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Court On Its Own Motion vs State Of H.P. & Others on 8 January, 2020

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CWPILs No. 135 of 2017 CWP 2347 of 2017
Date of decision: 08.01.2020
__

.
Court on its own motion …..Petitioner

Versus

State of H.P. others …Respondents
__
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
__

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

.

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.

10/01/2020 20:25:32 :::HCHP

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