Full Text
HIGH COURT OF DELHI
Date of Decision: 27th October, 2021
ALL INDIA GENERAL KAMGAR UNION ..... Petitioner
Through: None.
Through: Mr. B.S. Shukla and Mr. Waize Ali Noor, Advocates for Mr. Kirtiman Singh, CGSC.
Mr. Atin Puniyani, GP for UOI.
JUDGMENT
34 AND + W.P.(C) 5697/2020 NITI TYAGI AND ORS..... Petitioners Through: None.
VERSUS
UNION OF INDIA AND ORS..... Respondents Through: Mr. B.S. Shukla and Mr. Waize Ali Noor, Advocates for Mr. Kirtiman Singh, CGSC. Mr. Atin Puniyani, GP for UOI. CORAM: JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J.(Oral)
1. This hearing has been done through video conferencing.
2. The present petitions have been filed by the Petitioners who are contractually employed Workmen, working with the Respondent/Hospital- Lady Hardinge Medical College and Hospital (hereinafter “Hospital”), challenging the illegal termination of their services. The grievance of the Workmen is that they that they had been earlier engaged by one contractor, 2021:DHC:3416 Jai Balaji Security Services, and have been working in the Hospital as Multi- Tasking Staff (hereinafter “MTS”) since 2015. However, when the new contractor stepped in, their services were terminated. Further, it was alleged that the Workmen were told by the new contractor engaged by the Hospital that unless and until they pay money to the new contractor, they would not be retained by the Hospital. It was also submitted that several of the Workmen had, in fact, paid the new contractor and their services had been retained by the Hospital.
3. Vide orders dated 31st July, 2020 in W.P. (C) 4834/2020, and 27th August 2020, in W.P. (C) 5697/2020, this Court had impleaded the new contractor, M/s. Competent Services (Regd.), as Respondent No.4 in the matter. This Court had also directed that the new contractor shall engage the services of the Petitioners, and their salaries would be paid to them. Till the next date, services of the Petitioners were directed to not be terminated. Broadly, this Court had noticed that such grievances against contractors were being raised in many cases. Considering the fact that such a grievance, that a new contractor has been engaged and is charging commission under the guise of “security deposit”, both in lump-sum and as a cut in monthly salaries from the employees, was being made against a reputed hospital, the Secretary, Minister of Health & Family Welfare was directed to nominate a senior official to look into this matter concerning the Lady Hardinge Medical College and submit a report before the next date of hearing. The operative portions of the said orders read as under: Order dated 31st July, 2020 in W.P. (C) 4834/2020:-
4. Thereafter, the Ministry of Health & Family Welfare placed on record the Report of the Enquiry Officer, Mr. Ghulam Mustafa, Director (A & V) Directorate General of Health Services. The said Report was forwarded to the Committee constituted by the Ministry of Health and Family Welfare for suggesting further action to be taken on the Enquiry Report.
5. Vide order dated 23rd July, 2021, this Court was informed that all the Workmen have been taken back into service. The Enquiry Report submitted by Mr. Ghulam Mustafa as also the Committee’s report for suggesting further action to be taken pursuant to the Enquiry Report were placed on record. A Report dated 19th October, 2020, on the actions proposed and measures taken on the Enquiry Report, was also filed by the Lady Hardinge Medical College and Associated Hospitals. Considering the contents of the reports, it was deemed appropriate to allow all counsels for the parties to peruse the said reports. Hence, vide order dated 30th July, 2020, copies of the said reports were directed to be furnished to the ld. Counsels appearing in the matter.
6. The Court has also perused the Enquiry Report, the Committee’s Report suggesting further action as well as the Action Taken Report filed by the Hospital. It is noticed that in a large number of labour related matters, allegations are raised by the Workmen that once the contractor has changed, the new contractors demand lump sum amounts from the proposed employees who are to be engaged. Even those Workmen who have been working for several years are forced to make payments to the new contractors for the continuance of their services. The Enquiry Report submitted by Mr. Ghulam Mustafa is a detailed Report where several gaps were identified by the said Enquiry Officer. Though statements of various workers were recorded stating that they were forced to make payments to the contractor, the Enquiry Officer could not lay hands on any documentary evidence in respect thereof.
