Andaman Sarvajanik Nirman Vibagh Mazdoor Sangh And ANR v. The Chief Secretary And Others

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE SHAMPA DUTT (PAUL) WPA/417/2024 Andaman Sarvajanik Nirman Vibagh Mazdoor Sangh and Another ... Petitioners

Versus

The Chief Secretary and Others ... Respondents For the Petitioners : Mr. Gopala Binnu Kumar For the Administration : Mr. Rakesh Kumar For the Respondent No. 4 : Mr. V. D. Sivabalan Mr. Arun S. Kumar Heard on : 12.12.2025 Judgment on : 17.12.2025 SHAMPA DUTT (PAUL), J.

1.

The writ petition has been preferred praying for setting aside the impugned notification dated 05.01.2024 issued by the respondent no. 2 whereby referred the dispute between the petitioner union and the Executive Engineer, Workshop Division, APWD, Port Blair for consideration of payment of 1/30th of Pay + Dearness Allowance in terms of the Office Memorandum No. 289 dated 22.09.2017 to the Heavy and Light Vehicle Driver engaged through outsource and further praying for direction upon the respondent No. 2 to prepare a schedule of reference by

referring the matter before the Labour Court to adjudicate the issue whether the petitioners are workmen and are entitled for the benefit of 1/30th of Pay + Dearness Allowance in terms of the Office Memorandum dated 22.09.2017 in terms of the order dated 20.12.2022 passed in W.P. No. 242/2022 by this Hon'ble Court.

2.

The petitioners' case in short is that the petitioner no. 1 is a Trade Union Organization registered under the Indian Trade Union Act 1926 having registration No. 18 of 1962 and affiliated to Centre of Indian Trade Unions (CITU) having office at Crusade House, Phoenix Bay, Port Blair, Andaman and Nicobar lslands and the petitioner No. 2 is the President of the said union.

3.

On 23.09.2019 the petitioner union filed a conciliation proceeding against the respondent No. 4 pertaining to the daily rated employee near about 40 in numbers who are working under the respondent No. 4 for years together and are not provided with the benefit of 1/30th of pay, which ended in failure and on 04.11.2020 the respondent No. 3 submitted failure report before the respondent No. 2.

4.

In the last week of June 2022 the petitioner union received a letter dated 17.06.2022 from the office of the

respondent No. 2, whereby informed the respondent No. 3 that the said Industrial Dispute case is not a fit case to be referred to the Labour Court for adjudication on the ground that workers were engaged through outsourcing firm and the Office Memorandum dated 22.09.2017 shall not be deemed applicable. 5.

Challenging the letter dated 17.06.2022 the petitioner union filed a writ petition being WPA/242/2022 before this Hon'ble Court and on 20.12.2022 by this Hon'ble Court whereby this Hon'ble Court held that the no reasons whatsoever was recorded by the appropriate government as mandated under Section 10(5) of the said Act of 1947 and as such set aside the impugned order dated 17.06.2022 and directed "The Secretary (Labour), respondent no. 2, shall pass a reasoned order in terms of section 10(5) of the Act, 1947 and communicate the same to the petitioners within a period of two weeks from date mandatorily and positively. In default, a reference shall be deemed to have been made by this Court for adjudication by the Labour Court, to decide as to whether the petitioners are workmen within the meaning of the Act, 1947 and are in fact entitled to the benefit of the 1/30 pay plus DA, under O.M. No. 289 dated 22nd September, 2017.".

6.

On 30.12.2022 the petitioner union to received Order No. 3415 dated 29.12.2022, whereby the respondent No. 2 held that the outsourcing agency shall be constituted as a contractor/employer and therefore their exist no relationship of employer and employee in between the outsourcing staff and management of Workshop Division, Andaman Public Works Department, Port Blair as per observation made by Hon'ble Apex Court and therefore in view of the judgment of the Hon'ble Apex Court the case is not covered under the definition of the Industrial Dispute and as such the said outsourced employees are not covered under the OM No. 289 dated 22.09.2017 and therefore the said case is not fit to be referred to the Labour Court.

