Report in which the committee requests to be kept informed of development - Report No 375, June 2015

Case No 2962 (India) - Complaint date: 28-MAY-12 - Follow-up cases closed due to the absence of information from either the complainant or the Government in the last 18 months since the Committee examined the cases

Allegations: The complainant organization alleges refusal by the management of the M/s A.M.S. Fashions Private Limited to negotiate with the Vastra Silai Udhyog Kamgar Union, affiliated to the CITU, police interference in an industrial action, anti-union dismissals and the lack of grievance mechanisms in the state of Uttar Pradesh

1. 330. The complaint is contained in communications dated 28 and 29 May 2012, submitted by the Centre of Indian Trade Unions (CITU).
2. 331. The Government provided partial observations in communications dated 18 February 2013, 25 November 2013, 1 August 2014, 17 December 2014 and 22 April 2015.
3. 332. India has neither ratified 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 complainant’s allegations

1. 333. In communications dated 28 and 29 May 2012, the CITU alleges that the management of M/s A.M.S. Fashions Limited, a garment exporting company operating in the Noida Special Economic Zone (NSEZ) of the state of Uttar Pradesh, refused to negotiate with the Vastra Silai Udhyog Kamgar Union, a CITU affiliate. The CITU adds that police interfered in an industrial action and that the company proceeded with anti-union lay-offs and dismissals. The CITU also alleges that the Government of India has been negligent in addressing grievances of workers in the state of Uttar Pradesh.
2. 334. The CITU indicates that the Government of Uttar Pradesh issued an Office Order on 27 September 2008 vesting the powers and responsibilities of the Labour Commissioner of Uttar Pradesh with the Chief Executive Officers of Noida and Greater Noida regions of Uttar Pradesh. The CITU alleges that, as a result, the effective functioning of grievance and dispute settlement mechanisms of the workers in the region have become a far cry.
3. 335. The complainant enclosed a communication of the Vastra Silai Udhyog Kamgar Union dated 9 January 2012 addressed to the Labour Minister of India which listed the events occurring at M/s A.M.S. Fashions Limited. The union indicates that the dispute between the management of the company and its workers started with the non-payment of earned wages for the month of August 2011. According to the union, when workers demanded the payment of their wages, the management of the company called the police, instead of attempting to resolve the issue with the workers concerned. Moreover, the union alleges that the company failed to pay bonuses that were due to the workers for 2010–11.
4. 336. The union then approached the Assistant Development Commissioner of the NSEZ, who is also the designated authority for labour disputes, who then issued a notice to the management of the company to resolve the matter through conciliation.
5. 337. According to the complainant organization, the management of the company refused to negotiate with the Vastra Silai Udhyog Kamgar Union and took the decision to lay off 405 workers from 17 October 2011. Subsequently, a notice of retrenchment of 110 workers from 3 February 2012 was placed on the premises of the company. According to the complainant organization, the lay-off and retrenchment decisions were taken in violation of section 25(M) and section 25(O) of the Industrial Disputes Act, 1947.
6. 338. Despite repeated written complaints submitted by the union, the Assistant Development/Labour Commissioner has not resolved the disputes, nor taken any action against the company.

B. The Government’s reply

1. 339. In its communication of 18 February 2013, the Government transmits information received from the Development Commissioner and Labour Commissioner of the NSEZ on 13 February 2013 indicating that earned wages by the workers for the month of August 2011 and bonuses for the year 2010–11 have been paid by M/s A.M.S. Fashions Limited and that the relevant unit is no longer functioning.
2. 340. With regard to the other allegations mentioned in the complaint, the Government adds that the Office of the Development Commissioner of the NSEZ received a request from the union on 24 December 2012 to constitute a Reconciliation Board, in accordance with the Uttar Pradesh Industrial Disputes (UPID) Act, 1947. The names of the nominees from the management and the union have been sought, and the Board was under the process of constitution.
3. 341. In its communication of 25 November 2013, the Government indicates that no new information was received concerning the establishment of the Reconciliation Board.
4. 342. In its communication of 1 August 2014, the Government states that the case was referred to the Labour Tribunal in Meerut on 20 January 2014 and that a decision was awaited.
5. 343. In its communication of 17 December 2014, the Government reiterates that the case had been referred to the Labour Tribunal in Meerut, adding that the principal employer filed an appeal in the High Court of Allahabad against the referral order.
6. 344. In its communication of 22 April 2015, the Government refers to the appeal filed by the employer in the High Court, Allahabad, against the referral order and states that M/s A.M.S. Fashions Limited has obtained a stay in the matter. A counter affidavit has been filed on behalf of the Development Commissioner of the NSEZ but the applicant, M/s A.M.S. Fashions Limited, has not filed a rejoinder (an answer to the affidavit).

