Effect given to the recommendations of the committee and the Governing Body - Report No 363, March 2012

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

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

1. 150. The Committee last examined this case, which concerns disciplinary action taken against union members of All India Audit and Accounts Association, Kerala (AIAAK) for having participated in demonstrations, sit ins and marches, at its June 2011 meeting [see 360th Report, paras 55–61]. On that occasion, the Committee: (i) recalling its conclusions with respect to certain provisions of the CCS (RSA) Rules, 1993, requested the Government to keep it informed of the measures taken to amend section 5 (which restricts membership in a service association to a distinct category of civil servant having a common interest), section 6 (according to which a service association shall not espouse or support the cause of individual government servants relating to service matter), and section 8 (which provides for the possibility of withdrawal of recognition for failure to comply with rules that are themselves not in conformity with freedom of association principles, and apparently without a right of appeal) in order to ensure the rights of civil servants, in accordance with freedom of association principles; (ii) requested 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; and (iii) as regards the ratification of Conventions Nos 87 and 98, firmly recalled 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.
2. 151. In its communication dated 9 September 2011, as regards sections 5, 6 and 8 of the CCS (RSA) Rules, 1993, the Government indicates that central government servants are not permitted to participate in the activities of the trade unions. The conduct and services conditions of the Central Government servants are governed by the (CCS) (Conduct) Rules, 1964 and the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Further, a comprehensive scheme of consultation between the Government and the employees already exists in the form Joint Consultative Machinery (JCM) and Compulsory Arbitration. In addition, the employees have the liberty to form and join any association. According to the Government, government employees have an exceptionally high degree of job security flowing from article 311 of the Constitution of India. Moreover, the Government grants recognition to the various service associations formed by the employees under the Central Civil Services (Recognition of service association) Rules, 1993. In view of the exceptionally high degree of job security flowing from article 311 of the Constitution of India, and in order to ensure smooth functioning of the service association, and also to preclude the possibility of misuse of the position by holders of various posts in the service associations as well as other members of the service associations, certain conditions have been imposed vide Rules 5, 6 and 8 of the CCS (RSA) Rules, 1993. According to the Government, these conditions are not only desirable but also necessary, to some extent, to ensure that the conduct of the service associations is in line with the CCS (Conduct) Rules, 1964. Moreover, as it is necessary to exercise some degree of control/supervision over the activities of the service associations, these conditions have been imposed. Further, similar conditions were imposed vide Rules 4, 5 and 7 of the CCS (RSA) Rules, 1959 which have merely been reiterated in the CCS (RSA) Rules, 1993. Thus, these rules have been in vogue for about 50 years now and have withstood the test of time. Therefore, 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. Therefore, it may not be possible to agree with the recommendations of the Committee on Freedom of Association to amend Rules 5, 6 and 8 of the CCS (RSA) Rules, 1993.
3. 152. As regards the ratification of Conventions Nos 87, 98 and 151, the Government indicates that it is not possible to ratify Conventions Nos 87 and 98 as ratification would involve granting certain rights to government employees against the statutory rules, namely the right to strike; to openly criticize government policies, freely accept financial contribution, freely join foreign organizations, etc. This matter has been considered from time to time, the last being in November 1997 by the Committee of Secretaries, where it was decided that while status quo may be maintained, the position may be suitably explained to the ILO about the domestic laws and regulations through which the Government has already implemented the spirit behind this Convention in an effective manner. This Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions has also taken a consistent stand that the government employees should not be covered under these two Conventions Nos 87 and 98, for the reason that they have an exceptionally high degree of job security flowing from article 311 of the Constitution of India as compared to industrial workers, in addition to the facility of negotiation machinery under the JCM and administrative tribunals for the redress of their grievances. According to the Government, the central government employees also have the right to form and join any association. As far as Convention No. 98 is concerned, the Government indicates that it has not been able to ratify it on account of technical reasons mentioned above. The Government indicates that it is in regular discussions with the ILO on the possibility of ratifying Convention No. 98. An inter-ministerial meeting to discuss the possibility of ratifying ILO Convention Nos 87 and 98 was also held under the chairmanship of Shri A.C. Pandey, Joint Secretary, Ministry of Labour and Employment on 11 May 2011.
