Rapport définitif - Rapport No. 82, 1965

Cas no 343 (Sri Lanka) - Date de la plainte: 13-JUIN -63 - Clos

1. 12. The complaint of the Co-ordinating Committee of Trade Unions is contained in a telegram dated 13 June 1963 and two further communications dated 14 and 26 June 1963. The Government furnished its observations on the complaint in a communication dated 19 February 1964.
2. 13. Ceylon has not ratified either 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. A. The complainants' allegations

1. 14. The complainant states that the Ceylon Railway Station Masters' Union, a body registered under the Trade Unions Ordinance and recognised by the Government as entitled to make representations to the Government on behalf of its members, called a 24-hour strike from midnight on the night of 4-5 January 1962, and points out that section 2 of the ordinance defines one of the approved objects of a trade union as being the promotion or organisation or financing of strikes or lockouts in any industry or the provision of pay or other benefits for its members during a strike or lockout. It is alleged that not only is the strike a lawful weapon but that, since 1958, public pronouncements and other acts by the Government have confirmed the recognition of the right of public servants to strike and that the Government has even compensated public servants who had been penalised in respect of strikes by previous governments.
2. 15. The strike of 5 January 1962, a token general strike involving hundreds of thousands of public servants, was conducted by five major trade union centres in protest against the alleged anti-union attitude and strike-breaking measures of the Government in respect of a strike of port workers in Colombo.
3. 16. The complainant contends that the Ceylon Railway Station Masters' Union notified the Railways General Manager in writing that its members would participate in the strike in the following terms:
   • I am directed to inform you that the members of this union will be on strike from 00 hours to 24 hours on 5 January 1962 in pursuance of a unanimous decision made by this union....
   • In the circumstances, I am directed to inform you to make suitable arrangements to safeguard all property of the Railway within the limits of every station from 00 hours to 24 hours on 5 January 1962.
   • We shall instruct our members to lock up the entire station during this period and safeguard the keys, pending your instruction. Keys will be handed over on production of a letter from you.
4. 17. The above letter, declares the complainant, was duly acknowledged by the Railways General Manager.
5. 18. Mr. N. T. Nadarajah, Assistant Station Master at Ulapane and a member of the complaining organisation, was on duty at Ulapane on the night of 4 January 1962. It is alleged that he made the following entry in the Station Information Book:
   • Folio 85, 5 January 1962.
   • I am participating in trade union action as decided by the Ceylon Railway Station Masters' Union and hereby certify that I have set the facing points to the platform line and clipped and padlocked as per instructions and retain the padlock keys under lock and key to be handed over to the officer authorised by the Railways General Manager.
   • I also certify that after padlocking the facing points to the platform line as above they will not be opened again till the points are handed to the officer authorised by the Railways General Manager. I also certify that the running line is free from obstruction.
   • (Signed) N. T. NADARAJAH.
6. 12 midnight, 5 January 1962.
7. 19. Mr. Nadarajah was charged with the following contraventions under the Public Service Commission Rules No. 41 (1):
8. (1) that he closed Ulapane Station and left duty before the appointed time in contravention of Rule 118 (a) of the Rule Book;
9. (2) that he gave up charge of train working at Ulapane Station when train No. 76 was in Gampola Ulapane Section and due to arrive in Ulapane section in contravention of Rule 84 (a) of the Rule Book;
10. (3) that, having granted permission to train No. 76 to approach Ulapane Station in terms of Block Regulation 41 by releasing tablet to Gampola and knowing well that it would reach Ulapane station after midnight, he failed to accept it in the station;
11. (4) that he deliberately caused undue and avoidable delay to train No. 76 at signals and provoked restlessness among the passengers;
12. (5) that he misinformed Mr. C. M. K. P. Weerakoddy, Junior Assistant Transportation Superintendent, that he would continue on duty beyond 12 midnight, resulting in the management not making suitable arrangements to avoid protracted detention to train No. 76 at Ulapane;
13. (6) that he prevented Mr. G. A. Dharmapala, under-guard of train No. 76, from making use of the control telephone and thereby obstructed him from carrying out his duties;
14. (7) that he prevented Mr. B. L. Piyasena, station-master, from speaking to Divisional Superintendent Nawalapitiya on the control telephone to get his authority to take over the station and thereby obstructed clearance of train No. 76 which was being held up at Ulapane signals;
