Informe provisional - Informe núm. 332, Noviembre 2003

Caso núm. 2228 (India) - Fecha de presentación de la queja:: 30-OCT-02 - Cerrado

Allegations: The complainant alleges acts of anti-union discrimination including dismissals, the suppression of a strike by the police and refusal to negotiate in the Worldwide Diamond Manufacturers Ltd. which is situated in the EPZ of Visakhapatnam in the state of Andhra Pradesh

1. 730. The Committee examined this case at its May-June 2003 meeting [see 331st Report, paras. 448-472, approved by the Governing Body at its 287th Session (June 2003)].
2. 731. 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. Previous examination of the case

1. 732. In its previous examination of the case in June 2003, the Committee made the following recommendations [see 331st Report, para. 472]:
   • (a) The Committee requests the Government to transmit sufficiently detailed information on the conditions under which trade unionists were allegedly dismissed, and on allegations that a trade union officer was arrested, meetings in the complainant’s local office were prohibited and striking workers were threatened by the police during and after the strike staged at the Worldwide Diamonds Manufacturing Ltd. in the EPZ of Visakhapatnam concerning the workers who have been dismissed, suspended or fined and to confirm whether there have been restrictions of their trade union rights.
   • (b) The Committee requests the complainant to provide more specific information concerning allegations of anti-union discrimination in the EPZ of Visakhapatnam concerning the workers who have been dismissed, suspended or fined and to confirm whether there have been restrictions of their trade union rights.
   • (c) The Committee requests the Government to take all necessary measures as soon as possible with a view to reaching a settlement of the current dispute through collective bargaining and to keep it informed in this respect.
   • (d) The Committee requests the Government to take all necessary measures as soon as possible with a view to promoting a settlement of all disputes and grievances in this case through inexpensive, expeditious and impartial conciliation procedures and to keep it informed in this respect.
   • (e) The Committee requests the Government to review the situation where the two functions of Deputy Development Commissioner and Grievance Redressal Officer are performed by the same person and to indicate whether access to justice continues to depend on the permission of the competent labour authorities. If this is the case, the Committee requests the Government to amend the legislation so that no such permission is required. The Committee requests to be kept informed in this respect.

