Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 283, Junio 1992

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

1. 76. The Committee examined this case at its meetings in May 1990 and May 1991, on which occasions it submitted interim conclusions to the Governing Body. (272nd Report, paras. 355-388 and 278th Report, paras. 259-286, approved by the Governing Body at its 246th and 250th Sessions respectively.) The Government sent further observations in communications dated 5 June 1991 and 11 February 1992.
2. 77. 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. 78. The complaint originally submitted in this case related to: (i) interference by the management of the Heavy Water Plant and the state Government of Orissa in the internal affairs of the Heavy Water Project Employees' Union (HWPEU), which is affiliated to the complainant organisation; (ii) arbitrary arrests, suspension and other forms of harassment of trade union activists; and (iii) denial of the right of CITU affiliates to hold meetings between January and May 1988. The various aspects of the complaint originated in an intra-union dispute in which two rival groups within the HWPEU (the Parida Executive and the Bairagi Executive) each claimed to be the union's executive committee. After the Committee had examined the case on two occasions, in May 1990 and May 1991, the allegations which remained outstanding concerned: (i) the anti-union action taken by the management of the Heavy Water Plant and by the state Government of Orissa against a group of workers affiliated to the HWPEU; (ii) the ban on any union meetings from January to May 1988; and (iii) the various legal and administrative proceedings relating to the internal union dispute.
2. 79. The Government provided very detailed information on several aspects of the situation at the Heavy Water Plant and drew attention in particular to the provisions of the Industrial Disputes Act, 1947, which stipulates that interference in the activities of a trade union by management is an unfair labour practice and an offence punishable by up to six months' imprisonment or a fine of up to Rp.1,000, or both.
3. 80. At its May-June 1991 Session, the Governing Body approved the following recommendations inter alia:
   • - 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 Plant so as to enable the Committee to examine these allegations at its next meeting.
   • - 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.
   • - 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.
   • - 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.
   • - 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.
   • - 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.

