Rapport définitif - Rapport No. 108, 1969

Cas no 493 (Inde) - Date de la plainte: 02-AOÛT -66 - Clos

1. 94. This complaint was previously examined by the Committee at its sessions in February and May 1968, when it submitted to the Governing Body the interim reports contained, respectively, in paragraphs 67 to 86 of its 104th Report and paragraphs 195 to 210 of its 105th Report, both of these reports being approved by the Governing Body at its 172nd Session (May-June 1968).
2. 95. Certain of the allegations originally presented having been withdrawn by the complainants' and the Government having supplied certain information regarding the correctness of a copy of a judgment forwarded by the complainants in support of their complaint, there are three allegations outstanding, relating to the use of police in connection with the breaking of a strike by the complainant union, to the looting of the records and funds of the complainant union and to the Code of Discipline in industry.
3. 96. By a letter dated 23 September 1968, the Government of India furnished its observations on these allegations.
4. 97. India has not ratified 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

• Allegations relating to the Use of the Police in Connection with the Breaking of a Strike Called by the Complainant Union
  98. 98 The complainants alleged that the police, in collusion with the employers, were used for strike-breaking purposes. When the union called a strike in April 1964, it was alleged, the State Labour Directorate issued notices giving dates of conciliation meetings; such a step having been taken, stated the complainants, effect should then have been given to section 33 of the Industrial Disputes Act, 1947, which prohibits any alteration of conditions of service by an employer during the pendency of conciliation proceedings. It was alleged, however, that the employers violated the law by ordering the strikers to vacate the living quarters they had occupied as part of their terms of employment. The complaining organisation said that it therefore applied to the court, which made an order prohibiting the employer from ejecting the workers from their quarters and directed the police to ensure that no attempt was made to eject them. In defiance of this court order, it was alleged, the management ejected the workers with the help of hired thugs and police officers, following which the police, at the instance of the management, arrested the General Secretary of the Union and a considerable number of workers. The persons thus arrested were prosecuted for unlawful assembly and for injuring certain police officers in the course of their unlawful assembly. According to the complainants, the judgment of the court which tried them indicates that the police had been used unlawfully in order to break their strike and that the prosecution case was, to the knowledge of the police, false. The complainants supplied a copy of the judgment of the court, which the Government, at the request of the Committee, confirmed was a true copy of the judgment, subject to certain minor differences.
  99. 99 In its communication of 23 September 1968, the Government states that the judgment on which the complainants rely in support of their allegations " merely says that the prosecution has failed to prove its case ... against the accused persons beyond reasonable doubt. The accused persons are entitled to the benefit of doubt and should be acquitted: ... A finding that the prosecution case has not been proved beyond doubt and that the accused have been given the benefit of doubt does not mean that the defence case put up by the accused (which is the allegation now made in their complaint to the I.L.O.) is proved... ". The Government adds that a preliminary inquiry had also been held by a magistrate, who found that there was a prima facie case against the accused.
  100. 100 The facts of the case, as they appear to the Committee on examination principally of the judgment in question, are as follows. In April 1964, the workers belonging to the complainant union, some or all of whom occupied, as part of their terms of employment, living quarters at a godown belonging to the employers, went on strike. Contrary to section 33 of the Industrial Disputes Act, 1947, which provides that during the pendency of conciliation proceedings no alteration of conditions of service may be made by an employer, the employers ordered the workers to vacate the premises in question. The workers applied to the court for an order prohibiting the employers from ejecting them from their quarters and directing the police to ensure that no attempt was made to eject them. An order in these terms was granted by the court.
  101. 101 On 16 June 1964, some employees of the company who were not on strike went to the godown in question, accompanied by a considerable number of policemen. According to the prosecution, the strikers occupying the premises became violent when they saw the police and workers approaching the godown and threw certain objects at them, although it had been explained to them that the police had only come in order to protect the workers who were to remove certain implements, documents and materials from the godown for their day-to-day work. After using tear gas and making lathi charges, the police brought the situation under control and a large number of workers belonging to the union were arrested, 33 of them being charged with unlawful assembly and causing injury to certain police officers in the course of the unlawful assembly.
