Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 270, Mars 1990

1. 77. By communications dated 8 and 29 September 1988 the International Transport Workers' Federation (ITF) submitted a complaint of violations of freedom of association in India. By communications of 3 January and 29 November 1989 the complainant provided further information relating to its complaint in the form of a series of press cuttings. The Government supplied its observations on the complaint in a communication dated 18 October 1989.
2. 78. India has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 79. The complaint relates to alleged anti-union behaviour on the part of Vayudoot, which is a domestic airline owned by the Government of India.
2. 80. The complainant states that in 1985 a number of pilots employed by Vayudoot established a trade union called the Vayudoot Pilots' Association. This body was registed on 3 February 1986 in accordance with the provisions of the Trade Unions Act, 1926. It was not, however, recognised by the airline for purposes of collective bargaining or representing the interests of its members.
3. 81. On 1 November 1986 the Association wrote to the General Manager of Vayudoot raising a number of concerns about conditions of service with the airline and especially about the serviceability of aircraft and the provision of safety services at certain airfields. These concerns were reiterated on a number of occasions, notably on 24 December 1986, 2 February 1987 and 24 March 1987. This last communication indicated that the Association was issuing instructions to all pilots, with effect from 1 April 1987, to refuse flights which did not conform to the safety standards set out therein. The Association also expressed its confidence that "the management will not let such a situation arise wherein pilots refuse sorties". This letter was signed by the President of the Association, Captain S.C. Sharma.
4. 82. The Operations Manager of Vayudoot, Captain G. Kapur, responded to this communication by a letter dated 27 March 1987. This letter was directed to Captain Sharma in his personal capacity. Captain Kapur stated that he had adopted this course because "the management does not recognise the said and alleged Vayudoot Pilots' Association". He rejected all of the allegations set out in the Association's letter as being "motivated" and "completely baseless and without any foundation", and continued:
   • As a pilot of Vayudoot you are expected to act in a more responsible manner to inspire confidence in the travelling public. This is to caution you and through you the other pilots who might have been misguided into joining hands with you that the management shall not tolerate any act of indiscipline, insubordination or any baseless allegations made which may have the effect of undermining the name, position and reputation of the airline and which may tend to shake the confidence of the travelling public in the airline. Any action taken by you in support of your imaginary, ill-conceived and untenable grievances shall be responsible for the consequences arising therefrom.
   • Copies of this letter were displayed in all sections of the airline's operations as a warning against trade union activity.
5. 83. Two days after he wrote his letter of 24 March 1987, Captain Sharma was suspended from flying duties on the personal orders of the General Manager of Vayudoot, Mr. H. Vardan. On the same day, and again on 3 April 1987, Captain Sharma wrote asking for an explanation for his suspension. He did not receive any reply to either of these letters. However, on 16 April 1987 he received a letter from the Deputy Administrative Manager of the airline advising him that "your services are no longer required by Vayudoot and are therefore hereby terminated with immediate effect". Three days later, the Delhi Regional Secretary of the Association, Captain R.K. Blaggana, received a letter in precisely the same terms.
6. 84. According to the complainant there had not been any adverse comments on the service record of either pilot. On the contrary, they had both been recruited from the air force and had years of experience behind them. The fact that they were technically on probation for the first year of their employment with Vayudoot "is mainly by way of complying with general provisions of employment orders in civilian commercial organisations". Furthermore, the decision to dismiss the two pilots had been taken in clear disregard of legal opinion from the airline's own lawyers to the effect that the dismissals would be unlawful. Captain Sharma has initiated legal proceedings against the airline, but these may not be resolved for some considerable time - assuming that he can afford to press ahead with his action.
7. 85. A total of 52 of the 62 line pilots employed by Vayudoot signed protests against the dismissals. Of the remaining ten, two were the dismissed pilots themselves, five were unavailable for other reasons, and only three positively refused to sign. There was, however, no industrial action in support of the pilots.
8. 86. The Association had raised the dismissal of the pilots and the safety problems of the airline in the press. This prompted the General Manager to send a telex to all sections of the airlne on 20 April 1987 indicating that the Association "is not a recognised body representing pilots in Vayudoot", and that "any action by an unrecognised union is deemed illegal". It continued:
   • Pilots are therefore advised that they should desist from any such illegal activities in their own interest. Discussing official matters in public or through the press will constitute gross indiscipline and violation of official conduct rules, warranting severe disciplinary action.
   • The telex then pointed out that the airline had discussed many safety and personnel problems with pilots on an individual basis, and concluded:
   • Management therefore wishes to make it clear that it will not tolerate any indiscipline on the part of any employee under any circumstances. Any infringement of conduct rules will attract severe disciplinary action and run the risk of not being sponsored for employment to other organisations like Air India or Indian Airlines.
   • A further telex sent 40 minutes later informed all sections that the services of Captains Sharma and Blaggana had been terminated with immediate effect.
9. 87. The complainant further states that this cannot be regarded as an isolated case of individual victimisation. In support of this proposition, it cites difficulties encountered by a fraternal organisation, the Vayudoot Engineering Employees' Union. In December 1987 this union had presented a number of complaints of unfair labour practices to the Assistant Labour Commissioner, Delhi. These included threatening workers who joined the union, and various acts of discrimination against union activists. An indication of management's attitude to trade unions can be derived from its reply to these allegations:
   • ... no union has any right to be entitled to any reply to any of its letters or to be recognised by any management. Similarly, no union or any of its office bearers has any right in law to meet any executive of the management.
10. 88. In support of its allegations, the complainant submitted a large number of newspaper cuttings which contain severe criticisms of the management of Vayudoot, and of the safety performance of the company. These cuttings disclose that, subsequent to the dismissals of Captains Sharma and Blaggana, planes belonging to Vayudoot were involved in fatal accidents in October 1988 (34 deaths) and September 1989 (11 deaths). They also suggest that the manufacturers of the planes and the engines operated by the airline have been highly critical of its safety standards.

B. The Government's reply

1. 89. In its communication of 18 October 1989 the Government states that Captains Sharma and Blaggana were terminated on grounds of unsatisfactory work and poor standard of performance during their probationary period. The decision to dismiss them was taken after a detailed review of their performance during this period. Management was quite within its rights in acting as it did. It denies that their action had any connection with the pilots' trade union activities. The Government notes, however, that Captain Sharma has initiated high court proceedings to challenge his dismissal. These proceedings are stated to be sub judice.
2. 90. The Government denies that management ever declared the Association or the Vayudoot Engineering Employees' Union to be illegal. It had merely informed its employees that illegal activities in contravention of the conduct rules laid down for the airline would attract disciplinary action.
3. 91. The Government indicates that the Engineering Employees' Union took its case to adjudication under the Industrial Disputes Act, 1947, but that it had failed to establish its representative status in the organisation.
4. 92. The management of Vayudoot affirms that it respects the legitimate rights of trade unions. It is not correct to state that it has victimised any persons because of their trade union activities or engaged in any other unfair labour practice. Rather, it endeavours to resolve all industrial and personnel issues in a cordial manner - preferably through direct interaction between managers and the employees concerned. This approach is quite feasible in view of the relatively small number of persons employed by the airline.
5. 93. Finally, the Government emphasises that it has always tried to ensure that employees are free to exercise the right to form and join the trade unions of their choice. The Trade Unions Act, 1926, and the Industrial Disputes Act, 1947, provide the statutory basis for the exercise of these rights.

C. The Committee's conclusions

1. 94. The complainant has presented a number of allegations relating to certain anti-union practices on the part of Vayudoot, a domestic airline which is wholly owned by the Government of India. In particular, it has alleged that the President and the Delhi Regional Secretary (Captains Sharma and Blaggana respectively) of the Vayudoot Pilots' Association were dismissed in April 1987 because of their trade union activities. The complainant also alleges that management of the airline had resorted to intimidatory tactics in order to dissuade pilots from joining the Association. As evidence of the airline's anti-union attitudes, the complainant also cites various acts of intimidation and victimisation directed against members and officials of a fraternal organisation, the Vayudoot Engineering Employees' Union.
2. 95. The Government states that Captains Sharma and Blaggana were dismissed on grounds of unsatisfactory work performance during their probationary period with Vayudoot. Their dismissal took place before the end of the probationary period, and after a careful review of their performance. It had no connection with the pilots' trade union activities.
3. 96. The Government also denies that management of the airline had ever declared the Pilots' Association or the Engineering Employees' Union to be illegal or engaged in any other form of victimisation or intimidation. It had, however, informed its employees that breaches of the conduct rules of the airline would result in disciplinary action. It also explained that management tries to resolve all personnel and industrial issues by means of direct contact with the individuals concerned. It does not recognise either the Pilots' Association or the Engineering Employees' Union but respects the legal rights of trade unions at all times.
4. 97. The Committee recalls that Article 1(1) of Convention No. 98 requires that "workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment", whilst Article 1(2) states that such protection shall apply more particularly in respect of acts calculated, inter alia, to "cause the dismissal of or otherwise prejudice a worker by reason of union membership".
5. 98. The Committee has consistently taken the view that this protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle embodied in Article 3 of Convention No. 87 that workers' organisations shall have the right to elect their representatives in full freedom (see Digest of decisions and principles of the Freedom of Association Committee, third edition, 1985, para. 556).
6. 99. The Committee has identified a number of measures which could be taken in order to ensure appropriate levels of protection for these purposes. They include: (i) providing that trade union officials may not be dismissed, either during their period of office or for a certain time thereafter (Digest of decisions, op. cit., para. 557); (ii) requiring that the employer obtain prior authorisation from the labour inspectorate before carrying out a dismissal (Digest of decisions, op. cit., para. 569); and (iii) making it compulsory for the employer to prove that the motive for the dismissal had no connection with the worker's trade union activities (Digest of decisions, op. cit. para. 569). The Committee has also stressed the importance of providing expeditious, inexpensive and wholly impartial means of redressing grievances caused by acts of anti-union discrimination (Digest of decisions, op. cit., paras. 568 and 570). However, it has also pointed out that the principle that a worker or trade union official should not suffer prejudice by reason of his trade union activities does not necessarily imply that the fact that a person holds a trade union office confers an immunity against dismissal irrespective of the circumstances (Digest of decisions, op. cit., paras. 558 and 557).
7. 100. In the present case, the President (Captain Sharma) and the Delhi Regional Secretary (Captain Blaggana) of the Vayudoot Pilots' Association were suspended from flying duties on 26 March 1987, just two days after the former had written to the General Manager of Vayudoot, raising a number of concerns about conditions of service with the airline and about safety and maintenance standards. On 16 April 1987 Captain Sharma was advised that his services were no longer required and that his employment was terminated with immediate effect. On 19 April 1987 his colleague, Captain Blaggana, received a communication to the same effect. In the opinion of the Committee, these events raise a strong presumption that Captains Sharma and Blaggana were subjected to prejudicial treatment because of their trade union activities.
8. 101. The Government denies that this is the case and states that the two pilots were terminated on grounds of unsatisfactory work and poor standard of performance during their probationary period. The Government has not furnished any evidence in support of this assertion beyond the statement that there had been a detailed review of their performance. The Committee also notes that there was no reference to unsatisfactory performance in the letters of termination of 16 and 19 April 1987. The employees were simply told they were dismissed with immediate effect.
9. 102. The Committee considers that proper respect for the principles of freedom of association requires that employees, such as Captains Sharma and Blaggana, who held senior positions in a bona fide trade union, should be dismissed from their employment only where it has been clearly established that there were objective grounds justifying such dismissal, and where there could be no reasonable suspicion that the employees were being victimised on account of their trade union activities. This in turn appears to require that there be a full and fair inquiry prior to the decision to dismiss, in the course of which the pilots were given a proper opportunity to state their case. The fact that Captains Sharma and Blaggana were technically "on probation" does not seem to the Committee to have any bearing upon the operation of these principles. The Committee considers therefore that there should be a full and fair inquiry into the circumstances of the dismissals of Captains Sharma and Blaggana, including the question of whether there is any objective justification therefor. In view of the time which has elapsed since the dismissals, this inquiry should be put in train as a matter of priority.
10. 103. The Committee notes that Captain Sharma has challenged his dismissal in the High Court in New Delhi, but that the matter is still sub judice. As indicated above, 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 wholly impartial". The fact that Captain Sharma's case is still pending some three years after his dismissal suggests that the means of redress available to him are not "expeditious". It also lends some substance to the complainant's assertion that they cannot be regarded as "inexpensive". The Committee suggests that the relevant legal provisions should be reviewed to ensure that they are indeed "expeditious, inexpensive and wholly impartial". It also asks the Government to provide it with a copy of the court decision in relation to Captain Sharma's action in the High Court in New Delhi as soon as it becomes available.
11. 104. As regards the complainant's allegation that management of Vayudoot used intimidatory tactics to dissuade its staff from joining trade unions, the Committee recalls that the gurantees provided by Article 1 of Convention No. 98 clearly extend to prejudicial treatment within employment, as well as to anti-union discrimination in relation to hiring or termination. The Committee also recalls its view that no person should be prejudiced in employment by reason of membership of a trade union, even if that trade union is not recognised by the employer as representing the majority of workers concerned (Digest of decisions, op. cit., para. 552).
12. 105. The Committee notes that the Government denies that the management of Vayudoot had tried to intimidate its employees. Rather, it had reminded them of the consequences of breach of the conduct rules of the airline. The Committee recognises that it would not be appropriate to subject the telex which was sent to all sections by the General Manager on 20 April 1987 to detailed textual analysis as if it were a formal legal document. Nevertheless, it considers that the clear import of this telex was to suggest that the activities of the Pilots' Association were in some sense "illegal", and that participation in such activities could have a prejudicial effect on the career prospects of the pilots concerned. As such, the telex could be expected to have an intimidatory effect upon actual or potential members of the Association - especially when it is appreciated that it was sent three weeks after Captain Kapur's admonitory letter of 27 March 1987, and just 40 minutes before a further telex announcing the dismissals of Captains Sharma and Blaggana.
13. 106. The Committee has not been presented with sufficient evidence to form any view as to whether Vayudoot engaged in anti-union discrimination in relation to the Engineering Employees' Union. Indeed, the complainant's communications do not make it entirely clear whether it is presenting a complaint in relation to this Union, or whether the information pertaining thereto is simply presented by way of background to the allegations concerning the Pilots' Association.
14. 107. The Committee notes that Vayudoot is wholly owned by the Government of India. In this connection, it wishes to reiterate that in the case of national public enterprises the national authorities have a dual responsibility in preventing acts of anti-union discrimination, and that they should take appropriate measures to this effect, such as a clear policy statement accompanied by specific instructions to be implemented at all levels of management (Digest of decisions, op. cit., para. 546).