Informe definitivo - Informe núm. 400, Octubre 2022

1. 439. The complaint is contained in communications from the Centre of Indian Trade Unions (CITU) and the All India Trade Union Congress (AITUC), dated 24 and 28 July 2021, respectively.
2. 440. The Government of India transmitted its observations in communications dated 19 January and 30 September 2022.
3. 441. India has not ratified 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 complainants’ allegations

1. 442. In their communications dated 24 and 28 July 2021, the CITU and the AITUC explain that India has a large defence material production and services setup, consisting of some 44 industrial establishments, as well as research institutions catering to the needs of the military and supplying equipment for civil purposes. More than 75 per cent of Indian defence forces needs are produced and supplied by its ordnance factories, which employ thousands of workers, and which are owned by the Department of Defence Production (DDP) under the Ministry of Defence.
2. 443. The complainants allege that the central Government has been actively moving towards the privatization of the sector and that to pave the way for and to facilitate this process, 41 ordnance factories, which have been functioning under the Ordnance Factories Board (OFB), are being sought to be corporatized in seven entities, registered as seven separate companies under the Companies Act. The complainants indicate that one of the reasons behind calling a strike/industrial dispute by workers in the defence sector was the threat of losing jobs emerging out of privatization and the threat of losing the Exchequer of the Government, which would no longer gather profit and invest that surplus for the greater need of the country. Through dialogue, the Ministry of Defence, acknowledging that the privatization move would be stalled, settled the issue. Consequently, the unions withdrew their strike notice served on the Government. The complainants allege, however, that the Government, in violation of written agreements with the unions, decided to continue with the corporatization of the ordnance factories, pushing them towards privatization. In response, the unions served a notice of industrial action for breach of assurance given by the Government. The Federations of the Defence Civilian Employees have taken a decision to go on an indefinite strike after following all the procedures laid down in the Industrial Dispute Act, 1947, and the Recognition Rules for the Trade Unions of Ministry of Defence.
3. 444. The complainants allege that instead of treating the issue as an industrial dispute, the Government decided to crush the democratic rights of employees by promulgating a draconian Essential Defence Services Ordinance (EDSO), 2021, which curbed the right of workers in the defence sector to strike and imposed all types of punitive measures, such as dismissal from service without inquiry and imprisonment for up to two years with other consequences. The complainants indicate that when tabling the Essential Defence Services Bill in Parliament, the Government stipulated its objectives and the reasons for its adoption as follows:
   • 5. As Parliament was not in session and urgent legislation was required to be made, the President promulgated the Essential Defence Services Ordinance, 2021 on the 30th June, 2021, which, inter alia, provides for the following, namely: –
   • (a) to define the expressions “essential defence services” and “strikes”;
   • (b) to empower the Central Government to prohibit strike in essential defence services;
   • (c) to provide for disciplinary action, including dismissal, against employees participating in strikes;
   • (d) to provide for penalties for illegal strikes, instigation thereof and providing for financial aid to such illegal strikes;
   • (e) confer power on any police officer to arrest without warrant any person who is reasonably suspected to have committed any offence under the proposed legislation.
