Sh. Hansraj And Ors vs Employees State Insurance Corporation ... on 23 December, 2021

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Delhi High Court - Orders

Sh. Hansraj And Ors vs Employees State Insurance Corporation ... on 23 December, 2021

1. This hearing has been done in physical Court. Hybrid mode is W.P.(C) 705/2020 & 5691/2021 Page 1 of 7 Digitally Signed By:DHIRENDER KUMAR Signing Date:24.12.2021 18:19:09 permitted in cases where permission is being sought from the Court.

2. These are part-heard matters.

3. The present petitions have been filed by Petitioners/Workmen (hereinafter "Workmen") who were contractually employed with the Employees' State Insurance Corporation Hospital, Basai Darapur, Delhi. The grievance of the Workmen is that their services were illegally terminated by the Respondent Authorities, under the pretext of changing the contractor. Accordingly, the Workmen have approached this Court praying for reinstatement in service as also for a direction to the Respondent Authorities to give preference to the them over fresh contractual employees.

4. Notice was issued in this matter on 22nd January, 2020. On 27th November, 2020, the Court was informed that a new Contractor, namely M/s. WAPCOS Limited, had been appointed by the Respondent Authorities. The new Contractor was, therefore, sought to be impleaded in the matter. Further, the previous Contractor, namely, M/s. UP Rajkiya Nirman Nigam Ltd. had the sub-contractor namely M/s. HST Enterprises were deleted from the array of parties.

5. On 20th May, 2021, the Respondent Nos. 1 and 2 - ESIC, had taken the position that they have no objection if the Workmen are accommodated by the new Contractor, M/s. WAPCOS Ltd., subject to them fulfilling the eligibility criteria. On 25th May, 2021, ld. Counsel for M/s. WAPCOS Ltd., submitted that the new Contractor is only a consultancy agency, and M/s. WAPCOS had sub-contracted the employment of contractual employees to one, M/s. Shri Krishna & Co., w.e.f. 15th May, 2021. In view of the above, vide order dated 25th May, 2021, this Court observed as under:

W.P.(C) 705/2020 & 5691/2021 Page 2 of 7

Digitally Signed By:DHIRENDER KUMAR Signing Date:24.12.2021 18:19:09 "8. After hearing counsels for the parties, it is clear that the matter requires further consideration inasmuch as the main tenderer does not appear to be the entity which is, in fact, providing the contract labour. Further, payments are also alleged to be made to the contractual employees by the ESIC. The exact nature of the relationship between the ESIC, the contractor, the sub-contractor and the workmen needs to be looked into by this Court. Accordingly, affidavits are directed to be filed by ESIC, M/s WAPCOS, as also the new sub-contractor, i.e, Respondent No.5, explaining the following:

(i) What are the terms of the tender on the basis of which it has been allotted to M/s WAPCOS and whether subcontracting is permissible under the terms of the tender?

(ii) As per the tender, which is the entity which is releasing payments to the contractual workmen?

(iii) Whether under the tender there is any condition that the new contractor ought to accommodate the earlier workmen who are already working in the establishment and if so, whether the same is looked into by the ESIC?

(iv) What is the role of a tenderer such as M/s WAPCOS in such a matter and whether M/s WAPCOS was specifically permitted to subcontract the providing of contractual workmen?

(v) What are the total number of posts which are sanctioned and the list of employees who have been employed currently at the site.

(vi) How many of the old employees were in fact offered employment and employed by the new contractor/sub-contractor?

W.P.(C) 705/2020 & 5691/2021 Page 3 of 7

Digitally Signed By:DHIRENDER KUMAR Signing Date:24.12.2021 18:19:09

9. All the entities shall file affidavits on the above aspects on or before 25th July, 2021. Rejoinder be filed at least one week before the next date.

10. Ld. counsel for the ESIC submits that the ESIC is willing to accommodate the Petitioners, as and when vacancies arise. It is clarified that the pendency of this writ petition would not be construed as preventing the ESIC in employing the workmen if vacancies arise during the pendency of this writ petition.

11. Ld. counsel for the Petitioner submits that the workmen are willing to move an application before M/s WAPCOS seeking their consideration for being re- employed. Let the needful be done within two weeks."

6. On 7th October, 2021, this Court was informed that a Committee has been constituted for suggesting a draft policy in respect of contractual employees, and a report by the said Committee was stated to be placed before the Standing Committee of the ESIC. The said Report was also directed to be placed before this Court, in a sealed cover. The ESIC was further directed to place on record the contracts entered into by it with the previous contractors, sub-contractors as also the new contractors. Last and final opportunity was also granted to the ESIC to decide the representation made on behalf of the Workmen, within four weeks therefrom.

