Madhya Pradesh High Court
National Health Mission vs Diwaan Singh Arya on 28 April, 2021
Equivalent citations: AIRONLINE 2021 MP 439
Author: Anand Pathak
Bench: Anand Pathak
1 WANos.457/20, 458/20, 459/20, 460/20, 461/20, 462/20, 463/20, 464/20,
465/20, 466/20, 467/20, 468/20, 469/20, 470/20, 471/20, 472/20
THE HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
( JUSTICE SHEEL NAGU & JUSTICE ANAND PATHAK)
Writ Appeal No.457/2020
National Health Mission
Vs.
Ramendra Singh Narwariya & Anr.
&
Writ Appeal No.458/2020
National Health Mission
Vs.
Prem Kumar Shrimali & Anr.
&
Writ Appeal No.459/2020
National Health Mission
Vs.
Puneet Sharma & Anr.
&
Writ Appeal No.460/2020
National Health Mission
Vs.
Sitaram Sharma & Anr.
&
Writ Appeal No.461/2020
National Health Mission
Vs.
Naresh Kumar Verma & Anr.
&
Writ Appeal No.462/2020
National Health Mission
Vs.
Bhupendra Singh Gurjar & Anr.
2 WANos.457/20, 458/20, 459/20, 460/20, 461/20, 462/20, 463/20, 464/20,
465/20, 466/20, 467/20, 468/20, 469/20, 470/20, 471/20, 472/20
&
Writ Appeal No.463/2020
National Health Mission
Vs.
Ravi Kumar Shakya & Anr.
&
Writ Appeal No.464/2020
National Health Mission
Vs.
Khuman Singh Rajput & Anr.
&
Writ Appeal No.465/2020
National Health Mission
Vs.
Sabal Singh Narwariya & Anr.
&
Writ Appeal No.466/2020
National Health Mission
Vs.
Bhanupratap Singh Kushwaha & Anr.
&
Writ Appeal No.467/2020
National Health Mission
Vs.
Keshav Singh Kushwaha & Anr.
&
Writ Appeal No.468/2020
National Health Mission
Vs.
Charan Singh Rajput & Anr.
&
Writ Appeal No.469/2020
National Health Mission
Vs.
Surendra Singh Dhakad & Anr.
&
3 WANos.457/20, 458/20, 459/20, 460/20, 461/20, 462/20, 463/20, 464/20,
465/20, 466/20, 467/20, 468/20, 469/20, 470/20, 471/20, 472/20
Writ Appeal No.470/2020
National Health Mission
Vs.
Rakesh Singh & Anr.
&
Writ Appeal No.471/2020
National Health Mission
Vs.
Diwan Singh Arya & Anr.
&
Writ Appeal No.472/2020
National Health Mission
Vs.
Satyabhan Singh Tomar & Anr.
----------------------------------------------------------------------------------
Shri Sankalp Sharma, learned counsel for the appellant in all the
writ appeals.
Shri Eshan Pandit, learned counsel for respondent No.1.
Ms. Richa Bais, learned counsel for respondent No.2.
----------------------------------------------------------------------------------
ORDER
(Passed on 28th day of April, 2021) Per Justice Anand Pathak, J.
Regard being had to the similitude of controversy, all the writ appeals are heard and decided by this common order.
2. For convenience's sake, facts as narrated in writ appeal No.457/2020 are taken into consideration.
4 WANos.457/20, 458/20, 459/20, 460/20, 461/20, 462/20, 463/20, 464/20, 465/20, 466/20, 467/20, 468/20, 469/20, 470/20, 471/20, 472/20
3. Instant writ appeal is preferred against the order dated 29.11.2019 passed by the learned Writ Court in M.P.No.2677/2018 whereby petition preferred by the appellant as petitioner against the order dated 31.1.2018 passed by the Legal Authority under the Minimum Wages Act (Labour Court No.1, Gwalior) has been dismissed.
