Case(s) No(s). 995, Report No. 211 (India): Complaints against the Government of India presented by THE CENTRE OF INDIAN TRADE UNIONS

Description:(Freedom of association cases)
Country:(India)
Report:211
Case number:995
Subject classification: Freedom of Association
Document:(Vol. LXIV, 1981, Series B, No. 3)
Sitting:3
Type:SINGLE
Phase:(Interim Report)
Document No. (ilolex): 031981211995

COMPLAINANT
THE CENTRE OF INDIAN TRADE UNIONS

Introduction

446. The complaint of the Centre of Indian Trade Unions (CITU) is contained in a communication dated 18 August 1980. The Government sent its reply in a communication dated 4 June 1981.

447. 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).

Background

A. The complainant's allegations

448. The complainant alleges that since the latter half of 1979 employees of the General Reserve Engineer Force (GREF) - also known as the Border Roads Organisation, created under the Ministry of Shipping and Transport to construct roads over mountain terrain in north and north-eastern India - have been refused the right to form an association, have been arrested, tortured, detained without trial and dismissed for their trade union activity and had their "illegal" trade union premises broken into, their documents confiscated and their funds seized.

449. The complainant explains the background to the poor industrial relations as follows: the Border Roads Organisation functions as a separate, self-contained body under the Ministry and its employees are governed by the same rules that apply to civilians in the Defence Service, namely the Central Civil Service (Classification, Control and Appeal) Rules, 1965; they are recruited through the Union Public Service Commission, sit the All India Service Examinations and are not trained to use any weapon. According to the complainant, in 1969 these employees were placed under certain provisions of the Army Act, 1950 and the Army Rules, 1954 for the purpose of discipline only, in conjunction with the Central Civil Service Rules; since then, 95 per cent of employees' cases have been tried under the Army Act which does not allow for a fair trial. The complainant claims that the GREF employees have been unfairly victimised as none of the other civilian employees in the Defence Service are subject to two sets of rules. It further states that the key appointments in the GREF are held by army personnel who enjoy better conditions of service than the civilian employees and are not subject to the Central Civil Service Rules; the resulting blockage of civilian promotions together with the unequal treatment has led to serious discord.

450. The complainant points out that the combined effect of article 33 of the Indian Constitution (freedom of association may be restricted in the armed forces) and section 4 of the Army Act (application of the Act to any force raised or maintained in India under the authority of the Government) restricts the right of the GREF employees - which it stresses are merely a civilian construction force recognised as such by the Government during Parliament on 18 June 1980 (the complainant attaches a copy of the Parliamentary question in which the Government's admission appears) - to form trade unions. Nevertheless, the complainant states that the 2,000 odd GREF employees at Tezpur, Assam State, on 15 August 1978, formed an association called the All India Border Roads Employees' Association which put its demands for equal treatment before a departmental Committee which visited the area in September 1979. This action apparently annoyed the military authorities who, on 14 December 1979, allegedly broke into the Association's premises and took away its vital documents and two bank drafts worth 3,500 rupees.

451. On the same day, six office bearers of the Association were arrested and, according to the complainant, severely beaten. The following day, continues the complainant, all GREF Tezpur employees held a peaceful protest for the release of their arrested colleagues; the army infantry was called in and 335 employees were arrested and held in prisoner of war cells for weeks and months without sanitation, food, water or lighting arrangements and their families were terrorised by the military. The complainant lists the Association's officers who are awaiting trial or who were detained, court-martialled by military tribunals and jailed under regimes of vigorous imprisonment; they are attached as an annex. The complainant also alleges that more than 850 employees who took part in the peaceful collective movement have been fined.

452. Lastly, the complainant states that other office bearers of the All India Border Roads Employees' Association have been forced to go underground as warrants for their arrest have been issued: R. Viswan (General Secretary), Net Ram, Meghaj Sharma, S.V. Tyagi, Pritham Singh, K.K. Tyagi, Gandhamb Singh and N.C. Nandi.

B. The Government's reply

453. In its letter of 4 June 1981, the Government states that the GREF is entrusted with the work and responsibility connected with defence and is practically a wing of the army being covered by the Army Act. The restriction on its employees forming an association is within the national law and in keeping with Article 9 of Convention No. 87 and Article 5 of Convention No. 98, according to the Government, so there has been no infringement of the Conventions.

Conclusions

C. The conclusions of the Committee

454. This case concerns allegations that the civilian employees of the General Reserve Engineer Force (GREF) have been refused the right to organise, have been arrested, tortured, detained without trial and dismissed for their trade union activities and that their trade union premises were broken into, documents confiscated and funds seized. The Government replies that the GREF is practically a wing of the army as its work is connected with defence, and thus its employees are lawfully restricted from forming an association.

455. Having been informed that supplementary indications would be supplied by the Government on the issue of the right to organise of the employees of the General Reserve Engineer Force (GREF) the Committee decided to hold in abeyance until its next session, its examination of this aspect of the case.

