Clarifying its stance on the recent developments in the students protest for re-instatement of sanitation workers, the National Law University, Delhi has 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.
"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," a statement issued by the University reads.
The clarification comes in the backdrop of the Delhi Labour Ministry's order dated June 15, 2020, whereby the University was directed to reinstate all the 55 safai karmcharis and to pay their salaries.
The University has also clarified that the detention of Neetu Singh Yadav (Workers' Representative) and Ekta Tomar (Student Representative) by the Delhi Police last week, was not provoked by the institute.
"The widely reported account about police action at the behest of the University is absolutely wrong and equity have always been able to resolve our matters without requiring any external intervention," the University said.
Giving a factual position of the matter, the University said that it hired the services of house-keeping staff through a contractor in 2008, without any legal requirement for assessment of manpower requirement. However, guidelines for the same were issued by the Delhi Government in 2012, pursuant to which the State Audit Team as well as the CAG Audit Team asked the University to float fresh tender for outsourcing the services of safai karmcharis.
It is stated that following the norms to assess the requirement of safai karamcharis, the University had to a float fresh tender, which was awarded to the present contractor RMG. Further, since the tenure of earlier contractor White Fox and Golden was over, its manpower was withdrawn.
It is stated that the entire process is legally sound in light of the law laid down by the Supreme Court in Bharat Heavy Electricals Ltd. v. Mahendra Prasad Jakhmola & Ors., to determine the relationship of employer and employee.
As per this judgment, 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 case, the University said, "the representationists 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."
In fact, it is stated that implementation of the Labour Ministry's direction to cancel the existing Contract "shall be in violation of law".
"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," the University said.
The University pointed out that it took all possible "humanitarian measures" and persuaded the present contractor to provide the safai karmcharis with alternate employment however, some of the workers are "adamant" to work at the University only.
"Presently out of 36 workers, 14 workers were still retained by contractor who were 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 are 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,"the University claims.
It said that workers, present or past, who are employed by the contactor(s) cannot be permanently absorbed in the University service, irrespective of the change of the contractor.
"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," the University said.
It asserted that Government instructions, as in the instance case, directly impinge upon the institutional "autonomy" of the University, which is a "sacrosanct" under the NLUD Act, 2008.
Reliance was placed on State of Punjab & Anr. v. Sardari Lal & Ors., whereby it was held 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."
Now, since the 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, therefore, the matter has been placed before the University Chancellor.
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