Rapport intérimaire - Rapport No. 331, Juin 2003

Cas no 2228 (Inde) - Date de la plainte: 30-OCT. -02 - Clos

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

1. 448. The complaint is contained in a communication from the Centre of Indian Trade Unions (CITU) dated 30 October 2002.
2. 449. The Government sent its observations in communications dated 10 and 27 January 2003.
3. 450. 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. The complainant’s allegations

1. 451. In its communication dated 30 October 2002 the Centre of Indian Trade Unions (CITU) alleges various acts of anti-union discrimination against the “Visakhapatnam Export Processing Workers’ Union”, a CITU affiliate, established in the Visakhapatnam Export Processing Zone (VEPZ) in the state of Andhra Pradesh. According to the complainant, although trade unions are generally not banned in EPZs in India, trade union activities are not allowed in the VEPZ and the Development Commissioner, who is the authority responsible for the VEPZ, has personally warned the workers that they might lose their jobs if they join any trade union. According to the complainant, there is no grievance redressal mechanism for the workers and their services are immediately terminated if they are suspected of participating in any trade union activity.
2. 452. The complainant alleges moreover that the management of the Worldwide Diamonds Manufacturing Ltd., a company located in the VEPZ, refuses to talk to the union and has also committed various acts of anti-union discrimination. In particular, two workers were illegally terminated for being active in the union (Aruna and Vijaya), one worker was suspended for trade union activities (Neelakanteswara Rao) and arbitrary fines were imposed upon 22 others, ranging from Rs.100-700, 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).
3. 453. The complainant states that all the 350 workers of one unit of Worldwide Diamonds Manufacturing Ltd. (which is divided in two units) went on strike on 9 January 2002. The 850 workers of the second unit joined them on 17 January 2002. The strike was staged in protest for conditions of work which are not in conformity with the applicable labour law especially in the area of wages, and for allegedly abusive management practices.
4. 454. The complainant claims that initially, the managing director of the company tried to coerce the workers to withdraw the strike unconditionally and abused them verbally. It is alleged that pursuant to this, the peaceful strike of the workers was brutally suppressed by the EPZ administration and the police. Instead of taking steps to resolve the issue by holding discussions, the administration chose to terrorize the workers who were peacefully agitating in their demands through arrests, illegal detention in police stations and prohibiting workers from gathering in an area up to 20 km from the VEPZ. Meetings in the local CITU office were not permitted. Hundreds of workers were arrested and detained, including one of the national secretaries of CITU who was arrested as she was walking out of the CITU local office after having addressed a trade union meeting. One worker was chained while in custody at the police station. Workers and their leaders were brutally caned by the police and a reign of terror was unleashed by the administration. The CITU also alleges that the police went to the houses of individual workers and threatened them so that they return to work. Encouraged by the attitude of the administration, the management refused to talk to the representatives of the workers.
5. 455. According to the complainant, the strike finally ended on 18 February 2002, on assurances provided by the Minister for Heavy Industries, the District Collector and the Commissioner of Police that they would ensure respect for workers’ rights as provided for in Indian law, including the right to collective bargaining, and that there would be no victimization of workers for having staged a strike. However, the complainant states that the management has since refused to talk to the union. The complainant reiterates these claims in a letter attached to the complaint, dated 4 April 2002 and addressed to the Minister for Heavy Industries. The complainant also brings these allegations to the attention of the Chief Justice of the Supreme Court of India in a letter dated 4 July 2002, which is also attached to the complaint. In the letter, the complainant requests the Chief Justice to consider its appeal and states that VEPZ workers have no alternative remedy to redress these grievances except to ask the Chief Justice for protection.
6. 456. The complainant alleges further acts of anti-union discrimination in relation to the strike. According to the complainant, 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). A further seven workers were dismissed after the strike, on 25 March 2002, because of their trade union activities (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 the abovementioned assurances. The complainant makes this last allegation in a letter attached to the complaint, dated 7 May 2002 and addressed to the Deputy Commissioner of Labour.
7. 457. The complainant finally states that conditions are similar in the seven EPZs of the country and that attacks on the workers have been increasing.

