Informe provisional - Informe núm. 218, Noviembre 1982

1. 701. The All India Loco Running Staff Association (AILRSA) sent a complaint of violations of trade union rights in India in a communication dated 31 January 1982. Additional information was supplied in letters dated 26 March and 28 April 1982. The Trade Unions International of Transport Workers (TUI Transport - WFTU) associated itself with this complaint in a letter dated 9 March 1982. The Government replied in two communications dated 13 May and 28 July 1982.
2. 702. 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. The complainants' allegations

1. 703. In its communication of 31 January 1982, the AILRSA first refers to alleged violations of Convention No. 1 concerning hours of work in industry, 1919, as regards a 1973 railways sector agreement, signed by the Government, which limits the maximum stretch of duty to 10 hours per day. The complainant alleges that in fighting for observance of this agreement its members have been detained; in particular, Messrs. N. Sarkar (Working President), P.K. Barna (Secretary-General), S.K. Dhar (Joint Secretary-General), S.R. Bagga (President, Northern Zone) and A.K. Gupta (Secretary, Ghaziabad Branch) were arrested on 25 April 1976 and not released until 1977 under section 3(i) of the Maintenance of Internal Security Act, 1971, on the grounds that such detentions were necessary to deal with the emergency. The agreement itself remained inoperative until the Railway Board reactivated it in August 1978 and then superseded it with a similar agreement dated March 1979, arrived at after detailed discussion with the AILRSA. According to the complainant, this agreement gave de facto recognition to it for collective bargaining purposes but the terms of reference notified by the Railway Board in October 1979 did not include the right to discuss wages or allowances. However, discussions or, adjustment of pay scales took place with the Railway Board and agreement was reached in July 1980.
2. 704. The complainant states that the Government then violated the agreement by issuing a secret circular dated 26 November 1980 prohibiting discussions with unrecognised unions and by unilaterally altering the service conditions in the railways (the 10-hour duty schedule, in particular, being altered by a circular dated 3 April 1981) and by victimising the staff who insisted on observance of the rules. The AILRSA held a peaceful day-long sit-in on 17 August 1981, and presented the Minister for Railways with a memorandum concerning these allegations, in particular, the transfer and dismissal of staff under Rule 14(ii) of the Disciplinary and Appeal Rules applicable to the railways sector; the next day the Minister held a meeting with the union but his assurance to review the situation was not honoured and further demonstrations were held and memoranda submitted on 28 October 1981. According to the complainant, it was against this background that the following 12 of its officials were detained under the National Security Act, 1980, without trial: Messrs. K. Rajauna (President), R.S. Khilnani (Organising Secretary, Central Zone), N. Mahalingam (Divisional Secretary, Guntakal), Jamahuddin (Divisional President, Guntakal), B.N. Rao (Divisional President, Secunderbad), Kartar Singh (Branch Office Bearer, Anji), Jarnail Singh (Branch Office Bearer, Anji), P.R. Padmanabhan (Branch Secretary, Guntakal), Noval Singh (Branch Secretary, Narkatiaganj), Sukhalal (Branch President, Berielly City), Bisbder Ojha (Branch Office Bearer, Narkatiaganj) and Newton Eliza (Divisional Secretary, Nagpur). According to the complainant, all have since been released, Messrs. Kartar Singh, Jarnail Singh, Sukhalal and Eliza only recently after intervention by the High Court or Supreme Court.
3. 705. The AILRSA goes on to cite 620 dismissals, 575 premature compulsory retirements and 350 transfers imposed on its members after this agitation. It states that the High Courts of Andhra Pradesh, Rajasthan, Calartta and Kerala set aside some of these orders. The railway authorities themselves apparently reviewed some cases and ordered reinstatements. No one, however, in fact was reinstated. The complainant adds that there were numerous other punishments imposed on workers such as break-in-service, suspension, etc.
4. 706. In conclusion, the complainant alleges that, during the January 1981 strike, its offices in Delhi were broken into by the authorities who proceeded to remove all files and union property. According to the complainant, these had not yet been returned.
5. 707. In its communication of 26 March 1982, the AILRSA provides information relating to the seizure of its premises and property on 31 January 1981 and indicates that no independent witness was present during the confiscation. It states that no alternative accommodation has been provided by the railway authorities. It also supplies detailed lists of 237 named trade unionists who were arrested, dismissed, retired, transferred, demoted or suspended after the January-February 1981 agitation. In relation to the transfers it supplies a copy of the judgement delivered by the Andhra Pradesh High Court on 2 February 1982 setting aside the 30 transfer orders challenged therein because they "were not affected in the exigencies of service but as a measure of retaliation against the persons concerned for participating in the demonstration". In addition, the complainant alleges that family members of workers who took part in such activity were terrorised and threatened with termination of service if their fathers did not resume duties. Lastly, the complainant refers to the 19 January 1982 general one-day strike pointing out that although the railways trade union movement did not actively take part in it, 10 railway unionists were arrested on 10 February 1982 and requested by the courts to show cause why proceedings under the Essential Services Maintenance Act, 1981 should not be instituted against them far instigating the work stoppage and intimidating railwaymen on 19 January.
6. 708. In its communication of 28 April 1982, the AILRSA reiterates that the railway authorities have not yet restored the union's premises, nor have they offered alternative accommodation. It also repeats its allegations, with copies of supporting evidence, relating to the poor conditions of work in the railways, in particular as regards the long periods of duty now required by the authorities. It states that the Indian National Trade Union Congress (INTUC) affiliated union in the railways sector is granted official patronage, e.g. all officers were directed to spare railway materials for an INTUC union safety seminar while permission to use a hall for the same purpose was denied to the AILRSA. The complainant, moreover, adds four names of its leading trade unionists to the list (already referred to in its letter of 26 March) of unionists arrested in connection with the 19 January 1982 general one-day strike; these persons were allegedly detained between 16 and 19 January. In another case, a named trade union leader was punished with break-in-service for his absence on 19 January although, according to the complainant, he had not been given work by the authorities for the preceding five days. Lastly, the AILRSA refers to section 36B1 of the industrial Disputes (Amendment) Bill, introduced into Parliament on 23 April 1982, stating that if it is adopted industrial disputes in the railways sector risk losing what little protection they have under the laws in force.

