Delhi High Court
North Delhi Municipal Corporation vs Workmen Working As Malies In ... on 22 February, 2019
Equivalent citations: AIRONLINE 2019 DEL 2401
Author: G.S.Sistani
Bench: G.S. Sistani, Sangita Dhingra Sehgal
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 22nd February, 2019
+ LPA. 109/2017
NORTH DELHI MUNICIPAL CORPORATION ..... Appellant
Through Mr. H.S. Phoolka, Sr. Advocate with
Ms. Mini Pushkarna, Standing
Counsel, Ms. Swagata Bhuyan, Ms.
Shiva Pandey, Advocates.
Dr. Ashoka Kumar, CMO, HQ North
DMC.
versus
WORKMEN WORKING AS MALIES IN HORTICULTURE
DEPTT. MCD ..... Respondent
Through Mr. Sanjay Ghose, Ms. Meghna-De &
Mr. Sachin Kumar, Advocates.
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S. SISTANI, J. (ORAL)
1. Appellant/NDMC has filed the present appeal with a prayer to set aside the judgment dated 25.09.2014 passed by a learned Single Judge of this Court in a writ petition being W.P. (C) 5034/2011 filed by the respondent wherein challenge was laid to the award dated 23.04.2009 passed by the Industrial Adjudicator wherein directions were issued entitling the petitioners to Hospital Patient Care Allowance (in short 'HPCA') with a retrospective effect i.e., from the date the petitioners are posted/working in the hospital under the control of the Municipal Corporation of Delhi (MCD) alongwith all the arrears and consequential benefits.
LPA.109/2017 Page 1 of 112. A reference was made before the Tribunal whether the workmen who were working as Malis at RBTB Hospital, Hindu Rao Hospital, ID Hospital and other hospitals under the control of MCD are entitled to receive the Patient Care Allowance (PCA).
3. The case set up by the respondent before the Tribunal was that they were working as Malis for several years and posted at different hospitals. They all were maintaining parks and lounges of the hospitals and were dealing with patients suffering from infectious disease like Tuberculosis etc. It was also averred that workmen during the course of their duties get involved in a risk with patients of various infected diseases. Thus, they are entitled to HPCA in terms of the office order dated 29.09.1999 issued by the Administrative Officer (Health) of the MCD, which relief had been declined to the workmen despite repeated requests and reminders.
4. Reliance was placed on a memorandum dated 25.01.1988 and circular dated 17.02.1989 issued by Health Department, MCD whereby the Standing Committee vide resolution no.1641 dated 11.01.1989 passed in item 1316 granted HPCA to group 'C' & 'D' (Non-Ministerial) Hospital Employees. Reliance has also been placed on a letter bearing no.F.33/Health/6989/C&C dated 26.12.1988. Paras 8 and 9 of the judgment dated 25.09.2014, which deal with this letter, read as under :
"8. Moreover, Commissioner's letter No.F.33/Health/6989/C&C dated 26.12.1988 (mentioned in aforesaid Resolution) records that the Ministry of Health & Family Welfare vide their memorandum No. Z. 28015/68/87 -H dated 25.01.1988 has granted HPCA to Group 'C' and 'D' (NonMinisterial) Hospital Employees including Drivers of Ambulance Cars at the rate of Rs.80/- and Rs.75/- per month respectively w.e.f.LPA.109/2017 Page 2 of 11
01.12.1987, subject to the condition that no 'Night Weightage Allowance', if sanctioned, will be admissible to these employees working in the Central Government Hospitals and Hospitals under the Delhi Administration.
9. A clarification was sought from LNJP Hospital as MCD federally follows Delhi Administration pattern, who have also confirmed payment of aforementioned allowance w.e.f. 01.12.1987 except Nursing Staff, Ministerial Staff, i.e., A.I./UDC/LDC/Stenographer."
5. Learned Tribunal had framed the following issues :
"1. Whether the dispute has been espoused by the union? If not, its effect.
2. Whether the workmen who are working as Mali at RBTB Hospital, Hindu Rao Hospital, ID Hospital and other hospitals under the control of MCD are entitled to get the Patient Care Allowance and if so, from which date and what directions are necessary in this respect?
