Rapport intérimaire - Rapport No. 214, Mars 1982

Cas no 995 (Inde) - Date de la plainte: 18-AOÛT -80 - Clos

1. 511. The Committee already examined this case presented by the Centre of Indian Trade Unions (CITU) at its November 1981 Session when it submitted an interim report to the Governing Body. Since then, the Government has supplied supplementary observations in a communication dated 15 December 1981.
2. 512. India has not ratified 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. Previous examination of the case

1. 513. The allegations referred to problems (refusal of the right to form associations, arrests, torture, detention without trial, dismissal due to trade union activity and violation of trade union property) encountered since 1979 by the General Reserve Engineer Force (GREF), a self-contained body created under the Ministry of Shipping and Transport. The CITU claimed that the employees involved were civilians but could not form trade unions because certain provisions of the Army Act and Rules applied to them. The Government replied that the GREF was practically a wing of the Army and therefore its employees were lawfully restricted from forming associations.
2. 514. Having been informed that supplementary indications would be supplied by the Government on the issue of the right to organise of the employees of the GREF, the Committee decided to hold in abeyance until its next session its examination of that aspect of the case. As the Government did not reply to the specific and detailed allegations relating to arrest, torture, detention without trial and dismissal for trade union activity of the GREF employees, nor to the violation of trade union property, the Committee asked the Government to supply its observations on them, giving in particular information on the present situation of the 45 trade unionists listed by the complainant.

B. The Government's reply

1. 515. In its communication of 15 December 1981, the Government supports its claim, that the GREF is a wing of the Armed Forces by explaining the work of the GREF as including, in normal times, road construction in areas of strategic importance to the country, construction and maintenance of operational tracks, field defence fortifications, landing grounds and, during operations, the tasks which would otherwise be entrusted to corresponding Army engineer regiments. It states that the GREF is organised on the Army pattern into units, has a command and control system similar to that of the Army, has its own, uniform with ranks equivalent to ranks in the Army and may carry arms if and when necessary. Accordingly, continues the Government, the relevant provisions of the Army Act and Rules apply to the GREF and the terms and conditions of employment of its employees have been supplemented by special conditions and benefits not normally available to civilian employees.
2. 516. According to the Government, the validity of the application of the Army Act and Rules, including the imposition of the restriction on forming trade unions, was the subject of a Supreme Court case in 1978. The Court held that there was "no conceivable ground whereby application of the Army Act can be excluded" as regards the GREF employees because of the Government's statutory notification that the Act applied to them. The Government states that in spite of this judgement, certain employees sought to form illegal associations, an indiscipline which was justifiably corrected by the competent authorities. The Government adds that nevertheless there were some legal proceedings initiated in 1980 in this connection which are pending before the Supreme Court.
3. 517. Lastly, the Government claims that the complaint contains omissions and factual errors. It points out, in this regard, that the GREF employees had accepted the applicability of the Army Act and Rules as a condition of their employment, that several methods of grievance redressed are available to GREF employees modelled on the Armed Forces procedures, that no action has been taken against any employee which is not justified and permissible under the law. It also claims that the complainant deliberately misconstrues the Parliamentary question and answer outlined in the previous examination of this case and cites a further Parliamentary exchange which occurred on 9 July 1980 where the status of the GREF employees is unequivocally shown to be that of civilian employees governed by certain provisions of the Army Act. The Government concludes that Article 9 of Convention No. 87 and Article 5 of Convention No. 98, although neither Convention is ratified by India, preclude any finding by the Committee on Freedom of Association that a violation of freedom of association has occurred.
4. 518. It adds that in view of its present explanations, the recommendations made by the Committee in its previous interim report on this case - namely, that the Government be asked to supply its observations on certain unanswered allegations - do not call for any further action. It nevertheless does point out that certain individuals listed in the Annex as having been tried or facing trial under the Central Civil Service Rules are also covered by the Army Act and hence were also treated in such a manner that does not call for further comments.

C. The Committee's conclusions

1. 519. This case concerns the status of employees of the General Reserve Engineer Force: the complainant contends that they are civilians who have been unjustifiably denied the right to organise and victimised for having attempted to form associations, whereas the Government claims that they are a wing of the Armed Forces and therefore have no right to organise, breached Army discipline in attempting to do so and were sanctioned accordingly by the competent authorities in accordance with the appropriate procedure.
2. 520. Both the complainant and the Government have submitted evidence as to the conception, work, style and organisation of the GREF to support their opposing contentions. The Committee notes that in 1978 the Supreme Court examined this question. Since, however, it appears that legal proceedings with a bearing on the same issue are again pending before the Supreme Court, the Committee is suspending its examination of whether the GREF employees could be considered as a wing of the Army until it has been informed of the outcome of these proceedings. In addition, it would request the Government to provide its observations on the substance of the case.

The Committee's recommendations

• Recommendations of the Committee
  521. 521 In these circumstances, the Committee recommends the Governing Body to approve this interim report and to request the Government to provide its observations on the substance of the case, as well as to inform it of the outcome of the legal proceedings pending before the Supreme Court.