Nandan Singh v. North Delhi Municipal Corporation

8. Mr. Ravi Kant Vats, Radiographer Legal Cell After due deliberations, it was unanimously decided that the Malies, Beldar of Electricity department and Beldar of Civil Department are not entitled for HPCA because these employees neither come in continuous and routine contact with the patients nor they handle infected materials, instruments and equipments, as their primary duty which can spread infection. Sd/- CMO(Legal Cell) Member Secretary” ….. “MINUTES OF THE MEETING (CORRIGENDUM) In continuation and partial modification of the minutes of the meeting dated 21.2.2018, the last paragraph may be read as “after due deliberations, it was unanimously decided that the Malies, Beldars and other officials of Electrical & Civil (Works) Department are not entitled for HPCA because the employees neither come in continuous and routine contact with the patients nor they handle infected materials, instruments and equipments as their primary duty which can spread infection. Sd/- CMO(Legal Cell) Member Secretary”

8. We have heard the learned counsels for the parties and have considered their rival submissions.

9. In the case of North Delhi Municipal Corporation(supra), this Court has taken into consideration the decisions rendered in the case of Shamshuddin & Others(supra), paragraphs 8, 9, 10, 13 and 14, of which read as under:

9. In W.P. (C) 5268/2012 titled Union of India and others Vs. Rajender Ram and others, reported at 2013 SCC OnLine Del 2444, the Division Bench was dealing with a Chowkidar, who had sought identical relief but the same was declined. Reliance is also placed on Union of India & others Vs. Prabhu Nath Prasad & others (W.P. (C) 4973/2013). Both these writ petitions were dealing with Peons/Daftaris at the National Institute of Communicable Diseases at Sham Nath Marg. The relief sought with respect to these categories were also declined. Mr. Phoolka has drawn attention of the Court to circular dated 04.02.2004 issued by Govt. of India, Ministry of Health and Family Welfare, addressed to the Director General of Health Services regarding payment of Hospital Patient Care Allowance/Patient Care Allowance to group C & D (non-ministerial employees working in hospital/dispensaries and organisations). We deem it appropriate to reproduce the eligibility of HPCA/PCA.

10. Relying on the aforesaid circular, Mr. Phoolka contends that the aim, objective and purpose of providing the HPCA was to those persons, who were carrying out regular duties and were involved in continuous and routine contact with the patient infected with communicable disease or those who have to routinely handle, as their primary duty, infected materials, instruments and equipments which spread the contagious diseases. Mr. Phoolka submits that there is no infirmity in the judgment of the Tribunal. The Tribunal has rightly held that Malis do not fall in such a category as they do not routinely come in contact with the patients infected with communicable disease nor is their primary duty to deal with infected materials, equipments and instruments which can spread infection and thus, they are not entitled to the HPCA and cannot be equated with the persons to whom such allowance had been granted. It is further contended that the learned Single Judge was bound by the decision rendered by the Division Bench which apparently was not brought to his notice and thus the order of the learned Single Judge is liable to be set aside. …

13. We have heard learned counsels for the parties, examined the order passed by the Tribunal, the order passed by the learned Single Judge and the materials placed on record. The grant of HPCA is based on the circular dated 04.02.2004. The eligibility criteria for grant of HPCA has been extracted in para 7 aforegoing. At the cost of repetition, we highlight the eligibility criteria and the conditions which an organisation must satisfy before these employees can be considered for grant of HPCA, which read as under:

14. The underlying principle for grant of HPCA is to grant allowance to those employees whose regular duties involved bring into contact in a routine manner with patients infected with communicable diseases or such employees, who during the course of their duty deal with infected materials, instruments and equipments which can spread infection. The consistent view taken by this Court in three judgments of Division Bench detailed in para 7 aforegoing would show that persons who had not been in direct contact with patients with communicable diseases cannot be granted benefit of HPCA. The Malis in our view would not be covered within this category as they do not come in direct contact with patients with communicable diseases or with materials instruments or equipment. While the scope of deciding a dispute before the Industrial Tribunal is no doubt wider but even Tribunal did not come to the aid and rescue of the workmen as the award has been rendered against them and thus, it cannot be said that the judgments of the Division Bench would not apply the decision in this case. Even otherwise even if the scope of an industrial dispute is wider, it does not mean that relief is to be granted by the Tribunal in cases which lack merit. We have no hesitation in saying that had the decision of the Division Bench been brought to the notice of the learned Single Judge, the position would have different.”

10. The present petition is evidently to be decided on the touchstone of the law laid down by the decisions noticed in the paragraphs aforegoing. The petitioners have sought payment of Hospital Patient Care Allowance (HPCA) on the ground that they remain in constant touch with patients; that their nature of duties is such that they have to visit the wards in the hospitals, including the Intensive Care Unit, Maternity Wards, Operation Theatres and other such areas. This Court has taken a consistent view that only those persons who are in continuous and routine contact with patients would be entitled to HPCA. The petitions filed by safai karmcharis, chowkidars and malis already stand rejected. The nature of duties of the petitioners are not such which would require continuous or routine contacts with the patients or require handling infected material, instruments or equipment as their primary duty which can spread infection. The judgment relied upon by the learned counsel for the petitioners in the case of Bhagwan Shukla s/o Sarabjit Shukla (supra) is therefore not applicable to the facts of the present case.

11. At this stage, learned counsel for the petitioners submits that the representation made by the petitioners may be decided by the respondents as no opportunity of hearing was granted to them. Accordingly, we direct that if a representation is pending, the same would be considered by the respondents at an early date. However, we make it clear that rejection of the representation would not give to the petitioners a fresh cause of action.

12. The writ petition stands disposed of in above terms. CM.APPL 40431/2019(stay)

13. The application also stands disposed of in view of the order passed in the writ petition. G.S. SISTANI, J ANUP JAIRAM BHAMBHANI, J OCTOBER 30, 2019 pst