Informe provisional - Informe núm. 278, Junio 1991

Caso núm. 1479 (India) - Fecha de presentación de la queja:: 07-NOV-88 - Cerrado

1. 259. The Committee examined this case at its May-June 1990 meeting when it presented an interim report. (See 272nd Report, paras. 355-388, approved by the Governing Body at its 246th Session.) By a communication dated 28 August 1990 the complainant submitted further allegations in relation to this case. By communications dated 21 January, 13 February, 18 February and 29 April 1991 the Government sent certain further observations in relation to the allegations against it.
2. 260. India has not ratified 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. Previous examination of the case

1. 261. The allegations which remained outstanding in this case concerned a series of alleged violations of trade union rights relating principally to: (i) interference by management of the Heavy Water Project and the state government of Orissa in the internal affairs of the Heavy Water Project Employees' Union (HWPEU), a union affiliated to the complainant organisation; (ii) false arrests, suspension and other harassment of trade union activists; and (iii) denial of the right of CITU affiliates to hold meetings between January and May 1988.
2. 262. In the light of the Committee's interim conclusions, the Governing Body, at its May-June 1990 Session, approved the following recommendations of the Committee:
   • (a)The Government is asked to supply, as a matter of priority, its comments on the complainant's allegations relating to: (i) the denial of the right of CITU affiliates to hold meetings between January and May 1988; (ii) the failure to investigate the police complaint lodged by Mr. M.D. Parida on 31 July 1988; and (iii) the deduction of between two and five days' pay from 80 employees of the Heavy Water Project on 23 July 1988.
   • (b)The Government is asked to provide more precise information as to the criminal charges laid against 22 named individuals on 16 March 1988, and the outcome of any subsequent court proceedings.
   • (c)The Government is asked to provide full particulars as to the disciplinary charges laid against Messrs. Satpathi and Parida, and against any other members or officials of the HWPEU. It is also asked to endeavour to ensure that all outstanding charges are determined as quickly as possible, to communicate the outcome of all relevant proceedings to the Committee, and to indicate whether Messrs. Satpathi and Parida are entitled to be paid during the currency of their suspension.
   • (d)The Government is asked to adopt appropriate measures to provide for the speedy resolution of intra-union disputes. Such measures should include a requirement that the official or tribunal which investigates a dispute must furnish written reasons for its decision.
   • (e)The Government is asked to inform the Committee of the outcome of the High Court application by the "Parida Executive" as soon as it becomes available.
   • (f)The Committee notes that the actions of the management of the Heavy Water Project, Talcher in unilaterally recognising the "Bairagi Executive" as the provisional executive of the union, and in participating in the forcible entry into the premises of the union, were not compatible with the principles of freedom of association.
   • (g)The Government is asked to take appropriate legislative and administrative measures to ensure that employers do not interfere in the internal affairs of trade unions.

B. New allegations

1. 263. By its communication of 28 August 1990 the complainant makes a number of further allegations of victimisation and harassment of named officials and activists by management of the Heavy Water Plant, Talcher (principally by means of the laying of fabricated charge-sheets). It also supplies further information relating to the court actions initiated by the Parida and Bairagi Executives of the HWPEU in 1988.

