Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 217, Juin 1982

1. 431. The Trade Unions International of Public and Allied Employees (TUIPAE) presented its complaint in a communication dated 10 November 1981. The Government sent its observations in a communication of 5 February 1982.
2. 432. 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 complainant's allegations

1. 433. The TUIPAE alleges that the Essential Services Maintenance Ordinance of 27 July 1981 violates the international standards concerning trade union rights and liberties because, under its terms, strikes can be prohibited in postal and telecommunication services, railways, aviation, defence, production, transport, ports and docks, banks, petroleum industries, municipal and health services and in all industries and services connected to matters "with respect to which Parliament has the power to make laws". Thus, the complainant points out, public service branches are already excluded from the right to strike and, at the Government's discretion, most of the branches of the economy and administration can be declared "essential services" and therefore excluded from this right.
2. 434. According to the TUIPAE, under the Ordinance any forms of trade union activity in defence of the liberties and rights of the workers such as work to rule, refusal to do overtime, and retardation of work are considered as strike action, as is the refusal to fill a post in replacement of a striker. It also states that certain provisions penalise financial and other support to strikers. Lastly, it alleges that the ordinance provides for restrictive measures against trade union organisations and their members such as dismissals, heavy fines, summary proceedings and allowing every policeman to arrest a worker if he is reasonably suspected of instigating, participating in or supporting a strike.

B. The Government's reply

1. 435. In its communication of 5 February 1982, the Government firstly outlines the existing position in regard to freedom of association in India: article 19(1)(c) of the Constitution guarantees to all citizens the right to form associations or unions; the Trade Unions Act, 1926, protects members and office-bearers of registered trade unions from civil and criminal actions; the Industrial Disputes Act, 1947, provides for investigation and settlement of industrial disputes in the public and private sectors through conciliation, arbitration and adjudication machinery and allows strikes subject to advance notice and provided that dispute settlement procedures are not under way; the Government Servants' Conduct Rules prohibit strikes by civil servants but offer joint consultative machinery and compulsory arbitration for resolving major grievances.
2. 436. Regarding specifically the right to strike in essential services, the Government stresses that the definition of such services may differ from country to country, especially in developing countries, and it states that violent labour clashes had been on the increase in India requiring some preventive action to maintain discipline and operational efficiency for the over-all national good and public welfare. The Government points out that, under the Essential Services Maintenance Act of 23 September 1981, which replaced the ordinance of July 1981, strikes are not automatically banned in any essential service, but that each case has to be decided individually on its merits and that lockouts and layoffs by employers are also covered. The ban orders remain in operation only for six months (with a possible extension for another six months) and, even where a bar order is issued for a specific essential service, the provisions of the Industrial Disputes Act regarding settlement of disputes are activated to settle the grievance, within a time limit of 90 days according to the Government's statement of policy which accompanied the adoption of the Essential Services Maintenance Act.
3. 437. The Government further points out that the ordinance was challenged in the Supreme Court of India (before the Act was passed), where it was upheld on the basis that the right to strike was not a fundamental right. Moreover, the Act is, according to the Government, only an enabling law which authorises the administrative machinery to take steps against actions that can damage the economy of the country. It is only in force for a period of four years (section 1(4)).
4. 438. In reply to the allegation that strike action is defined too broadly in the Act, the Government cites section 2(b) of the Act under which "refusal to work overtime" is only included in the definition where overtime work is necessary for the maintenance of any essential service and "substantial retardation of work" is included only if it occurs in any essential service. According to the Government, the Act does not make any reference to strike breakers, as alleged in the complaint. In reply to the alleged penalisation of support to strikers, the Government refers to section 7 of the Act - which merely reflects the already existing provisions of section 28 of the Industrial Disputes Act - which is not aimed exclusively at trade unions, just as the other penal provisions in the Act are not applicable solely to trade unions. As regards the power of arrest (section 10 of the Act), the Government points out that, under Indian jurisprudence, a prosecuting authority can take cognisance of serious offences by arresting without a magisterial warrant. It considers that such a provision is necessary to ensure the effective realisation of the purpose of the Act.
5. 439. During the adoption of the Act, the Government gave an assurance that the powers therein would he used most sparingly and it points out that, as of the date of its reply, the provisions of the Act have been invoked only in three cases: twice in Assam Bandh, and in the case of the Maharashtra State Electricity Board. Lastly, it claims that the Act has the full support of the Indian National Trade Union Congress which is the largest central workers' organisation in the country.

