Effect given to the recommendations of the committee and the Governing Body - Report No 360, June 2011

Case No 2680 (India) - Complaint date: 25-NOV-08 - Closed

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

1. 55. The Committee last examined this case at its November 2009 meeting [see 355th Report,
   • paras 867–890]. On that occasion, the Committee made the following recommendations:
     • (a) The Committee requests the Government to take the necessary measures to amend sections 5, 6 and 8 of the CCS (RSA) Rules, 1993, in order to ensure the freedom of association rights of civil servants.
     • (b) The Committee requests the Government to ensure that the complainants have access to a review and appeal, consistent with freedom of association principles, or, in the absence of such assess, to undertake a full and independent investigation into the sanctions imposed upon Messrs Balachandran, Vijayakumar, and Santhoshkumar. If it is found that the three trade union leaders were sanctioned for having engaged in peaceful demonstrations, the Government should ensure that they are fully compensated for the penalties imposed upon them, including the reinstatement of their prior entitlements and posts. The Committee requests to be kept informed in this regard.
     • (c) The Committee requests the Government to ensure that these matters also be subject to a review and appeal consistent with freedom of association principles or, failing that, to undertake a full and independent investigation into the allegations of numerous and severe sanctions imposed on hundreds of other employees and keep it informed of the outcome. If the investigation finds that the parties concerned were sanctioned for having carried out peaceful demonstrations, the Committee requests the Government to ensure that they are fully redressed for the penalties imposed upon them.
     • (d) The Committee invites the Government to seek the technical assistance of the Office with a view to considering the ratification of Conventions Nos 87, 98, and 151.
   • 56. In its communication dated 22 July 2010, the Government indicates that sections 5, 6 and 8 of the CCS (RSA) Rules, 1993 which reiterate sections 4, 5 and 7 of CCS (RSA) Rules, 1959, have been in vogue for about 50 years now and have withstood the test of time. The Government considers, therefore, that there appears to be no need to amend them. Accordingly, it cannot be construed that conditions imposed by these sections of the CCS (RSA) Rules, 1993 impede the freedom of association rights of the civil servants. The Government reiterates that the Services Associations in the Government Department are not trade unions and, as such, no rights of trade unions have been infringed.
2. 57. As regards the access by the complainants to a right to a review and appeal, the Government indicates that the CCS (CCA) Rules, 1965, constitute a self contained body of rules governing departmental enquiries and provide for appeal, review and revision against the orders passed under the Rules. Further right for redressal of grievances through the Central Administrative Tribunal and other courts of law is also available to a Government servant. The Government further indicates that in the Office of the Accountant General (A&E), Kerala, the aggrieved employees are exercising the above rights.
3. 58. As regards Conventions Nos 87 and 98, the Government indicates that it is not possible to ratify these Conventions as ratification would involve granting certain rights to Government employees against the statutory rules. The Government further indicates that: (i) it has however already implemented spirit behind these Conventions in an effective manner through various domestic laws and regulations; (ii) Government servants in India have an exceptionally high degree of job security flowing from article 311 of the Constitution compared to industrial workers, in addition to the facility of negotiation machinery under JCM and Administrative Tribunals for the redressal of their grievances; and (iii) the Central Government employees also have the right to form and join any association.
4. 59. The Committee takes note of the information provided by the Government. As regards its recommendations of a legislative nature, the Committee notes with regret the Government’s indication that there appears to be no need to amend the CCS (RSA) Rules, as has been requested, and that the Services Associations in the Government Department are not trade unions and, as such, no rights of trade unions have been infringed. The Committee once again recalls in this respect, that the denial of the right of workers in the public sector to set up trade unions where this right is enjoyed by workers in the private sector, with the result that their “associations” do not enjoy the same advantages and privileges as “trade unions”, involves discrimination as regards government-employed workers and their organizations as compared with private-sector workers and their organizations. Such a situation gives rise to the question of compatibility of these distinctions with Article 2 of Convention No. 87, according to which workers “without distinction whatsoever” shall have the right to establish and join organizations of their own choosing without previous authorization, as well as with Articles 3 and 8, paragraph 2, of the Convention [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 222]. The Committee recalls its conclusions with respect to certain provisions of the CCS (RSA) Rules and requests the Government to keep it informed of the measures taken to amend sections 5, 6 and 8 in order to ensure the rights of civil servants, in accordance with freedom of association principles.
5. 60. As regards the ratification of Conventions Nos 87 and 98, the Committee notes the Government’s indication that it is not possible to ratify these Conventions as it would involve granting of certain rights to Government employees against the statutory rules but that it has already implemented the spirit behind these Conventions in an effective manner through various domestic laws and regulations. The Committee firmly recalls the obligation of all member States to respect and promote freedom of association and the effective recognition of the right to collective bargaining, as fundamental rights under the 1998 ILO Declaration on Fundamental Principles and Rights at Work. The Committee recalls that the technical assistance of the Office remains available to the Government in its future consideration of the ratification of Conventions Nos 87, 98 and 151.
6. 61. As to its recommendations relating to factual issues, the Committee notes the Government’s indication that, in the Office of the Accountant General (A&E), Kerala, the aggrieved employees are exercising their rights under the CCS (CCA) Rules, 1965, which provide for appeal, review and revision. The Committee requests the Government to provide specific information on the current status of the cases of appeal by Messrs Balachandran, Vijayakumar, and Santhoshkumar and the hundreds of other employees that have been sanctioned and to keep it informed of any rulings handed down.