4. Appellant/petitioner herein i.e. National Health Mission, is a body created for providing better health services and assistance to the State Authorities to outreach Medical Health Services in each and every part of the State. Under the aegis of appellant, various different programmes are being run through Public Private Partnership, particulars of which are given in the petition. These various programmes/schemes are being run with an agreement with respondent No.2-Zigitsa Health Care Ltd. and it is the said entity which carries out the activities.
5. Respondent No.1 is an employee of respondent No.2 and at the relevant point of time was working as Emergency Medical Technician since 21.10.2016.
5 WANos.457/20, 458/20, 459/20, 460/20, 461/20, 462/20, 463/20, 464/20, 465/20, 466/20, 467/20, 468/20, 469/20, 470/20, 471/20, 472/20
6. It appears from pleadings that respondent No.1/employee worked for 12 hours for a certain period of time and payment was made only for 8 hours, therefore, he preferred an application under Section 20 of the Minimum Wages Act, 1948 (in short "the Act of 1948") before the Court below (Labour Court No.1, Gwalior, as Competent Authority under the Minimum Wages Act) with the allegation that respondent No.2 has not paid him overtime, therefore, payment be made under the Act of 1948. Employee referred the calculation of amount to the tune of Rs.1,02,100/- with ten times penalty. Present appellant was made party as respondent No.2 in the said case wherein appellant preferred reply, whereas present respondent No.2- Zigitza Health Care Ltd did not prefer to file any reply.
7. It was the case of the appellant before the Court below that since no agreement exists between the appellant and respondent No.1, therefore, no employer-employee relationship exists and he is the employee of respondent No.2- Zigitza Health Care Ltd., therefore, present appellant is not responsible for such payment. Responsibility lies over respondent No.2. Appellant referred the 6 WANos.457/20, 458/20, 459/20, 460/20, 461/20, 462/20, 463/20, 464/20, 465/20, 466/20, 467/20, 468/20, 469/20, 470/20, 471/20, 472/20 scheme and Request for Proposal (RFP) executed between the parties and categorically submitted in its reply that responsibility lies over present respondent No.2.
8. Evidence was led in which employee/respondent No.1 appeared in the witness-box and was cross-examined by the present appellant as well as respondent No.2. After considering the rival submissions and evidence on record, Court below passed the impugned order dated 31.1.2018 whereby employee was found to be entitled for payment of overtime to the tune of Rs.1,02,100/- with Rs.10,000/- as penalty. It was observed by the Labour Court that relationship of principal employee appears to exist between respondent No.1 and appellant.
9. Against the said order, appellant preferred writ petition with the submissions that no such employer-employee relationship exists between the two and Court below erred in fastening the liability over the appellant. Learned Writ Court dismissed the writ petition preferred by the appellant, therefore, being aggrieved by the same, appellant/petitioner has preferred this appeal. 7 WANos.457/20, 458/20, 459/20, 460/20, 461/20, 462/20, 463/20, 464/20, 465/20, 466/20, 467/20, 468/20, 469/20, 470/20, 471/20, 472/20
10. Learned counsel appearing for the appellant stressed over the fact that employee was appointed by respondent No.2 and not by the appellant for carrying out operations under National Health Mission like 108 Ambulance, Janni Suraksha Yojna etc. and it is the sweet will of the contractor to depute any employee under its employment for this purpose and being service provider, it was his duty to take care of his employees and indemnify them accordingly, therefore, learned Labour Court and learned Writ Court erred in taking divergent view ignoring the whole gamut of facts.
11. While relying upon clause 2.5 (b) and 2.5(k) of the agreement executed between the appellant and respondent No.2 regarding the responsibilities arising out of the employment offered by respondent No.2 for providing services, it is submitted that responsibility is completely on the shoulders of respondent No.2 and not over present appellant. Under the entire Agreement and RFP which is part of the Agreement, no control or supervision of the services has been taken up by the appellant in any manner; whatsoever. According to him, the case does not fall under the purview of Act of 1948 in the light of judgment in the case of Gursharan Singh 8 WANos.457/20, 458/20, 459/20, 460/20, 461/20, 462/20, 463/20, 464/20, 465/20, 466/20, 467/20, 468/20, 469/20, 470/20, 471/20, 472/20 Brijbhushan Singh Vs. Manager Reewa Transport Services, AIR 1968 MP 10.
