Report in which the committee requests to be kept informed of development - Report No 400, October 2022

Case No 3369 (India) - Complaint date: 15-OCT-19 - Follow-up

Allegations: Dismissal and detention of trade unionists for exercising their right to form and join a trade union of their choice following a strike

1. 407. The complaint is contained in a communication dated 15 October 2019 from the International Trade Union Confederation – Asia Pacific (ITUC–AP). By a communication dated 22 September 2022, the International Trade Union Confederation (ITUC) associated itself with the complaint.
2. 408. The Government of India transmitted its observations in a communication dated 27 October 2021.
3. 409. 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 complainants’ allegations

1. 410. In its communication dated 15 October 2019, the ITUC–AP explains that Maruti Suzuki India Limited is a manufacturing company registered in India (hereafter, the Company). In June 2011, workers of the Company took steps to establish an independent union. Contrary to the management’s insistence that workers sign up as members of the Maruti Udyog Kamgar Union (MUKU), allegedly controlled by the management, workers signed up to join the Maruti Suzuki Employees Union (MSEU). The ITUC–AP alleges that the management dismissed 11 trade union leaders as part of its attempt to deny workers their right to form an independent union. The workers embarked on a sit-down strike on 4 June 2011 and prevailed thereby establishing the MSEU. The MSEU and the management signed an agreement on 16 June 2011 in the presence of the Deputy Labour Commissioner, Gurgaon. The ITUC–AP alleges, however, that the agreement was not implemented by the management of the Company, which among others, reinstated the 11 terminated union officials.
2. 411. The ITUC–AP alleges that a toxic industrial relations environment created by the management of the Company continued when the management took steps to retaliate against the union by giving various instructions that ended up slowing down operations and blaming the workers for embarking on a go-slow. On 29 August 2011, the management locked out workers and informed them that they could only re-enter on condition that they signed a bond of good behaviour renouncing their efforts to sabotage the operations through the go-slow. The union rejected this unilateral and retaliatory action of the management, refused to sign the bond and commenced protests to end the retaliation. The situation worsened with the management taking several retaliatory actions, including terminating contract workers who had joined the protests. The ITUC–AP indicates that following an agreement with the management, on 1 March 2012, the Maruti Suzuki Workers Union (MSWU) was registered by the Labour Department of the State of Haryana.
3. 412. Subsequently, around 18 April 2012, the union presented its proposals for negotiation of a collective agreement. The ITUC–AP alleges that while the Company’s management stalled and delayed the negotiations, the Labour Commissioner failed to inform the parties, especially the management, of the expectation that collective bargaining negotiations were to be conducted in good faith and to ensure that a conducive environment was created for these negotiations. The ITUC–AP argues that the management refused to negotiate and the Government failed to facilitate the process through conciliation or mediation mechanisms, among others. According to the ITUC–AP, in anticipation of a reaction from the union, the management brought in so-called “bouncers” camouflaged as workers.
4. 413. The ITUC–AP and the ITUC allege that on the morning of 18 July 2012 a supervisor insulted a worker based on his caste. The supervisor was aware that the insult based on caste would generate major tension in the workplace. The worker who was insulted was later suspended. As expected, this issue raised tension and the management invited the police who were stationed outside the premises. There was also a meeting called between the union and the management to resolve the situation. The union and management continued their negotiation after close of work. According to the workers, the unfortunate incident of 18 July 2012 was a well-planned move by the Company’s management to provoke workers. Some “bouncers” were called inside the factory premises to incite workers. The “bouncers” began picking fights with workers and the situation escalated. The police remained outside the premises even when the tension escalated. With the scuffle and the chaos, the union–management meeting broke down and the union officials went outside to verify what was happening. A fire began on the premises where the negotiations were taking place and spread; as a result of the incident, the General Manager for Human Resources died of asphyxiation. The police intervened at that stage and arrested 148 workers and unionists. They were charged with murder, rioting and other serious charges under the Indian Penal Code. Among those in jail, eight were executive committee members of the MSWU. According to the complainants, over 150 workers were jailed on serious criminal charges including those who were not even present at the factory premises when the violent incident occurred on 18 July 2012. The District Court in Gurgaon rejected the workers’ plea for bail on three occasions. The High Court of Punjab and Haryana also turned down the bail plea twice stating that the incident had lowered India’s international reputation and that foreign investors were not likely to invest their money in India out of fear of labour unrest. The Supreme Court had granted bail to two workers in February 2015, 31 months after their arrest. In March 2015, the Gurgaon District Court granted bail to 77 out of the 148 workers arrested in connection with the violence which occurred at the Company. In August 2016, 18 workers were granted bail by the trial court. Five more workers, arrested in connection with the violent incident, were granted bail by a trial court on 13 September 2019. With this, 139 of the 148 workers arrested in the case so far are now out on bail. Four persons who have been granted bail are office bearers of the MSWU. According to the complainants, 13 trade union leaders remain in jail having been found guilty of the murder of the manager.
