Panic-driven and pathetic. The facts, as garnered from the newspapers, are that the government hired a company called Drishti Lifesaving Pvt Ltd (Drishti, for brevity) to engage lifeguards for duty on the beaches to ensure the safety of tourists; that these lifeguards have demanded regularization of their services; that they gave a 21-day notice of their intention to strike..
The Tourism Minister declared that the government will “intervene”. This attitude is based on a misconception of the government’s role in the situation. Under the Contract Labour (Regulation and Abolition) Act, 1970, the government’s Department of Tourism, through its executive head (by whatever name he may be called), is the Principal Employer and this private company is the Contractor. Hence if there is a failure of these services on the beach, the responsibility lies with the government and not the hired agency. This is not a case of the Government mediating between two parties, but of itself being one of the parties.
To that extent the agency is right in asserting that the strikers have not made “any demand which Drishti is required to meet ….” The demands of the lifeguards include higher pay, regularization of their services, and the reinstatement of some persons who were removed from service earlier. The first two demands without doubt need to be tackled by the government as the principal employer; the third one appears to be an internal management affair for Drishti.
Let us assume that the contract was awarded based on competitive tenders submitted by experienced operators who were afforded a level playing ground. It needs particularly to be assumed that the agency is not owned/managed by any person, or anyone related to any person(s), in the government; nor were there any political affiliations being pandered to in awarding this contract. Having assumed that much, we can talk about the law. We are told that the average CTC per lifeguard is Rs 12,000.The Goa Government notification on minimum wages effective from June 1, 2015 makes no mention of ‘lifeguards’ in the list of occupations. The failure to mention any occupation in the list (which is expected to be made after much deliberation in the departments concerned) implies lack of application of the mind. But that’s nothing new. However, Drishti claims that they are adhering to the minimum wage regulations. The occupation nearest in comparison is ‘Watch & Ward’ staff, appearing at Sl. No. 9, showing a daily wage-rate of Rs 284 for the “unskilled” category. The spokesman for Drishti has said that the monthly minimum wage is Rs 7,390 which is a rationalization of Rs 7,384 (Rs 284 x 26 days). Hence it is clear that the lifeguards are paid the wages of unskilled workers. After deductions towards PF and ESIC a lifeguard would get a little over Rs 6,000 as take-home pay–but the spokesman says they pay Rs 10,500. This would mean that the lifeguard gets additional allowances of around Rs 4,500. It is necessary to get the break-up of the difference between Rs 12,000 (CTC) and Rs 7,390 (minimum wage) and between Rs 12,000 (CTC) and Rs 10,500 (said to be paid). This extra amount is not a favour from Drishti; by law, it should include the statutory elements viz. employer’s contribution toward EPF&ESIC and the monthly element of annual Bonus (around Rs 2000); it should also include HRA, Conveyance Allowance, paid leave/reliever charges, Diet/Physical Fitness Allowance, insurance premia for this “dangerous occupation” (the nature of the job demands the last two), etc. This needs to be examined from the records by a competent and independent representative of the Labour Enforcement Machinery.
The demand for regularisation of their services is an area beyond the purview of the Contractor. Govt of India passed the Act of 1970 mentioned earlier, to reduce exploitation of workers by gradually abolishing the practice of engaging workers through contractors and, where this was not possible, the government would regulate the working conditions. The trend of judicial decisions has been to discourage the practice of prolonged engagement of workers under contractors – particularly when a fairly continuous engagement is called for. The demand of the lifeguards needs to be examined strictly as per the parameters laid down by the Supreme Court, particularly in the case of S.A.I.L and Uma Devi. One would expect the learned legal advisor(s) to the government to be aware of the basics of Contract Labour Law – instead of advising measures that can best be described as repressive and undemocratic.
Invoking of the Goa ESMA 1988 also throws up several points for discussion the most important of which is its timing. The strikers claim t o have given adequate notice to the govt, to which the govt reportedly did not respond; but on 29.12.2015 the government notified “lifeguarding and water safety services on the beaches and the inland water bodies” as essential services under the Goa ESMA 1988. The appropriateness of such a notification after the notice was received, is perhaps open to judicial review, but as the law stands: the strike is illegal…, unless someone could prove that the notification also fouls with the provisions relating to ‘Unfair Labour Practices’.
(The author retired as
Dy. Director-General,
Defence Ministry)
