Report in which the committee requests to be kept informed of development - REPORT_NO335, November 2004

1. 881. The Committee has examined this case and produced interim reports at its May-June 2003 meeting [see 331st Report, paras. 448-472, approved by the Governing Body at its 287th Session (June 2003)] and at its November 2003 meeting [see 332nd Report, paras. 730-751, approved by the Governing Body at its 288th Session (November 2003)].
2. 882. 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. 883. In its last examination of the case in November 2003, the Committee made the following recommendations [see 332nd Report, para. 751]:
   • (a) The Committee requests the Government to take all necessary steps urgently in order to ensure that an independent and thorough investigation, with the cooperation of the complainant organization, is carried out on the following:
   • (i) The concrete facts which motivated the alleged workers’ dismissals, suspensions and fines in Worldwide Diamonds Manufacturers Ltd. If it is found that these measures were by reason of workers’ trade union activities, the Committee requests the Government to take all necessary steps to reinstate the dismissed workers and compensate those who were suspended or fined. The Committee requests to be kept informed in this respect.
   • (ii) The concrete facts which motivated the alleged dismissals of 14 persons during and after the strike staged at Worldwide Diamonds Manufacturers Ltd. If it is found that the dismissals were on anti-union grounds, the Committee requests the Government to take all necessary steps to have the workers reinstated without loss of pay. The Committee requests to be kept informed of developments in this respect.
   • (iii) The allegations concerning the brutal suppression of the strike, the detention of hundreds of striking workers and a trade union officer by the police, the prohibition of meetings in the complainant’s local office, excessive police violence (caning and chaining of workers), and the visit of police officers to workers’ homes in order to threaten them so that they return to work. The Committee requests to be kept informed of the outcome of this investigation so as to fully clarify the facts, and if the allegations are confirmed, determine responsibility, punish those responsible and prevent the repetition of such acts.
   • (b) The Committee requests the Government to undertake consultations urgently with the Minister for Heavy Industries, the District Collector and the Commissioner of Police with a view to ensuring that any assurances which might have been given to the workers of Worldwide Diamonds Manufacturers Ltd. to the effect that they would not be victimized by reason of their participation in a strike, are fully observed in practice.
   • (c) The Committee requests the Government to provide information on the actual situation with regard to negotiations in Worldwide Diamond Manufacturers Ltd., and any settlement in this respect. The Committee requests to be kept informed of developments concerning such settlement.
   • (d) The Committee requests the Government to take all necessary steps so as to ensure that the functions of Grievance Redressal Officer (GRO) are not performed by the Deputy Development Commissioner (DDC) in the EPZ of Visakhapatnam (currently the GRO and the DDC are the same person) but by another independent person or body, having the confidence of all parties and to keep it informed in this respect.
   • (e) The Committee requests the Government to ensure that no permission by the labour authorities is required for trade unions to have access to justice, and if necessary, to amend the legislation accordingly. The Committee requests to be kept informed of developments in this respect.
   • (f) The Committee hopes that the forthcoming report by the provincial government of Andhra Pradesh mentioned by the Government in its communication, will fully address all the points raised above.

B. The complainant’s additional information

1. 884. In a communication dated 19 January 2004, enclosing a letter to the Minister of Labour dated 7 January 2004, and a communication dated 16 April 2004, the CITU stated that no action had been taken to implement the Committee’s recommendations.

