Report in which the committee requests to be kept informed of development - Report No 338, November 2005

Case No 2399 (Pakistan) - Complaint date: 21-DEC-04 - Closed

Allegations: The complainant alleges systematic refusal to register the Liaquat National Hospital Workers’ Union (LNHWU), dismissals and harassment of trade union members

1155. The complaint is set out in a communication by the International Confederation of Free Trade Unions (ICFTU) dated 21 December 2004. In a communication dated 17 January 2005, Public Services International (PSI) associated itself with the complaint. The ICFTU transmitted additional information in a communication dated 13 July 2005.

1. 1156. The Government forwarded its observations in communications dated 20 April, 27 May and 20 September 2005.
2. 1157. Pakistan has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 1158. In its communication dated 21 December 2004, the International Confederation of Free Trade Unions (ICFTU) alleged systematic refusal to register the ICFTU-affiliated Liaquat National Hospital Workers’ Union (LNHWU), dismissals and harassment of trade union members.
2. 1159. As regards the allegation of denial of registration, the ICFTU stated that the Liaquat National Hospital Employees’ Union (LNHEU) had been registered in 1974 but, as a result of the amendment of the Industrial Relations Ordinance (IRO) in 2002, its registration was cancelled. The LNHWU applied for registration for the first time in 2001 and for the second time in January 2003. The Director of Labour in Karachi, the competent authority, had been turning down the application for registration on the grounds that the Liaquat National Hospital was a charitable organization. According to the new IRO, organizations which operated on a charitable basis were not entitled to trade union representation. The appeal of the LNHWU against this decision was still pending before the labour courts. The complainant considered that the IRO was highly restrictive and contrary to the provisions of Conventions Nos. 87 and 98 and referred to Case No. 2229 previously examined by the Committee. Furthermore, the complainant contested the qualification of the Liaquat National Hospital as a charitable organization.
3. 1160. The complainant further alleged that, since the establishment of the LNHWU, all of its office bearers had been systematically ousted from employment and its members had been subjected to serious abuses and harassment by the hospital management. About 23 key office bearers of the union were arrested, kept in prison and subsequently fired. The complainant provided a list (dated 5 May 2002) of 18 dismissed workers and eight workers suspended pending inquiry (see annex). Their cases of reinstatement have been pending in the labour courts since 2001. In total, about 75 employees were forced to resign because of their LNHWU membership.
4. 1161. Several of these workers faced moral and physical harassment. For this purpose, the management had installed what the union refers to as a “torture cell” within the hospital (in Lal Kothi block). According to the complainant, the management used armed personnel who, on its instructions, beat and maltreated people who were brought in. That usually occurred after duty hours when workers were reportedly being called to Lal Kothi to be beaten, tortured and forced to sign blank papers, which were afterwards used to obtain their resignation. Several medical certificates were attached to the complaint.
5. 1162. The complainant further alleged that on 18 August 2002, the LNHWU General Secretary Mr. Shahid Iqbal Ahmed was abducted from the court premises, where he was present regarding his pending case for reinstatement, by police officers and brought to the New Town Police Station. There, he was beaten and threatened that he would be involved in a murder case.
6. 1163. The complainant further alleged that on several occasions, the LNHWU office bearers and members had been denounced on false charges. More particularly, the complainant stated that Mr. Iftikhar Ahmed, a trade union member, was also falsely accused of participating in an illegal strike at the hospital premises on 16 April 2002. The complainant attached an application made by the hospital to the Karachi East Court against this individual along with 41 other persons allegedly participating in the strike. The complainant submitted that Mr. Iftikhar Ahmed did not participate in the events as on that day he was getting married outside Karachi. In fact, he was later acquitted by the Judicial Magistrate, East Karachi, in the criminal case brought against him and eight other persons in connection with the strike on 16 April 2002.
