Co-Ordination
Committee of Central Govt. Non-Regular Workers
Unions, West Bengal
K.G.Bose
Bhawan
68B,
Malanga Lane
Kolkata-700012
Tel:
2236-1002; 2212-0506
--------------------------------------------------------------------------------------------
Dated:
To
The Member
Secretary,
7th
Central Pay Commission
New Delhi
Sub:
Memorandum on Out-sourcing etc.
Sir,
Your kind attention is drawn to the following Para of the Questionnaire
circulated by you:
11.1 The 6th CPC
recommended upgrading the skills of the Group D employees and placing them in
Group C over a period time. What has been the experience in this regard?
13.1 What has been the experience of
out-sourcing at various level of Govt. and is there a case for streamlining it?
13.2 Is there a clear identification
of job that can be out-sourced?
Question no 13.1 and 13.2 speaks of
the existence of categories of workers who are working in the various Min./Dept.
of the Central Govt. due to out-sourcing of job. This category of worker is
known as Contract-Labour. Normally the service condition of such category of
workers is regulated under Contract-Labour (Regulation & Abolition) Act
1970 and the Rules made there under. Since early eighties, Offices under some
Departments, particularly the Revenue Dept. started recruiting another category
of workers, directly. They are Casual Workers. The recruitment, service
conditions etc of Casual Workers are regulated under administrative
instructions issued from time to time. Above two category of worker are treated
as Non-regular Worker. Three elements are common in respect of above category
of workers viz. (i) engaged for job of permanent post of regular and perennial
nature (ii) entitled to equal wage and equal service conditions for attending
to same and equal nature of job and (iii) the same authority is treated as
Employer or Principal Employer depending upon the mode of recruitment viz.
directly by the Departmental Authority or through Service Provider/ Contractor.
For example in CBDT and CBEC there are both category of Non-regular Worker. While
the number of Casual Workers is remaining static, more and more workers are
being engaged through Contractors for same nature of job viz. House-keeping and
Watch & Ward in all Min./Dept.
In West Bengal such category of
workers are organised under the banner of Co—Ordination Committee of Central
Govt. Non-Regular Worker’s Union. Prior to circulation of Questionnaire stated
above the Non-regular workers were thinking how to present their position as workers in every Central Govt. Offices to
the 7th Central Pay Commission. We are thankful to you for seeking
opinion on our issue. On behalf of the said Committee I am submitting its views
on streamlining the out-sourcing of job and the job being get done by engaging
Casual Workers for consideration of 7th Central Pay Commission. This
submission is supplementary to the Memorandum submitted by the JCM (Staff) Side
on the issues of Casual Worker and Contract- Labour working in the Central
Govt. Establishments including Railways primarily from the angle of
regularisation.
2. As some of the points covered in
the written Submission may justify further explanations, we would also request
you kindly to give us a scope for Oral submission.
With
regards
Encl.
As stated above
Yours
faithfully
General Secretary
======================================================
ANNEXURE-A
Background Note
Let us first examine the ground
reality in the field of employment. Due to implementation of all the major
Recommendations of last two CPC viz. 5th & 6th,creation
of new posts and filling up of vacant posts has acquired a new dimension. Normally
creation of post or filling up of vacancies is not possible. Although Govt. of
India has adopted a policy of minimum Govt in principle, but due to various
reasons the important being implementation of popular election pledges and
normal increase in activities in the revenue sector, the demand for additional
workforce is increasing at every level of administration. Available employees
and workers are shouldering burden of
additional work-load of more than one justified post in addition to his
allotted duties. Individual employee or worker has no immediate relief on the
issue. At this juncture, the authorities are out-sourcing the job under cover
of providing relief. The Authorities are not facing any opposition. Besides
contractisation of job (Chapter VI of
General Financial Rules 2005), the authorities are resorting to Contractual appointment
retaining the job with the Dept. as opposed to contractisation of job,
technically transferring the job to the Contractor supplying the workers. In
the Revenue Sector various type of Out-sourcing of job is going on. While the
entire work relating to PAN CARD is out-sourced in such a manner that Income
Tax Department has no control or superintendence over the same. On the other
hand, the work relating to On-line Submission of Return has been Out-sourced to
IBM. The personnel of IBM work in the Central Processing Centre under CBDT
under supervision of Income Tax personnel.
