Mr. Abhijit Chakravarty, Mr. Sourabh, Mr. Vedant and Ms. Yamini Singh, Advocates v. JITENDER KUMAR

6. Upon considering the evidence led by both the parties and after hearing both sides, the Tribunal claimant/workman had been engaged to perform duties of perennial nature and that the series of extensions reflected W.P.(C) 10078/2019 continuous employment. It concluded that the cessation of his service on 28.02.2013 amounted to illegal termination, particularly in the absence of any termination letter or compliance of Section 25F of ID Act. Accordingly, the Tribunal directed reinstatement with 50% back wages.

7. Aggrieved thereby, the respondent/management has invoked the writ jurisdiction.

8. The learned counsel for the respondent/management submitted that the there is a complete misapplication of the concept of “retrenchment” in the impugned Award. It is urged that the claimant/workman’s initial engagement on 08.01.2008, and all subsequent engagements, were purely temporary, fixed-term contractual appointments under the BHM, each expressly stipulating that the engagement would automatically expire on the last date of the contract and that no claim for regularization or continuity would arise therefrom. The contract was extended from W.P.(C) 10078/2019 time to time only as per requirement, ending finally on 28.02.2013, after the Warden’s Committee in its meeting dated 04.01.2013 recorded claimant/workman’s performance was unsatisfactory and recommended that no further extension be granted. Relying on the decision in Arjan Singh v. State of Punjab, 2014 SCC OnLine P&H 17991, it was argued that non- renewal of a contract on its expiry is not “retrenchment” and therefore does not attract the mandatory conditions under Section 25-F of the ID Act.

8.1. It was further submitted by the learned counsel of the respondent/management the claimant/workman had, on several occasions, remained absent without leave, beginning in December 2010, for which successive memoranda dated 27/31.01.2011, 10.02.2011 and 08.04.2011 were issued. The learned counsel submitted that persistent unauthorized absence is a valid ground for non-continuance of employment, and reliance was W.P.(C) 10078/2019 placed in the dictum of State of Rajasthan v. Mohd. Ayub Naz, (2006) 1 SCC 589, where it was held that habitual absenteeism may justify termination and further in the dictum of Dattaprasad Narayan Kulkarni v. Auchtel Products Ltd., 2023 SCC OnLine Bom 2519, which affirms that such absenteeism constitutes misconduct warranting discontinuation.

8.2. The learned counsel for the respondent/management submitted that the relevant materials/documents produced along with the writ petition would substantiate their contention that service of the claimant/workman was never satisfactory and that repeated warning had been issued, which was also a reason for not extending contract. It was respondent/management is entitled to rely on these documents in the present writ proceedings by invoking Order XLI Rule 27(aa) of the Code of Civil Procedure, 1908 (the CPC), which permits production of additional evidence where the party establishing due W.P.(C) 10078/2019 diligence satisfies that such evidence was not within its knowledge or could not, after exercising due diligence, be produced at the time when the decree or order appealed against was passed. The learned counsel submits that several crucial documents—including the Warden’s Committee minutes dated 04.01.2013, the internal correspondence relating to performance evaluation, and certain extension/appointment letters (Annexures P-2 to P-16), were not before the Tribunal, and though such documents existed in the institutional records, they were not traced or produced during the proceedings before the Tribunal despite due diligence. It is therefore urged that the respondent/management be permitted to rely upon these documents in this writ, and that this Court ought to consider them while examining the legality of the Award.

8.3. The learned counsel further submitted that once the additional documents are taken on record under Order XLI Rule 27(aa) CPC, it would be apparent that the nature of engagement W.P.(C) 10078/2019 was contractual and for a fixed-term. These documents, it was argued, clearly demonstrate that the claimant/workman was engaged through successive contractual letters containing explicit stipulations that (i) the engagement was temporary, (ii) no right to regularisation would accrue, and (iii) the engagement would automatically expire at the end of the contractual period. It was submitted that the final cessation on 28.02.2013 was a direct consequence of the expiry of the last contractual term, and not a termination. Therefore, the statutory exclusion under Section 2(oo)(bb) of the ID Act squarely applies, and that the Tribunal erred in not considering this material, which—according to the respondent/management—now stands duly brought before this Court under the mechanism of Order XLI Rule 27(aa) CPC.