4. 445. According to the complainants, the Bill takes away the fundamental rights of workers guaranteed by the national Constitution. They indicate that while the definition of the term “strike” has been provided for in the Industrial Disputes Act, 1947, the Bill has a different definition making it much wider so as to cover various forms of non-strike trade union activities/actions and leaving a greater power to the authorities to suppress almost all trade union activities:
   • 2(1)(b): “strike” means the cessation of work, go-slow, sit down, stay-in, token strike, sympathetic strike or mass casual leave, by a body of persons engaged in the essential defence services, acting in combination or a concerted refusal or a refusal under a common understanding of any number of persons who are or have been so engaged to continue to work or to accept employment, and includes –
5. 446. Thus, according to the complainants, the Bill debars workers from expressing any kind of discord or protest, including through gate meetings, shouting slogans even on non-strike issues, etc. They further point out that pursuant to section 3 of the Bill, the Central Government is empowered to issue an order prohibiting a strike, if necessary, in the interest of: (i) sovereignty and integrity of India; (ii) security of any State; (iii) public order; (iv) public interest; (v) decency; or (vi) morality. The complainants indicate that this is beyond the scope described in the existing legislation, which does not allow the Government to arbitrarily declare a ban on an industrial action by workers. Thus, according to the complainants, the Bill has taken severe recourse to crush industrial actions, in violation of the Indian Trade Unions Act, 1926:
   • 18. Immunity from civil suit in certain cases.–
6. 447. The complainants describe the Bill as draconian for trade unions and their members because it punishes the commencement of and participation in an illegal strike by imprisonment for a term of up to one year or with a fine which may extend to 10,000 Indian rupees, or with both; and the instigation of illegal strikes by imprisonment for a term of up to two years or with a fine which may extend to 15,000 rupees, or with both.
7. 448. The complainants indicate that it is not clear from the Bill who decides that the strike is illegal. They further consider that the legislation targets trade union leaders by providing for harsher penalties, which has an effect of prohibiting trade unions in practice. Furthermore, the complainants consider that the Bill violates workers’ fundamental rights enshrined in the national Constitution as, like the Ordinance, it directs the police force to arrest any person without showing any reason or without any warrant.
8. 449. The complainants further point out that the Bill gives unfettered power to the police administration for arbitrary actions, or judicial authority to a lower court against the impugned person for action without any scope to defend or appeal for justice. Like the Ordinance, the Bill ensures such arbitrary action is lawful and unchallengeable:
   • 12. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 all offences in this Ordinance shall be tried in a summary way by any Metropolitan Magistrate or any Judicial Magistrate of the first class, specially empowered in this behalf by the State Government and the provisions of sections 265 to 267 (inclusive) of the said Code shall apply to such trial:
   • Provided that in case of conviction for any offence in a summary trial under this section, it shall be lawful for such Magistrate to pass a sentence of imprisonment for any term for which such offence is punishable under this Ordinance. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 all offences punishable under this Ordinance shall be cognisable and non-bailable.
9. 450. Furthermore, the complainants indicate that in addition to imprisonment and monetary penalty, the Bill provides for summary dismissal.
   • 13. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, all offences punishable under this Act shall be cognizable and non-bailable.
   • 14. Any reference in this Act to any law which is not in force in any area and to any authority under such law shall, in relation to that area, be construed as a reference to the corresponding law in force in that area and to the corresponding authority under such corresponding law.
   • 15. No suit, prosecution or other legal proceedings shall lie against the Central Government or any officer for anything which is in good faith done or intended to be done under this Act.
   • 16. The provisions of this Act and of any order issued thereunder shall have effect notwithstanding anything inconsistent therewith contained in the Industrial Disputes Act, 1947, or in any other law for the time being in force.
10. 451. The complainants express their concern that the Government will extend this Bill to other sectors to gradually curb the fundamental rights of workers by making industrial actions illegal and punishable and refer in this respect to Clause 17, which would appear to be applicable to the port sector:
    • 17. In the Industrial Disputes Act, 1947 Section 2, in Clause (n), sub clause (ia), for the words “or dock” the words “or dock or any industrial establishment or unit engaged in essential defence services” shall be substituted.
11. 452. The complainants conclude that the Bill is aimed at prohibiting all industrial actions/strikes by employees and unions in the defence sector and at destroying trade unions in that sector. They request the Committee to recommend to the Government to withdraw it.

B. The Government’s reply

1. 453. In its communication dated 19 January 2022, the Government explains that the Indian ordnance factories are the oldest and largest factories under the Department of Defence Production of the Ministry of Defence. The ordnance factories form an integrated base for production of defence hardware and equipment, with the primary objective of self-reliance in equipping the armed forces with the state-of-the-art battlefield equipment. In order to improve the autonomy, accountability and efficiency in ordnance supplies, the Government has decided to convert 41 production units of OFB into seven Defence Public Sector Undertakings (DPSUs), 100 per cent Government-owned entities to be registered under the provisions of the Companies Act, 2013.