The Multi-
Tasking Staff ( Non-Technical Group C) comprises the erstwhile Group D posts of
Peon, Daftry, Jamadar, Junior Gestetner Operator, Farash, Chowkidar, Safaiwala,
Mali etc. The list is not exhaustive. There were some more Group D posts with
indicative designation viz. Sepoy, Lab Attendant, Dresser, Postman, Linesman,
Belder, Wireman Khalasi etc in the various Departments. (DOP&T’s OM No.
AB-14017/6/2000-Estt.(RR) dated 30.04.2010 circulating Model Recruitment of
MTS)
At present,
all the erstwhile Group D employees are working as skilled Group C employees as
per Recommendation of 6th Central Pay Commission.
The M T S is required to render each
or any kind of job which was earlier considered as Group D job. Thus, a Peon
who prior to be placed in Group C (MTS) was attached to superior Officers in a
comparatively better working environment is now likely to be asked to render
the job of Safaiwala. Similarly, an erstwhile Group D who prior to be placed in Group C rendered
duty which was a General Duty ( 9-30 AM to 6PM) is now open to be asked by the
Administration to attend the duties of Chowkidar (Shift Duty). In both the
cases, the concerned MTS cannot disobey the order under the Recruitment Rules. Apart
from general policy in the Neo-liberal economic regime, the situation stated
above has given a strong handle to the administration to out-source the House-
Keeping and Watch & Ward duties with indirect support of the MTS in
particular and employees in general. The Unions / Associations are willy-nilly
accepting the out-sourcing.
Salient
feature
a)
Under present dispensation directly recruited Casual Workers
and Contract-Labourer engaged through Contractor/ Service Providers are facing
serious difficulties in getting wages as per Govt. of India’s Instructions. The
central ideas of all this instructions is : In cases where the workmen perform the same or similar kind of work as
the workmen of the same establishment, regularly and directly recruited
/employed, the wage rates, holidays, hours of work and other conditions of
service shall be same for same or similar kind of work.
b)
Similarly in the matter of Social Security measures the
directly recruited Casual workers without Temporary Status are badly discriminated
compared to their counterparts working as Contract- Labourer.
c)
Directly recruited Casual Workers are not covered under any
Grievances Settlement Machinery like Contract-Labourer, covered under
Industrial Dispute Act.
d)
In the Industrial Dispute Act there is reference to
Retrenchment of workman as a result of Domestic Inquiry. But neither for the
directly recruited Casual Workers nor for the Contract-labourer there is
codified Domestic Inquiry Procedure, common to all employer.(Sec 2 (o o) of the
Industrial Disputes Act 1947)
e)
Both in respect of directly recruited Casual Worker and
Contract-Labourer there is no scheme for (i) review of performance for change
of category viz. from un-skilled to semi-skilled, Skilled, Highly Skilled
worker (ii) regularisation in service.
This
representative Organisation of Non-Regular Workers of west Bengal is of the
opinion that only un-skilled Job of the erstwhile Group D Grade may be
out-sourced. The guiding principle should be: (i) Persons on daily wages should
not be recruited /engaged for work of regular nature (G.I. Dept. of Per. &
Trg. OM no.49014/2/86-Estt.(C) dated the 7th June 1988 and Sec.10 of
the Contract Labour (Regulation & Abolition) Act 1970)
(ii)
Engagements of persons on daily wages should not be made for performing duties
of Group C Posts. (G.I. M.F. OM No.49014/16/89-Estt.(C) dated the 26th
February 1990)
Also holds the opinion that as part
of streamlining the Out- sourcing, Govt. should publish a Manual as a follow up
measure to issuance of OM dated 23rd January 2013 on equal wages
etc. admissible to the workmen
engaged through Contractor in the Central Govt. Offices / Establishments. A
draft Manual is placed for consideration of the 7th CPC.