456. The Committee notes that the Government does not reply to the specific and detailed allegations relating to arrest, torture, detention without trial and dismissal for trade union activity of the GREF employees since December 1979, nor to the breaking-into of their trade union premises and violation of trade union property on 14 December 1979. It would accordingly ask the Government to supply its observations on them, giving in particular information on the present situation of the 45 trade unionists listed by the complainant in the annex.

Recommendations

The Committee's recommendations

457. In these circumstances, the Committee recommends the Governing Body to approve the present interim report, in particular the following conclusions;

In view of the fact that the Government did not reply to certain allegations, the Committee would ask it to supply its observations on the alleged arrest, torture, detention without trial and dismissal for trade union activity of the GREF's employees since December 1979, in particular the 45 officers of the All India Border Roads Employees' Association listed in the annex, and on the alleged breaking-into of their trade union premises and violation of trade union property on 14 December 1979.

ANNEX ANNEX

ASSAM STATE

1. Shri P. Chandra Mouli (President)

Arrested on 14.12.79 and severely beaten; kept in army custody for 7 months without trial; jailed for 30 months and discharged from service.

2. Shri P. Kuttan

3. Shri Amar Singh

4. Shri Kishan Chand

Arrested on 15.12.79; kept in military custody for 6 months; jailed for 12 months and discharged from service.

5. Shri T. Krishanan(Co-ordinating member)

Arrested on 14.12.79 and severely beaten; kept more than 1 month in army custody; imprisoned for 12 months and discharged from service.

6. Jagatar Singh (Executive member)

Arrested on 14.12.79 and severely beaten; kept more than 2 months in army custody without trial; jailed for 9 months and discharged from service.

7. S.K. Mondal

8. L.C. Hooda

9. M.T. Mathew

10. Darshan Singh

Arrested on 15.12.79; kept for more than 1 month in army custody without trial; jailed June 1980 for 9 months and discharged from service.

11. Shri Madhavan Pillai

Arrested on 15.12.79; detained in army custody for 1 month without trial; jailed for 7 months during February 1980 and discharged from service.

12. Shri Hariharan (Executive member)

Arrested on 14.12.79 and severely beaten; kept 1 month in military custody without trial; jailed for 6 month: during January 1980 and discharged from service.

13. Shri S.P. Sachdeva (Vice-President)

Arrested on 14.12.79 and severely beaten kept for 1 month in military custody without trial; jailed for 6 months during January 1980 and discharged from service.

14. P. Surarajan

15. K.C. Scaria

16. S.K. Vedacharya

17. P.V.G.K. Air

18. D. M. Khan

19. Annas Rodrigouos

20. D. Bhowal

21. Virender Kumar

22. Bhagwan Dass

23. Niyazuddin

24. Mohinder Lal

25. S. Mahato

26. A.K. Dass

27. L.K. Tyagi (Executive member))

Arrested on 15.12.79; kept 1 month in military custody without trial; jailed for 6 months during January 1980 and discharged from service.

28. Shri M.O. Mathew

29. Shri P. Chelladura

30. Shri Mupid

Tried under Central Civil Service Rules and discharged from service during July 1980.

DELHI

31. Shri Ranjit Singh

32. Shri V.K. Sharan

33. Shri P.K. Srivastava

S. Venkatesh Murthy S/O Late Dr. S.V. Srinivas Rao vs Union Of India (Uoi), Ministry Of Defence, Represented By The Secretary And Ors. on 4/1/2007

ORDER

H.V.G. Ramesh, J.

1. In this writ petition, petitioner has sought for issuance of writ of certiorari to quash the letter/endorsement dated 19.11.03 issued by respondent No. 3 as per Annexure 'B' and also for issuance of a direction to the respondents to consider him as an Ex-service man of the Indian Armed Force and to declare that he is entitled to all the benefits and facilities extended to the Ex-service man of the Indian Army.

2. The petitioner joined the service as a storekeeper in Grade-1 on 23.3.1964 in General Reserve Engineer Force (GREF) at Roorki. He served for 30 years till the end of May 1994 and after his retirement settled at Bangalore. Thereafter, he approached the sub-area, Bangalore, to provide him canteen facilities as per the army headquarters letter dated 12.4.90. Although, the said facility was denied till the end of July 1998, subsequently, by virtue of the judgment of the Kerala High Court in the year 1997 the benefit of canteen facility was extended during the month of July 1998. The petitioner has taken up the matter to the Kendriya Sainik Board through the Secretary, Home Department, Government of Karnataka grant the status of ex-service men to the GREF personnel (sic) retirement. Since the same was not considered favourably, the petitioner has come up with this petition raising seven grounds.

