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Sh. Hansraj And Ors vs Employees State Insurance Corporation ... on 25 May, 2021

Author: Prathiba M. Singh

Bench: Prathiba M. Singh

                                                           Signature Not Verified
                                                           Digitally Signed By:DINESH
                                                           SINGH NAYAL
                                                           Signing Date:25.05.2021
                                                           18:18:19


$~6
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+                    W.P.(C) 705/2020
       SH. HANSRAJ AND ORS.                    ..... Petitioners
                     Through: Mr. F.K.Jha, Advocate
                     versus

       EMPLOYEES STATE INSURANCE CORPORATION
       AND ORS.                                         ..... Respondents
                          Through: Mr. Abhik, Advocate for R-1. & 2.
                                      Mr. Nishant Kumar, Advocate for
                                      Respondent No.4/WAPCOS Limited.
                                      (M:8287288224)
       CORAM:
       JUSTICE PRATHIBA M. SINGH
                   ORDER

% 25.05.2021

1. This hearing has been done through video conferencing. CM APPL. 2025/2020 (for exemption)

2. Allowed, subject to all just exceptions. Application is disposed of. WP(C) 705/2020 & CM APPLs. 2026/2020 (for listing the matter before the appropriate bench) & 14037/2021 (for delay)

3. Mr. Nishant Kumar, ld. Counsel appears for M/s WAPCOS and submits that M/s WAPCOS is only a consultancy agency. After seeking instructions, ld. counsel submits that M/s WAPCOS has in turn sub- contracted the employment of contractual employees to one M/s Shri Krishna & Company w.e.f. 15th May, 2021.

4. Ld. counsel submits that at the time when the writ petition was filed, the main company which had obtained the tender from ESIC was M/s UP Rajkiya Nirman Nigam Limited i.e., Respondent No.6, which had further sub-contracted the labour to M/s HST Enterprises i.e. Respondent No.5.

Both these parties were deleted from the array of parties vide order dated 4 th May, 2021 and M/s WAPCOS, which is the new tenderer, was impleaded as Respondent No.4.

5. Considering the submission made today by Mr. Nishant Kumar, ld. Counsel, M/s Shri Krishna & Company, 11/2, UNI Apartment, Sector-11, Vasundhara, Ghaziabad-201012, Uttar Pradesh (E-mail:

[email protected]) is impleaded as Respondent No.5.

6. The case of the Petitioners is that 15 of them have been out of employment since 2019 and despite the writ having been filed in January, 2020, till date there is no positive response from the Respondents.

7. Mr. Abhik, ld. counsel on behalf of ESIC, submits that the ESIC has no objection if the Contractor accommodates and employs the Petitioners.

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?

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.

12. List on 12th August, 2021.

PRATHIBA M. SINGH, J.

MAY 25, 2021 mw/T W.P.(C) 705/2020 Page 3 of 3