7.

Challenging the Order No. 3415 dated 29.12.2022 passed by the respondent No. 2, the petitioner filed writ petition being WPA/59/2023 before this Hon'ble Court. Vide order dated 24.11.2023 this Hon'ble Court directed the appropriate govt. to refer the dispute to the tribunal within two weeks. 8.

Under the dint of the said order passed in WPA/59/2023, the respondent no. 2 with the concurrence of the administrator issued Notification dated 05.01.2024 whereby referred the dispute before the Labour Court, vide Notification dated

05.01.2024, the respondent No. 2 referred the matter before the Labour Court with a reference which itself is defective, since by the said reference the respondent No. 2 contended that the members of the petitioner union are Outsourced employees under the Executive Engineer, Workshop Division, APWD, Port Blair which is an issue to be adjudicated.

9.

Being aggrieved and dissatisfied with the impugned notification dated 05.01.2024 issued by the respondent No. 2 whereby referred the dispute between the petitioner union and the Executive Engineer, Workshop Division, APWD, Port Blair for consideration of payment of 1/30th of Pay + Dearness Allowance in terms of the Office Memorandum No. 289 dated 22.09.2017 to the Heavy and Light Vehicle Driver engaged through outsource, defeats the very purpose of referring the matter before the Labour Court. Hence this writ petition. 10.

Affidavits-in-opposition have been filed by the respondent Nos. 1 to 3 and the respondent No. 4.

11.

The contention of the respondents No. 1 to 3 is as follows :- a.

The instant writ is not maintainable as the prayers made by the petitioner are subject to mediation

and/or outcome of the mediation/ alternate dispute mechanism.

b.

The petitioner has no locus standi to file this writ petition or to made any such prayers.

c.

No fundamental right of the petitioner has been infringed.

d.

That the petition is premature.

e.

That alternative remedy is available before the Labour Commissioner/Labour Court.

12.

It is further stated that the schedule of reference in the Notification dated 05.01.2024 is not defective as alleged by the petitioner. The direction of the Hon'ble High Court in its Judgment dated 24.11.2023 passed in WPA No. 59/2023 very well prevails, which the petitioner can place before the Labour Court during hearing and adjudication.

13.

It is further stated that, in compliance to the direction of Hon'ble High court vide Order dated 20.12.2022 passed in WPA No. 242 of 2022, the respondent No. 2 immediately took up the matter for consideration and as per the records submitted by the Union and the Management during the course of

conciliation proceeding, passed a reasoned speaking order on 29.12.2022.

14.

It is further stated that while considering the issue raised by the writ petitioner, it was observed that the writ petitioners were engaged by the Management (Respondent No.4) from time to time through different outsourcing agencies on the basis of the rates quoted by those Contractors in Tender Agreements for execution of works for a definite period from 06 months to 01 year, respectively every time and the workers/drivers are not engaged directly as DRMs or casual workers by the Management. 15.

The respondent No. 4 in his affidavit-in-opposition has contended and has denied the case of the petitioners, as follows :- a) The petitioner union is representing the case of outsourced drivers who have no direct employee employer relationship with Andaman Public Works Department (hereinafter referred to as APWD for brevity) and they are employed/paid through contractors supplying labour.

b) The outsourced drivers are also having their EPF (Employee's Provident Fund) and ESI (Employee State Insurance)

contribution through the contractors being their direct employer.

c) The petitioner union ASNVMS (Andaman Sarvajanik Nirman Vibagh Mazdoor Sangh) is having a similar I.D. case No: 02 of 2020 for the same outsourced drivers claiming Double Overtime Allowance, wherein the Labour court has to adjudicate on the same issue of whether the members of the petitioner union are outsourced members or are direct employee of APWD.

d) The respondent department is defending the cases before the Labour Court on the grounds that the petitioner union is representing the case of outsourced drivers and the outsourced drivers are having no direct employee/employer relationship with APWD.

e) That the subject reference vide notification dated 05.01.2024 is already pending before the Learned Labour Court being I.D. Case No. 4 of 2024 as such this writ petition is liable to be dismissed by this Hon'ble Court.