4. 153. As regards the current status of the cases of appeal by Messrs Balachandran, Vijayakumar, and Santhoshkumar and the hundreds of other employees that have been sanctioned, the Government reiterates that the service associations in the Government Department are not trade unions and, as such, no rights of the trade unions have been infringed. The Government further indicates that every government servant is required to adhere to the rules and regulations prescribed by the Government and are liable for disciplinary action under the CCS (CCA) Rules, 1965 for any misconduct under CCS (Conduct) Rules, 1964. The CCS (CCA) Rules, 1965 constitute a self-contained body of rules governing departmental inquiries and provide for appeal, review and revision against the orders passed under the Rules. Further right for redress of grievances through the Central Administrative Tribunal and other courts of law is also available to a government servant. In the Office of the Accountant-General (A&E), Kerala, the aggrieved employees are exercising the above rights. Therefore, no further action is required to be taken by the Accountant-General (A&E), Kerala. More specifically, as regards Mr Balachandran, an assistant accounts officer, the Government indicates that the appellate authority upheld the decision of the disciplinary authority but reduced the penalty of withholding increments for a period of three years instead of five. As regards Messrs Santhoshkumar, a senior accountant, the appellate authority also upheld the decision of the disciplinary authority. He was therefore demoted to the position of accountant and imposed a penalty of withholding salary increments for a period of three years. The appellate authority also upheld the decision of the disciplinary authority in the case of Mr Vijayakumar. He was also demoted to a lower position for three years but the decision on the penalty is yet to be rendered.
5. 154. The Committee notes that the Government reiterates the information previously provided on a number of points. As regards its recommendations of a legislative nature, the Committee notes with deep regret that the Government reiterates that central government servants are not permitted to participate in the activities of the trade unions, but they can form and join service associations and enjoy a comprehensive scheme of consultations and compulsory arbitration. According to the Government there appears to be no need to amend the CCS (RSA) Rules which have been in vogue for about 50 years, as has been requested, and it considers that the conditions established for the services associations in the Government Department are not only necessary but also desirable. The Committee is bound to once again recall, 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 (revised) edition, 2006, para. 222]. The Committee therefore once again recalls its conclusions with respect to certain provisions of the CCS (RSA) Rules and expects that the Government will take without delay the necessary measures to amend sections 5, 6 and 8 in order to ensure the rights of civil servants, in accordance with freedom of association principles.
6. 155. As regards the ratification of Conventions Nos 87 and 98, the Committee does not consider satisfactory the Government’s indication that it is not possible to ratify these Conventions as it would involve granting certain rights to government employees against the statutory rules. The Committee notes however the Government’s indication that it is in constant discussions with the ILO on the possibility of ratifying Convention No. 98 and that an inter-ministerial meeting to discuss the possibility of ratifying Conventions Nos 87 and 98 was also held under the chairmanship of Shri A.C. Pandey, Joint Secretary, Ministry of Labour and Employment, on 11 May 2011. Firmly recalling once again 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 strongly encourages the Government to pursue the dialogue and reminds the Government that the technical assistance of the Office remains available to it in its consideration of the ratification of Conventions Nos 87, 98 and 151.
7. 156. As regards the current status of the cases of appeal by Messrs Balachandran, Vijayakumar and Santhoshkumar and the hundreds of other employees, the Committee notes with concern the severity of the disciplinary and monetary sanctions (penalty of withholding salary increments for three years, demotion and loss of seniority in the higher post) upheld by the Appellate Tribunal against trade union leaders Balachandran, Vijayakumar and Santhoskumar and the serious dampening effect such action may have on trade union activity. Moreover, noting with regret that the Government, in its reply only refers to the three abovementioned leaders, giving details on the procedures but not on the merit of the cases, and does not indicate the basis for the numerous and severe sanctions imposed on the hundreds of other employees, the Committee requests the Government to undertake a full and independent investigation into all the allegations of anti-union discrimination 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.