Batra Hospital Employees Union ... vs The Management Of Batra Hospital ...
2011 Latest Caselaw 1866 Del

                                                             REPORTABLE


*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                         C.M. Nos.1106/2011 & 1281/2011
                                        In
                               WP (C) No.516/2011

                                          Reserved on: March 17, 2011
                                          Date of Decision: March 30, 2011


       BATRA HOSPITAL EMPLOYEES UNION (REGD) ..... Petitioner
                      through Mr. Ashwani K. Sakhuja, Advocate
                      Mr. Prabhakar, Advocate

                       versus


       THE MANAGEMENT OF BATRA HOSPITAL AND MEDICAL
       RESEARCH CENTRE AND ORS                  ..... Respondents
                     through Mr. Arun K. Bhardwaj, Sr. Advocate
                     with Mr. Manish K. Sharma and Mr. Vishal
                     Malhotra, Advocates for respondent No.1.

       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the reporters of local papers may be allowed to see the
       judgment? Yes
2.     To be referred to the reporter or not? Yes
3.     Whether the judgment should be reported in the „Digest‟? Yes

REKHA SHARMA, J.

The petitioner is a registered trade Union. It purports to

represent 329 workers and has raised an industrial dispute on their

behalf which is pending adjudication before an Industrial Tribunal at

Karkardooma Courts. The terms of reference are as under:-

"Whether the employees-employed by M/s Clean and Care Enterprises (Contractor) as per Annexure "A" are entitled to be regularized with M/s. Batra Hospital and Medical Research Centre, and if yes; what directions are necessary in this respect?"

CM. Nos.1106/2011 & 1281/2011 in WP (C) No.516/2011 Page 1 It is not in dispute that an agreement styled as "Agreement of

Service Contract" dated January 01, 2006 was entered into between

respondent No.1, namely, Batra Hospital and Medical Research Centre

of Ch. Aishi Ram Batra Public Charitable Trust (in short, called "Batra

Hospital") of the first part and M/s Clean N Care Enterprises of the

second part, and thereby respondent No.2 was to provide manpower

services to respondent No.1 for efficient, effective and timely patient

care.

What is in dispute is, whether the workmen who were

employed/engaged in giving effect to the aforementioned agreement

are the employees of respondent No.1 or of respondent No.2. It is the

case of the workmen before the Industrial Tribunal that they have been

working in the hospital for the past several years and have been

discharging their duties in the premises of the hospital under the direct

supervision and control of respondent No.1 and that respondent No.2

has been introduced by respondent No.1 as a sham entity in order to

deprive them of the benefits which are enjoyed by the regular

employees of the hospital. It is also their case that their attendance

record is maintained by respondent No.1 and it is respondent No.1

which directly pays wages to them.

On the other hand, relying upon the terms of the "Agreement of

Service Contract" to which I shall advert to a little later, respondent

No.1 has denied any role in the employment/engagement of the

workmen. It says that they are exclusively the employees of

respondent No.2.

The matter is pending before the Tribunal and it has yet to

adjudicate upon the rival submissions of the parties. In the meanwhile,

CM. Nos.1106/2011 & 1281/2011 in WP (C) No.516/2011 Page 2 it so happened, that the aforesaid agreement dated January 01, 2006

which was being renewed annually from time to time, was again

renewed but only for a period of one month vide letter dated

June 29, 2010, i.e. from June 30, 2010 to July 31, 2010. The workmen,

apprehending that with the coming to an end of the contract between

respondent No.1 and respondent No.2 on July 31, 2010, their services

might also come to an end, filed an application before the Industrial

Tribunal dated July 23, 2010 where the issue of regularization of

their services is pending adjudication, praying that respondents No.1

& 2 be restrained from terminating/ceasing or in any way determining

their employment till the pendency of the industrial dispute. The

Industrial Tribunal deferred hearing on the application, as till then, its

powers as an Industrial Tribunal had not been notified. Aggrieved by

the non-disposal of its application, the petitioner filed a writ-petition

which was disposed of by a learned Single Judge of this Court vide

order dated July 30, 2010, the relevant part of which reads as under:

"Considering the overall circumstances of the matter, I am of the view that the prayer made by the petitioner is quite reasonable. I, therefore, direct that the status quo be maintained by the respondent and no coercive action shall be taken against the employment of the workmen till the application filed by the petitioner is decided by the Presiding Officer after the notification of his powers at an early date. The writ petition as well as CM are accordingly disposed of."

The aforesaid order was affirmed by a Division Bench of this

Court on August 31, 2010.

It was on January 24, 2011 that the Industrial Tribunal decided

the aforesaid application of the petitioner but it declined the prayer on

CM. Nos.1106/2011 & 1281/2011 in WP (C) No.516/2011 Page 3 the ground that the interim relief praying for status-quo with regard to

the employment of the workmen is not incidental to the main relief

whereby they are praying for their regularization with respondent No.1.

