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.
