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Judgment
L. Narasimha Reddy, J
In this batch of O.As., common question of facts and law arise. Hence, they are disposed of through this common judgment.
The applicants claim that they are working as daily wagers under the control of Director General of Health Services, Government of Delhi, since 02.05.2016. It is also stated that prior to that date, they were serving with the respondents, through a labour contractor from 2013-14 onwards. According to them, once they are deployed as daily wagers, they cannot be replaced by another set of daily wagers. It is also stated that their engagement was being extended, each for a period of 89 days.
The cause of action for the applicants to file these O.As. is an Advertisement issued on the website of M/s. Intelligent Communication System India Limited (ICSIL) in July, 2017, proposing to engage employees in place of the applicants. They submit that any action, proposing to replace them with another set of employees, is impressible in law. Reliance is placed upon the judgment rendered by the Full Bench of this Tribunal in O.A. Nos. 1184/2009 & 1461/2009 and various judgments of Hon"ble High Courts and Hon"ble Supreme Court.
The applicants seek the relief in the form of a direction to the respondents to continue them by paying monthly emoluments, at the minimum of regular pay scales.
On behalf of the respondents, respective counter affidavits are filed, opposing the O.As. It is stated that the house keeping services in various hospitals was being outsourced, and that in the year 2015, a labour contract was awarded in favour of M/s. Shivalik House Keeping Services (SHKS) for a period of one year up to 04.05.2016. The respondents state that the applicants were engaged by M/s. SHKS and there is no direct relationship between them and the applicants. It is also stated that M/s. SHKS started working, but it was not complying with the conditions, and accordingly, steps were taken to pay the salaries to all the employees directly and in the interregnum between the expiry of the term of M/s. SHKS, an arrangement was made to pay daily wages to the employees. It is also stated that the contract of outsourcing was awarded to M/s. ICSIL for the subsequent period and accordingly, they initiated steps for deployment of the manpower. The respondents state that when the work was outsourced, the applicant cannot be extended the benefit of continuing on daily wages.
The arguments on behalf of the applicants were advanced by Mr. Ajesh Luthra and Mr. M K Bhardwaj, learned counsel. They submit that the applicants were initially engaged for a period of 89 days on daily wages and that thereafter it was being extended from time to time. They also submit that the respondents cannot entrust the work to a labour contractor in contravention of relevant provisions of law and the livelihood of the applicants cannot be taken away. Reliance is placed upon the following judgments:
i) Shri Bhoop singh & others v. Chairman-cum-Managing Director North Eastern Electric Power Corporation Ltd. & another (W.P. (C) No.6483/2014 with connected petition) decided on 19.03.2015 by the Hon"ble High Court of Delhi.
ii) Union of India & others v. Tulsi Ram Jod & another (CWP No.3389/2013 with connected petitions) decided on 19.03.2015 by the High Court of Rajasthan.
iii) AFR Kartik Chandra Panda v. State of Orissa & others (W.P. (C) No.18004/2012) decided on 27.07.2017 by the Hon"ble Orissa High Court.
iv) Gujarat Mazdoor Sabha v. Valsad Nagar Palika (Special Civil Application No.3062/2015) decided on 02.11.2018 by the Hon"ble Gujarat High Court.
v) Air India Statutory Corporation & others v. United Labour Union & others (1997) 9 SCC 377
vi) Secretary, HSEB v. Suresh & others (1999) 3 SCC 601.
Mr. Amit Anand, learned counsel for respondents, on the other hand, submits that the work of housekeeping in hospitals was entrusted to outsourcing agencies as a matter of policy and M/s. SHKS was awarded the contract from 05.05.2015 for a period of one year. He submits that the applicants herein were deployed by the said agency and the occasion to pay daily wages directly to them arose on account of the default committed by the labour contractor. He contends that once the new contractor was assigned the work, deployment is required to be done by him and the applicants do not have any right to insist on being continued. He further submits that dispute, if any, in this regard needs to be raised before the competent Labour Court and not by approaching this Tribunal.
The pleadings in the O.As. give an impression as though the applicants were inducted into the service of various hospitals, through orders dated 02.05.2016, and were entrusted the work of Sweeper-cum-Chowkidars (SCC). The fact, however, remains that in the very order dated 02.05.2016, it is mentioned that the SCC workers are engaged through M/s. SHKS. The order dated 02.05.2016 reads:
"With due approval of the competent authority, all CDMOs are, hereby, informed to engage Sweeper cum Chowkidars (SCC) workers on daily wage basis for a period of 89 days for Delhi Govt. Dispensaries w.e.f. 05-05-2016.