Once again, feeling aggrieved from the order of the Tribunal, the

petitioner has approached this Court by way of the present

writ-petition and has also moved an application praying for an interim

order injuncting respondent No.2 from removing/terminating the

services of workmen and directing respondents No.1 & 2 to

maintain status-quo in respect of their employment. This Court on

January 27, 2011, after hearing learned counsel for the petitioner

issued notice to the respondents both in the writ-petition as well as in

the interim application, and in the meanwhile, having regard to the

fact that the workmen have been enjoying the interim protection by

virtue of the order of this Court first passed by the Single Judge and

then by the Division Bench, directed that status-quo in respect of their

employment be maintained till the next date. After the service of

notice upon the respondents, respondent No.1 filed an application

praying for recall of the order of status-quo passed in relation to

respondent No.1 or to clarify that the order of status-quo pertains only

to respondent No.2 and not respondent No.1. It is this application of

respondent No.1 and the application of the petitioner on which

ex-parte interim order was passed directing the respondents to

maintain status-quo, which are the subject matter of the present order.

The workmen have contended before me that they are working

in the hospital not from January 01, 2006 but much prior thereto and

that while the contractors keep changing, they have continued to

work in the hospital. As per them, they are doing jobs of perennial

CM. Nos.1106/2011 & 1281/2011 in WP (C) No.516/2011 Page 4 nature and that the entering of a contract by respondent No.1 with

respondent No.2 or with any other contractor is only a cloak to keep

them on tenterhooks and to deprive them of the status and benefits

which regular employees of the hospital enjoy. They contend that the

termination of their services while the issue of regularization is pending

before the Industrial Tribunal is a matter incidental to regularization

and that the order of the Tribunal in holding that the relief of

status-quo sought in the interim application is not incidental to the

main relief, is erroneous. It is also their grievance that despite the

order of status-quo passed by this Court, the Management is not

letting many of the workers enter the hospital and it is putting all kinds

of impediments in their way to defeat the order.

As against the case set-up by the petitioner, it is contended by

respondent No.1 that the relief of status-quo sought by the workmen is

wholly misconceived, as at no point of time, they were employed by it.

As per respondent No.1, it has outsourced the work of providing

efficient, effective and timely patient care and for this purpose, private

contractors are engaged on annual basis and it is the contractors who

arrange the manpower for doing the job. To make good the

submission that the workmen are exclusively the employees of the

contractor, following clauses of the "Agreement of Service Contract"

dated January 01, 2006 have been referred to and relied upon:-

"x x x x x x x

4. That the personnel deputed by the contractor shall be deputed after police verification and screened by General Manager (HRD)/Addl. General Manager of the Hospital who shall have right to reject any such person without assigning any reason and all such persons employed by the contractor shall wear

CM. Nos.1106/2011 & 1281/2011 in WP (C) No.516/2011 Page 5 proper and presentable uniform duly approved by General Manager (HRD)/Addl. General Manager of the Hospital. Such uniforms shall be provided by party of the second part at its own cost. Such employees of the contractor shall not at any time waste, spoil, damage, embezzle, lend, spend or take away property of the Hospital.

5. That the party of the second part shall be absolutely responsible for any damage or loss caused because of any act of omission or commission on the part of personnel of the contractor. The contractor shall compensate the party of the first part if it is found that the loss has been caused due to negligence/fault of contractor or his employees.

6. That the contractor shall furnish documentary evidence relating to ESI and P.F.

No.(s) of all such personnel employed by him, within 30 day of the signing of the contract or of employment in case of future employees.

7. That the persons engaged/arranged/ employed by the contractor for rendering of services shall be exclusively his employees and shall in no case be deemed to be employees of the Hospital.

8. That the contractor shall make necessary arrangement in case some member of his staff does not turn-up for duty and should ensure that there are minimum 223 Contract Workers deployed at the Hospital per day.

9. That the contractor alone shall be liable to supervise, control and manage all persons engaged/arranged as aforesaid, either by himself or through his representative(s).

10. That the contractor shall be solely responsible for the Wages and other claims in respect of the persons engaged/arranged by him.

11. That the contractor shall be responsible for liability to all or any of the persons so engaged/arranged by him under any legislation and also for any misconduct, negligence or other culpable act on their part.

CM. Nos.1106/2011 & 1281/2011 in
WP (C) No.516/2011                                                   Page 6
                12.     x       x          x       x     x

               13.     x       x          x       x     x

               14. If any Labour Laws are applicable to the

contractor in respect of the workers engaged/ arranged by him, then the Hospital will not be liable for the same and it will be sole responsibility of the contractor to comply with the statutory requirements as applicable.