The draft Manual of Non-regular
Workers of Central Govt offices has been prepared based on some important and
vital Notifications, provisions of Act & Rules (Labour Laws).some of which
are given below:
a)
Chief Labour Commissioner, Govt. of India, Min. of Labour
& Employment’ s OM issued under File
No.14(113) Misc.RLC (Co-Ord)/2012 dated 23rd January 2013.
b)
G.I. Dept. of Per. & Trg.OM No. 49014/2/86-Estt(C) dated
7th June 1988.
c)
Rule 25(2)(a) of Contract-Labour (Regulation & Abolition)
Central Rules 1971
d)
G.I. Dept. of Per. Trg.OM No 51016/2/2/90-Estt.(C) dated 10th
September 1993 and Dept. of Posts letter No 45-95/87-SPB-1 dated 12th
April 1991
NOTE: The OMs quoted at (d) are relating to conferment of
Temporary Status to Casual Workers who were in employment on the date of issue
of above OMs and have rendered a continuous service of at least one year, which
means that they have been engaged for a period of at least 240 days (206 days
in the offices observing 5 days week).
The Casual Workers who are
in employment in some Depts. Including Postal Dept. were engage by the
Departmental Authorities after the crucial date for grant of Temporary Status on
administrative consideration. The respected Members of the 7th
Central Pay Commission are aware that none of the existing Casual Workers are
Self-engaged and decision to employ Casual Workers for rendering permanent job
of perennial nature was not taken to solve the unemployment problems.
Thus, while preparing the
Draft Manual, some provisions have been incorporated which would have been
applicable to the Casual Workers had they been on employment on the crucial
date when the scheme of grant of Temporary Status was given effect to.
Similarly Out-sourcing of
job is an administrative decision to cope with the cumulative effect of embargo
on creation of New Post and filling up of vacant posts since early nineties.
Person who is being engaged as Contract-Labour is part of unemployed youths of
our Country and bonafide job seekers. State should not avoid its responsibility
towards such youth for providing a decent life.
ANNEXURE-B
Draft Manual
of Non-Regular Workers in Central Govt. Offices
PREFACE
Keeping in view the Judgment of the
Supreme Court delivered on 17th January 1986 in the Writ Petition
filed by Shri Surinder Singh and Others vs Union of India, the policy regarding
engagement of persons on daily wage was reviewed by the Govt. of India. The
first consolidated instructions on General Terms and Conditions for employment
of casual labour in Central Govt. Offices /Estt was issue in June 1988. Main
instructions were (i) Persons on daily wages should not be recruited for work
of regular nature and (ii) Recruitment of daily wagers may be made only for
work which is of casual or seasonal or intermittent nature or for work which is
not of full time nature, for which regular posts cannot be created [G.I. Dept.
of Per. & Trg.OM. No.49014/2/86-Estt.(C) dated 7th June
1988]
Besides above category of workers who
were on direct pay-roll of Govt. in few Departments there was another category
of daily wagers viz. Contract-Labourers engaged by the Contractor for
out-sourced job. Their service conditions etc. were regulated under
Contract-Labour (Regulation & Abolition) Act 1970 and Central Rules 1971
made there under. The Contract-Labour (Regulation & Abolition) Act 1970 was
promulgated on the recommendation of the Second National Labour Commission held
in the 1959.
Due to imposition of total ban on
creation of new Group D post followed by ban on filling up of vacant posts,
implementation of Report of the Expenditure Reforms Commission, abolition of
two posts out of three vacant posts, the administration faced uphill tasks of
maintaining minimum services (House-Keeping) and providing Group D services to
the Senior officers. Administrative Authorities took recourse to recruiting
Casual Workers and or out-sourced the job to be done by engaging Contract-
Labourers through Contractors. The principle that persons on daily wages should
not be recruited for work of regular nature (perennial and permanent) was thus
violated by the followers of New Economic Policy. The practice of recruitment
of daily wagers (Casual Workers) having been stopped, the administration
started depending more and more on out-sourcing of job outside the purview of Labour Laws viz. Contract-Labour (Regulation
& Abolition) Act 1970.
To bail out the administration from
unusual situation, Govt. of India inserted a new clause in the General
Financial Rules 2005 (Chapter-Purchase of Stores and Services) authorising the
Departments to out-source any category of job . The only condition is to ensure
inclusions in the Tender Inquiry of conditions fulfilling statutory and
contractual obligations by the parties to the Agreement.
