Informe provisional - Informe núm. 17, 1956

A. A. The complainants' allegations

1. 120. The complaint, which is embodied in a letter and memorandum, dated 12 February 1954 and in a further communication dated 20 May 1954, all addressed directly to the I.L.O by the Bihar Provincial Insurance Employees' Association, contains the following allegations:
   • Allegations Relating to the Dismissal of Mr. N. N. Bhattacharya
2. 121. Mr. Nagendra Nath Bhattacharya, an employee of the New India Assurance Company in Patna, attempted to organise his colleagues in a trade union. It is claimed that the employers tried to foil his efforts by making his own position difficult in various ways (for example, by charging him with service offences at regular intervals), by dismissing five clerks to reduce their numbers at the branch to below the minimum of seven required by law for the formation of a trade union, and by giving short-term appointments and repeatedly dismissing or transferring employees. Mr. Bhattacharya was dismissed in 1949, without notice, for his trade union activities, no charges having been framed against him.
3. 122. On the matter being referred to him, the Conciliation Officer at Patna found that the company could not prove proper grounds for the dismissal and urged reinstatement, which the company refused.
4. 123. In 1951 the complaining Organisation took up the case of Mr. Bhattacharya. On 3 May 1951 the Government referred the dispute to the Dhanbad Industrial Tribunal but, on the employers' application, the Patna High Court quashed the reference to the Tribunal on the ground that the dispute was an individual dispute and not an industrial dispute within the meaning of the Industrial Disputes Act, 1947, because the case had not been formally raised as such by Mr. Bhattacharya's trade union. The Government refused to appeal against this decision to the Supreme Court.
5. 124. The complainant asks the I.L.O to approach the employers and, if this should produce no result, to ask the Government again to refer the dispute to the Industrial Tribunal. The complainant does not regard this as an individual case but as an attack on the democratic trade union rights of the workers.
   • Allegations concerning Industrial Relations Legislation in India
6. 125. The case of Mr. Bhattacharya is stated to illustrate the fact that the Indian legislation concerning industrial relations is inadequate in various ways (a) there is no comprehensive legislation covering the whole field ; (b) no legislation guides industrial relations in the insurance business ; (c) legislation does not compel employers to recognise and bargain with trade unions ; (d) conciliation officers cannot enforce their decisions and many unions cannot afford the expense of proceedings before industrial tribunals ; (e) employers are able to delay or defeat arbitration awards on technical legal grounds ; (f) while section 33 of the Industrial Disputes Act, 1947, provides that no employer may change the status of or punish a worker while conciliation or arbitration is pending, a worker cannot refer a breach of this provision to the courts without permission from the Government, which is rarely given.
7. 126. Consequently, it is alleged, employers are free to deal with the workers as they like. They engage workers without formal contracts and victimise and threaten to dismiss workers who try to organise trade unions or who are active trade union members.
   • Allegations Relating to the Prohibition of a Banking Employees' Procession
8. 127. Application is stated to have been made by the authorities before the Labour Appellate Tribunal of India, in February 1954, to have bank employees working in centres with a population of less than 30,000 excluded from the operation of awards or regulated service conditions. The Central Union of Bank Workers directed bank employees to observe 27 February 1954 as a " protest day ". The Patna Bank Employees' Association, therefore, applied to the District Magistrate to allow them to organise a peaceful procession on that day. Permission was refused.
   • Allegations Relating to Infringement of the Trade Union Rights of Employees of the Bank of Bihar (Patna)
9. 128. The Bank practices anti-union discrimination with respect to its employees and the Government will not intervene. Twenty-four hours after being elected general secretary of the union of workers at the Bank's head office Mr. K. B. Lal was transferred to a branch 100 miles away in order to prevent him performing his trade union duties. A complaint was filed with the Labour Department of the Government of India, and its officers were convinced that the Bank had engaged in anti-union activity, but the Government has taken no action. Similar treatment was accorded to a complaint filed in the case of Mr. Deonath Sinha, who organised a bank employees' association at Motihari, where he was employed at the Motihari branch of the Bank of Bihar, and was immediately transferred to Benares. Mr. K. P. Narayan was employed at the Bank's Buxar branch and was the secretary of the branch union there. He complained that the management was causing the returns showing the numbers of hours worked to be incorrectly compiled and was transferred to another branch, although the Conciliation Officer had written to the management requesting it to maintain the status quo.