15. (8) that he removed from the signal cabin the signalman who was on duty and who was not participating in the strike, locked up the signal cabin and took possession of the keys in contravention of instructions in the Railways General Manager's circular of 3 January 1962;
16. (9) that he failed to pay proper care to the safety of the travelling public in contravention of Rule 7 (ii) of the Rule Book.
17. 20. In answer to these charges Mr. Nadarajah stated that charges Nos. 1, 2, 3, 4, 6, 7 and 9 were consequential to the fact that, pursuant to the decision of his union, he went on strike for 24 hours from midnight on the night of 45 January 1962. He contended that, before stopping work at midnight, he closed the station and took all precautions for the safety of the station and everything appertaining to and within the station and took every care for the safety of the travelling public, and that charges Nos. 6 and 7 could not therefore arise. He denied that, as contended in charge No. 5, he informed Mr. Weerakoddy that he would work after midnight. On the contrary, he stated that he telegraphed Mr. Nawalapitiya at 8.15 a.m. on 4 January 1962, informing him that he would be absent from duty as from midnight and asking him to send a relief immediately. With regard to charge No. 8, he denied removing the duty signalman from the signal cabin.
18. 21. The complainant alleges that Mr. Nadarajah was found guilty by the Public Service Commission of all the charges except those numbered 3 and 8 and was dismissed. Apart from the fifth charge, contends the complainant, all the charges are based on the assumption that he should have been on duty on 5 January 1962 and that to find him guilty on those charges is equivalent to holding that he should not have joined the strike.
19. 22. The union appealed to the Minister of Finance, who is in charge of the Public Service; he, it is alleged, advised a further appeal to the Public Service Commission, which substituted for dismissal an order for compulsory retirement on grounds of inefficiency. It is alleged that the case is one of victimisation for participation in an entirely legal general strike and that the Government refuses for reasons of prestige to vary the decision to penalise Mr. Nadarajah.
20. 23. The Government stated in its communication dated 19 February 1964 that train No. 76, referred to in the charges, left Gampola Station at 0003 hours on 5 January 1962, after being accepted by Mr. Nadarajah at 2345 hours on 4 January, and that he recorded the train entering section signal as received by him at 0003 hours. Having done so, he did not order the signals to be lowered to let the train enter Ulapane Station, but put the signalman out of the cabin and locked it, so preventing any signal being given and delaying the train for 55 minutes. According to the Government, he prevented the train guard from using the telephone inside the station-master's office to speak to the District Superintendent and prevented a station-master, Mr. Piyasena, who was on the train in question, from using the telephone to seek authority to take charge of the station. After threats from the passengers, Mr. Nadarajah admitted the train to Ulapane after a delay of 55 minutes. Mr. Piyasena took over the station at 0140 hours.
21. 24. The nine charges referred to by the complainants were brought against Mr. Nadarajah, who was found guilty by the Public Service Commission, which ordered his dismissal, varied on appeal to compulsory retirement on grounds of inefficiency as a merciful measure.
22. 25. The Government denied that Mr. Nadarajah was proceeded against for having participated in the strike. The Government stated that he was in breach of railway safety rules in that he permitted the train to enter his section but held it up at the signals, put out the signalman and locked the signal cabin so that no one could lower the signals, and that, as he intended to go on strike, he should have informed Gampola Station that he would not be able to receive the train in his station. With regard to his having been found guilty of the charges of obstructing other officers in the discharge of their duties, the findings of the Public Service Commission were findings of fact which could not be questioned by any authority in Ceylon.
23. 26. When it considered the case at its meeting in June 1964 the Committee observed that it had always been guided by the principle that allegations relating to the exercise of the right to strike are not outside its competence in so far, but only in so far, as they affect the exercise of trade union rights I and had recommended the Governing Body to affirm, on numerous occasions, that the right to strike of workers and workers' organisations constitutes an essential means of promoting and defending their occupational interests. The Committee had, however, pointed out that " in the case of essential services such as the railways, due notice of the intention to strike is normally required " and that the exercise of the right to strike may be restricted to the extent necessary to ensure compliance with statutory safety requirements.
