Report in which the committee requests to be kept informed of development - REPORT_NO330, March 2003

1. 835. The Committee examined this case at its June 2002 meeting [see 328th Report, paras. 305?324, approved by the Governing Body at its 284th Session (June 2002)].
2. 836. The Government sent new observations in communications dated 23 December 2002 and 10 January 2003.
3. 837. 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. Previous examination of the case

1. 838. In its previous examination of the case in June 2002, the Committee made the following recommendations [see 328th Report para. 324]:
   • (a) The Committee, trusting that the pending cases of the six dismissed workers of the Pataka Biri Co. Ltd. will be resolved without any further delays, requests the Government, in case the anti-union nature of the dismissals were confirmed, to rapidly take the necessary measures to ensure that these workers are reinstated in their jobs, without loss of pay, and to guarantee the application against the enterprise of corresponding legal sanctions. The Committee asks the Government to be kept informed in this regard.
   • (b) Recalling that in no case should it be possible to dismiss a trade union officer merely for having presented a list of dispute grievances, the Committee requests the Government to keep it informed of the outcome of the case of the nine dismissed workers pending before the Calcutta High Court. As stated above, if the anti-union nature of the dismissals were established, the Committee requests the Government to rapidly take the necessary measures to ensure that these workers are reinstated in their jobs, without loss of pay, and that the enterprise faces the corresponding legal sanctions. The Committee asks to be kept informed in this regard.
   • (c) Recalling that the arrest of trade union leaders against whom no charge is brought involved restrictions on freedom of association, the Committee asks the Government to take steps to ensure that the authorities concerned have appropriate instructions to eliminate the danger which such arrest implies. It asks to be kept informed in this regard.
   • (d) The Committee requests the Government to keep it informed of the outcome of the conciliation regarding the eight allegedly retrenched workers. It also asks the Government to forward its observations on all the other allegations of anti-union discrimination, namely, the pressure on union members to quit the union, threat of damaging the union office, as well as on the most recent arrest of the leader of the complainant organization.

B. The Government’s new observations

1. 839. In a communication dated 23 December 2002, the Government transmits information provided by the provincial government of West Bengal. With regard to the case of the six workers of the Pataka Biri Co. Ltd. who were dismissed allegedly for joining the ranks of the complainant organization and presenting a list of demands, the Government reports that five of them filed appeals before the Deputy Labour Commissioner, Berhampur, under section 31(2) of the Bidi & Cigar Workers (Conditions of Employment) Act, 1966 and that a decision was reached in October 2002. One appeal was upheld and management was ordered to reinstate the worker (Mr. Lakhu Sk) immediately. Two appeals were rejected on the grounds that the workers in question (Mr. Sekender Ali and Mr. Anarual Haque) were only trainees. Two other appeals were rejected on the grounds that the workers (Mr. Abdul Gofur and Mr. Niaul Haque) had abandoned the assigned workplaces without permission from management. One worker (Mr. Najmul Honda) did not file any appeal. The Government adds that under the Indian Constitution, workers aggrieved by the order of the Appellate Authority can move to the High Court/Supreme Court for redressal of their grievances.
2. 840. With regard to the case of the nine workers who were dismissed only 45 days after presenting a ten-point list of demands, the Government reports that the case is still pending before the Calcutta High Court.
3. 841. With regard to allegations of the arrest of the trade union leader Shri Ashique Hossain and his imprisonment for 70 days, the Government states that three charges have been brought against him and the case is pending before the Jangipur Court. With regard to his arrest for a second time in December 2001 and his release pursuant to the intervention of the Jangipur Bar Association, the Government reports that details are being sought from the District Administration of the Murshidabad District and a report will be furnished as soon as possible.
4. 842. With regard to the eight workers who were allegedly retrenched for keeping close contact with the union, the Government reports that the conciliation proceedings conducted by the Deputy Labour Commissioner, Berhampore, were concluded on 21 October 2002 by deciding that this case should not be recommended for adjudication on the grounds that the trade unionists had no interest in pursuing their grievances. In particular, of the eight workers who were invited on more than one occasion to ascertain their views before the Conciliation Officer, only one appeared, Mr. Morsalin Sk, on 5 September 2001 and stated that he had never worked in the Pataka Biri Co. Ltd. and that he could not recognize the complainant organization.
5. 843. With regard to various other acts of anti-union discrimination and intimidation allegedly committed by the company in collusion with the local police, and in particular, harassment by the police, pressure on union members to quit the union and threats of damaging the union office, the Government attaches the report of the Circle Inspector of Police, Jangipur, Murshidabad District, according to which the allegations were investigated and found to be baseless and unfounded. The inspector reports that he found nothing in the records of the local police station to indicate the alleged incidents and that he interrogated the trade union leader who failed to show him any document in support of his allegations. Furthermore, he notes that according to the police record, 97 employees of the Pataka Biri Co. Ltd. appeared at the police station in August 2001 in order to declare that they were not members of the union and that the trade union leader came to the police station of his own accord in order to sign a declaration to this effect. This proves according to the inspector’s report, that allegations concerning pressure to quit the union are unfounded and that Shri Ashique Hossain had falsely claimed that his organization had 147 members.