16.

In the petitioners' affidavit-in-reply, the petitioner has reiterated his own case as made out in the writ application.

17.

On hearing the learned Counsels for the parties and on perusal of the materials on record the following facts are evident:- (i) The petitioner No. 1 is a registered and recognized Trade Union Organization of the Establishment.

(ii) Admittedly, it is the petitioner No. 1 Union and its President who has taken up the case of the Daily Rated employees.

(iii) It is the contention of the petitioners that these Daily Rated employees have been directly employed with the Office of the Executive Engineer, Workshop Division, APWD, Port Blair.

(iv) On the other hand, the contention of the respondents herein is that the said workers are not directly employed with the Department as claimed and that they have been engaged through outsourcing (Contract Workers). 18.

A Coordinate Bench of this High Court vide an Order dated 20.12.2022 passed in WPA 242 of 2022 directed as follows:- "The Secretary (Labour), respondent no.2, shall pass a reasoned order in terms of section 10(5) of the Act, 1947 and communicate the same to the petitioners within a period of two weeks from date mandatorily and positively.

In default, a reference shall be deemed to have been made by this Court for adjudication by the Labour Court, to decide as to whether the petitioners are workmen within the meaning of the Act, 1947 and are in fact entitled to the benefit of the 1/30 pay plus DA, under O.M. No.289 dated 22nd September, 2017.". 19.

Subsequently, in another writ application being WPA/59/2023 dated 24.11.2023, a Coordinate Bench of this High Court held that :- "5. In the impugned order dated 29th December, 2022 the basis for refusal to refer the disputes appears to be that the writ petitioners are not direct employees of the management and as such it cannot be construed they are similarly placed with the DRMs engaged by the Administration in various department covered by the OM No. 289 dated 22.09.2017. In the ID Case No. 23 of 2019 the outsourcing agency shall be construed as a contractor/employer and therefore there exist no relationship of employee-employer in between the outsourcing staff and the management of the workshop division, APWD, Port Blair in terms of the decision of the Hon'ble Supreme Court in Airport Authority of India vs. International Aircargo Workers Union (2009) 13 SCC 374 which followed in Bharat Heavy Electrical Limited vs. Mahindra Prasad Jakhmola and others (civil appeal No. 1799-1800 of 2019)

6. There cannot be any doubt that in the event the employees are outsourced the relationship of employer and employee between the respondents and the writ petitioner does not exist. However, there are few documents disclosed by the petitioners obtained under RTI to show that they have been working as DRMS against the sanctioned post, however this has been disputed by the Administration.

7. These documents apparently are not considered in the impugned order. In view of nature of dispute it was only appropriate that the matter should be referred to industrial tribunal for a fair adjudication.

8. It is needless to mention that in the event the employer is able to establish that all the claimants are outsourced

employees and there is no relationship of employer-employee the reference would fail. This order shall not prevent the respondents to raise the issue of jurisdiction of the tribunal to decide the dispute on the ground that the claimants are outsourced workers.

9. The appropriate government shall refer the dispute to the tribunal within two weeks from date.".

20.

The authorities finally by a notification dated 05.01.2024, as follows :- "NOW, THEREFORE, in exercise of the powers conferred under sub-section (1) of section 10 read with sub-section (5) of section 12 and sub-section (2-A) of section 10 of the Industrial Disputes Act, 1947 (Act No. XIV of 1947) read with the Notification no. LR-1(59)/55 dated 13th Dec., 1955 of the Govt. of India, Ministry of Labour, and the A&N Administration's Notification No. 144/2008 F.No. 17-2/2007-Labour dated 7th Oct, 2008, the Secretary (Labour) A&N Administration, after consideration of the report, orders to refer the said dispute in the following schedule of reference, to the Labour Court, Andaman and Nicobar Islands, Port Blair for submission of award as per Law.