24. 27. In the present case, the Committee notes, it was alleged that strikes by railway employees in Ceylon are legal and that written notice of the intention to strike was sent to the Railways General Manager and acknowledged by him. The Government had not suggested in its reply that the strike was illegal or that due notice was not given by the union. In the absence of any evidence to the contrary submitted by the Government it seemed that the complainant's contention that the strike was lawful should be accepted by the Committee.
25. 28. The Government declared, in fact, that Mr. Nadarajah was proceeded against not because he took part in the strike but because he committed certain specific acts-acts which the complainants contended were an integral part of the strike itself. It seemed necessary to the Committee to seek further clarification of this issue, in certain respects, for the following reasons.
26. 29. If the Government accepted that Mr. Nadarajah lawfully joined the strike, that would seem to imply that he was within his rights in ceasing work at midnight on 4 January 1962. One of the acts for which he was disciplined was the act of padlocking the station and its offices and signal box at or around midnight and refusing to open them again. But, according to the strike notice cited by the complainants, they informed the Railways General Manager that all stations would be padlocked when the strike began and that keys would be handed over only on production of a letter from the General Manager. It seemed necessary for the Committee to know whether the General Manager accepted these conditions in his acknowledgment or whether the circular referred to in the eighth charge against Mr. Nadarajah amounted to an order not to lock up the station when the strike began. It appeared from a perusal of the charges brought that the first charge was in effect that he left his work to go on strike at midnight and that charges 6 and 7 and the latter part of 8 were the direct result of his having padlocked the station. Further, according to the strike notice, the General Manager was informed that the keys would be handed over only to a person producing a letter from him. If the General Manager accepted this part of the strike notice, the Committee considered it necessary to know whether such a letter was produced by the train guard concerned or by Mr. Piyasena.
27. 30. The position was not entirely clear with regard to the question of the observance of the safety precautions laid down in the railways rules. It seemed apparent that during the normal functioning of a railway the holding-up of trains might involve very serious risks and breaches of safety rules. But in any railway strike fixed for a certain time there was inevitably a standstill of trains and inconvenience to passengers. It seemed desirable to the Committee to know on what grounds a failure to keep trains moving-a dangerous procedure in normal times-was regarded as a contravention of safety precautions when all other trains had been brought to a standstill.
28. 31. There seemed to be a contradiction between the complainant and the Government as to the exact charges on which Mr. Nadarajah was found guilty. In the latter part of the Government's reply the essential points set forth (see paragraphs 23 and 25 above) against him were that he did not admit the train to his station, put out the duty signalman and locked up the signal box. These facts were the basis of charge No. 3 and charge No. 8. According to the complainant, however, these were the two charges on which Mr. Nadarajah was not found guilty (see paragraph 21 above).
29. 32. A further point was not clear. The Government stated that a relief was not provided in due time, as asked in the strike notice, because Mr. Nadarajah informed a junior assistant superintendent that he would work after midnight (see charge No. 5), a fact denied by the complainant. According to Mr. Nadarajah, he telegraphed Divisional Superintendent Nawalapitiya at 8.15 a.m. on 4 January 1962 asking him to send a relief immediately as he would stop work at midnight. The Government made no comment on this point in its reply dated 19 February 1964.
30. 33. Finally, the Committee considered it necessary to know whether it was open to a person disciplined in the circumstances in which Mr. Nadarajah was disciplined to appeal to a court of law.
31. 34. In these circumstances, while thanking the Government for the information which it had furnished, the Committee decided to request the Government to be good enough to furnish fuller information on the points referred to in paragraphs 29 to 33 above.
32. 35. On 16 June 1964 the Director-General wrote to the Government, on behalf of the Committee, requesting it to be good enough to furnish fuller information on the points in question.
33. 36. The Government furnished further information by a communication dated 27 January 1965.