B. The Government’s reply

1. 458. In its communications dated 10 and 27 January 2003, the Government forwards the views of the provincial government of Andhra Pradesh which conducted an inquiry on the allegations. The provincial government states that in general, workers in the EPZs have the right to join trade unions and to bargain collectively and rejects as untrue the allegations that there are restrictions on trade union activities in the VEPZ and that the Development Commissioner warned the workers that they may lose their jobs if they join any trade union.
2. 459. The provincial government states that EPZs are governed by the labour laws and rules applicable to the industrial workers in general like the Trade Union Act, 1926 an the Industrial Disputes Act, 1947. The VEPZ administration is entrusted with ensuring the implementation of labour laws in the VEPZ. The Office of the Development Commissioner has constituted a Grievance Redressal Committee with a senior officer, the Deputy Development Commissioner, designated as Grievances Redressal Officer. Much before the commencement of a strike in the VEPZ, the grievances of the employees have been settled by the Grievance Redressal Committee. Furthermore, for the convenience of the workers, suggestion boxes have been kept at prominent places frequently visited by workers so that they can drop their written complaints there. Periodical inspections take place by a joint team comprising labour departments at the provincial level, the central Government’s Labour Ministry and the representatives of trade unions of the EPZs.
3. 460. With regard to allegations of anti-union discrimination, the Government notes that the list of workers who were allegedly suspended, dismissed or fined for trade union activities was verified with the management of Worldwide Diamond Manufacturing Ltd. on a case-by-case basis and it was found that the reasons for suspension were indiscipline, irregularity and failure to learn.
4. 461. The Government states that while the workers’ grievances were being taken up with the management of Worldwide Diamonds Manufacturing Ltd. by the Office of the Development Commissioner, the workers went on a flash strike from 9 January 2002 in spite of being advised that any strike without notice would be considered as illegal as the VEPZ has “public utility” status. The Government specifies that if any establishment is declared a public utility for the purposes of the Industrial Disputes Act, 1947, this does not restrict workers’ rights. It only requires that 15 days prior notice is given before going on strike which ensures that there is adequate time for conciliation/mediation, etc. before the actual strike takes place.
5. 462. The provincial government reports that after the strike started, the managing director of the company tried to convince the workers to come back to work without abusing them and that the circle inspector and the sub-inspector of police were witness to the scene.
6. 463. With regard to the alleged suppression of the strike by the police, the Government notes that the local police was called upon to disperse a mob which prevented senior officials like the Additional Secretary to the Government of India, Ministry of Commerce and Industry, and the Development Commissioners of all Export Promotion Zones (EPZs) of India, including the Development Commissioner, VEPZ, to attend a board meeting at the VEPZ on 10 January 2002. Subsequently, precautionary measures were taken, including the isolation of the vicinity of the VEPZ, in accordance with section 144 of the Indian Penal Code, in order to maintain law and order and to ensure safety and security of public property.
7. 464. According to the provincial government, some issues highlighted by the complainant could have otherwise been resolved through dialogue without calling for a strike. Small misunderstandings between the management and the workers do occur when an industry is growing and the fact that all the striking workers resumed their duties voluntarily and unconditionally indicates that “they have realized their mistakes”. The Government has, however, advised the management to improve their relationship with the workers so that such incidents can be avoided in the future.
8. 465. The Government further states that the provincial government instructed a team consisting of the District Collector, Visakhapatnam, the Development Commissioner, Visakhapatnam EPZ and the Joint Commissioner of Labour, Visakhapatnam, to once again inspect the VEPZ to ensure that the labour laws are properly implemented and that once the inspection report is received, it will be sent to the Committee.