B. The Government’s new observations

1. 733. In a communication dated 5 August 2003, the Government states that the appropriate government in respect of the subject concerning this complaint is the provincial government of Andhra Pradesh. The Government further states that as informed by the government of Andhra Pradesh, the Development Commissioner vested with the powers of Commissioner of Labour in Export Processing Zones submitted a detailed report on 29 May 2003 on the issues raised in the complaint. The Government attaches a copy of the report and further notes that the recommendations as contained in the 331st Report of the Committee on Freedom of Association have been forwarded to the Government of Andhra Pradesh for a reply which will be communicated to the ILO as soon as it is received.
2. 734. In a report dated 29 May 2003, the Development Commissioner clarifies that the company in question is divided into two units named Worldwide Diamond Manufacturers Ltd. and LID Jewellery (India) Private Ltd. The Development Commissioner reports that specific allegations of discrimination against individual workers have been thoroughly verified and it has been ascertained that action taken against these individuals is based on the merits of each case and that there has been no discrimination. Moreover, the workers are free to approach “appropriate authorities” (quotations original) with their grievances. In addition to this, the reasons mentioned for imposing fines are false and far from the truth. Furthermore, the Development Commissioner reports that there is no ban on workers forming into a trade union in accordance with the law. The Visakhapatnam EPZ (VEPZ) (hereinafter VEPZ) administration is not the registering authority of a trade union and does not in any way interfere with the unionization of the workers.
3. 735. With regard to the absence of grievance redressal mechanisms, the Commissioner states that the union had to that day not furnished a list of the office bearers while the management had been attending all the meetings conducted by the local labour authorities. The Development Commissioner further states that it is wrong and untrue to say that the administration did not take action to resolve the dispute. In fact, the VEPZ administration took action immediately after hearing about the strike by workers. A meeting was convened with the workers’ representatives to negotiate a solution. Discussions were also held with the management and local labour authorities. Some of the workers stopped the vehicles transporting certain officers of the Ministry of Commerce, Development Commissioners of other Export Processing Zones and other officers to the VEPZ and staged a “dharna”. When repeated requests to allow free passage failed, looking at the mood of the workers, fearing safety to public servants the local police were requisitioned. As a precautionary measure to avoid any loss or damage to Government property, the police “clamped” section 144 of the Code of Criminal Procedure in the vicinity of VEPZ. The Commissioner further states that according to the information available to the VEPZ, the workers called off the strike voluntarily and unconditionally and he is not aware of any kind of assurance given by any of the persons mentioned in the complaint.
4. 736. As to allegations of anti-union dismissals following the strike, the Commissioner reports that the management of Worldwide Diamonds Ltd. was questioned on the issue of unfair dismissals and stated that they had never resorted to illegal termination or forced any worker to resign. Finally, with regard to the allegations of the dismissal of Mr. Sudhakar one month after his participation in the strike, the Commissioner states that he was a trainee and, since his performance was not up to standard, his traineeship was discontinued. The Development Commissioner provides further information with regard to two other workers the names of whom were not on the list provided by the complainants. One of them, Ms. Vijaya Velangini, had resigned on health grounds and after her health improved, she was re-employed on her request. The other, Mr. Immunall, was caught leaving with company property.
5. 737. The Development Commissioner provides further information on certain allegations by the complainant concerning conditions of work, which are allegedly not in conformity with the applicable labour law, and abusive management practices (note: these allegations, which had constituted the basis for staging a strike, had not been retained during the initial examination of the complaint as they did not directly concern freedom of association issues).

