Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 283, Junio 1992

1. 103. The Committee examined this case at its meeting in May 1991 when it presented an interim report (see 278th Report, paras. 287-308, approved by the Governing Body at its 250th Session). The Government sent new observations in a communication dated 9 March 1992.
2. 104. India has ratified neither 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. 105. In communications dated 10 January and 16 October 1989, the Hindustan Engineering Employees' Trade Union (HEETU) made allegations against the Government of India concerning acts of anti-union discrimination by the management of a private educational institution in Madras, known as the Hindustan Institute of Engineering Technology. The Government recognised that the management of this Institute had adopted an extremely hostile attitude to the attempts made by its employees to establish or join trade unions.
2. 106. After the examination of the case in May 1991 by the Committee, the aspects of the case which remained pending concerned the means of legal recourse available to the HEETU against a series of breaches of the principles of freedom of association constituted by:
   • (i) the issue of a circular expressly intended to dissuade employees from joining, or participating in the activities of, a trade union;
   • (ii) the dismissal of 72 workers, including the entire executive of HEETU, for having exercised legitimately their right to strike; and
   • (iii) the instigation of an employee of the Institute to destroy property belonging to the HEETU, and on the outcome of the complaint lodged by Mr. Ayyampilly, General Secretary of the HEETU, following his dismissal in 1988.
3. 107. In the light of the Committee's interim conclusions, the Governing Body approved at its May-June 1991 Session the following recommendations (see 278th Report, para. 308):
   • (a) The Committee expresses its concern at the time which has elapsed since the occurrence of the events which gave rise to this complaint, and urges the Government to provide a full response to all of the complainant's allegations so as to enable the Committee to complete its examination of this case at its next meeting.
   • (b) The Government is asked to provide a clear account of the means of legal recourse which were available to the HEETU and its members and officials in respect of the breaches of the principles of freedom of association constituted by: (i) the issue of a circular on 7 January 1989 which was expressly intended to dissuade employees from joining or participating in the activities of a trade union; (ii) the dismissal of 72 employees, including the officers and entire executive of the HEETU, by reason of their participation in what appears to have been a legitimate exercise of the right to strike in February and March 1989; and (iii) the instigation of an employee of the Institute to destroy property belonging to the HEETU in August 1989.
   • (c) The Government is asked to provide a clear indication as to the outcome of any legal proceedings which are relevant to the matters listed in paragraph (b). This information should include an explanation of the nature and content of the "conciliation report" to which the Government refers in its communication of 29 October 1990.
   • (d) The Committee notes that the criminal charges which were laid against the general secretary of the HEETU were not proceeded with. It nevertheless draws the attention of the Government to the principle that allegations of criminal conduct should not be used to harass trade unionists by reason of their union membership or activities.
   • (e) The Government is asked to supply full details on the outcome of the complaint against his dismissal lodged by the general secretary of the HEETU in 1988.

B. The Government's further information

1. 108. In its letter dated 9 March 1992, the Government states that it has drawn the attention of the Government of Tamil-Nadu to the fact that the Committee has expressed concern regarding the time which has elapsed since the occurrence of the events which gave rise to the complaint, and that it has urged the Government to provide a full response to all the complainant's allegations.
2. 109. As regards the means of legal recourse available to the HEETU, and its members and officials, the Government points out that article 19 of the Constitution of India gives citizens a fundamental right to form associations. Any restrictions thereon can be taken before the Supreme Court and the High Courts under articles 32 and 226 of the Constitution. Under article 226, the High Courts are competent regarding any violation of a right for which no alternative remedy is available under a specific legislative provision.
3. 110. The Government also states that the Trade Union Act of 1926 grants registered trade unions certain immunities from criminal and civil action, and that the Industrial Disputes Act of 1947 provides that any agreement between an employer and his workers is binding on the parties under this Act. In the event of an industrial dispute the conciliation officer may hold conciliation proceedings to bring about a settlement. Any agreement reached in the conciliation proceeding is also binding on the parties. The Act also prescribes that in the event of failure to reach agreement following conciliation, the government of the State concerned may refer the dispute to a labour court for adjudication which is binding on all parties. Any breach of an agreement reached between the parties, whether or not as a result of conciliation, as well as the failure to respect the ruling of the labour court, are subject to sanctions under the law.
4. 111. In the present case, the Government stipulates that following the dismissal of 72 employees by the management of the Institute in 1989, the HEETU did not initiate judicial proceedings on behalf of its members but that 13 workers, under the provisions of section 2A of the Act of 1947, lodged an appeal in their own names before the assistant labour commissioner in Madras, in his capacity as the conciliation officer, for their reinstatement in their work posts. Section 2A enables individual workers, in the event of dismissal, to lodge an appeal without the intervention of the trade union. The Government states that the labour commissioner accepted these appeals for conciliation and that the cases are now pending in the Principal Labour Court in Madras. In a communication dated 13 February 1991, the Government had already provided this information and stipulated that, since the conciliation officer had not obtained any agreement, the State Government of Tamil-Nadu had placed the cases before the labour court of Madras.
5. 112. As regards the issue on 7 January 1989 of a circular which was expressly intended to dissuade employees from joining or participating in the activities of a trade union, the Government states that such an act constitutes an unfair labour practice by the employer, punishable by imprisonment of up to six months or a fine of up to 1,000 rupees, or both, under the Industrial Disputes Act of 1947. The Government points out, however, that, according to a judgement of the Supreme Court, a member of the teaching staff cannot be treated as a workman under the meaning used in the 1947 Act. The Government adds that it is likely that the Hindustan Institute of Engineering Technology is governed by a State Statute which regulates the conditions of employment of employees not covered by the 1947 Act. The Government reaffirms that any person whose legal rights have been infringed may lodge an appeal with the High Court under article 226 of the Constitution if no specific legal text makes provision for legal recourse before a court. The Government has asked the Government of the State of Tamil-Nadu to inform it whether there is any statute of this State which regulates the conditions of employment of employees of educational institutions.
6. 113. As regards the outcome of the complaint lodged in September 1988 by Mr. Ayyampilly, general secretary of the HEETU, with the labour commissioner of Madras concerning his dismissal, the Government states that this matter is pending before the Principal Labour Court in Madras.