7. Accordingly, the Enquiry Officer has made some suggestions which have now been considered by the Committee appointed by the Ministry of Health & Family Welfare. The Committee has deliberated upon the matter and its observations in respect of the Enquiry Report are extracted below: “ 7. Observations on the Inquiry Report:
(i) The contemplations as opined by the Inquiry
Officer in the report vis-a vis the depositions of the petitioners of above-mentioned Writ Petitions and statements made by the Hospital Staff/Officers has been examined at length. Detailed examination of the report suggest that though there has been written depositions about demand of money in the form of registration money/security, the allegations are not substantiated by any evidence as directed by the Hon'ble Court in para 10 of its Order dated 05.10.2020. The Committee observed from that the written depositions of the petitioners that aggrieved with their discontinuation by the new vendor they had approached the Hon'ble High Court on the ground of non-inclusion of their names in the finalized list of and have made allegations in the petitions that there was some cases of demand of money on the pretext of Registration/security deposits. Though the Inquiry Officer in its findings suggest that the matter may be further enquired by competent and specialized agency, its observation at 4.2.[2] of the report sums up that the outsourced MTS could not produce any evidence in support of their claim of payment of security/registration fee to the outsourcing agencies, the allegations of making lump-sum payment to the vendors by the outsourced MTS could not be clearly established due to lack of documentary evidence. The Committee, in view of the foregoing is of the view that the matter does not need to pursue further.
(ii) The committee observed that the allegations raised regarding cut in the monthly salaries have not even been reported by the petitioners during their interactions with the Inquiry Officer. Hence, the issue might have been raised with the object of job continuation. Even the Inquiry officer in its report has observed that "their remunerations/salary is being made in their respective bank accounts and no cash payment is being made. As such, there seems to be no scope of cut in monthly wages".
8. The Committee has also examined the Action Taken Report dated 19th October, 2020 submitted by the Hospital. The observations of the Committee in respect of the said Report are extracted below:
9. Thereafter, in light of the Report of the Enquiry Officer as well as the Action Taken Report dated 19th October, 2020 submitted by the Hospital, the Committee has recommended certain reforms that need to be introduced in all the Central Government Hospitals, including Lady Hardinge Medical College and Associated Hospitals, to ensure that there is a more transparent environment and there is no scope left for any corrupt practices. The relevant portion of the Committee’s Report is set out below:
10. The conclusion of the Committee constituted by the Ministry of Health & Family Welfare in its Report is as under:- “Conclusion-The Committee after taking into consideration the reports Submitted by Shri Ghulam Mustafa, (Director) [A&V] and the Lady Hardinge Medical College & Associated Hospitals, overall circumstances leading to such allegations, action taken by the Institution and considering the gravity of the matter is of the view that the allegations of charging registration amount/security and monthly salary cut by the vendor has not been proved in the Inquiry Report and hence not a fit case for referring to any specialised agency for further investigation for want of documentary evidence. The Committee is of firm opinion that measures suggested by the Committee needs to be followed scrupulously to avoid any such Incident in future and the matter be laid to rest after issuing suitable advisory to the Outsourcing agency concerned as well as to the institute.”
