Definitive Report - REPORT_NO147, 1975

1. 148. The complaint from the Koyela Shramik Sangathan (Bihar) is contained in a letter dated 7 May 1973, addressed direct to the ILO.
2. 149. Despite repeated requests by the Committee, the Government had still not forwarded its comments with respect to the allegations made by the complainants when the Committee met for its May-June 1974 session. The Committee accordingly decided at that session to appeal to the Government as a matter of urgency to supply the information requested (144th Report, paragraph 10). The Government forwarded its observations in a communication dated 26 July 1974.
3. 150. India has not ratified either 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).

A. A. The complainants' allegations

1. 151. The complainants allege that the police, in, collusion with hired thugs, management agents, have let loose a reign of terror against coalminers, engineering workers and ceramic, pottery and refractory workers in the district of Dhanbad (Bihar State). The police are said to have fired on workers six times, taking 30 lives, when all the workers were doing was to demand implementation of wage board awards, house rent facilities or pay increases. The workers' protests to the Government have gone unheeded.
2. 152. The complainants refer in particular to an incident on 18 April 1973 in Kumardhubi, when police opened fire on workers who had assembled peacefully to greet the President of their union, Mr. Jagdish Narayan Choubey. Fifteen workers, including two women, were killed and over one hundred injured.
3. 153. In the opinion of the complainants the acts committed by the police, in league with the employers, are designed to prevent the workers from exercising their trade union rights at a time when rising prices and a food shortage are making their lives especially difficult. These acts, together with dismissals and lockouts, are said to be intended primarily to interfere with the exercise of the right to organise in trade unions and the right to strike. The complainants add that large numbers of workers went on strike from 2 April 1973, after due notice had been given, because their employers refused to discuss the claims they had submitted through their union. It is alleged that these employers do not even observe the legislative provisions in force.
4. 154. The detailed information supplied by the Government may be summarised as follows. A recognised and registered trade union was functioning in three factories in the Kumardhubi region when, in 1972, Mr. J.N. Choubey - the signatory to the complaint - founded a new union and strove by every possible means, including violence, to establish himself as a labour leader in the region. Labour unrest assumed serious proportions in August 1972, when a member of the new union incited workers to indulge in acts involving coercion and intimidation. These workers prevented other workers from entering their workplaces and also beat them. These incidents led to a riot on the work premises on 20 August. The police had to intervene, and to open fire in self-defence, and an outsider died. The Government declares that there was no justification for such violent acts when the workers concerned had all the lawful remedies open to them for the redress of their grievances.
5. 155. The unrest fomented by the union was subsequently aggravated still further. The union was drawing increased adherence from the workers in the area and demanded recognition. To obtain this recognition it organised a strike in the refractories and ceramic factories in the region, and the management felt compelled to accord recognition even though this went against the provisions of the Code of Labour Discipline (which require that a union must have been functioning for at least a year - a condition the union did not fulfil). The granting of recognition did not, however, involve withdrawal of the recognition granted to the rival union.
6. 156. The Government appends to its communication the text of a settlement reached on 2 March 1973 between the management of one of the undertakings concerned and the newly recognised union; it contains, inter alia, a clause of non-recourse to strike action. According to the Government, the union continued to resort to unconstitutional practices, and organised strikes in eight refractories in April 1973. In some of these the signatory to the complaint had his recognised unions and in the remainder he claimed to have ousted the previous office-bearers. Informal discussions were fixed for 18 April 1973 as a preliminary to the initiation of formal conciliation proceedings.
7. 157. Meanwhile, continues the Government, the local law and order authorities requested the signatory to the complaint to give a bond to maintain industrial peace in the area and criminal proceedings were started against him on account of his violent activities. But he did not comply with the terms of the bond and evaded appearance in court. He was arrested during the night of 17 April 1973. An unruly mob of his followers attempted to free him by force. The mob violence compelled the police to open fire, killing three persons. The Government points out that there were thus only two firing incidents - one on 20 August 1972 and the other on 18 April 1973 - resulting in four deaths, and not six firing incidents leading to thirty deaths as claimed by the complainants.
8. 158. In protest against these incidents, continues the Government, workers in three refractories went on strike from 18 April 1973 without giving previous notice and without making any specific demands. The strike was therefore illegal and was declared to be so by the authorities. The efforts of the state conciliation machinery failed because of the intractable and devious methods resorted to by the signatory to the complaint. In the course of the discussions the employers made it clear that no negotiations could be held with him because of the unfair practices engaged in by him. They withdrew their recognition from the union and declared a lockout because of the fall in production and the indiscipline of the workers.
9. 159. The Government goes on to describe in detail the ensuing stages in the dispute and the interventions of the authorities, including the Chief Minister of Bihar State, with a view to reconciling the parties. As a result of the personal appeal made by the latter the strike and the lockout were called off. It was also decided that the question of recognition of the union would be settled after its membership had been verified. Five of the eight refractories reinstated the employees who had been dismissed, and the disputes in the remaining three were referred to the conciliation machinery for final settlement. However, owing to the lack of interest taken by the parties in these disputes the matter has not yet been settled.
10. 160. The Government further states that a settlement was reached on 4 August 1973 between the managements of the refractories and ceramic factories and the recognised unions providing for wage increases. The state Government has set up a tripartite advisory Committee under the Minimum Wages Act to fix the required minimum wage rates. It is also taking steps to set up a wage board for the industry in question. The Government observes that most of the outstanding issues have been resolved while a few are in the process of being settled, and that normalcy and industrial peace have already been restored in the area.
11. 161. In conclusion the Government reiterates that it was with the entry of the signatory to the complaint into the region in August 1972 that the region became the centre of labour unrest, violence and inter-union rivalry, resulting in strikes and lockouts. It denies that there has been any suppression or disruption of trade union activities or any infringement of trade union rights.

