Interim Report - Report No 172, March 1978

Case No 837 (India) - Complaint date: 26-JAN-76 - Closed

1. 253. This case was examined by the Committee at its meeting in March 1977 when it submitted to the Governing Body an interim report contained in paragraphs 85-109 of its 165th Report.
2. 254. 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. A. The complainants' allegations

1. 255. When it previously examined this case the Committee noted that the large number of allegations related fundamentally to the following questions: detention of trade unionists without trial (or the issue of warrants for their arrest); acts of anti-union discrimination (dismissals of workers in the service of the central or state governments, transfer of postal and telegraphic workers to remote areas, suspension or dismissal of workers in the private sector); police abuses (protection of anti-social elements, threats, ill-treatment to induce workers to leave the complainant union or not to join it); measures against trade union premises (closing down, confiscation of documents and materials); refusal to allow trade union meetings or admit claims; favouritism in the choice of organisations to be represented on various bodies, or in official decisions regarding the referral of disputes to the courts.
2. 256. As regards the alleged arrest and detention of trade unionists, the CITU had stated that over 2,000 union officials had been arrested without trial, while warrants had been issued against others; this was alleged to be the case with the general secretaries and presidents of 4 state Committees of the CITU and 20 members of its General Council. The complainants had communicated the names of numerous trade unionists affected by these measures and had also pointed out that some of them had been obliged to go into hiding. These measures, added the complainants, had made it at times practically impossible for the unions to function; workers who had been arrested and released on bail found themselves out of jobs; in one case all the property of the worker concerned and his family had been confiscated; in another, the police had harassed a lawyer who was defending workers in the labour court. The CITU had also cited the case of a former trade union leader of Nadga (Madhya Pradesh), Bhairav Bharatiyaa, who had died in prison for lack of proper medical treatment. In Rajasthan, the police were said to have resorted to torture, apparently to force workers to leave the CITU and join the Indian National Trade Union Congress (INTUC); in Haryana, after the arrest of union leaders, the police were said to have openly threatened workers with imprisonment if they joined the CITU.
3. 257. The complainants had referred specifically to the arrest of many workers following a one-day hunger strike in Kerala in February 1976 and the imprisonment of CITU members who had taken part. The complainants had also stated that thousands of trade union workers in Tamilnadu had been imprisoned in early 1976, including Mr. K. Ramani, vice-President of CITU, who was in hospital at the time. Many warrants of arrest had also been issued, and these measures had made it difficult for the affiliates of the CITU to operate in Tamilnadu.
4. 258. In reply to these allegations the Government, in a communication dated 13 December 1976, had stated that the arrest of certain trade unionists following the state of emergency proclaimed on 25 June 1975 had nothing to do with the trade union activities of the individuals concerned. According to the Government, such action had been taken against those persons who endangered the security of the country by anti-social, anti-national or subversive activities.
5. 259. As regards this aspect of the case the Committee, drawing the attention of the Government to the importance which it attaches to the principle of prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists are charged with political or criminal offences which the Government considers to have no relation to their trade union functions, requested the Government to indicate the present position of the detained trade unionists to whom the complainants referred and to inform it whether legal proceedings had been taken against them, and, if so, the results of these proceedings.
6. 260. Another aspect of the case on which the Government had communicated certain observations related to the dismissal of workers. The CITU had referred to the situation of employees of the state governments stating that in West Bengal the Government had arrested and dismissed 15 union leaders, including the Secretary of the State Co-ordination Committee of the West Bengal Government Employees' Associations and Unions, under article 311(2)(c) of the Indian Constitution; this Committee, which had already been the victim of earlier measures was, nevertheless, according to the complainants, not a political organisation but was pursuing legitimate trade union activities. The CITU had also mentioned the cases of senior union leaders who had been dismissed or arrested in Tripura, Jammu and Kashmir. The complainants had also referred to dismissals of many workers in the States of Uttar Pradesh, Orissa, Haryana, Rajasthan and Madhya Pradesh. The complainants had also given an account of the situation in the Maya Engineering Workers' Union in Calcutta where a dispute had been raised following the dismissal of the workers. In a letter of 9 September 1976 the CITU had enclosed a list of 25 union leaders in West Bengal, in the service of the central or state governments, who had been detained without trial under the Maintenance of Internal Security Act and served with dismissal notice. According to the CITU, 16 of them had been released on 8 November 1975 but they had not been reinstated in their employment. The remaining nine were still in detention under lamentable conditions and were being treated as criminals; their health had deteriorated in the course of their prolonged detention.
7. 261. To these allegations the Government had responded that any dismissals which took place under article 311(2)(c) of the Indian Constitution again had nothing to do with the trade union activities of the persons concerned. According to the Government, any such action was taken on the merits of each individual case and was not limited to any particular trade union or political denomination.
8. 262. The Committee, at its session in March 1977, had requested the Government to supply information on the precise reasons for the dismissals of the trade unionists, particularly under article 311(2)(c) of the Constitution. In addition, the Committee requested the Government to communicate its observations on the other allegations made by the complainants (summarised in paragraph 3 above).
   • Further information received from the Government
9. 263. In a communication dated 19 May 1977 the Government sent further information in reply to some of the points on which the Committee had requested information. In particular, the Government pointed out that the situation in India had completely changed since the complaints were presented. The Government pointed out that there had been a change of Government and the state of emergency had been brought to an end on 21 March 1977. The action that had been taken under the state of emergency, stated the Government, had been reversed in almost every case.
10. 264. The Government added that, in the context of the emergency, persons had been taken into custody under preventive detention laws and for the commission of offences under substantive laws. The question of trial in the case of the former, stated the Government, did not arise because of the very nature of the detention. In respect of the latter, all persons taken into custody had been given the opportunity of a fair trial by an independent and impartial judiciary and they had full access to the courts according to the normal laws of the land. All persons, continued the Government, taken into preventive detention under the emergency had been released following the revocation of the emergency on 21 March 1977. As regards proceedings initiated under emergency laws, instructions had been issued to withdraw all cases pending investigations or trial except those involving violent acts or economic offences.
11. 265. The Government pointed out that action under article 311(2)(c) of the Constitution was taken only where, for reasons of security, a departmental inquiry was not considered to be in the public interest. In such cases, added the Government, for obvious reasons, it was not possible to disclose the grounds of dismissal or removal from service of government employees. However, continued the Government, for all those dismissed or removed from service in the context of the emergency, the position was being reviewed and the Government proposed to issue appropriate instructions to all concerned in this regard very shortly.
12. 266. So far as employees in industrial undertakings are concerned, stated the Government, the Ministry of Labour had already issued a directive to all state governments for the reinstatement of all those employees who had been discharged or dismissed from service owing to their absence from duty as a consequence of detention under the Maintenance of Internal Security Act, etc., or whose services had been terminated because of their association with organisations that were banned by the previous central Government. The state governments had also been requested to review all cases where the services of the employees had been terminated without going through due process of law and to give the employees concerned an opportunity to defend themselves. According to the Government, they had also been advised that, for the expeditious examination of such cases, it was desirable for the conciliation machinery to call the parties together in order to promote a mutually satisfactory solution; where this was not possible, industrial disputes that might arise may be referred to adjudication.