Schedule of reference Whether the demand of the Union for payment of 1/30th Pay + DA as per A&N Administration's OM No.289 dated 22nd Sept, 2017 to the Heavy and Light Vehicle Drivers engaged through outsourcing by the Executive Engineer, Workshop Division, APWD, Port Blair is legal and justified ? If not what relief the workman is entitled to ?"

By order of the Secretary (Lab)".

21.

It is submitted by the learned Counsel for the petitioners that the said reference is in total contradiction to the Order dated 20.12.2022 passed by the High Court in WPA 242 of 2022.

22.

It is stated that the reference thus being bad in law, is liable to be set aside and the matter is to be remanded to the authorities concerned to make a fresh reference in accordance with law as per the observations of the High Court. 23.

On hearing the learned Counsels for the parties and on perusal of the record this Court relies upon the judgment of the Calcutta High Court passed in WPA 20373 of 2008 dated 24.11.2025, wherein the High Court held as follows :- "36. Section 2(s) of Industrial Disputes Act, 1947 ("ID Act") defines "workman" as:- Any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work, for hire or reward, terms of employment is express or implied and includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of dispute.

37. The Courts have interpreted this definition and have identified various determining factors to know whether a person is "workman" or not. The factors which should be considered are:- a) whether there is a Master-Servant relationship. b) when a person is performing various functions which overlap in their characteristics, the nature of main function for which the claimant is employed should be considered.

38. CONTRACT LABOUR The term 'contract labour' under Sec. 2 (b) of Contract Labour (Regulation and Abolition) Act, 1970 ("CLRA") is defined as:- "A workman shall be deemed to be employed as "contract labour" in or in connection with the work of an establishment where he is hired in or in connection with such work by or through a contractor, with or without the knowledge of the principal employer."

Contract labour thus means that a workman who is hired in or in connection with the work of an establishment by or through a contractor. It is important to note that the word, 'hire', as used in the Act, has a significant connotation and it is not equivalent to an employer-employee relationship, as there is no direct employment.

39. Scope of Work A workman is deemed to have been employed as contract labour, where he is hired in, or in connection with a particular work of the principal employer. The determinative factor, here, is whether a workman was hired in or in connection with work of an establishment. Where a workman is "hired' specifically for the work of an establishment, his scope of work does not extend beyond the work of that establishment and he is considered to be a contract labour.

40. The test for establishing an employer-employee relationship as laid down by the Apex Court in Balwant RaiSaluja vs. Air India Ltd, MANU/SC/0732/2014, is complete administrative control, which is decided by several factors, including, among others:-

1. who appoints the workers,

2. who pays the salary remuneration,

3. who has the authority to dismiss,

4. who can take disciplinary action,

5. whether there is continuity of service, and

6. extent of control and supervision i.e., whether there exists complete control and supervision.

41. The first essential condition for a person to be a workman is that there must be a contract of employment between the parties and a relationship of employer-employee or masterservant must exist. Indian courts have ruled that the prima facie test to determine the relationship between master and servant is the existence of the right in the master to supervise and control the work done. It is important to be able to direct not only the work to be performed but also the manner in which it shall be done. An employment contract also establishes an employeremployee relationship, and in the absence of which no person can claim to be a workman. Additionally, the employee must be paid some remuneration irrespective whether the terms of his employment are express or implied.

Large industrial operations increasingly use the services of an independent contractor who, in turn, supplies people to an enterprise. Where a contractor employs a workman to do the work which he contracted with a third person (a company), the workman of the contractor will not become the workman of the management.

The contractor is responsible for payment of remuneration to the employees and not the management. However, under Indian law, the contract workers are legally bound to the contractor, but if the contractor defaults in providing any benefits that a contract labour is entitled under the law, the principal employer is liable. The principal employer will be the company where the workers work. Contract labourers under the law are eligible to receive, from the contractor, benefits such as provident fund and employee state insurance etc. The terms of the contract between the contractor and the Company govern the employment of the contract labour.