3. In the counter tiled by respondents 5 and 6 it is state that GREF was raised in the year 1960 under the authority of Union Government then under the Ministry of Surface Transport Border Roads Development Board, New Delhi under the executive control of Ministry of Defence. The main object is to construct and maintain the strategic mads/bridges/air field etc., To meet the operations requirement for Armed Force various projects were undertaken in hilly, terrain and adverts climatic condition to supplement the armed forces for operational requirement. The members of the GREF were treated as members of Armed forces for the purpose of Article 33 of the Constitution of India which regulates conduct an discipline of the constructional agency. Hence, certai provisions of the Army Act and Rules have been made applicable upon the GREF personnel and they are governed by Central Civil Service Rules for other benefits like pay and allowances, pension etc., at par with other Central Civilian Government employees. The persons for GREF were drawn from different departments and there is no discrimination on the part of the respondents in not treating the petitioner as an ex-service man. The term of employment including entry age and period of service is different. The GREF personnel can work up to 60 years of age. Even the Apex Court and the Kerala High Court in the similar situation have treated the GREF personnel as the member of the armed forces only for the purpose of Article 33 of the Constitution and that petitioner does not come within the definition of ex-service men and there is no violation of fundamental rights.

4. Heard the Counsel for the petitioner and the learned Counsel representing the respondents.

5. It is the submission of the learned Counsel for the petitioner that although petitioner had discharged the duty in association with Armed forces and although the canteen facility has been extended subsequently to the petitioner there is no reason as to why the petitioner cannot be treated as ex-service man. Further submitted that petitioner has served for several years in the GREF and he has been considered as a member of Armed Force for the purpose of disciplinary actions under Article 33 of the Constitution of India and apart from the Central Civil Service Rules certain of the provisions of the Army Act were also made applicable, as such, not extending the benefits as is extended to the personnel of Armed Forces is violative of fundamental rights and without any rationale.

6. Per-contra, the learned Counsel appearing for the respondents while reiterating the statement of objections filed has submitted that the service conditions of the petitioner are different from that of members of the regular armed forces. In the decision of the Apex Court the GREF personnel were only treated as members of Armed threes for the purpose of disciplinary actions under Article 33 of the Constitution of India.

7. In the light of the arguments advanced, let me consider whether petitioner would be treated as a Member of the Armed Force for the purpose of extending the post-retirement benefits by treating him as Ex-service man?

8. In the decision reported in AIR 1983 SC 668 in the case of R. Viswan and Ors. v. Union of India and Ors. the Apex Court has taken a view that the members of GREF personnel are the members of the Armed forces within the meaning of Article 33 of the Constitution and that GREF personnel are governed by both Central Civil Services (Classification, Control and Appeal) Rules 1965 and the provisions of the Army Act 1950 and Army Rules 1954 in matters of discipline. Whenever a member of GREF was charged with misconduct amounting to an offence under the Army Act of 1950 the disciplinary action would be initiated against the members of GREF for purposes of discipline and the same is not violative of Article 14 of the Constitution and accordingly, it was of the view that the power conferred on the authorities to take action either under the central rules or under the Army rules cannot be held to be unguided discretionary power. Further, in the decision reported in 1998(2) KLT 613 in the case of Union of India v. All Kerale Ex-GREF & Family Welfare Association, the Iterate High Court has held that Ex-GREF personnel are entitled to canteen facilities and restricted attractive items and it is always open to the aggrieved persons to plead the question of discrimination and then claim the relief granted earlier in the right order passed by the Government. Further, in the unreported decision of Gauhati High Court in Civil Rule No. 543/89 the said Court while referring to the discrimination on the basis of the records has held that the employees are civilian employees and they are also entitled to get all benefits as is being enjoyed by a civilian employees of the Central Government.

9. In the instant case, petitioner is seeking for extension of post retirement benefits as is conferred on the Armed forces. One of the prayer of course is with regard to extension of canteen facilities that was being enjoyed by the petitioner during his service and the same has been extended by the respondents subsequently by virtue of the order of the Kerala High Court. In so far as treating the petitioner as an ex-service man for the purpose of post-retirement benefits it is to be noted that although petitioner was appointed by the lieutenant Colonel and it is noted in the appointment order that his appointment was to the General Reserve Engineer Force, as noted above the aim and object of the GREF is only to maintain the strategic roads/bridges/air fields for the purpose of communication and to meet the operations requirement for Armed forces in hilly and other terrain areas to assist the Armed forces. They were only treated as members of Armed Forces for the purpose of discipline as per Article 33 of the Constitution of India and even the conditions of appointment and service conditions of the GREF personnel is different when compared to Armed Forces personnel and the retirement age of the GREF personnel is 60 years. Not considering the petitioner as an ex-service man on par with the employees of Armed Forces cannot be held to be discriminatory having regard to the nature of appointment and service conditions. The decisions relied upon by the Counsel for the petitioner do not come to the aid of the petitioner.

10. For the foregoing reasons, writ petition is dismissed being devoid of merits.

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