IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWPILs No. 135 of 2017 CWP 2347 of 2017
Date of decision: 08.01.2020
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Court on its own motion …..Petitioner
Versus
State of H.P. others …Respondents
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Coram:
The Hon’ble Mr. Justice L. Narayana Swamy, Chief Justice
The Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1
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IN CWPIL No. 135 of 2017
For the petitioner: Mr. B.C. Negi, Senior Advocate as Amicus
Curiae with Mr. Praveen Negi, Advocate.
For the respondents: Mr. Ajay Vaidya, Senior Additional
Advocate General with Mr. Adarsh
Sharma, Ms. Ritta Goswami and Mr. Nand
Lal Thakur, Additional Advocates
General, for the respondents-State.
Mr. Rajesh K. Sharma, Assistant Solicitor
General of India, for respondents No. 5
11.
Mr. Ankush Dass Sood, Senior Advocate
with M/s Raman Jamalta and Satyem
Chaturvedi, Advocates, for respondent
No. 10.
Mr. Shrawan Dogra, Senior Advocate with
Mr. Deven Khanna, Mr. Tejsavi Dogra and
Mr. Harsh Kalta, Advocates, for
respondents No. 12 to 17.
Dr. Sanjay Ranaut, OSD, EMRT is present
in person.
1
Whether the reporters of Local Papers may be allowed to see the judgment?
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CWP No. 2347 of 2017.
For the petitioner: Mr. Shrawan Dogra, Senior Advocate with
Mr. Devan Khanna, Mr. Tejsavi Dogra and
.
Mr. Harsh Kalta, Advocates.
For the respondents: Mr. Ajay Vaidya, Senior Additional
Advocate General with Mr. Adarsh
Sharma, Ms. Ritta Goswami and Mr. Nand
Lal Thakur, Additional Advocates
General, for the respondents-State.
L. Narayana Swamy, Chief Justice (Oral)
In this Public Interest Litigation, this Court has taken
suo moto cognizance of the manner in which the vehicles under the
108 Ambulance Scheme are being plied and operated within the
State of Himachal Pradesh.
2. Mr. B.C. Negi, learned Senior Advocate, was appointed
as Amicus Curiae to assist the Court in this matter.
3. The background of the case is that the employees of
respondent No. 10-GVK Emergency Management and Research
Institute went on strike as they were demanding enhancement of
their salary, over-time allowances etc., due to which a lot of
inconvenience was caused to the patients suffering from various
ailments in the State of Himachal Pradesh. It appears that there
are two categories of employees employed with each ambulance,
i.e. one Driver known as ‘Pilot’ and another Pharmacist, known as
‘Emergency Medical Technician’ (EMT). The duty of these
employees is to provide ambulance service to the patients and
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transport them immediately to the nearest hospital(s) on receiving
an emergency call. Respondent-State pays an amount of
`65,000/- per month to respondent No. 10 per ambulance in terms
.
of the agreement, which also includes the salary of its employees.
4. This Court vide order dated 08.08.2018, restrained
the Drivers/Pilots and Technicians working in the Ambulances/their
Unions from resorting to the mechanism of protest, by way of strike
and were directed to forthwith report back for their duties. They
were also directed to file their affidavit(s) indicating therein that
they would not indulge in strike etc. Accordingly, they filed their
affidavits/undertakings to this effect.
5. To resolve the issues of disbursement/receipt of
salary of the employees, misconduct/non-cooperation, if any, of the
employees, non-functioning of the ambulances etc. authorized
representatives of the employees were directed to appear before
the Grievance Committee consisting of Mission Director, National
Health Mission, Directorate, National Health Mission, Directorate of
Health Services, Shimla and representatives of the employer-
respondent 10. They appeared before the said Committee, but
the issues regarding minimum wages and over-time payment could
not be resolved.
6. Learned Amicus Curiae submits that respondent No.
10 is bound to pay minimum wages and over time allowance to its
employees irrespective of the terms and conditions of the
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agreement between the employer and the employees. He further
submits that the employees of respondent No. 10 work for at least
12 hours in a day and they are not being paid even the minimum
.
wages.
7. Learned Senior Counsel for respondents No. 12 to 17
submits that in order to shirk from its duty to give minimum wages
to its employees, respondent No. 10 has given the name to Drivers
as ‘Pilots’ and to the Pharmacists as EMTs, but their job is the same
as that of Drivers and Pharmacists, as prescribed under Section 24
of the Minimum Wages Act. He further submits that the minimum
rate of wages has to be paid to its employees by respondent No. 10
for every hour or part of an hour.
8. Learned Counsel for respondent No. 10 submits that
minimum wages have not been paid to its employees since their
services have not been notified under Section 24 of the Minimum
Wages Act. He further submits that it has not been prescribed in
the agreement that for how many hours, the employees have to
work per day. He further submits that the employees work when
they receive a call for shifting the patients to the hospitals, thus it
cannot be said that for how many hours the employees work per
day. He submits that since the dispute pertains to Labour laws,
this Court has no jurisdiction to deal with this matter and it would
have been dealt with by the competent Authority.
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9. Learned Senior Additional Advocate General for the
respondents-State, on the other hand, submits that the Contract of
Ambulance was awarded to respondent No. 10 and an amount of
.
`65,000/- per month is being paid to respondent No. 10 per
ambulance, which includes the salary of its employees. He further
submits that respondent No. 10 has to pay minimum wages to its
employees and it cannot exploit them by paying lesser wages than
that of minimum wages, as prescribed under the Minimum Wages
Act. He further submits that since the dispute is between the
employer-respondent No. 10 and its employees, so the matter is
required to be resolved by the appropriate Authority.
10. We have heard learned Counsel for the parties and
have perused the entire record carefully.
