Bombay High Court
Ramakant Laxman Sarmalkar vs Nowrojee Wadia Maternity Hospital And ... on 18 April, 2002
Equivalent citations: 2002(5)BOMCR139
Author: R.J. Kochar
Bench: R.J. Kochar
JUDGMENT R.J. Kochar, J.
1. The petitioner is aggrieved by the order dated 26-4-2000 passed by the Industrial Court in Complaint U.L.P. No. 504 of 1990 dismissing the complaint filed by him under section 28 read with Items 5, 6, 9 and 10 of Schedule IV and Items 1(a), (b) and 4(a) of Schedule II of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices, Act, 1971 (for short M.R.T.U. & P.U.L.P. Act.). The main thrust of the petitioner in the complaint appears to be on Item 6 of Schedule IV of the Act though other items are mentioned in the complaint. The petitioner had filed the complaint originally along with his union against the respondent No. 1 praying precisely, for the benefits and privileges of permanency from the respondent No. 1. It further appears that though the complaint initially was filed on behalf of a number of employees by the union finally, it was the petitioner alone who contested the complaint on behalf of himself. Even the present petition is filed by him. According to the petitioner, he was appointed on 8-12-1970 as projectionist-cum-mechanic on temporary basis. He is entitled to be regularised in the employment by the respondent No. 1 and he is entitled to get privileges and benefits of permanency with retrospective effect from the date on which he had completed 240 days from the date of his appointment.
2. The respondent No. 1 filed its written statement to contest the complaint and it denied the employer-employee relationship between itself and the petitioner. According to the respondent No. 1 it was under the Post-Partum Programme (for short PPP) launched by the Central Government through the State Government to control the population in the country. The respondent No. 1 had accepted the programme at the instance of the Central Government and that it had practically nothing to do in the said project, and therefore, the persons employed for the said project were not the employees of the respondent-hospital. The respondent No. 1 pointed out that the persons employed under the said programme were paid from the independent fund received from the State Government which inturn received the funds from the Central Government for implementation of the said programme. In the circumstances it was pleaded by the respondent-hospital that it was not the employer of the persons engaged to implement the programme, and therefore, they were not responsible for their permanency and for their other service conditions. To be precise, the respondent Hospital totally disowned the responsibility of the persons working in the said project. It pointed out its finger at the Central Government and the State Government. It therefore, became necessary to implead both of them in the complaint. Both were therefore impleaded in the complaint and both had contested the complaint vehemently. According to them, they were merely financing the project and it was the sole responsibility of the respondent hospital to employ the persons to implement the PPP. According to the State Government it received the funds for the PPP from the Central Government and it entirely disbursed the same amongst the various agencies which were engaged by the Central Government to implement the PPP. Both of them pleaded that they had no supervision and control over the persons engaged by the respondent-hospital for the purpose of PPP. The respondent No. 1 vehemently asserted that all the service conditions including the post and pay were prescribed by the Central Government and that it had no role or say in the matter in that respect.
3. On the basis of the pleadings the learned Member of the Industrial Court framed the issues and answered the same against the petitioner on the basis of the evidence adduced by the parties and the material produced by them before the Court. It was held by the Industrial Court that the respondent hospital had not engaged and was not engaging in any unfair labour practice as alleged by the petitioner and that the petitioner was not entitled to get any relief in the complaint. The Industrial Court appears to have held that there was no employer-employee relationship between the petitioner and the respondent hospital. Alternatively, the Industrial Court also came to a conclusion that the petitioner had miserably failed to establish any unfair labour practice against the hospital under Item 6 of Schedule IV of the Act as he could not point out the crucial nexus of "object" of depriving the petitioner of the privileges and benefits of permanency.