   • ANALYSIS OF THE GOVERNMENT'S FIRST REPLY
10. 129. In its first reply, dated 24 November 1954, the Government presented the following observations:
    • Allegations Relating to the Dismissal of Mr. N. N. Bhattacharya
11. 130. No charges were framed against Mr. Bhattacharya and no inquiry was held by the insurance company prior to his dismissal. The Conciliation Officer at Patna being unable to settle the dispute, the Government referred it to the Industrial Tribunal, a reference which was quashed by the High Court of Patna. The Government left it to Mr. Bhattacharya to appeal against this decision, but he allowed the time limit to expire. The Bihar Provincial Insurance Employees' Association then raised a formal industrial dispute. Fresh conciliation proceedings took place in December 1953, and again the Government referred the matter to the Industrial Tribunal. The Government has tried to help Mr. Bhattacharya to obtain fair treatment, and the delay has been mainly due to the dilatoriness of his union in taking up the case. The Tribunal will go into the whole matter and, if the dismissal is found to be unjust, can order reinstatement or compensation or both.
    • Allegations concerning Industrial Relations Legislation in India
12. 131. Industrial relations in India are governed by the Industrial Disputes Act, 1947, the Trade Unions Act, 1926, and the Industrial Employment (Standing Orders) Act, 1946. The Government examines from time to time the need for changes in the light of experience. The first two Acts do not exclude banking and insurance undertakings from their scope. The Industrial Employment (Standing Orders) Act does not apply to banks and insurance companies, but even banking and insurance employees have obtained some degree of protection from tribunal awards. This Act at present applies to industrial undertakings employing at least 100 workers, but the question of extending its scope is being considered, as the Government wishes to give legal protection to workers in as many fields of employment as possible.
13. 132. The Trade Unions Act, 1926, did not originally provide for the compulsory recognition of trade unions. An amendment in this respect was adopted in 1947 but was not brought into force because the Government was preparing the Trade Unions Bill of 1950, which was intended to replace the 1926 Act and to provide for compulsory recognition of trade unions, but the Bill lapsed owing to the dissolution of Parliament. The Government does not consider a measure for compulsory recognition of trade unions to be urgent or necessary at the present time. Whether or not employers extend formal recognition to trade unions, the latter enjoy legal protection and are entitled to exercise trade union rights.
14. 133. Conciliation is essentially voluntary and decisions cannot be forced on the parties, although settlements reached through conciliation are given binding force.
15. 134. With regard to the principles to be observed in dealing with disputes, it is not feasible to frame specific rules to govern every contingency which may arise in the working of the machinery set up to improve industrial relations.
16. 135. The filing of a complaint in a criminal court in respect of violation of section 33 of the Industrial Disputes Act requires the authority of the Government, but an aggrieved worker is free to complain to the Industrial Tribunal.
    • Allegations Relating to Infringements of the Trade Union Rights of Employees of the Bank of Bihar and to the Prohibition of a Banking Employees' Procession
17. 136. These allegations were not referred to in the Government's first reply.
    • REQUEST FOR FURTHER INFORMATION
18. 137. When it examined the case at its 11th Session (Geneva, February 1955) the Committee noted, with respect to the allegations relating to the dismissal of Mr. Bhattacharya, the Government's statement that further proceedings in the matter were pending before the Industrial Tribunal and decided, as these proceedings were likely to provide information of assistance to it both in appreciating whether or not these particular allegations were well founded and in its examination of the further allegations concerning industrial relations legislation in India, to adjourn its examination of the case until the result of the said proceedings should be known and to request the Government to inform it as to the outcome of those proceedings, and to furnish a copy of the judgment in due course and, at the same time, to be good enough to forward its observations on the allegations relating to infringements of the trade union rights of employees of the Bank of Bihar and to the prohibition of a banking employees' procession, to which the Government had made no reference in its communication dated 24 November 1954.
19. 138. The Director-General communicated the decision of the Committee to the Government of India by a letter dated 11 March 1955. The Government replied on 18 April 1955 that its inquiries in the matter were not yet complete. No further observations having been received when the Committee met in its 12th Session (Geneva, May 1955), it decided once again to adjourn its examination of the case.
20. 139. This decision of the Committee was communicated by the Director-General to the Government of India in a letter dated 15 June 1955, in which he asked the Government to forward the information requested as soon as possible. The Government replied by a letter received on 21 June 1955 and presented further information in a communication dated 14 October 1955.
