Rapport intérimaire - Rapport No. 90, 1966

1. 234. This case was examined by the Committee at its meeting in November 1965, when the Committee submitted an interim report in paragraphs 85 to 125 of its 86th Report, which was approved by the Governing Body at its 164th Session (February-March 1966). In that report the Committee submitted definitive recommendations on certain allegations relating to workers' housing rights, an infringement of the Industrial Disputes Act, 1947, disciplinary measures in general against workers, discriminatory treatment with regard to the granting of loans, casual labour, inhumane treatment of workers and the right to strike. With regard to allegations relating to disciplinary measures against workers who occupied vacant quarters and to anti-union discrimination in respect of grading and promotion to the detriment of the members of the complaining organisation, the Committee decided to request the Government to furnish further information on certain points before formulating recommendations to the Governing Body. The Government furnished further information on these two series of allegations by a communication dated 16 April 1966, and it is these outstanding allegations only which are further considered in the present report.
2. 235. 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. A. The complainants' allegations

• Allegations relating to Disciplinary Measures against Workers Who Occupied Vacant Quarters
  236. 236 These allegations and the Government's first observations thereon were analysed in paragraphs 95 and 96 of the Committee's 86th Report. They related to the suspension of certain workers who occupied premises which they found vacant, and it was contended that 15 of them, who were suspended for a longer time than the others, were discriminated against because they belonged to the complaining organisation. The union raised a formal, dispute under the Industrial Disputes Act and then, it was alleged, the employers illegally stopped or reduced the subsistence allowance of the suspended men during the conciliation proceedings, contrary to section 33 of the Act, which prohibits the changing of conditions of service during such proceedings. The Government agreed that the workmen were suspended, stated that it was because they illegally occupied certain premises and said that eight were reinstated after vacating the premises.
  237. 237 The Committee decided to request the Government to comment on the allegation that the stoppage or reduction of the subsistence allowances of the suspended workmen took place during the actual period of the conciliation proceedings, which lasted apparently from 18 June to 19 July 1964, and therefore infringed the Industrial Disputes Act.
  238. 238 In its communication dated 16 April 1966 the Government states that conditions of service were not altered during the conciliation period. According to Rule No. 53 of the service rules in force, the subsistence allowance may be cut after a certain period of suspension if the period of suspension is prolonged through the acts of the persons concerned. In this case the suspension was prolonged in the case of some of the workmen concerned because they had still refused to vacate the premises they had occupied. This involved no breach of section 33 of the Industrial Disputes Act, which simply provides that conditions of service applicable immediately before conciliation proceedings begin shall not be changed during the proceedings. Rule No. 53 existed as a condition of service before the proceedings and was not altered and, says the Government, the reduction of subsistence was a measure already provided for in advance.
  239. 239 It would appear from the explanation of the Government that the conditions of service provided for in service rules were not altered during the conciliation proceedings but that the subsistence allowance was cut after a certain period in accordance with the existing rules, a consequence which apparently could have arisen at that date irrespective of whether there was conciliation or not. The Government affirms that suspension continued because some of the workmen still refused to vacate the premises occupied and that workmen who had vacated the premises were reinstated. It does not appear to the Committee either that a breach of the Industrial Disputes Act has been proved or that the evidence furnished by the complainants is sufficient to prove discrimination in the matter against members of the complaining organisation.
  240. 240 The Committee therefore recommends the Governing Body to decide that these allegations do not call for further examination.
• Allegations relating to Acts of Anti-Union Discrimination in respect of Grading and Promotion to the Detriment of the Members of the Complaining Organisation
  241. 241 These allegations were considered by the Committee in paragraphs 101 to 106 of its 86th Report.
  242. 242 The complainants alleged that various officers and members of their union had been discriminated against, because of their union affiliation, by being refused or deprived of promotion or being illegally deprived of acquired seniority rights to the advantage of junior or less skilled employees. In this connection the complainants referred to the cases of Mr. A. K. Mukherjee, Mr. N. Das and Mr. Chakraborty, respectively general secretary, assistant secretary, and organising secretary of the union, and Messrs. D. Singh, S. K. Sarkar, S. J. N. Roy, S. Chatterjee and S. Ghosh, all active members of the union, and also to the case of the greasers employed in the Hydraulic Power Station.
  243. 243 The complainants alleged also that unfair labour practices happened daily in Calcutta Port. It was not possible for each workman to go to the courts, stated the complainants, because litigation was expensive and took too long, a few years elapsing before a decision was reached, and because the authorities were vindictive towards workers who took such action.
