B. Jaffer & Ors vs Union Of India & Others

K. Haripal, Member J

Applicants are natives of Amini island in the Union Territory of Lakshadweep and are engaged as casual labourers as skilled and unskilled labourers under the Andaman Lakshadweep Harbour Works, in the Amini island, under the direct control of the Ministry of Shipping. They claim that they are working as such under the respondents for the past several years. They have spent major part of their lives for the department, they are in border line of age bar and there is no scope of getting a new job in any other department. Annexures-A1 to A3 testimonials have been highlighted to show that some of the applicants are rendering sincere hard work. Relying on Annexure-A4 order of this Tribunal in O.A.732/2016, it is pointed out that similarly placed labourers in Androth island, who worked continuously under the contractor as casual labourers, are allowed to continue in employment as long as employment is available, discontinuing engagement through contractor. They are also entitled to get wages as per the notifications issued from time to time by the competent authority. Similar benefits were granted to employees of Kalpeni island also, as seen from Annexure-A6, also on the basis of the orders passed by this Tribunal. Annexure-A7 is highlighted as another order issued in favour of the similarly placed employees of Kalpeni and Kiltan islands. Strengthened by such orders, the applicants filed Annexure-A8 representation before the 3rd respondent. As it was not responded, they approached this Tribunal with O.A.78/2020, which was disposed of by Annexure-A9 order dated 31.01.2020 directing to consider the representation appropriately within a period of 90 days. However, by Annexure-A10 order that was rejected. Again, they preferred Annexure-A11 representation before the 2nd respondent, which was rejected by Annexure-A12 order.

Applicants are aggrieved by Annexures-A10 and A12. They seek to quash the same and appropriate directions are sought to be issued to the respondents that the applicants shall be considered for work as long as employment opportunities exist and to grant them wages as per the specified rates issued by the Government of India from time to time.

Referring to other documents, the applicants wanted to say that Annexures-A10 and A12 were not considered in proper perspective.

In reply, the respondents 2 to 5 have disputed the claims of the applicants. According to them, the applicants were engaged by the contractors. Such contract was entered into after calling tenders. The respondents have never engaged the applicants directly for any work. Annexures-A1 to A3 documents also do not indicate that they were under the employment of the respondents. As they were engaged by the contractors, the department is not liable for engaging them as regular workers. There is no parity between the labourers of Androth and other islands with that of the applicants. The labourers of Androth, Kalpeni etc. have not been granted temporary status. The applicants cannot claim the benefit of Annexure-A4 as their engagement is not similar in nature. The directions of the Tribunal in O.A.732/2016 was for engaging them as skilled/semi skilled/unskilled workers. There is no similarity with the engagement through contractors at Amini island. Similarly, in Kalpeni island, labourers were engaged directly, on payment, for the past several years. Referring to Annexure-A7 it is pointed out that the labourers were engaged for the operation and maintenance of Forklifts for the last several years and they were attending the work directly, without the control of contractors. It is reiterated that the applicants were engaged through contractors on agreement on the rate quoted by the contractor, based on the quantity of works, so the O.A. is sought to be dismissed.

Heard the learned counsel for the applicants and also the learned Standing Counsel.

Sri.Ashik Akthar Haajigothi, learned counsel for the applicants wanted to impress the Court that the applicants stand on the same footing as that of the applicants in Annexure-A4. According to the learned counsel, the applicants do not want conferment of temporary status but seek only parity of treatment as that of labourers in Androth, Kalpeni and Kiltan islands as reflected through Annexures-A5 to A7 orders. According to the learned counsel, after passing the Annexure-A4 order, the labourers in Androth island are engaged directly by the respondents after removing the contractor.

On the other hand, according to Sri.Thomas Mathew Nellimoottil, learned Standing Counsel, the applicants have never been engaged by the department, they were always working under the contractor, for the contractor, there is no employer-employee relationship between the respondents and the applicant and none of the reliefs can be allowed.

In order to grant the reliefs sought for by the applicants, it is necessary to understand the status of the applicants, their nature and source of engagement first. It is the undisputed position that the applicants were engaged by the contractor, who quoted works from the Harbour Department of Amini island. The applicants do not have a case that they were engaged by the respondent department or that remuneration was being paid directly by the respondents. On the other hand, indisputedly, they were engaged by the contractor. The respondents had floated tenders detailing the works to be undertaken in connection with the operation of the port and boat jetties. The applicants are the labourers engaged by the contractor. They have never come in the rolls of the department. In other words, it is very clear that there is no direct employer-employee relationship between the applicants and the respondents. The transaction between the respondents and the contractor are controlled by the terms of the contract. To put it more succinctly, there is no privity of contract between the applicants and the respondents. It may be true that the ultimate beneficiary of the engagement or discharge of functions by the applicants may be the department. But that does not create any jural relationship between the applicants and the respondents.

There are essential differences between a 'contract of employment' and 'contract for employment'. Former is the agreement whereby an employee is obligated to work for an employer in exchange for salary and other benefits, and the employer in turn is obligated to provide work for the employee. On entering such a contract of employment, an employer-employee relationship is created. On the contrary, contract for employment is the agreement whereby an independent contractor provides a one-off service or completes some specific tasks for an employer in exchange for payment. In a contract for employment a client-contractor relationship is created. In this category of contract the relationship is between the contractor and the employer where there is no direct relationship between workers employed by the contractor and the department. There is no direct employer-employee relationship between the two. Of course, it is the look out of the employer to see that the workers are remunerated by the contractor. But that will not obligate the department to ensure job security, continuous engagement etc. In this nature of contract the contract of employment is between the client and the contractor, where the labourers engaged by the contractor cannot stake any claim against the department.

This being the position, this Tribunal is unable to give any direction to the respondents to ensure continued engagement of the applicants or payment of statutory wages.

The applicants are buttressing their case through Annexure-A4. But it must be stated that the order is not based on any provisions of statute or any dictum passed by the Apex Court. Such benefits can be conferred on the casual labourers only if it is conceded by the department or as supported by provisions of law or any dictum laid down by the Apex Court.

It is very patent that the applicants were engaged by the contractor. There is no direct deal between the applicants and the respondents.

In the circumstances, this Tribunal finds it difficult to accede to the prayers. The Original Application is bereft of merits and is dismissed. No costs.

(Dated, this the 18th September, 2023)