2. 454. The Government indicates that against the said decision of the Government, and despite the Government’s assurances that it would take care of the conditions of service of the OFB employees, the recognized trade union federations have expressed their intention to go on an indefinite strike.
3. 455. The Government indicates that in view of the situation prevailing at the northern borders at the time, it was felt essential that an uninterrupted supply of ordnance items to the armed forces be maintained for the defence preparedness of the country and the ordnance factories continue to function without any disruptions. It was necessary for the Government to have the power to meet the emergency and ensure the maintenance of essential defence services in all establishments connected with defence, in public interest, or interest of the sovereignty and integrity of India, or security of any State, or decency, or morality.
4. 456. The Government indicates that the Bill has now been passed by both Houses of Parliament and with the assent of the President of India became an Act – the Essential Defence Services Act (EDSA). The Government considers that the Act does not violate ILO fundamental principles and rights at work, which include freedom of association and the right to collective bargaining; it only prohibits strikes, which is not a fundamental right under the Constitution of India.
5. 457. The Government further indicates that the ordnance factories are not being privatized and that the complainants’ apprehension is not based on any facts. The Government informs that as per the Rules, except for employees of the OFB Headquarters Kolkata, the OFB New Delhi Office, OF Schools and OF Hospitals, who have been transferred to the Directorate of Ordnance (Coordination & Service) to be formed under the DDP, all employees of OFB (Group A, B and C) have been transferred (deemed deputation) for an initial period of two years as from 1 October 2021 (date of commencement of business by the new corporate entities). The Government details the conditions of services of employees on deemed deputation as follows:
   • (a) Each of the new DPSUs is required to frame rules and regulations related to service conditions of the absorbed employees and seek an option for permanent absorption from the employees on deemed deputation to that respective DPSU, within a period of two years. It is important to mention that the service conditions of the absorbed employees would not be inferior to the existing ones. A committee would be constituted by the DDP for guiding the new DPSUs in this regard so that the absorption package given is attractive.
   • (b) Till such time the employees remain on deemed deputation to the new entities, they shall continue to be subject to all extant rules, regulations and orders, as are applicable to the Central Government servants, including related to their pay scales, allowances, leave, medical facilities, career progression and other service conditions.
   • (c) The pension liabilities of the retirees and existing employees will continue to be borne by the Government from the MOD budget. For the employees recruited after 1 October 2004, the New Pension Scheme applicable to the Central Government employees is in force and the same may be adopted by the new corporate entities, including continuation of all special provisions applicable to the Central Government employees under the National Pension System.
   • (d) The conditions of payment of pensionary benefits to the employees of OFB on absorption to the new corporate entities would be regulated in accordance with Rule 37-A of the Central Civil Services (pension) Rules, 1972.
6. 458. The Government indicates that unless the OFB employees chose to opt for permanent absorption in the new DPSUs, they would continue as Central Government servants and their pay scales, allowances, leave, medical facilities, career progression and other service conditions will also continue to be governed by the extant rules, regulations and orders, as are applicable to the Central Government servants.
7. 459. As to the new legislation, the Government indicates that under section 2(1)(b) of the Act, the definition of “strike” has been enlarged to include strikes in any form such as “go-slow”, “sit down”, “stay-in”, “token strike”, “sympathetic strike” or “mass casual leave”. The Government explains that this aims at preventing participation in any form of strikes, which is prejudicial to the security of the State, public interest, sovereignty and integrity of India, public order, or decency or morality in essential defence services.
