (PSI) associated themselves with the complaint by communications dated 25 May and 17 June 2004, respectively.

1. 960. The Committee has been obliged to postpone its examination of the case on two occasions [see 335th and 336th Reports, paras. 5 and 6 respectively]. At its meeting in May-June 2005 [see 337th Report, para. 10], the Committee issued an urgent appeal to the Government, indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it could present a report on the substance of the case at its next meeting even if the information or observations requested had not been received in due time. No reply from the Government has been received so far.
2. 961. 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. The complainants’ allegations

1. 962. In their communications dated 21 and 29 May 2005, the Trade Unions International of Public and Allied Employees (TUIPAE) and the Tamilnadu Government Officials’ Union (TNGOU) submitted that on 2 July 2003, a coalition of government employees’ unions in Tamil Nadu called for an indefinite strike to protest the state government’s unilateral decision to withdraw pension benefits.
2. 963. Prior to the strike, during the night of 30 June 2003, the Government arrested over 2,400 union leaders and members. Allegedly, no arrest warrants were issued and the police used violent and unnecessary force. The President of the Tamil Nadu Government Officials’ Union was among those arrested and was imprisoned for 12 days and was not allowed any outside contacts.
3. 964. The strike took place on 2 July 2003. On 5 July, invoking the Tamil Nadu Essential Services Maintenance Act (TNESMA), the Government issued dismissal notices for government employees and teachers; 170,241 employees and teachers were dismissed through public announcements posted on boards in government offices.
4. 965. On 11 July, the High Court of Tamil Nadu ordered the release on bail of the arrested employees and referred the cases of dismissals to the administrative tribunal. On 24 July, taking into account “the gravity of the situation”, the judges of the Supreme Court ordered the reinstatement of all dismissed employees, with an exception of those who had been arrested or those who had received written dismissal notices. In its ruling, the Supreme Court stated, however, that as a condition for the reinstatement, each government employee should tender a written apology and undertake an obligation to abide by Rule 22 of the Tamil Nadu Government Servants Conduct Rules, which prohibited government employees from engaging in strikes or similar action. The court further declared that “government employees had no fundamental, legal, moral or equitable right to go on strike”. The remaining 6,072 cases of dismissals were to be heard by the retired judges. The Trade Unions International of Public and Allied Employees provided the following statistics: out of 6,072 dismissed employees, 5,708 appeared for the hearing by the retired judges; on 17 November 2003, 2,350 employees were reinstated following the verdict of the judges without apology letters but with punishments of increment cut or demotion; 2,349 employees were reinstated on 31 December 2003 without apology letters but with punishments; and dismissal of 999 employees was confirmed by the judges.
5. 966. The complainants further submitted that the Government refused to recognize the period of time between the day when the strike was officially called off (7 July 2003) and the actual day when the duty was resumed as working time. In this respect, the complainants submitted that the leaders of the strike steering committee agreed to call off the strike and resume duty on 7 July 2003. A written statement to this effect was submitted to court on 5 July 2003. However, on 11 July, the Government did not allow employees to go back to work by virtually conducting a lockout. The period of absence from 2 July to 24 July was treated in respect of all employees as an extraordinary leave with loss of pay and allowances and from 25 July to the date when the work was actually resumed as leave at the employee’s credit. The complainants considered that this period should be treated as working days.
6. 967. In February 2004, as a result of international and national pressure, the remaining dismissed employees were reinstated although they did not receive any back pay. On 18 May 2004, the Chief Minister of Tamil Nadu had announced the withdrawal of all punishments imposed in connection with the strike. All disciplinary proceedings instituted in this connection were also dropped.
7. 968. The complainants stated, however, that the following issues were still pending:
8. – the TNESMA of 2002 was not amended;
9. – Rule 22 of the Tamil Nadu Government Servants Conduct Rules was not repealed;
10. – the Government had withdrawn the recognition of almost all associations of government employees and teachers;
11. – the office building of the Tamil Nadu Secretariat Association was sealed by the government and was not yet handed back to the Association;
12. – the letters obtained from 164,169 employees containing an agreed-to obligation not to resort to strike or any trade union action in future were not cancelled;
13. – all dismissed employees did not receive their pay for the time they were arbitrarily dismissed;
14. – the demands for which the strike was conducted remained unsettled. The complainants consider that terms and conditions of service for government employees and teachers should be negotiated; and, finally,
15. – no monetary relief was given to the families of 42 employees who had lost their lives as a result of the distress created by the situation.

