Rapport définitif - Rapport No. 14, 1954

Cas no 88 (France) - Date de la plainte: 01-NOV. -53 - Clos

A. A. The complainants' allegations

1. 18. The complainant alleges that the French Sudan Postal Administration ordered the transfer to French Guinea of Mr. Abdoulaye Diallo, a postal employee and a Vice-President of the World Federation of Trade Unions, in order to prevent him from carrying out his trade union functions. As he refused to comply with this anti-union order, he was dismissed.
2. 19. In November 1953 the complaint was submitted for opinion to the Committee, which recommended the Governing Body to decide that it should be communicated to the French Government for its observations. The Governing Body approved this recommendation at its 123rd Session (November 1953) and, accordingly, the Director-General communicated the complaint to the French Government by letter dated 4 December 1953.
   • ANALYSIS OF THE REPLIES
3. 20. In its reply dated 1 March 1954 the Government stated that Mr. Abdoulaye Diallo was dismissed on 3 March 1950, in accordance with the laws and decrees regulating the conditions of service of public officials, following his refusal to take up his new duties. He appealed against this decision to the Council of State, the administrative tribunal which is competent to hear appeals by officials against administrative decisions which are applied to them.
4. 21. Mr. Abdoulaye Diallo having appealed against the decision affecting him to a national tribunal, the Committee considered, at its Eighth Session (March 1954), that it should not formulate a recommendation at that stage and requested the Director-General to ask the French Government to furnish information in due course as to the decision of the Council of State. The Director-General conveyed this request to the French Government by a letter dated 20 March 1954.
5. 22. In its reply, dated 16 October 1954, the Government states that Mr. Abdoulaye Diallo was granted special leave at his own request and was then taken back into service and placed at the disposal of the Governor of Dahomey as from 1 July 1949. The Government points out that this transfer was occasioned solely by the exigencies of the service and in no way implied any intention on the part of the Administration to impede the trade union functions performed by Mr. Abdoulaye Diallo. He next asked for three months' leave of absence before taking up his post in Dahomey and the request was granted. He then left for Paris, without any administrative authorisation to do so, and there presented a request to be placed on half-pay on 10 September 1949. This request could not be granted because of the specialised personnel requirements of the Postal and Telecommunications Service. Mr. Abdoulaye Diallo was informed of this decision by letter, when it was also pointed out to him that, having regard to the trade union duties which had caused him to go to Paris, his situation from the administrative point of view between the date of expiry of his leave and his resumption of duty which he was asked to effect as quickly as he could, would be considered with as much leniency as possible.
6. 23. In its reply, the Government adds that, despite this correspondence, Mr. Abdoulaye Diallo did not take up his post and did not return to French West Africa until January 1950. Even then, however, the local Administration, disregarding this long delay, expressed its readiness to take the person concerned back into service, and, on 24 January 1950, notified him officially of the two administrative decisions relating, respectively, to the rejection of his request to be placed on half-pay and to his transfer to Dahomey. In a letter dated 25 January 1950 Mr. Abdoulaye Diallo informed the Administration that he maintained his request and, without waiting for a reply, he left Bamako on 31 January for the United States.
7. 24. In these circumstances, Mr. Abdoulaye Diallo was dismissed on 3 March 1950 pursuant to article 20 of the Decree of 6 December 1944 governing the general status of ordinary officials of the secondary category in French West Africa. This text provides:
   • Officials who have abandoned a service without due permission or leave and those who, without valid health reasons, have not, on expiry of a period on leave or on half-pay, resumed their duties or complied with a duly ordered transfer, may, after being called upon as provided to assume their duties, be dismissed without any of the formalities prescribed in the case of disciplinary sanctions.
8. 25. Finally, the Government states that Mr. Abdoulaye Diallo's appeals were rejected by decision of the Administrative Disputes Council for French West Africa, that he allowed his appeal to the Council of State to lapse and that, accordingly, the decision of the Disputes Council is final.
9. 26. In conclusion, the Government once more categorically denies the allegation made by the complainant that the transfer of Mr. Abdoulaye Diallo to Dahomey was intended to prevent him carrying out his trade union duties and affirms that the decision to transfer him was taken solely in service interests.

B. B. The Committee's conclusions

1. 27. The Committee decided previously to adjourn its examination of the case in accordance with the practice it has established, where a case is pending before an independent national tribunal the procedure of which offers appropriate guarantees and the Committee considers that the decision of that tribunal is likely to provide it with further information, of postponing its consideration of such case for a reasonable period until the decision is known, if no further prejudice will be caused by such delay to the party whose rights are alleged to have been infringed. It would appear that, Mr. Abdoulaye Diallo having allowed his appeal to the Council of State to lapse, the decision of the Administrative Disputes Council for French West Africa is now final. The Committee, therefore, now considers it appropriate to proceed with the case.
2. 28. It appears from the Government's reply that the Administration acceded to the request of the person concerned on each occasion that the exigencies of the service made it possible for it to do so. Hence, it would seem that it rather facilitated than impeded the performance of his trade union functions. The Administration even seems to have regarded these functions as constituting a mitigating circumstance with respect to the unjustified absence of its official, because it stated, in the letters which it sent to him, that " having regard to the trade union duties which had caused him to go to Paris, his situation from the administrative point of view between 6 October 1949, the date of expiry of his leave, and his resumption of duty, which he was asked to effect as quickly as he could, would be considered with as much leniency as possible ".
3. 29. The Administration having on several occasions acted with indulgence towards the person concerned, the measure which was finally taken in his case pursuant to article 20 of the Decree of 6 December 1944 respecting the general status of ordinary officials of the secondary category in French West Africa would, therefore, appear to have been justified.
4. 30. Finally, it has to be remembered that the Administrative Disputes Council for French West Africa rejected the appeals presented by the person concerned and that the latter allowed his further appeal to the Council of State, the supreme instance for hearing appeals against administrative decisions, to lapse. While the Committee, in view of the nature of its responsibilities, cannot consider itself bound by any rule that national procedures of redress must be exhausted such as applies, for instance, to international claims tribunals, it must have regard in examining the merits of a case such as the present case to the fact that a national remedy before an independent tribunal whose procedure offers appropriate guarantee has not been pursued.

The Committee's recommendations

1. 31. For all these reasons the Committee recommends the Governing Body to decide that the case does not call for further examination.