B. B. The Committee's conclusions

• Conclusions of the Committee
  267. 267 The Committee has taken note of the information provided by the Government in response to the request made by it in relation to a number of points when it last examined this case. It notes, in particular, that as a result of the change of Government in India, the action taken within the context of the state of emergency - which was lifted on 21 March 1977 - has been reversed in almost all cases.
  268. 268 According to the information now provided by the Government, all persons taken into preventive detention were released and any proceedings withdrawn following the revocation of the emergency, except in certain cases involving violent acts or economic offences. The Committee takes note of this information with interest. However, in view of the gravity of the allegations brought forward by the complainants as well as the specific nature of the evidence adduced by them in support of their allegations, the Committee considers that it would be appropriate, in the light of the changes that have taken place, to request the complainant organisation to communicate any additional and more recent information that may be available regarding the present situation of those trade unionists who were alleged to have been detained or in respect of whom arrest warrants had been issued.
  269. 269 As regards the dismissal of trade unionists from central and state government posts the Committee notes with interest that the situation of these persons is being reviewed and that the Government proposes to issue appropriate instructions to all concerned in this regard very shortly. The Committee notes, in addition, the Government's statement that state governments have been requested to review all cases where the services of employees were terminated and that a directive has been issued by the ministry of Labour to reinstate all employees who were discharged or dismissed as a result of absence consequent upon their detention under emergency regulations. The Committee would request the Government to supply additional information on the outcome of the review procedures, which the Committee considers to be a positive step on the part of the Government to restore a situation in which trade unionists can exercise their legitimate functions freely and without fear of reprisals. The Committee would also request the complainant organisation to provide any comments it may wish to make concerning the over-all situation in the light of the action which is being taken by the Government to review cases of dismissal.
  270. 270 With regard to the remaining questions on which the Government has not yet provided its observations, as summarised in paragraph 255 above, the Committee would request the Government to communicate its observations on these matters as soon as possible.

The Committee's recommendations

1. 271. In these circumstances, and with regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) as regards the arrest and detention of trade unionists, to note, with interest, the Government's statement that all persons who were being held in preventive detention have been released following the lifting of the state of emergency on 21 March 1977, except in cases involving violence or economic offences;
   • (b) to request the complainants to communicate any additional and more recent information that may be available regarding the present situation of those trade unionists who were alleged to have been detained, or in respect of whom arrest warrants had been issued;
   • (c) as regards the dismissal of trade unionists, to note with interest that positive action is being taken by the Government to review all cases of dismissal; to request the Government to provide additional information on the outcome of the review procedures;
   • (d) to request the complainant organisation to provide any comments it may wish to make concerning the over-all situation in the light of the action that is being taken by the Government to review cases of dismissal;
   • (e) to request the Government to communicate as soon as possible its observations on the other allegations made by the complainants and summarised in paragraph 255 above; and
   • (f) to take note of this interim report.