6. Issue no.2 which is the relevant issue was decided against the employees in the following terms :
"10. Issue No.2:- This issue is comprised of the terms of reference as reproduced in para No.1 of this award. The onus of proof of this issue was on the workmen. The claim of workmen is that they are entitled to Hospital Patients Care Allowance (HPCA) in terms of Office Order dated 29.9.1999 issued by AO (Health), because they are working as Malies for several years in various hospitals of MCD like RBTB, Hindu Rao etc. and are involved a risk of involvement with various infectious diseases, while working in parks and lounges. The WW1 Shri Chander Pal has deposed in his affidavit Ex. WW1/A. Ex. WW1/2 is the copy of office order dated 29.9.1999. On the perusal of the same revealed that a sanction was accorded for enhancement of HPCA and PCA of employees of MCD of categories 'C' and 'D' working in the Health Department as non-ministerial staff. This is pertaining to employees who are working in LPA.109/2017 Page 3 of 11 Health Department. There is no mention of Malies or any other employee of Horticultural Department. MW1/1 is copy of Office Order dated 12.2.1993, another such order. This is also pertaining to Hospital employees and other medical institutions under MCD for enhancement of HPCA/PCA but the same is subject to conditions that no night weightage Allowance and Risk Allowance shall be admissible. No where Malies is mentioned in this order. Thus these both orders do not pertain to the Malies working in various Hospitals of MCD. Ex. WW1/4 is copy of award dated 11.11.2002 in ID No.69/1995. In this award Malies/Coolies working in Hospitals of MCD were held entitled to Risk Allowance. In his cross examination WW1 stated that he goes in wards where flower pots are kept. He admitted that his other counterparts working in hospital are getting risk allowance from Management. Similar is the testimony of WW2 and WW3. The WW4 admitted that HPCA is given to the workmen who is directly attached to the patient in the Hospital. The MW1 Shri Rajender Prakash deposed on the lines of case of Management and proved Office Order dated 12.2.1993 Ex. MW1/1 pertaining to employees working in Hospital of group 'C' and 'D' ministerial and non-ministerial other than nursing staff. Ex. MW1/1 has been already discussed herein before. Ex. MW1/W1 is copy of salary certificate of Shri Mahender Singh working in Malaria Department, receiving PCA. He is related to Health Department. MW1 admitted that Malies are maintaining parks and lounges in Hospitals. He admitted that the patients suffering from infectious diseases like TB etc. are admitted in hospitals. Those patients may be sitting in the parks, if their health allows. He also admitted that Maleria Beldars come under Health-Department. He is not aware if HPCA is given to employees of Electrical Department. He admitted that Ex. WW1/1 and WW1/2 do not contain words "HPCA shall be given to those employees who are directly in touch with patients." He categorically denied that Malies posted in Hospital and dispensary are entitled to HPCA. From LPA.109/2017 Page 4 of 11 the entire cross examination of MW1 nothing could be extracted that Malies are entitled to HPCA. I have thoroughly considered the entire evidence adduced on behalf of parties, but nothing has come to show that Malies could be granted HPCA/PCA when working in MCD hospitals and other medical institutions. Malies who are working in MCD hospitals and other institutions are paid Risk Allowance. In case it is presumed that these workmen Malies are entitled to HPA then they will have to forego their Risk Allowance. There is nothing in evidence that Malies are taking care of patients as hospital employees take. Even though Malies are maintaining gardens, parks, lounges and placing flower pots, but they are not entitled to HPCA/PCA when for that purpose they get Risk Allowance. Malies come under Horticulture Department not under health Department. Malies were not taken in to account when resolution was passed for HPCA and PCA for group C & D employees working in Hospitals, regarding financial implications. Even nursing staff was excluded. Therefore Malies are not entitled to HPCA/PCA. This issues is accordingly answered in favour of Management and against the workmen."
7. The order of the Tribunal was assailed by the workmen. The workmen succeeded before the learned Single Judge.
8. Mr. Phoolka, learned Senior Counsel appearing for the appellant submits that three Division Benches of this Court have taken a consistent view that only those who are in continuation contact with the patients or as a routine are in contact with the patients would be entitled to be HPCA. Mr. Phoolka has placed reliance on a decision rendered by this Court in W.P. (C) 2965/2010 titled Shamshuddin & others Vs. Union of India and others, reported at 2011 SCC OnLine Del 1215, the matter pertaining to cooks employed with the BSF. One LPA.109/2017 Page 5 of 11 of the petitioners in the said writ petition was employed as a Safai Karamchari. All the three petitioners had claimed entitlement to receive HPCA. Paras 5, 6, 7 & 8 read as under :
"5. Suffice would it be to state that the very preamble i.e. the opening paragraph of the circular makes it clear that Hospital Patient Care Allowance has to be paid to Group C & D (Non-Ministerial) employees working in hospitals, dispensaries and organizations. Prima facie, the word „organizations‟ must take colour from the preceding two words i.e. „hospitals‟ and „dispensaries‟. Thus, it would be those organizations of BSF where medical treatment is given, for example an M.I. Room.
