THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Extra Ordinary Jurisdiction)
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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W.P. (C) No.18 of 2021
Ms. Reena Kumari,
Aged about 36 years,
D/o Shri R.D. Lall,
R/o Bahai's School Road,
Tadong, East Sikkim.
..... Petitioner
Versus
1. The Secretary,
Ministry of AYUSH,
Government of India,
Ministry of AYUSH Bhawan,
B-Block, GPO Complex, INA,
New Delhi- 110 023.
2. Regional Ayurveda Research Institute,
Through it's Director/In charge,
Tadong, Gangtok, East Sikkim-737102.
3. M/s Third Eye Security Guarding (P) Ltd.,
B/E5 Rajarhat Road Jyangra,
P/o Deshbhandhu Nagar,
P/s Rajarhat, Kolkatta,
West Bengal-700059. .....Respondents
Application under Article 226 of the Constitution of India.
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Appearance:
Mr. Jorgay Namka, Senior Advocate with Mr. Simeon
Subba and Ms. Adeshna Subba, Advocates for the
Petitioner.
Ms. Sangita Pradhan, Deputy Solicitor General of India
assisted by Ms. Natasha Pradhan, Advocate for
Respondent Nos. 1 and 2.
Mr. Bhusan Nepal, Advocate for Respondent No.3.
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Date of hearing : 24.02.2023
Date of Judgment : 03.03.2023
JUDGMENT
Bhaskar Raj Pradhan, J.
1. Ms. Reena Kumari an outsourced Office Assistant
(Hindi) engaged by the Regional Ayurveda Research 2 W.P. (C) No. 18 of 2021 Ms. Reena Kumari vs. The Secretary Ministry of Ayush & Ors.
Institute (respondent no.2) has preferred this writ petition.
The first respondent is the Secretary, Ministry of AYUSH
Government of India. The M/s Third Eye Security Guarding
(P) Limited having its office in Kolkata, West Bengal, who
had contracted with the respondent no.2 to deploy
manpower to them, is the respondent no.3.
2. The petitioner challenges Office Order dated
30.04.2020 (impugned office order) terminating the
engagement of the petitioner issued by respondent no.2
and communication dated 29.05.2020 (impugned
communication) issued by respondent no.3 informing the
petitioner that her association with the respondent no.3 is
temporarily discontinued due to the expiry of the
contractual terms between respondent nos.2 and 3. By this
impugned communication the petitioner was also informed
that her future association with respondent no.3 was
subject to finalization of a new valid agreement. The
petitioner seeks an alternative prayer of modification of the
two communications issued by respondent nos. 2 and 3.
3. According to the petitioner, who holds a degree in
Commerce, she went through a process of selection
undertaken by respondent no.2 and was appointed as
Office Assistant (Hindi). She reported for duty and started
working on and from 01.05.2017. She was later handed
over a slip issued by respondent no. 3 which was back 3 W.P. (C) No. 18 of 2021 Ms. Reena Kumari vs. The Secretary Ministry of Ayush & Ors.
dated to 01.05.2017. This document is a posting order
dated 01.05.2017 issued by respondent no.3 to the
petitioner. It reflects her date of joining as 01.05.2017 and
it directs her to report to the Assistant Director In-charge.
According to the petitioner it was much later that she
learnt she and the majority of her colleagues were
outsourced although the post she was working in was a
permanent post and that she was also performing work
which was permanent in nature. It is her case that during
the period when India suffered COVID-19 pandemic the
Ministry of Labour & Employment, Government of India
issued an advisory dated 20.03.2020 to all Employer's
Association. The advisory was to the effect that all
Public/Private Establishments may not terminate their
employees, particularly casual or contractual workers from
job or reduce their wages to mitigate the hardship that may
be caused due to the pandemic. It is the case of the
petitioner that throughout the pandemic she continued to
do her work as an employee of respondent nos.1 and 2. The
petitioner's grievance is that in spite of the aforesaid she
was terminated vide impugned office order by the
respondent no. 2. It is her case that she reported for duty
even thereafter but was not allowed to enter her work place
on the ground that her contract had ended on 30.04.2020.