  244. 244 The complainants also criticised the procedure for settling disputes under the Industrial Disputes Act, 1947. In the case of Messrs. Roy, Chatterjee and Ghosh the union formally raised an industrial dispute but, it was alleged, the Regional Labour Commissioner had failed to give a ruling after about three years, while the Minister of Labour had refused to refer the case of Messrs. Chakraborty and Mukherjee to a tribunal for adjudication.
  245. 245 In its communication dated 17 April 1965 the Government stated that most of these cases had been handled without success by the Conciliation Officer and that in each case the action taken by the employers was found to be "in accordance with seniority rules" or employment rules, and that referral to a tribunal for adjudication was refused for this reason or because the allegations of victimisation made were " found to be without substance ".
  246. 246 It appeared to the Committee, at its meeting in November 1965, that, where employees of a government concern raise a dispute which is not settled by a Conciliation Officer, it does not go forward for settlement by adjudication unless the competent authority gives permission. This happened certainly in the cases of Mr. Chakraborty and Mr. Mukherjee and, perhaps, in the case of the greasers of the Hydraulic Power Station. In the case of Messrs. Roy, Chatterjee and Ghosh the position was not clear because the complainants said that the Labour Commissioner had failed to give a ruling after three years, while the Government stated that the action taken was in accordance with seniority rules.
  247. 247 The Committee, therefore, having noted also that the Government had not commented on the complainants' allegation that court procedure was too lengthy and expensive for workers to have recourse to it, decided to request the Government to be good enough to explain what remedy is open to the worker whose case is not settled by conciliation and according to what rules and by whom the decision is taken as to whether his case may be adjudicated, and to state how these rules were applied in the particular cases referred to in paragraph 242 above.
  248. 248 In its communication dated 16 April 1966 the Government states that under section 12 (1) of the Industrial Disputes Act, 1947, the Conciliation Officer may, where an industrial dispute exists or is apprehended (unless a notice has been given under section 22 of the Act and the dispute relates to a public utility service), hold conciliation proceedings in the prescribed manner; he intervenes or does not intervene in his discretion. The " appropriate government " need not refer a dispute for adjudication if it is of the opinion that the party raising the dispute has not made out a prima facie case or it would otherwise be inexpedient in the larger interests of industrial peace to refer the dispute for adjudication.
  249. 249 The Government states that the disputes concerning Messrs. Mukherjee and Chakraborty were not considered fit for adjudication as the action taken by the management was found to be in accordance with the rules and recommendations of the committee appointed to look into the complaints regarding seniority. The other cases were not referred for adjudication because the union " could not substantiate its allegations of victimisation or unfair labour practices before the Conciliation Officers concerned ".
  250. 250 If a worker's case is not settled by conciliation and the appropriate government refuses a further request for adjudication, and if further mutual negotiation does not achieve a settlement, the parties can issue a writ in the High Court or the Supreme Court claiming that the action of the government in refusing the dispute for conciliation or adjudication is not in accordance with the law.
  251. 251 The Committee thanks the Government for its explanation as to the operation of the relevant provisions of the Industrial Disputes Act and the circumstances in which recourse may be had to the High Court. Two points remain on which the Committee would be glad to have the Government's comments. In the case of Messrs. Roy, Chatterjee and Ghosh it was alleged that the union had formally raised an industrial dispute but that, after three years, the Regional Labour Commissioner had failed to give a ruling. It was also contended that litigation by each workman in the courts was too expensive and took too long (a few years elapsing before a decision was reached) for workmen to embark upon it. Before submitting its definitive recommendations to the Governing Body, the Committee requests the Government to be good enough to furnish its comments on these two points.
  252. 252 Further cases involving the same legislation have been alleged in a communication from the complainants dated 3 February 1966. The first relates to the nature of the work which workers at the main pumping station are required to perform. The second relates to the provision of safety clothing. The third relates to incentive payments for diesel engine employees. It is alleged that disputes were formally raised in respect of these matters but that the Government has blocked every effort by the workers to seek adjudication. In its communication dated 16 April 1966 the Government states that observations on this aspect of the matter will be furnished in due course.
  253. 253 In these circumstances the Committee requests the Government to be good enough to furnish observations on the contentions of the complainants referred to in paragraph 251 above and also to forward, as soon as possible, its observations on the communication from the complainants dated 3 February 1966.