Informe definitivo - Informe núm. 168, Noviembre 1977

Caso núm. 862 (India) - Fecha de presentación de la queja:: 23-SEP-76 - Cerrado

1. 178. The complaint of the State Government Dock Yard Workers' Union (West Bengal) was contained in a letter dated 23 September 1976. The complainants supplied additional information in a letter dated 30 November 1976. The Government forwarded its observations on the complainants' main allegation by a communication dated 23 March 1977.
2. 179. India has ratified neither 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. A. The complainants' allegations

1. 180. In its first communication the complainant union stated that its membership consisted of 55 of the 60 workers employed in a small ship-repairing factory managed by the Government of West Bengal, and that it was registered in 1964. It went on to state that for years it had pressed in vain for the payment of a house rent allowance and for better service conditions for all the workers in the factory in conformity with the West Bengal Service Rules. It had also demanded for these workers an ex-gratia payment that had been granted to the employees of Calcutta Port, but had received no reply. It accordingly brought the matter formally before the Labour Commissioner as an industrial dispute; these proceedings ended in failure, but according to the complainants the Commissioner did not submit a Failure of Conciliation Report as required by law.
2. 181. The complainants alleged that the authorities, having been unsuccessful in breaking the unity of the workers, took the course of cancelling the registration of the union. On 24 July 1972, the union had received a memorandum from the Registrar of Trade Unions stating that certain defects had been found in the annual returns submitted by the union from 1965 to 1969 and directing the union officials responsible to appear before him with all the relevant documents with a view to rectification. The union officials duly went to the Registrar's office and were assured that they would receive a clarification in writing in due course. The Government had done nothing further and had accepted the annual returns for 1973 and 1974.
3. 182. The complainant union went on to state that it had received a notice dated 23 July 1974 stating that it was the intention of the Registrar to cancel the union's certificate of registration on the grounds that the union had been submitting defective annual returns from 1965 onwards and that it had failed to rectify the defects despite being advised that it must do so (a breach of section 28(1) of the Trade Unions Act 1926). On 21 August 1974, continued the complainants, they received a formal notice to appear before the Registrar in connection with these alleged defects in the returns. Representatives of the union kept two successive appointments fixed by the Registrar, but on each occasion a pretext was found for a postponement. The union then prepared fresh accounts dating back to 1964, removing the alleged defects, and submitted these accounts to the Government with full explanations by a letter dated 27 April 1975. The Registrar issued another notice dated 20 September 1975 fixing an appointment for 29 September, but this letter was not posted until the beginning of October, so the union representatives could not keep the appointment. On 24 October 1975 the complainant union wrote to the Registrar informing him of what had happened and drawing his attention to the above-mentioned letter of 27 April 1975, enclosing the new accounts i
4. 183. Finally, the union received a notice of cancellation of registration dated 26 November 1975. It wrote to the Registrar requesting restoration of the registration, but received no reply. The complainants added that representatives of the union met the Registrar and his assistant and showed them all the records. According to the complainants they admitted their mistake but refused to withdraw the notice, claiming that they had no power to do so. They suggested that the union submit a fresh application for registration, which would be granted within a day or two. But the union officials asked how they could pursue the pending disputes procedure initiated under their old registration number, and why the union should pay the registration fee again.
5. 184. In their second letter the complainants insisted that the cancellation of the registration had been effected intentionally, to prevent the union from engaging in its activities. They cited instances of trade unions which had not been submitting any annual returns on the requisite form for sever.al years but which had not been penalised in the same way. They further claimed that the government authorities did not hesitate to violate the provisions of the law in order to bring pressure to bear upon members of trade unions, and again cited instances.
6. 185. The Government stated in its letter of 23 March 1977 that the registration had been cancelled because the union had submitted defective annual returns and for a prolonged period had taken no steps to rectify these defects (Trade Unions Act 1926, section 28); the annual returns for the years 1965 and 1966 were defective in respect of general fund accounts; the union had been requested to rectify the defects in a letter dated 26 December 1967, but had taken no action. Three further communications had been addressed to the union on 14 May 1969, 17 June 1970 (sent by registered post but returned by the Post Office with the remark "Left"), and 14 July 1972 (sent by registered post), but no action had been taken by the union.
7. 186. Meanwhile, continued the Government, the union had changed its address without advising the Registrar of Trade Unions, as required under section 12 of the Trade Unions Act 1926 and rule 2 of the rules of the union. A notice was accordingly issued under section 10(b) of the same Act stating the intention to cancel the union's registration, unless cause was shown to the contrary, for submission of defective annual returns from the year 1965 onwards and for its failure to rectify the defects. In a letter dated 5 August 1974 the union secretary denied the charge of having submitted defective returns, but stated that if there were any defects he would be ready to correct them. He was twice summoned to the office of the Registrar of Trade Unions for rectification of the defects, but the official concerned was unable to attend to him for unavoidable reasons and so the matter remained unsettled.
8. 187. The Government added that with a view to giving the union a further chance to rectify the defects in question, another registered letter was sent to it on 20 September 1975 making an appointment for 29 September. Nobody from the union came on that day. The Government refuted the complainants' contention that this letter was despatched only at the beginning of October (i.e. after the date fixed for the hearing), and stated that it had been despatched on 22 September. The Government also stated that no letter dated 24 October 1975 had been received from the complainants, and expressed the opinion that the union had been given sufficient time and opportunity to rectify the defects in question. The registration certificate was finally cancelled with effect from 26 November 1975.
9. 188. The union secretary had then come to see the Registrar to ask for registration to be restored. He was told that the Registrar had no power to do this. Under section 11 of the Trade Unions Act 1926, continued the Government, any person aggrieved by the withdrawal or cancellation of a certificate of registration could appeal to the High Court or the District Court. It was not clear to the Government what had prevented the complainants from availing themselves of the legal remedy thus provided, nor what had prompted it instead to present a complaint to the ILO after a period of about ten months. Finally, the Government denied that the Registrar had admitted that he was at fault or that the returns for the years 1973 and 1974 had been accepted. It contended that since the returns for 1965 could not be accepted, the returns for subsequent years, based on these defective returns, were equally unacceptable.

