Informe definitivo - Informe núm. 165, Junio 1977

Caso núm. 843 (India) - Fecha de presentación de la queja:: 24-MAR-76 - Cerrado

1. 34. The complaint is contained in a communication dated 24 March 1976 from Mr. Rajani Mukherjee in the capacity of General Secretary of the All-India Post and Telegraph Industrial Workers' Union. The complainants sent additional information on 28 May 1976 and 10 January 1977. The communications were transmitted to the Government, which forwarded its observations on 19 and 28 May 1976 and 27 January 1977.
2. 35. India has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 36. According to the complainants, the union represents 80 per cent of the workers employed by the Government in its post and telegraph offices and their dependencies. In 1972 the Central Committee of the union was elected, with Mr. P.K. Banerjee as its General Secretary. Owing to certain internal disagreements, Mr. Banerjee closed down the central office of the union in Calcutta, but the Committee continued to function without him and with the recognition of the Post and Telegraph Directorate. In August 1974 the Government issued a circular inviting all unions to hold elections. The Central Committee met to prepare these elections, which were to be held at the local and national level. Mr. Banerjee refrained from taking part in the meeting. After the local elections, to which Mr. Banerjee raised no objection, the All-India Conference was held on 22, 23 and 24 November 1974. On the eve of the Conference a case was filed in court by two persons seeking an injunction order for its suspension. According to the complainants, the injunction was obtained after the end of the Conference, during which the new national executive of the union was elected. The matter remained the subject of appeals to various judicial instances until, finally, in February 1976, the court gave judgement against the persons who had sought the injunction against the holding of the Conference. The complainants communicated the text of a judgement in which the judge found that "prima facie, there was no want of authority on the part of the defendants to hold the said Conference" on 22 to 24 November 1974.
2. 37. The complainants went on to state that, in the meantime, in May 1975, Mr. Banerjee, who was no longer General Secretary of the union, convened another national conference, without indicating either the place or the date and without complying with the formalities provided for in the union Constitution. This conference elected a Central Committee, which was recognised by the Ministry in December 1975, with Mr. Amjad Ali as President and Mr. Banerjee as General Secretary.
3. 38. The complainants lodged a protest with the Government against the recognition of this Committee, whose election it considered to be irregular. In this manner, stated the complainants, the Government had interfered in the internal affairs of the union and frustrated the right of unions to elect their representatives freely.
4. 39. In their communication of 10 January 1977 the complainants sent the text of the judgement given by the High Court of Madhya Pradesh on 19 November 1976 in the case brought by the President and Assistant General Secretary of the union against the Post and Telegraph Directorate and Messrs. Banerjee and Ali relating to the recognition of the latter as legal representatives of the organisation. The court stated that, although the Government did not claim to have any authority to decide who were the duly elected office bearers of the union, it nevertheless had to deal with the union in matters relating to the welfare of workers and, where rival office bearers existed, had to decide administratively for its own purposes as to who these office bearers were. The petitioners could file a suit to obtain a declaration that they were the duly elected office bearers, and that course was still open to them. There was, however, no statutory obligation for the Government to recognise the petitioners or to decide that they were the duly elected office bearers.
5. 40. The complainants concluded by saying that even if they won the action and obtained a declaration in favour of the Central Committee of which Mr. Mukherjee is a member, the Government could withhold recognition.
6. 41. In its reply on the substance of the case, the Government stated that, in March 1972, Messrs. Abid Ali and P.K. Banerjee were elected as President and General Secretary of the union respectively. In 1973 Mr. Ali resigned as President and Mr. S.N. Nandi, who was Vice-President, assumed the powers of President without authorisation either under the Constitution of the union or by the Central Executive Committee. Mr. Banerjee was suspended and was replaced by Mr. Mukherjee. Both these actions were unconstitutional, and Mr. Banerjee could have been removed only by decision of the Executive Committee convened to that effect. Since this requirement was not complied with, Mr. Banerjee continued to be the duly elected General Secretary of the union.
7. 42. At the union Conference in November 1974 Messrs. Nandi and Mukherjee were elected President and General Secretary respectively. According to the Government, these two persons, who were not constitutionally office bearers of the union, were not competent to convene the Conference and the elections were accordingly null and void. Furthermore, according to the information available to the Government, the injunction order for the suspension of the Conference was communicated on 22 November 1974, during the meeting, and not when it was over. Consequently, continued the Government, the Conference was held in violation of an order of the court. Thus, there came into being two rival groups in the Union, one supporting Mr. Banerjee, who was elected General Secretary in 1972, and the other supporting Mr. Mukherjee, who was elected to the same office in 1974. In May 1975 Mr. Banerjee, who was still a legally elected office bearer, convened a conference at which Mr. Amjad Ali was elected President and Mr. Banerjee himself General Secretary.
8. 43. The Government stated that it had given very careful consideration to the situation and, in the light of the fact that the 1975 elections were Constitutional, had recognised the Central Committee under the leadership of Messrs. Ali and Banerjee. Mr. Mukherjee's group filed a writ before the courts challenging this decision, but the case was dismissed. The Government attached the text of the judgement already transmitted by the complainants, and concluded by stating that Mr. Mukherjee was not the duly elected General Secretary of the All-India Post and Telegraph Industrial Workers' Union and that his complaint should be dismissed.