8.4. It was further submitted that the claimant/workman cannot claim, nor could the Tribunal confer, any right to regular employment from a succession of temporary appointments by W.P.(C) 10078/2019 relying on the dictum in Secretary, State of Karnataka v. Uma Devi, (2006) 4 SCC 1, wherein it was held that contractual or ad- hoc employees do not acquire a vested right to regularization by length of service. Further, reference was also made to Resmi R.S. v. Government of India, 2019 SCC OnLine Ker 2649, and Renu Dalal v. GNCTD, 2023 SCC OnLine Del 8228, reiterating that courts cannot direct regularization contrary to the recruitment framework, nor can temporary engagements ripen into substantive rights. It was contended that judicial review does not permit substitution of disciplinary or administrative satisfaction with the court’s own view by placing reliance on the dictum of B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 and V. Ramana v. A.P. SRTC, (2005) 7 SCC 338, which affirm that a court cannot sit in appeal over the employer’s assessment unless findings are perverse or unsupported by material.

8.5. Lastly, the learned counsel would contend that even W.P.(C) 10078/2019 assuming, without admitting, that Section 25-F was attracted, the Tribunal erred in granting 50% back wages as a matter of course by citing the judgement of the Apex Court in General Manager, Haryana Roadways v. Rudhan Singh, (2005) 5 SCC 591, wherein it was held that there is no rule of thumb mandating full or substantial back wages upon finding a violation of Section 25-F.

9. Per contra, the learned counsel for the claimant/workman supported the impugned award and submitted that the findings returned by the Tribunal are based entirely on the material placed before it and warrant no interference in writ jurisdiction. It was urged that the claimant/workman was appointed on compassionate grounds following the demise of his father, an IIT Delhi employee, which is evident from the letter dated 23.01.2008 (Ex. WW1/3) and further corroborated by the respondent/management’s own communication dated 26.02.2008, (Annexure P-4). The learned counsel submitted that, this is not a case of a casual or volunteer W.P.(C) 10078/2019 applicant, but one where compassionate engagement was in fact extended and acted upon. It is contended that thereafter, from

08.01.2008 until 28.02.2013, the claimant/workman continuously discharged duties of a perennial and regular nature, including those of Masalchi, Multi-Tasking Employee, and subsequently Junior Assistant/Storekeeper.

9.1. It was also urged by the learned counsel that an official accommodation was allotted to the claimant/workman within the IIT Campus, and under Rule 8(f)(i) of the House Allotment Rules, such accommodation could have been allotted only to an employee appointed on compassionate grounds.

9.2. The plea of fixed-term contractual engagement relied upon by the respondent/management in the present proceedings substantiated before Tribunal. The respondent/management produced only two documents—Ex. MW1/1 (appointment letter dated 08.01.2008) and Ex. MW1/2 W.P.(C) 10078/2019 (reply to legal notice)—and did not file the various extension letters or Warden-Committee minutes (Annexures P-2 to P-16 of the writ petition) before the Tribunal. The learned counsel would specifically draw the attention of this Court to Para 9 of the impugned Award, wherein it was respondent/management had failed to produce the extension letters said to contain the contractual terms. The belated reliance on new documents at the writ stage cannot be permitted to defeat findings based on the record actually before the Tribunal, goes the argument.

9.3. It was further urged that the claimant/workman had completed more than 240 days of service in each year, which the respondent/management has never disputed, and that it is an admitted position that the requirements of Section 25-F of the ID Act were not complied with. The respondent/management’s attempt to shelter itself under Section 2(oo)(bb) of the ID Act is W.P.(C) 10078/2019 wholly misconceived. Strong reliance is placed on the judgment of the Apex Court in Bhuvnesh Kumar Dwivedi v. Hindalco Industries Ltd., (2014) 11 SCC 85, wherein it was held that repeated appointments with artificial breaks for several years constitute unfair labour practice under Section 2(ra) of the ID Act read with Entry 10 of the Fifth Schedule, and that Section 2(oo)(bb) of the ID Act cannot be invoked where the contract system itself is a device to avoid conferring permanent status. Reliance was also placed on the dictum of Haryana State Electronics Development Corporation Ltd. v. Mamni, AIR 2006 SC 2427, wherein it was held that repeated short-term appointments with artificial breaks cannot be brought under Section 2(oo)(bb) of the ID Act. The learned counsel would also place reliance on the dictum of Haryana State Federation of Consumer’s Cooperative Wholesale Store Ltd. v. Presiding Officer, wherein it was held that once a workman has completed W.P.(C) 10078/2019 240 days and the employer continues to engage him with artificial breaks, the case attracts Section 25-F of the ID Act, and the employer’s conduct amounts to unfair labour practice. Further reliance was placed on the dictum of Anoop Sharma v. Executive Engineer, Public Health Division No.1, Panipat, (2010) 5 SCC 497, wherein it was held that termination of a workman who has completed one year of continuous service, without compliance with Section 25-F of the ID Act, renders the action ab initio void, irrespective of the terminology used by the employer. Similar stand was taken in the decisions of Hospital Mazdoor Sabha