4. The Industrial Court has observed that the Central Government had directed the respondent hospital to approach the State Government's Family Planning Officer for implementation of the PPP. According to the Industrial Court the supervisory and technical control was to be exercised by the Programme Director who was appointed by the Central Government. The Industrial Court has found that the hospital had no supervisory and technical control over the PPP though the Programme Director who happened to be the employee of the hospital was given additional duty of functioning as a Programme Director also. Secondly the Industrial Court has held as there is no dispute of this fact that entire PPP was financed and funded by the Central Government through the State Government. According to the learned member, therefore, the petitioner who was engaged in the PPP could not be held as an employee of the hospital. It was also noted that the petitioner was appointed as projectionist-cum-mechanic under the PPP and there was no such post available in the hospital but it was specially created under the PPP and the petitioner came to be appointed in that post. It is also noted by the Industrial Court that all other service conditions were stipulated for the staff engaged in the PPP by the Central Government. The hospital employees had different pay scales and different service conditions. The persons engaged in the PPP had different pay scales and different service conditions. The Industrial Court has specifically noted that the entire economic control of the PPP was in the hands of the Central Government. It was the Central Government that had prescribed the required infrastructure or implementation of the PPP the posts and qualifications and scales for the persons engaged in the PPP were stipulated by the Central Government. The hospital had maintained separate conditions for the staff under the PPP. Even the attendance register and service book was separate for the staff under the PPP. The learned member of the Industrial Court has considered several circumstances and factors to conclude that there was no relationship of master and servant existing between the petitioner and the hospital. The learned member of the Industrial Court has in the alternative concluded that there was no "object", in the mind of the management of the hospital to deprive and to deny the benefits and privileges of permanency to the petitioner or for that matter to the staff working under the PPP. According to the learned member, the service conditions of such staff were already determined, stipulated and prescribed by the Central Government and the staff was paid in accordance with the said stipulations by the Central Government from the funds allotted by the State Government to the hospital. The service conditions were prescribed by the Central Government and the hospital had no control or no authority to interfere with the infrastructure including the staff under the PPP. There was therefore no question of any mala fides or any object on the part of the hospital to deprive the petitioner and the staff under the PPP of the benefits and privileges of the permanency. The Industrial Court answered both the issues against the petitioner and dismissed the complaint. The Industrial Court finally held that the respondent-hospital was not guilty of any unfair labour practice as alleged by the petitioner.
5. I have heard all the learned Advocates for their respective parties at length. Ms. Shetty the learned Advocate for the petitioner has submitted that pursuant to the decision taken at the higher level to check the population of the country the Post-Partum Programme was launched by the Central Government in India. It disbursed the funds to the State Government to implement the programme. In the year 1969 itself it made available funds to the State Government which identified the respondent-hospital as one of agencies for implementation of the PPP. The State Government allocated the funds to the said hospital in accordance with its rules. She was at pains to submit that the staff under the scheme including the petitioner was appointed by the hospital and therefore, it was not open to the hospital to contend that the hospital was not the employer of the staff engaged for implementation of the PPP. She further pointed out that the PPP was not a temporary phase but was of perennial nature till the population is fully controlled and checked in this country. She also pointed out that by a letter dated 5-1-1976 addressed to the Central Government by the hospital by which it was communicated that the members of the staff employed temporarily in that department had claimed the benefits of permanency and other benefits on par with the Government servants and that their case was eminently reasonable. The hospital also recommended that the Government should consider their appeal favourably. From this letter the learned Advocate points out that the hospital had accepted the case for permanency of the staff under the PPP but had requested the Central Government to get funds. She also pointed out that the appointment letters were given by the hospital. It was also submitted that the petitioner was carrying on work and duties of the hospital in addition to the work of PPP. Ms. Shetty further submitted that the supervision and control over the PPP was entirely with the hospital and not with the Central Government or the State Government. The wages of the petitioner were paid by the hospital. The learned Advocate further pointed out another fact that the duty register was prepared for all the workers including the PPP. Even the servant register or service book was maintained by the hospital. The ward and the operation theatre constructed under the PPP was within the premises of the hospital and the hospitals staff was working in the ward under the premises. She further pointed out that the hospital was receiving grant-in-aid for its Maternity Ward but the staff working in the said Maternity Ward did not become the employees of the Central Government. Similarly the staff under the PPP could not be termed as the staff of the Central Government merely because the PPP was getting funded or financed by the Central Government. Ms. Shetty pointed out that the petitioner was kept as temporary for 20 years and was not given the benefits of permanency. According to the learned Advocate, the object is obvious and that is to deny the monetary benefits of the service conditions applicable to the other staff of the hospital. She further pointed out that inspite of recommendations by the Dean of the Hospital Shri Ajit C. Mehta the PPP staff was not absorbed by the hospital. According to her, like the respondent hospital there are several agencies engaged by the Central Government for implementation of the PPP. Similarly there are number of other institutions and organisations including the schools which are getting financial aid from the Central Government or the State Government therefore, according to her, the people working under such institutions and organisations do not become the employees of the State Government or the Central Government, says the learned Advocate. The learned Advocate has relied on the following authorities :-
1. Smt. Usharani Datta & Sons v. State Industrial Court, Indore.
2. Unreported Judgment in Writ Petition No. 2104 of 1995.
3. 1996(I) C.L.R. 680, The Chief Conservator of Forests & another v. Jagannath Maruti Kondhare etc..