               15.     x       x          x       x     x

               16.     x       x          x       x     x

17. That the contractor shall be responsible for the general conduct and discipline of his staff."

The claim of the workmen that they are the employees of

respondent No.1 and not of respondent No.2, is also sought to be

refuted by the learned Senior counsel for respondent No.1 with

reference to the documents which respondent No.1 has filed before the

Industrial Tribunal along with its reply to the claim petition of the

workmen. One set of those documents has been placed on the

record of this Court as well. One of the documents, to which reference

has been made, is the licence obtained by respondent No.2 from the

Government of National Capital Territory of Delhi to engage contract

labour under Section 12(1) of the Contract Labour (Regulation and

Abolition) Act, 1970 for doing the work of maintenance and

house-keeping in the establishment of respondent No.1. On the

strength of this document read along with the aforementioned clauses

of "Agreement of Service Contract", it is contended that it was not for

nothing that respondent No.2 had obtained the licence to hire contract

labour. Reliance is also placed upon monthly bills raised by

respondent No.2 upon respondent No.1 between the period

CM. Nos.1106/2011 & 1281/2011 in WP (C) No.516/2011 Page 7 January, 2010 to July, 2010. The amounts claimed through these bills

were to the tune of ` 13,39,111/-, ` 16,96,335/-, ` 17,07,082/-,

` 23,61,627/-, ` 23,50,090/-, ` 23,72,479/- and ` 22,69,705/-. The bills

indicate the number of workers that were engaged in each of these

months, their duty hours and the consolidated monthly salary that was

paid to them. The bills also indicate that in none of these months, the

maximum number of workmen employed exceeded more than 281.

Respondent No.1 has also placed on record the attendance register to

show that it was being maintained by respondent No.2 and the salary

record of the workmen which, too, was being maintained by

respondent No.2 and which carried details, such as, number of days for

which a workman had worked in a month and the amount of salary

that was paid to him after deductions against his signatures. On the

basis of these documents, respondent No.1 tried to refute the claim of

the workmen that they were being paid their salary by the

Management of the hospital, or that their attendance was being

marked by the Management. The learned Senior counsel for

respondent No.1 has also called into question the bonafides of the

petitioner in espousing the cause of the workmen. It is alleged that the

petitioner is indulging in proxy litigation for respondent No.2/contractor

who is aggrieved by the non-renewal of his contract by respondent

No.1. It is further alleged that the petitioner is not representing 329

workers as claimed by it, in as much as, 109 workers were never

reporting for duty for the last one year, while the names of 22 workers

have been shown twice in the list of workmen and that only 24 workers

reported for duty after the orders were passed by this Court. It is also

the case of respondent No.1 that a contract dated January 27, 2011

CM. Nos.1106/2011 & 1281/2011 in WP (C) No.516/2011 Page 8 has been entered into with a contractor, namely, M/s Accord Placement

Services and that with the coming into effect of the fresh contract,

there is no scope for the workmen of the erstwhile contractor to

continue working in the hospital, as the new contractor has engaged

its own labour.

It is also contended by the learned Senior counsel for respondent

No.1 that an Industrial Tribunal does not possess the power to grant

interim reliefs and in support, reliance has been placed upon a

judgment of this Court rendered in the case of Airport Authority of India

versus Pyare Lal & others, reported in MANU/DE/3838/2006. In the said

case, the workmen were seeking regularization of their services with

the Airport Authority from the date of joining which dispute was

referred to Central Government Industrial Tribunal and pending the

dispute, the workmen had sought interim relief restraining the Airport

Authority from removing them from their services. The Tribunal had

granted them the order of status-quo but this Court after considering

several judgments of various Courts reversed the same and held that,

"the consistent judicial view is that although an Industrial

Tribunal/Labour Court can, in certain situations, pass an interim award,

it has no jurisdiction to pass an order of injunction of the nature which

a Civil Court can pass under provisions of Order 39 of the Code of Civil

Procedure." It was further held that, "the interim injunction granted by

the CGIT virtually granted the final relief to the workmen inasmuch as

the workmen had been secured in the service of Airport Authority

despite its plea that it was not at all the employer of the said

workmen." This judgment was followed by another Single Judge of this

Court in the case of Oil And Natural Gas Corporation Ltd. Versus

CM. Nos.1106/2011 & 1281/2011 in WP (C) No.516/2011 Page 9 Santosh Kumar Sharma & Ors., CM(M) No.815/2007, dated

February 16, 2010. The learned Judge relying upon the case of Airport

Authority of India (supra) held that the Industrial Tribunal has no power

to grant interim injunction and also noted that the question, whether

the Industrial Tribunal has the power to grant interim injunction, is

pending adjudication before the Supreme Court of India. In this view

of the matter, the learned Judge extended the interim protection

restraining the Management from terminating or discharging the

services of the workmen by three months, on the ground that they

were enjoying the same since the year 1997 and would in all likelihood

prefer to agitate the matter further before the Supreme Court in

appeal.