B. B. The Committee's conclusions

1. 44. The Committee observes that the case relates to a matter of internal dissension within one and the same trade union organisation, whose settlement is primarily a matter for the parties concerned. In such dissensions the authorities should refrain from any interference which would restrict the right of organisations to elect their representatives in full freedom and to organise their administration and activity. The Committee considers that it is not competent to make recommendations on internal dissensions of this nature, as long as the Government does not intervene in a manner which might affect the exercise of trade union rights and the normal functioning of an organisation.
2. 45. In the present case the Committee feels obliged to point out the following facts. The Government has not recognised one of the groups of leaders involved in the dispute since it considers that union rules have been violated and that their election was accordingly null and void; nevertheless, in one of the judgements given in the matter, the judge states that, prima facie, the conference at which the election was held had been properly convened. Furthermore, according to the complainants, the group of leaders recognised by the Government had been elected at a conference convened without indication of the place or date and without complying with the formalities. In the last judgement given on the matter by the Madhya Pradesh High Court the judge points out that the Government does not claim to have any authority to decide who are the duly elected representatives of the union; nevertheless, in its communication, the Government gives its views on the substance of this matter and, in particular, on the validity or invalidity of the election of the rival leaders.
3. 46. The Committee observes that, according to the judgement, Mr. Mukherjee and his colleagues can still take judicial action for the purpose of obtaining a declaration that they are the duly elected representatives of the union. The Committee is of the opinion that judicial intervention to examine the substance of the case would permit a final clarification of the situation from the legal point of view for the purpose of settling the question of the leadership and representation of the All-India Post and Telegraph industrial workers' Union. Another possible means of settlement would be to appoint an independent arbitrator to be agreed on by the parties concerned, to seek a joint solution to existing problems and, if necessary, to hold new elections. In either case, the Government should recognise the leaders designated as the legal representatives of the organisation.
4. 47. The Committee considers that the matters at issue should be settled within the country itself with full respect for the principles of freedom of association. The purpose of its observations and suggestions is to contribute to such a solution, bearing these principles in mind.

The Committee's recommendations

1. 48. In these circumstances the Committee recommends the Governing Body:
   • (a) to note that the case is essentially one of internal dissension within the All-India Post and Telegraph Industrial Workers' Union, the settlement of which is primarily a matter for the parties concerned;
   • (b) to draw attention to the principles and considerations set forth in paragraphs 44 to 47 with a view to settlement of the matters at issue, full account being taken of the right of organisations to elect their representatives in full freedom and to organise their administration and activities without interference by the authorities which would restrict this right or impede the lawful exercise thereof.