B. Further information supplied by the Government

1. 81. In its letter of 5 June 1991 the Government comments on the latest allegations of the complainant organisation dated 20 August 1990.
2. 82. In the first place, as regards the complainant organisation's allegation that Mr. R.C. Nanda, former General Secretary of the Heavy Water Project Employees' Union, was falsely accused on 3 May 1989 of having refused to accept an official communication, the Government states that Mr. Nanda was advised in an official letter dated 26 April 1989 not to use the designation of HWPEU General Secretary in his correspondence, since, in accordance with the advice given by the Labour Commissioner, the management had recognised Mr. Bairagi as President and Mr. Rama Kanta Das as General Secretary of the union and was consulting them in labour matters. Mr. Nanda refused to accept this letter, and his refusal was witnessed by two officers of the Heavy Water Plant. As a refusal to accept a government communication is contrary to the discipline required of a government servant, a charge-sheet for a minor penalty was issued against Mr. Nanda on 3 May 1989. In a letter dated 8 May 1989 Mr. Nanda denied the charges against him. On the basis of the evidence of two officers of the Heavy Water Plant that he had refused to accept the communication, a penalty of censure was recorded in his personal file on 3 July 1989, without this in any way affecting his career prospects.
3. 83. As regards the petition signed by 210 employees of the Heavy Water Plant and submitted to the General Manager on 6 June 1989, protesting against the charge-sheet issued against Mr. Nanda, the Government states that the management simply warned the employees concerned that their conduct in making a joint representation was a violation of discipline as laid down in the Civil Service Conduct Rules.
4. 84. As regards the writ filed by the CITU union to challenge the decision of the Labour Commissioner declaring the Bairagi Executive as the executive of the union, the High Court of Orissa ruled in a judgement dated 25 August 1988 (attached) that it was for the Subordinate Judge at Talcher to rule on the complaint filed in the meantime by the Bairagi Executive and seeking a declaration that the election notice issued by the CITU affiliate was invalid and inoperative. This complaint was subsequently dismissed as the complainant had allowed the legal period for an appeal to elapse. The matter is therefore no longer before the courts.
5. 85. The Government observes that Mr. S.M. Pradhan, an executive committee member of the union, was issued a charge-sheet on 20 April 1990 for having been caught reading magazines during office hours on 10 April. Although he had already been warned for neglecting his duty in this way in the past, he continued to do so, which was why the management issued the charge-sheet against him. According to the Government, the matter has no connection with any union activity by the person concerned.
6. 86. As to the allegation that Mr. N.C. Parida, Vice-President of the union, had been simply waiting for the General Manager in the corridor near his office to discuss the letter of the Labour Commissioner, as authorised by the General Manager, when he was accused of organising a demonstration in the corridor, the Government states that in fact some of the employees were not happy with the decision of the Labour Commissioner according recognition to the Bairagi Executive and in protest had squatted in front of the General Manager's office. It adds that a charge-sheet was issued against the employees, including Mr. Parida, for having demonstrated without authorisation and thus having prevented the normal functioning of the service.
7. 87. Regarding the allegation that Mr. M.S. Sahu, driver and member of the executive committee of the union, had not been allowed to do his job and had been forced to take leave for six months even though a government doctor had certified his fitness, the Government states that Mr. Sahu had gone absent without warning from June to October 1989. He had subsequently produced a medical certificate from a medical officer of the sub-divisional hospital of Angul indicating that he was suffering from a peptic ulcer. Since his job as a driver involved long trips, it was necessary for him to ensure that he was fully fit to undertake the work. It was therefore thought necessary to refer him to the chief medical officer of Talcher, who advised that Mr. Sahu should be given only light duties and should not be engaged in strenuous work. Because of the shortage of staff, it was not possible to allot him light duties and his sick leave was therefore extended for a further period of six months. Mr. Sahu returned to work after he had been certified physically fit by a doctor.
8. 88. As regards the mass representation submitted to the General Manager on 24 December 1989, requesting that the officers of the union be elected by secret ballot, the Government states that it was not within the purview of the management's functions to conduct a union election. According to the law, only civil courts are empowered to settle intra-union disputes.