7. On 8th December, 2021, the purported draft policy was placed before this Court by the ESIC, however, the same was stated to have not been approved by the Standing Committee of the ESIC. On the said date, it was also recorded that the ESIC had failed to place on record a decision in respect of the aforementioned representations made on behalf of the Workmen. The relevant portion of the said order dated 8th December, 2021 reads as under:

W.P.(C) 705/2020 & 5691/2021 Page 4 of 7

Digitally Signed By:DHIRENDER KUMAR Signing Date:24.12.2021 18:19:09 "2. Vide the last order dated 7th October 2021, Mr. Abhik, ld. Counsel for the EMPLOYEES STATE INSURANCE CORPORATION (hereinafter, "ESIC") had submitted that a draft Policy in respect of the contractual employees was to be placed before the Standing Committee for its consideration and he would file the same in a sealed cover before the Court.

3. Today, Mr. Abhik, has placed on record a purported draft Policy in respect of the contractual employees of the ESIC. The said Policy is stated to have not been approved.

He submits that the Standing Committee has deferred the decision of ratification of the said draft as this matter is subjudice before this court.

4. The draft Policy submitted by Mr. Abhik is retained with the Court in the sealed cover. It is made clear that before the next date of hearing, the said draft Policy may be put up and considered by the Standing Committee, irrespective of the pendency of these writ petitions and a decision be taken as to whether the draft Policy is to be approved or not. The said decision shall be placed on record by the Regional Director, ESIC by the next date of hearing.

5. Vide the last order, this Court had also directed Mr. Abhik, ld. Counsel for the ESIC to decide the representations submitted by the workers, and place on record the said decision, however a decision in respect thereof has also not been placed on record. Accordingly, let the same be placed on record within two weeks.

6. On a query from the Court Mr. Gaur, ld. Counsel for the subcontractor submits that there are a total of 85 employees that are being supplied by him to work with the ESIC. There are 79 sanctioned posts, however Mr. Nishant, ld. Counsel for the Contractor submits that 6 of the employees are working as relievers.

7. Let a complete list of all workers supplied by this contractor/subcontractor, along with the dates from when they have been working with the ESIC, be placed on record within 2 weeks."

The ESIC was directed to place on record a complete list of all workers supplied by the contractor including the dates when they joined.

W.P.(C) 705/2020 & 5691/2021 Page 5 of 7

Digitally Signed By:DHIRENDER KUMAR Signing Date:24.12.2021 18:19:09

8. In terms of the last order dated 8th December, 2021, the list of workers supplied by the contractor/sub-contractor is stated to have been filed yesterday night. However, the same is not on record. Copy of the list, which was served upon the ld. Counsel for the Petitioner, has been handed over to the Court. A perusal of the said list shows that out of 85 employees, the date of joining and qualification requirement has not been mentioned qua 72 employees.

9. Mr. Abhik, ld. Counsel for the Respondent/ESIC submits that the date of joining and the qualification requirement has not been mentioned in the said list as the ESIC is not aware since when the said employees have been working.

10. In the opinion of this Court, this cannot be an acceptable explanation. The said employees were working with the ESIC and are also stated to be working with the ESIC presently as well. The ESIC ought to have in its records their date of joining, even though they are contractual employees.

11. Moreover, in the present case, the Court has noticed that the contractors are being changed from time to time, Further, old employees, who have worked with the ESIC for 10 to 15 years, have been discontinued without any reason. In this respect, the stand of the ESIC is that the ESIC tries to accommodate the old employees as much as possible. On the other hand, Ld. Counsel for the Petitioners/Workmen, submits that in the ESI Hospital, Okhla as also ESI Hospital, Jhilmil, new contractual employees have been taken into service, after the filing of the present petitions.

12. Under these circumstances, it is necessary to ascertain as to what is ESIC's policy in respect of contractual employees. The list of employees in terms of the last order also is directed to be placed on record. All the W.P.(C) 705/2020 & 5691/2021 Page 6 of 7 Digitally Signed By:DHIRENDER KUMAR Signing Date:24.12.2021 18:19:09 previous orders of this Court shall be complied with by the next date. Let an affidavit be placed on record giving the information sought by the previous orders.

13. Considering that there has been repeated non-compliance of the previous orders passed by this Court, as also the fact that a clear policy in respect of the contractual employees has not been placed on record, Mr. Mukhmeet S. Bhatia (IAS), Director General, ESIC and Dr. Deepak Kumar Sharma, Medical Commissioner, ESIC to join the virtual proceedings on the next date.

14. List on 6th January, 2022 at 2:30 pm. PRATHIBA M. SINGH, J.

DECEMBER 23, 2021/dk/Ad W.P.(C) 705/2020 & 5691/2021 Page 7 of 7

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Delhi High Court - Orders