Bombay High Court
Bombay High Court
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Unfair to value human lives differently: Bom HC says contract workers on COVID-19 duty entitled to special pay on par with direct employees

"The risk taken by the Kamgaars in carrying out COVID-19 related duties for the Corporation cannot be differentiated on their employment being directly with the Corporation or through the contractors", the Court said.

Rintu Mariam Biju

In a significant order, the Bombay High Court has ruled that said all those on COVID-19 related duties, irrespective of whether they are directly employed or contractual labourers, have to be treated equally in the payment of daily allowances allocated for those carrying out such duties. (Bombay High Court Kamgaars order)

The Court observed that it was "extremely unfair" to differentiate between direct employees and contractual workers in this matter.

Therefore, the Court has directed the Navi Mumbai Municipal Corporation (Corporation) to pay a daily allowance of Rs. 300 to certified contractual workers or kamgaars who have been reporting for COVID-19 duty.

In his order, Justice SJ Kathawalla noted that in the present pandemic, when the contract workers are admittedly fulfilling their responsibilities by carrying out COVID-19 related duties while risking their lives, it is necessary for everyone to adopt a humane approach towards these warriors of COVID-19.

The Court made the observation while rejecting arguments by the Corporation that the kamgaars, being contractual workers, were not entitled to the daily pay of Rs 300 allocated by the Municipal Commissioner for those on COVID-19 duty.

Criticising the Corporation's approach of meting out differential treatment to contractual, as compared to direct employees, the Judge observed that,

"... the risk taken by the employees / workers / Kamgaars in carrying out COVID-19 related duties for the Corporation cannot be differentiated / distinguished on their employment being directly with the Corporation or through the contractors. In so distinguishing between its own employees and the Kamgaars, the Corporation is seen to be making a tacit statement, that the Kamgaars though discharging the Covid related duties as the Corporation’s own employees, are either not ‘risking their lives’, or despite doing so, need to be paid diferently only due to their employer being the contractor and not the Corporation."

The Court further emphasised,

"To say the least, this would be an extremely unfair and unjust yardstick to use, to value human lives differently."
Bombay High Court

The first grievance in the plea filed by Samaj Samata Kamgaar Sena, a Union of 6,277 contract workers employed with the Corporation, concerned that lack of protective gear being provided to these workers who were engaged for solid waste management, including day-to-day road cleaning and transportation of garbage, amid the COVID-19 pandemic. An order addressing this issue was earlier passed by the High Court on May 14.

The issue in focus when the matter came up before the High Court on Wednesday concerned the payment of Rs 300 sanctioned by the Municipal Commissioner of the Corporation to be paid as daily allowance to employees on COVID-19 duty. However, this was not paid to the Kamgaars on the ground that they are contract labourers.

The Corporation informed that the members of the Petitioner Union are employed by the contractors to carry out the work of the Corporation.

The Corporation contended that since the kamgaars were engaged on a contract basis, they were not entitled to claim parity with directly appointed employees in the payment of this allowance

Expressing that this act of the part of Corporation was "unfair", the Court opined,

"It cannot be disputed that the kamgaars too, who are involved in COVID-19 related duties assigned by the Corporation through the contractors, are facing the very same difculties as those faced by the officers and the workers of the Corporation, including the workers who are directly appointed by the Corporation on contract basis, and the Kamgaars are also fulfilling their responsibilities by risking their lives."

Bombay High Court

The Court went on to reject other arguments by the Corporation that the payment of the daily allowance would create an additional burden on the Corporation when their revenue receipt is already reduced and that the costs of engaging these workers should also be borne by the concerned contractor.

The High Court observed that there are other ways to reduce expenses. However, it clarified that the payment of the daily allowance would not create employer-employee relationship between the Corporation and the contract workers.

The Court proceeded to issue the following directions in favour of the kamgars, in its order passed yesterday:

  • The Corporation shall certify the names of the kamgaars involved in the COVID-19 related duties and forward a list of the same to the Advocate for the Petitioner Sangh / Union within a period of one week.

  • The payment of special allowance to the certifed contract workers shall be made on the basis of their attendance.

  • For this purpose, the contractors shall provide the details of such certifed contract workers at the end of each month (starting from May, 2020) along with their attendance to the Corporation for payment of the allowance to the contractors, who in turn shall disburse the same amongst the entitled workers.

Taking note of a pending dispute over the status of the kamgaars before the Industrial Disputes Tribunal, the Court also clarified that the allowance shall be paid without prejudice to the rights and contentions of the parties, including the rights and contentions in the dispute pending before the Industrial Tribunal being Reference.

Kamgars also entitled to Centre's Special Insurance Scheme for COVID-19 workers

Another grievance raised by the petitioner union concerned the Special Insurance Scheme announced by the Central Government recently to cover those working as Safai Karmacharis, ward boys, nurses, ASHA workers, paramedics etc. amid the pandemic.

The Corporation had not accepted that the said Scheme was applicable to the workers of the Petitioner Union, it was contended.

However, the Additional Solicitor General told the Court on Wednesday hat the scheme was applicable to any worker who was “involved directly” in COVID-19 related work. This would include the kamgars registered with the unions as well, if they are engaged for such duties.

The ASG added that the corporation will have to certify how many workers were “working in health care facilities and involved in direct contact and care of COVID-19 patients."

In this backdrop, the Court directed the Corporation to do the same and clarified that the scheme would be extended to only those workers engaged in such COVID-19 related work.

The matter will be next heard on June 12.

Read the order:

Bombay HC Kamgaars order.pdf
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