11. A perusal of the Report by the Committee clearly shows that there were several gaps in the recruitment of contractual workers and several reforms have been suggested. Accordingly, the steps taken by the Hospital and the further steps suggested by the Committee, are reiterated below, in order to maintain uniformity, transparency and consistency in the recruitment of contractual workers. Accordingly, the Lady Hardinge Medical College and Associated Hospitals as also other Central Government Hospitals, in order to ensure that no improper and corrupt practices are indulged in by the contractors, shall take the following steps, in respect of engagement of contractual workmen through contractors: a. For selection of the contractual firm through GeM, two separate and independent committees, viz., Bid finalization committee and Bid evaluation committee comprising of non-administrative faculty members would be constituted; b. The approval, if necessary, shall be obtained even from the Ministry for award of the contract, after the Bids are evaluated and finalized; c. The hospital administration shall create awareness amongst the outsourced workers about their dues and statutory deductions. For the said purpose, when they report for duty for the first time, a senior person from the hospital administration shall try and hold an interactive session in the presence of the contractor to sensitize them as to their rights and duties; d. Proper and transparent criteria shall be fixed, and once the Contractor has finalized the workers, the administration shall also verify their identity cards and documents before they are allowed to report for duty; e. Adequate administrative personnel shall be recruited in the hospital to deal with the contractual workers, and if there are any vacancies, steps to fill up the same shall be taken expeditiously; f. Salary details of outsourced employees shall be displayed by putting up Boards in prominent places in the premises to avoid any chances of salary being cut or unauthorized deductions being made by the contractor; g. A committee of at least two senior persons – one from administration and one from amongst the faculty members, shall be constituted to interact with the outsourced employees on a quarterly basis to check if they are facing any difficulties, including difficulties in respect of the salaries and other payments. The said Committee shall also keep a check on their efficient & qualitative delivery of services; h. Suitable provisions shall be incorporated in the Service Level Agreement (SLA) to fix the accountability of the selected vendor in case of any violations of the SLA. i. The Hospital Authority shall also ensure the verification of the educational qualifications as well as other eligibility conditions by the vendor required, so as to ensure that the right person is engaged for the right job. j. Every outsourced workman may be provided with detailed terms and conditions governing their engagement with the hospital, including the details of job requirements, attendance norms, leave entitlements, and facility available under the ESI, amongst others. k. In accordance with the Committee’s recommendations, salary slips may be issued each month to the outsourced workmen showing the breakup of admissible salary and statutory deductions, and the net salary payable through the Bank must reflect on the salary slips. l. The Hospital shall also consider introducing a system of biometric attendance in respect of outsourced workmen. m. Further, as per the guidelines issued by the CVC, rotational transfers of persons holding sensitive posts on a regular basis shall also be undertaken. n. A complaint box shall be put up in a prominent place in the premises of the hospital, so that any contractual workers who have complaints against the contractors would be able to submit their complaints in those boxes, even in an anonymous manner. These complaints shall also be looked into, and action shall be taken within two weeks of receiving the said complaints.
12. The hospital administration shall ensure that the abovementioned steps are taken and are monitored on a regular basis. The responsibility for ensuring that the steps as directed hereinabove are taken, would be of the Medical Superintendent of the hospital, who shall ensure that the contractual workers are not in any manner abused or misused, and the proper payment of their salaries, in accordance with the amount being released by the hospitals are, in fact, being made by the Contractors.
13. This Court records its appreciation for the detailed enquiry conducted by Mr. Ghulam Mustafa, in his Enquiry report. In view of the said Enquiry Report and the subsequent Action Taken Report dated 19th October, 2020 filed by the Lady Hardinge Medical College & Associated Hospitals, so also the Report of the Committee constituted by the Ministry of Health & Family Welfare, no further orders are called for in these matters.
14. Let a copy of this order as well as the Report of the Committee constituted by the Ministry of Health & Family Welfare be circulated to Lady Hardinge Medical College and Associated Hospitals as also all other Central Government Hospitals for appropriate implementation of the aforementioned directions.
15. It is made clear that the continuation of contractual workers shall always be in accordance with law. The present order shall not be construed as giving any permanence to the contractual employees.
16. With these observations, the present petitions, along with all pending applications, is disposed of. website of the Delhi High Court, www.delhihighcourt.nic.in shall be treated as the certified copy of the order for the purpose of ensuring compliance. No physical copy of orders shall be insisted by any authority/entity or litigant.
PRATHIBA M. SINGH JUDGE OCTOBER 27, 2021/MR/AD (Corrected & released 30th October, 2021)