C. The Committee's conclusions

1. 440. This case concerns alleged restrictions on freedom of association contained in the Essential Services Maintenance Act, 1981, in particular as regards the right to strike in essential services which are enumerated in an open-ended list. The Government states that the powers available under the Act have been and will be used sparingly, that the Act does not automatically prohibit strikes in essential services, that strike bans will only operate for a maximum of 12 months and that the Act itself is only in force for four years. It also stresses that where a ban is ordered, the already existing disputes settlement procedure will be activated to settle the grievance within 90 days.
2. 441. The Committee considers it useful to reproduce the relevant provisions of the Act in question:
3. "2. (1) In this Act, unless the context otherwise requires
   • (a) essential service means
   • (i) any postal, telegraphic or telephone service, including any service connected therewith;
   • (ii) any railway service or any transport service for the carriage of passengers or goods by air or [...] land or water [...];
   • (iii) any service connected with the operation or maintenance of aerodromes, or with the operation, repair or maintenance of aircraft, or any service in the International Airports Authority of India [...];
   • (iv) any service in, or in connection with the working of, any major port, including any service connected with the loading, unloading, movement or storage of goods in any such port;
   • (v) any service connected with the clearance of goods or passengers through the customs or with the prevention of smuggling;
   • (vi) any service in any establishment of, or connected with, the armed forces of the Union or in any other establishments or installations connected with defence;
   • (vii) any service in any establishment or undertaking dealing with the production of goods required for any purpose connected with defence;
     • (viii) any service in any section of any industrial undertaking pertaining to a scheduled industry on the working of which the safety of such undertaking or the employees employed therein depends [...];
   • (ix) any service in, or in connection with, the working of any undertaking owned or controlled by the Central Government being an undertaking engaged in the purchase, procurement, storage, supply or distribution of food grains;
   • (x) any service in, or in connection with the working of, any system of public conservancy, sanitation or water supply, hospitals or dispensaries, in any union territory, cantonment area or undertaking owned or controlled by the Central Government;
   • (xi) any service in connection with or in relation to banking;
   • (xii) any service in any establishment or undertaking dealing with the production, supply or distribution of coal, power, steel or fertilizers;
     • (xiii) any service in any oilfield or refinery or in any establishment or undertaking dealing with the production, supply or distribution of petroleum and petroleum products;
   • (xiv) any service in any mint or security press;
   • (xv) any service in connection with elections to Parliament or to the Legislatures of the States;
   • (xvi) any service in connection with the affairs of the Union, not being a service specified in any of the foregoing subclauses;
     • (xvii). any other service connected with matters with respect to which Parliament has power to make laws and which the Central Government being of opinion that strikes therein would prejudicially affect the maintenance of any public utility service, the public safety or the maintenance of supplies and services necessary for the life of the community or would result in the infliction of grave hardship on the community, may, by notification in the Official Gazette, declare to be an essential service for the purposes of this Act [ ... ];
   • (2) Every notification issued under the above subclause shall be laid before each House of Parliament immediately after it is made [...] and shall cease to operate at the expiration of 40 days from the date of its being so laid [...], unless before the expiration of that period a resolution approving the issue of the notification is passed by both Houses of Parliament.
4. 3. (1) If the Central Government is satisfied that in the public interest it is necessary or expedient so to do, it may, by general or special order, prohibit strikes in any essential service specified in the Order."
5. 442. The Committee recalls that it has previously examined similar allegations presented against the Government of India. The Committee then observed that the Essential Services Maintenance Act of 1968 established a list of government services which also included other activities that did not appear to be essential in character such as, for example, in normal circumstances, general dockwork, aircraft repairs and all transport services, and that the Government could extend that list. The Committee drew the Government's attention to the principles that the banning or restriction of strikes in the civil service or in essential services does not necessarily constitute an infringement of freedom of association, subject to certain provisions to safeguard the interests of workers who are thus deprived of a means of defending their occupational interests, but that essential services should be defined in the strict sense of the term. The Committee also suggested to the Government the desirability of considering the reforms necessary to bring the legislation in question into harmony with these principles.
