Showing posts with label Minimum Wages to people with disabilities appointed on contract. Show all posts
Showing posts with label Minimum Wages to people with disabilities appointed on contract. Show all posts

Friday, April 5, 2019

Vivek Mittal Vs. Dte of Education & Ors | Case No. 4/461/1023/2018/08/1655-1660 | Dated: 04.04.2019




In the Court of State Commissioner for Persons with Disabilities
National Capital Territory of Delhi
25- D, Mata Sundari Road, Near Guru Nanak Eye Centre, New Delhi-2
Phone-011-23216002-04, Telefax: 011-23216005,
[Vested with powers of Civil Court under the
Rights of Persons with Disabilities Act, 2016]

Case No. 4/461/1023/2018/08/1655-1660                 Dated: 04.04.2019

In the matter of:

Sh. Vivek Mittal,
WZ-634A/1, Sri Nagar,
Gali no.2, Delhi-110034.                                                  …… Complainant
                                     
Versus

The Principal,
Directorate of Education,
Old Secretariat,
Delhi-110054.                                                             .......Respondent No.1

The Director,
M/s Fourth Dimension Solutions Ltd.,
DSM-340, DLF Tower, Shivaji Marg,
Najafgarh Road Industrial Area,
New Delhi-110015.                                                  .......Respondent No.2

The Central Provident Fund Commissioner,
Employees’ Provident Fund Organisation,
Head Office, Bhavishya Nidhi Bhawan,
14, Bhikaji Cama Place,
New Delhi-110066.                                                    .......Respondent No.3


Date of hearing: 20.03.2019

Present:   Complainant on telephone.
                
                 Dr. Haresh Pandey, Vice Principal/HOS, SBV, BT Block, Shalimar Bagh, New Delhi, on behalf of Respondent No.1

ORDER

The above named complainant, a person with 40% locomotor disability vide his complainant received on 21.08.2018 submitted that he was appointed as a computer teacher in GBSSS, BL Block, Shalimar Bagh, Delhi through a private company M/s Fourth Dimension Solutions Ltd. W.e.f. 03.11.2015.  He was removed when the regular teacher joined.  During his engagement with the company and the school, he was in receipt of Rs.10,921/- p.m. which was reduced to Rs.9000/- p.m. by the company and in the last 2 months of his engagement, he was paid Rs.7780/- and Rs.8040/-.  He also stated that though he worked till April, 2018, he is being paid the provident fund.  He also stated that though he worked till April, 2018, he is being paid the provident fund only upto March, 2017.

2.       As per the salary slip issued by M/s Fourth Dimension Solutions Ltd. for the month of April, 2017, the consolidated earnings of the complainant is shown as Rs.12662/- and after deduction of Rs.1741/- his net salary was Rs.10921/-.  As per the appointment order No. FDS/ICT/15-16/457 dated 31.10.2015 issued by  M/s Fourth Dimension Solutions Ltd., the complainant was selected to work as school faculty/ teacher on contract basis for 9 months from the date of association which was extendable as per the requirement of the project and depending upon his performance.  It further says that during the contract period, the company will pay him Rs.11986/-.  He was advised to report for duty by 02.11.2015 in the allotted school.  M/s Fourth Dimension Solutions Ltd. appointed the complainant for deployment in GNCT of Delhi school under Delhi ICT Project of TCIL with P.O. reference No. TCIL/15/1605/1/14-MM/099P.  He was relieved vide relieving order No.103 dated 28.04.2018 of GBSSS, BL Block, Shalimar Bagh on 28.04.2018.

3.       The complaint was taken up with Dte. of Education vide letter dated 05.09.2018 and 22.10.2018 under the Rights of Persons with Disabilities Act, 2016, hereinafter referred to as the Act.  A copy of the letter was also sent to the Labour Commissioner, GNCT of Delhi for necessary action.  Joint Labour Commissioner, District (West) vide letter dated 15.10.2018 informed the complainant that the teachers are not covered under the Minimum wages Act, 1948.  Hence, no action was warranted by that office.  As regards the provident Fund, they advised the complainant to pursue the matter with the Regional P.F. Commissioner, EPFO.  Thereafter, a hearing was held on 26.12.2018.  As no inputs were received from the Dte. of Education and M/s Fourth Dimension Solutions Ltd., the matter was adjourned to 18.01.2019 and Central P.F. Commissioner, EPFO, Head Office was impleaded as respondent No.3.