34. 37. In this communication the Government refers in the first place to the attitude of the Railways General Manager to the strike notice which was sent to him (see paragraph 29 above) informing him that the strike would begin at midnight on the night of 4-5 January 1962. The Government states that the General Manager did not accept the conditions contained in the strike notice and issued a circular on 3 January 1962-a copy of which the Government has furnished-for the purpose of warning the strikers not to lock up stations when the strike began and rejecting the condition in the strike notice that keys would be handed over only to a person producing a letter from the General Manager.
35. 38. With regard to the question of observance of safety precautions (see paragraph 30 above) the Government states that the possibility of collision was not the only danger to be prevented. There was also a danger of parcels and mail containing money and other valuables being looted and passengers being robbed, as the train stopped by Mr. Nadarajah was stopped at a dangerous point where passengers could not get out in an emergency. They were also exposed to the danger of being prevented from securing medical aid in case of illness, etc.
36. 39. With regard to the question of which of the nine charges against Mr. Nadarajah were found proven (see paragraph 31 above), the Government confirms that he was found guilty of all except the third and eighth.
37. 40. With regard to the telegram alleged to have been sent by Mr. Nadarajah to the Divisional Superintendent on 4 January 1962 asking him to send a relief as the signalman intended to stop work at midnight (see paragraph 32 above), the Government states that the telegram was in the form of a routine " absentee message " wired daily by all stations to indicate the position of absenteeism and relief hands engaged day by day, and that it was not a case of asking for relief because he intended to strike at midnight.
38. 41. With regard to the final question put by the Committee (see paragraph 33 above), the Government states that no appeal lies against the decision of the Public Service Commission ordering the immediate dismissal of Mr. Nadarajah, and refers again to the statement in its letter dated 19 February 1964 to the effect that the findings of the Commission were findings of fact not giving rise to any appeal.
39. 42. While some of the factual elements in this case still remain obscure, it would appear from the latest reply of the Government that certain of the conditions laid down in the strike notice alleged to have been accepted by the Railways General Manager were in fact repudiated by him in his circular dated 3 January 1962. In particular, according to the copy of the circular adduced, the General Manager warned those about to strike not to lock up station premises and reminded them that keys must be handed over to the most senior officer reporting for duty. Contravention of these provisions, however, was the basis of charge No. 8 (see paragraph 19 above), of which Mr. Nadarajah was acquitted. He was, however, found guilty of the first of the nine charges, according to which he closed Ulapane Station.
40. 43. On the basis of charges Nos. 2, 4, 6, 7 and 9, of which he was found guilty by the Public Service Commission, it appears that Mr. Nadarajah was in fact found to have prevented the train from proceeding beyond the point at which it was stopped-according to the Government a point entailing danger to parcels, mail and passengers. He was found guilty, under charge No. 9, of failing to pay proper care to the safety of the travelling public, in breach of railway safety rules. The Commission also found charge No. 5 proven, according to which he misinformed a junior assistant transportation superintendent that he would continue on duty beyond midnight, with the result that the management did not make other arrangements to prevent the train being unduly delayed.

B. B. The Committee's conclusions

1. 44. While some points are not fully explained, it would appear from the information furnished that the Public Service Commission, although not holding Mr. Nadarajah guilty of engaging in an unlawful strike, found him guilty in fact of having contravened an order not to close the railway station and certain of the rules in force concerning the safety of the travelling public and that these contraventions were, at least in part, the reason for his dismissal.
2. 45. In a previous case the Committee expressed the view that restrictions on the right to strike in certain sectors to the extent necessary to comply with statutory safety requirements are normal restrictions.

The Committee's recommendations

1. 46. In these circumstances the Committee, considering that the complainants have not furnished sufficient proof to show that the dismissal of Mr. Nadarajah, after being found by the Ceylon Public Service Commission to have contravened railway rules designed to ensure the safety of the travelling public, constituted an infringement of freedom of association, therefore recommends the Governing Body to decide that the case does not call for further examination.