Informe provisional - Informe núm. 278, Junio 1991

1. 287. In communications dated 10 January and 16 October 1989 the Hindustan Engineering Employees' Trade Union (HEETU) presented allegations of violations of trade union rights against the Government of India. It presented further information in relation to this complaint by a communication dated 25 November 1989. The Government sent its observations on these allegations by communications dated 15 and 29 January 1990, 29 October 1990 and 13 February 1991.
2. 288. 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. The complainant's allegations

1. 289. The complainant's allegations in this case relate to alleged anti-union practices on the part of the management of the Hindustan Institute of Engineering Technology, which is a private educational institution in Madras in the State of Tamil Nadu.
2. 290. According to the complainant, management of the Institute has a long record of hostility to trade unionism. Terms and conditions of employment are said to be extremely poor, and arbitrary dismissals to be commonplace. The HEETU was established in May 1988, and was registered under the Trade Unions Act, 1926, on 5 December 1988. One of the founders of the HEETU, and its first General Secretary, was a Mr. Charles Ayyampilly. In August 1988 Mr. Ayyampilly took accrued annual leave from the Institute in order to attend a trade union training course in Australia. Shortly after his return to Madras, he was dismissed from his employment "illegally and without any proper reason or notice". Mr. Ayyampilly sought to challenge the lawfulness of his dismissal under the Industrial Disputes Act, and also continued actively to involve himself in the activities of the HEETU.
3. 291. On 7 January 1989 management of the Institute issued a circular to all teaching staff which read as follows:
   • All teaching staff are hereby warned against joining any union or indulging in any union activities whatsoever, especially on this campus.
   • Stringent disciplinary action, including immediate suspension or termination will be taken against any teaching staff who are found to ignore or defy the above instructions.
   • Any personal grievances, complaints or demands should be given in writing by the individual concerned, to the Administrative Officer for consideration and action.
4. 292. At some point in 1988 the HEETU submitted a "charter of demands" to management. According to the complainant, management then deliberately tried to prolong the proceedings before the Labour Commissioner. On 23 February 1989 members of the union commenced a lawful strike in support of their demands. On 2 March 1989 management and the union signed an agreement to bring the strike to an end. Among other things, management agreed not to victimise any of the employees who participated in the strike, and to revoke suspension orders which had been served upon six employees on the eve of the strike. For their part, the union agreed that the strike would be suspended with immediate effect, and to cooperate with management in reaching an amicable settlement in relation to the other matters set out in the charter of demands.
5. 293. On 28 April 1989 "in an illegal, arbitrary and capricious manner" management posted a notice indicating that the contracts of some 59 employees of the Institute would not be renewed after their expiry on 30 April 1989. On 5 May 1989 a further 13 employees were suspended with immediate effect. All 13 employees were subsequently dismissed. The 72 employees who were dismissed included all office-bearers and executive members of the HEETU.
6. 294. On 5 August 1989 a Mr. Dass, a security guard at the Institute, destroyed a flag and flag post belonging to the HEETU. According to the complainant, Mr. Dass was acting on the instructions of the Director of the Institute, Mr. K.C.G. Verghese. After the union had lodged a formal complaint with the police, Mr. Verghese paid for a replacement flag and flag post. Mr. Dass was, however, dismissed because he had confessed to the police that Mr. Verghese had instigated his offence.
7. 295. The complainant states that several members and officials of the HEETU had been subjected to various forms of victimisation and violence on the part of, or at the instigation of, management of the Institute. In particular, Mr. Verghese had been instrumental, though an associate, in the laying of false criminal charges against the General Secretary of the union. These charges had related to the alleged misappropriation of funds to which Mr. Ayyampilly had access in the course of his employment. Their falsity is evidenced by the fact that, despite considerable pressure from Mr. Verghese and his associates, and the arrest and imprisonment of Mr. Ayyampilly in December 1988, the police had declined to proceed with the case against Mr. Ayyampilly.

B. The Government's reply

1. 296. By its communication of 29 October 1990 the Government acknowledges that there seems to be force in the allegation that management of the Institute has been intolerent of union activities and had terminated the services of a number of office-bearers of the union without complying with the principles of natural justice. The Government points out, however, that the Industrial Disputes Act provides a means of recourse in such cases, and that Mr. Ayyampilly and others have indeed been availing themselves of these provisions.
2. 297. By the same communication the Government states that a "conciliation report" had been submitted by the Assistant Labour Commissioner to the Government of Tamil Nadu, which was currently examining it. It is true that the conciliation proceedings were prolonged due to requests for adjournment by the Institute, but the HEETU had not raised any objection to these adjournments. The Government does not give any indication of the content of this report, or of the matters to which it relates.
3. 298. As concerns the criminal charges laid against Mr. Ayyampilly by an associate of Mr. Verghese, the Government explains that these charges were laid under provisions of the Indian Penal Code relating to theft and falsification of accounts. On the basis of a prima facie case Mr. Ayyampilly was arrested and remanded in judicial custody on 26 December 1988. He was released on bail on the following day. The case was later dropped by the police, after consultation with the appropriate legal authorities, because of the lack of any collateral evidence against Mr. Ayyampilly.
4. 299. Finally, the Government indicates that it has requested the Government of Tamil Nadu to provide a more detailed report on the case.

