The standoff between the NLU Delhi administration and a group of students protesting for the continuing employment of up to 55 campus cleaning staff (indirectly) came to a head over the weekend as on Friday one student and one worker were allegedly briefly detained by the police after student protests outside the main gates.
The students’ protests outside of the closed University gates on 19 June, was disbanded by the police that turned up and allegedly took away one of the protesting students and workers in a police car (see the students’ statement of alleged events for more details).
In response, a group of 172 NLU Delhi alumni had yesterday signed an open letter, urging the administration to intervene to protect students from any further coercive criminal actions for legal protests.
According to the alumni: “The University administration did nothing to intervene and prevent this despite being aware of these events including the fact of police presence at the University gate. This inaction reveals that administration’s acquiescence at best and involvement at worst, both of which are deeply troubling”.
“We hope that no further coercive actions are taken by the University against the student or worker in question or against any other individual involved in the effort for the worker’s reinstatement. We also hope that this incident is an aberration and never again will a student of National Law University, Delhi face coercive criminal action for upholding the rule of law and supporting the social mandate as per the University’s vision.”
The protesting students had also alleged that the university had made threats of disciplinary action against them, which the university had “vehemently denied” last week.
According to an email from NLU Delhi’s assistant registrar on behalf of the administration, dated 10 January 2020, however, “proctorial board” action against protesters had apparently been discussed:
“The University is not in the way of peaceful protest /demonstration. However, the concern was that the demonstration / Protest on 08/01/2020 Wednesday was not peaceful enough as there were offensive sloganeering in it and this was pointed out during the meeting that we need to avoid this and have the issue in the center. The role of proctorial board and maintaining of discipline in the campus was mentioned in this context. All are expected to exercise restraint in this regard.”
University claims no knowledge but…
The university, when contacted by us on Friday about whether it was aware of the above email and whether it had summoned the police on Friday, as students had implied, said in a statement through a spokesperson: “As the University is currently observing off so we do not know about this issue. Moreover, no such instance took place inside the University. Nor, we have any official information on this matter.
“Nothing else need any comment at this stage.”
However, the university added that it was “sharing a factual report on this issue which you may please carry out separately in the interest of balance and equity”.
We have shared that report with the protesting students for a response, both of which we have summarised and also included below in full.
The case for and against, summarised
In very brief summary, the NLU administration claims that it has nothing to do with the dispute, since it was an issue between the workers and the contractor, which the university had a separate service agreement with.
The university claimed it could not be expected to was “under no legal liability to provide perpetual employment to the workers deployed” by the contract after expiry of the contract.
By contrast, the students argued that the order did not mandate “permanent absorption of the old workers” by the university, as it had argued, but extended only to cancellation of the new contract and “retention” of the workers, many of whom had been working under the same repeatedly-extended contracts for the university for 12 years.
They also alleged that the tender process for the new contractor was flawed and lacked a “manpower assessment”, which was obligatory under an office order of the Delhi government. As a result, “the number of workers engaged through [the contractor] from the outset has been unclear”, said the students, and in any case a 20% reduction in workforce from 55 to 39 under the new contract was “exploitative”.
“The University administration clearly mentioned that the requirement is for 71 workers then ‘Why did the University administration accept a financial bid that cannot even support minimum wages of the required workers?’,” said the students.
NLU Delhi noted that it was bound by its Act to run any decisions with “financial implications” past its various administrative councils, so it was not delaying implementation of the Delhi government’s labour ministry order, as we had reported by deferring to its chancellor, but it was instead “about a fair process as per the rule of law”.
The students disagreed. Since NLU Delhi was a state-funded university with several government secretaries on its administrative councils, they argued that Delhi’s ministry of labour was “well within its powers” to order the university to re-employ the workers, making this a “legal and reasonable process”.
Furthermore, the students pointed out, the vice-chancellor (VC) has wide powers to deal with contract management, and indeed, had “unilaterally decided to retain 6 and later 23 Karamcharis out of the 55”, which was a “clear exercise of power without prior authorisation” from its various councils.