4. Vol. F.J.R. S.C. Page 336, Dhirendra Chameli & another v. State of Uttar Pradesh.
5. 1978(37) F.L.R. page 138, Hussainibhai Calicut v. The Alath Factory Thezhilali, Union, Kozhikode and others.
6. 1964(II) L.L.J. page 633, D.C. Dewan Mohideen Sahib & Sons and another v. United Bidi Workers' Union, Salem, and another.
7. 1973(II) L.L.J. 495, Silver Jublee Tailoring House v. Chief Inspector.
8. 1972(II) L.L.J. 165, The Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramanand and others.
Ms. Shetty therefore very vehemently submitted that the petitioner was deemed to be in the employment of the hospital and was entitled to be regularised and absorbed in the regular employment of the hospital and was entitled to get all the benefits on par with the regular staff of the hospital with retrospective fact.
6. Shri Shetty on the other hand has very vehemently submitted that PPP was not an activity undertaken by the hospital and it was never an integral part of the hospital which was established in the year 1926 and the PPP was introduced in the year 1969. The hospital existed from 1926 and would continue to exist and survive without the PPP as there absolutely no functional integrality between the hospital and the PPP. Shri Shetty pointed out that the PPP was an extra activity undertaken by the hospital at the instance of the Central Government and in the interest of the Nation to help to check the population of the country. On the point of functional integrality Shri Shetty submitted that both are independent activities and both would survive without each other. The PPP did not depend on the existence of the hospital and the hospital did not depend on the PPP. It was further submitted by Shri Shetty that the complement of the persons to be engaged in the PPP, their qualifications, experience, scales, posts, everything was decided and notified by the Central Government. The whole infrastructure of the PPP was as per the stipulations by the Central Government. It was for the Central Government to create necessary posts and abolish any of the posts if found redundant for the purpose of the PPP. Shri Shetty further pointed out that the Central Government had every right to withdraw the PPP from the hospital and give it to any other agency. The entire capital expenditure for the PPP was provided by the Central Government. Even the recurring expenditure was made by the Central Government. The scales and the DA were revised by the Central Government from time to time. The petitioner's post of projectionist-cum-mechanic was exclusively created by the hospital for the purpose of the implementation of the PPP under the direction of the Central Government. There was no such post in the entire hospital at any point of time. Shri Shetty emphasised the fact that the PPP is cent percent under the finance and control of the Government. The Dean of the hospital was formally nominated by the Central Government for the purpose of channelising the expenditure and for accountability. The Dean is an Honorary and not a full-time employee of the hospital. The service books and other service records are separately maintained and inspected by the Government and the hospital has no control over such matters. The petitioner's service book bears the signature of the Chief Administrative Officer, Dy. Director of Health Services, Bombay Circle, Thane. The Senior Medical Officer, who was appointed for the PPP under the PPP exclusively was incharge of the PPP. The accounts of the PPP are separately maintained, separately audited by the auditors nominated by the Government. The personnel in the PPP are not transferrable in the service of the hospital and the employees of the hospital cannot be transferred to the PPP. All such persons working in the PPP if they are desirous of joining the hospital service they have to apply to the hospital separately and they are to be employed by the hospital in accordance with the employed by the hospital in accordance with the recruitment rules. Shri Shetty pointed out while making the allegation of mala fides that it was the hospital that had espoused cause of permanency of staff under the PPP. It had made representation to the Central Government on and for the PPP staff by its letter dated 5-1-1976 to which it received the reply from the Joint Director on 14-1-1997 that no decision was taken by the said authority in that respect. Though Dr. Ajit Mehta, the Dean had recommended to the hospital to consider the question of permanency of the PPP staff, the Board of Trustees considered the issue in its entirety with all pros and cons and declined to accept the recommendation of the Dean for absorption of PPP staff in the hospital. It further made intimation to the Joint Director, Health Services, Pune on 22-12-1997. Shri Shetty has