12. However, sheet-anchor of the argument of the appellant is absence of employer-employee relationship and he referred the testimony of employee wherein he admitted the fact that no agreement ever executed between him and present appellant nor any supervision conducted by the appellant, therefore, in absence of any such relationship, no liability can be fastened and to augment his arguments, he referred judgment of the Apex Court in the case of International Airport Authority of India Vs. International Air Cargo Workers' Union and Anr., (2009) 13 SCC 374.
13. Learned counsel for the appellant also pressed into service the provisions of Section 21(4) of the Contract Labour Regulation and Abolition Act 1970 to submit that at best (alternatively) appellant is liable for payment of wages to the employee which is due and to be paid by the contractor, but can recover the said amount from the contractor either by deduction from any amount or as debt payable by the contractor, as per agreement/RFP.
9 WANos.457/20, 458/20, 459/20, 460/20, 461/20, 462/20, 463/20, 464/20, 465/20, 466/20, 467/20, 468/20, 469/20, 470/20, 471/20, 472/20
14. On the other hand, learned counsel for respondent No.1 pressed for payment of amount which is to be received by him as overtime. However, he tried to support the impugned order so far as his legitimate rights are concerned.
15. Learned counsel for respondent No.2 also opposed the prayer, but could not dispute the factual position as projected by the appellant. Learned counsel admits the fact that respondent No.1 was under its employment. Counsel for respondent No.2 prayed for dismissal of the writ appeal.
16. Heard learned counsel for the parties at length and perused the documents/record appended thereto.
17. So far as maintainability of these writ appeals is concerned, in view of the Full Bench decision dated 6.7.2017 of this Court rendered in W.A.No.286/2017 (Shailendra Kumar Vs. Divisional Forest Officer and another) and reiteration of the said principle by the Division Bench of this Court vide order dated 29.5.2020 in bunch of writ appeals (WA No.329/2020 M/s. Ziqitza Health Care Ltd. Vs. Rakesh Singh and others), these writ appeals are 10 WANos.457/20, 458/20, 459/20, 460/20, 461/20, 462/20, 463/20, 464/20, 465/20, 466/20, 467/20, 468/20, 469/20, 470/20, 471/20, 472/20 maintainable, and therefore, matters are heard to be decided on merits.
18. It is a case where exact nature of relationship needs to be ascertained between the appellant and respondent No.1.
19. Appellant is National Health Mission and as the name suggests, it is a mission with an aim and by its very implication temporal in nature till the aim is fulfilled. To meet the aims and objects, it has to work in tandem with the State Authorities in extending the reach of medical health services in each and every part of the State. Under the aegis of appellant, different programmes are being run like 108 Ambulance Services, Janni Suraksha Vehicle and Deen Dayal Mobile Hospital etc. and for that appellant works in close relationship with different private bodies under the Public Private Partnership Scheme (PPP Scheme).
20. Under this scheme, an Agreement and RFP is executed between the appellant and private body like respondent No.2-Zigitsa Health Care Ltd. (as service provider) wherein respondent No.2 has to provide certain services by employing different personnel as per the requirement of the job and lump sum payment is being made by 11 WANos.457/20, 458/20, 459/20, 460/20, 461/20, 462/20, 463/20, 464/20, 465/20, 466/20, 467/20, 468/20, 469/20, 470/20, 471/20, 472/20 the appellant/Mission. Agreement between the two and some of its clauses reveal the nature of relationship.