C. The Committee’s conclusions

1. 466. The Committee observes that this case concerns allegations of acts of anti-union discrimination including dismissals, the lack of grievance redressal mechanisms, the suppression of a strike by the police, and refusal to negotiate in the Worldwide Diamond Manufacturing Ltd. which is situated in the EPZ of Visakhapatnam (VEPZ) in the state of Andhra Pradesh.
2. 467. The Committee is faced with a lack of information or a conflict of evidence with respect to several allegations concerning the strike staged from 9 January to 18 February 2002 in protest for conditions of work allegedly not in conformity with the applicable labour laws and for abusive management practices. The Committee notes that whereas the complainant alleges that the administration and the police terrorized the workers who were peacefully on strike, the Government rejects these allegations stating that the local police was called upon to disperse a mob which prevented senior officials from visiting the VEPZ and had to adopt measures to isolate the vicinity of the VEPZ. The Committee notes that the Government does not provide specific information on the alleged arrest of a trade union officer who was walking out of a trade union meeting and the prohibition of meetings in the complainant’s local office, as well as allegations that striking workers were threatened by the police at home. The Committee also notes that the Government has not responded to allegations concerning the communication of termination notices to eight workers during the strike and the dismissal of another seven workers after the strike. Finally, the Committee notes that the complainant and the Government disagree as to the conditions under which the strike was initiated and ended. The Committee requests the Government to transmit sufficiently detailed information 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 as well as the conditions under which trade unionists were allegedly dismissed during and after the strike staged at the Worldwide Diamond Manufacturing Ltd. in the VEPZ.
3. 468. With regard to other allegations of anti-union discrimination, the Committee takes note of the Government’s statement rejecting as untrue the allegations that the Development Commissioner of the VEPZ personally warned the workers that they might lose their jobs if they join any trade union. The Committee notes however, that the Government does not provide any specific information on the grounds that led to this conclusion. The Committee also notes the Government’s statement that the list of workers who were allegedly dismissed, suspended or fined for their trade union activities was verified with the management of Worldwide Diamonds Manufacturing Ltd. and it was found that these measures were due to indiscipline, irregularity and failure to learn. Given the brevity of the allegations and the Government’s response, the Committee considers that it does not have sufficiently detailed information at its disposal to undertake an objective examination of the allegations. The Committee recalls that in general, the Government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned [Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 754 and 738]. The Committee requests the complainant to provide more specific information concerning allegations of anti-union discrimination in the VEPZ concerning the workers who have been dismissed, suspended or fined and to confirm whether there have been restrictions of their trade union rights.
4. 469. The Committee observes that the Government has not responded to allegations that the management of Worldwide Diamonds Manufacturing Ltd. refuses to talk to the union. The Committee recalls that measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements [Digest, op. cit., para. 781]. The Committee invites the Government to take all necessary measures as soon as possible with a view to encouraging a settlement of the current dispute through collective bargaining between the parties and to keep it informed in this respect.
5. 470. The Committee notes that according to the complainant, there is no available mechanism in the VEPZ for the redressal of grievances and that the Government rejects these allegations stating that there is a Grievances Redressal Committee headed by the Deputy Development Commissioner. However, the Committee notes that the Government does not provide any factual information on the composition, functioning and effectiveness of this Committee or the measures taken to promote a settlement of the current dispute through conciliation. The Committee notes that there could be incompatibility between the functions of Deputy Development Commissioner and Grievances Redressal Officer when performed by the same person. It requests the Government to review this situation. The Committee notes, moreover, that this mechanism, which seems to function in the event of both individual grievances and collective disputes, might not always have the confidence of all parties concerned, especially when allegations of anti-union discrimination are directed against the VEPZ administration itself. 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.
6. 471. The Committee is of the view that many of the issues brought up in this complaint could be resolved in the last resort by the judicial instances. The Committee observes in this respect that the complainant addressed a letter to the Chief Justice of the Supreme Court of India in which it requests the Chief Justice to consider its appeal stating that VEPZ workers have no alternative remedy to redress these grievances except to ask for protection. The Committee recalls from an earlier case that in the event of collective labour disputes and individual cases of alleged anti-union discrimination, recourse to adjudication as a last resort, if all other efforts at conciliation have failed, seems to depend on permission by the competent labour authorities [Case No. 420, Report No. 93, paras. 158-161]. However, given that this decision dates from 1964, the Committee cannot determine whether this is still the case. The Committee requests the Government 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 take all necessary measures to amend the legislation so that no such permission is required. The Committee asks to be kept informed in this respect.

The Committee's recommendations

1. 472. 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 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.