The court emphasized that the jurisdiction of the court under Article 226 of the Constitution of India is not ousted, even though there may be an alternative remedy available, but the same is to be exercised sparingly. The general rule is to relegate the parties to avail of the alternate remedy under the Industrial Disputes Act, unless certain exceptional situations warrant the exercise of the Writ jurisdiction of the court.

JUDGMENT :

1. This judgment has been pronounced through video conferencing.

2. The present writ petitions have been filed by various Petitioners/Workmen (hereinafter referred as “Workmen”), who were working in the Employees’ State Insurance Hospital, Basai Darapur, Delhi-110015 (hereinafter referred as “ESI Hospital”) run by Employees’ State Insurance Corporation (hereinafter referred as “the Corporation”). These three writ petitions cover a total of 86 Workmen, who worked as Safai Karamcharis at the ESI Hospital. They were engaged by Uttar Pradesh Rajkiya Nirman Nigam (hereinafter referred as “UPRNN”) through a sub-contractor who is Respondent No.3, M/S. New S. S. Enterprises (hereinafter, “old Contractor”).

3. The case of the Workmen, is that the contract of maintenance of ESI Hospital was awarded by Respondent Nos.1 & 2, to the old Contractor, under the supervision of UPRNN, since August 2019. The Workmen were told on 30th May 2020 that the contract of Respondent Nos. 1 & 2 with the old Contractor had come to an end. Respondent No.4, i.e. M/S. S. N. Enterprises (hereinafter, “new Contractor”), was supposed to replace Respondent No. 3 as the new contractor, with effect from 1st June 2020.

4. The Workmen, thereafter, approached the supervisor of the new Contractor, requesting to continue services in the ESI Hospital. The allegation of the Workmen is that the new Contractor told them that if they wish to continue their services in the ESI Hospital, with the new Contractor, they would have to pay a sum of Rs.13,000/- each, which was their monthly salary, to the supervisor of the new Contractor. According to the Workmen, since they did not accede to the these demands, they have been disengaged from their services in the ESI Hospital.

Submissions

Submissions of the Petitioners/Workmen

5. Ms. Ritu Jain, ld. counsel appearing for the Workmen, submits that the legal position on the questions that have arisen in these writ petitions is well settled. She submits that no contractual employee can be replaced by another contractual employee, in accordance with the judgment of the Hon’ble Supreme Court in State of Haryana and ors. v. Piara Singh [(1992) 4 SCC 118], which has also been considered by a ld. Single Judge of this court in Anil Lamba v. GNCTD [238 (2017) DLT 760]. She further submits that until and unless there is a specific allegation of misconduct against any particular Workman, they cannot be removed from service and an en masse sacking of all the contractual Workmen is completely illegal. She also relies upon the recent order of this court in Sh. Hemant Kumar and Ors. v. Employees State Insurance Corporation and Ors. (W.P.(C) 6891/2019), where a ld. Single Judge of this court has relied upon Piara Singh (supra) and Anil Lamba (supra) to hold that the old Workmen need to be absorbed by the new Contractor. Ms. Jain, ld. counsel submits that this recent consideration by the Court, vide the abovementioned order, itself settles the matter in the favour of the Workmen, and there is no reason as to why this order should not be followed.

6. Ms. Jain then compares the tender quoted last year, which was for 153 workers, with the one floated this year, and submits that for 122 workers in this year’s tender, a higher amount of money is being paid. She further submits that almost 100 contractual Workmen, who were working in the hospital, have been disengaged, which is affecting more than 500 lives as they are not earning any salary since the last 4 to 5 months.

7. On the question of misconduct and nuisance, it is submitted by Ms. Jain, ld. counsel, that there are no allegations, except bold and general ones in respect to misconduct. Even the photographs filed by the Respondents only show that the Workmen are extremely frustrated and had merely gone to the new Contractor’s office to seek their identity cards. Ms. Jain further submits that, as the old Contractor has not reported a single incident of misconduct by any of the Workmen, the allegation