5. 414. The complainants further allege that, after the incident, the management terminated the services of 550 permanent and 1,800 contract workers.
6. 415. The ITUC–AP further alleges that in October 2015 when a new wage agreement was announced it only covered permanent and not temporary workers. The temporary workers sought to protest against this discrimination, but their peaceful assembly was violently crushed by the police. There were more than 3,000 temporary workers at the Company who had been demanding equal wages with permanent workers and rallied at the plant gates to show their discontent. Police responded by violently breaking up the demonstrations. Several workers were injured and arrested. The arrested persons were released on bail.
7. 416. According to the complainants, the Government failed to: conduct an independent investigation into the incidents leading up to the events of 18 July 2012 and thereafter; ensure that the workers unfairly terminated and collectively punished for the events of 18 July 2012 had received redress including reinstatement; ensure that the right of the workers to peacefully strike in defence of their social and economic interest was upheld. The complainants consider that violent attacks, arbitrary attacks and unwarranted imprisonment of workers under such circumstances have seriously undermined the right of workers to form and join unions of their choice for the protection and defence of their social and economic interests. The complainants express serious concern that eight members of the former executive committee of the union remain in jail having been falsely accused and held collectively responsible for the events of 18 July 2012 without an independent investigation. It equally decries the detention of workers, in some cases for four years, on false charges. The complainants allege that workers who were unfairly dismissed are unable to find other jobs due to indirect blacklisting, their case having been widely circulated in the media and brought to the attention of other companies. Their families suffered a lot because of their false implication; they had to vacate their rental houses and had to withdraw their children from school and could hardly afford to eat.
8. 417. The complainants consider that the Government must conduct an independent investigation into the events leading up to and occurring on the 18 July 2012 and thereafter, with a view to upholding the principles of freedom of association and the right to collective bargaining and ensuring that innocent workers are not victimized or collectively punished. They further consider that the Government must work expeditiously with the social partners to ensure that the 117 workers found not guilty of any offence by the court in its judgment dated 12 March 2018 are immediately reinstated or fully compensated with all consequential benefits. Furthermore, the Government must ensure, as a matter of urgency, that workers who want to form or join a union in a company have the freedom and protection to do so and to freely bargain collectively for their conditions of service and to protect their interests. The Government must ensure that peaceful strikes are not sabotaged by employers or state officials and that there are consequences for any acts to intervene and undermine a peaceful strike after thorough investigations have been conducted.

B. The Government’s reply

1. 418. In its communication dated 27 October 2021, the Government provides the following information based on the observations received from the State Government of Haryana.
2. 419. On 18 July 2012, major violence occurred in the Manesar plant of the Company during which there were incidents of fire and injuries inflicted on the management of the company, which resulted in the death of the senior human resources officer, Mr Awanish Kumar Dev, and physical disablement of many senior officers of the company. Before addressing the present complaint in relation to this incident and the consequences thereof, the Government outlines the chronology of the events as follows.
3. 420. The Company was incorporated in 1983. It was a public sector undertaking until 2003. It has a registered worker’s union since 1983. After the privatization of the Company, the MUKU was established. In 2006, another manufacturing unit was set up at a plant in Manesar. The workers of this new plant were members of the MUKU and thus enjoyed the same wage and other financial benefits given to workers of the Gurugram Unit. A collective agreement was concluded in 2009 by the MUKU and covered workers of both plants.