C. The Committee’s conclusions

1. 345. The Committee notes that this case concerns allegations of acts of anti-union discrimination, including refusal by the management of M/s A.M.S. Fashions Private Limited to negotiate with the Vastra Silai Udhyog Kamgar Union, affiliated to the CITU, police interference in an industrial action, the non-payment of wages and bonuses, and lay-offs and dismissals in relation to which the courts have not yet rendered a decision. It further notes that this case also concerns the lack of effective grievance mechanisms in the state of Uttar Pradesh.
2. 346. As regards the anti-union lay-offs, dismissals and the lack of effective grievance mechanisms in the state of Uttar Pradesh, the Committee notes that the Office of the Development Commissioner of the NSEZ received a request from the union on 24 December 2012 to constitute a Reconciliation Board, in accordance with the UPID Act, 1947. It notes that, since this date, the Government has not provided any new information concerning the establishment of the Reconciliation Board.
3. 347. The Committee observes that the responsibilities of the Labour Commissioner of Uttar Pradesh are vested with the Development Commissioner of Noida and Greater Noida regions of Uttar Pradesh. The Committee notes from the CITU that, as a result, the effective functioning of grievance and dispute settlement mechanisms of the workers in the region have become a far cry. As alleged by the Vastra Silai Udhyog Kamgar Union, repeated written complaints were submitted to the Assistant Development/Labour Commissioner to resolve the disputes, but no action was taken in this regard. The Committee recalls its conclusions from an earlier case [Case No. 2228, Report No. 332, para. 748] regarding the incompatibility that may exist between the functions of Development Commissioner and Labour Commissioner when performed by the same person. The Committee notes, moreover, that the complainant alleges that this mechanism does not have the confidence of all parties concerned, especially when allegations of anti-union discrimination are directed against the NSEZ administration itself, as in this case. The Committee requests the Government to take all necessary measures without delay to ensure that the functions of Labour Commissioner are not performed by the Development Commissioner in the NSEZ, especially as regards conciliation and mediation efforts, but by an independent person having the confidence of the parties or an impartial body. It requests the Government to keep it informed of the steps taken in this regard.
4. 348. The Committee observes that the lay-offs and retrenchments in this case were then referred to the Labour Tribunal in Meerut on 20 January 2014, while an appeal was filed by the company in the High Court of Allahabad against the referral order. The Committee further notes that these court decisions are still awaited. The Committee queries the objective behind appealing the mere referral of this case for resolution to the Labour Tribunal, which would appear to be delaying the consideration of the merits of the case, and recalls in this regard the principle that justice delayed is justice denied [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 105].
5. 349. The Committee wishes to emphasize that the Government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned. Respect for the principles of freedom of association clearly requires 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, op. cit., paras 817 and 820]. The Committee therefore requests the Government to ensure that this principle is ensured in the cases of the workers laid off or dismissed and, if it is confirmed that the imposition of the lay-offs and dismissals were linked with the legitimate trade union activities of the workers, to take measures to ensure that the workers concerned are appropriately compensated, including through reinstatement, if this is still possible.
6. 350. In the meantime, the Committee expresses its deep concern that over three years have lapsed since the lay-offs and retrenchments. Noting that it would appear from the information provided by the NSEZ that the unit no longer exists and in light of the appeals process currently ongoing, the Committee requests the Government to endeavour to bring the parties together without delay along the lines requested in December 2012 with a view to considering all elements raised, and finding a solution in the current context that is satisfactory to all parties concerned.
7. 351. As regards the allegation that wages for the month of August 2011 and bonuses for the year 2010–11 were unpaid by M/s A.M.S. Fashions Limited, the Committee notes the Government’s communication transmitting information from the NSEZ on 13 February 2013 concerning the payment of wages for August 2011 and bonuses for 2010–11.
8. 352. Finally, in the absence of any information from the Government in relation to the allegations raised in the complaint of police interference in respect of industrial action, the Committee requests the Government to take the necessary measures without delay to carry out an investigation into this matter and to inform the Committee of the outcome.

The Committee’s recommendations

1. 353. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take all necessary measures without delay to ensure that the functions of Labour Commissioner are not performed by the Development Commissioner in the NSEZ but by an independent person having the confidence of the parties or an impartial body. It requests the Government to keep it informed of the steps taken in this regard.
   • (b) The Committee requests the Government to ensure that the principle that complaints of anti-union discrimination are examined in the framework of national procedures which are prompt, impartial and considered as such by the parties concerned is observed in the cases of the workers laid off or dismissed and, if it is confirmed that the imposition of the lay-offs and dismissals were linked with the legitimate trade union activities of the workers, to take measures to ensure that the workers concerned are appropriately compensated, including through reinstatement if this is still possible.
   • (c) Expressing its deep concern that over three years have lapsed since the lay-offs and retrenchments, the Committee requests the Government to endeavour to bring the parties together without delay, along the lines requested in December 2012, with a view to considering all elements raised and finding a solution in the current context that is satisfactory to all parties concerned.
   • (d) The Committee also requests the Government to take the necessary measures without delay to carry out an investigation into the allegations raised in the complaint of police interference in respect of industrial action and to inform the Committee of the outcome.