IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5645 OF 2005

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.

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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

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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 :

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“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

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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

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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

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[Markandey Katju] New Delhi; March 5, 2009.

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