Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 329, Noviembre 2002

1. 194. The complaint is set out in a communication dated 19 March 2002, from Public Services International (PSI), on behalf of the Bangladesh Diploma Nurses Association (BDNA).
2. 195. The Government submitted its reply in a communication dated 15 June 2002.
3. 196. Bangladesh has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). It has not ratified the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainant’s allegations

1. 197. In its communication of 19 March 2002, PSI alleges on behalf of its affiliated organization, the Bangladesh Diploma Nurses Association (BDNA), that the President of that organization, Ms. Taposhi Bhattacharjee, together with ten other senior BDNA members, have been subjected to harassment and persecution on account of their trade union activities.
2. 198. Ms. Taposhi is a senior staff nurse at the Shahid Sorwardi Hospital in Dhaka. She has worked as a nurse in the public health sector for 22 years and, in view of her professional merit, was granted a scholarship from the World Health Organization to take part in an MSc extension course at the University of Adelaide, Australia, where she was due to submit her final thesis in December 2001. On 7 October 2001, she received a written notice that she was suspended from her post at the hospital and from her leave of absence because she had allegedly participated, on 15 September 2001, in a political meeting, which is illegal under Bangladesh public service rules.
3. 199. Ms. Taposhi submits that she was never given an opportunity to present her case. She denies the allegations, which appeared first in a newspaper, and which she immediately rejected. The inquiry report she was shown on 10 February 2002 is completely false and based on adverse testimony; when confronted with it, she provided clear evidence that these allegations were false. The managers of the building where the meeting was supposed to have taken place (“Audit Bhavan”) confirmed that no meeting was held there on 15 September 2001, as Friday and Saturday are a government holiday; the building was closed and the entrance locked. The BDNA has tried unsuccessfully to resolve the case with the employer, the Ministry of Health and other authorities.
4. 200. Thereafter, the Director of Nursing Services issued warnings against the General Secretary and nine other members of the BDNA, because they had written to protest against the suspension of Ms. Taposhi and requested that it be withdrawn. The complainant can only conclude that all these measures against Ms. Taposhi and the other executive members of BDNA are motivated by their legitimate trade union activities.

B. The Government’s reply

1. 201. In its communication of 15 June 2002, the Government states that, as a public servant, Ms. Taposhi Bhattacharjee is governed by the provisions of:
   • – the Government Servants (Discipline and Appeal) Rules, 1985;
   • – the Government Servants (Special Provisions) Ordinance, 1979; and
   • – the Government Servants (Conduct) Rules, 1979.
2. 202. While article 38 of the Constitution guarantees the right to form unions “… subject to any reasonable restrictions imposed by law in the interest of morality or public order”, article 27 provides that “nobody is above law and everybody is equal before law”.
3. 203. Under the Government Servants (Discipline and Appeal) Rules, 1985, a public servant may be dismissed for misconduct, which means: conduct prejudicial to good order or service discipline or contrary to any provision of the Government Servants (Conduct) Rules, 1979; conduct unbecoming an official, which includes submitting petitions containing wild, vexatious, false or frivolous accusations against the Government. Public servants may also be dismissed under the Government Servants (Special Provisions) Ordinance, 1979, if they engage in any activity which interferes with discipline and obstructs performance of duties by any other public servant, including inciting other public servants to be absent from, or not to perform, their duties.
4. 204. Under the Government Servants (Conduct) Rules, 1979, criticism of the Government, publication of leaflets, taking part in politics by assisting any political movement in relation to the affairs of Bangladesh, and approaching directly or indirectly any foreign aid agency, constitute offences for which a public servant may be dismissed under the Government Servants (Discipline and Appeal) Rules, 1985.
5. 205. Ms. Taposhi was suspended on 7 October 2001 and an inquiry committee, composed of the Principal of the Nursing Institute of the Dhaka Medical College Institute, was set up on 8 December 2001. This inquiry officer took evidence from seven nurses and the nursing supervisor, and submitted her report on 27 January 2002, concluding that the charges against Ms. Taposhi had been proved. The notice of dismissal was issued on 10 February 2002 and she was removed from service on 26 February 2002.
6. 206. According to the Government, it is on record that Ms. Taposhi printed, published and circulated a leaflet inciting the public in general, and public servants in particular, to rise against the then Non-partisan Caretaker Government, which amounts to sedition, treason and subversion.
7. 207. On 9 March 2002, Ms. Taposhi filed a petition to the High Court Division of the Supreme Court against her dismissal notice, which was stayed by the court on 10 March 2002. The order of the court has been carried out, and Ms. Taposhi is in her job.
8. 208. The Government adds that Ms. Taposhi requested the intervention of PSI without giving them complete information, while the matter of her dismissal was pending in court. Since the case is sub judice, any action taken by anybody would constitute contempt of court; the steps taken by Ms. Taposhi was an act of utter disregard to law and judicial norm. Article 117 of the Constitution of Bangladesh provides that complaints about service matters must be filed with the Administrative Tribunal, but Ms. Taposhi chose instead to petition the High Court Division of the Supreme Court, where the matter is now pending. As the Judiciary in Bangladesh is completely independent from the Executive, the Government cannot take any further steps in this regard.