submitted that the entire supervision and control over the PPP staff vested with the Central Government. Every appointment was with a concurrence of the Central Government and the hospital has no control or say in such decision. The PPP itself is a temporary phase and is extended or renewed from year to year. Shri Shetty has given stress on the fact that the pay scale and the DA and other service conditions are in accordance with the directions of the Central Government. The hospital has no interest in denying any monetary benefits of permanency to the staff under the PPP. The Hospital has absolutely no object in depriving the PPP staff of the monetary benefits of permanency. Finally Shri Shetty has submitted that there was no employer employee relationship between the petitioner and the hospital and there was no post of projectionist-cum-mechanic for the petitioner in the hospital and the hospital had no control over the service conditions of the staff under the PPP and therefore, it could not be said that the hospital had engaged in any unfair labour practice as comtemplated under Item 6 of Schedule IV of the Act, or any the items as alleged by the petitioner. The learned Counsel has strongly supported the judgment and order of the Industrial Court. According to the learned Counsel, the learned member of the Industrial Court has decided all the issues on the basis of the evidence and material and has given cogent reasons for his conclusion, and therefore, this Court under Article 226 of the Constitution of India should not interfere with such findings recorded by the Industrial Court. He has therefore, prayed for dismissal of the petition. Shri Shetty has relied on the following authorities :--
1. Punjabrao Krishi Vidyapeth, Akola v. General Secretary, Krishi Vidyapeth Kamgar Union and others.
2. 1999(II) C.L.R. 231(S.C.), Scooters India Ltd. v. Vijay E.V. Eldred.
3. 1978(II) L.L.J. 397(S.C.), Hussainibhai, Calicut v. The Alath Factory Thezhilali Union, Calicut & others.
4. Mangala d/o Ananda Choudhary v. Shreyas Shikshan Prasarak Mandal, Aurangabad & others
5. 1990(I) C.L.R. 656(S.C.), V.L. Chandra (Dr.) and others v. All India Institute of Medical Science and others.
6. 2001(III) C.L.R. 4(S.C.), Mahatma Phule Agricultural University and others v. Nasik Zilla Sheti Kamgar Union and others.
7. 2001(2) Bom.C.R. (S.C.)324 : 2001(I) C.L.R. 532(S.C.), Vividh Kamgar Sabha v. Kalyani Steel Ltd. and another.
8. 2001(2) Bom.C.R. (S.C.)822 : 2001(I) C.L.R. 754(S.C.), CIPLA Ltd. v. Maharashtra General Kamgar Union.
7. Shri Sharma, the learned Advocate for the Central Government has tried to make certain points which in my opinion do not deserve even mention, as he tried to rake up all irrelevant contentions such as limitation and the procedure not followed by the Industrial Court and that the Central Government had nothing to do with the staff employed by the hospital. He had even gone to the extent of challenging the maintainability of the writ petition under Article 226 of the Constitution of India on the basis of section 60 of the MRTU & PULP Act to bar the jurisdiction of a Civil Court. As far as the limitation is concerned the learned Advocate for the Central Government was absolutely wrong as the cause of action was of recurring nature, and therefore in my opinion the complaint was maintainable. In respect of procedure followed by the Industrial Court I do not find any defect or lacuna in the procedure followed by the Industrial Court, as the Industrial Court had received the complaint in accordance with the rules and has examined the witnesses as desired by the parties and has received the evidence and material on record and no party has made any grievance about any such defect in the procedure followed by the Industrial Court. There is nothing on record to show that the Central Government had made any grievance before the Industrial Court in respect of defective procedure followed by the Industrial Court. The question of relationship will have to be decided by me hereinafter.
8. The respondent No. 2 has filed its affidavit in reply. It has averred that there was no employer-employee relationship between the petitioner and the respondent No. 2 and that it had no control or supervision over the institutions which have undertaken the PPP. According to the respondent No. 2, no contractual relationship of employer-employee existed between the petitioner and the respondent No. 2 and that there was no basis whatsoever to extend such relationship to the respondent No. 2. It has further stated that under the whole scheme and the guidelines the workmen employed by the respondent No. 1 hospital are their own employees and not of respondent No. 2. The respondent No. 2 has finally prayed for dismissal of the petition against the respondent No. 2.