4. 421. On 3 June 2011, a section of workers at the plant in Manesar applied for registration of a new union, the MSEU. On 4 June 2011, a strike started at the premises of the Company’s plant in Manesar. According to the management, the strike occurred without any notice. The leaders of the strikers stated that the management was obstructing the formation of a separate union by the workers. On 6 June 2011, the management dismissed 11 of the striking workers, the office bearers of the MSEU, for instigating strikes. Conciliation proceedings were initiated by the Labour Department, but it could not be settled. All the disputed points and issues were referred for adjudication to the Industrial Tribunal-cum-Labour Court on 10 June 2011. Workers were prohibited from continuing the strike and both the management and the workers were directed by the Government’s order dated 10 June 2011 to maintain industrial peace, law and order. On 16 June 2011, the dispute was settled pursuant to section 12(3) of the Industrial Disputes Act, 1947, through mediation by the Deputy Labour Commissioner. The crux of the agreement was that the dismissal of the aforesaid 11 office bearers was withdrawn by the management. The Government points out that while workers resorted to a prohibited strike, peace and normality were restored through the efforts of the Labour Department and 11 dismissed workers were reinstated.
5. 422. The Government further explains that the application for the MSEU registration was rejected by the Registrar-cum-Labour Commissioner on 29 July 2011 on the grounds of forged signatures, lack of authenticity of election conducted on 29 May 2011, not fulfilling the statutory minimum membership requirement of 10 per cent of workers of the total workforce and also due to the strike resorted to on 4 June 2011.
6. 423. The Government further explains that, according to the management, workers were resorting to a go-slow as well as to wilful and deliberate acts of sabotage endangering the plant. In this connection, on 29 August 2011, the management asked its workers to sign a good conduct bond, but the workers refused and protested outside demanding withdrawal of the bond. During the dispute, around 33 workers were dismissed and 29 were suspended. The workers submitted a demand notice for reinstatement and quashing of all charges against the 33 dismissed and 29 suspended workers. The deadlock was resolved through a settlement under section 12(3) of the Industrial Disputes Act through mediation by the Deputy Labour Commissioner. The crux of the agreement was that workers would sign the bond before reporting for duty on 3 October 2011, the dismissal orders of 15 workers would be converted into suspension orders and 18 technical trainees whose training had been terminated would resume their training. This issue was thus resolved. On 7 October 2011, however, the workers went on strike again. The Government indicates that, according to the management, no prior notice had been given and some workers indulged in violence. The conciliation procedures were initiated by the Labour Department, but the parties could not agree. By the Government’s order dated 12 October 2011 workers were prohibited from continuing the strike and the issue of legality of the strike together with other disputed issues were referred for adjudication to the Industrial Tribunal-cum-Labour Court. On 19 October 2011, the dispute was settled pursuant to section 12(3) of the Industrial Disputes Act through mediation by the Deputy Labour Commissioner. The Government points out that the facts as described above demonstrate that whenever the dispute arose, the Labour Department adopted a balanced approach and tried to get the dispute settled between the management and the workers.
7. 424. On 10 February 2012, having corrected previous mistakes in the application, the workers applied for the registration of the MSWU. The union was registered by the Registrar-cum-Labour Commissioner on 23 February 2012 and subsequently presented a general demand notice for wage settlement. During the pendency of the demand notice, on 18 July 2012, workers of the plant resorted to violence at the factory premises and incidents of fire were reported. The General Manager for Human Resources died due to the said violence. This led to the registration of criminal cases against the erring workers and the matter was handed over to the police department for investigation. A proper investigation was carried out by the police and “first information reports” were registered against the wrongdoers.
8. 425. Regarding the Government’s alleged failure to act, the Government indicates that the incident of 18 July 2012, during which a senior manager lost his life due to the violence resorted to by workers inside the plant, was disgraceful. The Government points out that workers have resorted to strikes despite the fact that the Government of Haryana has prohibited the continuation of strikes on two occasions. Various conciliation meetings were held and the Labour Department was continuously in touch with both workers and management but the action of workers on 18 July 2012 changed the industrial environment for the worst. The police department has investigated the matter and initiated criminal action, as per the provisions of the criminal law, against the wrongdoers.