    • ANALYSIS OF THE GOVERNMENT'S FURTHER REPLIES
    • Allegations Relating to the Dismissal of Mr. N. N. Bhattacharya
21. 140. The Government stated, in its communication dated 21 June 1955, that the case of Mr. Bhattacharya was still sub judice and that it would not interfere with the working of the judiciary and exercise pressure to expedite the disposal of his case. In its communication dated 14 October 1955 the Government states that the case has been settled and the proceedings withdrawn by agreement, Mr. Bhattacharya being paid a lump sum by the employers as agreed compensation.
    • Allegations Relating to the Prohibition of a Banking Employees' Procession
22. 141. The Government stated, in its communication dated 21 June 1955, that the Patna Bank Employees' Association applied, in accordance with the provisions of the Bihar Maintenance of Public Order Act, 1949, a copy of the relevant provisions of which enactment is furnished, for a licence to hold a procession in Patna on 27 February 1954. The competent District Magistrate to whom the power to deal with such applications is delegated refused the application. Under Indian law the District Magistrate is responsible for the maintenance of law and order and, in this instance, considered that a procession during office working hours would have been undesirable because, although the application stated that not more than 500 persons would take part, he feared that the number would swell to thousands in the case of a procession during working hours in the busiest part of the city, so that there would be danger of obstruction to traffic and of disturbance. The procession was therefore prohibited for reasons of law and order.
    • Allegations Relating to Infringements of the Trade Union Rights of Employees of the Bank of Bihar (Patna)
23. 142. The Government's further replies contain no comments on these particular allegations, which, it will be recalled, were also not dealt with in its first reply.

B. B. The Committee's conclusions

• Allegations Relating to the Dismissal of Mr. N. N. Bhattacharya
  143. 143 It is alleged that Mr. Bhattacharya, after his employers, the New India Assurance Co., had hindered in various ways his attempts to organise his fellow-workers in a trade union, was dismissed in 1949 because of his trade union activities. On technical grounds the first attempt to have his case heard by the Indian Industrial Disputes Tribunal was quashed. The complainant asked the I.L.O, among other things, to approach the employers on behalf of Mr. Bhattacharya. While a second reference was pending before the Tribunal, negotiations resulted in the case being settled by mutual agreement between the New India Assurance Co. and the Patna Bank Employees' Association. The Government states that under the terms of the agreed settlement, all claims between the parties are liquidated and proceedings terminated, Mr. Battacharya is not to be reinstated, 10,000 rupees are to be paid to him as compensation, and neither party has any grievance or complaint against the other.
  144. 144 In these circumstances the Committee considers that, the matter having been settled by a mutual agreement which has been embodied in an award of the competent industrial tribunal, there is no ground for it to consider this aspect of the matter further. While the Committee will, as it indicated in Case No. 66 relating to Greece, take precautions to ensure that a complaint pending before it is not withdrawn under any kind of pressure, it considers that an agreed settlement between the company and trade union directly concerned which has been embodied in an award of the competent industrial tribunal should be regarded as offering all the necessary guarantees. The Committee therefore, while emphasising the importance which it attaches to the principle that workers should enjoy adequate protection against acts of anti-union discrimination in respect of their employment and, in particular, against acts calculated to cause the dismissal of or otherwise prejudice a worker on account of union membership or of participation in union activities, recommends the Governing Body to decide that these allegations do not call for further examination.
• Allegations concerning Industrial Relations Legislation in India
  145. 145 The complainants cite a number of alleged inadequacies in the legislation governing industrial relations in India, which, they claim, were illustrated by the Bhattacharya case.
  146. 146 The first contention is that no comprehensive legislation covers the whole field of industrial relations. The Government cites three statutes, the Industrial Disputes Act, 1947, the Trade Unions Act, 1926 and the Industrial Employment (Standing Orders) Act, 1946, and states that it examines the need for changes from time to time in the light of experience, but that it is impossible to frame specific rules which will cover every contingency that may arise. The Committee considers that in the absence of a specific complaint alleging violation of trade union rights it is not called upon to express an opinion on a general claim that a country should enact legislation to cover all aspects of industrial relations.
  147. 147 It is contended, secondly, that no legislation guides industrial relations in the insurance business. The Government points out that insurance undertakings are not excluded from the Trade Unions Act, 1926, and the Industrial Disputes Act, 1947, which is confirmed by the fact that the case of the insurance employee, Mr. Bhattacharya, was pending in accordance with the provisions of the latter Act when it was settled. The Committee, therefore, considers that this allegation is not consistent with the existing facts.