C. The Government's reply

1. 264. By its communications of 18 February and 29 April 1991 the Government indicates that between January and May 1988 the police in the state of Orissa did not grant permission under the Police Act, 1861, to any trade union whatsoever to hold meetings. This was because intra-union rivalry was at its peak at that time, and there was every likelihood of violence and of breach of the peace had the police permitted meetings at factory gates. However, both factions had held meetings away from the factory gates during the period in question, without the permission of the police.
2. 265. As regards the alleged failure to investigate the police complaint lodged by Mr. M.D. Parida on 31 July 1988, the Government states that the Labour Commissioner had declared the Bairagi Executive to be the true executive of the union on 20 February 1988. Mr. Parida, who was in possession of the union office, was asked by management to hand the office over to the Bairagi Executive. He refused to so so. The police considered that his subsequent allegation that management had broken open the office door in order to hand it over to the Bairagi Executive did not amount to a contravention of the law and for that reason did not initiate criminal proceedings in relation to the matter. The Government points out, however, that it would have been open to Mr. Parida to have initiated proceedings against management under section 190 of the Criminal Procedure Code if he was not satisfied with the conduct of the investigation by the police. He had not done so.
3. 266. As regards the deduction of between two and five days' pay of 80 employees of the Heavy Water Project on 23 July 1988, the Government explains that this was on account of the refusal on their part to discharge functions assigned to them. It adds that following discussions between management and the union, and on the basis of an unconditional apology by the workers concerned, the period had been "regularised by grant of leave as admissible to the workers". However, some of the employees concerned had resorted to legal action in relation to this matter. These cases have been before the courts since 1989, but no orders have been issued as yet.
4. 267. Concerning the criminal charges laid against 22 persons in March 1988, and the outcome of subsequent court proceedings (recommendation (b)), the Government explains that the proceedings under section 107 of the Criminal Procedure Code requiring the 22 named individuals to furnish security for keeping the peace were instituted as a preventive measure. They were intended to ensure that members of the two rival groups did not resort to any criminal activity or violence. The Executive Magistrate at Talcher ordered that the case be closed on 24 November 1988 because no formal charges had been laid within the six-month period prescribed by section 116(6) of the Criminal Procedure Code.
5. 268. As regards the disciplinary charges and proceedings against Messrs. Satpathi and Parida and other officials of the HWPEU (recommendation (c)), the Government provides the following information. Management suspended four union officials: Messrs. R.R. Rao, with effect from 13 July 1987; M.M. Bairagi, with effect from 13 July 1987; G.C. Satpathi, with effect from 29 February 1988; and M.D. Parida, with effect from 20 April 1988. A departmental inquiry in respect of Mr. Rao and Mr. Bairagi has been completed; the report of the Inquiry Officer has been sent to them in accordance with the prescribed procedure and the relevant disciplinary authority will make a final decision after considering their comments on the report.
6. 269. Mr. Satpathi had filed a petition before the Central Administrative Tribunal, Cuttack; the Tribunal directed that Mr. Satpathi should appoint a Defence Assistant within a month and that the inquiry should be completed within three months thereafter. Mr. Satpathi did not nominate an assistant until 17 October 1990. The Inquiry Officer then fixed proceedings for 8 to 16 November 1990. In spite of repeated opportunities given to him, Mr. Satpathi failed to comply with the requirements of the inquiry proceedings - for example in relation to the cross-examination of witnesses. Further hearings were fixed for January 1991. Meanwhile Mr. Satpathi had filed another petition with the Central Administrative Tribunal, which had directed that the disciplinary hearings should not be concluded until this further petition had been dealt with.
7. 270. Mr. Parida filed a bias petition against the Inquiry Officer who was dealing with the case. This petition was rejected by the disciplinary authority on 3 September 1990, and the decision had been communicated to Mr. Parida.
8. 271. The Government explains that the disciplinary charges against Mr. Satpathi related to a noisy demonstration in a corridor of the Technical Building at the Heavy Water Plant on 29 February 1988. Mr. Satpathi is alleged to have left his workstation without permission, to have failed to perform any work between 10.45 a.m. and 15.45 p.m. on that day, and to have instigated his fellow-workers to do likewise. By engaging in this conduct, Mr. Satpathi had allegedly violated various provisions of the Central Civil Services (Conduct) Rules, 1964.
9. 272. The charges against Mr. Parida relate to an unauthorised meeting which he had summoned near the central stores of the Heavy Water Plant on the morning of 20 April 1988, and to an altercation with a fellow-employee at that time. This conduct was allegedly in violation of the Central Civil Services (Conduct) Rules, 1964.
10. 273. With respect to the measures providing for the speedy resolution of intra-union disputes (recommendation (d)), the Government states that such disputes are generally resolved by the central trade union organisation to which the unions concerned are affiliated. The parties may also approach a civil court which delivers speaking orders in all matters which come before it.
11. 274. Concerning the outcome of the High Court application submitted by the "Parida Executive", the Government indicates that both the "Parida" and "Bairagi" executives resorted to litigation. The latter filed a suit before the Subordinate Judge at Talcher, seeking an injunction against the former's holding an election for the year 1988. The "Parida Executive" filed a writ in the High Court of Orissa challenging the decision of the Labour Commissioner declaring the Bairagi Executive to be the true Executive. The High Court disposed of the case by directing that the Subordinate Judge at Talcher should adjudicate and dispose of the suit in accordance with the law. Subsequently, the suit filed by the Bairagi Executive was rejected as the plaintiff asked for its withdrawal. At present there is no case pending in the matter.
12. 275. As regards the actions of the management of the Heavy Water Project which the Committee found incompatible with the principles of freedom of association (recommendation (f)), the Government gives the following information. The Project management gave provisional recognition to the Bairagi faction on the basis of the advice of the Labour Commissioner, Orissa, and of other legal advice. Subsequently, the Labour Commissioner issued a letter to the General Manager, Heavy Water Project, stating that the Registrar of Trade Unions had no power to decide on the title of any faction of the trade union and that only a civil court could determine the status of any such faction. Accordingly, the provisional recognition given to the "Bairagi Executive" was withdrawn by the management. Both factions of the union have been advised to establish their title and obtain an order to that effect from the appropriate court. The management has added that, pending a resolution of this dispute, no recognition would be given to either faction.
13. 276. Regarding the Committee's request that appropriate measures be taken to ensure that employers do not interfere in the internal affairs of the trade union (recommendation (g)), the Government states that under the Industrial Disputes Act, 1947, interference in the activities of a trade union by management is an unfair labour practice which is an offence punishable by up to six months' imprisonment or a fine of up to Rp.1,000, or both.