C. The Committee’s conclusions

1. 738. The Committee recalls that this case concerns allegations of acts of anti-union discrimination including dismissals, the suppression of a strike by the police and refusal to negotiate in the Worldwide Diamond Manufacturers Ltd., which is situated in the EPZ of Visakhapatnam in the state of Andhra Pradesh. The Committee takes note of the clarification provided by the Government that the company in question is divided into two units named Worldwide Diamond Manufacturers Ltd. and LID Jewellery (India) Private Ltd.
2. 739. During the previous examination of the case, the Committee had requested the complainant and the Government to provide sufficiently detailed information concerning the allegations related to workers who had been dismissed, suspended or fined and to confirm whether there had been restrictions of trade union rights [see above para. 3, recommendations (a) and (b)]. The Committee recalls in particular that the complainant had alleged that the management of Worldwide Diamond Manufacturers Ltd. had dismissed two workers for being active in the union (Aruna and Vijaya), had suspended one for trade union activities (Neelakanteswara Rao) and had imposed arbitrary fines on 22 others for trade union activities (R.T. Santosh, Praveen, Babu Khan, Srinu, Ravi, Babu Rao, Sita Rama Raju, Raju, Nooka Raju, Kalyani, Aruna, N. Sailaja, Girija, Neeraja, Chandram, Veerraju, T. Lakshmi Kanta, P. Govinda Raju, P. Manga Raju, Subba Raju, Rajeswari, Krishna) [see 331st Report, para. 452].
3. 740. The Committee notes that in its response, the Government attaches a report by the Development Commissioner of the VEPZ which had been prepared before the last examination of this case. The Committee takes note of the Development Commissioner’s statement that there is no ban on the right of workers to establish trade unions in accordance with the law since the VEPZ administration is not the registering authority of a trade union and does not in any way interfere with the right of workers to establish trade unions. The Committee further notes that the Development Commissioner affirms that allegations of discrimination against individual workers have been thoroughly verified and it has been ascertained that action taken against these individuals is based on the merits of each case without discrimination. Moreover, the Commissioner states that the reasons alleged for imposing fines are false and untrue. The Committee observes that the Development Commissioner’s conclusions concerning alleged acts of anti-union discrimination are very general and totally contradict the complainant’s allegations, without providing any indication on the concrete facts which led to these sanctions, and thereby preventing the Committee from determining whether these measures had an anti-union purpose or not. The Committee requests the Government to take all necessary steps urgently in order to ensure that an independent and thorough investigation, with the cooperation of the complainant organization, is carried out on the concrete facts which motivated the alleged workers’ dismissals, suspensions and fines in Worldwide Diamonds Manufacturers Ltd. and if it is found that these measures were by reason of workers’ trade union activities, to take all necessary steps to reinstate the dismissed workers and compensate those who were suspended or fined. The Committee requests to be kept informed of developments in this respect.
4. 741. With regard to additional dismissals which allegedly took place later on, in the context of a strike in Worldwide Diamonds Manufacturers Ltd., the Committee notes that during the previous examination of the case, it had requested the Government to transmit sufficiently detailed information on the conditions under which trade unionists were allegedly dismissed during and after the strike [see above para. 3, recommendation (a)]. In particular, it had been alleged that termination letters were sent to eight workers during the strike (G. Sony, Srinivasa Rao, Ganesh Reddy, Nagapaidi Raju, D.V. Sekhar, Ramesh Kumar, Rajaratnam Naidu and Prasad) and that another seven workers were dismissed after the strike, on 25 March 2002 (K. Sudhakar Rao, Ch. Hemalatha, P.U. Kishore Reddy, T. Guru Murthy, G.V. Raju Kumar, K.R.A.S. Varma and I. Kanaka Raju) despite assurances that workers would not be victimized as a result of their participation in the strike [see 331st Report, paras. 455-56].
5. 742. The Committee takes note of the information provided by the Development Commissioner with respect to the dismissal of one of the above workers (Mr. Sudhakar), on grounds of poor performance during his traineeship. With regard to the other 14 persons dismissed during and after the strike, the Committee observes that according to the Commissioner, the management of Worldwide Diamonds Manufacturers Ltd. stated that they had never resorted to illegal termination or forced any worker to resign. The Committee points out that this statement does not sufficiently indicate whether the dismissals which took place had anti-union purposes and does not specify the concrete facts which motivated them. The Committee wishes to emphasize moreover, that the response to allegations of anti-union discrimination in this case should not be confined to reproducing the reply of the accused party without any concrete supporting evidence or official investigation. The Committee requests the Government to take all necessary steps urgently in order to ensure that an independent and thorough investigation, with the cooperation of the complainant organization, is carried out on the concrete facts which motivated the alleged dismissals of 14 persons during and after the strike staged at Worldwide Diamonds Manufacturers Ltd. and, if it is found that the dismissals were on anti-union grounds, to take all necessary steps to have the workers reinstated without loss of pay. The Committee requests to be kept informed of developments in this respect.
6. 743. The Committee further notes from the Development Commissioner’s report, that according to the information available to the VEPZ, the workers called off the strike voluntarily and unconditionally and the Development Commissioner is not aware of any kind of assurance against reprisals given by any of the persons mentioned in the complaint. The Committee wishes to stress however that according to the allegations, the assurances were provided not by the VEPZ administration but by the Minister for Heavy Industries, the District Collector and the Commissioner of Police [see 331st Report, para. 455]. The Committee requests the Government to undertake consultations urgently with the Minister for Heavy Industries, the District Collector and the Commissioner of Police with a view to ensuring that any assurances which might have been given to the workers of Worldwide Diamonds Manufacturers Ltd. to the effect that they would not be victimized by reason of their participation in a strike are fully observed in practice.