9. 426. The Government indicates that a Special Investigation Team was constituted for proper investigation into the incident of 18 July 2012 and that, on the basis of the investigation, the police filed “first information reports” in respect of 148 workers under the criminal law. All the accused were subject to criminal trial before the Sessions Court and had the right to defend themselves. The Court found 31 guilty and convicted them and 117 workers were exonerated on the basis of the benefit of the doubt. The State appealed to higher courts against the acquittal of the 117 workers; the 31 accused workers appealed their conviction. The Government emphasizes that court decisions are always to be respected and accepted, that its judiciary is independent, its process is impartial and that justice would be done.
10. 427. The Government indicates that suo moto cognizance was taken by the Haryana Human Rights Commission (HHRC) of the report dated 27 June 2013 of the International Commission for Labour Rights (ICLR), New York. The HHRC has ordered that the matter is sub judice and pending before the Court. The Government therefore considers that it is wrong to say that no inquiry or investigation has been conducted. On the contrary, the authorities concerned have investigated the incident and due process as per law of the land has been followed.
11. 428. Regarding the complainant’s allegation that the Government failed to ensure that the dismissed and collectively punished workers for the events of 18 July 2012 received redress, including reinstatement, the Government informs that 546 workers were dismissed by the management following the 18 July 2012 incident, and 377 workers have appealed their dismissal before the Labour Court; their cases are still pending. The Government indicates that further action will be taken as per the decision/order of the Court.
12. 429. The Government indicates that while the Labour Department of the Government of Haryana protects peaceful legal strikes, violent strikes and sit-in strikes, where workers sit inside the plant, are not allowed, as they adversely affect industrial production and destroy the industrial peace and harmony of the industries around. While peaceful legal strikes have never been disturbed or sabotaged, illegal and violent strikes are not allowed. The Government points out that in this particular case workers have resorted to a strike, the continuation of which the Government of Haryana has prohibited and asked both the management and the workers to restore peace. If workers want to do a peaceful protest they can do so at the protest site earmarked for the purpose by the Deputy Commissioner of the area or in some area designated for conducting peaceful protests and strikes.
13. 430. In conclusion, the Government points out that the Labour Department, Government of Haryana, respects the right of workers to organize and principles of freedom of association. It further emphasizes that workers who want to join a union have the freedom to do so. The right to freedom of association is enshrined in the Constitution of India; this right has been mandated in the Trade Union Act, 1926, pursuant to which, workers can apply for registration of a union after fulfilling the conditions as enshrined in the Act. According to the Government, India’s conciliation system is also very effective for collective bargaining.

C. The Committee’s conclusions

1. 431. The Committee notes the following background to this case, as described by the ITUC–AP and the ITUC, the complainants in this case, and the Government. Previously a public sector enterprise, the Company became private in 2003. In 2006, a second plant was set up at Manesar. In 2011, workers of the Manesar plant began a process of forming a union, independent from the existing MUKU. The registration of the MSEU was initially denied. The Committee notes a number of labour disputes in this connection, as described by both the complainant and the Government, which appear to have been settled at the time. In February/March 2012, the MSWU was registered. Subsequently, around 18 April 2012, the union presented its proposals for negotiation of a collective agreement.