2) The service conditions etc. of the
directly recruited Departmental daily wagers known as Casual Workers are mainly
regulated under two Orders i.e. Order dated 7.6.1988 (General Terms and
Conditions for employment of casual labour) and OM dated 10.09.1993 [Department
of Personnel & Training, Casual Labourers (Grant of Temporary Status and
Regularisation) Scheme]
3)
In the case of out-sourcing and contractisation, statutory obligations
referred above means obligations under all kind of Labour Laws viz. Contract-
Labour (Regulation & Abolition) Act, Minimum Wages Act, Payment of Wages
Act, Employees’ Provident Fund Act, E S I Act, Gratuity Act, Bonus Act and
Industrial Dispute Act etc. All the parties to the Agreement are required to
fulfil the Statutory Obligations arising out of above Labour Laws.
Why it is felt necessary to compile
and publish a Manual of Non-Regular Workers in Central Govt. Offices?
Under present dispensation there is
no scope of addition or subtraction of existing strength of directly recruited
Casual Workers in Central Govt. Offices
for the reasons: (i) Govt. instruction debarring recruitment of Casual
Workers directly (ii) Existing Casual Workers
were recruited after 1.9.1993 and not covered under Grant of Temporary Status
Scheme 1993 applicable to Casual Workers recruited on or before 1.9.1993
(benefits of the Scheme were extended to directly recruited casual workers who
were on service on the crucial date i.e. 1.9.1993) (iii) Supreme Court’s
Direction to regularise the services of casual workers with 10 year service as
on 1.4.2006. Both the benefit of (ii) and (iii) were one-time measure.
Basic difference between Casual Workers and Contract-Labourers is that
while in case of Casual Workers the work remains with the Govt.,
Contract-Labourers are employees of the Contractor engaged for out-sourced
departmental job.
Ordinarily Casual Workers were recruited in
the administrative offices and Contract-Labourers were found in the
construction wings of few departments like CPWD. Administration had no direct
day-to-day dealings with the Contract-Labourers---their activities were
confined in the Construction sites. Only in case of disputes over payment of
wages etc. the administration had some responsibilities in the grievance
settlement process under Industrial Disputes Act. It is significant to note
that directly recruited Casual Workers ordinarily are not covered under any
Grievance Settlement Machinery. Let us
have a look at the characteristics of two categories of daily wagers in the
Central Govt. offices.
Wages:-
Casual Workers--- Where the nature of
work entrusted to the Casual Workers and regular employees is the same the
Casual Workers may be paid at the rate of 1/30th of the pay at the
minimum of the relevant pay scale plus Dearness Allowance for work of 8 hours a
day. (Clause (iv) of OM dated 7.6.1988)
Contract-Labour-------- In cases where the
workmen employed by the contractor perform the same or similar kind of work as
the workmen directly employed by the Principal Employer of the establishment,
the wage rates, holidays, hours of work and other conditions of service of the
workmen of the Contractor shall be the same as applicable to the workmen
directly employed by the Principal Employer of the establishment on the same or
similar kind of work. (Rule 25(2)(v)(a) of Contract-Labour(R&A) Central
Rules 1971.)
In other cases the wage rates, holidays, hours
of work and conditions of service of the workmen of the Contractor shall be
such as may be specified in this behalf by the Deputy Chief Labour Commissioner
(Central).
Explanations:
while determining the wage rates, hours of work and other conditions of service
as above (b) , the Deputy Chief Labour Commissioner (Central) shall have due
regard to the wage rates, holidays ,hours of work and other conditions of
service obtaining in similar employments ( Rule 25(2)(v)(b) ibid)
Earlier, in case of engagement of
workers through Contractors by the Ministries and Departments of Central Govt.
there was no separate administrative
instruction on rates of wages etc exclusively for such categories of
workmen.
Authorities of the different Departments
interpreted the provisions of
different Labour Laws freely according to their requirements.
Expectedly
the provisions of Contract-Labour(R&A) Central Rules 1971 have been
reiterated in the centralised instruction on wages etc of the
Contract-Labourers issued by the Govt. in January 2013 (O/O the Chief Labour
Commissioner, Min. of Labour & Employment OM issued under File No.
14(113Misc.RLC(Coord)/2012)
Summary of
Entitlements
WAGE:
Where the
nature of work earlier done by erstwhile Group D Staff (now designated as MTS)
rates of Wages for non-regular workers (un-skilled) in Central Govt. offices
whether recruited directly by the Ministry /Dept. or engaged through Contractor
is the same shall be 1/30th of
the relevant pay scale plus Dearness Allowance (based on the formula
applicable to Central Govt. employees); House Rent Allowance and one of the
Compensatory Allowance beneficial to them for work of 9 hours a day (Minimum in
the PB1 plus Grade Pay Rs 1800) with ½ hour break.