7. 744. With regard to the same strike, the Committee had also requested the Government to provide sufficiently detailed information on the conditions under which one trade union officer was arrested, meetings in the complainant’s local office were prohibited and striking workers were threatened by the police [see above para. 3, recommendation (a)]. The Committee recalls that the complainant had alleged that a peaceful strike had been brutally suppressed by the VEPZ administration and the police, that instead of taking steps to resolve the issue through discussions, the administration had chosen to terrorize the workers through arrests, illegal detention in police stations and prohibiting public meetings in an area up to 20 km from the VEPZ, and that meetings in the local CITU office were not permitted, hundreds of workers were arrested and detained, including one of the national secretaries of the CITU as she was walking out of the CITU local office, one worker was chained while in custody, workers and their leaders were brutally caned by the police and a reign of terror was unleashed, while the police went to the houses of individual workers and threatened them so that they returned to work [see 331st Report, para. 454].
8. 745. In this respect, the Committee notes that the Government has not provided any new information, and that the Development Commissioner’s report reiterates the information already examined by the Committee at its June 2003 meeting [see 331st Report, para. 463]. In particular, the Development Commissioner states in his report that: (1) Some of the workers stopped the vehicles of officers of the Ministry of Commerce and Development Commissioners of other Export Processing Zones when they were on their way to the VEPZ and staged a “dharna” (protest-blockade) in the framework of their strike. (2) When repeated requests to allow free passage failed, and considering that the mood of the workers posed a threat to the safety of public servants, the local police were called in. (3) As a precautionary measure to avoid any loss or damage to government property, the police applied section 144 of the Code of Criminal Practice in order to isolate the vicinity of the VEPZ.
9. 746. The Committee notes that the information provided with regard to the suppression of a protest-blockade held in the framework of a strike staged in Worldwide Diamonds Manufacturers Ltd., is very general and does not address the specific allegations made by the complainant. The Committee therefore requests the Government to take all necessary steps urgently in order to ensure that an independent and thorough investigation, with the cooperation of the complainant organization, is carried out on allegations concerning the brutal suppression of the strike, the detention of hundreds of striking workers and a trade union officer by the police, the prohibition of meetings in the complainant’s local office, excessive police violence (caning and chaining of workers), and the visit of police officers to workers’ homes in order to threaten them so that they return to work. The Committee requests to be kept informed of the outcome of this investigation so as to fully clarify the facts, and if the allegations are confirmed, determine responsibility, punish those responsible and prevent the repetition of such acts.
10. 747. With regard to the resolution of the dispute which gave rise to the strike, the Committee had requested the Government to take all necessary measures as soon as possible with a view to reaching a settlement through collective bargaining or inexpensive, expeditious and impartial conciliation procedures [see above para. 3, recommendations (c) and (d)]. The Committee recalls that the complainant had alleged that in general, there was no appropriate mechanism in the VEPZ for the redressal of grievances and that in particular with regard to the strike, no steps had been taken to resolve the issue by holding discussions, thereby encouraging the management to refuse to talk to the representatives of the workers [see 331st Report, paras. 451 and 454]. The Committee notes that in response to these allegations, the Development Commissioner states that the workers whose names are mentioned in the complaint are free to approach “appropriate authorities” with their grievances (quotations in the original) without specifying exactly which authorities are referred to. The Committee also notes that according to the Development Commissioner, the union has not furnished the necessary list of officers while the management has been attending all the meetings conducted by the local labour authorities. Furthermore, the Development Commissioner states that the VEPZ administration took action immediately after hearing about the strike, convened a meeting with the workers’ representatives to negotiate a solution and held discussions with the management and local labour authorities. The Committee observes that there is no indication of the results of the meeting or any follow-up to such results after the end of the strike. The Committee requests the Government to provide information on the actual situation with regard to the dispute in Worldwide Diamonds Manufacturers Ltd. and of any settlement in this respect. The Committee requests to be kept informed of developments concerning such settlement.
11. 748. The Committee recalls that in its previous conclusions it had noted that there could be incompatibility between the two functions of Deputy Development Commissioner and Grievance Redressal Officer when performed by the same person and had requested the Government to review this situation [see above para. 3, recommendation (e), and 331st Report, para. 470]. The Committee notes that the Government has not provided any information in this respect. The Committee emphasizes that the Deputy Development Commissioner should not perform the functions of Grievance Redressal Officer since mechanisms for the redressal of grievances should be independent and have the confidence of all parties. The Committee requests the Government to take all necessary steps so as to ensure that the functions of Grievance Redressal Officer (GRO) are not performed by the Deputy Development Commissioner (DDC) in the VEPZ (currently the GRO and the DDC are the same person) but by another independent person or body, having the confidence of all parties and to keep it informed in this respect.
12. 749. The Committee had finally requested the Government to indicate whether access to justice continues to depend on the permission of the competent labour authorities and if this is the case, amend the legislation so that no such permission is required [see above para 3, recommendation (e)]. The Committee notes that the Government has not provided any information on this point. The Committee requests the Government to ensure that no permission by the labour authorities is required for trade unions to have access to justice, and if necessary, to amend the legislation accordingly. The Committee requests to be kept informed of developments in this respect.
13. 750. The Committee hopes that the forthcoming report by the provincial government of Andhra Pradesh, mentioned by the Government in its communication, will fully address all the points raised above.

