Confused About the ISMW Act, 1979? Who Really Counts as a Contractor or Employee?

Understanding the ISMW (RE & CS) Act, 1979

As per my understanding of Sec 2(1)(b) of the ISMW (RE & CS) Act, 1979, "whoever recruits or employs 5 or more interstate migrant workmen, on any day of the year" falls under the purview of the same. Hence, whether a principal employer or contractor, registration and license are a must. Interstate Migrant Workmen 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 interstate 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

Dear Nongrum, I think that you have only one question regarding whether an "employee" mentioned in the definition of "contractor" under section 2(1)(b) of the ISMW Act, 1979, can be the employee of the principal employer. It is indeed a valid question and is likely to arise when encountering terms such as "employed," "recruited," and "supply workmen" used in the Act in various contexts related to interstate migrant workmen.

I believe no employer would permit their employee to assume the dual role of employee and contractor simply because the employee may sometimes be involved on their own behalf in the recruitment process. Therefore, it suggests that the "employee" referred to in the definition clause under section 2(1)(b) cannot be a contractor within the meaning of the ISMW Act, 1979.

Legal Definitions and Objectives

The legal definitions of certain common terms are expected to differ based on the objectives or the nature of issues to be addressed by the respective legislations. By comparing the objectives of the CLRA Act, 1970, and the ISMW Act, 1979, one can understand why the definitions of the term "contractor" under sections 2(1)(c) and 2(1)(b) respectively, are distinct.

Practical Application of the ISMW Act

The practical application of the ISMW Act as mentioned in section 1(4)(a) & (b) only becomes relevant when the employment of ISM workmen reaches or exceeds the specified number either currently or in the past period mentioned therein, focusing solely on the employment aspect. Conversely, the definition of "contractor" under section 2(1)(b) and "ISM Workman" under section 2(1)(e) becomes relevant at the recruitment stage, emphasizing its purpose.

Therefore, in my opinion, the term 'employee' in section 2(1)(b) qualifies only the defined term "contractor" and not the terms "establishment" or "principal employer".

Regards

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.