Document Fragment View

Matching Fragments

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 :-

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 :--

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.