2. 432. The Committee further notes that the events that followed as alleged by the complainants and as presented by the Government differ. According to the complainants, the Company’s management stalled and delayed the negotiations. The complainants argue that the management refused to negotiate and the Government failed to facilitate the process through a conciliation or mediation mechanism. According to the complainants, in anticipation of a reaction from the union, the management brought in so-called “bouncers” camouflaged as workers to incite workers; the former began picking fights with workers and the situation escalated. The complainants allege that on the morning of 18 July 2012, a supervisor insulted a worker based on his caste, knowing that such an insult would generate major tension in the workplace. The worker who was insulted was later suspended. The complainants allege that the issue raised tension and the management invited the police, who remained outside the premises even when the tension escalated. According to the complainants, during that time, the union and the management were in a meeting trying to resolve the situation, however, with the scuffle and the chaos, it broke down. A fire began on the premises where the negotiations were taking place and spread; as a result of the incident, the General Manager for Human Resources died of asphyxiation. At that stage, the police intervened and arrested 148 workers and unionists. They were charged with murder, rioting and other serious charges under the Indian Penal Code. According to the complainants, over 150 workers were jailed on serious criminal charges including those who were not even present in the factory premises when the violent incident occurred. The District Court in Gurgaon rejected the workers plea for bail on three occasions. The High Court of Punjab and Haryana also turned down the bail plea twice stating that the incident had lowered India’s international reputation and that foreign investors were not likely to invest their money in India out of fear of labour unrest. The Supreme Court had granted bail to two workers in February 2015, 31 months after their arrest. In March 2015, the Gurgaon District Court granted bail to 77 out of the 148 workers arrested in connection with the violence that occurred at the Company. In August 2016, 18 workers were granted bail by the trial court. Five more workers, arrested in connection with the violent incident, were granted bail by a trial court on 13 September 2019. The complainants indicate that, as of the day of the complaint, 13 persons were still in jail having been found guilty of the murder of the manager. The complainants consider that the Government failed to conduct an independent investigation into the incidents leading up to the events of 18 July 2012 and thereafter. The complainants express serious concern that eight members of the former executive committee of the union remain in jail having been falsely accused and held collectively responsible for the events of 18 July 2012 without an independent investigation. It decries the detention of workers, in some cases for four years, on false charges.
3. 433. The Committee notes that, according to the Government, the incident of 18 July 2012 during which a senior manager lost his life was due to the workers’ violence during a strike, the continuation of which the Government had prohibited on two occasions. The Government indicates that while various conciliation meetings were held and the Labour Department was continuously in touch with both workers and management, the action of workers on 18 July 2012 changed the industrial environment for the worst. The police investigated the matter and initiated criminal action, as per the provisions of the criminal law, against the wrongdoers. The Government refutes the complainants’ allegation that no proper investigation of the incident took place and indicates that a Special Investigation Team was constituted for proper investigation of the 18 July 2012 incident and that on the basis of the investigation the police filed criminal charges in respect of 148 workers. All of the accused were subject to a criminal trial before the Sessions Court and had the right to defend themselves. The Court found 31 guilty and exonerated 117 workers. The State appealed the acquittal of the 117 workers; the 31 accused workers appealed their conviction. The Government emphasizes that court decisions are always to be respected and accepted and that its judiciary is independent, its process is impartial and that justice would be done. The Government also indicates that suo moto cognizance was taken by the HHRC of the report dated 27 June 2013 of the ICLR, New York. The HHRC has ordered that the matter is sub judice and pending before the Court.
4. 434. At the outset, the Committee deeply regrets the loss of life of a senior human resources officer of the company and physical disablement of other senior officers that occurred during the events of 18 July 2012. The Committee recalls that penal sanctions should only be imposed if, in the framework of a strike, violence against persons and property or other serious violations of the ordinary criminal law are committed, and this, on the basis of the laws and regulations punishing such acts [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 955]. The Committee further recalls that criminal sanctions may only be imposed if during a strike violence against persons or property or other infringements of common law are committed for which there are provisions set out in legal instruments and which are punishable thereunder [see Compilation, para. 972]. The Committee understands that the Court found 31 guilty and exonerated 117 workers and that appeals are pending against both the guilty verdicts and the acquittals. It further understands that pending appeal, among those found guilty, 13 workers (among them eight trade union office bearers) remain in jail while others were released on bail. The Committee recalls that it has pointed out that where persons have been sentenced on grounds that have no relation to trade union rights the matter falls outside its competence. It has, however, emphasized that whether a matter is one that relates to the criminal law or to the exercise of trade union rights it is not one which can be determined unilaterally by the government concerned. This is a question to be determined by the Committee after examining all the available information and, in particular, the text of the judgment [see Compilation, para. 181]. The Committee observes that copies of relevant judgment(s) relating to the 13 workers still imprisoned who have been refused bail pending appeal have not been provided. The Committee therefore requests the Government and the complainant organization to provide a copy of all relevant court decisions.