B. The Government's reply

1. 709. In its communication of 13 May 1982, the Government observes that many of the allegations raised in this complaint were covered in a previous case, namely Case No. 1024.2 It states that the railway authorities have recognised for the purpose of negotiations two organisations - the All-India Railwaymen's Federation and the National Federation of Indian Railwaymen - and their affiliates, as they represent 86 per cent of the railway employees. The recognition procedures at the zonal level are well established, one of the conditions of recognition being that unions should not be sectional, i.e. based on a limited category of workers, so that the AILRSA is not eligible for recognition. The Government adds that most of the running staff employees are also members of the two recognised federations. Thus, the strength of the AILRSA is negligible and to start negotiating with unrecognised minority unions would defeat the very purpose of recognising the majority trade unions. The demands of unrecognised unions are, however, considered within the framework of the existing rules and necessary action taken to redress genuine grievances.
2. 710. According to the Government, the complainant has been by-passing the permanent negotiating machinery (for the settlement of its members grievances) and has adopted a disruptive approach of work stoppages in operationally sensitive areas, e.g. the work stoppages of 1967, 1972 and May and August 1973. It states that no agreement was in fact reached in August 1973, but only certain arrangements were agreed upon and "implemented in the spirit of the understanding reached". As regards the 1976 detentions listed by the complainant, the Government states that action was taken not because a person belonged to a particular category of government employees or was holding any particular position in any organisation but for the security of the State. The Government further denies that any agreement was reached with the AILRSA in 1979, stating that some arrangements were reached (under which certain specific issues and grievances would be examined further) which did not amount to any form of negotiation procedure. Nevertheless, the AILRSA resorted to agitation in January/February 1981; the Government refers to its comments on these incidents made in connection with Case No. 1024.1
3. 711. The Government denies that there has been any unilateral alteration in the service conditions of any category of railway staff and states that all decisions are taken in consultation with organised labour. It points out that the hours of service of running staff are governed by the Hours of Employment Regulations issued under the Indian Railways Act, and are reviewed by the Railway Labour Tribunal keeping in mind the various ILO Conventions on the subject, including Convention No. 1. The Government adds that the complainant itself states that the Minister discussed the situation with it in August 1981.
4. 712. As regards the 12 arrests mentioned by the complainant as taking place in late 1981, the Government states that its state governments, which exercise considerable autonomy in the matter of law and order, resort to such arrests where breaches of the peace, crimes or violence occur and they do not interfere with normal trade union activity. The Government again refers to its earlier reply concerning Case No. 1024 as regards the dismissals, retirements and transfers mentioned by the complainant.
5. 713. Lastly, as regards the alleged attack on union premises, the Government states that the unauthorised occupation of railway premises by any individual or union has to be dealt with under the appropriate rules governing such occupation.