C. The Committee's conclusions

1. 114. As regards the various acts of anti-trade union discrimination by the management of the Hindustan Institute of Engineering Technology against officials and members of the HEETU, the Committee notes first of all that 13 of the 72 employees dismissed, who were all officials and leaders of the trade union in question, made an appeal to the assistant labour commissioner in Madras in his capacity as the conciliation officer, under section 2A of the Industrial Disputes Act of 1947, for reinstatement in their work posts and that these cases are pending in the Principal Labour Court in Madras.
2. 115. As regards the complaint lodged by the general secretary of the HEETU in 1988 concerning his dismissal, the Committee takes note of the Government's reply that this matter is pending in the Principal Labour Court in Madras.
3. 116. As regards the issue by the management of the Institute on 7 January 1989 of a circular to dissuade employees from joining or participating in the activities of a trade union, the Committee notes that such action constitutes an unfair labour practice by the employer which is punishable by imprisonment of up to six months or a fine of up to 1,000 rupees, or both, under the provisions of the Industrial Disputes Act of 1947.
4. 117. However, the Committee notes that the Government states that, according to a judgement of the Supreme Court, a member of the teaching staff cannot be treated as a workman under the meaning used in the 1947 Act and that it is likely that the Hindustan Institute of Engineering Technology is governed by a State Statute which regulates the conditions of employment of employees who are not covered by the 1947 Act. The Committee notes that the Government has asked the Government of the State of Tamil-Nadu to inform it whether any statute of this State regulating the conditions of employment of employees of educational institutions exists.
5. 118. The Committee notes a certain contradiction in the Government's reply. The latter states on the one hand, that the 13 teachers dismissed lodged an appeal under section 2A of the Industrial Disputes Act of 1947, which seems to indicate that they would fall within the scope of this Act, and on the other hand, that the Supreme Court does not consider teachers as "workers" in the sense used in the 1947 Act, which would mean that employees of the Institute would not be entitled to appeal against unfair labour practices, such as the issue of the circular of 7 January 1989, which are prohibited by the 1947 Act.
6. 119. If teachers are not covered by the 1947 Act, it would however be appropriate, in the view of the Committee, for legislation to establish explicitly means of legal recourse and dissuasive and effective sanctions against acts of anti-union discrimination committed against them. This protection should cover not only recruitment and dismissal but also any discriminatory measure occurring during the course of employment and, in particular, transfers, downgrading and other prejudicial acts. Furthermore, in the event of dismissal for trade union activities, measures should be taken to enable the workers concerned to be reinstated in their functions.
7. 120. The Committe therefore requests the Government to verify whether the teachers of the Hindustan Institute of Engineering Technology are considered as workers in the sense used in the Industrial Disputes Act of 1947 and, if this is not the case, to take the necessary legislative measures to guarantee teachers in general and the members of the HEETU in particular adequate protection against acts of anti-union discrimination and the establishment of effective and sufficiently dissuasive sanctions. It asks the Government to keep it informed of developments in this respect.
8. 121. As regards the judicial proceedings lodged by the dismissed workers, the Committee observes that these cases have been pending for a long time. In particular, the complaint by the general secretary of the union was filed almost four years ago. The Committee expresses its concern at the slowness of the proceedings and recalls that cases concerning anti-union discrimination, contrary to Convention No. 98, should be examined rapidly, so that the necessary remedies can be really efficient. The Committee expresses the firm hope that these cases will now be judged in the very near future.
9. 122. In order to have complete information on the outcome of the appeals lodged, the Committee asks the Government to keep it informed of the outcome of all cases pending, and to provide, if possible, in one of the ILO working languages, the text of the decisions of the labour court of Madras in the matters concerning the 13 dismissed employees and the complaint lodged by the general secretary of the HEETU.