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2020 DIGILAW 103 (HP)

Court On Its Own Motion v. State Of H. P.

2020-01-08

JYOTSNA REWAL DUA, L.NARAYANA SWAMY

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JUDGMENT L. Narayana Swamy, C.J. - 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 transport them immediately to the nearest hospital(s) on receiving an emergency call. Respondent-State pays an amount of Rs. 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 employerrespondent 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 agreement between the employer and the employees. 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 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. 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 Rs. 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. 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. 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 Rs. 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. 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 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 Rs. 11,530/- and Rs. 11,740/- respectively. If the salary of Rs. 11,530/- payable to Pilots is calculated per day, it comes to around to Rs. 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 Rs. 400/-. In this era of unemployment, these employees are forced to work on the meager take home salary of around Rs. Moreover, they are supposed to work for more than 12 hours in a day and for these 12 hours, they are being paid only Rs. 400/-. In this era of unemployment, these employees are forced to work on the meager take home salary of around Rs. 10,000/- only. If this salary is divided among all the family members, each member would get only around Rs. 100/- per day, with which it is very difficult to survive. Thus, we are of the view 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. 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 Rs. 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. 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. 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.