4.       Dte. of Education vide letter dated 09.01.2019 submitted as under:-
“The Centrally sponsored scheme of ICT in schools was started in 2010 by MHRD.  The proposal of the Directorate of Education for coverage of 594 schools was approved by MHRD in Oct., 2010 and coverage of remaining 516 schools were approved in May, 2011 taking the total number of schools under ICT project to 1110.  A proposal from TCIL, a Govt. of India enterprise for implementing the project was received in July, 2011.  The Govt. of Delhi approved engagement of TCIL on nomination basis in July, 2012.  However, the vetting of the various clauses of the agreement the IT, Law & Finance Department was a protracted process and the agreement with TCIL could be signed on in Oct., 2013.
As per the clause No. 10 of the agreement the qualification prescribed for I.C.T. Faculty/Instructor is Graduation with PGDCA/BCA/MCA or other higher education from reputed institutions.  As per clause 541 of the governing agreement, which provides the indicative project cost to be reimbursed to TCIL, faculty salary (for ICT Instructors) has been calculated at the rate of Rs.9000/- per month.  There is no escalation clause in the governing agreement with respect to this reimbursable project cost.  Clause No.24 of the agreement provides that the rage of payment will remain consolidated for entire duration of 5 years i.e. agreement period.  These rates have been incorporated in the agreement on the basis of the costs submitted by TCIL.
Some clauses of the agreement in this regard are as under:-
Clause No.10 of the agreement provides that “The TCIL shall provide one full-time instructor at each school with the minimum qualification of basic graduation with PGDCA/BCA/MCA or other higher education from reputed institutions, the TCIL shall take complete resp0nsibility for the monthly remuneration to be paid to each faculty as per the guidelines of the scheme laid down by the MHRD prevailing during the period of implementation for this scheme.  The faculty shall be available for the entire duration of school hours.”
Clause No.11 of the agreement provides that the Directorate of Education has created 788 posts of PGT and 2016 posts of TGT Computer Teachers in the schools under the Directorate.  As and when the recruitment of computer teachers is done by DSSSB, the faculty provided by TCIL shall be replaced buy such permanent teachers.  The payment made to the TCIL shall be proportionately reduced for the replaced staff.
Further clause No.56(ff) of Governing agreement, states that The Directorate of Education will be under no legal obligations to provide any employment to any person of the TCIL during or after expiry of contract period and the department recognizes no employer-employee relationship between the department and the personnel deployed by the TCIL.
In view of the above it is clear that there is no employer-employee relationship between the department and the personnel deployed by the TCIL.
In view of above, it is requested that the instant Notice/Letter dated 27.12.2018 may kindly be recalled.

Sd/-
(K. MURUGAN)
JOIT DIRECTOR (CEP/CELL/IT)

5.       None appeared on behalf of M/s Fourth Dimension Solutions Ltd., respondent No.2 on 18.01.2019.  Respondent No.1 was advised to contact respondent No.2/the concerned functionary of the company and resolve the matter.

6.       None appeared on behalf of Respondent No.2 on 07.02.2019 also.

7.       On 20.03.2019, Dr. Haresh Pandey, Vice Principal/HOS, SBV, BT Block, Shalimar Bagh, New Delhi  submitted that the school tried to contact the functionaries of M/s Fourth Dimension Solutions Ltd. and also interacted on the mobile number of Sh. Y.K. Tripathi and Sh. Mukesh.  However, Sh. Tripathi disconnected the conversation immediately after learning about the matter.  He also submitted that MHRD project was being implemented by TCIL through M/s Fourth Dimension Solutions Ltd. and the Directorate of Education or the school has no role to play as indicated in DOE’s letter dated 09.01.2019.

8.       The complainant who was heard on telephone, submitted that initially he had no idea about the number of organisations and the chain involved in his employment as a computer teacher/instructor in a Government of Delhi School.  He was able to find out that TCIL is implementing the MHRD project, which in turn hired M/s Fourth Dimension Solutions Ltd.  for supplying the computer teachers in the schools.  As per his information, M/s Fourth Dimension Solutions Ltd. is on the verge of closure and they have not managed it properly and exploited persons like him.  He also stated that M/s Karvy Data Management Service Ltd. is also involved in the matter.

9.       Sh. Aashish K. Pandey of 4th Dimension Solutions Pvt. Ltd. was contacted on telephone No.9810308903 during the hearing.  He informed that they were actually paying to the complainant more than the amount they were getting from TCIL.  Vide his e-mail dated 03.04.2019, he submitted that as per records, the complainant’s salary was cleared upto July, 2017 and as per his belief, the complainant was paid directly by TCIL for the months of August and September, 2017.  The project had been terminated after October, 2017.  As regards the provident fund contribution, the same is pending from March, 2017 to October, 2017 of all the ICT employees and the matter is pending before a separate court.

10.     From the information that could be gathered with lot of efforts in this matter, it seems that the Centrally Sponsored Scheme had some inherent implementation problems including selection of the implementing agency.  It also appears that there was no proper Grievance Redressal Mechanism in place especially in respect of persons with disabilities despite there being a mandate in the Act that every government establishment shall appoint a Grievance Redressal Officer and every government as-well-as private establishment shall publish Equal Opportunity Policy to ensure that persons with disabilities are not exploited and discriminated against.

11.     The scheme under which the complainant was appointed is a Centrally Sponsored Scheme of Ministry of Human Resource Development and the Nodal Ministry for the implementing agency i.e. M/s 4th Dimension Solutions Pvt. Ltd. is the Ministry of Corporate Affairs, Govt. of India.  The complainant is therefore advised to make a representation to M/o HRD and TCIL who should examine his representation and ensure that all his dues are paid to him within two months from the date of receipt of his representation.  M/o HRD should also issue appropriate instructions to the implementing agencies to the effect that persons with disabilities are not exploited and issues concerning them should be handled promptly.

12.     M/o Corporate Affairs is advised to put in place a proper mechanism for creating awareness among the private companies to ensure that they do not discriminate against any employee with disability, publish Equal Opportunity Policy and comply with the provisions of the Rights of Persons with Disabilities Act, 2016.  An advisory should also be issued to all the private establishments in this regard.

13.     The case is disposed of with the above recommendations.

14.     Given under my hand and seal of the Court this 4th day of April, 2019.

(T.D. Dhariyal)
State Commissioner for Persons with Disabilities
Copy to:

1. The Secretary, Ministry of Human Resource Development, Govt. of India, Shastri Bhawan, Rajendra Prasad Road, New Delhi-110001.


2. The Secretary, Ministry of Corporate Affairs, Govt. of India, A Wing, Shastri Bhawan, Rajendra Prasad Road, New Delhi - 110001.