NLU Delhi ‘factual report’ on ‘Safai Karamcharis’ issues
Below, in full, the NLU Delhi administration’s statement setting out its legal and factual position with respect to the retention of the workers (full students’ response follows below).
The University on the issue of “Safai Karamcharis” wishes to clarify its stand by giving the factual position of the matter as the mass e-mailing, social media reports and news coverage on this subject are not only distorted versions but also suppressive of vital facts.
- This dispute is primarily between the workers and the contractor/company. The University never hire workers; it only hires services. The deployment of workers keeps changing and only the service remains static. In such a contractual situation, the University is under no legal liability to provide perpetual employment to the workers deployed by the company after the completion of the term of the contract. The workers have no enforceable rights vis-vis principal employer for continued retention and hence any direction to retain them after the termination of contract is without any legal basis.
- The test laid down by Hon’ble Supreme Court in Bharat Heavy Electricals Ltd. vs. Mahendra Prasad Jakhmola & Ors. dated 20.02.2019, to determine the relationship of employer and employee, the representationists cannot be deployed by the University and pay their wages since neither the University employed them nor were they being paid their wages directly by the University.
- Presently out of 36 workers, 14 are the workers provided by earlier service providers, and 22 are the workers of the present service provider. Again the matter was discussed with the present service provider was discussed, and he was made to agree that the 22 workers employed by him, shall also be replaced by 22 workers of earlier service provider, who will be placed at some other site of the present service provider. As such these 22 workers of the earlier service provider were offered to join with the present service provider, out of which only 8 workers have joined. Remaining are adamant to join only in case they are given the assurance that the University will absorb them permanently, whosoever the contractor may be in future.
- It is reiterated, the University took all possible humanitarian measures to provide them alternate employment and gave the workers this assurance in writing (enclosed). Where is the hardship? Why the workers are then insisting the employment in the University only? No one is asking this question under what rights or legal obligations, the University is expected to retain these workers perpetually. Any instruction to this effect is bad in law ab initio.
- The core question is: Can the workers (present and past) employed by the contactor (s) would be permanently absorbed in the University service irrespective of the change of the contractor?
- It is worth mentioning that allowing such practice of deploying the manpower of outgoing contractor would result in alarming increase in the number of such manpower and there will be no use of having a contractor for supply the manpower, as it will be a sham contract and all such manpower will be treated as employee of the University. (This position has been held and reiterated by the Apex Court in many judgments).
- We would appreciate all concerned to examine this issue on factual and legal grounds instead of sensationalize the matter.
- The NLUD University Act 2009 requires any proposal having a policy question or financial implications will have to be approved by the administrative authorities i.e. Finance Committee/Executive Council/ General Council. The matter has also been placed before the Hon. Chancellor This is more so when such proposal/instruction is coming from external channels who are not the part of the administrative regime of the University. This is not about any delaying or anything. It is all about a fair process as per the rule of law.
- The University has full authority to get any instructions legally examined specially when it falls out of its administrative channels and hence taking this to the Executive Council or General Council is only in consonance with the Act/Regulations. This exercise is absolutely fair.
- The University would immediately follow any outcome that emanates from a legal and reasonable process.
Students respond to admin’s ‘factual report’
The response to the university’s statement by the NLUD Workers Students Solidarity stated:
The matter of reinstatement of the Safai Karamcharis and cancellation of the contract is not just between the contractor and the workers. The University, being a principal employer, has clear obligations under the Contract Labour (Regulation and Abolition) Act 1970. As a matter of fact, the University administration has been a part of the meetings with the Hon’ble Labour Ministry and has actively participated in the process, even in the absence of the contractor. Moreover, the written order is addressed to the University Registrar, NLUD and not the contractor. The University cannot shrug responsibility on the matter at this stage.
