National Council of Educational Research and Training v. Kundan

16. The Tribunal also recorded that the workmen were appointed for a specific period against a specific project, but conveniently ignored that they were requested to join BVG, which was the outsourcing agency (after March 2013) and that other workmen, except the respondents/ workmen herein, had joined the said firm.

17. The respondents/ workmen, did not join BVG, with mala fide intention, despite admitting that they were appointed under a specific project.

18. The petitioner contended that the Tribunal committed a gross error by noting that there was “nothing on record” to show that further appointment was only for a specific project, despite admitted by the workmen through their own documents.

19. The Industrial Tribunal treated the present dispute under Section 2(oo) of the Act, whereas, the dispute was covered under the Exception of Section 2(oo) i.e. Section 2(oo)(bb) of the Act, which excepted out terminations resulting from non-renewal of a contract of employment.

20. Issue no.

(ii) had been framed on whether the claimants were engaged for a specific period or for a specific work.

21. In respect of this, the evidence was filed by way of affidavit, the workmen themselves exhibited documents relating to appointment.

22. However, in their cross-examination, the workmen denied all questions relating to the appointment, including, that there was a SSA project, or that there was a specific project, or that it a was project of the MoE.

23. The workmen also denied knowing about BVG and whether the project was still going on. The cross-examination contradicted documents filed by the respondent themselves inter alia Ex.PW-1, PW- 1/II and PW-1/VA.

24. Quite to the contrary, the cross-examination of the management’s witness reiterated that they had been recruited through BVG, which had been approved by the Project Approval Board (‘PAB’), evident from inter alia Ex. MW/4 and Ex. MW/6.

25. Despite the evidence, the Tribunal did not record any finding on the specific issue and merely stated that there was “nothing on record” to show that further appointments were only for a specific project.

26. The petitioner’s contentions may be summarized as under: i. The workmen were appointed for a specific project, on a contractual basis. ii. The said project continued on a year-to-year basis, till 31st March

2013. iii. MoE extended the project from 13th March 2013 till 01st April 2014. iv. On the approval of PAB, the management recruited several workers as MTS/DTP Operators through BVG. The respondent workmen were accordingly required to join the management through BVG, which they did not do, despite the choice given. v. The project was ultimately closed in June 2018. The workmen employed by BVG, in due compliance of the order of 10th February 2017, continued services till June 2018, when the said project was closed. The workers have been paid all their dues till June 2018, except for the period between 31st March 2013 to 10th February 2017, on the principle of “no work, no pay”.

27. The Petitioner’s counsel has relied upon the following decisions: i. State of Rajasthan v. Rameshwar Lal Gahlot[1] ii. Netaji Subhash Institute of Technology v. Dilkhush Bairwa[2] iii. Anil Kumar Prabhakar v. Telecommunications Consultant India Ltd.[3] iv. Mahipal Singh v. National Seeds Corporation[4] Submissions by counsel for respondents

28. Refuting the submissions of counsel for the petitioner, counsel for

42015 SCC OnLine Del 11191 the respondents relied upon the impugned award which had traversed the evidence and the documents and thereby granted the relief to the respondents.

29. It was contended that the appointment letter of the respondents was issued by NCERT/petitioner, and therefore, they should be considered as the NCERT's employees.

30. Their services were continuously required by the petitioner and they had been continuously working without a gap of a single day. The respondents/ workmen, worked from the date of respective appointments till the date of discontinuance on 17th May 2013.

31. No notice was given for termination of their services, despite having worked for a continuous period of 4 years (approx.). The dues were not paid, since 1st April 2013 to 17th May 2013 i.e. for a period of 46 days.

32. As an illustration, the petitioner had issued a certificate to the respondent/ workman (Kundan), dated 18th November 2010, certifying that his services were found as sincere, efficient and devoted. The same verified that the respondent was an employee of NCERT. Subsequent certificates dated 30th September 2011 and 17th August 2012, were also issued by the petitioner.