7. 1164. In its communication dated 13 July 2005, the complainant further provided copies of two judgements dated 31 March 2005 by which the LNHWU was acquitted of criminal charges brought against it in respect of strike action on 16 April 2002.
8. B. The Government’s reply
9. 1165. In its communications of 20 April, 27 May and 20 September 2005, the Government described the circumstances of the dismissal of six hospital employees and attached a letter from the Liaquat Hospital administration in this regard. According to the hospital administration, on 16 April 2002, Mr. Muhammad Rafique along with his colleagues gathered in the compound of the hospital to strike in order to pressure the management to withdraw the Show Cause Notice dated 5 April 2002 issued against other staff members for committing acts of misconduct. They raised slogans against the management and threatened them with physical violence and assault; they also threatened to paralyse the functioning of the hospital. The strike lasted till 3 a.m. The strikers cut off the main electricity and, by their actions, put at risk patients of the hospital. Since the organizers of the strike had not replied to the charge sheet sent to them and failed to participate in the inquiry, despite the notices duly serviced to them, an inquiry was conducted ex parte. Consequently, on 6 May 2002, a dismissal order was issued. The six dismissed employees filed a case before the First Sindh Labour Court in Karachi, which, by its order of 5 August 2004, had dismissed their petition. The Government transmitted the texts of two decisions: first, in respect of Mr. Muhammad Rafique, and the second, in respect of Mr. Mohammad Shaukat Hussain and Mr. Alleem-ur Rehman, both dismissed for having slept during duty hours (Show Cause Notice of 5 April 2002) and Mr. Shahid Iqbal Ahmed and Mr. Iftikhar Ahmed, dismissed for having instigated other employees to go on strike. According to both decisions, the provisions of the IRO of 1969 “were not applicable to the [Liaquat National] Hospital [due to the fact that it was a charitable institution] and, consequently, the applications of the applicants [were] not legally maintainable. The court [had] no jurisdiction to try the applications against the Respondent Hospital and the applicants [were] not entitled for any relief”. To further justify the dismissal of six workers, the hospital administration referred to the jurisprudence of the Supreme Court of Pakistan, according to which, in a case of a strike in a hospital, the hospital authorities have a right to dismiss striking workers, subject to the provisions of the Punjab Essential Services (Maintenance) Act.
10. 1166. Following their dismissal, the dismissed workers had also approached the Registrar of Trade Unions and claimed to be the officers of a trade union, which they had formed. Following an investigation, the Registrar concluded that the said trade union was illegally established and that these six employees were already dismissed prior to their claim to be office bearers of that union.
11. 1167. The Government further stated that the application for registration of the trade union presented to the Registrar was rejected on 10 March 2004 on the ground that no union can be formed in Liaquat National Hospital. The Government explained that the IRO of 1969 was not applicable to the hospital and therefore no trade union could be established in the hospital. The IRO of 1969 was repealed by the IRO of 2002. In accordance with section 1(4)(e), an establishment or institution maintained for the treatment or care of sick, infirm, destitute and mentally unfit persons running on a commercial basis were covered by the IRO of 2002. In order for a trade union to be registered, the legislation required all its members to be actually employed in the establishment or industry with which the trade union is connected. In the present case, the workers were not employees of the Liaquat National Hospital and therefore could not establish a union. Finally, the hospital administration enclosed in its communication to the Government regarding this case a legal opinion of the Law Department, Sindh, according to which the IRO of 2002 was not applicable to the Liaquat National Hospital, as it has not been proven to be a commercial establishment.