21. For ready reference clauses 1, 2 and 3 are reproduced hereinbelow:-
"1. Now these present witnesses and the parties hereto hereby agree as follows:-
(a) The service provider shall be paid, at the rate and in the manner mentioned below and further clarified in the Standard Operating Procedure to be signed between the parties, towards the monthly operation and maintenance cost of the ambulances:-
i) Basic Life Support Ambulances (BLS): Rs.19.60/- (Rupees: Nineteen & Sixty Paisa Only) (Per KM run)
ii) Advance Life Support Ambulance (ALS): Rs.19.60/- (Rupees: Nineteen & Sixty Paisa Only) (Per KM run)
iii) Mobile Medical Units (MMU): Rs.1,75,000/-
(Rupees One Lakhs & Seventy Five Thousand Only) (Per month per Vehicle)
iv) Janani Express : Rs.16.98/- (Rupees: Sixteen & Ninety Eight Paisa Only) (Rate per KM basis)
v) Health Helpline: Rs.60,000/- (Rupees Sixty Thousand Only) (Per Seat per Month)
(b) In consideration of the payment to be made by the SHSMP, as above, the service provider shall duly implement the project in the manner as agreed on the Request for Proposal (RFP) and Standard Operating Procedure (SOP) developed thereof and shall form part of this agreement.
(c) Following documents/correspondence undertaken between the parties shall also form part of this agreement:
The SHS/Government The Service Provider of Madhya Pradesh I RFP and Corrigendum, 1. Offer acceptance 12 WANos.457/20, 458/20, 459/20, 460/20, 461/20, 462/20, 463/20, 464/20, 465/20, 466/20, 467/20, 468/20, 469/20, 470/20, 471/20, 472/20 if any. letter (vide letter dated
22.8.2016)of M/s.
Ziqitza Health Care Ltd.
II.
Offer letter/Award for
integration issued from
NHM Madhya Pradesh
(vide letter
no./NHM/RT/7953,
dated 17.8.16)
2. Period of Engagement
The service provider shall be engaged initially for a period of five years, from the date of signing of Agreement, which may further be extended by a maximum period of 1 year by the Government, subject to satisfactory performance and on the same terms and conditions of the contract.
3 Consideration
(a) The payment shall be made by the SHSMP only if the service provider shall duly implement the project in the manner aforesaid, observe and keep the said terms and conditions.
(b) The mode of payment shall be as specified below-
(i) Financing of the project shall be on reimbursement basis;
(ii) Payment against Capital investment (towards Sanjeevani Ambulances and Call Center) shall be released within 3 months of submission of valid claims. The Government shall release 100% of the capital cost upon the procurement and commissioning of assets and upon declaration of such capital assets as the properties of the Government.
(iii)The operational cost shall be paid as per the rate mentioned in the clause 1(a) only for those ambulances inducted for service. Claims or/and reimbursements are envisaged on monthly basis and supported by GPS reports or on Odometer reports whichever is lesser. 13 WANos.457/20, 458/20, 459/20, 460/20, 461/20, 462/20, 463/20, 464/20, 465/20, 466/20, 467/20, 468/20, 469/20, 470/20, 471/20, 472/20
(iv) Payments to be released on submission of monthly statement of claims by the service provider." Perusal of the said clauses, indicates that Mission has given the responsibility of performance of services to the service provider and service provider in turn agreed with the Government to implement Madhya Pradesh Emergency Medical Ambulance and Healthcare Services (MPEMAHS) which is in the nature of a Project and for that agreed amount is paid to the service provider, Zigitza Health Care Ltd. (respondent No.2) in the present case.
22. Therefore, by very existence appellant is a Mission and its existence is for the time being or it may come to an end or transform in some different form in future, hence, the concept itself is temporal in nature, therefore, controversy is to be seen from this perspective also beside going into legal aspects of the same.
23. Even otherwise, on perusal of order dated 31.1.2018 passed by the Labour Court/Competent Authority under the Act of 1948, it appears that perversity has been caused by the Labour Court because in its reply and cross-examination appellant took specific stand 14 WANos.457/20, 458/20, 459/20, 460/20, 461/20, 462/20, 463/20, 464/20, 465/20, 466/20, 467/20, 468/20, 469/20, 470/20, 471/20, 472/20 regarding absence of relationship as employer-employee between the two, but same has been ignored by the Labour Court.