9. 89. Concerning the allegations that Mr. G.C. Satpathi, treasurer of the union, had been suspended since 1988 and yet had requested the regional Labour Commissioner's office to initiate conciliation proceedings, the Government states that, according to information received by the management, Mr. Satpathi had left the headquarters without permission from the appropriate authority, i.e. against the rules. He had therefore been asked to explain this lapse of professional conduct. As to the charge-sheet issued against him for having stopped a departmental vehicle on 27 April 1990 outside the gate of the Fertiliser Corporation of India Ltd., where a meeting was being held in the presence of the local police and the security forces and the police had stopped traffic for 25 minutes, the Government states that Mr. Satpathi stopped departmental vehicles outside the main gate when most of the officers of the plant were returning home after duty. He had been issued with a charge-sheet for his misbehaviour. Mr. Satpathi had further been warned for threatening the assistant accounts officer, Mr. Hari Krishnan. This was not a fabricated charge, as had been claimed. The Government attached a copy of Mr. Krishnan's written report concerning the threats and the complaint he had accordingly lodged. With regard to the allegation that Mr. Satpathi had not been authorised to meet the Chief Labour Commissioner in New Delhi or officials of the Department of Atomic Energy in Bombay to put forward his personal grievances, the Government states that Mr. Satpathi could have approached the office of the assistant Labour Commissioner or of the regional Labour Commissioner in Bhubaneswar or could have submitted his grievances in writing to the New Delhi office or to the Department of Atomic Energy in Bombay. The Ministry of Labour has advised the management of the plant that they should not impose any restriction on reasonable requests by employees to place their grievances before superior authorities or to meet appropriate statutory authorities in connection with industrial disputes.
10. 90. In a communication dated 11 February 1992 the Government supplied further information. On the subject of the intra-union rivalry which led to the refusal of permission to hold trade union meetings between January and May 1988, the Government of Orissa stated that the complaints lodged with various courts by two rival factions of the HWPEU in a bid to take control of the union had led to a tense situation, the apprehension of violence and to a serious breach of peace by members of the rival factions. In the circumstances, and in order to maintain public peace, tranquility and order, the Bikrampur police had decided to ban all public trade union meetings for the first half of 1988. The Government observes that the fact that two criminal cases for violation of sections 294, 341, 323 and 506 of the Penal Code (copy attached) by supporters of the rival factions of the trade union had been registered with the police station was evidence that the situation could be objectively assessed as justifying the apprehension of a breach of peace. The Government of Orissa added that the sub-divisional police officer of Talcher had specifically directed his staff not to violate the trade union rights of workers and to resort to legal proceedings only if necessary to maintain public peace and tranquility.
11. 91. Regarding the 80 employees from whom it had been proposed to deduct between two and five days' pay in July 1988 on account of their refusal to discharge functions assigned to them, the Government states that, according to information received from the Heavy Water Plant, 79 employees refused to discharge the duties assigned to them and on the basis of the principle "no work, no pay", the management did in fact deduct two to five days' pay in July 1988. However, on an undertaking of good conduct by the union, it was decided to grant the employees such leave as might be due to them and to regularise the period of absence. The amount deducted from their pay was refunded to 28 employees who applied for equivalent leave; 40 other employees instituted legal proceedings before the Central Administrative Tribunal of Cuttack, and the matter is sub judice. No disciplinary proceedings against the workers involved were initiated by the management on this issue.
12. 92. On the subject of the disciplinary proceedings against Mr. Rao and Mr. Bairagi, the Government observes that these officers filed applications before the Central Administrative Tribunal of Cuttack, which issued an interim order prohibiting the disciplinary authority from taking any final action without the leave of the Tribunal. The Government also states that, although the inquiry is over, no final order has been handed down on these cases. The suspension order affecting Mr. Rao and Mr. Bairagi has, however, been revoked and they have returned to duty. As regards Mr. Satpathi, the proceedings have been completed and final orders have been issued reducing his pay. As to Mr. Parida, the Government states that inquiry proceedings have been completed and that the disciplinary authority has forwarded a copy of the inquiry report to Mr. Parida for his written comments. As soon as a reply is received, the authority intends to take further action as provided under the rules. The suspension order affecting Mr. Parida has also been revoked and he too has returned to work. The Government adds that during their suspension the employees were paid a subsistence allowance at the rate of 75 per cent of their basic pay, plus allowances.
13. 93. With regard to the High Court action initiated by the Parida Executive and subsequently remitted to the Subordinate Judge at Talcher, the Government states in its communication of 11 February 1992 that, at the request of the plaintiff, the writ filed with the Subordinate Judge was withdrawn. The two rival union factions (the Parida Executive and the Bairagi Executive) thereafter filed separate writs with the High Court of Orissa claiming title to the executive of the union. However, they then came to an understanding and settled the matter out of court, and the High Court accordingly disposed of the two cases. The Government states that there is at present no legal dispute concerning the executive of the union.
14. 94. The Government concludes by observing that the attention of the Department of Atomic Energy has been drawn to the Committee's recommendation that the Government 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.

