Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 262, Marzo 1989

1. 173. In communications of 15 and 28 September 1987, the Centre of Indian Trade Unions (CITU) presented allegations of violations of trade union rights against the Government of India. It supplied further information in a letter of 23 October 1987. The Government sent its observations on the case in letters dated 11 February, 19 May, 12 and 15 September, 14 and 31 October and 2 November 1988.
2. 174. 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); it has ratified the Rural Workers' Organisations Convention, 1975 (No. 141).

A. The complainant's allegations

1. 175. In its letters of 15 and 28 September 1987, the CITU alleges the murder of and physical attacks on CITU activists in Assam Province by the police and management-backed hired gangsters. The complainant supplies copies of memoranda on these allegations it submitted to the Home Minister of Assam on 29 August 1987, to the Director-General of the Province's police on 27 August 1987 and to the Central Government's Ministers of Home Affairs and Labour on 1 September 1987, all of which have gone unanswered.
2. 176. The CITU claims that these attacks are not isolated incidents or criminal assaults by some anti-social elements but are deliberately planned to coerce workers to leave the CITU and its affiliate unions and join the pro-management unions. It explains that the CITU, which has organised workers in the tea and plywood estates of Assam, was having collective bargaining problems and this led to a state-wide strike by plywood workers on 12 August 1987.
3. 177. It was against this background that the following incidents allegedly occurred:
   • - on 18.6.87, Mahilal Kalindi, a tea estate worker from Cachar and activist in the CITU affiliate, was arrested by the police, refused contact with his family, and his dead body was recovered from a nearby river two days later;
   • - on 2.7.87, Ashit Dutta, Secretary of the Assam State Committee of the CITU, was illegally detained for several hours and beaten by police;
   • - on 28.7.87, nine tea estate workers from Darrang District who had recently joined the CITU were arrested and beaten by the police until they agreed to leave the union; they were dismissed without notice by the management three days later;
   • - on 13.8.87, Sukhram Tanti, another tea worker from Darrang District, was arrested and beaten by police until he agreed to sever all connections with the CITU;
   • - on 14.8.87, the manager refused permission for the CITU to hold a meeting at the Bhutiachang Tea Estate scheduled for the next day;
   • - on 17.8.87, Uttam Das, General Secretary of the local plywood and sawmill union, was attacked by thugs and illegally detained by the police; three days later his union's offices were ransacked by these thugs;
   • - on 20.8.87, eight CITU activists were arrested and beaten by the Panery police until they undertook to renounce the union.
4. 178. The CITU also supplies a report prepared by Mr. Ashit Dutta (referred to above) describing the violent interruption of his local union's meeting at the Choibari Labour Club House on 3 September 1987. According to the document, armed boys attacked Mr. Umesh Das, Joint Secretary of the Choibari Tea Garden Union Committee, and stole union property (a key and radio) to hand over to the Assistant Manager. The following day, the workers complained of this violence by demonstrating in front of the tea garden manager's office and, after the union's intervention, the manager lodged a complaint with the Chapar Police Station concerning the incident. However, it appears that the thugs responsible for the violent attack on the local unionists were released on bail on 8 September and are at large, intimidating the CITU affiliate's members with openly visible lethal weapons.
5. 179. In its communication of 23 October 1987, the CITU describes the violent interruption of a peaceful demonstration of CITU workers at the Bijoypur Tea Estate on 12 October 1987 when the Assam State Police opened fire, killing one worker and injuring several others. After the shooting the police allegedly entered the workers' houses and physically assaulted their families. This incident was reported by the Assam State Committee of the CITU to the State Minister of Home Affairs on 16 October, but no action resulted from this intervention.

B. The Government's reply

1. 180. In its letter of 11 February 1988, the Government states that information from the state Government of Assam indicates that a preliminary inquiry into the allegations was conducted. On the basis of the preliminary findings, a high-level inquiry has been ordered by the state Government, to be conducted by a senior police officer holding the rank of Deputy Inspector General of Police. His full report was expected within one month and would be transmitted to the Committee once available. The state Government gave the assurance that bona fide trade union activities would not be hampered in any way and that there would be no hindrance of the right of workers to form and join organisations of their own choice as provided by the law. The relevant district administration in the state of Assam has been instructed to maintain the necessary vigilance.
2. 181. In its communication of 19 May 1988, the Government supplies information on the high-level police inquiry which has been completed as regards two of the six complaints, namely i) he beating of Mr. Ashit Dutta, Secretary of the CITU Assam State Committee, and (ii) the assault on Mr. Umesh Das, Joint Secretary of the Choibari Tea Garden Union Committee.