24. Annexure P/6 filed by the appellant is cross-examination of the employee and in its para 13 and 14, employee has categorically admitted the fact that he never had any contract with the appellant nor he received any salary from it. He admitted to the extent that his all work related issues including work hours and time were supervised by respondent No.2, therefore, employer-employee relationship as per the Act of 1948 never existed between the two.
25. Even otherwise, in the Act of 1948 concept of Principal Employer or Principal Employee does not exist and definition of employer as per Section 2(e) and employee as per Section 2(i) refers in respect of Scheduled Employment. Since this point has not been raised by either of the parties, therefore, this point has not been dealt with on merits in detail.
26. Apex Court in the case of International Airport Authority of India (supra) has considered this aspect and given guidance as under :-
"20..............For example, if the contract is for supply of labour, necessarily, the labour supplied by the 15 WANos.457/20, 458/20, 459/20, 460/20, 461/20, 462/20, 463/20, 464/20, 465/20, 466/20, 467/20, 468/20, 469/20, 470/20, 471/20, 472/20 contractor will work under the directions, supervision and control of the principal employer but that would not make the worker a direct employee of the principal employer, if the salary is paid by contractor, if the right to regulate employment is with the contractor, and the ultimate supervision and control lies with the contractor. The principal employer only controls and directs the work to be done by a contract labour, when such labour is assigned/allotted/sent to him. But it is the contractor as employer, who chooses whether the worker is to be assigned/allotted to the principal employer or used otherwise. In short worker being the employee of the contractor, the ultimate supervision and control lies with the contractor as he decides where the employee will work and how long he will work and subject to what conditions. Only when the contractor assigns/sends the worker to work under the principal employer, the worker works under the supervision and control of the principal employer but that is secondary control. The primary control is with the contractor. "
Later on, in the case of General Manager, (OSD), Bengal, Nagpur Cotton Mills Rajnandgaon Vs. Bharat Lal and other, (2011) 1 SCC 635, Apex Court clarified the position further by following observation :-
"8. In this case, the Industrial adjudicator has granted relief to the first Respondent in view of its finding that he should be deemed to be a direct employee of the appellant. The question for consideration is whether the said finding was justified. It is now well-settled that if the industrial adjudicator finds that contract between the principal employer and contractor to be sham, nominal or merely a camouflage to deny employment 16 WANos.457/20, 458/20, 459/20, 460/20, 461/20, 462/20, 463/20, 464/20, 465/20, 466/20, 467/20, 468/20, 469/20, 470/20, 471/20, 472/20 benefits to the employee and that there was in fact a direct employment, it can grant relief to the employee by holding that the workman is the direct employee of the principal employer. Two of the well-recognized tests to find out whether the contract labour are the direct employees of the principal employer are (i) whether the principal employer pays the salary instead of the contractor; and (ii) whether the principal employer controls and supervises the work of the employee. In this case, the Industrial Court answered both questions in the affirmative and as a consequence held that first Respondent is a direct employee of the appellant."
27. If two well recognized tests as referred by the Apex Court are applied in the present set of facts, then it is established that neither the National Health Mission as principal employer pays the salary (instead of the contractor) to the employee nor the principal employer controls and supervises the work of employee. It is the discretion of contractor/respondent No.2 to place an employee over a certain assignment or to refer him to any other responsibility other than the work of appellant.
28. In his cross-examination in para 14, employee admitted the fact that prior to this appointment he used to work in some other company which regulated 108 Ambulance services. It means, he works as employee of service provider and governs by relevant service conditions and obviously so, because if Mission completes 17 WANos.457/20, 458/20, 459/20, 460/20, 461/20, 462/20, 463/20, 464/20, 465/20, 466/20, 467/20, 468/20, 469/20, 470/20, 471/20, 472/20 its declared objects and later on wound up or transforms into different entity, then disputes pertaining to status of such employees may not crop up. Nature of appellant-entity as Mission, terms of contract, evidence surfaced on record, makes the case of appellant on better footing.