33. The attendance sheet for the period of 1st April 2013 to 16th May 2013 has also been appended.

34. On 10th February 2017, when the Writ Petition filed by the petitioner, first came before the Court, it was noted that the entire project-staff had been outsourced to BVG, and all except, the three respondents/ workmen, agreed to join BVG.

35. After completion of the contract, the project staff was outsourced to M/s Impressions Services Private Limited. It was directed by this Court that the respondents should report to M/s Impressions Services Private Limited on 20th February 2017 at 10:00P.M., without prejudice to the rights and contentions.

36. It is stated by the respondent that the temporary appointment was given by the agency, on 20th February 2017 till 31st March 2017, no work was assigned from 1st April 2017. It is stated that they continued to remain in office till 5:30 P.M. every day, from 01st April 2017 to 05th April 2017, despite that, work was not assigned to them. No appointment letter was issued.

37. Work was assigned since 6th April 2017 which was being done by the respondents/ workmen.

38. The respondents/ workmen were then told that their services are only up to 31st May 2017. It was by the respondent that the discontinuance of service since 01st April 2017 to 05th April 2017 was wrongly imposed upon them, even though they were present at work.

39. The respondents/ workmen stated they were not allowed to sign the attendance register and that the Officer who was keeping the attendance register stated “you, all three, get out from here”.

40. There was gross non-compliance of Section 25 F, G, H and N of the Act, in this regard. No information was given to the Central Government and no notice was served upon them, prior to the termination.

41. Retrenchment compensation ought to have been paid in advance equivalent to 15 days average pay for every completed year of continuous service, or any part thereof, in excess of 6 months, that are applicable. Additionally, no wages for 46 days i.e. for the period between 1st April 2013 to 16th May 2013 were paid.

42. Considering that they have employed persons junior to the respondents/ workmen, provisions of 25G of the Act also stand violated.

43. No opportunity was given to the respondents/ workmen for reemployment resulting in violation of Section 25H of the Act. Analysis

44. It would be imperative to first examine the basis of the appointment of all the three respondents. As an illustration, the first appointment which was issued for the respondent Kundan is as under:

45. It is quite clear from a perusal of the above appointment that it was made for the purpose of the SSA w.e.f. 21st July 2009 and up to 31st March 2010.The same had been communicated to respondent (Kundan) vide office letter dated 21st July 2009. The order was issued by the NCERT/ petitioner.

46. The order was copied to the AO, CIET with a request to book the expenditure under the SSA project approved/ sanctioned by MoE.

47. It is, therefore, quite clear from the appointment itself that the respondent was appointed under the SSA project for a limited period and the said project was sanctioned by the MoE.

48. An order was then issued on 09th June 2010 by the petitioner, stating that the MoE had approved for continuation of the SSA project for the year 2010-2011, vide order dated 21st May 2010.

49. Consequently, the employment of the specified persons had been extended for a period of one year from 1st April 2010 till 31st March

2011. At serial No. 12 in this communication was the name of respondent, Kundan whereas respondent, Anshul Gupta was at serial NO. 10 and respondent, Kailash Chand was at serial no.11.

50. On 12th August 2011, another order was issued, noting the continuation of the SSA project for the year 2011-2012, therefore, the terms of appointment for the persons included in the specified list, including the three respondents, were extended for another year.

51. Yet again, on 7th August 2012, an order was issued, stating that the SSA project had been extended for a further period of 01st April 2012 till 31st March 2013. Here as well, the three respondents were included in the list of persons whose appointments had been extended.

52. On 25th April 2013, an office order was issued by the Early Literacy Program, Department of Elementary Education, for continuation of the “project staff” for the SSA, for the year 2013-2014. The three respondents were included in the said list. A letter was issued on 30th October 2012, by petitioner to BVG, stating that the bid for providing human resources had been accepted and a formal contract would be executed.

53. A request was made on 15th May 2013, by the Department of Elementary Education, for allocating specific staff, including DTP Operators and multi-task staff for the project.