C. The Committee’s conclusions

1. 1168. The Committee notes that the complainant in this case has alleged systematic refusal to register the Liaquat National Hospital Workers’ Union (LNHWU), dismissals and harassment of trade union members.
2. 1169. As concerns the registration of the LNHWU, the Committee notes from the complainant’s and the Government’s communications that registration has been denied because the Liaquat National Hospital is a charitable institution and as such is excluded from the scope of the IRO of 2002. While the complainant raises certain arguments against the determination of this hospital as a charitable organization, the Committee does not consider it to be within its mandate to draw any conclusions as to the commercial nature of the hospital. Nevertheless, the Committee would recall that, when examining the scope of the IRO of 2002 in the context of a previous case (Case No. 2229), it emphasized that the guarantee of the right of association should apply to all workers, with only the possible exception of the members of the police and armed forces and noted a number of excessive restrictions in the IRO in this regard, including as regards charitable organizations [see 330th Report, para. 941]. It regrets that the Government has not yet amended the IRO and, referring to its earlier recommendations, once again requests the Government to amend sections 1(4) and 2(XVII) of the IRO in line with Convention Nos. 87 and 98 ratified by Pakistan so as to ensure the right to organize for all workers without distinction, including those working in charitable organizations. It requests the Government to keep it informed of the measures taken or envisaged in this respect. The Committee reminds the Government that it may avail itself of the technical assistance of the Office, if it so desires.
3. 1170. As concerns the alleged dismissals of trade union members, the Committee notes that, on the one hand, the complainant referred to about 23 dismissed office bearers of the union, on the other, it provided a list of 18 dismissed workers and eight workers suspended pending inquiry and then stated that, in total, about 75 employees had been forced to resign because of their LNHWU membership. From the texts of the court decisions attached to the Government’s communication, the Committee notes five cases of dismissals. Mr. Mohammad Shaukat Hussain and Mr. Alleem-ur Rehman were both dismissed for having slept during duty hours. A Show Cause Notice was issued in their respect on 5 April 2002. As for Mr. Muhammad Rafique, Mr. Shahid Iqbal Ahmed and Mr. Iftikhar Ahmed, they were dismissed for having instigated other employees to go on strike in order to pressure the management of the hospital to withdraw the Show Cause Notice issued against the abovementioned employees. The Government further stated that the strikers cut off the main electricity and by their actions, put at risk patients of the hospital. The Committee further notes that the complainant submitted that Mr. Iftikhar Ahmed did not participate in the events as on that day he was getting married outside Karachi. From the court cases submitted by the Government, the Committee understands that the applications of these five workers were rejected by the court as the provisions of the IRO of 1969 were not applicable to the Liaquat National Hospital and, consequently, the court had no jurisdiction to try the applications against the hospital and the applicants were not entitled to any relief.
4. 1171. While considering that the right to strike may be restricted or prohibited in the hospital sector, which is considered to be an essential service [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 526 and 544], the Committee notes that the circumstances of this case appear not to be limited to the issue of strikes in essential services and indeed the circumstances surrounding the supposed strike and its relation to the dismissals were never examined by the courts. The Committee notes from the judgement provided that the first two persons were dismissed for sleeping during their duty hours. In addition, from the judgements of 31 March 2005 submitted by the complainant, the Committee notes that Mr. Mohammad Shaukat Hussain, Mr. Shahid Iqbal Ahmed and Mr. Iftikhar Ahmed were acquitted of criminal charges brought against them for participation in a strike of 16 April 2002, as the judge concluded that their participation in the strike was not proved. On the other hand, all their appeals to the courts to contest their dismissals were rejected due to a lack of jurisdiction in view of the non-application of the IRO of 1969 to the Liaquat National Hospital. The Committee understands that this situation has not changed with the entry into force of the IRO of 2002, as the new IRO specifically excludes from its scope charitable institutions.
5. 1172. The Committee considers that the denial of the right to challenge the fairness of a dismissal and its eventual anti-union nature before a court is inconsistent with Convention No. 98 ratified by Pakistan. Respect for the principles of freedom of association clearly requires that dismissed workers should have access to means of redress to ensure that effective protection against acts of anti-union discrimination is guaranteed. In addition, the Committee has recalled to need to ensure by specific provisions – accompanied by civil remedies and penal sanctions – the protection of workers against acts of anti-union discrimination at the hands of employers [see Digest, op. cit., para. 746]. The Committee therefore requests the Government to take the necessary measures, including the amendment of the legislation so as to ensure that workers at the Liaquat National Hospital may challenge their dismissals and suspensions before independent courts or tribunals. Secondly, given that no information was provided by the Government on the other alleged cases of dismissal, and that the court cases in respect of the five dismissed union members were inconclusive given that the court determined that it had no jurisdiction to consider the reasons for these dismissals, the Committee requests the Government rapidly to investigate all 18 cases of dismissal and eight cases of suspension at the hospital referred to by the complainant. If the dismissals and suspensions of the workers resulted from the exercise of legitimate trade union activities, the Committee requests the Government to ensure that those workers are reinstated in their posts with back pay and, if reinstatement is not possible, that they are paid adequate compensation so as to constitute sufficiently dissuasive sanctions. The Committee requests the Government to keep it informed of the outcome of these investigations.
6. 1173. As for the allegations of pressuring, harassment and moral and physical abuse of trade union members, the Committee notes that the Government has provided no observations in this respect. In view of the seriousness of the allegations, the Committee requests the Government to conduct an independent inquiry into the allegations of torture and harassment of trade union members ordered by the management of the Liaquat National Hospital, as well as into the allegations of abduction, beating and threats carried out against the LNHWU General Secretary, Mr. Shahid Iqbal Ahmed, by the police. If the allegations are confirmed, the Committee requests the Government to punish the guilty parties and take all necessary measures in order to prevent the repetition of similar events. The Committee requests the Government to keep it informed in this respect.