5. 435. The Committee notes that the events in this case took place almost ten years ago and expresses its deep concern at the length of the legal proceedings, which are still pending. It recalls the importance it attaches to such proceedings being concluded expeditiously, as justice delayed is justice denied [see Compilation, paras 169–170]. The Committee expresses the firm expectation that the pending cases will be concluded without further delay.
6. 436. Regarding the complainants’ allegation that after the incident the management terminated the services of 550 permanent and 1,800 contract workers and that the Government failed to ensure that the workers unfairly terminated and collectively punished for the events of 18 July 2012 had received redress including reinstatement, the Committee notes that, according to the Government, 546 workers were dismissed by the management following the incident, that 377 workers appealed their dismissal before the Labour Court and that their cases are still pending. The Government indicates that further action will be taken as per the decision/order of the Court. The Committee notes that according to the Company, whose comments the Government forwarded with its reply, any reinstatement is subject to the decision by the relevant court. The Committee recalls in this respect that the longer it takes for a procedure – particularly concerning the reinstatement of trade unionists – to be completed, the more difficult it becomes for the competent body to issue a fair and proper relief, since the situation complained of has often been changed irreversibly, people may have been transferred, etc., to a point where it becomes impossible to order adequate redress or to come back to the status quo ante [see Compilation, para. 1143]. It further recalls that delay in the conclusion of proceedings giving access to remedies diminishes in itself the effectiveness of those remedies, since the situation complained of has often been changed irreversibly, to a point where it becomes impossible to order adequate redress or come back to the status quo ante [see Compilation, para. 1144]. Furthermore, in cases in which proceedings concerning dismissals had already taken 14 months, the Committee requested the judicial authorities, in order to avoid a denial of justice, to pronounce on the dismissals without delay and emphasized that any further undue delay in the proceedings could in itself justify the reinstatement of these persons in their posts [see Compilation, para. 1146]. The Committee recalls that respect for the principles of freedom of association requires that workers should not be dismissed for engaging in legitimate trade union activities. It further recalls that the Government must ensure an adequate and efficient system of protection against acts of anti-union discrimination, which should include sufficiently dissuasive sanctions and prompt means of redress, emphasizing reinstatement as an effective means of redress [see Compilation, paras 1164 and 1165]. The Committee firmly expects that the judicial procedures will be concluded without delay given that ten years have elapsed since the dismissals. If it appears that the dismissals occurred as a result of involvement by the workers concerned in the activities of a union, the Government must ensure that those workers are reinstated in their jobs without loss of pay [see Compilation, para. 1169]. The Committee requests the Government to provide detailed information on the status of each of the pending court cases.
7. 437. The Committee notes the ITUC–AP allegation that in October 2015, when a new wage agreement was announced, it only covered permanent and not temporary workers and that the peaceful assembly of temporary workers who sought to protest this alleged discrimination was violently crushed by the police. According to the complainant, there were more than 3,000 temporary workers at the Company who had been demanding equal wages with permanent workers and rallied at the plant gates to show their discontent. The ITUC–AP alleges that the police responded by violently breaking up the demonstrations, that several workers were injured and arrested and that the arrested persons were released on bail. The Committee requests the Government to provide its observations thereon.

The Committee’s recommendations

1. 438. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government and the complainant organization to provide a copy of all relevant court decisions.
   • (b) The Committee expresses its deep concern at the length of the legal proceedings and expresses the firm expectation that the pending cases will be concluded without further delay given that ten years have elapsed since the dismissals. If it appears that the dismissals occurred as a result of involvement by the workers concerned in the activities of a union, the Government must ensure that those workers are reinstated in their jobs without loss of pay. The Committee requests the Government to provide detailed information on the status of each of the pending court cases.
   • (c) The Committee requests the Government to provide its observations on the ITUC–AP allegations in relation to the October 2015 demonstration.