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Praveen Kumar And Ors vs Employees State Insurance Corporation ... on 1 June, 2021

Author: Prathiba M. Singh

Bench: Prathiba M. Singh

                                                            Signature Not Verified
                                                            Digitally Signed By:DINESH
                                                            SINGH NAYAL
                                                            Signing Date:02.06.2021
                                                            16:02:22


$~5
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+                  W.P.(C) 5691/2021
       PRAVEEN KUMAR AND ORS.                     ..... Petitioners
                   Through: Mr. Upendra Pratap Singh, Advocate.

                           versus

       EMPLOYEES STATE INSURANCE CORPORATION
       AND ORS.                                   ..... Respondents
                      Through: Mr. Nishant Kumar, Advocate for
                               Respondent No.4/M/s WAPCOS Ltd.
       CORAM:
       JUSTICE PRATHIBA M. SINGH
                ORDER

% 01.06.2021

1. This hearing has been done through video conferencing. CM APPL. 17785/2021(for exemption from filing affirm affidavit)

2. This is an application seeking exemption from filing duly attested affidavits. Binding the deponent of the affidavits to the contents of the application, the exemption is granted. However, the physical copy of the attested affidavits be filed in the Registry within two weeks after the physical court functioning resumes. Application is disposed of. CM APPL. 17786/2021 (for exemption from filing court fee)

3. This is an application seeking exemption from filing court fee. Let the same be deposited within one week. Application is disposed of. Registry to submit a report in case the court fee is not filed after a month. WP(C) 5691/2021 & CM APPL. 17784/2021 (for interim relief)

4. The present petition has been filed by 22 contractual employees who were working with the ESIC Hospital and its dispensaries.

5. The case of the Petitioners is that they were employed in the ESIC Hospital through various contractors over the years. Some of the Petitioners are stated to have worked for several years in the said hospital, whereas some of them are stated to have been employed recently i.e., one to two years ago. The Petitioners were lastly employed by HST Enterprises which was awarded the contract for annual repairs and maintenance of the ESI Hospital, Basaidarapur. However, with effect from 16th May, 2021, a new contractor/subcontractor was employed by WAPCOS Ltd. The grievance of the Petitioners is that they have been terminated/removed without any notice.

6. Ld. counsel for the Petitioners submits that though the Petitioners are contractual employees, they are being left with no remedy, inasmuch as approaching the labour court is also proving to be ineffective, as it takes two to three years for the labour court to decide their claims, and for the said period, these workmen are rendered unemployed. It is further submitted that no attempt is being made by the ESIC Hospital or the new Contractor, to retain the old employees who have already been working for several years, and fresh tenders are floated each and every time.

7. Ld. Counsel appearing for the new Contractor- M/s WAPCOS submits that it participated in the tender for 85 employees. According to him, some of the contractual employees were retained, however he wishes to seek instructions in respect thereof.

8. This Court has noticed that repeated cases have been filed against the ESIC Hospital by contractual employees, who are being changed almost on an annual basis. There ought to be a proper policy formulated by ESIC, in respect of such contractual employees, and as to whether these employees W.P.(C) 5691/2021 Page 2 of 4 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:02.06.2021 16:02:22 can be replaced every year or not. This is an issue which ought to be considered by the ESIC at the highest level.

9. Issue notice to the Respondent No. 1 to 3- ESIC, as also Respondent No. 4- M/s WAPCOS Ltd. Mr. Nishant Kumar, ld. Counsel accepts notice for Respondent No. 4- M/s WAPCOS Ltd.

10. A representation has been made by the Petitioners on 24 th May, 2021 seeking intervention of the ESIC, as also the deployment of the Petitioners. Ld. Counsel for the Petitioner submits that ESIC ought to take a decision on this representation.

11. Accordingly, it is directed that the representation dated 24 th May, 2021, being Annexure P-3 to this Writ Petition, be decided by the Regional Director, ESIC within 30 days. The said Regional Director shall also place on record a clear policy document setting out the policy of the ESIC in respect of contractual employees, and the manner in which they are engaged.

12. This Court had also noticed in WP(C) 705/2020 titled Sh. Hansraj and ors. v. Employee State Insurance Corporation and ors., that when tenders are being called for providing contractual employees, the said contractors, who are successful tenderers, have further sub-contracted the procurement of employees and labour. The ESIC ought to also consider as to whether such subcontracting is permissible, as part of its policy.

13. Let the representation of the Petitioners dated 24th May 2021, be considered by the ESIC within 30 days. Let an affidavit setting out the policy, in terms of the directions above, be also placed on record by the ESIC, at least one week before the next date.

14. List on 12th August along with WP(C) 705/2020. On the said date, the issue of maintainability would also be considered by this court.

15. Copy of this order be served by the Registry to the Regional Director, ESIC, DDA Complex cum office, 3rd & 4th Floor, Rajendra Place, Rajendra Bhawan, New Delhi 110 008. Copy be also served on Mr. Yakesh Anand, ld. Counsel for ESIC.

PRATHIBA M. SINGH, J.

JUNE 1, 2021 mw/AK W.P.(C) 5691/2021 Page 4 of 4