C. The Government’s new observations

1. 885. The Government of India provided further information to the Committee by way of a communication dated 15 July 2004. This communication enclosed an undated report of the Visakhapatnam Export Processing Zone (VEPZ) Development Commissioner responding to the Committee’s recommendations. The Development Commissioner’s report is itself based upon two reports, the first dated 4 May 2004 from the state Police Commissioner, and the second dated 19 May 2004 from the Deputy Commissioner of Labour for Andhra Pradesh, both of which are also enclosed. The Government states that it will transmit to the Committee any further developments in the case received from the state government.
2. 886. In relation to the request by the Committee that an independent and thorough investigation be carried out into the alleged dismissals, suspensions and fines, the VEPZ Development Commissioner reiterates that the strike had been carried out in violation of the law, as prior notice had not been given nor had a charter of demands been submitted. Joint meetings had been called by the Labour Department and, following the intervention of the state Minister, the police and the VEPZ Commissioner, employees resumed work. The Development Commissioner states that all the dismissed workers have since filed cases before the Labour Industrial Tribunal. These cases are currently at various stages of hearing and until “awards on the issue of terminations” are given, it is not possible to determine whether the termination of these workers’ employment was legal or not.
3. 887. In relation to the request by the Committee that an independent and thorough investigation be carried out into the allegations concerning the suppression of the strike, the detention of striking workers, the prohibition of meetings in the complainant’s local office, excessive police violence, and visits by police officers to workers’ homes, the Development Commissioner states that the Commissioner of Police had “ascertained” that such allegations were false and baseless. The police had intervened in a timely manner and had taken prompt and appropriate action to maintain law and order.
4. 888. The Commissioner of Police’s report on these matters states that the union, supported by leaders of various other unions, “indulged in violent acts leading to law and order problems by defying the prohibitory orders in force”. The report provides details as follows:
   • (a) On 10 January 2002, the workers in the Israeli-run part of Worldwide Diamonds Manufacturers Ltd. obstructed the vehicle of the Commissioner and other officials for about 20 minutes before the police arrested 16 “agitators” and dispersed the crowd. A case concerning this incident was “posted to” 9 June 2004, when certain witnesses were to be heard by the local Metropolitan Magistrate’s Court.
   • (b) On 22 January 2002, 46 “agitators” from Worldwide Diamonds Manufacturers Ltd., including the state president of the CITU, were arrested for breach of a prohibitory order made pursuant to section 144 of the Criminal Procedure Code. Of those 46 arrested, the ten women were released on bail, and the 36 men were sent for judicial remand. This case was posted for hearing on 5 June 2004 by the local Metropolitan Magistrate’s Court.
   • (c) On 23 January 2002, 16 “agitators” were arrested pursuant to section 151 of the Criminal Procedure Code on the basis of unlawful assembly at a public place. They were later released on bail.
5. 889. In relation to the Committee’s requests to the Government to provide information on negotiations in the company and any settlement reached, the Development Commissioner states that the state government had formed a committee on 16 May 2002 to study the issues of industrial relations raised by the trade unions in Worldwide Diamonds Manufacturers Ltd. The members of the committee were the District Collector, the Joint Commissioner of Labour, the VEPZ Development Commissioner, and the VEPZ Joint Development Commissioner. The Development Commissioner states that this committee considered all aspects of the allegations, negotiated with the parties, and issued strict guidelines on labour welfare measures to the units. In cases in which “wage agreements could not be reached, the same have been concluded now”.
6. 890. The Development Commissioner further stresses that every effort has been made to maintain harmonious relations in the VEPZ and, due to the efforts of the VEPZ, currently the factories are running more smoothly “without any disturbance to the productivity”. Management has provided additional facilities to the workers.
7. 891. The Deputy Commissioner of Labour’s report reiterates that the CITU union in question covers the entire VEPZ and that no specific union is registered for Worldwide Diamonds Manufacturers Ltd., one of the units operating within the zone. In relation to the governmental committee set up on 16 May 2002, the Deputy Commissioner of Labour states that as the Joint Commissioner of Labour was “abolished”, the committee could not meet and no meetings took place. Further, as at the date of the report, no bilateral negotiations had been held between the CITU general union and the management of Worldwide Diamonds Manufacturers Ltd. “for settlement of the issues”. It appears that the management of the company objects “that there is no special registered union in their unit and the existing union is a general union for the entire VEPZ”.
8. 892. In relation to the Committee’s request to the Government to take steps so as to ensure that the functions of the Grievance Redressal Officer (GRO) are not performed by the Deputy Development Commissioner (DDC) but by another independent person or body having the confidence of all parties, the Development Commissioner reiterates that the VEPZ’s role in relation to the implementation of law in the company is solely advisory. As the coordinating and conciliating authority, VEPZ undertook to resolve the disputes between management and workers by appointing the DDC as GRO. As the differences are best resolved through dialogue, and as the office of the Development Commissioner/GRO is respected by both parties, this is the ideal mechanism for an amicable resolution of the issues. This is an arrangement that has worked successfully throughout the country for many years.
9. 893. In relation to the Committee’s request that the Government ensure that no permission from the authorities is required for trade unions to have access to justice, the Development Commissioner states that there is nothing in the laws or circulars to suggest that trade unions need to obtain permission from the labour authorities to have access to justice. A grievance or dispute can be filed before the labour officer of the area, to the Assistant Commissioner of Labour, or to the Deputy Commissioner of Labour. A case may be filed against the management of a company in the Industrial Tribunal or Labour Court. Special economic zones are not exempted from the provisions of the labour laws. In summary, “workers are free to approach labour authorities or the Labour Court directly for the redressal of their grievances and obtain justice accordingly”.