The Committee's recommendations

1. 751. In the light of its foregoing interim conclusions, the Committee requests the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take all necessary steps urgently in order to ensure that an independent and thorough investigation, with the cooperation of the complainant organization, is carried out on the following:
   • (i) The concrete facts which motivated the alleged workers’ dismissals, suspensions and fines in Worldwide Diamonds Manufacturers Ltd. If it is found that these measures were by reason of workers’ trade union activities, the Committee requests the Government to take all necessary steps to reinstate the dismissed workers and compensate those who were suspended or fined. The Committee requests to be kept informed in this respect.
   • (ii) The concrete facts which motivated the alleged dismissals of 14 persons during and after the strike staged at Worldwide Diamonds Manufacturers Ltd. If it is found that the dismissals were on anti-union grounds, the Committee requests the Government to take all necessary steps to have the workers reinstated without loss of pay. The Committee requests to be kept informed of developments in this respect.
   • (iii) The allegations concerning the brutal suppression of the strike, the detention of hundreds of striking workers and a trade union officer by the police, the prohibition of meetings in the complainant’s local office, excessive police violence (caning and chaining of workers), and the visit of police officers to workers’ homes in order to threaten them so that they return to work. The Committee requests to be kept informed of the outcome of this investigation so as to fully clarify the facts, and if the allegations are confirmed, determine responsibility, punish those responsible and prevent the repetition of such acts.
   • (b) The Committee requests the Government to undertake consultations urgently with the Minister for Heavy Industries, the District Collector and the Commissioner of Police with a view to ensuring that any assurances which might have been given to the workers of Worldwide Diamonds Manufacturers Ltd. to the effect that they would not be victimized by reason of their participation in a strike, are fully observed in practice.
   • (c) The Committee requests the Government to provide information on the actual situation with regard to negotiations in Worldwide Diamond Manufacturers Ltd., and any settlement in this respect. The Committee requests to be kept informed of developments concerning such settlement.
   • (d) The Committee requests the Government to take all necessary steps so as to ensure that the functions of Grievance Redressal Officer (GRO) are not performed by the Deputy Development Commissioner (DDC) in the EPZ of Visakhapatnam (currently the GRO and the DDC are the same person) but by another independent person or body, having the confidence of all parties and to keep it informed in this respect.
   • (e) The Committee requests the Government to ensure that no permission by the labour authorities is required for trade unions to have access to justice, and if necessary, to amend the legislation accordingly. The Committee requests to be kept informed of developments in this respect.
   • (f) The Committee hopes that the forthcoming report by the provincial government of Andhra Pradesh mentioned by the Government in its communication, will fully address all the points raised above.