Report in which the committee requests to be kept informed of development - REPORT_NO302, March 1996

1. 329. In a communication of 15 May 1995, the Centre of Indian Trade Unions (CITU) submitted a complaint of violations of freedom of association against the Government of India. It presented additional information in a communication dated 27 September 1995.
2. 330. The Government supplied its observations in communications dated 3 October 1995 and 18 January 1996.
3. 331. India has not ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), or the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 332. In its complaint, the Centre of Indian Trade Unions (CITU) alleges that the trade union rights of the tea garden workers of Choibari Tea Garden, Dhubri, Assam State, India, have been brutally suppressed by the tea garden management and the local police authority.
2. 333. More specifically, the CITU explains that the Choibari Garden Unit of Nikhil Assam Cha Mazdoor Sangh (CITU) mobilized itself within the Choibari Tea Garden on 1 May 1995 to celebrate May Day through the hoisting of the union flag to be followed by a brief meeting. However, the local police authority under the leadership of the officer-in-charge of Chapar police station, forcibly prevented the workers from hoisting the flag and assaulted them brutally leaving Deepankar Kurmi, Umesh Das and many others injured. During this incident, tea garden officers and some armed gangsters hired by the management were also present. Following May Day, these armed henchmen continued to terrorize workers and union activists in various ways but the local police authorities refused to intervene against them.
3. 334. Furthermore, Umesh Das, Vice-President of the union was denied medical treatment for his injuries by the tea garden's medical centre. On 5 May 1995, he was called into the company's office building and was physically forced to sign his own resignation letter. On 7 May, the above-mentioned armed henchmen ransacked Umesh Das's house and assaulted his family members with the intention of throwing him out of his quarters.
4. 335. In its communication of 27 September 1995, the CITU adds that although the Labour Commissioner of the state government of Assam carried out an inquiry relating to the above matters, a copy of the report with the findings has not been given to it or to its local affiliate to date. It also describes the following incidents which, in its view, points to the nature of the inquiry conducted.
5. 336. First of all, information about the inquiry being held was given to the concerned trade union only 24 hours before with the result that several concerned workers, functionaries and others could not be present. This vitiated the inquiry in that all facts germane to the complaint could not be brought on record. Moreover, the Labour Commissioner preferred to stay at the company's bungalow even though the government guest house was booked for him. Acceptance of management's hospitality is contrary to the normal practice which government officials are supposed to observe and, in this case, it was prejudicial to getting at the truth.
6. 337. The CITU further asserts that the statement on behalf of the trade union was not recorded by the Labour Commissioner nor did he give oral dictation of the record. It was recorded by a clerk of the Labour Department who omitted several important portions. The Labour Commissioner reacted adversely when requested to record the statement in full. In addition, when the trade union wanted to submit photostat copies of some statements and other records, the Labour Commissioner - instead of accepting these - directed that those might be submitted to the Assistant Labour Commissioner, Dhubri, miles away. Finally, despite repeated requests, the Labour Commissioner refused to visit the quarters of Umesh Das, the most adversely affected victim.
7. 338. Under such circumstances, the CITU's apprehension that the outcome of the inquiry will neither be fair nor impartial seems to be well founded.