9. Ms. Prabhu, the learned A.G.P. has explained the role of the State Government. According to her, it was the Central Government that had financed the PPP and therefore had allocated the prescribed amounts to the State Government to be disbursed amongst the agencies named by the Central Government. The State Government thereafter had no control over the agencies which were selected for implementation of the PPP. According to her the State Government was not the employer of the staff of the PPP and had nothing to do with the service conditions of the staff under the PPP. The State Government was only a middle agency to pass on the funds received from the Central Government to the agencies such as the present hospital.
10. There is no dispute that the respondent No. 1 hospital had accepted and undertaken to implement the PPP at the request of the Central Government. There is no dispute that the Central Government had in the year 1969 framed a scheme to check and control the population in our country. The scheme was known as Post-Partum Programme (PPP). It appears that the programme is under the department of Family Welfare, Ministry of Health and Family Welfare, Government of India. Under the scheme various hospitals were brought in for implementation of the scheme. There is also no dispute that the respondent hospital had started functioning to implement the PPP and had recruited the required staff as per the guidelines issued by the Central Government under the PPP. The scheme is classically vague in respect of contractual relationship between the institution and the staff prescribed to be employed under the scheme. The scheme ought to have been very categorical and specific in respect of the employees or the staff engaged by the institution to implement the PPP. In the scheme the Central Government has provided for the funds and has also prescribed certain norms for engaging the required staff or the employees. It appears from the record that the staff of the respondent hospital was sanctioned for the purpose of the PPP on the same lines as in Government Hospitals. The scheme for such expenditure was to be forwarded to the Dy. Director of the Family Planning under instructions from the Health Ministry. It further appears that no decision was taken as to whether the staff could be made permanent or not. There was no provision in the grant-in-aid for provident fund of the staff appointed under the scheme. In its letter dated 28-2-1990 the Government of India had communicated to the Additional Commissioner and Deputy Secretary of the Health Department of the State that the employees working in Voluntary Organisations under the Family Welfare Scheme were the employees of the concerned Voluntary Organisations and that they were to be governed in regard to their service conditions by rules and regulations of the organisations. Earlier by its letter dated 4-8-1988 it was pointed out that it was the responsibility of the Voluntary Organisation concerned to find out ways and means to meet the Central Provident Fund and Gratuity contribution for their employees. It appears that by a Government Resolution dated 15-10-1970 the Government of Maharashtra noted that the respondent hospital was approved by the Government of India for introduction of Post Partum Programme in the State and in accordance with the said programme the hospital had proposed to construct a 20 beded sterilisation ward and an operation theatre. The estimated expenditure on establishment and contingencies for the implementation of the scheme was stated in the said Resolution. The Resolution also described the staffing pattern and their pay scales. The total provision was made and sanctioned. It further appears that from time to time the Central as well as the State Government were monitoring the work of the scheme and were supervising the functioning of the scheme. Under the scheme a total staffing pattern for non-teaching hospitals was also prescribed. It further appears from the scheme that the staff was required to be appointed according to the rules and regulations prevalent in the State/Institution. It was however suggested or recommended that if the procedure for making appointments on regular basis was likely to take long, appointments to be made on ad hoc basis and thereafter action under the regular procedure may be initiated simultaneously. It was further clarified that the staff under the scheme to be provided on an additional basis to augment the existing staff would not be transferred under the scheme from the existing staff. It was further desired that the staff should be full-time except when a part-time work was required. In a letter dated 5-1-1977 the Board of Management of the Hospital had addressed a letter to the Joint Director or Health Services, Family Planning, Pune. In the said letter the hospital had made it very clear that the staff in the Family Planning Centre and Post Partum Programme attached to the hospital was appointed on the scales and pattern, laid down by the Government of Maharashtra and that the State Government was paying separately for such staff. The letter further made it clear that these departments are financed by the Government and the staff in these departments are engaged on purely temporary basis with a clear understanding that their services would be terminated, if the Government were to discontinue either the programme or payment of grants for the same. The members of the staff were appointed as if they were Government Servants, on temporary duty with the hospital. The hospital has also pointed out that as there was no provision in the grant-in-aid pattern for Provident Fund etc., there was no deduction for the same. It has further pointed out that the members of the staff employed temporarily in these departments had applied to Government to make them payment and to extend the facilities of Provident Fund etc. as enjoyed by the other permanent staff of the Government. The Board of Management was also of opinion that the demand of the staff was reasonable and requested to consider the appeal of the staff favourably. It appears that by a reply dated 14-1-1977 Dr. Kulkarni wrote back to the hospital that there was no decision taken in respect of the staff sanctioned under the grant-in-aid scheme for Family Planning Programme and that was no decision whether the staff should be made permanent or not. He further pointed out that the Family Planning Programme was hundred per cent centrally assisted and that the State depended upon the provisions and the guidelines made by them with regard to the service conditions. It further appears that the Secretary of the hospital had reacted to the recommendation of the dean for absorption of the Family Planning staff as permanent staff of the hospital. The Secretary opined that the staff was supposed to be Government staff and that the hospital received appropriate grant from the Government only according to their scales and that it was for the Government to make them permanent and start giving them terminal benefits like Provident Fund/Pension Fund, gratuity etc. It was further noted that the staff under such scheme was required to be treated as temporary under the Government's directives and that the hospital could not deviate from the said directives. It was further noted in the said letter that according to the Government the scheme was supposed to be temporary and in case the Government decided to terminate the scheme it would be a huge liability for the hospital if the hospital was to absorb the staff on hospital side as suggested by Dr. Mehta, Dean of the hospital. He also requested that a request should be made to the Government to consider the staff to be made permanent so that they get appropriate terminal benefits. The Managing Trustee had agreed with the note put up by Shri Mistry as above.