The petitioner therefore, sent a protest letter dated 4 W.P. (C) No. 18 of 2021 Ms. Reena Kumari vs. The Secretary Ministry of Ayush & Ors.
07.05.2020 but in spite of its receipt no corrective action
was taken. Instead the impugned communication was
issued by the respondent no.3. The petitioner thereafter,
wrote a letter dated 03.06.2020 to the respondent no.3 with
a copy to the respondent nos.1 and 2 which were followed
by a legal notice dated 15.06.2020 and when no action was
taken by the respondents the present writ petition was
preferred before this court.
4. In the counter-affidavit filed by the respondent nos. 1
and 2 it is submitted that they engage staff from
outsourcing agency for functional requirement. That the
staff continues to work with them as per nomination and
their renewal by the service provider. That the petitioner
was engaged by the respondent no.3 as their outsourcing
agency for posting with respondent no.2 and therefore, she
was an employee of respondent no.3. That the contractual
service of the petitioner was not renewed by the respondent
no.3 and the respondent nos.1 and 2 are not concerned
with it. That service contract is renewed every year and the
respondent no.3 is appraised of the guidelines of
respondent no.1 and the terms and conditions. The
respondent nos. 1 and 2 dispute that the petitioner was
selected or appointed by them as claimed. To substantiate
their claim the respondent nos. 1 and 2 has filed the
monthly master sheet of the year 2017 for the month of 5 W.P. (C) No. 18 of 2021 Ms. Reena Kumari vs. The Secretary Ministry of Ayush & Ors.
May of the respondent no.3 in which the name of the
petitioner features. This reflects the petitioner's attendance
for the month of May kept by respondent no.3. The next
document relied upon is again an invoice raised by the
respondent no.3 on the respondent no.2. In the list of
service rendered there is a mention of the post of the
petitioner. The third document is an office order for the
year 2017-18 issued by the respondent no.2 which reflects
that sanction was accorded under a particular budget head
for payment of the invoice for May, 2017 in favour of the
respondent no.3. Yet another document is dated
25.11.2020 which reflects that the respondent no.3 had
issued the identity card in favour of the petitioner.
According to the respondent nos. 1 and 2 engagement of
manpower through the respondent no.3 is on contractual
basis under standard terms and conditions as per rules,
which is reflected in the communication of the respondent
no.2 dated 25.04.2019 to the respondent no.3. According to
the petitioner the annexure mentioned in the
communication dated 25.04.2019 are the "Guidelines for
Engagement of Office Assistants, Multi Tasking Attendants
in the Ministry of AYUSH" (guidelines) for Engagement of
Office Assistant, Multi Tasking Attendants with the
respondent no.1. These guidelines form part of the counter-
affidavit filed by them. According to the respondent nos. 1 6 W.P. (C) No. 18 of 2021 Ms. Reena Kumari vs. The Secretary Ministry of Ayush & Ors.
and 2 the service contract of the petitioner was renewed
twice for a period of one year each i.e. w.e.f. 01.05.2018
and w.e.f. 01.05.2019.
5. In the counter-affidavit filed by the respondent no.3 it
is submitted that they are registered in West Bengal and
have a branch office in Gangtok; that the respondent no.2
issued work order for supply of man power to the
respondent no.3 vide its letter dated 02.11.2015 (including
the post of Hindi Assistant/translator) pursuant to which
the respondent no.3 was empanelled by respondent no.2;
that the office of the respondent no.2 issued letter dated
15.05.2017 to respondent no.3 to induct the petitioner and
another as outsourced employees in the office of the
respondent no.2 through respondent no.3 from the month
of May 2017; that the respondent no.3 issued posting order
dated 01.05.2017 to the petitioner in the office of
respondent no.2; that the service of the petitioner was
renewed by another year, on year to year basis, as per the
requirement of respondent no.2 and her service condition
was governed by guidelines issued by respondent no.1; that
the office of respondent no.2 verbally instructed the
respondent no.3 not to renew the employment of the
petitioner and another for any further period as they had
completed three years and that they did not require their
services anymore; that in such circumstances the 7 W.P. (C) No. 18 of 2021 Ms. Reena Kumari vs. The Secretary Ministry of Ayush & Ors.