The Committee's recommendations

1. 1174. In the light of its forgoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee again requests the Government to amend sections 1(4) and 2(XVII) of the IRO of 2002 in line with Conventions Nos. 87 and 98 ratified by Pakistan so as to ensure that all workers without distinction whatsoever, including those working in charitable institutions, may freely establish organizations of their own choosing. The Committee reminds the Government that it may avail itself of the technical assistance of the Office, it so desires.
   • (b) The Committee requests the Government to take the necessary measures, including the amendment of the legislation, so as to ensure that workers at the Liaquat National Hospital may challenge their dismissals and suspensions before independent courts or tribunals. The Committee further requests the Government rapidly to investigate all 18 cases of dismissals and eight cases of suspension at the hospital and, if the dismissals and suspensions of workers resulted from their trade union activities, the Committee requests the Government to ensure that those workers are reinstated in their posts with back pay and, if reinstatement is not possible, that they are paid adequate compensation so as to constitute sufficiently dissuasive sanctions.
   • (c) As for the allegations of pressuring, harassment and moral and physical abuse of trade union members, in view of the seriousness of the allegations, the Committee requests the Government to conduct an independent inquiry into the allegations of torture and harassment against trade union members ordered by the management of the Liaquat National Hospital, as well as into the allegations of abduction, beating and threats carried out against the LNHWU General Secretary, Mr. Shahid Iqbal Ahmed, by the police and, if the allegations are confirmed, to punish the guilty parties and take all necessary measures in order to prevent the repetition of similar events.
   • (d) The Committee requests the Government to keep it informed of the measures taken or envisaged on the abovementioned matters.

Annex

1. List of dismissed and suspended employees
2. (5 May 2002)
3. Liaquat National Hospital
4. No.
5. Name
6. Son of
7. Designation
8. Dismissed/terminated
9. 1
10. Muhammad Sadiq
11. Abdullah Khan
12. Staff nurse
13. 2
14. Syed Rafiq
15. Haji Qazi Khan
16. Nursing orderly
17. 3
18. Aleem-Ur-Rehman
19. Allemullah Khan
20. Staff nurse
21. 4
22. Sabir Aziz
23. Aziz Fazal
24. Staff nurse
25. 5
26. Shahid Iqbal Ahmed
27. S. Kafil Ahmed
28. Staff nurse
29. 6
30. Akhter Hussain
31. Ashfaq Hussain
32. Staff nurse
33. 7
34. Shoukat Hussain
35. Muhammad Hussain
36. Staff nurse
37. 8
38. Aftab Alam Bacha
39. Ghulan Mursaleen
40. Staff nurse
41. 9
42. Sher Rehman
43. Habib-Ur-Rehman
44. Staff nurse
45. 10
46. Iftikhar Ahmed
47. Abdul Razzaq
48. Staff nurse
49. 11
50. Shafi-Ullah Durran
51. Kifayatullah
52. Staff nurse
53. 12
54. Mohammad Imran
55. Mohammad Khan
56. Staff nurse
57. 13
58. Zahir Rehman
59. Sardar Akbar
60. Ward boy
61. 14
62. Ajaz Ahmed Berni
63. Nisar A. Khan
64. Ward boy
65. 15
66. Munney Khan
67. Mohd Chotey Khan
68. Clerk
69. 16
70. Mohammad Rafique
71. Perva
72. Clerk
73. 17
74. Liaquat Ali Khan
75. Sher Bahadur
76. Pharmacist
77. 18
78. Shahid Hussain
79. Kishta Bachs
80. Staff nurse
81. Suspended pending inquiry
82. 19
83. Iftikhar Noor
84. Noor Muhammad
85. Staff nurse
86. 20
87. Muhammad Naeem
88. Ghulam Sarwar
89. Staff nurse
90. 21
91. Mohammad Rahim
92. Aziz-Ur-Rehman
93. Staff nurse
94. 22
95. Ghousul Hassam
96. Ahmed Bacha
97. Staff nurse
98. 23
99. Syed Farman Ali
100. Syed Sultan Ali
101. Staff nurse
102. 24
103. Serb Ali Kan
104. Sher Alam Khan
105. Staff nurse
106. 25
107. Dilnawaz Khan
108. Gulnawaz Kahn
109. Staff nurse
110. 26
111. Mohammad Tahir
112. Syed Qamar
113. Staff nurse