Other
conditions of service:
Holidays *
(i)
Three National Holidays
and eleven other occasions which will be compulsorily observed throughout India
as Holidays in a year.
(ii)
Holidays declared under N.I. Act.
(iii)
Office remaining close in
the event of death of High Dignitaries like President and or Prime Minister
(iv)
Office remaining close in connection with elections to Lok Sabha / State Assembly or
Local Bodies.
*The Holidays mentioned
above shall be in addition to weekly Paid-off.
Leave (after
continuous service of at least one year)
(i)
Leave entitlements will be
on a pro-rata basis at the rate of one day for every 10 days of work. Leave at
credit shall be carried forward on regularisation. (Clause 5(iii) of Casual
Labourers (Grant of Temporary Status and Regularisation Scheme1993)
(ii)
Maternity leave to lady
workers shall be allowed as regular employee (Clause 5(iv) ibid)
(iii)
Absence from work up to
one day in a month for urgent and genuine reasons, maximum eight days in a
year, will be ignored for the purpose of weekly paid-off.
Increment
Benefits of
increments at the same rate as applicable to regular employees for every one
year of service calculated from completion of first year of service.(Clause
5(ii) ibid)
Social Security
(i)
Employees’ Provident Fund/Scheme
evolved under New Pension Scheme.
(ii)
Employees’ State Insurance
Medical Benefit Scheme
(iii)
Lump-sum payment on
termination of service under the Gratuity Act.
(iv)
The Central Govt.
Employees’ Group Insurance Scheme.
Bonus
Minimum Bonus as per Bonus Act/ Productivity Linked Bonus /
Ad-hoc Bonus, whichever is beneficial.
Misc
a)
Career advancement:
Periodical review of performance for change of classification viz. unskilled,
semi-skilled etc.
b)
Supply of Uniform and Washing Allowance
c)
Eligibility to appear in
Recruitment examination in MTS Grade as Departmental Candidate and age relaxation
on selection providing corresponding provision in the Recruitment Rules. Some
percentage of promotional posts may be earmarked for direct regularisation of
Non-Regular Workers as in the Postal Department.
d)
Eligible for grant of
Festival Advance, Flood Advance provided they furnish two Sureties from two
regular employees of the Office. (Clause 5(vi) ibid)
e)
The services of a
non-regular worker may be dispensed with after giving notice that he/she has
attained 60 years of age provided there is Scheme of Defined Category of
Retirement Benefits under the Employees’ Provident Fund Act 1952 and the
Payment of Gratuity Act 1972 or under a Scheme evolved under New Pension Scheme.
Note: compiled on the benefits that would have been enjoyed
by the Casual Workers under Grant of Temporary Status to Casual Workers’ Scheme
1993.The complement of Casual Workers engaged after 1st September
1993 are not covered under the said
Scheme although they have rendered a continuous service of at least one
year, which means that they have been
engaged for a period of at least 240 days ( 206 days in the case of offices
observing 5 days week)
Above benefits shall be
applicable to Contract-Labourer mutatis-mutandis.
ANNEXURE-C
Grievances Settlement Machinery
(i)
Union/Association
registered under Trade Union Act shall enjoy the status of Negotiating
Union/Association. When there is no such Union /Association the Non-Regular
Workers may select /elect one or more workman in the Joint Management Council
for discussion of the problems of the Non-Regular Workers (local issues)
[Sec-3A, I.D.Act] Alternatively, Office Council (JCM) may be utilised.
(ii)
The Industrial Disputes
Act 1952 and I.D (Central) Rules 1957.(Annexure A)
Conduct:
The unique
feature of the Industrial Disputes Act is that the Fifth Schedule thereto
contains Unfair Labour Practices both on the part of employers and workmen and
their respective trade unions. [Sec 25T, 25U, 26 to 31]
Retrenchment
of Workman
No workman
employed in any establishment who has been in continuous service for not less
than one year under an employer shall be retrenched by that employer until the
condition precedent to retrenchment laid down in Sec 25- F and 25-N of the
Industrial Disputes Act is fulfilled.