respondent no.3 did not apply for renewal of services of the
petitioner which came to an end on the expiry of the
contract period. In support of their contention respondent
no.3 has filed a communication dated 02.11.2015
addressed to them by the respondent no.2 which reflects
that an agreement was to be made between them before
assignment of work. The next relevant document is
communication dated 15.05.2017 issued by the respondent
no.2 to the respondent no.3 requiring a Hindi typist and
instructing them that the petitioner may be inducted in the
list.
6. The petitioner has also filed a rejoinder contesting the
claim of the respondents.
7. Pursuant to the orders passed by this court additional
affidavits have been exchanged between the parties. The
petitioner filed her identity card issued by the respondent
no.2 to the petitioner by way of additional affidavit dated
08.09.2022. In the additional affidavit dated 26.09.2022
filed by the respondent no.3 it is stated that supply of
manpower is done as per guidelines issued by the
respondent no.1 which is treated as contract between the
respondent nos. 2 and 3. In the additional affidavit filed by
respondent nos. 1 and 2 dated 29.09.2022 it was stated
that the contract between respondent nos. 2 and 3 was
executed on 16.11.2015 and thereafter renewed from time 8 W.P. (C) No. 18 of 2021 Ms. Reena Kumari vs. The Secretary Ministry of Ayush & Ors.
to time. Copy of the contract as well as the renewal letters
were also placed for examination by this court. In affidavit
dated 01.12.2022 filed by the respondent nos. 1 and 2 it is
stated that they are not privy to the terms of the contract of
the outsourced employee with their employer and that
three years is the length of the service of the petitioner. In
the affidavit dated 20.02.2023 filed by the respondent no.3
it is stated that there is no service contract executed
between the respondent no.3 and the petitioner.
8. Heard Mr. Jorgay Namka, learned Senior Counsel, for
the petitioner, Ms. Sangita Pradhan, learned Deputy
Solicitor General of India and Mr. Bhushan Nepal, learned
Counsel for the respondent no.3.
9. The following facts culled out from the pleadings as
well as documents filed by the parties are relevant for the
determination of this case. The respondent no.2 is an
institute under the Central Council for
Research in Ayurvedic Sciences (CCRAS) which is an
autonomous body administratively controlled by the
Ministry of AYUSH, Government of India-the respondent
no.1. The respondent no.1 had issued the guidelines. The
respondent no.2 entered into an agreement with the
respondent no.3 from 05.11.2015 and engaged its services
to secure management services at the respondent no.2. As
per the agreement the respondent no.3 was to deploy 9 W.P. (C) No. 18 of 2021 Ms. Reena Kumari vs. The Secretary Ministry of Ayush & Ors.
security personnel and other Multi Tasking Staff as per the
initial recommendation of the respondent no.2 at the
commencement of the contract which was to be revised
from time to time. Amongst the various categories of staff
required by the respondent no.2, Office Assistant was also
sought for. The contract provided for billing by the
respondent no.3 and payment by the respondent no.2 to
ensure timely payments of salary to the respondent no.3's
staff engaged at the respondent no.2. The contract also
provided that the respondent no.2 shall not offer any
employment to any of the employees for a period of at least
one year, after the termination of the contract. It further
provided that if the respondent no.3's employees were
directly enrolled within the specified period the respondent
no.2 was to be liable to pay the respondent no.3 an amount
equivalent to one year gross salary of that individual. In
case of termination of the contract, the respondent no.3
was to remove its staff from the respondent no.2 on receipt
of their full and final dues. This contract between the
respondent nos.2 and 3 seem to have been renewed from
time to time. On 15.05.2017 the respondent no.2 wrote to
the respondent no.3 stating that they require one Hindi
typist and one Data Entry Operator for which the petitioner
and one Tengzing Dorje Dechen may be respectively
inducted in their list. The letter also specified that their 10 W.P. (C) No. 18 of 2021 Ms. Reena Kumari vs. The Secretary Ministry of Ayush & Ors.
