Forward Seamen Union Of India vs Union Of India & Ors

Forward Seamen Union of India .......Appellant

Vs.

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 7

[Markandey Katju] New Delhi;

March 5, 2009.