  102. 102 According to the accused persons, the workers and the police who came to the godown did so with the intention of forcibly ousting them from their quarters in violation of the court order referred to in paragraph 100 above, with a view to breaking the strike. They claimed that they were assaulted by the police and by thugs hired by the company and that if they injured certain policemen, this was in exercise of their right of private defence. They contended that there was never any intention on the part of the other workers or the police of removing raw materials, documents or implements from the godown.
  103. 103 From the long and detailed judgment, in which all the relevant evidence is reviewed, it appears that the main issue was whether the police and workers of the company went to the godown to remove the implements and materials-as the prosecution maintained or forcibly to oust the workers from their premises with a view to breaking their strike. The judge concluded, on this point, by stating that " on a careful consideration of the evidence on record, I have no hesitation in finding that the prosecution's story, that the officers and labourers of the company carne to the godown ... accompanied by the officers and members of the police force for taking out some implements, documents and materials from their godown for the day-to-day work of the company, is absolutely false. The police in this case seem to have tried to build out a false story in collusion with the men and officers of Gladstone, Lyall and Co. Ltd., in order to secure conviction of the accused. " With regard to the allegations and suggestions made by the accused to the effect that the workers, hired thugs and police went to the godown for the purpose of ousting the accused, the judge considered that " this suggestion cannot be thrown away as baseless in view of the facts and circumstances of the case.... It is curious that immediately after the order passed by the police magistrate ... restraining the management ... from ousting the workers from their quarters, the management thought it fit to go and disturb the workers with a police force. A suspicion is bound to arise in everybody's mind regarding the bona fides of the management. It is not unlikely that they wanted to oust the workers who were on strike from their quarters and that for this purpose they went there with police force." With regard to the violence that occurred, the judge considered that " the workers were justified in protecting their right and to save themselves from being assaulted. ... It may reasonably be presumed that, whatever they did, they did in the exercise of their right of private defence." In conclusion the judge stated, as indicated in the Government's communication of 23 September 1968, that " the prosecution has failed to prove its case against the accused persons beyond reasonable doubt. The accused persons are entitled to the benefit of the doubt and should be acquitted."
  104. 104 In addition to casting doubts on the truthfulness of the police and other prosecution witnesses at the trial, the judge criticised the action of the Assistant Police Commissioner who instructed the police to accompany the workers to the godown, since he purported to give this instruction to the police on behalf of the magistrate who made the order prohibiting the employers from ousting the workers from the godown they occupied (see paragraph 100 above), whereas in fact there was nothing to indicate that the magistrate had agreed to such an instruction. The judge considered that the police officer in question had probably committed contempt of court.
  105. 105 The Government states in its communication that the "judgment merely says that the prosecution has failed to prove its case ... against the accused persons beyond reasonable doubt. The accused persons are entitled to benefit of doubt and should be acquitted. " The Committee considers, however, that the judgment indicates clearly that the judge had serious doubts as to the bona fides of the police and the company in this matter, as appears from the extracts from the judgment cited above, and was of the opinion that there was some basis for the accused's claim that the police had gone to the godown with the intention of ousting them from their quarters with a view to breaking the strike. In view of this judgment, the Committee considers that there are serious grounds for believing that the police were used in an attempt to break the strike of the workers concerned.
  106. 106 The Committee has always held that allegations relating to the right to strike are not outside its competence in so far as they affect the exercise of trade union rights, and it has pointed out on several occasions that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised. The Committee recalls that, in a number of previous cases, it has recommended the dismissal of allegations of intervention by security forces when the facts have shown that such intervention was required by circumstances and limited to the maintenance of public order and did not restrict the legitimate exercise of the right to strike.
  107. 107 In these circumstances the Committee recommends the Governing Body:
       • (a) to take note of the judgment given in the case brought against the workers concerned for unlawful assembly and causing injury in the course of that assembly, noting particularly the doubts cast by the judge on the bona fides of the prosecution case and the references to misconduct by the members of the police force in question;