The triggers for creation of a potential industrial dispute for contract and temporary/casual employees may arise when there is: (i) a tendency/frequency to hire workers who are engaged in the activities that are contrary to any local notification prohibiting employment of contract labour, (ii) non- compliance with provisions of legislations which require employers to provide benefits to its employees including contract labour, and (iii) excessive control/check on the activities of contract labour. The Courts have held that if the principal employer keeps control on contract labour, including granting them leave or extending any salary advance, then the contract between the contractor and principal employer is a sham.

42. Difference between CONTRACT OF SERVICE (WORKMAN) & CONTRACT FOR SERVICE (CONTRACT LABOUR) Basis Contract of Service Contract of Service (Workman) (Contract Labour) Meaning An agreement in which employee is employed by the employer to work under his authority.

An agreement in which an independent contractor works for the employer on a specified project without any supervision.

Relationship Employer-Employee (master & servant) Principal-Contractor (Client-Contractor)

Payment Regular wages or salary, often with benefits Fixed fee, milestone-based payment; benefits usually not provided Liability Employer may be vicariously liable for employee's actions within scope Client generally not vicariously liable for contractor's actions Delegation Employee usually cannot delegate work without permission Contractor often has more freedom to delegate Economic Dependence Employee often economically dependent on the employer Contractor may have multiple clients and more economic independence Termination The employment agreement depends on the will of the employer Termination can take place after end of the contract

46. Now, it appears to this Court that in such situations and circumstances, the proper procedure for the appropriate Government would have been to also frame an additional issue as to "whether there exists any employer-employee relationship with the contractual workers working under a contractor in the premises of the petitioner" (As in WPA 28424 of 2024, Indian Institute of Management, Calcutta (IIMC) vs- Union of India and Others on 17.02.2025, Calcutta High Court).

48. The Supreme Court in Cipla Ltd. vs Maharashtra General Kamgar Union & Ors., AIR 2001 SC 1165, decided on 21 February, 2001, held:- ".............in cases arising under Section 33C(2) of the Industrial Disputes Act the scope, though very limited, certain incidental questions can be gone into like a claim for special allowance for operating adding machine which may not be based on the Sastry Award made under the provisions of Chapter V-A. The learned counsel pointed out that in the event we were to hold that it is only in clear cases or undisputed cases the labour court or the industrial tribunal under the Act can examine the complaints made thereunder, the whole provision would be rendered otiose and in each of those cases provisions of the Bombay Industrial Relations Act, 1946 or the

Industrial Disputes Act will have to be invoked. We are afraid that this argument cannot be sustained for the fact that even in respect of claims arising under Section 33C(2) appropriate dispute can be raised in terms of Section 10 of the Industrial Disputes Act and that has not been the position in the present case. Nor can we say that even in cases where employer-employee relationship is undisputed or indisputably referring to the history of relationship between the parties, dispute can be settled and not in a case of the present nature where it is clear that the workmen are working under a contract. But it is only a veil and that will have to be lifted to establish the relationship between the parties.

That exercise, we are afraid, can also be done by the industrial tribunal under the Bombay Industrial Relations Act, 1946 or under the Industrial Disputes Act. Therefore, we are afraid that the contention advanced very ably by Shri Singhvi on behalf of the respondents cannot be accepted. Therefore, we hold that the High Court went far beyond the scope of the provisions of the Act and did not correctly understand the decisions of this Court in Gujarat Electricity Board, Thermal Power Station, Gujarat v. Hind Mazdoor Sabha (supra) and General Labour Union (Red Flag), Bombay v. Ahmedabad Mfg. & Calico Printing Co. Ltd & Ors. (supra).

The correct interpretation of these decisions will lead to the result, which we have stated in the course of this order In the view we have taken on the question of jurisdiction of the Labour Court under the Act, the decision given by the High Court on other questions need not be considered.........."

49. In Vividh Kamgar Sabha vs Kalyani Steels Ltd. & Anr., AIR 2001 SC 1534, decided on 9 January, 2001, in a similar case the Supreme Court held:- "If there is a dispute as to whether the employees are employees of the company then that dispute must first be resolved by raising a dispute before the appropriate forum."