3. 182. As regards Mr. Dutta's case, the inquiry revealed that, on 2 July 1987, Kokrajhar township was submerged under floodwaters and some local boys started digging a culvert on the road to let the floodwater pass. In the process they damaged the road and a police party reached the spot and tried to prevent further breach of the road. An altercation followed and the police party was assaulted. Consequently, arrests were made by the police. According to Mr. Dutta's version, he was at his house at the time of the assault on the police and he was beaten and locked up when he went to the police station regarding bail for the arrested persons. But the police version is that he was present at the time of the incident and was arrested when he visited the police station. Later on he was released on bail. During the inquiry it could not be proved that Mr. Dutta was assaulted at the police station. Furthermore, according to the inquiry, "as the case is presently sub judice in court it would not be advisable to give any opinion regarding the legality of the arrest of Mr. Dutta by the police". Mr. Dutta is a known trade unionist and enjoys some status and responsibility; it is possible that he might have intervened on behalf of the boys of his locality. As to the question whether the arrest and alleged beating of Mr. Dutta had anything to do with his trade union activities, nothing came to light during the inquiry to corroborate this view. There was no trade union unrest at the time of his arrest nor had he had poor relations with the police because of his trade union activities prior to his arrest. The police action against him does not appear to have been aimed at causing harassment to him as a trade union leader. In a subsequent communication dated 14 October 1988, the Government states that Mr. Ashit Dutta is charged with assaulting a police driver when the police intervened on 2 July 1987 and restrained him from cutting the road. A case against him and five others has been registered under sections 147, 341, 353, 307 of the Indian Penal Code and a charge sheet No. 163 dated 2 December 1987 against these six persons is presently awaiting decision in the Court.
4. 183. As regards Mr. Umesh Das's case, the inquiry revealed that Mr. Umesh Das took a leading part in organising a strike on 3 September 1987. He was, however, listed as being on casual leave, so received his pay for that day unlike the other labourers. One labourer, Sundarsai Lohar, and 12 others protested against this, went to his residence and threatened him. They assaulted Mr. Ismail Hambram, another active member of the union, and forcibly held a meeting in the union club demanding action against Mr. Umesh Das. Thereafter they took the key and radio of the club and went to the house of Mr. S. Chakraborty, Assistant Manager, to hand the property over to him. But, sensing trouble, he refused to accept. When Mr. Umesh Das's union filed a complaint, the accused persons were arrested on 9 September 1987; after 15 or so days, a compromise was reached among the rival labour groups and since then there has been no further trouble in the tea garden. There is nothing to show that the bona fide trade union activities of the tea garden labourers were hampered nor that unionised workers were hindered in their basic rights under the law. According to the inquiry, the issue is one of rivalry among labourers and neither the garden management nor the police were involved in the incident. The labour leaders in the tea garden have taken steps to reach a compromise on the pay-cut issue and requested the Chapar Police Station not to proceed further with the case against the above-mentioned Lohar and party. The case has accordingly been dropped.
5. 184. In its communication of 12 September 1988, the Government supplies the following findings of the Deputy Inspector General's inquiry report relating to the police firing on CITU workers at the Bijoypur Tea Estate. On 12 October 1987 Mr. Samudra Ree, a worker belonging to the INTUC Union complained to the police station of an assault by six workers belonging to the CITU. The complaint was registered by the police station and the worker was hospitalised for two days for his injuries. The Commanding Officer of the police station went to search for the accused persons on the same day. Since it was a public holiday, the police party went to the housing area and found one of the accused in a drunken state. Meanwhile the President of the tea garden branch union of the CITU arrived accompanied by certain other labourers and asked the Commanding Officer to leave the garden giving the assurance to produce the accused persons at the police station the next day. So as to avoid an ugly situation, the Commanding Officer left without arresting any person. Since the complaint to the police had been lodged by a worker belonging to INTUC, the CITU affiliate construed it as an act of conspiracy between management and the police in order to put CITU workers in difficulty. They informed the developments to their union leaders at Rampur Tea Estate.
6. 185. According to the report, the next day at 7.00 a.m., workers of Rampur Tea Estate confronted the manager of the garden, Mr. R.S. Rajawat, and alleged that the police had been involved in a conspiracy against the CITU affiliated union, and that the complaint was a false one. The manager denied the charge and promised to look into the matter. He reached the garden at 8.00 a.m. and was met by about ten local union leaders who demanded the dismissal of the worker who had lodged the complaint and brought the police to the garden. Meanwhile 100 to 150 labourers of the garden collected in front of the office demanding action and were joined by about 200 labourers from the Rampur Tea Estate. The manager asked them to return to their work but they were adamant and surrounded him. The manager telephoned the manager of the Daloo Tea Estate and requested him to inform the police station about the developments; he also sent his security guard to the police station for help, but the workers blocked him. They also disconnected the telephone.
