The National Law University, Delhi (NLUD) clarified its stance on recent developments in the students’ protest for re-instatement of sanitation workers and stated that the alleged dispute is primarily between the workers and the Contractor, and that the University has no legal obligation for employment/ termination of sanitation staff.
A statement issued by the University read “The University never hire workers; it only hires services. The deployment of workers keeps changing and only the service remains static. In such a contractual situation, the University is under no legal liability to provide perpetual employment to the workers deployed by the company after the completion of the term of the contract. The workers have no enforceable rights vis-vis principal employer for continued retention and hence any direction to retain them after the termination of contract is without any legal basis.”
The clarification was made by the University that the detention of Neetu Singh Yadav (Workers’ Representative) and EktaTomar (Student Representative) by the Delhi Police last week, was not provoked by the institute, in response to the Delhi’s Labour Ministry order dated June 15, 2020 where the University was directed to reinstate all the 55 safaikarmcharis and to pay their salaries.
The NLUD explained that “The widely reported account about police action at the behest of the University is absolutely wrong and equity has always been able to resolve our matters without requiring any external intervention.”
A per the fact, the University hired the services of house-keeping staff through a contractor in 2008, without any legal requirement for assessment of manpower requirement with guidelines issued by the Delhi Government in 2012.
The University had to float fresh tender for outsourcing the services of safaikarmcharis.
The University had to a float fresh tender by following the norms to assess the requirement of safaikaramcharis which was awarded to the present contractor RMG. Further, manpower was withdrawn as the tenureof earlier contractor White Fox and Golden was over.
To determine the relationship of employer and employee, the law laid down by the Supreme Court in Bharat Heavy Electricals Ltd. v. Mahendra Prasad Jakhmola&Ors was followed.
There are the two tests to find out whether the contract labourers are the direct employees of the principal employer are: (i) whether the principal employer pays the salary instead of the contractor; and (ii) whether the principal employer controls and supervises the work of the employee.
In the present scenario, NLUD communicated that, “the representation cannot be deployed by the University and pay their wages since neither the University employed them nor were they being paid their wages directly by the University. The wages of all Housekeeping Staff and other payments are always paid directly to the Contractor.“
The implementation of the Labour Ministry’s direction to cancel the existing Contract “shall be in violation of law“.
NLUD added, “The cancellation of the existing contract shall be in violation of law and the University will not be able to sustain it in the court of law as a duly awarded contract cannot be cancelled arbitrarily.”
All possible “humanitarian measures” were pointed by the university and the present contractor was influenced to provide the safaikarmcharis with alternate employment however, some of the workers are “adamant” to work at NLUD only.
The University expressed “Presently out of 36 workers, 14 workers were still retained by contractor who was working with the old contractor, and 22 are the workers of the present service provider. The present contractor in a meeting also clearly volunteered to provide employment to all the former workers at other establishments closer to the University. As such these 22 workers of the earlier service provider were offered to join with the present service provider, out of which only 8 workers have joined. Remaining is adamant to join only in case they are given the assurance that the University will absorb them permanently, whosoever the contractor may be in future“
Irrespective of the change of the contractor, workers employed by the contactor(s) cannot be permanently absorbed in the University service.
NLUD told, “Allowing such practice of deploying the manpower of outgoing contractor would result in alarming increase in the number of such manpower and there will be no use of having a contractor for supply of the manpower, as it will be a sham contract and all such manpower will be treated as employee of the University.”
Institutional “autonomy” of the University as “sacrosanct” under the NLUD Act, 2008 was also explained.
State of Punjab &Anr. v. Sardari Lal &Ors. Case was also considered, whereby it was declared that,
“The University is an autonomous body and, therefore, the State Government will not be entitled to interfere with the internal administration of the University notwithstanding the fact that the State Government is the funding body until and unless the University Statutes provides for the same or there is any Act of Legislation Government.”
Therefore, the matter has been placed before the University Chancellor as NLUD Act requires that all proposals having a policy question or financial implications will have to be approved by the University bodies i.e. Finance Committee/Executive Council/ Governing Council and no other source/authority
Read Statement here: