DIRECTIVE COMMITTEE MEETING
The meeting of the
Directive Committee of TUI of Public & Allied Employees was held at
ITC-Sonar Bangla – Sheraton Hotel at Kolkata on 27 & 28 December 2006.
The delegates from the following organizations participated.
National Education Health and Allied Workers Union, South Africa, (2)
Vietnam Public Service Union, (3) All Ceylon Public Management Assistant
Officers Union, (3) Public Service Trade Union Federation, Sri Lanka (4)
Bangladesh Sarkari Karmachari Samannoy Parishad, (5) Nepal Government
Employees’ Organization, (6) All India Bank Employees’ Association, (7)
Bank Employees Federation of India, (8) All India Regional Rural Bank
Employees’ Association, (9) All India Insurance Employees Association
India, (10) Confederation of Central Government Employees & Workers,
India, and (11) All India State Government Employees’ Federation.
Lulamile Sotaka, President, TUI of Public & Allied Employees presided over
the meeting.
The main points that emerged out of the discussion are:
Since the IXth Congress of TUI in November 1998 held at Kolkata, TUI has
achieved some progress organizationally. Some new organizations from
Africa and Asia have been affiliated with TUI. Close connection has been
established with Public Service organizations of Galacia, (Spain) and also
Public Service Organizations of Portugal. Besides, links have been
established with organizations in Iran and Egypt. One organization of
Indonesia has been affiliated. There is scope for further expansion.
Some grants for some Seminars etc have been received from ILO and that too
with great difficulties. Close link is maintained with ILO. In WFTU
Congress 12 delegates and 4 observers from TUI participated. Close link
with WFTU is maintained.
TUI Quarterly Bulletin – FOCUS is published regularly, but suggestions
came in the meeting that the Bulletin should be priced and should be
printed in more numbers for the activists of the affiliates.
TUI Statute is quite old and last amended in 1987. In the ensuing Congress
it will be discussed and amended.
Xth TUI Congress will be held at Johannesburg, South Africa. Xth TUI
Congress would take proper decision for organizational activists,
improvement of financial position and struggle against imperialism and
globalization.
Complaint to ILO by TUI of Public and Allied Employees denying ‘Right to
Strike’ by the Judiciary and Government of India
A FOREWARD
About 1.2 million
employees and teachers of Tamilnadu took part in a heroic strike from 2
July 2003 against curtailment of their economic and pensionery benefits.
The Jayalalitha Government in the State let loose barbaric repression
leading to the arbitrary dismissal of about 2 lakh employees. In relation
to this, the Supreme Court of India on 6 August 2003 commented that the
Government employees have no fundamental, legal, moral or equitable right
to strike.
To attain this demand and mobilize public opinion AISGEF and its
affiliates have staged several programmes including national and
State-level conventions, letters to Prime Minister and members of
Parliament, publication of booklet, March to Parliament on 26 February
2003 and 7 December 2004 for submission of Mass Petition to Parliament
with 40 million signatures demanding Right to Strike and two nationwide
strikes on 24 February 2004 and 29 September 2005. Though India is a
founder member of the International Labour Organisation since 1919, is
among the very few member-nations, not to ratify ILO Convention 87 Freedom
of Association and Protection of the Right to Organise Convention, 1948,
Convention 98 Right to Organise and Collective Bargaining Convention, 1949
and Convention 151 Labour Relations (Public Service) Convention, 1978.
In this regard the Union Labour Minister had stated that Right to Strike
is not applicable for the government employees in India and categorically
ruled out ratification of relevant ILO Conventions.
Complaints in this regard were made to the International Labour
Organisation against Government of India which was presented by Trade
Unions International of Public and Allied Employees (of which AISGEF is a
prime affiliate), and Public Services International. The complaints
concerned denial of right to negotiate terms and conditions of services
for Government employees and teachers and violation of their right to
strike. The International Labour Organisation’s Committee on Freedom of
Associations in November 2005 in its 338th Report has noted this. It
regretted that the Government of India has not bothered to reply to any of
the complaints. Along with several pro-employee recommendations the
committee requested the Government to take the necessary measures to amend
the Tamil Nadu Government Servants Conduct Rules and the Tamil Nadu
Essential Services Maintenance Act so as to ensure that public servants,
with the only possible exception of those exercising authority in the name
of the State, and teachers may exercise the right to strike. It
categorically states ‘The Committee requests the Government to take
the necessary measures to amend the Tamil Nadu Government Servants Conduct
Rules and the Tamil Nadu Essential Services Maintenance Act so as to
ensure that public servants, with the only possible exception of those
exercising authority in the name of the State, and teachers may exercise
the right to strike.’ The Committee in defence of the striking
employees also opines ‘The Committee requests the Government to give
necessary instructions so as to ensure in the future that any police
intervention is wholly proportionate to the threat to public order that
may have been created by a strike action.’
Trade Unions International of Allied Employees and All India State
Government Employees’ Federation calls upon both the Union Government and
the State Government of Tamilnadu to take lesson from the ILO
recommendations and accord full trade union rights including the Right to
Strike to government employees and teachers.
Kolkata
22 December 2005
All India State Government Employees’ Federation
INTERNATIONAL LABOUR OFFICE GB.294/7/1
294th Session
Governing Body Geneva, November 2005
SEVENTH ITEM ON THE AGENDA
Reports of the Committee on Freedom of Association 338th Report of the
Committee on Freedom of Association
CASE NO. 2364
REPORT IN WHICH THE COMMITTEE REQUESTS
TO BE KEPT INFORMED OF DEVELOPMENTS
Complaints against the Government of India presented by
— the Trade Unions International of Public and Allied Employees (TUIPAE)
and
— the Tamilnadu Government Officials’ Union (TNGOU) supported by
— the World Federation of Trade Unions (WFTU) and
— Public Services International (PSI)
Allegations: The complainants allege denial of the right to negotiate
terms and conditions of services for government employees and teachers and
violation of their right to strike. They further allege that the
Government withdrew the recognition of almost all government employees’
and teachers’ associations and sealed the Office of the complainant
organization
959. The complaint is set out in communications by the Trade Unions
International of Public and Allied Employees (TUIPAE) and the Tamilnadu
Government Officials’ Union (TNGOU) dated respectively 21 and 29 May 2004.
The World Federation of Trade Unions (WFTU) and Public Services
International (PSI) associated themselves with the complaint by
communications dated 25 May and 17 June 2004, respectively.
960. The Committee has been obliged to postpone its examination of
the case on two occasions [see 335th and 336th Reports, paras. 5 and 6
respectively]. At its meeting in May-June 2005 [see 337th Report, para.
10], the Committee issued an urgent appeal to the Government, indicating
that, in accordance with the procedural rules set out in paragraph 17 of
its 127th Report, approved by the Governing Body, it could present a
report on the substance of the case at its next meeting even if the
information or observations requested had not been received in due time.
No reply from the Government has been received so far.
961. India has ratified neither 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 complainants’ allegations
962. In their communications dated 21 and 29 May 2005, the Trade
Unions International of Public and Allied Employees (TUIPAE) and the
Tamilnadu Government Officials’ Union (TNGOU) submitted that on 2 July
2003, a coalition of government employees’ unions in Tamil Nadu called for
an indefinite strike to protest the state government’s unilateral decision
to withdraw pension benefits.
963. Prior to the strike, during the night of 30 June 2003, the
Government arrested over 2,400 union leaders and members. Allegedly, no
arrest warrants were issued and the police used violent and unnecessary
force. The President of the Tamil Nadu Government Officials’ Union was
among those arrested and was imprisoned for 12 days and was not allowed
any outside contacts.
964. The strike took place on 2 July 2003. On 5 July, invoking the
Tamil Nadu Essential Services Maintenance Act (TNESMA), the Government
issued dismissal notices for government employees and teachers; 170,241
employees and teachers were dismissed through public announcements posted
on boards in government offices.
965. On 11 July, the High Court of Tamil Nadu ordered the release
on bail of the arrested employees and referred the cases of dismissals to
the administrative tribunal. On 24 July, taking into account “the gravity
of the situation”, the judges of the Supreme Court ordered the
reinstatement of all dismissed employees, with an exception of those who
had been arrested or those who had received written dismissal notices. In
its ruling, the Supreme Court stated, however, that as a condition for the
reinstatement, each government employee should tender a written apology
and undertake an obligation to abide by Rule 22 of the Tamil Nadu
Government Servants Conduct Rules, which prohibited government employees
from engaging in strikes or similar action. The court further declared
that “government employees had no fundamental, legal, moral or equitable
right to go on strike”. The remaining 6,072 cases of dismissals were to be
heard by the retired judges. The Trade Unions International of Public and
Allied Employees provided the following statistics: out of 6,072 dismissed
employees, 5,708 appeared for the hearing by the retired judges; on 17
November 2003, 2,350 employees were reinstated following the verdict of
the judges without apology letters but with punishments of increment cut
or demotion; 2,349 employees were reinstated on 31 December 2003 without
apology letters but with punishments; and dismissal of 999 employees was
confirmed by the judges.
966. The complainants further submitted that the Government refused
to recognize the period of time between the day when the strike was
officially called off (7 July 2003) and the actual day when the duty was
resumed as working time. In this respect, the complainants submitted that
the leaders of the strike steering committee agreed to call off the strike
and resume duty on 7 July 2003. A written statement to this effect was
submitted to court on 5 July 2003. However, on 11 July, the Government did
not allow employees to go back to work by virtually conducting a lockout.
The period of absence from 2 July to 24 July was treated in respect of all
employees as an extraordinary leave with loss of pay and allowances and
from 25 July to the date when the work was actually resumed as leave at
the employee’s credit. The complainants considered that this period should
be treated as working days.
967. In February 2004, as a result of international and national
pressure, the remaining dismissed employees were reinstated although they
did not receive any back pay. On 18 May 2004, the Chief Minister of Tamil
Nadu had announced the withdrawal of all punishments imposed in connection
with the strike. All disciplinary proceedings instituted in this
connection were also dropped.
968. The complainants stated, however, that the following issues
were still pending:
– the TNESMA of 2002 was not amended;
– Rule 22 of the Tamil Nadu Government Servants Conduct Rules was not
repealed;
– the Government had withdrawn the recognition of almost all associations
of government employees and teachers;
– the office building of the Tamil Nadu Secretariat Association was sealed
by the government and was not yet handed back to the Association;
– the letters obtained from 164,169 employees containing an agreed-to
obligation not to resort to strike or any trade union action in future
were not cancelled;
– all dismissed employees did not receive their pay for the time they were
arbitrarily dismissed;
– the demands for which the strike was conducted remained unsettled. The
complainants consider that terms and conditions of service for government
employees and teachers should be negotiated; and, finally,
– no monetary relief was given to the families of 42 employees who had
lost their lives as a result of the distress created by the situation.
B. The Committee’s conclusions
969. The Committee deeply regrets that, despite the time that has
elapsed since the complaint was first presented, the Government has not
replied to any of the complainants’ allegations, although it has been
invited on several occasions, including by means of an urgent appeal, to
present its comments and observations on the case. The Committee strongly
urges the Government to be more cooperative in the future.
970. Under these circumstances, and in accordance with the
applicable rules of procedure [see 127th Report, para. 17, approved by the
Governing Body at its 184th Session], the Committee finds itself obliged
to present a report on the substance of the case without the benefit of
the information which it had hoped to receive from the Government.
971. The Committee recalls that the purpose of the whole procedure
established by the International Labour Organization for the examination
of allegations of violations of freedom of association is to promote
respect for this freedom in law and in fact. The Committee remains
confident that, if the procedure protects governments from unreasonable
accusations, governments on their side will recognize the importance of
formulating for objective examination detailed replies concerning
allegations made against them [see the First Report of the Committee, para.
31].
972. The Committee notes that the complainants in this case alleged
the violation of the right to collective bargaining and the right to
strike of the state employees and teachers. They further alleged that the
Government had withdrawn the recognition of almost all government
employees’ and teachers’ associations and sealed the office of the
complainant organization, the Tamilnadu Government Officials’ Union.
973. The Committee notes that, following the Government’s
unilateral decision to withdraw pension benefits enjoyed by the public
servants, the complainant organizations declared an indefinite strike to
begin on 2 July 2003. Prior to the strike, the Government arrested 2,400
trade union members. Several trade union leaders were put into preventive
custody. The Tamil Nadu Government then issued an ordinance declaring the
services of all government employees and teachers as “essential” under the
Tamil Nadu Essential Services Maintenance Act (TNESMA). The strike
nevertheless took place. On 5 July, invoking the TNESMA, the Government
dismissed 170,241 government employees and teachers. On 11 July, arrested
trade unionists were released on bail following an order of the High Court
of Tamil Nadu. On 24 July, while considering that “government employees
had no fundamental, legal, moral or equitable right to strike”, taking
into account “the gravity of the situation”, the Supreme Court ordered the
reinstatement of all dismissed employees, with the exception of those
previously arrested, in return for written apologies and an undertaking to
abide by Rule 22 of the Tamil Nadu Government Servants Conduct Rules,
which prohibited government employees from engaging in strike action.
Although reinstated, due to the lockout exercised by the employers, these
employees did not receive their wages for the period between the end of
the strike and the day they were allowed to return to work. The Committee
further notes that, by February 2004, the remaining dismissed employees
were all reinstated either following an order of the retired judges, to
whom these cases were referred, or as a result of international and
national pressure. However, the complainants allege that the employees did
not receive their wages for the period they were arbitrarily dismissed.
974. Firstly, the Committee is bound to recall that public servants, other
than those engaged in the administration of the State, should enjoy
collective bargaining rights, and priority should be given to collective
bargaining as the means of settling disputes arising in connection with
the determination of terms and conditions of employment of public service
[see Digest of decisions and principles of the Freedom of Association
Committee, 4th edition, 1996, para. 793]. The Committee therefore requests
the Government to take the necessary measures in order to ensure the
application of this principle in Tamil Nadu.
975. The Committee further recalls that public servants should also
enjoy the right to strike, provided that the interruption of services does
not endanger the life, personal safety or health of the whole or part of
the population. The right to strike may however be restricted or
prohibited for public servants exercising authority in the name of the
State [see Digest,op. cit., paras. 532 and 534]. In public service of
fundamental importance and services which are not essential in the strict
sense of the term but where the extent and duration of a strike might be
such as to result in an acute national crisis endangering the normal
living conditions of the population, a certain minimum service may be
requested, but in this case, the trade union organizations should be able
to participate, along with employers and the public authorities, in
defining the minimum service [see Digest, op. cit., paras. 556 and 557].
The Committee notes that by virtue of Rule 22 of the Tamil Nadu Government
Servants Conduct Rules and the TNESMA, the right to strike is prohibited
for government employees, including teachers. The Committee therefore
requests the Government to take the necessary measures to amend the Tamil
Nadu Government Servants Conduct Rules and the TNESMA so as bring them in
line with the above freedom of association principles and to keep it
informed in this respect.
976. As concerns the alleged use of violence and unnecessary force
by the police, the Committee recalls that the authorities could 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 [see Digest, op. cit., para.
582]. The Committee requests the Government to give the necessary
instructions so as to ensure in the future that any police intervention is
wholly proportionate to the threat to public order that may have been
created by a strike action.
977. As concerns the allegations of arrests of over 2,000 trade
union members and leaders and the massive dismissals, while noting that by
February 2004, all dismissed employees were reinstated and that on 18 May
2004, the Chief Minister of Tamil Nadu had announced the withdrawal of all
punishments imposed in connection with the strike and that all
disciplinary proceedings instituted were dropped, the Committee points out
that arrests and dismissals of strikers on a large scale involve a serious
risk of abuse and place freedom of association in grave jeopardy. The
competent authorities should be given appropriate instructions so as to
obviate the dangers to freedom of association that such arrests and
dismissals involve [see Digest, op. cit., para. 604]. The Committee
requests the Government to issue appropriate instructions to the police
and the other competent authorities in this respect and to keep it
informed on the measures taken.
978. While taking due note of the withdrawal in May 2004 of all
punishments in connection with the strike, the Committee notes more
specifically from the allegations that the remaining dismissed government
employees (some 999) were not reinstated until February 2004 – eight
months after the strike – and that these employees received no back pay.
The complainants also allege the refusal by the Government to pay wages
for the time of lockout it allegedly exercised following the strike. In
light of the particularly massive nature of these dismissals and their
damaging effect on the overall labour relations climate in respect of
government employees in Tamil Nadu, the Committee requests the Government
to review the matter of lost wages following the termination of the strike
action, in consultation with the trade unions concerned, with a view to
compensating the employees concerned for any damages suffered solely for
the exercise of legitimate trade union activities. The Committee requests
the Government to keep it informed of developments in this respect.