11. Considering the entire material on record I find it very difficult to hold the respondent No. 1 hospital guilty of any unfair labour practice as alleged by the petitioner and his Union made the complaint. The petitioner complained in his complaint that he was continued to be temporary for years together by the respondent hospital with the object of depriving him of the benefits and privileges of permanency. It is true that the petitioner was employed in the year 1970 as Projectionist-cum-Mechanic in the PPP. It is also true that his appointment order was issued by the respondent hospital to the effect that he was employed as a temporary employee. It is also true that even after a period of more than 20 years his status as temporary employee continues to be the same. It is also true that he has not been regarded as a regular or permanent employee of the hospital and his service conditions including the pay scale are not the same as those of the regular hospital employees. Even then in the very peculiar facts and circumstances in the present case I am not able to uphold the complaint of the petitioner that the respondent-hospital is guilty of commission of an unfair labour practice. In the peculiar position in the present case the blame would lie at the door of the Central Government on account of its ambivalent and indecisive policy in respect of the PPP. What the hospital was required to be done by the Central Government it has not failed or defaulted in implementing the scheme or the project of the PPP in accordance with the directions of the Central Government. The Central Government introduced the PPP and selected number of agencies including the hospitals such as the respondent No. 1 hospital for effective implementation of the PPP. The Central Government chalked out a plan for successful implementation of the PPP. It provided entire infrastructure for such agencies and the hospitals. The whole burden of expenditure was borne by the Central Government. It has provided for building, machinery and the staff. Even the staffing pattern and the complement of the staff was determined by the Central Government. It also provided for the pay scale to be given to the staff working under the PPP. No doubt the Central Government as a matter of convenience directed and allowed the implementing agencies to recruit and appoint the required staff but strictly within the scheme frame prescribed by it. All the control/supervision of the PPP was kept in the hands of the Central Government through the State Government. The Central Government had time and again made it very clear that the PPP was a temporary project and the employees could not be given the benefits of permanency in a temporary project. The Central Government having provided for regular pay scales did not provide for the benefits of provident fund and gratuity for such employees for the reason that the project was of temporary nature and that it could be discontinued at any time though it has not been still discontinued even after a period of thirty years. The blame and fault for such a situation certainly lies with the Central Government and not with the implementing agencies like the respondent hospital which were to function within the four corners of the scheme and under the control of the Central Government. It was for the Central Government to have taken a firm and positive decision in respect of the service conditions of the staff under the PPP at least after lapse of 5/10 years. It ought to have reviewed and assessed the entire position in respect of the project which was called as a temporary project by the bureaucrats. The Central Government ought to have given a deeper thought to this project which requires to be vigorously implemented until the whole object of population control is accomplished. It is obvious that the employees employed in the project have put in more than 20/30 years service. They are fully justified in seeking the benefits and privileges of permanency and security of employment which were denied by the Central Government. The implementing agency such as respondent hospital could not have made the staff of the PPP regular or permanent as they were time and again specifically informed that the project was a temporary one and was likely to be discontinued at any point of time. In these circumstances I cannot blame the hospital for not making the petitioner and the other employees in the PPP as regular or permanent staff in the PPP. Such an act or decision would have been beyond the scope of the scheme. And the respondent hospital could not have treated him to be a permanent employee in the temporary project of the Central Government. It is significant to note even the respondent hospital realised the predicament of such employees who continued to be temporary for years together without the benefits of permanency. The hospital therefore time and again brought to the notice of the Central Government that these employees should be extended the benefits of provident fund and gratuity and other similar benefits. The respondent hospital however did not and could not accept the said responsibility as it was not within their object and control. The hospital management, however, recommended to the Central Government to consider the position of the