emoluments may be reflected at Rs.16000/- per month
from the month of May, 2017. The respondent no.2
requested the respondent no.3 to include their names in
the list of outsourcing employees through respondent no.3.
Pursuant to the request of the respondent no.2 the
respondent no.3 issued a posting order dated 01.05.2017
to the petitioner, directed her to join on 01.05.2017. It
transpires that during this period both the respondent no.2
as well as respondent no.3 issued identity cards to the
petitioner reflecting her as their employee. On 31.03.2018
the respondent no.3 wrote to the respondent no.2 referring
to their request letter for renewal of the petitioner's
contract and stating that its terms were going to expire on
30.04.2018 and should be renewed for a period of one year
w.e.f. 01.05.2018. On 16.04.2019, once again, the
respondent no.3 responded to the request letter of the
respondent no.2 for renewal of contract of the petitioner
which was to expire on 30.04.2019 for a further period of
one year w.e.f. 01.05.2019. Significantly, these two
correspondences for renewal of the petitioner's contract do
not reflect that it was communicated to the petitioner. On
30.04.2020 the respondent no.2 vide impugned Office
Order addressed to the respondent no.3, with copy to the
petitioner, notified that:-
11
W.P. (C) No. 18 of 2021 Ms. Reena Kumari vs. The Secretary Ministry of Ayush & Ors.
„As per the condition of the council to provide services to the contract workers, Mr. Tengzing Dorje, Office Assistant and Ms. Reena Kumari, Office Assistant (Hindi) who were serving in this institute, have completed three years. And the contract, will be deemed to have ended on 30.04.2020 P.M.. Therefore, you are requested to handover all the materials, etc. in your charge after completing all your task, to the lower division clerk, Ms. Arpana Mothey in the office. In case of any type of irregularity or violation of the contract rules, action will be taken as per rules.‟
10. The language in the impugned Office Order was
clarified by the respondent nos. 1 and 2 by its affidavit
dated 01.12.2022. According to them it was issued to the
respondent no.3 marking a copy to the petitioner with the
direction to hand over their belongings which were being
used by her. It was further clarified that the impugned
Office Order was neither issued on the basis of a fixed
period of time of engagement nor in reference to completion
of three years of contract service. This was contrary to their
earlier affidavit. It was stated that the impugned Office
Order is in accordance with the guidelines. On 07.05.2020
the petitioner wrote to the Director General of CCRAS
complaining about her illegal termination in the middle of
COVID-19 pandemic, marking a copy to the respondent
no.2 as well. On 29.05.2020 the respondent no.3 intimated
the petitioner that her association with the respondent no.3
was „temporarily discontinued due to the expiry of
contractual terms‟ between the respondent nos. 2 and 3
w.e.f. 30.04.2020 and that her future association with 12 W.P. (C) No. 18 of 2021 Ms. Reena Kumari vs. The Secretary Ministry of Ayush & Ors.
respondent no.3 was subject to entering another
agreement. On 03.06.2020 the petitioner wrote to the
respondent no.3 complaining about her termination. On
15.06.2020 the petitioner issued a legal notice to the
respondent no.1 as well as the Director General, CCRAS for
reinstatement of service.
11. On a perusal of the affidavits and documents filed
before this court it is clear that the petitioner was engaged
through an outsourced agency i.e. the respondent no.3 by
the respondent no.2 at the instance of respondent no.2.