29. Therefore, on the basis of guidance of the Apex Court and given fact situation, the findings given by the Labour Court and later on affirmed by the Writ Court cannot be countenanced and be given stamp of approval. Therefore, findings of learned Labour Court as well as learned Writ Court stand quashed and it is held that no employer-employee relationship exists between appellant-National Health Mission and respondent No.1-employee and respondent No.1 is the employee of respondent No.2- Zigitza Health Care Pvt. Ltd.
30. Considering the overall fact situation as discussed above, nature of duties as well as aims and objects of the Mission, any observation whereby employee is woven into the employer
-employee relationship with the appellant would cause service related complications in future which has been deprecated by the Apex Court in the case of State of Karnataka and others vs. Uma 18 WANos.457/20, 458/20, 459/20, 460/20, 461/20, 462/20, 463/20, 464/20, 465/20, 466/20, 467/20, 468/20, 469/20, 470/20, 471/20, 472/20 Devi, (2006) 4 SCC 1 because in that condition employee may claim entitlement for absorption, regularization, classification etc. over a post which is neither raised by appellant in its establishment, nor employee entered into it through a proper selection process as approved by law, thus fall under back door entry. Therefore, to avoid future complications, it is imperative that factual position be put into right perspective.
31. However, if the employee i.e. respondent No.1 has worked overtime, then he certainly is entitled for the same and for that clauses 2.5(b) and 2.5(k) and RFP which are part of the impugned agreement are worth consideration which are reproduced herein below:-
"2.5 Service Provider's Responsibilities
(b) Statutory compliance: the Service Provider is responsible for the compliance of the statutory requirement under any law in respect of any asset and operation. The Service Provider shall be held responsible in case of any penalty, loss or other legal consequences arising out of non-compliance and will have to make good at its own cost.
k) Recruit, train and position qualified and suitable personnel for implementation of the project i.e., EMAHS at various levels. The staff so engaged/recruited/appointed by the Service Provider shall be exclusively on the pay rolls of the bidder and shall under no circumstances this staff will ever have 19 WANos.457/20, 458/20, 459/20, 460/20, 461/20, 462/20, 463/20, 464/20, 465/20, 466/20, 467/20, 468/20, 469/20, 470/20, 471/20, 472/20 any claim, whatsoever, for appointment with the Government. The service provider shall be solely responsible for the performance and conduct of the staff notwithstanding the source of hiring such staff.
The service provider shall be fully responsible for adhering to provisions of various laws applicable on them including Labour Laws. In case the Service Provider fails to comply the provisions of applicable laws and thereby any financial or other liability arises on the Government by Court orders or otherwise, the Service Provider shall be fully responsible to compensation/indemnify to the Government for such liabilities. For realization of such damages, Government may even resort to the provisions of any Act, which is in force or other laws as applicable on the occurrence of such situations."
32. Therefore, respondent No.2 is duty bound to pay overtime amount to the employee as mandated by the Labour Court. Alternatively, appellant is directed to pay the amount coming under the head of overtime to the employee within one month from the date of receipt of certified copy of this order and appellant/National Health Mission shall be entitled to recover the said amount from respondent No.2 as per the terms of the agreement/contract and for that respondent No.2 shall comply instead of causing resistance. In any condition, employee shall not suffer for any procedural inertia or technical issue at the instance of appellant or respondent No.2.
20 WANos.457/20, 458/20, 459/20, 460/20, 461/20, 462/20, 463/20, 464/20, 465/20, 466/20, 467/20, 468/20, 469/20, 470/20, 471/20, 472/20 Payment be made within one month from the date of receipt of certified copy of the order.
33. Impugned orders passed by the learned Labour Court as well as learned Writ Court are hereby modified to the extent indicated above and all the writ appeals stand allowed in above terms.
No costs.
(Sheel Nagu) (Anand Pathak)
Judge Judge
ms/-
MADHU
SOODAN
PRASAD
2021.05.03
12:46:12
-07'00'