B. The Committee’s conclusions

1. 969. The Committee deeply regrets that, despite the time that has elapsed since the complaint was first presented, the Government has not replied to any of the complainants’ allegations, although it has been invited on several occasions, including by means of an urgent appeal, to present its comments and observations on the case. The Committee strongly urges the Government to be more cooperative in the future.
2. 970. Under these circumstances, and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee finds itself obliged to present a report on the substance of the case without the benefit of the information which it had hoped to receive from the Government.
3. 971. The Committee recalls that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments on their side will recognize the importance of formulating for objective examination detailed replies concerning allegations made against them [see the First Report of the Committee, para. 31].
4. 972. The Committee notes that the complainants in this case alleged the violation of the right to collective bargaining and the right to strike of the state employees and teachers. They further alleged that the Government had withdrawn the recognition of almost all government employees’ and teachers’ associations and sealed the office of the complainant organization, the Tamilnadu Government Officials’ Union.
5. 973. The Committee notes that, following the Government’s unilateral decision to withdraw pension benefits enjoyed by the public servants, the complainant organizations declared an indefinite strike to begin on 2 July 2003. Prior to the strike, the Government arrested 2,400 trade union members. Several trade union leaders were put into preventive custody. The Tamil Nadu Government then issued an ordinance declaring the services of all government employees and teachers as “essential” under the Tamil Nadu Essential Services Maintenance Act (TNESMA). The strike nevertheless took place. On 5 July, invoking the TNESMA, the Government dismissed 170,241 government employees and teachers. On 11 July, arrested trade unionists were released on bail following an order of the High Court of Tamil Nadu. On 24 July, while considering that “government employees had no fundamental, legal, moral or equitable right to strike”, taking into account “the gravity of the situation”, the Supreme Court ordered the reinstatement of all dismissed employees, with the exception of those previously arrested, in return for written apologies and an undertaking to abide by Rule 22 of the Tamil Nadu Government Servants Conduct Rules, which prohibited government employees from engaging in strike action. Although reinstated, due to the lockout exercised by the employers, these employees did not receive their wages for the period between the end of the strike and the day they were allowed to return to work. The Committee further notes that, by February 2004, the remaining dismissed employees were all reinstated either following an order of the retired judges, to whom these cases were referred, or as a result of international and national pressure. However, the complainants allege that the employees did not receive their wages for the period they were arbitrarily dismissed.
6. 974. Firstly, the Committee is bound to recall that public servants, other than those engaged in the administration of the State, should enjoy collective bargaining rights, and priority should be given to collective bargaining as the means of settling disputes arising in connection with the determination of terms and conditions of employment of public service [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 793]. The Committee therefore requests the Government to take the necessary measures in order to ensure the application of this principle in Tamil Nadu.
7. 975. The Committee further recalls that public servants should also enjoy the right to strike, provided that the interruption of services does not endanger the life, personal safety or health of the whole or part of the population. The right to strike may however be restricted or prohibited for public servants exercising authority in the name of the State [see Digest, op. cit., paras. 532 and 534]. In public service of fundamental importance and services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population, a certain minimum service may be requested, but in this case, the trade union organizations should be able to participate, along with employers and the public authorities, in defining the minimum service [see Digest, op. cit., paras. 556 and 557]. The Committee notes that by virtue of Rule 22 of the Tamil Nadu Government Servants Conduct Rules and the TNESMA, the right to strike is prohibited for government employees, including teachers. The Committee therefore requests the Government to take the necessary measures to amend the Tamil Nadu Government Servants Conduct Rules and the TNESMA so as bring them in line with the above freedom of association principles and to keep it informed in this respect.
8. 976. As concerns the alleged use of violence and unnecessary force by the police, the Committee recalls that the authorities could resort to calling in the police in a strike situation only if there is a genuine threat to public order. The intervention of the police should be in proportion to the threat to public order [see Digest, op. cit., para. 582]. The Committee requests the Government to give the necessary instructions so as to ensure in the future that any police intervention is wholly proportionate to the threat to public order that may have been created by a strike action.
9. 977. As concerns the allegations of arrests of over 2,000 trade union members and leaders and the massive dismissals, while noting that by February 2004, all dismissed employees were reinstated and that on 18 May 2004, the Chief Minister of Tamil Nadu had announced the withdrawal of all punishments imposed in connection with the strike and that all disciplinary proceedings instituted were dropped, the Committee points out that arrests and dismissals of strikers on a large scale involve a serious risk of abuse and place freedom of association in grave jeopardy. The competent authorities should be given appropriate instructions so as to obviate the dangers to freedom of association that such arrests and dismissals involve [see Digest, op. cit., para. 604]. The Committee requests the Government to issue appropriate instructions to the police and the other competent authorities in this respect and to keep it informed on the measures taken.
10. 978. While taking due note of the withdrawal in May 2004 of all punishments in connection with the strike, the Committee notes more specifically from the allegations that the remaining dismissed government employees (some 999) were not reinstated until February 2004 – eight months after the strike – and that these employees received no back pay. The complainants also allege the refusal by the Government to pay wages for the time of lockout it allegedly exercised following the strike. In light of the particularly massive nature of these dismissals and their damaging effect on the overall labour relations climate in respect of government employees in Tamil Nadu, the Committee requests the Government to review the matter of lost wages following the termination of the strike action, in consultation with the trade unions concerned, with a view to compensating the employees concerned for any damages suffered solely for the exercise of legitimate trade union activities. The Committee requests the Government to keep it informed of developments in this respect.
11. 979. The Committee notes that the complainants further alleged the withdrawal of recognition of almost all associations of government employees and teachers. The Committee points out in this respect that these categories of workers, like all other workers, without distinction whatsoever, have the right to form and join organizations of their own choosing to further and defend the interests of their members. The Committee has emphasized that the cancellation of registration of an organization by the registrar of trade unions is tantamount to the suspension or dissolution of that organization by administrative authority and that such measures constitute serious infringements of the principles of freedom of association [see Digest, op. cit., paras. 213, 214, 664 and 669]. The Committee therefore urges the Government to take immediately the necessary measures so as to ensure the recognition of all associations of government employees and teachers, whose recognition was withdrawn as a sanction for their participation in strike action and to keep it informed of developments in this respect.
12. 980. The Committee further notes that the complainants alleged that the office building of the Tamil Nadu Secretariat Association was sealed by the Government and had not yet been handed back to the association. The Committee recalls in this respect that the occupation of trade union premises constitutes a serious interference by the authorities in trade union activities and that the occupation or sealing of trade union premises should be subject to independent judicial review before being undertaken by the authorities in view of the significant risk that such measures may paralyse trade union activities [see Digest, op. cit., paras. 174 and 183]. The Committee therefore urges the Government immediately to return the office building to the Tamil Nadu Secretariat Association and keep it informed in this respect.
13. 981. With regard to the request for monetary compensation to the families of 42 employees who had allegedly lost their lives as the result of the distress created by the situation, given that no more specific information was provided by the complainants in respect of this allegation, the Committee requests the Government to provide its comments on this issue.
14. 982. Finally, in order to ensure a sound and lasting labour relations environment, the Committee requests the Government to begin thorough consultations on the unsettled issues related to the terms and conditions of employment of government employees and teachers with the trade unions of this sector. The Committee requests the Government to keep it informed in this respect.