The appropriate forum herein being under the industrial dispute act.

50. In a case similar to the present case, the Supreme Court in Balwant Rai Saluja & Anr. Etc. Etc vs Air India Ltd. & Ors., 2014 (9) SCC 407, decided on 25 August, 2014, held:- ".........The present dispute finds origin in an industrial dispute which arose between the Appellants-

workmen herein of the statutory canteen and Respondent No. 1- herein. The said industrial dispute was referred by the Central Government, by its order dated 23.10.1996 to the Central Government Industrial Tribunal cum Labour Court (for short "the CGIT"). The question referred was whether the workmen as employed by Respondent No. 3 herein, to provide canteen services at the establishment of Respondent No. 1-herein, could be treated as deemed employees of the said Respondent No. 1............"

51. The said judgments are in support of an issue if raised, as to whether there exists an employer-employee between the parties, and this in itself being an industrial dispute is subject to adjudication by the tribunal.

52. But when such a relationship is in dispute and no such issue is framed in a reference, the reference clearly suffers from material irregularity and is liable to be quashed and set aside, for the ends of justice, there being clearly an abuse of power/process of law.".

54. In the present case, it appears that the reference made is arbitrary and there is no material or basis for such presumption, that there was already an employer/employee relationship between the principal employer and the contractor workers, more so when the said relationship has not only been challenged but clearly denied by the petitioners (principal employers).

57. In Telco Convoy Drivers Mazdoor Sangh and Ors.-vsState of Bihar and Ors. Reported in 1989 (4) TMI 342, the Supreme Court held that though the Government is entitled to form an opinion as to whether an industrial dispute "exists or is apprehended", but it is not entitled to adjudicate the dispute itself on its merits. The question whether the person raising the dispute was a workman or not cannot be decided by the Government under Section 10(1) of the Act. This dispute is required to be adjudicated by the competent Labour Court after its reference.

58. So in this case, the Government could not have held that there existed an industrial dispute between the parties (principal employer and contractual workers), without framing another issue, when the petitioner claims that there is no employer-employee relationship between the parties.

59. That being the principal issue, the other issues made/raised/framed under reference can have no force as

the issues under reference are dependent on the principal issue.

60. Another issue has been raised by Mr. Majumder, questioning as to how the respondent union being a labour organization associated with IISCO limited, Burnpur (Principal employer) and represents its direct workers is now representing the contractor workers who are admittedly not the direct employees of IISCO (principal employer) but are engaged through contractors.

61. This is another important issue which is also to be considered by the authority under the appropriate government, if a fresh reference is made.

62. Thus the reference being No case No. X-1/2005 dated 18.4.2005 in the present case being arbitrary and irregular is quashed and set aside.

63. The appropriate government is at liberty to make a fresh reference as per the observations in this judgment.

64. It is clarified that vide order dated 18.08.2025, this Court decided the validity of the reference in respect of its existence under the law (being in force) as on date and not the legality of the reference, which has been decided vide this judgment.". 24.

In view of the said observations of the High Court in WPA 20373 of 2008, this Court finds that when the administration has denied the employer-employee relationship with the outsourced (disputed) Drivers, the said issue is also required to be decided in the said reference.

25.

Another issue is also to be considered by the appropriate Government, is whether the petitioner No. 1 union, who represents the direct workers of the Establishment, can represent the outsourced (disputed) drivers in this case.

26.

Thus the impugned notification dated 05.01.2024 in the present case being arbitrary and irregular is quashed and set aside.

27.

The appropriate government is at liberty to make a fresh reference as per the observations in this judgment and the order dated 20.12.2022 passed in WPA 242 of 2022.

28.

The writ application being WPA 417 of 2024 is allowed. 29.

All connected application, if any, stands disposed of. 30.

Interim order, if any, stands vacated.

31.

Urgent Photostat certified copy of this judgment, if applied for, shall be supplied to the parties as expeditiously as possible, upon compliance of all formalities.

[ SHAMPA DUTT (PAUL), J. ]