11. As the employees of respondent No. 10 were not being
paid minimum wages and their other demands were not being
accepted, they agitated their issues by resorting to strike, thus, the
essential duty of ambulance must have got affected resulting in the
death of patients/injured and after having taken note of this, this
Court took cognizance of the matter and the employees were
directed to file affidavit(s) undertaking therein that they would not
indulge in strike etc. and were directed to forthwith report back for
their duties. Accordingly, they did so. Hence, these employees
must have saved the precious lives of many patients/injured.
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12. On the last date of hearing, learned Senior Counsel for
respondents No. 12 to 17 and the learned Senior Counsel for
respondent No. 10 were directed to suggest as to what extent the
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salary of the employees of respondent No. 10 may be enhanced.
13. Today, learned Senior Counsel for respondent No. 12
to 17 has made available the ‘proposal on behalf of the employees
for tentative enhancement of wages till the same are worked out as
per applicable laws’, wherein in it has been mentioned that
respondent No. 10 may be asked to enhance the wages by
` 5,000/- per month in the salary of the Pilots and EMTs till the
appropriate Statutory Authority works out the actual amount
payable to them as per the permissible wages payable to them
under the Minimum Wages Act, other Labour Laws, the applicable
Rules and the terms of agreement. The same be taken on record.
14. On the other hand, learned Senior Counsel for
respondent No. 10 submits that respondent No. 10 is paying salary
to its employees from its own pocket and the respondent-State is
not paying any additional amount to respondent No. 10, thus, it
has no fund which can be utilized for enhancement of the salary of
its employees. He further submits that out of 198 ambulances,
120 ambulances are not in working condition, which are not being
plied and respondent No. 10 is paying salary to the employees
employed with these ambulances without any work, thus, it is not
possible for respondent No. 10 to enhance the salary of its
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employees. He further submits that the petitioners are not the
employees of respondent No.10.
15. Per contra, learned Senior Additional Advocate
.
General, on instructions of Dr. Sanjay Ranaut, OSD, EMRT, who is
also present in this Court, submits that every ambulance is in
working condition and no report regarding bad condition of
ambulance(s) has been made to the respondent-State.
16. As per the aforesaid proposal placed before this Court
by the learned Senior Counsel for respondents No. 12 to 17, the
Pilots and EMTs are being paid the monthly salary of `11,530/- and
`11,740/- respectively. If the salary of `11,530/- payable to Pilots
is calculated per day, it comes to around to `375/- per day, i.e. less
than Rs. 400/- per day. Similar is the case with the EMTs. With
this meager salary, a Pilot or an EMT has to feed and look after his
family, including his parents, wife and school going children. Thus,
we can say that with this meager amount, it is very difficult for a
person to survive and to feed, to take care of his family and to
educate his children. Moreover, they are supposed to work for
more than 12 hours in a day and for these 12 hours, they are being
paid only `400/-. In this era of unemployment, these employees
are forced to work on the meager take home salary of around
`10,000/- only. If this salary is divided among all the family
members, each member would get only around `100/- per day,
with which it is very difficult to survive. Thus, we are of the view
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that with this meager amount, it is very difficult for a person to take
care of his sick and old parents, to feed his family or to send his
children to school and to take care of his wife and bear the day to
.
day expenses.
17. We are not in agreement with the submissions of the
learned Senior Counsel for respondent No. 10 that respondent No.
10 is unable to pay the minimum wages to its employees. We are
also not in agreement with the proposal of the learned Senior
Counsel for respondents No. 12 to 17 that the salary of each
employee should be enhanced by Rs. 5000/- per month.
18. In view of the submissions made by the learned
Counsel for the parties, we are of the view that it is appropriate
for this Court to relegate this issue to the competent
Authority/appropriate Labour Authority under the Minimum Wages
Act as the issue in question pertains to the enhancement of salary
of the employees of respondent No. 10, over time allowances and
other issues relating to labour laws. Secondly, the minimum
working hours under the Minimum Wages Act is eight hours per day
or 48 hours per week. But in the instant case, the nature of duty of
a Pilot/Driver and a Pharmacist is such that they have to wait till an
emergency call comes and that call can come at any time. Thus,
the waiting period cannot be said to be their free period.
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19. In view of the facts and circumstances of the case, we
direct respondent No. 10 to enhance the take home salary of each
employee to the tune of `1500/- per month w.e.f. 20th January,
.
2020. This enhanced salary shall be paid to the Pilots and EITs
employed with respondent No. 10 till the dispute is resolved by the
appropriate Authority. Respondent No. 10 is further directed to pay
salary to its employees only by cheque by remitting the same to
their bank accounts. In case, there are no bank accounts of the
employees, the same be opened at the earliest and thereafter,
their salaries be remitted to their bank accounts.
20. The employees of respondent No. 10 are directed to
approach the competent Authority/appropriate Labour Authority
under the Minimum Wages Act within three weeks from today, if
not already approached and thereafter, the competent
Authority/appropriate Labour Authority is directed to decide the
case of the employees of respondent No. 10 within six months,
preferably by or before 30th June, 2020.
21. Liberty is reserved to the parties to raise any other
additional/unresolved issues before the competent Authority.
Liberty is also reserved to the employees to move appropriate
application regarding reinstatement and the Essential Service
Maintenance Act.
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22. Further, the employees are directed not to indulge in
protest, strike etc. in future. They are also directed to abide by the
undertakings given by them to this Court from time to time.
.
23. It is made clear that this order shall not have any
bearing on the decision to be rendered by the competent
Authority/appropriate Labour Authority
24. Accordingly, this petition is disposed of in above terms
alongwith pending application(s), if any.
r (L. Narayana Swamy)
Chief Justice.
January 8, 2020 (Jyotsna Rewal Dua)
(hemlata) Judge.
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