  148. 148 Thirdly, it is claimed that legislation does not force employers to recognise and bargain with trade unions. The Government does not consider it necessary to provide for compulsory recognition of trade unions by legislation, but states that trade unions do enjoy legal protection and are entitled to exercise trade union rights. The Committee has already decided in two previous cases that a government, having given legal recognition to trade unions as competent to regulate employment relations, is not under a duty to enforce collective bargaining by compulsory means. In the present case the Committee considers that insufficient evidence has been offered to show that the legal position with regard to this point in India constitutes an infringement of trade union rights.
  149. 149 The fourth contention is that conciliation officers cannot enforce their decisions and many unions cannot afford the expense of proceedings before industrial tribunals. The Government states that conciliation is essentially voluntary and that decisions cannot be forced on the parties but that settlements reached through conciliation are given binding force. The Committee considers that the essence of conciliation is the attempt to bring about an agreement between the parties and that the fact that a conciliation officer cannot enforce his ideas of a settlement, although a settlement freely reached is binding, does not constitute an infringement of trade union rights.
  150. 150 Fifthly, it is claimed that employers are able to delay or defeat arbitration awards on technical grounds. The only evidence given in support of this contention is that the first reference to the Tribunal in the Bhattacharya case was quashed by the High Court. The Government points out that the reason for this was the very material one that the dispute was not at that time raised, in accordance with the Industrial Disputes Act, by the trade union to which Mr. Bhattacharya belonged. The Committee considers therefore that the complainant has not furnished sufficient evidence in support of this particular allegation.
  151. 151 It is further contended that if an employer changes the status of or punishes a worker while conciliation or arbitration is pending, contrary to section 33 of the Industrial Disputes Act, 1947, the worker cannot refer this contravention to the courts without permission from the Government. The Government points out, however, that the aggrieved worker in such a case is free to complain to the Industrial Tribunal but that the filing of a complaint in a criminal court requires the authority of the Government. The Committee considers that, recourse to the Industrial Tribunal being available, the complainant has not offered sufficient evidence to show that trade union rights are being infringed in this respect by the fact that the system in force precludes the filing of a criminal complaint.
  152. 152 The Committee therefore recommends the Governing Body to decide that these allegations do not call for further examination.
• Allegations Relating to the Prohibition of a Banking Employees' Procession
  153. 153 It is alleged that, as the authorities were stated to be taking steps before the Labour Appellate Tribunal to secure the exclusion of banking employees in centres of less than 30,000 inhabitants from the operation of awards or regulated conditions, the Patna Bank Employees' Association applied for permission to organise a peaceful procession on 27 February 1954, the day which the Central Union of Bank Workers had directed bank employees to observe as a day of protest, but that permission was refused. The Government states that permission was refused by the district magistrate to whom application for permission was made in accordance with the Bihar Maintenance of Public Order Act, 1949, because he, as the official responsible for the maintenance of public order, considered that a procession during working hours in the busiest part of the city would involve danger of obstruction to traffic and of disturbance.
  154. 154 In several earlier cases the Committee has emphasised that the right to organise public meetings constitutes an important aspect of trade union rights. It would appear from the Government's reply, however, that the prohibition complained of did not relate to a public meeting nor even to a public demonstration as such but to the demonstrators' passing in public procession along the public highways in the busiest parts of the city of Patna during working hours, when it might reasonably be feared that traffic would be obstructed and disturbances occur. In these circumstances, following its precedent in Case No. 99 relating to France, the Committee considers that the complainant has not offered proof that the measure taken constituted an infringement of the exercise of trade union rights and, therefore, recommends the Governing Body to decide that these allegations do not call for further examination.
• Allegations Relating to Infringements of the Trade Union Rights of Employees of the Bank of Bihar (Patna)
  155. 155 In support of the allegation that the Bank practises anti-union discrimination with respect to its employees the complainant refers to three specific cases of persons alleged to have been subjected to such discrimination and gives details of measures stated to have been applied to the persons in question. As the details given appear to be sufficiently precise, but the Government has not referred to them in any of its replies, the Committee considers that, before it formulates its recommendations on this aspect of the case, it should ask the. Government again to forward any observations which it may care to make thereon and adjourn its further examination of these allegations until its next session.