C. The Committee’s conclusions

1. 209. The Committee notes that this case concerns the dismissal of the president of a trade union organization and threats against ten senior members of its executive committee. The Government justifies the sanction against Ms. Taposhi on the grounds that she printed, published and circulated a leaflet inciting the public in general, and public servants in particular, to rise against the Government. Ms. Taposhi flatly denies having committed these acts which she says are a complete fabrication; she further submits that she was never given an opportunity to present her defence and that these measures are due to her trade union activities.
2. 210. Concerning the Government’s argument that, since the case is sub judice, Ms. Taposhi should not have sought PSI’s intervention with the ILO and any action by anybody would constitute contempt of court, the Committee recalls that although the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration, it has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures [Digest of Decisions and Principles of the Freedom of Association Committee, 4th edition, 1996, Annex I, para. 33].
3. 211. As regards the provisions relied upon by the authorities to suspend and dismiss Ms. Taposhi, the Committee notes that the public service rules, in particular the outright prohibition of any political activity in the Government Servants (Conduct) Rules, 1979, are couched in rather wide language. The Committee further notes that the Government’s characterization of her acts is also strongly worded. It recalls that, although holders of trade union office do not, by virtue of their position, have the right to transgress legal provisions in force, these provisions should not infringe the guarantees of freedom of association nor should they sanction activities which in accordance with the principles of freedom of association should be considered as legitimate trade union activities [Digest, op. cit., para. 42].
4. 212. As regards the facts at hand, the Committee notes that the evidence adduced by the Government is rather sparse as it limits itself to stating that it is “on record” that Ms. Taposhi did commit these acts, without submitting supporting material evidence (the impugned leaflet) or testimonial evidence (that she was the person who actually published and circulated the leaflet, or that she incited other public servants to rise against the Government). It also appears from the documents submitted to the Committee that these accusations first arose out of a newspaper report, on the basis of which she was suspended, on 7 October 2001. In addition, according to the Government’s own observations, it was only two months later (8 December 2001) that an inquiry committee was set up. Furthermore, it is not challenged that Ms. Taposhi was not given a real opportunity to give her version and present her case (the inquiry officer merely read her the report, which Ms. Taposhi says is untrue and based on false and adverse testimony), nor that the location where the meeting allegedly took place was closed and locked, as the date in question was a government holiday.
5. 213. Given the seriousness of the charges and their consequences, as well as the overall frailty of evidence, the Committee considers that it would have been more consonant with due process for the hospital management to hold an inquiry first, and then eventually take appropriate measures after hearing Ms. Taposhi. In the circumstances, the Committee considers that the real motives behind her dismissal might be related to her status and activities as President of the BDNA.
6. 214. As regards the current situation of Ms. Taposhi, the Committee notes that the High Court Division of the Supreme Court issued a staying order against her dismissal notice, following which she has been reinstated in her job. It appears however that the merits of the case are still being considered by the High Court but the Committee is not in a position to appreciate on which basis the ruling was made, as it was not provided with a copy thereof. Expressing the firm hope that the Court will take into account the considerations mentioned above on the circumstances of Ms. Taposhi’s dismissal, as well as principles of freedom of association, when examining the case on the merits, the Committee requests the Government to provide it with a copy of the staying order issued on 10 March 2002, and with a copy of the final decision once it is issued. Noting that Ms. Taposhi has been reinstated in her functions pending the court decision, the Committee requests the Government to take all measures at its disposal to ensure that Ms. Taposhi be definitely reinstated in her job, should the court decide that her dismissal was due to her trade union activities. The Committee requests the Government to keep it informed of developments in this respect.
7. 215. The findings of possible trade union discrimination above are reinforced by the coincidental warnings issued to the ten senior members of BDNA’s executive committee, because they had protested against Ms. Taposhi’s suspension and dismissal. The Committee recalls that the right of petition is a legitimate activity of trade union organizations and that persons who sign such trade union petitions should not be reprimanded or punished for this type of activity [Digest, op. cit., para. 719]. The Committee urges the Government to ensure that the warnings issued to these ten workers be withdrawn from their personal files.