C. The Committee's conclusions

1. 300. This case concerns alleged acts of anti-union discrimination by the management of a private educational institution in Madras known as the Hindustan Institute of Engineering Technology.
2. 301. At the outset, the Committee feels bound to express its concern at the fact that it is only now in a position to examine the allegations in this case despite the fact that the complaint was formally presented in October 1989, and that more than two years have passed since the occurrence of the events which form the basis of the complainant's allegations. This is a particular cause for concern in view of the fact that certain of the allegations relate to the dismissal of a substantial number of workers on account of their union membership and activities. The Committee notes that the Government did provide partial responses in January 1990 (twice), October 1990 and February 1991. The fact remains, however, that even at this late stage the Government has not presented a full reply to all of the allegations against it. Accordingly the Committee must urge the Government to provide a full response to all of the allegations in this case in advance of the next meeting of the Committee. It also asks the Government to endeavour to ensure that similar delays do not occur in the future.
3. 302. The Government acknowledges that management of the Hindustan Institute of Engineering Technology has adopted a position of extreme hostility towards attempts by its employees to form or join trade unions. This hostility has manifested itself in a number of ways, including: (i) the issue of circulars which were expressly intended to dissuade employees from joining, or participating in the activities of, a trade union; (ii) the adoption of a highly obstructive attitude to the HEETU's attempts to initiate collective bargaining on behalf of its members; (iii) the dismissal of some 72 workers, including the officers and entire executive of the HEETU, by reason of their participation in what appears to have been a lawful strike in February and March 1989; and (iv) instigating an employee of the Institute to destroy property belonging to the HEETU. It allegedly also has manifested itself in the dismissal and subsequent harassment of the General Secretary of the HEETU.
4. 303. The Committee is of the clear view that the circular issued by management of the Institute on 7 January 1989 constituted a breach of the principles of freedom of association. The same is true for the dismissal of 72 workers in April and May 1989 by reason of their participation in what appears to have been a legitimate exercise of the right to strike and for the wilful destruction of the property of the HEETU on 5 August 1989.
5. 304. The Government indicates that recourse in such cases is available under the Industrial Disputes Act, and that Mr. Ayyampilly and others had indeed sought relief under these provisions. However, the Government has not provided any indication as to the nature of the relief which may be available under this legislation, or as to the outcome of any of the proceedings initiated by Mr. Ayyampilly and his fellow-unionists. Accordingly, the Committee asks the Government to provide the text of all relevant legislative provisions, and a clear indication of the outcomes of all legal proceedings which are relevant to the allegations in the present case. This information should include an explanation of the nature and content of the "conciliation report" to which the Government refers in its communication of 29 October 1990.
6. 305. As concerns the obstructive attitude adopted by management to attempts by the HEETU to engage in collective bargaining on behalf of its members, the Committee has always attached great importance to the principle that both employers and trade unions should bargain in good faith and make every effort to come to an agreement. (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 590.) On the other hand, it has also taken the view that the question as to whether one party adopts an amenable or uncompromising attitude towards the demands of the other party is a matter for negotiation between the parties within the law of the land. (Digest, para. 589.) This suggests that the obstructive attitude to collective bargaining adopted by management did not in itself involve any breach of the principles of freedom of association, although it was certainly symptomatic of management's extremely negative attitude towards trade unions in general.
7. 306. As concerns the criminal charges laid against Mr. Ayyampilly in December 1988, the Committee recalls that it has always taken the view in cases of allegations relating to the prosecution and sentencing of trade union leaders, the only question to be determined is the real reason for taking such measures. Only if these measures have been taken by reason of legitimate trade union activities can there be any infringement of freedom of association. (Digest, para. 121.) The apparent hostility towards Mr. Ayyampilly by management of the Institute, and the fact that the police could not find any evidence to corroborate the charges against Mr. Ayyampilly, seem to support the allegation that the charges in the present case were indeed intended to harass Mr. Ayyampilly by reason of his trade union membership or activities. Since the charges were not proceeded with, the Committee considers that this aspect of the case does not call for further examination, but in doing so it would draw the attention of the Government to the principle that allegations of criminal conduct should not be used to harass trade unionists by reason of their union membership or activities.
8. 307. The Committee notes that Mr. Ayyampilly lodged a complaint with the Labour Commissioner in relation to his dismissal after his return from Australia in September 1988. It has not, however, been provided with any indication as to the outcome of those proceedings. The Government is, therefore, asked to supply this information in advance of the next meeting of the Committee.