As against the judgments relied upon by the learned Senior

counsel for respondent No.1, learned counsel for the petitioner

referred to a judgment of the Bombay High Court in the case of

Mukand Ltd. versus Its Workmen, (represented by Sarva Shramik

Sangh), Thane & Ors., reported in 2004 LLR 674, wherein relief of

interim injunction was granted relying upon a judgment of the

Apex Court in the case of Steel Authority of India Ltd. versus National

Union Waterfront Workers & Ors., reported in 2001 LLR 961 (SC). The

counsel for the petitioner also placed reliance upon judgment of the

Apex Court in the case of Harjinder Singh versus Punjab State

Warehousing Corporation, reported in 2010(1) SCR 591; Secretary,

Haryana State Electricity Board versus Suresh & Others etc. etc. ,

reported in 1999 LLR 433, and Rajender Singh versus Delhi Transport

Corporation and another, reported in 2002 LLR 940.

CM. Nos.1106/2011 & 1281/2011 in WP (C) No.516/2011 Page 10 For what has been noticed above, two questions emerge for

consideration. One, whether the relief of status-quo prayed for by the

workmen vis-à-vis their employment is incidental to the main relief of

regularization which is pending before the Tribunal, and second,

whether the Tribunal possesses the power of granting interim

injunction pending disposal of the reference before it.

The question, whether the workmen are entitled to be

regularized by respondent No.1 is inextricably linked with the question,

whether they are the employees of the hospital or were employed by

the contractor. The two issues cannot be delinked. The Industrial

Tribunal in order to determine, whether the workmen are entitled to

regularization of their services with the Management, will have to first

give a finding, whether they were the employees of the Management

or of the contractor. If on the basis of the evidence led before the

Tribunal, it comes to the conclusion that they were the employees of

the contractor, then obviously they would not be entitled to

regularization with the Management. If, on the other hand, it comes to

the conclusion that their employment with the contractor was only a

camouflage and that they were, in effect, and, for all intents and

purposes, the employees of the Management, then not only will they

be entitled to regularization but as a consequence of such finding, their

termination, if it is linked with the cessation of contract with the

contractor, will also go. But in either case, the Tribunal will be, in no

position, to adjudicate upon the disputes without recording evidence

and without appreciating the material on record on merits. In this view

of the matter, I feel, had the Tribunal passed an interim order in favour

of the workmen granting them interim protection against termination,

CM. Nos.1106/2011 & 1281/2011 in WP (C) No.516/2011 Page 11 it would have tantamounted to granting them the main relief itself.

Hence, I hold that its refusal to grant any such relief cannot be faulted.

On the question, whether the Tribunal has the power to grant

interim injunction, I would rather go by the two judgments of this Court

in the case of Oil And Natural Gas Corporation Ltd. (supra) and Airport

Authority of India (supra) whereby it has been held that the Tribunal

enjoys no such power, than by the judgment of the Bombay High Court

in the case of Mukand Ltd. (supra). In any case, since the issue is

pending before the Apex Court, it will be prudent to await the final

verdict of the Apex Court. As regards the other judgments relied upon

by the learned counsel for the petitioner, those are judgments where

the question of granting interim protection was not directly an issue.

Hence, at the present stage of the proceedings, those judgments are

not relevant.

It has been brought to my notice by the learned counsel for the

petitioner that the decision of this Court in the case of Oil And Natural

Gas Corporation Ltd. (supra) has been taken in appeal to the Supreme

Court by way of a Special Leave to Appeal being Civil No.14547/2010

and the Supreme Court by its order dated May 14, 2010 had extended

the interim protection granted to the workmen by the High Court till

the next date of hearing. However, the counsel was not able to tell

me, whether the interim protection is still continuing. Nonetheless,

having regard to the fact that the workmen in the present case also

have been enjoying interim protection since July 30, 2010 and as the

issue of power of Industrial Tribunal to grant interim injunction is

pending before the Supreme Court, I deem it proper to extend the

interim protection hitherto being enjoyed by them for a further period

CM. Nos.1106/2011 & 1281/2011 in WP (C) No.516/2011 Page 12 of one month in order to enable the workmen to prefer an appeal

before the Supreme Court, in case they are so advised.

In view of the above, the application of the petitioner for interim

injunction is dismissed and that of respondent No.1 is allowed, but

subject to the condition that respondent No.1 shall maintain status-quo

in respect of the employment of the workmen for a period of one

month from the date of this order.

REKHA SHARMA, J.

MARCH 30, 2011
ka




CM. Nos.1106/2011 & 1281/2011 in
WP (C) No.516/2011                                                  Page 13