Admittedly, the petitioner worked and provided service to
the respondent no.2 during this period of three years before
her engagement was terminated by the respondent no.2.
Admittedly again, although the respondent no.3 as well as
the respondent no.2 claimed that the petitioner's
employment was contractual no effort was made during the
entire period, by the respondents, to provide a written
contract to the petitioner. In fact the record placed makes it
clear that the petitioner was kept in the dark about the
nature of her employment. Both the respondent nos.2 and
3 referred to the guidelines issued by the respondent no.1
for such employment. A look into this guideline would be
necessary. The guidelines provide that the respondent no.1
could engage supporting man power at various levels to
assist in the disposal of work and the engagement would 13 W.P. (C) No. 18 of 2021 Ms. Reena Kumari vs. The Secretary Ministry of Ayush & Ors.
not to be an appointment or job in the Government of
India. Further, the engagement of such manpower would
be regulated as per the guidelines. According to clause 4.2
of the guidelines the engagement would be through
outsourcing agency and would not confer any right for
regular appointment in the ministry/organization. Clause
4.3 of the guidelines specifies that the engagement initially
would be for a maximum period of one year and the
contract may be renewed on year to year basis subject to
functional requirements and also subject to performance
appraisal. According to clause 11 of the guidelines the
respondent no.1 could terminate the service of the staff on
various events enumerated therein. Clause 13(ii) of the
guidelines reflects that the Outsourcing Agency was
required to issue appointment letter at the time of initial
appointment as well as letter for renewal of contract to the
outsourced employees on renewal.
12. A perusal of the posting order dated 01.05.2017
issued by the respondent no.3 does not reflect that the
petitioner was made aware of the guidelines. It does not
reflect that any contract was signed with the petitioner
although the guidelines suggest that there ought to be one.
The records filed by the respondent nos.1 and 2 also do not
reflect that they demanded any written contract before the 14 W.P. (C) No. 18 of 2021 Ms. Reena Kumari vs. The Secretary Ministry of Ayush & Ors.
petitioner was engaged as outsourced staff provided by
respondent no.3 to the respondent no.2.
13. From the pleadings as well as the documents on
record it is evident that the contract for outsourcing the
staff between the respondent nos. 2 and 3 was to be
pursuant to the guidelines issued by respondent no.1. It is
also clear that the respondent no.3 did not issue any
appointment letter specifying the terms and conditions of
contract to the petitioner. The record reveals that even the
renewal of the petitioner's contract was communicated
between the respondent nos. 2 and 3 only, without any
information to the petitioner. The record reveals that the
petitioner was put in the respondent no.3's list of
outsourced employees on the direction of the respondent
no.2. The record further reveals that the petitioner was
engaged for a further period i.e. 2018-2019 and 2019-2020
by the respondent no.3 on the direction of the respondent
no.2. It also suggest that the respondent nos. 1 and 2 did
enjoy the power of termination of the outsourced employees
under the guidelines even though they were to be issued
appointment letters by the respondent no.3. Evidently, the
recommendation to employ the petitioner, her salary
structure, the renewal of her engagement from time to time,
her leave as well as her termination was at the instance of
the respondent no.2 and under their direct control. Save 15 W.P. (C) No. 18 of 2021 Ms. Reena Kumari vs. The Secretary Ministry of Ayush & Ors.
payment of the petitioner's salary through the respondent
no.3 from the funds of the respondent no.2, the respondent
no.2 enjoyed total control on the engagement of the
petitioner.
14. An outsourced employee is normally an individual
who is employed by a third party and assigned to work on
behalf of another organization. The relationship between
the outsourced employee and the company that engages
them can however, vary depending on the terms of
contract. Generally the outsourced employee is an
employee of the third party who is responsible for their
salary, benefits and other employment related matters. This
is however, dependent on the terms of contract. The terms
of contract between the respondent nos. 2 and 3 allowed
the respondent no.2 to have direct control over the
outsourced employees regarding inter-alia her appointment,
her work as well as salary, leave and termination. Ideally
the respondent no.3 ought to have entered into a written
contract with the petitioner as per the guidelines. The
respondent no.2 was required to ensure that the
respondent no.3 follow these guidelines and further ensure
that the petitioner was made aware of the terms and
conditions of her contract as an outsourced employee.
