Rapport définitif - Rapport No. 153, Mars 1976

1. 49. The Committee has already examined this case in February 1975, when it submitted an interim report which appears in paragraphs 113 to 140 of its 149th Report, approved by the Governing Body at its 195th Session (March 1975).
2. 50. 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

1. 51. It will be recalled that this case is concerned mainly with a labour dispute which arose on the Indian railways in May 1974. After claims had been filed by the All India Railwaymen's Federation (AIRF), negotiations were begun at the highest level. The discussions with the Federation were interrupted after the arrest of its President, Mr. Fernandes, and a number of other trade union leaders. According to the Government, the AIRF was planning not only a strike, but also acts of sabotage, violence and intimidation and a number of assaults had already been committed. The strike was declared illegal and the Government ordered thousands of arrests, dismissals and suspensions, as well as - according to the complainants - the eviction of strikers from their homes. There were also allegations of brutality by the police and armed forces.
2. 52. The AIRF pointed out that its demands had been pending for over a year without any meaningful negotiations taking place nor any genuine efforts being made by the public authorities to resolve the dispute. It is claimed that the arrests and repressive measures had begun long before the strike started and that, in the event of breakdown of the negotiations, the dispute should have been referred to conciliation machinery under the Industrial Disputes Act.
3. 53. The Government stated that the railways were deemed to be an essential public utility service because they were the lifeline of the country's transport system (essential raw materials, food grains, etc.). The Government went on to say that permanent tripartite machinery for the settlement of railway disputes had been functioning since 1952; it had been set up in agreement with the unions. In 1966, the Government had introduced a scheme for consultation with its employees' organisations through joint councils at the national, regional and office levels. The scheme provided for the settlement of all disputes through joint consultation and compulsory arbitration machinery. Compulsory arbitration was provided for on issues relating to pay and allowances, weekly hours of work and leave for each category of worker. The scheme further provided that matters determined by the Government in accordance with the recommendations of a commission should not be subject to arbitration for a period of five years.
4. 54. The Government stated that the complainant federation's demands concerning the revision of wage scales, changes in the dearness allowance formula and the payment of bonuses could not be dealt with through the conciliation machinery. These were issues with wider financial implications; they had already been settled by the third pay commission or were under consideration by the bonus review Committee. The AIRF, continued the Government, formed part of the joint consultation machinery and was therefore a party to the agreement whereby, when pay scales were revised by a duly constituted pay commission and when these pay scales were accepted by the public authorities or improved upon, they could not be taken to arbitration for a period of five years.
5. 55. In its 149th Report the Committee pointed out that the right of workers and their organisations to strike was generally recognised as a legitimate means of defending their occupational interests, and that where this right was restricted or even prohibited in the civil service or in essential services, adequate guarantees should be provided to safeguard to the full the interests of the workers thus deprived of an essential means of defending their occupational interests. In the present case, the Committee noted that, according to the information supplied by the Government, the railways were a key sector in the life of the country. It did not, therefore, appear possible for major strikes to take place in this public service without causing serious inconvenience to the national community.
6. 56. The Committee noted, with respect to the different types of machinery described by the Government, that the Indian National Commission on Labour had drawn attention to certain defects in the functioning of the joint consultation and arbitration machinery in the public sector in India. This Commission had observed that the Government appeared to have vested in itself the power to place or not to place certain items on the agenda for discussion by the consultation machinery, and had pointed out in particular that the final decision lay with the Government as to whether or not an issue should be referred to arbitration if a settlement could not be reached through the consultation machinery. The Committee pointed out that the restriction or prohibition of the right to strike in essential services should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures, in which the parties could take part at every stage and in which the awards were binding in all cases on both parties, and were fully and promptly implemented. It appeared to the Committee that in the present case, the guarantees designed to compensate for the forfeiture of the right to strike were not adequate, since the Government had the final say as to whether or not a dispute should go to arbitration. Such a situation might create an atmosphere of tension hardly favourable towards the development of harmonious industrial relations.
7. 57. The Committee also expressed the view that arrests and dismissals of strikers on such a large scale involved serious dangers of abuse and placed freedom of association in grave jeopardy. In the Committee's opinion intervention by security forces should be limited to the maintenance of public order, and the competent authorities should be given appropriate instructions so-as to obviate the dangers to freedom of association implied by such arrests or dismissals. The Committee noted that two-thirds of the dismissed railwaymen had been reinstated and that appeals were pending against other dismissals. The Committee expressed the hope that the Government would adopt a lenient attitude in these various cases, as this would be more likely to facilitate the development of harmonious industrial relations than an attitude of inflexibility.
8. 58. In these circumstances, the Committee recommended the Governing Body to draw the Government's attention to the considerations expressed in the preceding paragraphs, and to request the Government to specify whether Mr. Fernandes and his close associates were still in prison and to supply information concerning the strikers still in custody, indicating in particular whether legal proceedings had been initiated against them and, if so, what the outcome had been.
9. 59. The Government replied by communications dated 28 April and 7 August 1975. It begins by recalling the machinery set up for the settlement of industrial disputes on the railways. It states that the permanent negotiating machinery set up in 1952 provides for reference to a tribunal of important issues which cannot be settled by negotiations, and that if agreement cannot be reached under the joint consultation machinery set up in 1966 on any matter pertaining to pay and allowances, hours of work and leave, the Government must appoint a board of arbitration. The Government appends a copy of the provisions whereunder the joint consultation machinery was set up, adding that previous experience clearly indicates that even though the Government has the right to modify or reject an award, this right has seldom been exercised in practice. There have been no instances where an arbitration board's award has not been accepted, and for all practical purposes these awards are binding.
10. 60. The Government refers also to its earlier observations with regard to the arrest and dismissal of railwaymen and trade unionists, recalling that it was compelled to have recourse to preventive measures for the preservation of law and order, but did so only when there was positive proof of malevolent intentions and open incitement to acts of sabotage on the part of members of the complainant federation. It gives an assurance that these measures do not in any way jeopardise freedom of association.
11. 61. The Government adds that 90 per cent of the dismissed railwaymen have already been reinstated and quotes extracts from a speech by the Railway Minister in Parliament in February 1975 which it considers to be positive proof of the Government's conciliatory and flexible attitude. The Minister announced in particular his decision to condone the break in service of all railway employees except those charged with sabotage or violence. The Government states that Mr. Fernandes and his associates were released when the strike was called off and that only two railwaymen are still in custody. Legal proceedings have been instituted in their cases and the outcome of these proceedings is awaited. The Government concludes that it has taken all possible steps to remove the vestiges of this strike and to restore normal industrial relations.
12. 62. In its communication of 7 August 1975, the Government states that the permanent negotiating machinery is now functioning normally and that, on 20 May 1975, Mr. Fernandes attended a meeting at which the normalisation of industrial relations on the railways was the main item discussed. The Government states that all the arrested railwaymen have been released, and that 93 per cent - as against 90 per cent reported earlier - of the dismissed staff have been taken back into service, while the remaining cases are being reviewed sympathetically.

B. B. The Committee's conclusions

1. 63. The Committee notes with interest this information and in particular the fact that industrial relations on the railways have been restored to normal.