Authorities:-
1)
G.I. Dept. of Per &
Trg. OM No. 49014/2/86-Estt.(C) dated the 7th June 1988 and Min. of
Labour, OM. No. 53202/16/86-W.C.(M.W) dated the 23rd August 1988
2)
G.I. Dept. of Per.&
Trg. OM No 51016/2/2/90-Estt.(C) dated the 10th September 1993
circulating Department of Personnel and Training, Casual Labourers ( Grant of
Temporary Status and Regularisation) Scheme of Govt. of India 1993 and G.I. Dept.of
Posts, Letter No 45-95/87-SPB-1 dated the 12th April 1991.
Department of Posts, Recruitment Rules for Multi-Tasking
Staff.
ANNEXURE-C-I
Govt. of
India Non-Regular Workers (Conduct & Domestic Inquiry) Rules
1.
Short Title & Commencement:
a)
Govt. of India Non-Regular Workers (Conduct & Domestic)
Rules.
b)
They shall come into force on and from the date of order.
2.
Application:
These rules shall apply to
Non-Regular Workers engaged for job in Offices under Central Govt. Min. / Dept.
3.
Definitions:
a)
Employer means Service Provider /Contractor and Head of
Office
b)
Non-Regular Workers means:
i)
Workers engaged through Service Providers /Contractors
ii)
Directly recruited Daily wager in the Central Govt. Offices
c)
Principal Employer means Head of Offices empowered to
out-source job under the General Financial Rules 2005
CONDUCT:
A)
Unfair Labour practices on the part of workmen and Trade
Union of workmen (Part II of the Fifth Schedule, Industrial Disputes Act,1947)
B)
Act which is normally treated as unbecoming of a person
rendering job in the Govt. premises.
C)
Conviction in criminal charges
D)
Insolvency and habitual indebtedness
E)
Unauthorised communication of information relating to his
/her place of work.
DOMESTIC
INQUIRY:
Procedure for Domestic Inquiry
a)
Whenever intimation is received by the Head of Office
/Principal Employer about the commission of an offence by a Non-Regular Worker,
the Employer in respect of Contract-Labour will be informed. Preliminary Inquiry is to be conducted after obtaining explanation of the concerned
Non-Regular Worker. If the Head of Office in respect of directly recruited
daily wager or Employer and the Principal Employer unanimously come to the
conclusion on the basis of evidences, both documentary and oral may order
holding of Inquiry for the purpose of imposing Penalties as under:
i)
Censure
ii)
Debarring from being considered for regularisation in service
iii)
Debarring from being considered for recruitment to
Multi-Tasking Staff on the basis of selection-cum-seniority for a period of not
exceeding two year.
iv)
Removal from engagement which shall not be a disqualification
for future employment
v)
Dismissal from engagement which shall be ordinarily be a
disqualification for future employment.
NO ORDER IMPOSING A PENALTY SHALL BE
PASSED EXCEPT AFTER:
a)
The worker is informed in writing of the proposal to take action
against him and the allegations on which it is proposed to be taken and given
an opportunity to make any representation he may wish to make and
b)
Such representation, if any, is taken into consideration by
the Employer.
provided, that the penalty of Dismissal or Removal from service shall not
be imposed except after an inquiry in which he has been informed of the charges
against him and has been given a reasonable opportunity of being heard in
respect of the charges.
further provided, that where it is proposed
after such enquiry to impose upon him any such penalty, such penalty may be
imposed on the basis of evidence adduced during
such enquiry.
APPEAL
The Appellate Authority shall
consider-
a)
Whether the procedure specified in these rules has been
complied with.
b)
Whether the findings are justified
c)
Whether the penalty imposed is excessive, adequate or
inadequate and pass order
i)
Setting aside, reducing, confirming or enhancing the penalty
ii)
Remitting the case to the authority which imposed the penalty
or to any other authority with such direction as it may deem fit in the
circumstances of the case.
Provided that no order
imposing an enhanced penalty shall be passed unless the appellant is given an
opportunity of making any representation which he may wish to make against such
enhance penalty.
The appropriate Appellate Authority shall be:
In respect of Casual Worker--- Departmental Officer
immediately senior to the
Recruiting Officer
In respect of Contract-Labour---Head of the Department or his
authorised representative other than the Head of Office