7. 186. When the deputy manager of Daloo Tea Estate informed the police station at 11.00 a.m. about the events, the Commanding Officer immediately sent a message to the Superintendent of Police at Silchar apprising him of the situation, requesting reinforcements and a magistrate to come to the garden to take charge of law and order. When the Commanding Officer arrived at the garden, he found about 400 to 500 workers surrounding the garden manager and his staff. The labourers prevented the Commanding Officer from entering the garden, but he managed to enter through a side fence. Despite his appeal to cease the actions, the labourers refused to do so. Meanwhile reinforcements and a magistrate were sent to the estate. The magistrate's efforts to pacify the workers failed and the labourers became more agitated when they saw the police reinforcements which arrived at 2.10 p.m. When the magistrate tried to evacuate the manager in his own jeep the labourers intercepted and damaged the vehicle by stone pelting. To control the situation tear gas shells were burst but these did not help, nor did the cane charge. Firing was then ordered and 28 rounds were fired which resulted in the death of one labourer, and the other labourers dispersed on seeing the dead body. In all, 16 police were injured as was the magistrate. One labourer was killed and the garden office badly damaged.
8. 186. According to the report, the inquiry did not reveal that there was any deliberate attempt by the police to curb the trade union rights enjoyed by the garden workers. Although the police visited the garden on 12 October 1987 to investigate the complaint, none of the named accused were arrested by the police who left the garden on the assurance of certain unionists to produce the accused persons at the police station the next day. However, the organised behaviour of the garden labourers the next day proves that the information about the police visit was circulated the same night among the labourers and the union leaders. The surrounding of the manager was an illegal act. The inquiry report states that the action of the police in visiting the garden in connection with the investigation of the complaint could appear to be over-zealous. The police might have visited the garden after taking into confidence the CITU affiliate as the complaint was by a labourer belonging to a rival union. There was, however, nothing illegal in the police action in visiting the tea garden. Similarly, the police visited the tea garden next day in connection with the complaint of unlawful treatment of the manager. There was nothing improper or illegal in this action. The Commanding Officer of the police station was also justified in seeking reinforcements and asking for a magistrate to remain in charge of law and order. The orders to disperse the violent labourers were issued according to the lawful decision of the magistrate. According to the Government, there was no wanton police action against the labourers because 28 rounds were fired by the police and one labourer was killed. This shows that the police fired mostly in the air or in different directions in order to scare away the labourers. Various factors combined to make the situation serious but during the inquiry the allegation of a deliberate police attempt to curb the genuine trade union rights of CITU affiliated labourers of Bijoypur Tea Estate could not be corroborated.
9. 188. In its letter of 15 September 1988, the Government notes that the allegation that Mr. Maina Kalandi was arrested by the police on 18 June 1987 and that his dead body was recovered from the river on 20 June 1987 contains the subtle insinuation of his torture and subsequent death while in police custody. However, according to the Government, inquiries conducted into the alleged torture and death in police custody based on the evidence on record and statements of other witnesses did not corroborate any such thing.
10. 189. The main findings of the inquiry are summarised as follows: on the night of 18 June 1987, Mr. Jayram Mal lodged a complaint at the police station alleging that Maina Kalandi had visited his house the previous night and assaulted his parents with a lethal weapon. After the incident Mr. Maina Kalandi set his own house on fire. There were witnesses to this incident. The police arrested Mr. Maina Kalandi that very evening and brought him to the police station. He was kept there for interrogation that night and was released on bond the next morning at about 10 a.m. After leaving the police station he went to a tea shop in Borkhola bazaar and had tea there; upon leaving he suddenly started running towards the Jatinga river, located a short distance away, and jumped into it. Several passers-by and shopkeepers witnessed him running away in a frenzy and a few of them saw him jumping into the river. It was only on 20 June 1987 that his dead body could be recovered from the river by the police. The body was sent for a post mortem examination and the medical report found it to be a case of death due to asphyxia as a result of ante mortem drowning. No external injury was found on the dead body during post mortem examination. The statements of three witnesses testifying that the deceased ran towards the river and jumped into it was also recorded by the magistrate of Silchar.