979. The Committee notes that the complainants further alleged the
withdrawal of recognition of almost all associations of government
employees and teachers. The Committee points out in this respect that
these categories of workers, like all other workers, without distinction
whatsoever, have the right to form and join organizations of their own
choosing to further and defend the interests of their members. The
Committee has emphasized that the cancellation of registration of an
organization by the registrar of trade unions is tantamount to the
suspension or dissolution of that organization by administrative authority
and that such measures constitute serious infringements of the principles
of freedom of association [see Digest, op. cit., paras. 213, 214, 664 and
669]. The Committee therefore urges the Government to take immediately the
necessary measures so as to ensure the recognition of all associations of
government employees and teachers, whose recognition was withdrawn as a
sanction for their participation in strike action and to keep it informed
of developments in this respect.
980. The Committee further notes that the complainants alleged that
the office building of the Tamil Nadu Secretariat Association was sealed
by the Government and had not yet been handed back to the association. The
Committee recalls in this respect that the occupation of trade union
premises constitutes a serious interference by the authorities in trade
union activities and that the occupation or sealing of trade union
premises should be subject to independent judicial review before being
undertaken by the authorities in view of the significant risk that such
measures may paralyse trade union activities [see Digest, op. cit., paras.
174 and 183]. The Committee therefore urges the Government immediately to
return the office building to the Tamil Nadu Secretariat Association and
keep it informed in this respect.
981. With regard to the request for monetary compensation to the
families of 42 employees who had allegedly lost their lives as the result
of the distress created by the situation, given that no more specific
information was provided by the complainants in respect of this
allegation, the Committee requests the Government to provide its comments
on this issue.
982. Finally, in order to ensure a sound and lasting labour
relations environment, the Committee requests the Government to begin
thorough consultations on the unsettled issues related to the terms and
conditions of employment of government employees and teachers with the
trade unions of this sector. The Committee requests the Government to keep
it informed in this respect.
The Committee’s recommendations
983. In the light of its foregoing conclusions, the Committee invites the
Governing Body to approve the following recommendations:
(a) The Committee deeply regrets that, despite the time that has elapsed
since the complaint was first presented, the Government has not replied to
any of the complainants’ allegations. The Committee strongly urges the
Government to be more cooperative in the future.
(b) The Committee recalls that public servants, other than those engaged
in the administration of the State, should enjoy collective bargaining
rights, and priority should be given to collective bargaining as the means
to settle disputes arising in connection with the determination of terms
and conditions of employment of public service. The Committee therefore
requests the Government to take the necessary measures in order to ensure
the application of this principle in Tamil Nadu.
(c) The Committee requests the Government to take the necessary measures
to amend the Tamil Nadu Government Servants Conduct Rules and the Tamil
Nadu Essential Services Maintenance Act so as to ensure that public
servants, with the only possible exception of those exercising authority
in the name of the State, and teachers may exercise the right to strike.
(d) The Committee requests the Government to give necessary instructions
so as to ensure in the future that any police intervention is wholly
proportionate to the threat to public order that may have been created by
a strike action.
(e) The Committee requests the Government to give appropriate instructions
to the police and the other competent authorities so as to obviate the
dangers to freedom of association that such massive arrests and dismissals
involve.
(f) The Committee requests the Government to review the matter of lost
wages following the termination of the strike action, in consultation with
the trade unions concerned, with a view to compensating the employees
concerned for any damages suffered solely for the exercise of legitimate
trade union activities and to keep it informed in this respect.
(g) The Committee urges the Government to take immediately the necessary
measures so as to ensure the recognition of all associations of government
employees and teachers, whose recognition was withdrawn as a sanction for
their participation in the strike and to keep it informed of developments
in this respect.
(h) The Committee urges the Government immediately to return the office
building to the Tamil Nadu Secretariat Association and keep it informed in
this respect.
(i) The Committee request the Government to provide its comments on the
complainant’s request concerning monetary compensation to the families of
the 42 employees who had lost their lives.
(j) In order to ensure a sound and lasting labour relations environment,
the Committee requests the Government to begin thorough consultations on
the unsettled issues related to the terms and conditions of employment of
government employees and teachers with the trade unions in this sector.
The Committee requests the Government to keep it informed in this respect.
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