D. The Committee’s conclusions

1. 894. The Committee recalls that this case concerns allegations of anti-union discrimination involving restrictions on the right to join and establish trade unions; dismissals, suspensions and fines imposed on trade union members; dismissals for taking part in a strike; the brutal and disproportionate suppression of that strike by the police; and a lack of collective bargaining in Worldwide Diamonds Manufacturers Ltd., in the Visakhapatnam EPZ, Andhra Pradesh. The allegations concern anti-union discrimination both in relation to the general functioning of the union, as well as the responses by the authorities to a strike in January 2002.
2. 895. Concerning the allegations that workers at Worldwide Diamonds Manufacturers Ltd. had been dismissed on the basis of their trade union activities, the Committee recalls that it was alleged that two workers were dismissed by the company on account of having been active in the union; eight workers were dismissed during their participation in a strike in January 2002; and a further seven workers were dismissed on 25 March 2002 following the strike. The Committee recalls that the Government had provided information that one of the workers dismissed following the strike (Mr. Sudharkar) was dismissed on the basis of poor performance during his traineeship, but that the information provided in relation to the remaining 14 workers did not sufficiently indicate whether the dismissals had anti-union purposes.
3. 896. The Committee notes the information from the Government that the usual judicial system is currently considering the complaints of all those workers who were dismissed and trusts that this process will constitute the full, impartial and speedy procedure required into the complaints of anti-union discrimination. The Committee requests to be kept informed of the progress of these cases.
4. 897. In relation to the workers allegedly suspended or fined on the basis of their trade union activities, the Committee regrets that the Government has not provided additional detailed clarification on this matter. In this regard, the Committee emphasizes that no person should be prejudiced in his or her employment by reason of membership of a trade union [see Digest of decisions and principles of the Freedom of Association Committee, 4th (Revised) edition, para. 701]. Further, the Committee recalls the general principle 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 concerned” [see Digest, op. cit., para. 738]. Such a process should be quick, so as to ensure that if the allegations are found to be correct, the “necessary remedies can be really effective” [see Digest, op. cit., para. 749].
5. 898. For these reasons, the Committee requests the Government to take measures to ensure respect for these principles in the cases of the workers suspended or fined and, if it is confirmed that the imposition of the suspensions and fines were linked with the legitimate trade union activities of the workers, to take measures to ensure that the workers concerned are appropriately compensated.
6. 899. Concerning the alleged police brutality and violence, detentions, and threats during the strike, the Committee notes in particular the reports prepared by the Development Commissioner and the state Police Commissioner that conclude that the police intervened in a timely manner, took prompt and appropriate action to maintain law and order, and that such allegations “are false and baseless”. The Committee recalls the statements in the report prepared by the Police Commissioner to the effect that workers had obstructed the vehicles of senior officials, had breached orders made under section 144 of the Criminal Procedure Code which prohibits gatherings in certain places, and had unlawfully assembled in a public place, suggesting they were preventing the free movement of traffic.
7. 900. The Committee notes that the comments of the Development Commissioner and Police Commissioner submitted by the Government stress the behaviour of the workers, but limit information concerning the behaviour of the police and government to very general statements that simply contradict the allegations of the complainants. The Committee further recalls that in its previous report it had requested the Government to undertake an independent and thorough investigation into this matter. In this respect, the Committee notes that although it has been provided with the reports of three state officials concerning the issues raised by this case (the VEPZ Development Commissioner, the Police Commissioner, and the Deputy Commissioner of Labour) none of these can be said to amount to an independent and thorough investigation into the various outstanding issues, in particular because these officials were, according to the complainant, involved in the events in question.
8. 901. The Committee recalls, at this point, the principle that police intervention “should be in proportion to the threat to public order and governments should take measures to ensure that the competent authorities receive adequate instructions so as to avoid the danger of excessive violence” [see Digest, op. cit., para. 582]. The Committee once again requests the Government to establish an independent and thorough investigation, by bodies or persons having the confidence of the parties, into the alleged police violence in the strike at Worldwide Diamonds Manufacturers Ltd. in January 2002. The Committee requests to be kept informed of the investigation’s conclusions and, if the allegations are established to be well founded, the measures proposed to be taken in response.