C. The Committee's conclusions

1. 95. The Committee notes that the Government has replied in great detail to the allegations that the management engaged in anti-union harassment against five named members of the Heavy Water Project Employees' Union: Mr. R.C. Nanda, Mr. S.M. Pradhan, Mr. N.C. Parida, Mr. M.S. Sahu and Mr. G.C. Satpathi. With regard to the disciplinary action taken against Mr. Rao and Mr. Bairagi, the Committee notes that their suspension has been revoked and that they have returned to work. In the case of Mr. Satpathi, the Committee observes that the proceedings have been completed. As to Mr. Parida, it notes that the competent authorities are to take a decision as soon as Mr. Parida has sent his written comments on the inquiry report, that his suspension has also been revoked and that he too has returned to work. The Committee notes further that these employees were paid a subsistence allowance during their suspension at the rate of 75 per cent of their basic pay plus allowances.
2. 96. It appears from the Government's reply that the various measures taken against these people - disciplinary action, the placing of a note of censure or warning in their personal file, six months' compulsory leave and summons to the office of the Labour Commissioner - all concerned events connected with their work such as non-respect of the Civil Service Conduct Rules, neglect of duty and medical opinions and not with their participation in trade union activities.
3. 97. However, the Committee noted in the Government's reply that the company had warned the workers that the filing of a petition was contrary to the Rules of Discipline established by the Civil Service Conduct Rules. The Committee must recall in this respect that the right of petition is a legitimate activity of trade union organisations and that persons who sign such trade union petitions should not be reprimanded or punished for this type of activity.
4. 98. The Committee notes that, according to the Government, the refusal of permission to hold trade union meetings between January and May 1988 was due to the climate of tension and violence that had resulted from the rivalry between the two union factions and was intended to maintain public peace and tranquility. The Committee notes that criminal cases dating back to the ban on trade union meetings were registered with the police and that the sub-divisional police officer of Talcher directed his staff not to violate the trade union rights of workers and to resort to legal proceedings only if necessary to maintain public peace and tranquility. While recognising the Government's responsibility as regards the maintenance of public order, the Committee recalls that the right of trade unions to hold meetings freely in their own premises for the discussion of trade union matters, without the need for previous authorisation and without interference by the public authorities, is a fundamental aspect of freedom of association. (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 142.)
5. 99. The Committee also notes the Government's comment that the management of the Heavy Water Plant did in fact deduct two to five days' pay from 79 employees in July 1988 on account of their refusal to discharge the duties assigned to them and that, on an undertaking of good conduct by the union, it was decided to grant the employees such leave as might be due to them and to regularise their period of absence. The Committee, noting that the deductions of pay were higher than the amount corresponding to the period of the strike, recalls that the imposition of sanctions for strike action is not conducive to harmonious labour relations. Noting that 40 employees who did not opt for such leave, and who were therefore not refunded the amount deducted from their pay, have instituted legal proceedings before the Central Administrative Tribunal of Cuttack, the Committee invites the Government to keep it informed of the outcome of these proceedings.
6. 100. The Committee notes the Government's reply concerning the High Court action initiated by the faction which had not been recognised (the Parida Executive) and challenging the recognition of the Bairagi Executive of the HWPEU. It would seem that, after the case had initially been remitted by the High Court back to the Judge of First Instance and subsequently annulled by the latter at the request of the Parida Executive, the final outcome - after separate writs had again been filed with the High Court by both factions - was a compromise between the factions. This compromise led to the annulment of all the writs and the settlement of the dispute over the executive committee of the HWPEU. In the light of this information and considering that the events date back to 1988, the Committee considers that this aspect of the case does not call for further examination.
7. 101. Finally, the Committee notes that the Government has drawn the attention of the Department of Atomic Energy to the Committee's recommendation that the Government ensure that workers who organised or participated in apparently lawful industrial action on 29 February and 20 April 1988 are not subject to penal or other sanctions by virtue of that fact. The Committee strongly hopes that these recommendations will be implemented rapidly by the Government and the relevant Department. It requests the Government to keep it informed of developments in this respect.

The Committee's recommendations

1. 102. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee recalls that the right of petition is a legitimate activity of trade union organisations and that persons who sign such trade union petitions should not be reprimanded or punished for this type of activity.
   • (b) The Committee draws the Government's attention to the principle that the right of trade unions to hold meetings freely in their own premises for the discussion of trade union matters, without the need for previous authorisation and without interference by the public authorities, is a fundamental aspect of freedom of association.
   • (c) The Committee, noting that the deductions of pay were higher than the amount corresponding to the period of the strike, recalls that the imposition of sanctions for strike action is not conducive to harmonious labour relations. The Committee invites the Government to keep it informed of the outcome of the legal proceedings instituted by the 40 employees of the Heavy Water Plant who suffered pay deductions for refusal to discharge the duties assigned to them and who, not wishing to replace this loss of pay by days of leave, lodged an appeal with the Central Administrative Tribunal of Cuttack.
   • (d) The Committee strongly hopes that its previous recommendation, inviting the Government to ensure that workers having organised or participated in apparently lawful industrial action should not be subject to penal or other sanctions, will be implemented rapidly by the Government and the Department of Atomic Energy. It requests the Government to keep it informed of developments in this respect.