Rapport définitif - Rapport No. 218, Novembre 1982

Cas no 1107 (Inde) - Date de la plainte: 09-JANV.-82 - Clos

1. 161. The Centre of Indian Trade Unions presented a complaint alleging the infringement of trade union rights in India in a communication dated 9 January 1982. The Government's reply's contained in a letter dated 17 August 1982.
2. 162. 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. The complainant's allegations

1. 163. In this case the complainant alleges victimisation of the workers of the Assam Co-operative Jute Mills Limited, Silghat, who are affiliated to the Centre of Indian Trade Unions (CITU).
2. 164. The complainant explains that, up to September 1978, the Assam Co.-operative Jute Mills Workers' Union (Registered No. 713) was the only one to represent the workers in the undertaking. It was then affiliated to the Indian National Trade Union Congress (INTUC) and recognised by the management. According to the terms of an agreement with the management, a check-off system was introduced enabling it to collect trade union dues regularly. It had also started up a co-operative shop where the workers were given the facility of drawing stores on credit. The trade union and the shop, the complainant adds, were housed in the same building.
3. 165. However, in September 1978 at the Union's annual general meeting the delegates decided by 753 votes out of 1,100 to withdraw from the INTUC and seek affiliation with the CITU. The CITU, having satisfied itself that the said decision had the backing of the majority of the workers, granted affiliation to the Assam Cooperative Jute Mill Workers' Union (Registered No. 713).
4. 166. Thereupon, continues the complainant, the INTUC in collusion with the management reacted by causing a handful of workers to found a new union. The management showed favour to the new union by promptly recognising it, and started taking repressive steps against the majority union.
5. 167. The complainant trade union explains that it then submitted to the management a charter of demands, a copy of which was enclosed with the complaint as Annex I. This document cites the dismissal of two trade union executives, Messrs. Suchen Baruah and Kutubudding, the transfer to other departments of the trade union executives, Gobin Borah, Mahesh Borah and Phani Talukdar, as well as of workers including Bhogram Saikia, Abdul Ali and Mohendra Das.
6. 168. The document also mentions the cancellation of the free time facilities granted to the General Secretary and the Treasurer of the union in their capacity as workers' representatives and the denial of time off to attend union executive Committee meetings. In this regard it explains more precisely that those who, on 29 November 1979, attended the executive Committee meeting were marked absent in spite of the fact that they had duly applied for the leave and that formerly such leave had been regarded as an established practice.
7. 169. The document also refers to the management's withdrawal of the check-off facility for collecting trade union dues and credit repayments to the co-operative shop as well as to cutting off, on 29 January 1980, the electricity supply to the shop and the trade union office located in the same building, on the verbal order of the management.
8. 170. In addition, it mentions the fact that the management had interfered in trade union affairs by granting de facto recognition to a group of workers who are working against the CITU.
9. 171. Finally, it vehemently protests against the judicial proceedings instituted by the Managing Director against the President of the complainant union, Gunadhav Gogoi. On this point it explains the facts in the following manner: on 25 December 1979 the President and the General Secretary of the complainant union went to the Managing Director to discuss union affairs. The previous day, moreover, they had had a discussion with him in a very cordial atmosphere. It was true that on the 25th they did not have an appointment; however, they entered the Managing Director's office with his prior permission. The discussion was heated but at no point did the President of the Union threaten the Managing Director. Matters should have ended there but the Managing Director went straight to the police and accused the President of the union of trespass whereas, the complainant union recalls, as a member of the union executive Committee he had free access to the Mills' premises.
10. 172. In the charter of demands the complainant union calls for the reinstatement of the dismissed workers, the cancellation of the transfers, the grant of time off to enable the trade union executives to discharge their responsibilities, the restoration of the check-off system, the ending of the victimisation of the CITU-affiliated workers, non-interference by the management in union affairs, impartial behaviour to all recognised unions and the removal of the Managing Director from the factory site.
11. 173. The complainant also indicates in its communication that the Government referred a wage dispute to a tribunal but that the management dismissed workmen while the case was pending in the tribunal in violation of section 33 of the Industrial Disputes Act of 1947.
12. 174. The complainant goes on to denounce the actions of a group of INTUC workers who, according to the complainant, in the evening of 26 May 1980 when workers were attending a meeting in the house of President Shri Gunadhav Gogoi in the village of Mout Gaon, attacked those attending and injured eight of them as is shown in the complaint dated 12 June 1980 signed by President Gogoi and lodged with the Superintendent of Police of the Nowgong district, which cites blows on the head, hand wounds and damaged teeth. In this complaint to the police, the President of the complainant union also mentions ill-treatment by the police of Kaliabor of two trade unionists who had been previously attacked in the morning of 27 May 1980 at Kaliabor.
13. 175. The complainant refers finally to the actions of a group of mill workers who, led by Robin Das, a member of the union affiliated to the INTUC, on 27 May 1980 broke open the lock of the complainant union's office, occupied the premises and took possession of objects such as typewriters, tables, benches, chairs and various important papers. On 12 June 1980 the President of the trade union lodged a complaint with the police, but the latter did not take any action.
14. 176. The complainant recalls that a similar occupation of trade union premises in West Bengali has already been the subject of a complaint to the ILO and that, despite the recommendations of the Committee on Freedom of Association, approved by the Governing Body and brought to the attention of the Government, such forcible occupation of trade union premises had been repeated in this case without the police or the Government taking the necessary steps to restore the premises and their equipment to their rightful owners.
15. 177. The final annex to the complaint signed by President Gunadhav Gogoi contains the list of names of the 35 trade union members and executives dismissed before or after 26 May 1980 by the management. Workers who supported it have also been dismissed. The list indicates that six union members or executives were dismissed before 26 May 1980 and that four of them appealed to tribunals in 1980. Of the 29 other persons dismissed after 26 May 1980, including the General Secretary, Mr. Suren Gogoi, 14 likewise appealed. The text also mentions that according to an inquiry conducted by the Deputy Commissioner of the Nowgong district during the year 1980, 80 workers lost their jobs in the mill concerned, either through dismissal or leaving their place of work. The management admits that since 26 May 1980 the number of workers so affected was 40 and that since then 2 of them had died.

