Interim Report - REPORT_NO328, June 2002

1. 305. In communications dated 28 September and 16 October 2001, the Pataka Biri Karmachary Union presented a complaint of violations of freedom of association against the Government of India.
2. 306. The Government furnished its observations in communications dated 10 January and 7 May 2002.
3. 307. 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. The complainant’s allegations

1. 308. In its communication of 28 September 2001, the complainant organization explains that the Pataka Biri Co. Ltd. has three factory units in West Bengal, located in the towns of Amangabad, Jangipur and Dhuliyan, with a total of about 710 permanent workers. The complainant alleges, firstly, that the management of the company dismissed six workers in 1998 for joining the trade union and presenting a list of demands. The union then lodged a complaint and the case was referred to the Labour Directorate. The case of these six dismissed workers has now been pending with the Labour Commissioner for over two-and-a-half years, while such cases can normally be resolved within six months.
2. 309. Secondly, the complainant organization explains that nine trade unionists from its rank presented on 1 July 1999, a complaint to the Ministry of Labour against the management of Pataka Biri Co. Ltd., for exploitation of worker and unfair labour practices and demanded the enforcement of a ten-point list of demands concerning basic working rights. While the Labour Directorate did order an investigation into the matter, over two years have passed and no action has been taken so far on this matter. Moreover, the complainant alleges that within 45 days of sending the ten-point list of demands, the management illegally dismissed the nine trade unionists. While the nine workers filed an appeal to the competent tribunal, the matter is still pending before the Calcutta High Court.
3. 310. Thirdly, the complainant organization alleges that the Labour Directorate did everything it could to harass it by refusing to issue its registration certificate for 24 months. The Labour Directorate kept requesting unnecessary documents and the registration certificate was only granted on 29 June 2001 following the ILO’s intervention. In addition, the management of the company, in collusion with the district police, filed three false and fabricated cases against one of the trade union leaders. This leader was sent to jail for 70 days and then released when the investigation showed that the charges were unfounded. The trade union leader was not allowed to file a complaint in order to obtain compensation.
4. 311. Finally, the complainant organization alleges several acts of intimidation from the management, often in collusion with the local police, against members of the union. In March 2001, eight workers were retrenched for keeping close contact with the union. The leader of the union has been constantly harassed by the police and both the management and the police forces are pressuring union members to quit the trade union. Moreover, the management openly declared that it would damage the union’s office. The complainant organization insists that it has complained on numerous occasions to the Labour Directorate and to the state Government but that no effective measures have been taken to stop these acts.
5. 312. In its most recent communication, the complainant organization alleges that since lodging the complaint, the leader of the union was charged on false evidence but was released on bail the next day following the intervention of the Jangipur Bar Association. The complainant organization therefore apprehends yet again other acts of anti-union discrimination from the management or the local police.

B. The Government’s reply

1. 313. In its communication of 10 January 2002, the Government explains firstly, that trade union rights and unfair labour practices are matters falling under the various state/provincial governments. The Government of West Bengal, which is the competent government in this case, was thus asked to take the necessary action on the complaint made by the Pataka Biri Karmachary Union against the management of Pataka Biri Co. Ltd. On the basis of the reports received from the Government of West Bengal, the following observations could be made.
2. 314. With regard to the first allegation concerning the case of six dismissed workers, the state Government of West Bengal reported that this issue had been taken up for conciliation at various levels, from the Assistant Labour Commissioner in Jangipur, to the Labour Commissioner in Calcutta. The issue is presently before the Labour Commissioner in Berhampur who is the Appellate Authority under the Bidi and Cigar Workers (Conditions of Employment) Act of 1966. Further developments in the matter will be furnished as soon as they are received.
3. 315. With regard to the alleged dismissal of 9 members of the complainant organization, only 45 days after having requested the enforcement of a ten-point list of demands concerning basic working rights, the Government acknowledges that the management has indeed dismissed these workers but on grounds of alleged misconduct, and after having respected the normal procedure in such cases. The workers challenged their dismissal to the Appellate Authority, which dismissed their appeal on 9 February 2000. The workers filed a writ petition to the Calcutta High Court, which is still pending.
4. 316. Concerning the allegation that the Labour Directorate delayed the union’s registration, the Government indicates that after completion of the required formalities, the union was registered on 29 June 2001 and denies any form of harassment on its part. With regard to the allegation that the management of the company, in collusion with the local police, filed three false and fabricated cases against a trade union leader, the Government acknowledges that three charge sheets were filed before the appropriate court and that no further observations could be made at this stage.
5. 317. Concerning the allegation of acts of anti-union discrimination and in particular the retrenchment of eight workers, the Government indicates that the management denied these allegations and further stated that the workers concerned were engaged on a contractual basis for a period of one year and on completion of the said period, their services stood automatically terminated. However, the matter was now under conciliation. As regards the other allegations of harassment and anti-union discrimination from the management and the local police, a report from the Government of West Bengal is awaited and will be furnished as soon as it is received.