6. 443. In the present case, the Committee would again draw to the Government's attention the fact that although industrial action, such as the right to strike, by workers and their organisations is generally recognised as a legitimate means of defending their occupational interests, this right may be restricted or even prohibited in the civil service or in essential services in the strict sense of the term, i.e. services whose interruption would endanger the existence or well-being of the whole or part of the population. The Committee has, for instance, considered that, on this criterion, the hospital sector and air-traffic controllers are essential services. In another case, the Committee considered that it was not established in a satisfactory way that the Mint, the government printing service and the state alcohol, salt and tobacco monopolies constitute genuinely essential services; although it might be said that a stoppage of work by the workers concerned in those undertakings could cause public inconvenience, it did not appear possible that it could bring about serious public hardship. Applying the above criterion to the present case, the Committee considers that the possible prohibition on the withdrawal of services by hospital employees (section 2(1)(x)) or air-traffic controllers (section 2(1)(iii)) does not constitute a violation of the principles of freedom of association. Furthermore, Article 9 of Convention No. 87 leaves the regulation of industrial relations in the armed forces (section 2(1)(vi)) to the government concerned.
7. 444. Bearing in mind the above-mentioned criteria, and having examined the list of essential services set out in the 1981 legislation, the Committee is of the opinion that the range of services described as essential is an extensive one, going well beyond the concept of essential services defined as those whose interruption would endanger the existence or well-being of the whole or part of the population. It expresses the hope that the Government will consider the possibility of reviewing the legislation, by narrowing down the list of services in which strikes may be prohibited to essential services in the strict sense of the term. It requests the Government to indicate any steps taken to this effect.
8. 445. Nevertheless, the Committee recalls the principle that where the right to strike is restricted or prohibited in certain essential undertakings or services, adequate protection should be given to the workers to compensate them for this limitation on their freedom of action, for example, by adequate impartial and speedy conciliation and arbitration procedures. The Committee notes in the present case the Government's statement that where a strike ban in any essential service is issued, the already existing disputes settlement procedure will be activated to settle the grievance within 90 days, but that there is no provision to this effect in the Act.
9. 446. The Committee has examined the relevant provisions of the Industrial Disputes Act and observes that a system of voluntary reference by the parties concerned of disputes to arbitration exists, together with a system of reference by the Government of disputes to either a board for promoting a settlement thereof, or to a court for inquiry, or to a labour court or industrial tribunal for adjudication, or lastly, where the question at issue is of national importance, to a national tribunal for adjudication. The courts have six months in which to report on the dispute to the government and the other bodies shall hold their proceedings expeditiously and hand down awards as soon as practicable. All the above-mentioned bodies appear to be impartial or independent, being either composed of nominees from both parties to a dispute with an independent chairman or of members of the high judiciary. Conciliation officers are also available for the purpose of bringing about the settlement of a dispute and they shall submit a report within 14 days of the commencement of conciliation proceedings. These officers are appointed by the Government. Although the Government, in citing the three occasions when the Essential Services Maintenance Act has been used, did not outline which of the above-mentioned disputes settlement procedures was activated, the Committee considers that they are adequate to safeguard the interests of the workers who are liable to prohibition of the right to strike under that legislation.
10. 447. As for the allegations concerning arrest without warrant of suspected strikers and the penalties for participating in illegal strikes (dismissal, imprisonment up to six months or/and fines of up to 1,000 rupees) and for financially aiding illegal strikes (imprisonment of up to 12 months or/and fines of up to 2,000 rupees), the Committee notes the Government's reply that arrest without warrant is part of Indian jurisprudence and that the penalties provided under the Act apply to any guilty persons, not just trade unions. Nevertheless, in view of the nature of the procedures and the severity of the penalties available against workers who participate in or persons who support certain strikes, the Committee considers that the legislation can hinder the development of harmonious industrial relations.