8. 460. The Government further indicates that all provisions of the Industrial Disputes Act, 1947 on conciliation and adjudication, collective bargaining and every step which otherwise workers could have taken under it, are still available to them, except for instigating, supporting and participating in strikes. The existing framework for industrial relation mechanisms under various statutes will continue. The Government explains that the provisions of the Industrial Disputes Act (including the conciliation proceedings) are not sufficient to prevent or prohibit strikes in industrial establishments that are engaged in essential services or notified as “public utility service”. The procedure for conciliation and adjudication provided for in the Industrial Disputes Act is available to workers, except instigating, supporting and participating in strikes; the grievances of defence civilian employees can be settled within the existing framework of labour laws, especially the Industrial Disputes Act, without resorting to strikes, which is not a fundamental right. However, if any act prejudicial to the functioning, safety or maintenance of the essential defence services is committed, the police officers have been given the powers to arrest. The Government points out that the provisions of the EDSA apply only to the employees working in essential defence services. The Act does not take away the right to peaceful protest by employees following the due process of law, only strikes have been prohibited as this is not a fundamental right.
9. 461. The Government explains that the EDSA empowers it to regulate the maintenance of defence production and related services. This Act aims at ensuring an uninterrupted supply of ordnance items to the armed forces for the defence preparedness of the country. The Act is not taking away the right to assemble peacefully and to form associations or unions which has been guaranteed as a fundamental right under Part III of article 19 of the Constitution of India. However, the same article provides for reasonable restrictions on this right:
   • … nothing in sub clause (b) of the said clause shall affect the operation of the existing law or prevent the government from making any law in so far as the law imposes reasonable restrictions on the right conferred by the said sub-clause, in the interest of sovereignty and integrity of India, security of State, public order decency or morality.
10. 462. The Government further indicates that the EDSA covers any establishment or undertaking dealing with production of goods or equipment required for any purpose connected with defence. It also covers any service in any establishment of, or connected with, the armed forces or in any other establishment or installation connected with defence. Pursuant to Part III of article 33 of the national Constitution, Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to: (a) members of the Armed Forces; or (b) members of the forces charged with the maintenance of public order; or (c) persons employed in any bureau or other organization established by the State for the purpose of intelligence or counter intelligence; or (d) persons employed in or in connection with, telecommunication systems set up for the purposes of any forces, bureau or organization referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.
11. 463. The Government indicates that the right to collective bargaining is still available to the unions and the immunity provided for under the Trade Union Act has not been taken away. Furthermore, in no way does the EDSA interfere with the right of organizations to draw up their constitutions and rules, elect representatives in full freedom, etc. The Act does not intend to crush industrial actions by workers/employees. The Government reiterates that the Act is limited in its application to the essential defence services, in which the Central Government can prohibit strikes by a special or general order if the circumstances so necessitate; all other services and sectors are not covered by this Act. The situation in the northern borders of India had necessitated ensuring a continuous supply of arms, ammunition and other defence equipment to the armed forces and that situation still continues. According to the EDSA, any person who instigates or incites other persons to take part in, or otherwise acts in furtherance of, a strike which is illegal under the Act, shall be punishable with imprisonment, or a fine or both. The similar provisions already exist in the Industrial Disputes Act, 1947, under which, those going on an illegal strike can be arrested, imprisoned, fined, or both.
12. 464. The Government points out that the Act has a sunset clause. It shall cease to have effect on the expiry of one year from the date on which it received the assent of the President. By its communication dated 30 September 2022, the Government informs that the Act ceased to have effect after expiry of the given period.
13. 465. The Government further points out that on the one hand, Convention No. 87 allows for the armed forces to be excluded from its application, and on the other, it is not bound by Conventions Nos 135 and 151, which it had not ratified.

C. The Committee’s conclusions

1. 466. The Committee notes that the CITU and the AITUC, complainants in this case, allege that the Essential Defence Services Bill introduced in Parliament to replace the promulgated earlier Essential Defence Services Ordinance prohibits all types of industrial action in defence production organizations and provides for the possibility of dismissal and imposition of excessive penalties in the event of infringement, thereby violating the workers’ right to freedom of association. The Committee notes that the Essential Defence Services Act was adopted and received the assent of the President on 11 August 2021.