C. The Committee’s conclusions

1. 318. The Committee observes that this case concerns allegations of various acts of anti-union discrimination which would have taken place at the Pataka Biri Co. Ltd., located in the State of West Bengal. The Committee notes the Government’s explanations according to which trade union rights and unfair labour practices in India are matters falling under the various state/provincial governments and that in this case, the Government’s observations were solely based on the reports provided by the Government of West Bengal. While acknowledging the specificity of political structure and organization of each country, the Committee wishes to recall, as a preliminary remark, that by freely becoming a member State of the ILO, the Government has the responsibility to ensure the full respect of freedom of association principles throughout its territory.
2. 319. Concerning the first allegation regarding the dismissal of six workers in 1998 for joining the ranks of the complainant organization and presenting a list of demands to the company’s management, the Committee notes that the Government does not refute this allegation and merely indicates that the issue had been taken up for conciliation at various levels and was currently before the Labour Commissioner in Berhampur, who is the Appellate Authority in that case. The Committee further observes that the case of these dismissed workers has been pending for over three years. In this regard, the Committee recalls that the Government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties. Indeed, respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious and inexpensive [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 738 and 741]. Moreover, the Committee recalls that justice delayed is justice denied. Therefore, the Committee, trusting that the pending cases of the six dismissed workers 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.
3. 320. Concerning the allegation regarding the dismissal of nine members of the complainant organization only 45 days after having requested the enforcement of a ten-point list of demands, the Committee notes that the Government acknowledges the dismissals but that the management claimed to have done it on grounds of alleged misconduct and respecting the normal procedure in such cases. The Committee further observes that the case is still pending before the Calcutta High Court. Once again, regretting the long delays in the procedure -- nearly three years since the dismissals -- and recalling that in no case should it be possible to dismiss a trade union officer merely for having presented a list of dispute grievances since it constitutes an extremely serious act of anti-union discrimination, the Committee requests the Government to keep it informed of the outcome of the case of the nine workers dismissed pending before the Calcutta High Court. As stated previously, 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.
4. 321. Concerning the allegation regarding the delay in the registration of the complainant organization by the Labour Directorate, the Committee notes the Government’s indication that after completion of the required formalities, the union was registered in June 2001. The Committee also notes that the Government refutes any form of harassment from the Labour Directorate in this matter. While taking good note of the complainant’s registration, the Committee insists that registration procedure should only consist of a mere formality and when the relevant authorities have more or less discretionary powers in deciding whether or not an organization meets all conditions required for registration, this can create a serious obstacle for the establishment of a trade union and lead to a denial of the right to organize without previous authorization.
5. 322. With regard to the allegation that fabricated and false charges were brought against one of the leaders of the complainant organization, the Committee notes that the Government acknowledges that the charges were brought and made no particular comment on this matter. However, the Committee notes with deep concern that following the allegedly fabricated charges, the trade union leader in question was sent to jail for 70 days, before being released, and was not allowed to file a complaint in order to obtain compensation. In this regard, the Committee recalls that the arrest of trade union leaders against whom no charge is brought involves restrictions on freedom of association and that such arrests can create an atmosphere of intimidation and fear prejudicial to the normal development of trade union activities [see Digest, op. cit., para. 80]. The Committee asks the Government to take steps to ensure that the authorities concerned have appropriate instructions to eliminate the danger which arrest for trade union activities implies. It asks to be kept informed in this regard.
6. 323. Concerning the allegation of acts of anti-union discrimination and in particular the fact that eight workers were retrenched in March 2001 for keeping close contact with the union, the Committee notes that according to the Government, the management denied these allegations and stated that the said workers had been engaged on a contractual basis of one year and that their contract was simply terminated after that period. The Committee notes that the Government indicates that the matter is now under conciliation and therefore requests the Government to keep it informed of the outcome of the conciliation. The Committee 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’s office, as well as on the most recent arrest of the leader of the complainant organization who, apparently, was only released on bail following the intervention of the Jangipur Bar Association.