The Committee's recommendations

1. 983. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee deeply regrets that, despite the time that has elapsed since the complaint was first presented, the Government has not replied to any of the complainants’ allegations. The Committee strongly urges the Government to be more cooperative in the future.
   • (b) The Committee recalls that public servants, other than those engaged in the administration of the State, should enjoy collective bargaining rights, and priority should be given to collective bargaining as the means to settle disputes arising in connection with the determination of terms and conditions of employment of public service. The Committee therefore requests the Government to take the necessary measures in order to ensure the application of this principle in Tamil Nadu.
   • (c) The Committee requests the Government to take the necessary measures to amend the Tamil Nadu Government Servants Conduct Rules and the Tamil Nadu Essential Services Maintenance Act so as to ensure that public servants, with the only possible exception of those exercising authority in the name of the State, and teachers may exercise the right to strike.
   • (d) The Committee requests the Government to give necessary instructions so as to ensure in the future that any police intervention is wholly proportionate to the threat to public order that may have been created by a strike action.
   • (e) The Committee requests the Government to give appropriate instructions to the police and the other competent authorities so as to obviate the dangers to freedom of association that such massive arrests and dismissals involve.
   • (f) The Committee requests the Government to review the matter of lost wages following the termination of the strike action, in consultation with the trade unions concerned, with a view to compensating the employees concerned for any damages suffered solely for the exercise of legitimate trade union activities and to keep it informed in this respect.
   • (g) The Committee urges the Government to take immediately the necessary measures so as to ensure the recognition of all associations of government employees and teachers, whose recognition was withdrawn as a sanction for their participation in the strike and to keep it informed of developments in this respect.
   • (h) The Committee urges the Government immediately to return the office building to the Tamil Nadu Secretariat Association and keep it informed in this respect.
   • (i) The Committee request the Government to provide its comments on the complainant’s request concerning monetary compensation to the families of the 42 employees who had lost their lives.
   • (j) In order to ensure a sound and lasting labour relations environment, the Committee requests the Government to begin thorough consultations on the unsettled issues related to the terms and conditions of employment of government employees and teachers with the trade unions in this sector. The Committee requests the Government to keep it informed in this respect.