However, in the facts of the present case the respondent
no. 2 after having entered upon the contract with the 16 W.P. (C) No. 18 of 2021 Ms. Reena Kumari vs. The Secretary Ministry of Ayush & Ors.
respondent no.3 did little nothing except enjoy the benefit
of the petitioner's services even during the COVID-19
pandemic and thereafter abruptly terminated her
engagement in the middle of the pandemic without
following the advice issued by the Ministry of Labour &
Employment, Government of India. The facts before the
High Court of Punjab & Haryana at Chandigarh in Mukesh
Kumari & Ors. vs. State of Haryana & Ors.1 was completely
different than the present one. In that case the petitioner
had sought quashing of an order of the respondent no.2
therein to the respondent no.3 stating that there is no
requirement of the staff posted by the respondent no.3. The
petitioner's argument was that juniors to them have been
retained whereas the petitioner's have been sent back to
the respondent no.3. The petitioners therein had conceded
that they are the employees of the respondent no.3 who
had been posted with respondent no.2 keeping in view the
contract which the respondent no.2 had with respondent
no.3 for providing manpower. The question that was
determined was whether a writ petition is maintainable
against a private outsourcing agency.
15. A writ may not lie against a private party who is acting
only as an outsourced agency. However, the petitioner was
1 MANU/PH/0264/2021 17 W.P. (C) No. 18 of 2021 Ms. Reena Kumari vs. The Secretary Ministry of Ayush & Ors.
engaged at the instance of the respondent no.2. The
respondent no.2 availed her services for three years without
the petitioner being informed, either by the respondent
no.2 or the respondent no.3, the terms of her engagement
before her services was abruptly terminated by the
respondent no.2. The respondent no.2 is definitely
amenable to the writ jurisdiction of this court.
16. Keeping all the aforesaid facts in mind this court is of
the firm view that the action of the respondent no. 2 is
arbitrary, unfair and illegal. There is also a failure on the
part of the respondent no.3 to follow the guidelines which
they were aware of. The inactions and failures of the
respondent nos. 2 and 3 have resulted in complete injustice
to the petitioner. Even an outsourced employee is entitled
to certain safeguards. The respondent nos.1 and 2 are
fully within their rights to engage supporting manpower at
various levels to assist in the disposal of work in the
ministry through outsourcing agency and such engagement
need not be considered as an appointment or job in the
Government of India. However, being a State they have a
corresponding duty to ensure that the contractual rights of
such outsourced staff engaged by them for their purposes
is protected. Usually, the writ court is hesitant to interfere
in contractual matters. However, this is a case in which, if
we hesitate to interfere in spite of such inactions of the 18 W.P. (C) No. 18 of 2021 Ms. Reena Kumari vs. The Secretary Ministry of Ayush & Ors.
respondents it would lead to perpetuating a series of their
wrongs at the cost of the petitioner.
17. The impugned Office Order No.03 2020-21 dated
30.04.2020 issued by the respondent no.2 and impugned
communication dated 29.05.2020 issued by respondent
no.3 are set-aside.
18. The respondent nos. 1 and 2 are directed to take back
the petitioner in her engagement by ensuring that a written
contract is entered making its terms absolutely clear to her.
Keeping in mind that there is no ceiling on the duration
and that the respondent nos. 1 and 2 may renew the
outsourced staff's engagement, year to year, as per the
guidelines, in the facts of the present case it would be
appropriate if the respondent no.2 is directed to engage the
petitioner for at least a period of one year from the date of
this judgment to mitigate the injustice perpetrated on her.
It is accordingly so ordered.
19. The writ petition is allowed to the above extent and
disposed of.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
Internet : Yes
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