Forward
Seamen Union of India Vs. Union of India & Ors. [2009] INSC 485 (5 March
2009)
Judgement
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5645 OF
2005 Forward Seamen Union of India .......Appellant Union of India & Ors.
....... Respondents O R D E R The appellant trade union represents
"Bazarmen" that is employees of canteen/catering contractors
operating in ships sailing between Calcutta/Chennai and Andaman and Nicobar
Islands. The said ships belonged to the Andaman & Nicobar administration
(`A&N Administration' for short) and were managed and operated by Shipping
Corporation of India Ltd.
(`SCI'
for short). SCI had entered into contract/s, with canteen/catering contractors
to run the canteens in the said ships. There were some long pending demands by
Bazarmen who were members of appellant union on the one hand, with SCI as also
another Trade Union -- National Union of Seafarers of India (NUSI). As the ship
services were sometimes disrupted on account of such disputes, a public
interest litigation (CO No.87(W) of 1997) was filed by Andaman Chamber of
Commerce.
2 In that
case, the High Court by an interim order dated 3.2.1998 appointed an Ad-hoc
Committee consisting of Labour Commissioner of West Bengal, Regional General
Manager of SCI, Principal Officer of Mercantile Marine Department of Union of
India and Director of Shipping Services of A&N Administration, to amicably
resolve the disputes. The Ad-hoc Committee made various recommendations as per
its proceedings dated 6.4.1998. One of the recommendations related to operation
of two separate lists of Bazarmen : one of a group of 69 Bazarmen and another
of a group of 79 Bazarmen, by allotting duties according to their waiting
seniority in the respective groups. The Calcutta High Court approved the
recommendations dated 6.4.1998 by order dated 26.6.1998. By another order dated
20.11.1998, SCI was directed to discuss all issues relating to Bazarmen only
with the Trade Unions recognized and approved by the Ad-hoc Committee in
respect of Port of Calcutta.
2. We are
informed that from the year 2002, the role of SCI came to an end. Consequently,
the Directorate of Shipping Services, A&N Administration took back the
responsibility, decided to make arrangement for canteen facilities on the ships
and therefore issued a Tender Notice dated 18.11.2002 inviting tenders for on
board services in five vessels, that is catering canteens for cabin class and
Bunk Class 3 Passengers, two restaurants for passengers and for supply of provisions
for the officers and crew for the period 26.1.2003 to 25.1.2004. The Brochure
provided with the tender form, it is stated, required the tenderer-proposed
contractor to ensure (i) that Bazarmen to be employed for the canteens should
be in possession of a valid continuous discharge certificate; and (ii) that
though entitled to recruit canteen staff of their own choice, the contractors
should give preference to local candidates.
3. The
Bazarmen who were being employed by the then existing contractor (from the
operating lists of 69 and 79 Bazarmen) were aggrieved, as their chances of
appointment would be affected if preference was to be given to locals or others
who were not in the list. The appellant union, on their behalf approached the
Circuit Bench of the Calcutta High Court in W.P. No.40/2003 for quashing the
said tender notice dated 18.11.2002.
4.
Learned Single Judge allowed the writ petition by order dated 18.6.2003. He
declared the terms and conditions tender were illegal and set aside the same.
He also directed as follows :
4
"The Director General of Shipping Services who is maintaining the list of
bazarmen in terms of the recommendation of the adhoc committee engaged by the
Division Bench of this Court as mentioned above shall forthwith make over the
said list to the local Seamens' Employment Office. It shall be deemed that all
those who have been listed in the said list have been listed chronologically
with the Seamens' Employment Office. Any other person seeking to serve as a
bazarmen should be entitled to get himself enrolled in such list, provided he
is found fit and eligible by the Seamens' Employment Office. As and when the
contractor engaged by the Administration for providing catering services to the
vessels in question would requite bazarmen, they would notify the seamen
employment office accordingly and the seamens' employment office would provide
placement service of bazarmen from amongst such list by enrolling such bazarmen
from the list of the extent of not less than 140 per cent of the vacancy."
5. The
Union of India (Ministry of Shipping) and its functionaries filed an appeal
against the said order of the Single Judge. It was allowed by a division bench
by the impugned order dated 22.12.2003. The division bench reversed the learned
Single Judge's order and dismissed the writ petition of the appellant. The
Division Bench held that the `Bazarmen', that is workers in the canteens run by
the contractors were not seamen and that there was no privity of contract
between the `Bazarmen' and owner of the ship (A&N Admn.). The division
bench held that the directions given by the learned single Judge were contrary
to the provisions of the Merchant Shipping Act, 1958 (as amended by Amendment
Act of 2002) ('Act' for short). It also made the following 5 observations while
allowing the appeal and dismissing appellant's writ petition :
"What
would be the status and how the contractors would engage the bazarmen could be
ascertained only when appropriate rules are framed.
The
seamen's Employment Office would no more be responsible for their recruitment
and placement. It is the employer, namely, the contractor, who would be free to
recruit its men through recruitment and placement services agencies. In these
circumstances, the Central Government, while making the rules, if not already
made, shall specifically consider the question as to whether the bazarmen
employed through the contractors, though such bazarmen are not seamen or crew,
are seafarers within the meaning of section 95 of the Act."
6. The
appellant have challenged the said order primarily with reference to orders
dated 3.2.1998 and 26.6.1998 in CO No.87(W) of 1997 of Calcutta High Court. It
is contended that the order of the division bench violates the said orders in
the earlier cases which have attained finality and should therefore be set
aside. The orders dated 3.2.1998 and 26.6.1998 by the High Court in the
previous public interest litigation, and the recommendations by the Adhoc
Committee, clearly show that the disputes considered or settled were not
between Bazarmen and A&N Administration. Further the orders of the High
Court were not on merits, but merely provided some interim solution in a public
interest litigation. No industrial dispute had been raised nor any writ
petition 6 filed by the Bazarmen. The dispute related to engagement of canteen
workers by the canteen contractors (M/s. Alankar & Co.) engaged by SCI for
providing canteen service and catering business, on board of three passenger
vessels belonging to A&N Admn.for specific periods. Their wages were paid
by the canteen contractor. Bazarmen, as contrasted from sailors/seafarers, were
not crew members of the ship nor employees of the master or owner of the
vessel. It is pertinent to note that they were employees of canteen contractor
who was not even engaged by A&N Administration, but by SCI. The status of
Bazarmen was not equal to that of regular crew members of the vessel employed
by the owner and engaged by the master for operating the vessel in terms of the
Act. The Bazarmen had no privity with the A&N Administration nor any
enforceable right against them. The division bench was therefore justified in
dismissing the writ petition filed on behalf of the Bazarmen, on the ground
that they did not have any right to challenge the tender notice issued by the
A&N Administration. The appeal is therefore dismissed as having no merit.
__________________J [R. V. Raveendran]
_________________ J [Markandey Katju]
New Delhi;
March 5, 2009.
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