6. That apart , the policy under caption (iii) makes it clear that only those Group C & D (Non-Ministerial) employees would be paid the allowance whose duties involve continuous and routine contact with patients infected with communicable diseases or those who have to routinely handle, as their primary duty, infected materials which can spread infection.
7. This explains the logic of the Division Bench‟s decision relied upon in direction Kahars i.e. Watermen to be paid the allowance for the reason in BSF Kahars not only fetch water but even wash utensils. They wash utensils, if attached to hospitals, in which patient eat food. This also explains why Safai Karamcharis in hospitals are receiving the allowance. They clean the floors of the various wards. They clean toilets attached to the wards. They come into contact with patients.
8. As regards cooks, they simply cook food in the kitchen and do no duty which makes them in contact with patients."
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 LPA.109/2017 Page 6 of 11 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.
"1. Eligibility of HPCA The HPCA is admissible to Group C and D Ministerial employees excluding nursing personnel @ Rs.700/- p.m. and Rs.65/- p.m. respectively working in General Hospital and in Super Speciality Hospital subject to the condition that no Night Weightage Allowance and Risk Allowance if sanctioned by the Central Govt. will be admissible to these employees.
2. Eligibility for PCA The PCA is admissible to the Group C and D employees excluding nursing personnel @ Rs.690/- p.m. if sanctioned by the central Govt. will be admissible to these employees this ministry order no.Z8015/25/98 dt 28.9.1968.
3. The conditions which an organization must satisfy before its employees can be considered for grant of HPCA.
Only persons whose regular duties involve continuous and routine contact with patients infected with communicable disease or those who have to routinely handle, as their primary duty, infected materials, instruments and equipments which can spread infection LPA.109/2017 Page 7 of 11 as their primary duty may be considered for grant of HPCA.
(emphasis added) It is further clarified that HPCA shall not be allowed to any of those categories of employees whose contact with patients or exposure to infected materials is of an occasional nature.
4. The conditions which an organization must satisfy before its employees can be considered for grant of PCA.
Only persons whose regular duties involve continuous and routine contact with patients infected with communicable disease or those who have to routinely handle, as their primary duty, infected materials, instruments and equipments which can spread infection as their primary duty working in health care delivery institutions other than hospital may be considered for PCA shall not be allowed to any group C and D employees whose contact with patients or exposure to infected materials of occasional nature."
(emphasis added)
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 LPA.109/2017 Page 8 of 11 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.
11. Per contra, Mr. Sanjay Ghose, learned counsel appearing for the respondent submits that the judgments sought to be relied upon by Mr. Phoolka would not be applicable to the facts of the present case as the said judgments arises out of proceedings initiated before the Central Administrative Tribunal and do not arise out of an industrial dispute where the scope is far greater and the powers are wider to grant appropriate relief to the workmen. He further submits that circulars and awards rendered by the Tribunal, copies of which, have been placed on record have allowed relief to group C & D workers, who are similarly placed as Malis and thus, he submits that there is no infirmity in the view taken by learned Single Judge and prays that the appeal may be dismissed.
12. Mr. Ghose has also relied on a circular dated 12.02.1993 to show that there has been a consistent shift in the stand of the appellant making the rule wider and extended to more persons and thus, it would be unfair to deny the relief to the Malis who also come in contact with the patients as such persons sit in public parks and thus the relief ought to be granted to them. It is contended that in one of the awards filed on record, the relief was granted to persons working in the electronic division and thus the Malis can be equated with the electricians.
LPA.109/2017 Page 9 of 1113. 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 :
"3. The conditions which an organization must satisfy before its employees can be considered for grant of HPCA. Only persons whose regular duties involve continuous and routine contact with patients infected with communicable disease or those who have to routinely handle, as their primary duty, infected materials, instruments and equipments which can spread infection as their primary duty may be considered for grant of HPCA. It is further clarified that HPCA shall not be allowed to any of those categories of employees whose contact with patients or exposure to infected materials is of an occasional nature."
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 LPA.109/2017 Page 10 of 11 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.
15. For the reasons stated above, we set aside the order dated 25.09.2014 passed by learned Single Judge allowing the appeal in terms of the conclusion rendered by the Tribunal. No cost.
16. As fairly agreed, we make it clear that no recovery would be made from those workmen, who are actually working in the hospitals. However, concession will not be applicable to those, who are not working in the hospital but are working as Malis in other places. CM APPLs 5572-73/2017 & 21550/2017
17. In view of the order passed in the appeal, the applications stand disposed of.
G.S.SISTANI, J.
SANGITA DHINGRA SEHGAL, J.
FEBRUARY 22, 2019/ck LPA.109/2017 Page 11 of 11