temporary staff of the PPP that was continued as temporary for years together. This conduct on the part of the respondent hospital manifest its goodwill towards the staff working in the PPP. It is again on record that such of the employees working in the PPP who applied for fresh employment in the hospital they were appointed as fresh and regular employees in the hospital whenever vacancies arose. The hospital management has certainly shown positive attitude for such staff and had given preference to such employees working in the PPP. The hospital cannot be blamed for not regularising the services of the petitioner as there was no post of a Projectionist-cum-Mechanic in the hospital. The said post was specially created under the directions of the Central Government in the scheme. The hospital did not have such a post and work and therefore, the petitioner could not be accepted even as a fresh employee in the staffing pattern of the hospital. The respondent hospital can never be accused of engaging in an unfair labour practice as it was strictly working under the prescribed scheme and guidelines and the dictates of the Central Government. If the Central Government were to discontinue the PPP all such employees would have been also discontinued from employment. The hospital functioned only as an agent of the Central Government to implement the PPP. If the Central Government were to choke off the finance from the hospitals the entire PPP would have also been left high and dry compelling the agents to discontinue to implement the PPP.
12. The Industrial Court has rightly concluded on the basis of the evidence and material on record that the petitioner and the employees working under the PPP were not the regular employees of the respondent hospital though they received their monthly wages through the hospital as an agent of the Central Government. The PPP was independently functioning in the hospital. The Central Government had nominated its head though from the staff of the hospital to supervise and control the working of the PPP. All these factors however do not create any employer employee relationship. It is not possible for me to hold that the respondent hospital was the master or the employer of the petitioner or the other staff working under the PPP. The petitioner and the other staff working under the PPP are getting their regular pay scale as prescribed by the Central Government. All other service conditions are stipulated and prescribed by the Central Government. The hospital has not deprived the staff from the benefits which are extended by the Central Government. The hospital has not cut short from the funds received from the Central Government for the purpose of the PPP. It is not the allegation of the petitioner that the respondent hospital had reduced the benefits which were provided by the Central Government. If the Central Government were to provide for the provident fund and the gratuity for such staff they also would be got the same benefits. It was for the Central Government to have provided for the benefits and privileges of permanency for the staff of the PPP. For such an apathy the respondent hospital cannot be blamed otherwise there is no other benefit or privileges which is lacking for the staff of the PPP. They were paid whatever was provided for by the Central Government. It is for the Central Government to provide for the provident fund and the gratuity for the staff working under the PPP under different agencies required to implement the project. By no stretch of imagination it can be said that the staff of the PPP is the regular staff of the implementing agencies like the respondent hospital and they cannot be burdened with other financial liability for the staff working under the PPP. The Industrial Court has considered all the facts and circumstances and has come to a right conclusion that the petitioner was not a regular employee of the respondent hospital and that there was no object on the part of the hospital to deprive the petitioner and the staff working under the PPP of the benefits and privileges of the permanency. The conclusion drawn by the Industrial Court are legal, appropriate and justified and there is no unfair labour practice on the part of the respondent hospital.
13. The whole liability for such staff employed under the PPP by the implementing agency like the respondent hospital is that of the Central Government. The Central Government is hereby directed to review the entire position of the staff working under the PPP and take appropriate decision in that regard. It would be for the Central Government to enquire from the implementing agencies and all the other hospitals whether they can absorb and regularise such staff in their own organisation and that the Central Government should reimburse them only for such additional burden that would be cast on the implementing agencies and the hospitals. The Central Government should take such appropriate decision within a period of three months from today.
14. The writ petition is dismissed against the respondent No. 1 and respondent No. 3. The writ petition is disposed of against the respondent No. 2 with the above directions.
15. All concerned to act on an ordinary copy of this order duly authenticated by the Associate of this Court.