2. 467. The Committee notes the circumstances that led to the promulgation of the Ordinance and then the submission of the “Bill to provide for the maintenance of essential defence services so as to secure the security of nation and the life and property of public at large and for matters connected therewith or incidental thereto” to Parliament. Specifically, the Ordinance and the Act were adopted following threats of strikes against the Government’s intention to reorganize ordnance factories into undertakings to be registered under the Companies Act, 2013, which the complainants claim paved the way for the privatization of factories. The Committee notes that the Government denies that ordnance factories are being privatized and explains that the Act was adopted to prevent strikes in the sector, especially during the political turbulence at India’s northern boarders.
3. 468. The Government points out that workers in this sector enjoy all freedom of association rights, that is the right to establish trade unions, to draw their constitutions and rules, to elect their representatives, to bargain collectively, to protest, etc., except for the right to strike. The Government points out that the Act is limited to essential defence services only. The Government considers that the right to strike is not a fundamental right and workers in this sector can be prohibited from exercising it. Accordingly, pursuant to the Act, resorting to strikes in essential defence services can be prohibited by the Central Government by a special or general order if the circumstances so necessitate. The Government further points out that all other relevant legislation (the Trade Union Act and the Industrial Disputes Act) is still in force. In this respect, the Government points out that the procedures for conciliation and adjudication provided for in the Industrial Disputes Act remain available to workers. The Government indicates that the Act has a clause providing for its expiration one year following the Presidential assent on 11 August 2021 and that accordingly the Act ceased to have effect after the expiry of the given period.
4. 469. The Committee notes the Government’s argument that Convention No. 87 allows for the armed forces to be excluded from its application. While observing that the Government has not ratified Convention No. 87, in reply to this argument the Committee recalls that the members of the armed forces who can be excluded from the application of Convention No. 87 should be defined in a restrictive manner [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 344]. It further recalls that civilian workers in the manufacturing establishments of the armed forces should have the right to establish organizations of their own choosing without previous authorization, in conformity with Convention No. 87 [see Compilation, para. 348]. The Committee has also considered that it is clear that the International Labour Conference intended to leave it to each State to decide on the extent to which it was desirable to grant members of the armed forces and of the police the rights covered by Convention No. 87. It also held that the same considerations apply to Conventions Nos. 98, 151 and 154 [see Compilation, para. 1253].
5. 470. Regarding the Government’s argument that the right to strike is not a fundamental right, the Committee recalls that it has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests [see Compilation, para. 752]. The Committee considers, however, that in exceptional circumstances, the right to strike can be restricted or prohibited. In this respect, the Committee recalls that to determine situations in which a strike could be prohibited, the criterion which has to be established is the existence of a clear and imminent threat to the life, personal safety or health of the whole or part of the population’s interests [see Compilation, para. 836].
6. 471. The Committee notes that pursuant to section 2 of the Act, “essential defence services” means:
   • (i) any service in any establishment or undertaking dealing with production of goods or equipment required for any purpose connected with defence;
   • (ii) any service in any establishment of, or connected with, the armed forces of the Union or in any other establishment or installation connected with defence;
   • (iii) any service in any section of any establishment connected with defence, on the working of which the safety of such establishment or employee employed therein depends;
   • (iv) any other service, as the Central Government may, by notification in the Official Gazette, declare to be essential defence services, the cessation of work of which would prejudicially affect the –
     • (I) production of defence equipment or goods; or
     • (II) operation or maintenance of any industrial establishment or unit engaged in production of goods or equipment required for any purpose connected with defence; or
     • (III) repair or maintenance of products connected with defence;
   It further notes that pursuant to section 3:
   • (1) If the Central Government is satisfied that in the –
     • (a) public interest; or
     • (b) interest of the sovereignty and integrity of India; or
     • (c) security of any State; or
     • (d) public order; or
     • (e) decency; or
     • (f) morality,
     • it is necessary or expedient so to do, it may, by general or special order, prohibit strikes in the essential defence services.