B. The Government's reply

1. 339. In its initial communication of 3 October 1995, the Government indicates that upon the Government's request, the complaint made by CITU regarding the violation of the trade union rights of the workers employed in Choibari Tea Garden, Dhubri, Assam by the management and the police was investigated by the Labour Secretary and Labour Commissioner of the state government of Assam and the Deputy Commissioner of Dhubri District, Assam. Based on the report received from the government of Assam, the central Government furnishes the following comments.
2. 340. The officials investigating the complaint held discussions with the management and about 50 workers of the Choibari tea estate, as well as with A. Dutta, General Secretary of the Nikhil Assam Cha Mazdoor Sangh affiliated to CITU and Umesh Das. During the investigations it was revealed that some CITU members, most of them not belonging to Dhubri District, have been trying to stir up trouble and unrest among the tea garden workers even though they do not have any hold over the workers. The relationship between the workers and the management in the tea estate is extremely cordial. There has been no dispute regarding wages and facilities provided to the workers by the management. The workers had formed a committee called the Choibari Cha Shramik Sangh and this is the only labour organization representing the workers of the tea estate. It is also interesting to note that this organization is not affiliated to any recognized trade union.
3. 341. On the occasion of May Day 1995, reportedly a group of Communist Party of India (Marxist) CPI (M) activists and leaders belonging to CITU gathered at Hatikhola ground under the Choibari tea estate with the objective of hoisting the CPM flag. The management of the tea estate was not informed nor invited to attend the function. Only a few workers of the estate like Umesh Das, along with Deepankar Kurmi, who is not an employee of the tea garden were present. Apprehending a law and order problem, in the eventuality that CITU workers forcibly tried to organize a meeting after the May Day flag hoisting, the officer-in-charge of the Chapar police station dispersed the small group of workers in which Messrs. Kurmi and Mahesh were allegedly manhandled. However, nobody is reported to have sustained serious injuries.
4. 342. Moreover, Umesh Das, a tractor driver in the Choibari tea estate is considered to be a man of doubtful integrity who rarely reports for duty on time. There are several allegations regarding financial malpractices against Umesh Das, who is understood to have fraudulently raised money from workers in the tea garden estate. The allegations of denial of medical treatment to Umesh Das, ransacking of his house, assaulting his family members with a bid to throw them out of the quarters by the local police are false. Mr. Das has been procuring medicines from the tea garden hospital through his younger brother. He is residing in a quarter allocated to the tea garden workers which has basic facilities. He has neither been forced to sign his own resignation letter nor has his service in the tea garden been threatened or terminated by the management.
5. 343. In brief, CITU's attempt to forcibly win over the tea estate workers who are happy with their organization and the garden management is the main reason for the trouble that took place on May Day after the flag hoisting. The allegation of suppression of basic human rights by the police or the garden management is totally fabricated.
6. 344. In its later communication of 18 January 1996, the Government encloses extracts of comments made by the Labour Commissioner of Assam on the allegations made by the CITU with regard to the unfair and partial nature of the inquiry carried out by the Commissioner. The Government itself, after taking up the matter with the state government of Assam once again, is of the view that the above allegations were made to discredit the Commissioner, and therefore, his report. The Government emphasizes that it has ratified ILO Convention No. 81 concerning labour inspection, and the Indian Plantations Labour Act envisages, among other things, labour inspection in tea gardens. In this concrete case, the inquiry was carried out by the Labour Commissioner of the government of Assam who is the highest state government functionary for labour inspection. Moreover, while India has not ratified Convention No. 87, the Indian Constitution and laws guarantee freedom of association and their provisions are enforceable and protected by the Indian judicial system. The Government points out that CITU is free to have recourse to the judiciary if it considers it has a genuine grievance which can be substantiated in a court of law.
7. 345. With regard to the comments made by the Labour Commissioner of Assam State, the latter indicates first of all that considering the urgency of the matter, he had informed the Assistant Labour Commissioner of Dhubri to inform the concerned labour union and the garden management on 9 July 1995 that he would be conducting an inquiry on 11 July 1995. Moreover, since the nearest government bungalow at Chapar did not have basic amenities like water and electricity and was totally unsuitable from the security point of view, he was advised by the local police to stay in the guest house in the garden. The Government is aware that this entire zone is an area where Bodo insurgents have been very active.
8. 346. The Labour Commissioner states that he had reached the garden in the afternoon of 10 July 1995 and on that very evening he had visited the workers' club where a large number of workers had assembled and repeatedly told him of their disinclination to show their allegiance to any recognized political party or any trade union affiliated to any such party. This point had already been highlighted in his report to the Government sent earlier. During the inquiry, there was no steno attached to the Labour Commissioner and whatever he saw was dictated by him to one assistant belonging to the office of the Assistant Labour Commissioner of Dhubri who was present with him all through. Therefore, the allegations that the statement of the trade union was not recorded by him, that he did not give oral dictation, that the statement was recorded by a clerk of the Labour Department who omitted several important portions are absurd. Moreover, trade union representatives were present during the Labour Commissioner's discussion with the workers in the club house and in the outside field as indicated by CITU itself in its complaint when it states that the trade union wanted to submit copies of some statements, but that the Labour Commissioner refused to accept these and directed that they be submitted to the Assistant Labour Commissioner of Dhubri, who was miles away. Papers submitted by the union and others were received by the Labour Commissioner and after going through them, they were handed over to the Assistant Labour Commissioner, Dhubri, since they contained allegations that would require further inquiry at the level of the Assistant Labour Commissioner, Dhubri. These documents, however, had nothing to do with the complaint which the Labour Commissioner had gone to inquire into but they related to other matters falling within the purview of the jurisdiction of the Assistant Labour Commissioner of Dhubri.
9. 347. Finally, as regards the allegation that the Labour Commissioner refused to visit the quarters of one of the victims, Umesh Das, the Commissioner points out that Umesh Das, despite earlier intimation given to him by the Assistant Labour Commissioner, Dhubri, did not present himself for making any submission he might have had. However, as already indicated in the Commissioner's earlier report to the Government, it was found that Umesh Das was hale and hearty and had already shifted to a garden quarter nearby which had both electricity and running water. Considering the bad reputation that he has and since he absented himself wilfully, the Commissioner did not think it proper to visit his residence.