C. The Committee's conclusions

1. 714. This case concerns arrests of a large number of locomotive crew, employees of the government-run Indian Railways, following agitation in 1976, 1981 and January 1982. There are also allegations concerning the Industrial Disputes (Amendment) Bill and an attack on trade union premises.
2. 715. The additional allegations of dismissals, compulsory retirements, transfers and suspensions related to the 1981 agitation were dealt with in Case No. 1024 by the Committee at its November 1981 and March 1982 meetings It does not, therefore, intend to re-examine them in the framework of this case. Likewise, it does not intend to examine the allegations made in this case concerning the application of Convention No. 1 in view of the fact that such allegations do not relate to freedom of association. In any event, the Committee notes that the Committee of Experts on the Application of Conventions and Recommendations has raised this matter in an observation addressed to the Government in 19813 and will continue its examination of the situation in that context.
3. 716. As regards the five named trade unionists who were arrested in April 1976, the Committee notes that these persons have since been released. The Government denies that these arrests were due to trade union membership. In the past, the Committee has considered that, while no formal rules fixing any particular period of prescription are embodied in the procedure for the examination of complaints, it may be difficult - if not impossible - for a government to reply in detail to allegations regarding matters which occurred a long time ago. The Committee accordingly considers that, in view of the fact that these persons are now free, no purpose would be served in pursuing its examination of this aspect of the case.
4. 717. More generally concerning arrests, the Committee notes the Government's statement that arrests under the national security legislation were carried out by state governments where breaches of the peace, crimes or violence occurred and that they were not aimed at interfering with normal trade union activity. It also notes that the Government does not give any specific information about the 14 named railways trade unionists cited in this connection by the complainant. While requesting the Government to provide its specific observations on these detentions, the Committee would recall that the detention of trade union officials for legitimate trade union activities constitutes a violation of trade union rights. In many cases where allegations that trade union leaders or workers have been arrested or sentenced on account of trade union activities have been, refuted by governments or met with statements that the arrest or detention was made for subversive activities, for reasons of internal security or for common law crimes, the Committees has always followed the rule that the governments concerned should be requested to submit further and as precise information as possible concerning the alleged measures, in particular concerning the judicial proceedings taken, and to supply the texts of sentences pronounced to enable it to examine the allegations in full knowledge of the facts.
5. 718. The Committee also notes the allegation that the Government gives favourable treatment to a rival union in the railways sector to which the Government has replied that although there is no question of negotiating with unrecognised minority unions, the demands of such unions are considered within the framework of existing rules, and the necessary action is taken to redress their genuine grievances. In this connection, the Committee has already pointed out that the mere fact that the law of a country draws a distinction between the most representative trade union organisations and other trade union organisations is not in itself a matter for criticism, provided that such distinction does not accord to the most representative organisation privileges extending beyond the privilege of priority, on the ground of its having the largest membership, in representation for such purposes as collective bargaining or consultation by governments or for the purpose of nominating delegates to international bodies. In other words, this distinction should not have the effect of depriving trade union organisations that are not recognised as being among the most representative of the essential means whereby they may defend the occupational interests of their members, organise their administration and activities and formulate their programmes, as provided for in Convention No. 87.
6. 719. As regards the allegation concerning the Industrial Disputes (Amendment) Bill, the Committee notes that the Government has not sent any information and it would accordingly request the Government to send its observations as soon as possible.
7. 720. Lastly, as regards the allegations concerning the removal of the union from its premises and the seizure of certain documents and property, the Committee notes the Government's general statement in reply that the unauthorised occupation of premises by any union has to be dealt with under the appropriate rules. The Committee observes, however, that no specific reason is given for the raid that is stated to have been made on these premises and their subsequent closure. Accordingly, the Committee, recalling that the inviolability of trade union premises is one of the civil liberties essential to the exercise of trade union rights, requests the Government to supply more specific information on this aspect of the case and to indicate what steps may have been taken for the return to the union in question of the assets that were confiscated from premises that had been occupied by the union since 6 November 1979.