- The Tender process for the present contract with Rajendra Management Group (hereinafter “RMG”) was flawed. As per Delhi Govt. Office Order F-4/20/08/AR/921-1080/C dated 16.01.2009, manpower assessment is mandatory. Admittedly, no such manpower assessment has been undertaken till date.
- The number of workers engaged through RMG from the outset has been unclear since the beginning. The Notice for Expression of Interest mentioned the requirement of the housekeeping staff as 71. RMG deployed 30 workers, (later, increased to 39) as opposed to 71. Moreover, all tender documents including the contract are silent on the number of workers deployed. It is also important to mention that the RMG’s Financial bid does not support the minimum wages of the required workforce i.e. 71. Thus, RMG’s bid should have been rejected at the pre-qualification stage, especially since there were other bidders with qualified financial bids. The number of workers employed under the previous contract was 55. Even if that is the metric, reducing from 55 to 39 is exploitative, as it saves beyond 20% workforce.
- NLU Delhi, established under the NLUD Act 2007 (a State Law) is a state-funded University. The Labour Ministry under the Delhi Govt. is, thus, well within its powers to pass the present Order dated 17.06.2020 on the issue of sanitation services, making this a ‘legal and reasonable process’. Moreover, various secretaries of the Delhi Govt constitute the University’s decision-making bodies such as Governing and Executive Councils. The University has received grants of Rs 12 Cr. and Rs 9.5 Cr. from the Govt. of NCT of Delhi during the financial years 2017-18 & 2018-19 respectively.
- The Written Order is only limited to cancellation of the contract and retention of the workers. It would be superfluous to read it as permanent absorption of the old workers in the University. Therefore, the judgment cited in the University’s Press Note deals with a clearly distinguishable set of facts and pertains to a different law i.e. U.P Industrial Disputes Act 1947. It is irrelevant to the present issue.
- Further, in pursuance of the provisions drawn from Section 14 of NLUD Act 2007 (Delhi Act No 1 2008 as amended by Act 7 of 2009), the Executive Council designated the Vice-Chancellor as a ‘Competent Authority’ under the NLUD Purchase Regulations, to deal with outsourcing of services and contract management. Exercising the same power, the University administration unilaterally decided to retain 6, and later 23 Karamcharis out of the 55. This is a clear exercise of power without prior authorisation of the Governing and Executive Councils. Thus both law and practice are clear that the Vice-Chancellor has the power to cancel the contract and retain the workers in the university.
- The University administration has an obligation towards these workers owing to the peculiar state of affairs. The administration kept on renewing the housekeeping contract for 12 years, with nearly the same set of workers, ‘without formal contract agreement with the (erstwhile) contractor’ and ‘without advertised tender enquiry process’. Even after the term of the old contractors ended, the workers were engaged by the University directly for 3 days (28.12.19 to 30.12.19). When the University won the 3rd prize in ‘Swachh Campus Ranking’, the Vice-Chancellor gave credit as well as a cash prize directly to the housekeeping staff. The University has been the direct beneficiary of the workers’ hard work. Yet, the Karamcharis were removed from their services without any prior written notice.
- The offer of alternate employment was unanimously rejected by all the workers. Fearing being targeted and exploitation by the contractor, against whom the workers were fighting, the workers unanimously rejected the offer. Further, since the duration of the contract and job security at the alternate sites has not been specified at all, it is plausible that the contract might be for a short duration rendering them unemployed again in a few months. Moreover, it is difficult to comprehend the feasibility of the offer since the contract itself is illegal. The claims of any offer of alternate employment are a distraction from the illegality of the new contract and the University’s liability for the same.
- It is crucial to raise certain questions: ‘Why is the administration not implementing a Government Order?’. Despite an overwhelming majority of the student body and elected students’ committees urging them to do the same, ‘Why is the illegal contract not being cancelled?’. More importantly, ‘Why was the bid of RMG even accepted despite disqualifications?’ The University administration clearly mentioned that the requirement is for 71 workers then ‘Why did the University administration accept a financial bid that cannot even support minimum wages of the required workers?’