B. The Government's reply

1. 178. In its reply dated 17 August 1982, the Government states that the matter at issue essentially concerns a dispute within a trade union itself.
2. 179. It confirms, nevertheless, that in September 1978 a majority of the workers in the jute mills in question who had previously been affiliated to the INTUC decided to become affiliated to the CITU. It declares that with the change of affiliation, recognition and other facilities granted to the union could not be expected to be automatically continued unless the union accepted its obligations under the Voluntary Code of Discipline, which it did not.
3. 180. The incidents referred to by the complainant, namely the alleged attack on 26 May 1980 and the taking possession of the trade union premises, were the result of a quarrel between the workers affiliated to the INTUC and those affiliated to the CITU.
4. 181. Again according to the Government, the management of the jute mills denied in any way having victimised the workers affiliated to the CITU. The Government admits that the services of some 33 workers were dispensed with on, it declares, various charges and not because of their legitimate trade union activities. It also admits that 26 of them have since been reinstated.
5. 182. As regards the transfer of workers, the Government adds that the management maintains that this is a prerogative of management and that the transfers were in no way prejudicial to the workers concerned.
6. 183. In addition, the Government of India declares that the government of Assam has reported that there is no longer any CITU-affiliated union functioning in the jute mills concerned and that the workers have again changed their affiliation and rejoined the INTUC. Consequently, neither the Government nor the management have any responsibility in this matter of inter-union rivalry within the trade union movement.
7. 184. The Government states that it does not interfere in internal bickering except where quarrels between trade union factions result in violence or disturbances of law and order. Such cases have to be dealt with under the normal process of law and order, whether or not the persons concerned are trade union members. The Government concludes that there is no substance in the complaint for any infringement of trade union rights.

