Umakanthan53
Labour Law & Hr Consultant

Dear all,
As per my understanding of Sec 2 (1) (b) of the ISMW (RE & CS) Act,1979, "whoever recruits or employs 5 or more inter state migrant workmen, on any day of the year" falls under the purview of the same. Hence whether principal employer or contractor, registration and licence is a must. Inter-State Migrant Workman should invariably be recruited by a contractor only {also Sec 2(1) (b)}, for the Act to be applicable.
It has also arisen that a contractor is defined by the Act to be, inter alia, an EMPLOYEE {Sec 2 (1) (b)}. Does this mean that an "employee" of the principal employer, who recruits inter state migrant workmen, on behalf of the principal employer, whether with or without his knowledge, is a contractor within the meaning of the Act? If not, then who is an employee under Section (1) (b) of the Act???
Thank you for your replies.
Regards,
L. K. Nongrum

From India, Aizawl
Dear Nongrum,

I think that you have got only one question as to whether an " employee" mentioned in the definition of " contractor" u/s 2(1)(b) of the ISMW Act,1979 can be the employee of the principal employer. Of course it is a valid question and as such bound to arise when one encounters various terms such as "employed", " recruited", "supply workmen" used in the Act in different contexts in relation to interstate migrant workmen.

I do hope that you will agree with me that no employer would allow his employee to don the dual role of employee and contractor to himself just because may be at times the employee happens to be a party on behalf of himself in the recruitment process. Hence, it implies that the "employee" mentioned in the definition clause u/s 2(1)(b) can not be a contractor within the meaning of the ISMW Act,1979.

The legal definition of certain common terms is bound to vary according to the objective of or the nature of mischiefs to be rectified by the respective legislations. If you compare the objectives of the CLRA Act,1970 and the ISMW Act,1979 you will understand why the definitions of the same term "contractor" u/ss 2(1)(c) and 2(1)(b) respectively are different.

The application aspect of the ISMW Act mentioned in Sec.1(4)(a)&(b) comes into play only when the employment of ISM workmen reaches or exceeds the specified number either at present or in the past stretch of period of time mentioned therein focussing on the factum of employment only. But, the definition aspect of " contractor" u/s 2(1)(b) and "ISM Workman" u/s 2(1)(e) comes into play at the very stage of recruitment itself focussing on its purpose only.

So, in my view, the word 'employee' occuring in Sec.2(1)(b) qualifies only the defined term "contractor" and neither the term "establishment" nor "principal employer".

From India, Salem
Dearest Uma Kanthan, I am deeply appreciative of your time and effort. This has cleared my doubts as to who a contractor is to a great extent. Thank You.
From India, Aizawl
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