D. The Committee's conclusions

1. 277. The Committee notes that the Government has now provided the information requested in relation to a number of the outstanding allegations in this case. It has not, however, supplied its observations in relation to the matters raised in the complainant's communication of 28 August 1990. The Committee must, therefore, ask the Government to provide its observations on these further allegations so as to enable the Committee to examine them at its next meeting.
2. 278. The Committee notes that according to the Government local police did not permit any unions to hold meetings between January and May 1988 because intra-union rivalry was at its peak at that time, with the consequence that there was a high likelihood of violence and breach of the peace. In its communication of 7 November 1988 the complainant had stated that the police had not permitted the holding of any meeting organised by CITU over this five-month period. It is not clear from the reply of the Government whether the intra-union rivalry which allegedly justified the de facto ban on meetings refers specifically to the disagreement between the rival executives of the HWPEU, or to some broader trade union rivalry. If the former is the case, then the Committee considers that denial of the right to organise meetings to all CITU affiliates constitutes an overreaction. It accordingly asks the Government to provide further clarification on this point. In doing so it recalls that it has always taken the view that freedom from government interference in the holding and proceedings of trade union meetings constitutes an essential aspect of trade union rights, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. This is subject to the condition that the exercise of these rights does not disturb public order or cause a serious and imminent threat thereto. (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 141.)
3. 279. As regards the alleged failure of the police to investigate the complaint laid by Mr. Parida on 31 July 1988, the Committee notes that according to the Government Mr. Parida could have initiated judicial proceedings in his own right in relation to this matter had he wished to do so. He did not in fact do so. In these circumstances the Committee considers that this aspect of the case does not call for further examination.
4. 280. As concerns the deduction of between two and five days' pay from 80 employees on the Heavy Water Project in July 1988, the Government indicates that this was on account of their refusal to discharge functions assigned to them. It further states that, on the basis of discussions between management and the union, and an "unconditional apology" by the workers concerned, this period has been treated as annual leave. The Committee considers that this information is not sufficient to dispose of the allegation that the proposed deductions constituted anti-union harassment. Furthermore, it appears from the Government's reply that the workers concerned have still been penalised in the sense that they have lost leave entitlements equivalent to the days in respect of which it was proposed to deduct their pay. The Committee asks the Government to confirm whether this is in fact the case. It also asks the Government to furnish more detailed information as to the legal proceedings which had been initiated by certain workers in relation to these deductions.
5. 281. The Committee notes that the proceedings against 22 named individuals under section 107 of the Criminal Procedure Code were intended to prevent members of the two rival factions from resorting to violence or other criminal conduct, and that the case was ordered closed in November 1988. The Committee considers that it is quite in conformity with the principles of freedom of association for the public authorities to take reasonable measures to prevent the occurrence of violence or other criminal conduct on the part of trade union members. On the other hand, it also considers that such measures should not extend beyond what is reasonably necessary in the circumstances, and would point out that it is necessary to exercise great care to ensure that such measures are not used in a manner which interferes with the trade union rights of the individuals to whom they are applied.
6. 282. The Committee notes that the disciplinary inquiries in relation to the suspension of Messrs. Rao and Bairagi have been completed, and that the relevant authority will make a decision once comments have been received from the individuals concerned. The inquiries relating to Messrs. Satpathi and Parida are still pending. The Committee asks the Government to provide details as to the outcome of these matters as they become available. It also repeats its earlier request that the Government indicate whether the employees concerned are entitled to be paid during the period of their suspension.
7. 283. The Committee notes that the Government has now supplied detailed information as to the disciplinary charges against Messrs. Satpathi and Parida. In essence, the charges against Mr. Satpathi relate to the fact that he instigated and participated in a noisy stoppage of work on 29 February 1988. The charges against Mr. Parida relate, in part, to the instigation of a stoppage of work on 20 April 1988. Prima facie, the conduct of Messrs. Satpathi and Parida appears to constitute a legitimate exercise of the right to strike - unless their action ceased to be peaceful, or involved a contravention of legal provision which was itself compatible with the principles of freedom of association. The Committee has not been presented with any evidence to suggest that the "strikes" in this instance were other than peaceful, or that they were unlawful. In these circumstances, the Committee would recall that the imposition of penal or other sanctions upon workers who organise or participate in peaceful industrial action is not in conformity with the principles of freedom of association. (Digest, op. cit., paras. 436-448.) Accordingly, the Committee calls upon the Government to ensure that Messrs. Satpathi and Parida, and other workers who organised or participated in apparently lawful industrial action on 29 February and 19 April 1988, are not subject to penal or other sactions by virtue of that fact.
8. 284. In its previous examination of this case the Committee had asked the Government to provide further information as to the outcome of the High Court proceedings initiated by the Parida Executive to challenge the Labour Commissioner's decision of 20 February 1988 recognising the Bairagi Executive as the true executive of the HWPEU. The Government points out that in fact both the Parida and Bairagi Executives resorted to litigation. The Parida Executive had filed a High Court writ challenging the decision of the Labour Commissioner, while the Bairagi Executive had applied to the Subordinate Judge at Talcher for an injunction to restrain the Parida Executive from holding an election for 1988. The High Court of Orissa had directed that the Parida application should be dealt with by the Subordinate Judge at Talcher. The Bairagi application was initially granted, but was, according to the judgement of the court, dismissed for default in 1989 (when it was presumably no longer of practical relevance since it related to the 1988 annual elections). The Government states that at present there is no case pending in the matter. It has not, however, supplied any information as to the final outcome of the Parida application. Accordingly, the Committee must ask the Government to provide it with a clear indication as to the outcome of this application, and as to whether there is a continuing dispute as to the leadership of the HWPEU.
9. 285. The Committee notes that management of the Heavy Water Project had withdrawn its recognition of the Bairagi Executive in the light of a letter from the Labour Commissioner to the effect that the Registrar of Trade Unions had no power to decide on the title of any faction of a trade union, this being a matter which should be left to the courts. The Government further indicates that both factions had been advised to bring the necessary court proceedings to determine which of them constituted the leadership of the HWPEU, and that pending the outcome of these proceedings no recognition would be accorded to either faction. The Government does not indicate whether any such proceedings have in fact been initiated, although the comments noted in the previous paragraph suggest that they have not. This continuing lack of clarity makes it all the more necessary for the Government to provide the information requested in that paragraph.

