Effect given to the recommendations of the committee and the Governing Body - Report No 367, March 2013

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

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

1. 61. The Committee last examined this case, which concerns disciplinary action taken against union members of the All India Audit and Accounts Association, Kerala (AIAAK) for having participated in demonstrations, sit-ins and marches, at its March 2012 meeting [see 363rd Report, paras 150–156]. On that occasion, the Committee:
   • (i) recalling its conclusions with respect to certain provisions of the CCS (RSA) Rules, 1993, expected that the Government would 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;
   • (ii) strongly encouraged the Government to pursue the dialogue and reminded the Government that the technical assistance of the Office remained available to it in its consideration of the ratification of Conventions Nos 87, 98 and 151; and
   • (iii) requested the Government to undertake a full and independent investigation into all the allegations of anti-union discrimination and keep it informed of the outcome and, if it was found that the parties concerned were sanctioned for having carried out peaceful demonstrations, to ensure that they are fully redressed for the penalties imposed upon them.
2. 62. In its communication dated 25 May 2012, the Government reiterates, as regards sections 5, 6 and 8 of the CCS (RSA) Rules, 1993, its previous indications that:
   • (i) government employees have an exceptionally high degree of job security;
   • (ii) they have the liberty to form and join any association;
   • (iii) the conduct and service conditions imposed via sections 5, 6 and 8 of the CCS (RSA) Rules, 1993, 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;
   • (iv) these provisions have been in vogue for about 50 years now and have withstood the test of time; and
   • (v) a comprehensive scheme of consultation between the Government and the employees already exists in the form of the Joint Consultative Machinery (JCM) and Compulsory Arbitration.
3. The Government concludes that it is not possible to agree with the recommendations of the Committee to amend Rules 5, 6 and 8 of the CCS (RSA) Rules, 1993. It also underlines that the JCM scheme provides multiple level forums, i.e. the National Council, the Department Councils and the Office Councils for the redress of grievances of employees.
4. 63. With respect to the ratification of Conventions Nos 87, 98 and 151, the Government reiterates that it has been its consistent view that:
   • (i) 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.;
   • (ii) this matter has been considered from time to time, the last time being in 1997, where it was decided that status quo may be maintained;
   • (iii) the Government has already implemented the spirit behind these Conventions in an effective manner through the domestic laws and regulations;
   • (iv) the 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 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; and
   • (v) the central government employees have the right to form and join any association. The Government concludes that as such it is not possible to ratify Conventions Nos 87 and 98.
5. 64. As regards the current status of the cases of appeal by Messrs Balachandran, Vijayakumar, and Santhoshkumar and the hundreds of other employees who have been sanctioned, the Government reiterates the events that led to the suspension of Mr Santhoshkumar, again describes the subsequent misconduct, in its view, of Messrs Santhoshkumar, Balachandran and Vijayakumar and hundreds of other employees in the Office of the Accountant-General (AG), Kerala, and reiterates the information concerning the decisions rendered by the appellate authorities concerning the three cases. The Government also indicates that state employees have security of tenure of services because they are appointed for discharge of various sovereign functions of the State and cannot in any manner be equated with the workers of the private sector, and that the fundamental constitutional rights to form unions or associations or to assemble peacefully are not absolute but liable to be restricted by laws in the interest of the sovereignty and integrity of the State or public order or morality. In its view, the penalties imposed on the delinquent officials in the AG Office are not too severe, since the agitational activities the employees engaged in disrupted the functioning of the Office and cannot be construed as peaceful.
6. 65. Concerning its recommendations of a legislative nature, the Committee once again notes with very deep regret that the Government merely reiterates its previous position. The Committee recalls once again, 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 and constitutes a serious violation of freedom of association. 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]. Considering also that the existence of a dispute settlement mechanism cannot justify the denial to government employees of the right to organize, the Committee is once again bound to recall its conclusions with respect to certain provisions of the CCS (RSA) Rules and urges the Government to take without further delay the necessary measures to amend sections 5 (which restricts membership in a service association to a distinct category of civil servant having a common interest), 6 (according to which a service association shall not espouse or support the cause of individual government servants relating to service matter) and 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), so as to bring them into line with freedom of association principles. The Committee invites the Government to consider ILO technical assistance with a view to taking the measures that would enable it to ratify Conventions Nos 87 and 98.
7. 66. With respect to the current status of the cases of appeal by Messrs Balachandran, Vijayakumar and Santhoshkumar and the hundreds of other employees, the Committee regrets that the Government has failed to institute an inquiry into all allegations of anti-union discrimination, as requested by the Committee, and that it reiterates previously supplied information without providing information regarding the merits of the cases of the three union leaders or information concerning the cases of the hundreds of other employees, including the basis for the numerous and severe sanctions imposed upon them. The Committee recalls that all workers should enjoy the right to peaceful demonstrations to defend their occupational interests [see Digest, op. cit., para. 133] and once again requests the Government to institute a full and independent investigation into all the allegations of anti-union discrimination and keep it informed of the outcome. If it is found 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.