C. The Committee’s conclusions

1. 844. The Committee recalls that this case concerns allegations that the Pataka Biri Co. Ltd., in collusion with local police in the state of West Bengal, committed various acts of anti?union discrimination and intimidation including dismissals on the grounds of trade union activities, arrest and imprisonment of a trade union leader on two occasions, pressure on union members to quit the union, harassment and threats of damaging the union office.
2. 845. The Committee notes that of the six workers who were dismissed in 1998, five lodged an appeal with the Deputy Labour Commissioner under section 31(2) of the Bidi & Cigar Workers (Conditions of Employment) Act, 1966. One appeal was upheld and the enterprise was ordered to reinstate the worker in question; two appeals were rejected because the workers in question were apprentices; and two were rejected because the dismissals were found to be justified by disciplinary offences. The Committee takes note of the reinstatement of one worker in his previous post pursuant to a finding that his dismissal was due to trade union activities.
3. 846. With regard to the rejection of the appeal lodged by two apprentices, the Committee recalls that workers undergoing a period of work probation should be able to establish and join organizations of their choosing, if they so wish and that all workers without distinction whatsoever, whether they are employed on a permanent basis, for a fixed term or as contract employees, should have the right to establish and join organizations of their own choosing [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 236, 237]. The Committee notes that the status under which workers are engaged with the employer, as apprentices or otherwise, should not have any effect on their right to join workers’ organizations and participate in their activities. The Committee requests the Government to take all necessary measures as soon as possible with a view to having the case of the two dismissed apprentices examined as to its substance, and if dismissals are found to be on anti-union grounds, to ensure that these workers are reinstated in their jobs without loss of pay and to guarantee the application against the enterprise of corresponding legal sanctions. The Committee requests to be kept informed in this respect.
4. 847. With regard to the rejection of the appeal lodged by two other workers for reason of disciplinary offences the Committee requests the Government to communicate the text of the judgment delivered, together with the grounds adduced therefore.
5. 848. The Committee notes with concern that the case of the dismissal of nine members of the complainant organization which took place only 45 days after having requested the enforcement of a ten-point list of demands, has been pending before the Calcutta High Court for more than three years now and recalls that justice delayed is justice denied [see Digest, op. cit., para. 105]. The Committee observes that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned [see Digest, op. cit., para. 749]. The Committee also recalls that in no case should it be possible to dismiss a trade union officer merely for having presented a list of dispute grievances; this constitutes an extremely serious act of discrimination [see Digest, op. cit., para. 720]. The Committee requests the Government to take all necessary measures as soon as possible with a view to the rapid conclusion of the proceedings before the Calcutta High Court concerning the dismissal of nine workers only 45 days after requesting the enforcement of a ten point list of demands. The Committee also requests the Government if the anti-union nature of the dismissals is confirmed, to rapidly take the necessary measures to ensure that these workers are reinstated in their jobs, without loss of pay, and that the enterprise faces the corresponding legal sanctions. The Committee requests to be kept informed in this respect.
6. 849. With regard to allegations concerning the arrest of the leader of the complainant organization, Shri Ashique Hossain, the Committee notes that according to the Government, three charges have been brought against him and the case is pending before the Jangipur Court. The Committee requests the Government to provide information as to the nature of the charges brought against the trade union leader and the outcome of the proceedings before the Jangipur Court.
7. 850. With regard to allegations concerning the arrest of Shri Ashique Hossain for a second time in December 2001 and his release the next day pursuant to the intervention of the Jangipur Bar Association, the Committee notes that the Government states that the details are being ascertained from the District Administration of the Murshidabad District.
8. 851. With regard to allegations that eight workers were retrenched in March 2001 for keeping close contact with the union, the Committee notes that the conciliation officer decided not to institute proceedings in this case as only one of the workers appeared before the officer and, moreover, denied all allegations. The Committee also notes however, that the complainant organization had previously noted in its allegations that proceedings on this case before the District Labour Commissioner were dropped because the eight workmen were intimidated by management and could not participate in the procedure.
9. 852. In addition to this, the Committee notes that an investigation into several alleged incidents of threats, harassment and pressure to quit the union was entrusted with the Circle Inspector Police, Jangipur, Murshidabad District. The inspector reported that the allegations were unfounded because the trade union leader, Shri Ashique Hossain, could not provide any proof when questioned by the inspector, and there was no trace of the alleged incidents in the records of the local police station. He also reported that in August 2001, 97 employees of the Pataka Biri Co. Ltd. appeared at the police station in order to declare that they were not members of the complainant organization, and that the trade union leader signed a declaration to this effect after coming to the police station of his own accord. According to the inspector’s report, this proves that allegations concerning pressure to quit the union are unfounded and that Shri Ashique Hossain had made false claims concerning the union membership. The Committee regrets that such serious allegations against the police have been investigated by police authorities themselves.
10. 853. In light of the seriousness of the allegations which include police involvement in anti-union acts, the Committee recalls that complaints against acts of anti-union discrimination should normally be examined by national machinery which, in addition to being speedy, should not only be impartial but also be seen to be such by the parties concerned, who should participate in the procedure in an appropriate and constructive manner [see Digest, op. cit., para. 750]. The Committee requests the Government to take all necessary measures as soon as possible to ensure that all allegations concerning acts of anti-union discrimination and intimidation, including the imprisonment of the trade union leader for a second time, the retrenchment of eight workers, threats, harassment and pressure to quit the union, are investigated by an independent body which in addition to being speedy and impartial is also seen to be such by the parties concerned, and under guarantees which enable the parties to participate in the procedure in an appropriate and constructive manner. The Committee requests to be kept informed of measures taken in this respect.