C. The Committee's conclusions

1. 185. In this case the allegations of infringement of freedom of association formulated by the complainant are numerous and refer to anti-union discrimination, management interference in trade union affairs, acts of aggression against trade union members and an occupation of trade union premises by a rival trade union group on the other hand, according to the Government, there has been no infringement of freedom of association.
2. 186. As regards the allegations relating to anti-union discrimination by the management (dismissals and transfers), the Committee recalls, in general terms, the importance it attaches to the principle that no one should be discriminated against on the grounds of his trade union membership or trade union activities. In particular, the Committee has always considered that not only dismissal but also transfer and other prejudicial acts would be contrary to this principle if the activities motivating such steps were in fact lawful trade union activities.
3. 187. On the subject of the actual dismissals, the Committee notes that the Government admits that 33 workers were dismissed for different reasons but that it does not specify what these were and merely states that 9t was not because of their trade union activities. The Government adds that 26 of them have since been reinstated. The Committee observes that the Government limits itself to refuting the allegations without further explanation. Under these circumstances, the Committee can only express the firm hope that no trade union executive in these jute mills is currently the subject of discriminatory dismissal or a transfer which would be prejudicial to him for having engaged in lawful trade union activities and that the possibility should be looked into of reengaging the dismissed workers who have not yet been reinstated.
4. 188. As regards the denial of time off to participate in trade union meetings, the Committee recalls that, while account should be taken of the characteristics of the industrial relations system of the country, and while the granting of such facilities should not impair the efficient operation of the undertaking concerned, Paragraph 10, subparagraph (1) of the Workers' Representatives Recommendation, 1971 (No. 143) provides that workers' representatives in the undertaking should be afforded the necessary time off from work, without loss of pay or social and fringe benefits, for carrying out their representation functions. Subparagraph (2) of Paragraph 10 also specifies that while workers' representatives may be required to obtain permission from the management before taking time off, such permission should not be unreasonably withheld. In the case in question, the Committee notes that the complainants state that they had asked for such permission and that it had not been granted.
5. 189. As regards the cancellation of the check-off system for collecting trade union dues, the Committee notes the information supplied by the Government as to the need, for the trade union benefiting there from, to accept the obligations of the Voluntary Code of Discipline, which the complainants did not. The Committee considers that the cancellation of this facility does not in itself appear to constitute an infringement of freedom of association. The same clearly does not apply to the cutting off of the union's electricity supplies which could be regarded as anti-union harassment.
6. 190. On the subject of the allegations concerning management interference in trade union affairs, the Committee notes that these allegations mainly relate to de facto recognition by the management of a minority trade union. It is not clear from the information available whether the trade union then representing the majority of the workers thereby lost the right to bargain with the employer. The Committee would nevertheless recall that the determination of the trade union recognised by the employer as the most representative one should be based on objective and pre-established criteria.
7. 191. With regard to the allegations concerning acts of aggression against trade unionists by a rival group, the Committee has already recalled on several occasions in other cases concerning India that violence resulting from inter-union rivalry might constitute an attempt to impede free exercise of trade union rights. The Committee has added that if this were the case, and if the acts in question were sufficiently serious, the intervention of the authorities and in particular, the police, would be called for in order to provide adequate protection of these rights. The question of infringement of trade union rights by the Government would only arise to the extent that it may have acted improperly on the alleged assaults.
8. 192. The Committee notes the Government's reply to this allegation in which it states that the alleged attack on 26 May 1980 was the result of an inter-union quarrel and that the Government does not interfere in such quarrels unless they result in violence or disturbances of law and order. In the present case, the Committee considers that the acts of violence referred to by the complainant (blows and wounds), which the Government has not denied, would have called for the Government to take effective steps to re-establish a normal situation and ensure the necessary protection of the trade unionists, which, according to the complainant, does not appear to have been the case despite a complaint to the police.
9. 193. As regards the allegations concerning the occupation of the trade union's premises by a rival trade union group, the Government confines itself to pointing out that the incidents were the result of a quarrel between trade unionists affiliated to the INTUC and the CITU. It declares moreover that the workers in these jute mills have now once again rejoined the INTUC.
10. 194. The Committee considers, for its part, that the acts of violence resulting from this inter-union rivalry seem to have been sufficiently serious (breaking open the lock of a trade union office, theft of trade union property) to require the intervention of the authorities whereas, although the complainant specifically states that it had complained to the police, the Government in its reply makes no mention of the action taken thereon by the police authorities.

The Committee's recommendations

1. 195. Under these circumstances, the Committee recommends the Governing Body to approve the following conclusions
   • (a) As regards the allegations concerning discriminatory dismissals and transfers, the Committee notes that the persons dismissed appealed to tribunals and that, according to the Government, 26 workers have been reinstated. Recalling the importance which it attaches to protection against acts of anti-union discrimination, the Committee expresses the firm hope that no trade union executive is currently the subject of a dismissal or a transfer prejudicial to him for having engaged in legitimate trade union activities. It hopes therefore that the possibility should be looked into of reengaging the dismissed workers who have not yet been reinstated.
   • (b) As regards the other acts of anti-union discrimination such as the denial of time off to attend trade union meetings and cutting off the electricity in the trade union premises, the Committee draws the Government's attention to the importance attached to the protection of workers' representatives in the undertaking provided for in the Workers' Representatives Recommendation, 1971 (No. 143).
   • (c) As regards the allegations concerning management interference in trade union affairs through the granting of de facto recognition to the rival trade union, the Committee considers that the determination for the purposes of bargaining with the employer of the trade union recognised by him as the most representative one should be based on objective and pre-established criteria.
   • (d) Finally, as regards the allegations concerning acts of aggression against trade unionists and the occupation of their trade union premises by a rival trade union group, the Committee considers that the assaults and acts of violence reported by the complainant - which include blows and wounds, breaking open the lock of the trade union office and theft of trade union property - were sufficient to warrant the taking of effective steps by the Government to re-establish a normal situation and ensure the necessary protection of the trade unionists involved, whereas the persons concerned complained to the police and the Government makes no mention of any action having been taken. The Committee would also recall that trade unionists, like all other persons, should enjoy protection against acts of violence.