11. 190. The inquiry has established that there was nothing illegal in the arrest of the accused, Mr. Maina Kalandi, by the police on the complaint received from Mr. Jayram Mal. The accused was released on bond from the police station on the very next day after his arrest. There was no trade union rivalry in the above case, which took place between two individuals, in their individual capacity and not as trade union members. It was merely a matter of a crime and hence it did not at all appear to be a case of undue interference by the police in the genuine trade union activities of CITU members.
12. 191. In two further communications of 31 October and 2 November 1988, the Government encloses the findings of the Deputy Inspector General's inquiry into the alleged arrest and assault of Mr. Uttam Das, Joint Secretary of the Plywood and Saw Mill Mazdoor Union. It states that there was an incident on 17 August 1987 concerning the collection of relief money in which Mr. Uttam Das sustained injuries, described in the medical report as simple in nature. A case was nevertheless submitted to the court against both the parties to prevent them from causing any further breach of peace. Since there was no more problem between the parties, the matter was dropped. On 20 July 1987, there had been an incident resulting from trade union rivalry between two groups in which a complaint was lodged against Mr. Uttam Das. As a result of the complaint he was arrested, briefly detained by the police at the Mariani police station and released on bail the same day. As regards the alleged interference by certain elements in the CITU local office, the inquiry found that on 20 August 1987, the caretaker of the local office was threatened and asked to vacate the premises; a complaint was immediately registered with the Mariani police, but as the offence was non-cognizable, no arrest could be made by the police.
13. 192. Finally, in the communication of 31 October 1988, the Government supplies the inquiry's findings into the alleged problems at the Bhutiachang Tea Estate. As regards the alleged arrest by the Panery police and beating of nine workers with a view to forcing them to leave the CITU affiliated union, the inquiry found that most of the 986 permanent labourers employed on the estate were members of the ACMS union. Subsequently, the CITU took over and claimed membership of 700 labourers, thus causing hostility between the two unions. On 28 July 1987, an office bearer of the ACMS Union, along with a few other activists, went to the tea garden to inquire about the membership drive launched by the rival union; this led to an altercation and the assault of the ACMS official who sustained grievous injuries. A complaint was lodged with the Panery police station and the police visited the tea estate for an on-the-spot inquiry, following which they arrested eight labourers for assault. These eight labourers have been charged and the case is sub judice. The allegation of beating of these workers at the police station could not be corroborated. Likewise, states the Government, the alleged beating of Sukhram Tanti by the Panery police could not be substantiated during the inquiry. The Government stresses that the police did not interfere with the trade union rights of the tea garden labourers in these cases and that there was no illegal detention of accused persons. They were remanded in custody at the first opportune moment (29 July 1987) according to the law. The inquiry also revealed that the Bhutiachang tea garden management appeared biased in favour of the ACMS union and seemed to be victimising some of the CITU workers.

C. The Committee's conclusions

1. 193. This case concerns serious allegations of management-incited police and thug repression of members of the complainant union and its affiliates in Assam tea and plywood estates in late 1987. The repression allegedly includes: (1) murder of Mr. Mahilal Kalindi on 18 June 1987; (2) beatings while in police custody of Ashit Dutta, Sukhram Tanti and another nine unnamed tea estate workers from the same Darrang District and eight unnamed unionists from Panery District; (3) illegal detention of Mr. Uttam Das on 17 August 1987; (4) interruption of union meetings on 3 September 1987 in Choibari (including assault of Mr. Umesh Das) and on 12 October 1987 at the Bijoypur Tea Estate, and refusal to allow a union meeting at the Bhutiachang Tea Estate.
2. 194. The Committee notes that the Government set up a high-level police inquiry into the allegations. It points out, especially in view of the alleged collusion in the present case of the state police in the anti-union violence, that when disorders have occurred involving loss of human life or serious injury, the setting up of an independent judicial inquiry by the government concerned is a particularly appropriate method of fully ascertaining the facts, determining responsibilities, punishing those responsible and preventing the repetition of such actions (see Digest of Decisions and Principles, 1985, para. 78).
3. 195. As regards the inquiry's findings in the Maina Kalandi death, the Committee notes that the deceased was released from police custody on bond the morning following his detention for questioning in connection with assault charges. In particular, it notes that witnesses testified to his suicidal behaviour in jumping into the river and that the official post mortem reported "death due to asphyxia as a result of drowning". In these circumstances, the Committee considers that this aspect of the case does not call for further examination.