B. B. The Committee's conclusions

1. 162. It emerges first of all from the information supplied both by the complainants and by the Government that as a result of police intervention, once during a labour dispute and once when workers were attempting to free their arrested leader several workers were shot dead. The Committee recalls that in other cases' involving loss of human life, it has stressed the special importance it attaches to the circumstances being fully investigated by an immediate and independent special inquiry and to the regular legal procedure being followed to determine the justification and responsibility for the action taken. In the present instance the Committee observes that, according to the Government, the police intervention was prompted by acts of violence on the part of certain workers and the police were compelled to open fire. The Committee recommends the Governing Body, while noting this statement on the part of the Government, to draw the Government's attention to the principle just stated.
2. 163. The Committee further notes that the strikes were at least partly linked with the question of the recognition of the complainant union. The Government states in this connection that the union did not comply with the provisions of the Code of Labour Discipline. The Committee observes that this Code was adopted by the central Confederations of employers and of workers on a purely voluntary basis and accordingly does not have the force of law. According to the National Commission on Labour, it seems that its provisions are rarely observed in practice. This commission does state, however, that a tripartite Committee exists in Bihar State to decide on the procedure to be followed to enable a trade union to secure recognition.
3. 164. The Committee has already emphasised the importance it attaches to the principle that employers should recognise, for collective bargaining purposes, the organisations representative of the workers employed by them. The Committee has also taken the view that if there is a change in the relative strength of unions competing for a preferential right or the power to represent workers exclusively for collective bargaining purposes, then it is desirable that there should be the possibility of a review of the factual bases on which that right or power was granted. In the absence of such a possibility, a majority of the workers concerned might be represented by a union which, for an unduly long period, could be prevented - either in fact or in law - from organising its administration and activities with a view to fully furthering and defending the interests of its members.
4. 165. The Committee further considers that, in order to encourage the harmonious development of collective bargaining and to avoid disputes, it should always be the practice to follow, where they exist, the procedures laid down for the designation of the most representative unions for collective bargaining purposes when it is not clear by which unions the workers wish to be represented. In the absence of any such procedure, the authorities, where appropriate, should examine the possibility of laying down objective rules in this respect. In the present case, the Committee observes that the National Commission on Labour has stated that there is an obvious need to put into legal form the provisions of the Code of Discipline, mentioned above, respecting the recognition of trade unions.
5. 166. The Government states, however, that a settlement has been reached and that the question of recognition of the complainant union will be settled after verification - now in progress - of its membership. In these circumstances, the Committee recommends the Governing Body, while emphasising the importance of the principles set forth in the preceding paragraphs, to take note of this statement by the Government.
6. 167. As concerns the problem of strike action in support of occupational claims, the Committee wishes to point out that while it has recognised that the right to strike is one of the essential means by which workers and their organisations may promote and defend their occupational interests, it has also considered that the exercise of this right may be temporarily restricted by law until existing facilities for negotiation, conciliation and arbitration can be brought to bear, though such limitation should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage. The Committee has also considered acceptable a temporary restriction on strikes under provisions prohibiting strike action in breach of collective agreements. The Committee recommends the Governing Body to draw attention to the principles set forth above.