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Effect given to the recommendations of the Committee and the Governing Body
Effect given to the recommendations of the Committee and the Governing Body- 39. The Committee last examined this case, in which the complainant alleged refusal by the management of a garment enterprise to negotiate with the Vastra Silai Udhyog Kamgar Union, police interference in an industrial action, anti-union dismissals and the lack of grievance mechanisms in the state of Uttar Pradesh, at its October 2016 meeting [see 380th Report, approved by the Governing Body at its 328th Session, paras 27–35]. On that occasion, the Committee recalled the incompatibility that could exist between the functions of Development Commissioner and Labour Commissioner when performed by the same person and requested the Government once again to take all necessary measures without delay to review the matter so as to ensure that the functions of Labour Commissioner are not performed by the Development Commissioner in the Noida Special Economic Zone, especially as regards conciliation and mediation efforts, and to ensure that an independent person having the confidence of the parties or an impartial body carries out these functions. The Committee also requested the Government to take the necessary measures to ensure that the complaints of anti-union discrimination are examined without further delay in the framework of national procedures which are prompt, impartial and considered as such by the parties concerned and, if it was confirmed that the alleged dismissals and lay-offs were linked to legitimate trade union activities, to take measures to ensure that the workers concerned are appropriately compensated, including through reinstatement, if still possible. Finally, the Committee requested the Government to endeavour to bring the parties together without delay with a view to considering all elements raised, and finding a solution satisfactory to all parties concerned.
- 40. In its communication dated 28 February 2017, the Government indicates that: (i) the Development Commissioner is a public servant and very senior Government officer who has been delegated the power of the Labour Commissioner by the State Government of Uttar Pradesh, in line with the Central Government Special Economic Zones (SEZ) Rules, 2006, with a view to facilitating expedition and objective implementation of labour laws in special economic zones; (ii) the basic objective of this is to provide ease and comfort to both the entrepreneurs and the units and this system is working well in the Noida Special Economic Zone (NSEZ); (iii) as per the amendment of section 2A of the Industrial Disputes Act, workers are allowed to directly approach the Labour Court or Tribunal for adjudication of disputes arising out of discharge, dismissal, retrenchment or termination from service and the amended Act also provides for the establishment of a Grievance Redressal Machinery (GRM) within industrial establishments of 20 or more workers with one stage appeal at the head of the establishment for resolution of disputes; (iv) since the matter of lay off of the workers is under consideration of the High Court of Allahabad, it is not possible at this stage to bring the parties together; and (v) the police is not allowed to attend conciliation proceedings but in a democratic society, anyone is free to call the police for their protection and safety, which is a constitutional right in India; however, in the present case, it was ensured that no police intervention occurred.
- 41. The Committee regrets that the information provided by the Government simply reiterates its previous statements without responding to the pending requests in the Committee’s latest recommendations. Bearing in mind the lack of progress and the time that has elapsed since the presentation of the complaint in May 2012, the Committee trusts that the Government will be able to report progress on the matters addressed below.
- 42. With regard to the role of the Development Commissioner, who has been vested with powers of the Labour Commissioner in SEZs, the Committee notes that the Government affirms the good functioning of this system. The Committee recalls, however, its conclusions on a number of occasions regarding the incompatibility that may exist between the functions of Development Commissioner and Labour Commissioner when performed by the same person. Furthermore, the Committee recalls the complainant’s allegations that this mechanism does not have the confidence of all parties concerned, especially when allegations of anti-union discrimination are directed against the NSEZ administration itself, as in this case. The Committee therefore requests the Government once again to review the matter with the relevant social partners so as to ensure that the functions of Labour Commissioner are not performed by the Development Commissioner in the NSEZ, especially as regards conciliation and mediation efforts, and to ensure that an independent person having the confidence of the parties or an impartial body carries out these functions. The Committee requests the Government to keep it informed of any developments in this regard.
- 43. Concerning the allegations of anti-union discrimination and layoffs, while noting the Government’s explanation on the recourses that are available to workers, the Committee observes with deep concern that more than six years after the alleged layoffs and retrenchments in this case, the complaints of anti-union discrimination are still pending before the High Court of Allahabad and that for this reason, according to the Government, it is not possible to bring the parties together. As concerns allegations that legal proceedings are overly lengthy, the Committee has recalled the importance it attaches to such proceedings being concluded expeditiously, as justice delayed is justice denied. Delay in the conclusion of proceedings giving access to remedies diminishes in itself the effectiveness of those remedies, since the situation complained of has often been changed irreversibly, to a point where it becomes impossible to order adequate redress or come back to the status quo ante [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 169 and 1144]. The Committee further considers that the fact that the judicial proceedings are still pending in this regard should not prevent the Government from reaching out to both parties and endeavouring to bring them together, especially in view of the lengthy proceedings, and trusts that the Government will take all steps in its power in this regard. In light of the above, the Committee requests the Government to take the necessary measures to ensure that the pending court cases relating to the complaints of anti-union discrimination are rapidly concluded in the framework of national procedures which are prompt, impartial and considered as such by the parties concerned and, if it is confirmed that the dismissals and layoffs were linked to legitimate trade union activities, to take measures to ensure that the workers concerned are appropriately compensated, including through reinstatement, if still possible.