4. 196. As regards the inquiry's findings in the Ashit Dutta case, the Committee notes that a criminal case against him is presently before the courts. It also notes that, according to the inquiry, a link between his arrest and his trade union activities was not proven nor that he suffered ill-treatment while in police detention. The Committee requests the Government to supply information on the outcome of the case against Mr. Dutta for assaulting a police driver, as well as a copy of the court judgement to be handed down. In the case of this CITU leader and for all the other cases of alleged police beating while in detention (including that of Mr. Sukhram Tanti and eight other labourers from the Bhutiachang Tea Estate), the Committee requests the Government to supply information on the current trials concerning them and recalls that detained trade unionists, like all other persons, should enjoy the guarantees enunciated in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights and that governments should give precise instructions and apply effective sanctions where cases of ill-treatment are found so as to ensure that no detainee is subjected to such treatment (see Digest, paras. 83 and 84).
5. 197. As regards the alleged illegal detention of Mr. Uttam Das on 17 August 1987, the Committee notes that, according to the inquiry, there had been an incident involving injuries to Mr. Uttam Das on that day but no detentions, arrests or follow-up took place. The Government explains that he had been briefly held one month before the alleged date, on 20 July 1987, by the Mariani police in connection with an incident of trade union rivalry but had been released on bail that same day. In situations such as this, where the Committee is faced with directly conflicting statements without evidence being adduced to shed light on the complainant's general allegation, the Committee finds itself unable to give an opinion on the incident.
6. 198. As for the inquiry's findings in Mr. Umesh Das's case, the Committee notes that the union meeting of 3 September 1987 and demonstration the following day were linked to jealousies between two factions and that since then a settlement has been reached involving the dropping of charges against those labourers who had threatened Mr. Umesh Das and assaulted another union activist, Mr. Ismail Hambram. The Committee observes that the inquiry stresses that there has been no further trouble in that tea garden, whereas the complainant alleges that the individuals responsible for the incident are at liberty to intimidate pro-CITU workers on the estate. Since the complainant gives no further details to support its general allegation and since it appears that the forces of law and order in this case acted promptly on a complaint to apprehend individuals accused of anti-union violence, the Committee considers that this aspect of the case calls for no further examination.
7. 199. As regards the inquiry's findings on the 12 October 1987 union meeting at the Bijoypur Tea Estate, the Committee notes that this was not, as alleged, a peaceful demonstration related to occupational demands, but a violent incident based on inter-union rivalry. Although the tea garden workers used violence and threats, the Committee must express its concern that it has been found officially that police gunfire killed one of the demonstrating workers. While agreeing that self-defence is not wanton action, the Committee must stress that the firing of live ammunition on unarmed workers by the forces of order is a particularly serious act which - if proven to be an offence - should be subject to all appropriate measures so as to prevent the repetition of such actions (see Digest of Decisions, para. 80).
8. 200. As regards the allegations concerning the Bhutiachang Tea Estate management, the Committee notes that, according to the inquiry, clashes occurred in late July 1987 when rival union leaders met such that police intervention was necessitated. While not replying specifically to the alleged refusal of the management to allow a CITU meeting scheduled for 15 August 1987, the Government gives a great deal of detail concerning the tension existing at that tea garden and admits that the management appeared to be biased in favour of one union and to victimise some of the CITU-affiliated workers. In similar past cases the Committee has firmly recalled the principle that, while it has no competence to examine the merits of disputes within the various tendencies of a trade union movement, a complaint against another organisation, if couched in sufficiently precise terms to be capable of examination on its merits, may bring the government of the country concerned into question - for example, if the acts of the organisation complained against are wrongfully supported by the government or are of a nature which the government is under a duty to prevent (e.g. by virtue of its having ratified an international labour Convention) (see 73rd Report, Case No. 322 (Sierra Leone), para. 11; 234th Report, Case No. 1226 (Canada), para. 60). In particular, violence resulting from inter-union rivalry might constitute an attempt to impede the free exercise of trade union rights. If this were the case and if the acts in question were sufficiently serious, it appears that the intervention of the authorities, 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 with regard to the alleged violence (see 109th Report, Case No. 533 (India), para. 116; 218th Report, Case No. 1129 (Nicaragua), para. 479).
9. 201. In the present case, the Committee observes that India has ratified the Rural Workers' Organisations Convention, 1975 (No. 141) and has thus undertaken to ensure that "the principles of freedom of association shall be fully respected; rural workers' organisations shall be independent and voluntary in character and shall remain free from all interference, coercion or repression" (Article 3, paragraph 2, of the Convention). The Committee accordingly requests the Government to take measures to ensure that there is no favouritism by the Bhutiachang Tea Estate management such as to interfere with the right of the tea garden workers to belong to and act with a workers' organisation of their own choosing.