C. The Committee's conclusions

1. 348. The Committee notes that the allegations in this case concern physical assaults and acts of anti-union reprisals carried out against certain workers and union activists employed in Choibari Tea Garden, Dhubri, Assam State. The Government, for its part, asserts that an inquiry carried out by the Labour Commissioner of the state government of Assam revealed that the above allegations were without any foundation.
2. 349. As regards the allegation that workers belonging to the Nikhil Assam Cha Mazdoor Sangh affiliated to the Centre of Indian Trade Unions (CITU) were prevented by the police from hoisting the union flag on May Day in the Choibari Tea Garden, the Committee observes that the Government admits that the police did intervene to disperse a group of workers, anticipating a law and order problem in the eventuality that a meeting was held. However, the Government maintains that only a few workers were present and that the management of the tea estate was not informed thereof.
3. 350. In this respect, the Committee draws the Government's attention to the principle that the right to organize public meetings and processions, particularly on the occasion of May Day, constitutes an important aspect of trade union rights and that the authorities should resort to the use of force only in situations where law and order is seriously threatened (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 134 and 137). In the concrete case before the Committee, there is nothing to suggest that the law and order situation was endangered, especially as the Government itself points out that only a few workers from the union affiliated to CITU were present at the time. The Committee would therefore request the Government to take measures to ensure that the competent authorities receive adequate instructions, so that during the holding of public meetings, particularly on the occasion of May Day, the police resort to the use of force only in situations where law and order is seriously threatened.
4. 351. The Committee further notes with concern that the main justification for the police intervention on 1 May 1995 appears to be, in the Government's own words, the fact that CITU was attempting to "forcibly win over the tea estate workers who are happy with their organization and the garden management". The Government also adds that some CITU members have been trying to stir up trouble and unrest among the tea garden workers who "had formed a committee called the Choibari Cha Shramik Sangh" which "is the only labour organization representing the workers of the tea estate". In this regard, the Committee recalls the importance that it attaches to the fact that workers and employers should in practice be able to establish and join organizations of their own choosing in full freedom. It reminds the Government that the right of workers to establish organizations of their own choosing implies, in particular, the effective possibility to create - if the workers so wish - more than one workers' organization per enterprise (see Digest, op. cit, paras. 274 and 280).
5. 352. With regard to the events that took place following the dispersal of a group of workers by the police on May Day, the complainant asserts that the police intervention resulted in many workers being injured while the Government maintains that although some workers were manhandled by the police, nobody sustained serious injuries. The Committee nevertheless notes that in response to the complainant's assertion that Umesh Das, the most seriously injured worker, was denied medical treatment by the tea garden's medical centre, the Government indicates that Umesh Das was able to procure medicines from the tea garden hospital through his younger brother. The Committee believes that if Mr. Das was procuring medicines, this is because he must have been injured. The Committee further observes that the Labour Commissioner refused to visit Mr. Das despite repeated requests from the union because "despite earlier intimation given to him ..., he did not present himself for making any submission he might have had". The Committee considers that it may have been difficult for Mr. Das to make such a submission if he was, in effect, seriously injured.
6. 353. The Committee notes that there is a striking contradiction between the complainant's and the Government's description of events which took place following the hoisting of the union flag on May Day, including the nature of the inquiry carried out by the Labour Commissioner of Assam. Nevertheless, in view of what it has observed in the preceding paragraphs, the Committee would draw the Government's attention to the following principle. In cases in which the dispersal of public meetings or demonstrations by the police for reasons of public order or other similar reasons has involved loss of life or serious injury, the Committee has attached special importance to the circumstances being fully investigated immediately through an independent inquiry and to a regular legal procedure being followed to determine the justification for the action taken by the police and to determine responsibilities (see Digest, op. cit., para. 148). The Committee requests the Government to ensure that such an inquiry is held. It asks the Government to keep it informed of the outcome of this inquiry.