9. 902. Further, the Committee notes that the report of the Police Commissioner provides details of three sets of criminal prosecutions brought against various workers for their actions during the strike. These relate to the obstruction of the vehicles of senior officials and to the breach of prohibitory orders issued pursuant to the Criminal Procedure Code. The Committee notes that it has been provided with details of the progress of two sets of these cases through the court system, but has not been provided with information as to the progress through the courts of the cases concerning those workers arrested on 23 January 2002 pursuant to section 151 of the Criminal Procedure Code for unlawful assembly at a public place. The Committee requests to be kept informed of the progress of all these criminal prosecutions.
10. 903. In its previous report, the Committee had requested the Government to provide information on the actual situation regarding negotiations in Worldwide Diamonds Manufacturers Ltd. and any settlement reached. The Committee notes that a governmental committee composed of the District Collector, Joint Commissioner of Labour, Development Commissioner and Joint Development Commissioner was established by the state government on 16 May 2002 to study the issues raised by the trade unions in relation to Worldwide Diamonds Manufacturers Ltd. The Committee notes the Development Commissioner’s statement that in addition to considering the allegations raised by the trade union, this committee “negotiated with the affected parties and strict guidelines on labour welfare measures to be undertaken in the zone were issued to the units and, wherever wage agreements could not be reached, the same have been concluded now”. Further, the Development Commissioner states that the VEPZ authorities have made every effort to maintain harmonious relations between management and workers and, as a result, there has been a change in attitude.
11. 904. Nevertheless, the Committee observes that the previous statements of the Development Commissioner contradict those of the Deputy Commissioner of Labour for Visakhapatnam, who states that the committee never met for failure to reach a quorum. Further, the Committee notes that the Deputy Commissioner of Labour clearly states that there has been no bilateral negotiation between the company and the workers “for settlement of the issue”. The Committee notes that the management of the company objects “that there is no specific registered union in their unit and the existing union is a general union for the entire VEPZ”.
12. 905. The Committee reminds the Government of the universal nature of the principles of freedom of association and therefore asks the Government to ensure that all workers in export processing zones have the right to form and join trade unions of their own choosing for the purposes of collective bargaining. The Committee requests steps to be taken to ensure that the CITU Visakhapatnam Export Processing Workers’ Union, if it is a representative trade union, is allowed to take part in negotiations with the company. The Committee requests to be kept informed in this regard.
13. 906. The Committee had requested the Government to ensure that the same person did not perform the functions of both GRO and DDC. The Committee notes the Development Commissioner’s comments in this regard, to the effect that such a person has the confidence of all parties, and the appropriate standing to do the job effectively, as well as the fact that this is a usual solution in India. The Committee is obliged to note that the Government has not implemented its recommendation, and can only repeat its earlier request that the Government ensure that the two roles are carried out by different people or bodies.
14. 907. The Committee’s final recommendation concerned its request to the Government to indicate whether access to justice by workers and trade unions requires the permission of the competent labour authorities, or whether workers and trade unions may initiate an action and approach the Court directly. In this context, the Committee reiterates the principle 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, inexpensive and fully impartial” [see Digest, op. cit., para. 741]. The Committee notes the Development Commissioner’s clear statement that workers do not require prior permission to take disputes and grievances to court. Nevertheless, in light of its earlier conclusions in the 93rd Report of the Committee on Freedom of Association (Case No. 420) and the fact that the Industrial Disputes Act 1947 appears to restrict the right of workers and trade unions to take cases to court, the Committee requests the Government to confirm that workers and trade unions are able to approach the court directly without being referred by the state government, and to indicate the ways in which the legislation has been amended accordingly.