He modalities for engaging the human resources will be as under:-
All those SCC contractual workers who are currently working through M/s Shivalik Housekeeping Pvt. Ltd. at various Delhi Govt. Dispensaries will be deployed on daily wage basis.
The SCC workers who are willing to work on daily wages will be placed on duty subject to their satisfactory performance over past months/year. A written undertaking is to be taken from the existing workers that they are willing to work on daily wages basis and should be kept in records till the engagement is enforce.
To engage the human resource as per the daily wage rate of Rs.368/- as per Labour Department order F.No.12(142)/13/mw/ Lab/3998 dated 31-03-2016. The daily wage rate will be revised as and when the same are revised by Labour Department.
The payment to workers will be made on monthly basis and through ECS.
In-charge concerned should note that the engagement is for 89 days only and should be adhered to."
In paragraph (1) of the order itself, the factum of applicants having been engaged by M/s. SHKS was clearly stated.
Things would have been different altogether, had it been the case where the applicants were inducted into service in whatever capacity, by the Delhi Administration itself. Once their induction is through an outsourcing agency, a totally different legal regime altogether, comes into existence. The respondents have clearly stated the circumstances under which order dated 02.05.2016 came to be issued. The contract with M/s. SHKS was for a period of one year up to 04.05.2016. When some problem arose as regards the working of the contractor, wages were paid directly. There was some delay in awarding the contract to another agency. In the interregnum, the order dated 02.05.2016 was issued to ensure the continuance of work. This is not a case in which a set of employees was already in existence and that very work is sought to be entrusted to a labour contractor.
The main emphasis in the pleadings as well as in the arguments is that the set of contractual or ad hoc employees cannot be replaced by another set of employees. There is absolutely no second opinion about the legal proposition. The fact, however, is that the applicants are neither contractual employees of the Delhi Administration, nor were they appointed on ad hoc basis. Their rights, if at all, are governed by the provisions of the Contract Labour (Regulation & Abolition) Act, 1970 (for short "the Act"). If they are of the view that their rights under that enactment are violated in any manner, they have to approach the competent Labour Court for enforcement thereof. The respondents have already entrusted the work to M/s. ICSIL. In their letter dated 20.08.2016 to the said agency, the respondents state as under:-
"Subject : Placement of Sweeper cum Chowkidaar in various health units under DGHS through agency i.e. M/s. ICSIL
Sir,
Please refer to subject cited above and communication sent earlier vide letter dated 16-06-2016, 01-07-2016, 11.08.2016 & 19-08-2016. As a follow up measure telephonic reminders were made from time to time but nothing has been communicated to this office till date.
You are requested to expedite and inform this office immediately regarding the timeline worked out for placement of the SCC as requested for.
Further it is requested to please acknowledge the communication and inform accordingly latest by 2nd September 2016 failing which Secretary (Health and Family Welfare, Government of Delhi) will be informed accordingly."
It is on entrustment of the work to it, that the agency is taking steps to deploy its own workforce. Since the applicants are already experienced in the field, they can certainly approach the agency and there is no reason to believe that their services will not be availed. This Tribunal cannot bring about a new legal regime altogether, when it is already covered by the labour contract.
In almost all the judgments relied upon by the applicants, such as Air India Statutory Corporation and Secretary, HSEB (supra), the proceedings first commenced in the Labour Courts for adjudication of the rights under the relevant provisions of the Act and thereafter they reached the Hon"ble Supreme Court after passing through the concerned High Courts. In the absence of such adjudication by the forum under the Act, this Tribunal cannot address the issue. Serious question of jurisdiction also will arise. In fact, the applicants did not canvass their rights with reference to the Act, notwithstanding the fact that their very engagement was under the provisions thereof by the labour contractor.
In Gujarat Mazdoor Sabha (supra), the adjudication was mostly on the concept of "equal pay for equal work" and framing of a scheme for regularization. That was not a case in which the employees were engaged by the labour contractor.
We do not find any merit in these O.As. They are accordingly dismissed.
In view of the above order, C.P. Nos.645/2017 & 446/2018 in O.A. No.2808/2017 and C.P. No.445/2018 in O.A. No.3792/2017 are closed.
All the pending M.As. stand disposed of. There shall be no order as to costs.