Friday, 29 August 2014

Memorandum to 7th CPC on Out-sourcing etc.

                        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
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                                                                                           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
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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 

1 comment:

  1. IS THIS RULE SAYING THAT A DRM WILL BE PAID ABOVE OR MINIMUM 15000/- FROM APRIL 2017

    ReplyDelete