Delhi HC upholds Delhi Govt Order fixing Rs 20,000 minimum wage for nurses in pvt hospitals

The Delhi High Court has upheld a Delhi Government Order enhancing salary drawn by nurses employed in private hospitals in the national capital while also fixing minimum wage of Rs 20,000 per month for nurses even in hospitals having less than 50 beds..The Order also stated that failure of compliance of the Order shall result in strict action including cancellation of registration of the defaulter private hospital/nursing home..The Order was passed pursuant to the recommendation of an Expert Committee set up on the directions of the Supreme Court. The Committee had directed that steps should be taken by all States for formulating legislation/guidelines to implement its recommendations..The judgement was passed by a Single Judge Bench of Justice C Hari Shankar in a petition by the Association of Healthcare Providers (India), assailing a June 25, 2018 Order passed by the Delhi Government with respect to the salary of nurses in private hospitals in Delhi..The petitioner contended that the implementation of the recommendation could only be by way of legislation. It was also contended that the recommendations were “unreasoned” and there was no need for new guidelines when various related legislation on the issue were already in force..The petitioner also claimed that while arriving at the recommendations, private hospitals were not consulted..It was stated that in the garb of directing compliance with the recommendations of the Expert Committee, the Delhi Government revised the minimum rates of wages for nurses in terms of the Minimum Wages Act without abiding by the procedure prescribed in Section 5 of the Act..It was further contended that the undersigned authority of the Order had no authority to cancel the registration of any hospital or nursing home solely for non-compliance with such an executive order as the power to cancel the registration of a private hospital or nursing home, was governed by Section 5, read with Section 7, of the Delhi Nursing Homes Registration Act, 1953..The petitioner also raised concerns with regard to the “massive economic impact” on private hospitals, having long term pricing implication on the healthcare system..The Delhi Government argued that the Order had nothing to do with the Minimum Wages Act or the fixation of a minimum wage. It was also informed that the Expert Committee included two members from private hospitals, namely Fortis, New Delhi and Narayana Health, Bangalore..After hearing the parties, the Court opined that on a plain reading and on a holistic appreciation of the circumstances attending the issuance of the Order, it was clear that it did not purport to be, and was not issued under the Minimum Wages Act..“The Minimum Wages Act provides for a self-contained regime, and the recommendations of the Expert Committee in the present case, fructifying in the issuance of the impugned Order dated 25th June, 2018, in the opinion of this Court, occupy a space entirely outside the said regime. The genesis of the impugned Order, dated 25th June, 2018 lies, indisputably, in the order, dated 29th January, 2016, of the Supreme Court in Trained Nurses Association of India..”.The Court also observed that the grievance of the petitioner that private hospitals were not associated with the deliberations of the Expert Committee was incorrect as the Committee included representation by Fortis, Delhi and Narayana Health, Bangalore..“The recommendations of the Expert Committee were reached which the concurrence of representatives of the private hospitals, therefore, and cannot be said to have been arrived at, either behind their back or without their participation. The requirements of fair play and due procedure were again followed, by circulating the recommendations of the Expert Committee amongst the private hospitals and nursing homes, and seeking their comments.”.With respect to the contention that the recommendations could only be given effect by way of a legislature, the Court held that the Supreme Court order with respect to the Expert Committee empowered the Governments to legislate in order to enforce the recommendations of the Expert Committee..It, however, did not mean that till such legislation takes place, the recommendations of the Expert Committee would remain unenforceable at law, the Court clarified..The Court also observed that compliance with the Order could not be avoided on the ground of financial hardship..The Court thus concluded,.“Ex facie, therefore, the manner in which the Expert Committee has proceeded, and the recommendations that have resulted as a consequence thereof, cannot be characterized, to any extent, as either arbitrary or irrational, so as to justify any interference, by this Court, exercising writ jurisdiction.”.It further added,.“The Committee, which constitutes extremely high-ranking officials, and also includes representatives of private hospitals, has positively found that the “pay and working condition” of nurses employed in private hospitals/nursing homes “is really pathetic”. It is sacrilegious, therefore, to require nurses, who discharge selfless service night after night, to work in conditions which are pathetic. No compromise can, therefore, be made, so far as ensuring optimum working conditions, for nurses, is concerned. The Expert Committee merely equated the salary, to be paid to nurses in private hospitals and nursing homes, with the salary paid to nurses in government hospitals. It cannot be said, by any stretch of imagination, that the recommendation is expropriatory in nature.”.Given the fact that cancellation of the registration of a hospital or a nursing home was an extreme step, fraught with serious and debilitating consequences not only the hospital, but also all its employees and the patients, the Court deemed it appropriate to direct that the cancellation of the registration of any defaulting hospital/nursing home should be kept in abeyance till the defaulting hospital/nursing home is given an opportunity of personal hearing in that regard..“It would be open to the hospital/nursing home, to take all available defences, against any proposal to cancel its registration, including the defence of whether such cancellation could be effected, given the provision of DNHR Act, on the sole ground of failure, on the part of the hospital/nursing home, to comply with the recommendations of the Expert Committee, in respect of nurses working in its establishment.”, it said..Accordingly, the petition was dismissed and the Order along with minimum wages for nurses in private hospital was upheld..The petitioner was represented by Senior Advocates Rajiv Nayar and Sandeep Sethi with Advocates Mohit Rohtagi and Saurabh Seth..Delhi Govt was represented by Additional Standing Counsel Sanjoy Ghose with Advocates Rhishabh Jetly and Urvi Mohan..[Read Judgement]