The Committee's recommendations

1. 286. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a)That the Government is asked to supply its comments on the further allegations contained in the complainant's communication of 28 August 1990 concerning the victimisation and harassment of named officials and activists by the management of the Heavy Water Project so as to enable the Committee to examine these allegatìons at its next meeting.
   • (b)That the Government is asked to clarify the nature of the trade union rivalry which led to the refusal of permission to hold trade union meetings between January and May 1988, and to provide a clear indication of the extent of this de facto ban.
   • (c)That the complainant's allegations relating to the failure of the police to initiate criminal prosecutions of management in consequence of the forcible entry of the premises of the HWPEU do not call for further examination.
   • (d)That the Government is asked to indicate whether the 80 employees from whom it had been proposed to deduct between two and five days' pay in July 1988, allegedly on account of their refusal to discharge functions assigned to them, had subsequently lost leave entitlements equivalent to the days in respect of which it had been proposed to make these deductions. It is also asked to provide more detailed information as to the legal proceedings which had been initiated by certain workers in relation to this matter.
   • (e)That the Government is asked to provide details as to: (i) the final outcome of the disciplinary proceedings against Messrs. Rao, Bairagi, Satpathi and Parida; and (ii) whether these employees were entitled to be paid during the period of their suspension.
   • (f)That the Government is asked to ensure that workers who organised or participated in apparently lawful industrial action on 29 February and 20 April 1988 are not subjected to penal or other sanctions by virtue of that fact.
   • (g)That the Government is asked to supply information as to: (i) the final outcome of the High Court action initiated by the Parida Executive, and subsequently remitted to the Subordinate Judge at Talcher; and (ii) whether there is a continuing dispute as to the leadership of the HWPEU.