       • (b) recalling that allegations relating to the right to strike are not outside its competence in so far as they affect the exercise of trade union rights, to draw the Government's attention to its view that the use of police should be limited to the maintenance of public order.
  108. Allegations relating to the Looting of Records and Funds of the Complainant Union
  108. 108 The complainants alleged that when the police ousted the workers from their quarters on 16 June 1964, they also looted the funds and records of the union, as well as the property of the individual workers. No further details were supplied in the complaint on this particular allegation but the complainants stated that this allegation is substantiated by the judgment given in the case brought against the workers concerned, to which reference is made in paragraphs 98 to 105 above.
  109. 109 The Government states, in its communication of 23 September 1968, that the findings in the judgment do not substantiate this allegation.
  110. 110 The Committee considers that the facts alleged, if proved, would constitute a serious interference restricting the right of the union in question to organise its administration. The Committee recalls that, in accordance with the generally recognised principle enunciated in Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof.
  111. 111 The Committee has examined the judgment of the court in question and can find nothing therein to support the allegation made by the complainants that the police, with hired thugs and in collusion with the employers, looted the records and funds of the union. It therefore considers that the complainants have not supplied sufficient evidence to substantiate this allegation.
  112. 112 Accordingly, the Committee recommends the Governing Body to decide, for the reason indicated in the preceding paragraph, that this allegation does not call for further examination.
• Allegations relating to the Code of Discipline in Industry
  113. 113 The complainants alleged that the Code of Discipline in Industry subscribed to by the Government, employers' organisations and workers' organisations, is not observed. They claimed that if there is a strike, the workers are charged with breaches of the Code, but that if the employers refuse to recognise a union (contrary to the Code), as in the present case, the Government pretends that the Code is recommendatory and not mandatory.
  114. 114 In reply to this allegation, the Government states, in its communication of 23 September 1968, that the Code is not part of the law of the land: " It is a model code which is recommended to employers and trade unions for observance by both. If a trade union feels that an employer is not observing it, it is not obligatory on the trade union itself to observe it. It is also open to them to bring the matter before the tripartite Committee set up in the West Bengal State, to consider such disagreements; the Committee has no statutory powers, but it can use its good offices to settle such differences."
  115. 115 The Committee notes that the complainants have furnished no precise information on the way in which they claim that the Code has been used against them. In particular, their general allegation that the Code is used to prevent strike action has not been supported by any evidence. Having examined the Code (a copy of which was supplied by the complainants) and the Government's observations on the allegation, the Committee observes that the Code is a model code unaccompanied by any legal sanctions. It has also noted the Government's statement that a tripartite Committee, which, however, has no statutory powers, exists in West Bengal State to consider any disagreements concerning the application of the Code and that it can use its good offices to settle such differences.
  116. 116 In these circumstances the Committee recommends the Governing Body to decide, for the reasons indicated in the preceding paragraph, that this allegation does not call for further examination.

The Committee's recommendations

1. 117. In these circumstances, and with regard to the case as a whole, the Committee recommends the Governing Body:
2. (1) to decide, for the reasons indicated in paragraphs 111 and 115 above, respectively, that the allegations relating to the looting of the records and funds of the complainant union and to the Code of Discipline in Industry do not call for further examination;
3. (2) with regard to the allegations relating to the use of the police in connection with the breaking of a strike by the complainant union:
   • (a) to take note of the judgment given in the case brought against the workers concerned for unlawful assembly and causing injury in the course of that assembly, noting particularly the doubts cast by the judge on the bona fides of the prosecution case, and the references to misconduct by the members of the police force in question;
   • (b) recalling that allegations relating to the right to strike are not outside the Committee's competence in so far as they affect the exercise of trade union rights, to draw the Government's attention to its view that the use of police should be limited to the maintenance of public order;
4. (3) to request the Government to bring the recommendations contained in clause (2) above to the special attention of the competent authorities in West Bengal State.