     ...
     • (3) An order made under sub-section (1) shall be in force for six months, but the Central Government may, by a like order, extend it for any period not exceeding six months, if it is satisfied that in the public interest it is necessary or expedient so to do.
7. 472. The Committee observes that the services described above as a whole and the situations in which strikes can be declared illegal therein are excessively broad, especially as the prohibitions may be ordered outside of any acute national emergency and may encompass the production of goods and defence equipment not immediately needed for the defence of the country but intended, for example, for export. The Committee thus considers that insofar as the Act restricts the freedom of association rights of a broad-range of civilian workers in the manufacturing establishments of the armed forces who are not carrying out services that would endanger the life, personal safety or health of whole or part of the population, and recalling that until the adoption of this Act they were guaranteed full exercise of these rights under the Trade Union Act, these workers should be able to exercise one of the essential means to promote and defend their economic and social interests.
8. 473. The Committee nevertheless recalls that when a service that is not essential in the strict sense of the term but is part of a very important sector in the country is brought to a standstill, measures to guarantee a minimum service may be justified [see Compilation, para. 868]. In this respect, the Committee recalls that minimum service should be restricted to the operations which are necessary to satisfy the basic needs of the population or the minimum requirements of the service, while ensuring that the scope of the minimum service does not render the strike ineffective [see Compilation, para. 874]. It further recalls that negotiations over the minimum service should be ideally held prior to a labour dispute, so that all parties can examine the matter with the necessary objectivity and detachment. Any disagreement should be settled by an independent body, like for instance, the judicial authorities, and not by the ministry concerned [see Compilation, para. 876].
9. 474. Regarding the responsibility for declaring a strike illegal, the Committee recalls that it should not lie with the Government, but with an independent and impartial body and that to declare a strike or work stoppage illegal, the judicial authority is best placed to act as an independent authority [see Compilation, paras 909 and 910]. The Committee observes that under section 4 of the Act, where the Government issues an order declaring a strike illegal, “any police officer may take all such measures as such officer may deem fit including the use of police force, if he considers necessary, to remove any person”. The Committee recalls that the authorities should resort to calling in the police in a strike situation only if there is a genuine threat to public order. The intervention of the police 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 in trying to control demonstrations that might undermine public order [see Compilation, para. 935].
10. 475. Regarding sanctions set forth by sections 6–8 of the Act for the participation in or instigation of a strike declared illegal, as well as for providing financial aid to such strikes, which may involve imprisonment, fines or both, the Committee recalls that penal sanctions should only be imposed as regards strikes where there are violations of strike prohibitions which are themselves in conformity with the principles of freedom of association. All penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed and the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike [see Compilation, para. 966].
11. 476. The Committee further notes that pursuant to section 5 of the Act,
    • (1) Any person –
    • (2) Notwithstanding anything contained in any other law for the time being in force or under the terms and conditions of service applicable to any person employed in the essential defence services, before dismissing any person under sub-section (1), no inquiry shall be necessary if the authority empowered to dismiss or remove such person is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry.
    The Committee considers that when trade unionists or union leaders are dismissed for having exercised the right to strike, the Committee can only conclude that they have been punished for their trade union activities and have been discriminated against [see Compilation, para. 958]. 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, inexpensive and fully impartial [see Compilation, para. 1142].
12. 477. While observing that the Act is no longer in force, in view of all of the above considerations, the Committee highlights the importance of social dialogue in the process of adopting legislation, which may have an effect on workers’ rights, including those intended to alleviate a serious crisis situation [see Compilation, para. 1546]. The Committee expects that in the future, the Government will ensure that full and frank consultation with the social partners take place on any proposed legislation affecting their rights.