B. B. The Committee's conclusions

1. 189. There are essentially two aspects to this case which raise issues of freedom of association: the control over trade union funds exercised by the Registrar of Trade Unions, and withdrawal of registration by this official.
2. 190. On the question of control over the financial administration of trade unions, the Committee has already observed in the past that, in general, trade union organisations appear to agree that legislative provisions requiring the presentation to the authorities of an annual financial statement in a prescribed form, and the submission of other data on points which may not seem clear in the said statements, do not per se infringe trade union autonomy. It has however emphasised that such measures may be useful provided that they are employed only to prevent abuses and to protect the members of the union themselves against mismanagement of their funds. In the present instance, the checking of the union's accounts by the Registrar does not appear to go beyond what the Committee has found acceptable in other cases.
3. 191. However, errors were noted during this checking and this led to the cancellation of the certificate of registration by the Registrar. It is to be noted in this connection that, under the Trade Unions Act of 1926, registration, while not compulsory, entitles trade unions to immunity from civil and criminal liability in certain cases; a non-registered union might be prevented from carrying on its activities normally. Cancellation of a union's registration might, therefore, be considered to be tantamount to its dissolution.
4. 192. Section 10 of the above-mentioned Act provides that a certificate of registration of a trade union may be withdrawn or cancelled by the Registrar, inter alia, if he is satisfied that the union has wilfully, and after notice from the Registrar, contravened any provision of the Act (in the present instance, the provision in question is section 28, which concerns the verification of trade unions' accounts). However, the Registrar must give not less than two months' previous notice in writing specifying the grounds on which it is proposed to withdraw or cancel the certificate. Section 11 of the Act provides for an appeal to the courts against this decision.
5. 193. The Committee has already emphasised the importance of the principle that workers' and employers' organisations must not be subjected to measures tantamount to suspension or dissolution by administrative authority. The Committee has added that if this principle is to be properly applied, it is not sufficient for the law to grant the right of appeal against such administrative decisions, but the latter should not take effect until the expiry of the statutory period for lodging an appeal or until the confirmation of such decisions by a judicial authority.
6. 194. In the present case, according to the information available, the complainant union was registered in 1964, and in 1967 began receiving requests to make corrections in its annual returns from 1965 onwards. It was given a number of warnings before being formally served with notice on 23 July 1974 that its registration certificate was to be cancelled.
7. 195. The organisation's leaders appear to have met with difficulties in attempting to clarify the matter with the competent official; the latter was twice unable to receive them after fixing an appointment, and did not reply to the union's letter appending new returns. A third appointment was not kept for reasons that are unclear. Finally, the registration certificate was cancelled on 26 November 1976.
8. 196. The Committee considers that a situation of this kind, which appears to be rather confused, should normally have been settled in the first place through consultation between the Registrar and the complainants, or as a final resort through the national courts. It would appear in this connection that the complainants have not availed themselves of the avenues open to them for appealing against the administrative decision to cancel their certificate of registration. The Committee further observes that under the Trade Unions Act, mentioned above, it is possible for the union to reapply for registration, once its accounts have been agreed.

The Committee's recommendations

1. 197. In these circumstances, the Committee recommends the governing Body to recall the considerations and principles set forth in paragraph 193 above and, taking into account the special circumstances mentioned in paragraph 195 above, to request the Government and the complainants to consider together the possibility of re-examining the question of the registration of the complainant union.