54. By letter dated 1st October 2013, the contract had been extended to BVG.

55. The cross-examination of the management’s witness would also throw light upon whether there was consistency in the petitioner's case.

56. In the cross-examination, it is stated by the management's witness that the department had recruited several workmen as MTS, DTP operators through BVG, which was a private agency.

57. It was admitted that till their termination on 17th May 2013, the workmen’s work was satisfactory. However, the workmen only worked till 31st March 2013.

58. It was stated that the workmen were employees of the management, prior to 31st March 2013, and thereafter, a decision was taken, that in the future, they would be employed through BVG. The payments were made to the workers through BVG.

59. The amounts which were released by the Director, by way of cheques, were not paid directly to the workmen, but were paid to BVG, for it to further pay salaries to the workmen.

60. The cross-examination of the workmen is interesting to note. Despite having given the documents for appointment, as noted above, the respondent Kundan stated in his cross-examination that his name was sponsored by the Employment-Exchange and he was initially engaged for 89 days on 21st July 2009. However, he denied knowing about SSA or whether that it was a specific project.

61. He stated that he did not know about the rules and regulations of the project and whether it formed a part of the MoE. He stated that he did not know whether it was a regular functioning project of NCERT. He stated that he was getting salary from NCERT. He did not know about the PAB.

62. It was further, stated that he did not know about BVG and whether the project is still going on. He stated that he attended office last on 17th May 2013 and denied that he was in the job only till 31st March 2013.

63. This is quite contrary to, not only the documents which have been supplied, but also to the fact that these respondents/ workmen, had been allocated to the SSA project, as is evident from the appointment letters and the extension letters.

64. The denial of knowledge of BVG is also surprising, considering in para 13 of the affidavit of evidence filed by the respondents/ workmen, it is stated that “claimant has rightly denied for becoming employed through contractor M/s BVG India”

65. In these facts and circumstances, it is surprising that the Industrial Tribunal ignored these communications related to the appointment of the respondent and the issue of BVG completely.

66. In para 13 of the Award, the submissions of the representative for the Management have been categorically noted, in that, the worker (Kundan) was appointed on a specific project, initially for 89 days w.e.f. 21st July 2009 vide letter dated 03rd August 2009 and his services were extended from time to time, but since the project was over, the services were not required and, therefore, the worker was discontinued. There was no appointment on any regular sanctioned post.

67. The impugned Award then goes on to hold that the procedure under Section 25F of the Act was required to be mandatorily followed, even in the case of a casual worker or daily wager, particularly when such workmen had completed 240 days in a calendar year.

68. Further, the Tribunal was of the opinion that the work was regular and perennial in nature and required to be performed by workmen who are sincere and diligent in performance and duties and that the respondent workers fulfilled such attributes.

69. Interestingly, the Tribunal notes that the meeting of the directors on 10th April 2013, had approved the project for a further period, and “it was expected from the management to recall the workman herein continue him in employment”.

70. In a sense, the Tribunal was also aware of the fact that the employment of the respondents had expired and it was related to the project which was then continued, yet again, for another year.

71. What is striking is the Industrial Tribunal's statement, “there is nothing on record to show that further appointment was only for a specific project”.

72. The communication which forms part, even of the claim petitions, is quite clear, that the said workers had been appointed as part of the SSA project. Therefore, for the Tribunal committed an error to record such a statement.

73. Before proceeding further with the analysis, it may be apposite to assess the decisions which the petitioners’ counsel have relied upon: i. In State of Rajasthan v. Rameshwar Lal Gahlot (supra), the Supreme Court was dealing with a worker who had been appointed for a period of three months and his appointment came to be terminated after about 11 months. The Tribunal had held that since he had completed more than 240 days, the termination was in violation of Section 25F of the Act and directed them to make fresh appointment. The relevant paragraphs of the decision are as under:

employer could terminate the services in terms of the letter of appointment unless it is a colourable exercise of power. It must be established in each case that the power was misused by the management or the appointment for a fixed period was a colourable exercise of power. Unfortunately, neither the learned Single Judge nor the Division Bench recorded any finding in this behalf. Therefore, where the termination is in terms of letter of appointment saved by clause (bb), neither reinstatement or fresh appointment could be made. Since the appellant has not filed any appeal against the order of the learned Single Judge and respondent came to be appointed afresh on 27-6-1992, he would continue in service, till the regular incumbent assumes office as originally ordered.” (emphasis added) The Supreme Court had, therefore, underscored that once an appointment was for a fixed period, section 25F of the Act, does not apply, as it is covered by Section 2(oo) (bb) of the Act. The Supreme Court held that, unless there is a finding that power was misused or the termination was vitiated by a mala fide exercise, it cannot be held that termination is illegal. It has to be, therefore, established that the power was misused by the management or the appointment was not for a fixed period, or that the termination was a colorable exercise of power. The impugned award does not deal with this issue before coming to a finding that such an appointment was a colorable excise of power. The fact that it is was a fixed term appointment which was subsequently extended on a few occasions, would not make it a continuing employment. ii. In Netaji Subhash Institute of Technology v. Dilkhush Bairwa(supra), this Court was dealing with a workman who had been appointed in February 1991 on an ad -hoc basis, for six months, which was subsequently extended for a further period of six months, and then again, for a period of three months. The services were then terminated. Grievance was raised that he was appointed under a permanent post and reinstatement was sought with continuity of service and back wages. The industrial adjudicator ended up finding that the worker had been appointed under Section 2(oo) (bb) of the Act. However, the industrial adjudicator, on the basis of Section 25F, held that the management had violated the provisions, rendering the termination of service illegal.The Court stated as under:

9. Certain exceptions have been carried out in the enactment. In the instant case, a finding of fact has been returned by the Industrial adjudicator that the appointment of the workman was for a specific period and that the termination of his service was covered under the exception provided under Section 2(oo)(bb) of the Industrial Disputes Act, 1947 which has becomefinal. As a consequence thereof, the question which would require to be answered is the effect of such a termination and as to whether the provisions of Section 25-F of the Act would be applicable to the same. This issue has fallen for consideration before the Supreme Court in a large number of cases. The Court has also been called upon to consider the termination of the service of the workman who has been employed for the purpose of work on projects, tenure specific contracts; muster roll employment; casual labour and of workmen who are appointed from time to time against regular posts which actually exist in the establishment.

10. In a case entitled M.P. Electricity Board v. Hariram, the Supreme Court had occasion to examine a claim of a casual employee who was appointed on specific project work, i.e. of laying electric lines at a particular place, There was no permanent post to which they could be reinstated. The court held that such a workman could not claim entitlement to the same job which come into existence in other places or for other parts of the same project as for digging holes for installing the electric poles for the lines. It was further held that the workman could, therefore, neither claim reinstatement nor regularisation. The judgment of the Apex Court has been reported at 2004 (8) SCC 246 entitled M.P. Electricity Board v. Hariram. In this pronouncement, the Supreme Court cited with approval its earlier decision reported at 1994 (2) SCC 323 entitled M. Venugopal v. Divisional Manager, Life Insurance Corporation of India. …..

12. In this behalf, reference can appropriately be made to the pronouncement of the apex court reported at (2001) 5 SCC 540 entitled Harmohinder Singh v. Kharga Canteen, Ambala Cantt. In this case it was held that contracts of service which are for a fixed term, are excluded from the definition of retrenchment in the Industrial Disputes Act, 1947. It was held that where termination takes place on the expiry of the contract period or in terms of the contract, the principles of natural justice are not attracted In this behalf, reliance was placed on the earlier pronouncement of the Supreme Court in (1998) 6 SCC 538 entitled Uptron India Ltd. v. Shammi Bhan.

13. In a pronouncement of the Supreme Court reported at (1997) 11 SCC 521 entitled Escorts Ltd. v. Presiding Officer and Anr., anargument was laid that even though a workman had been appointed on temporary basis for period of two months, it was urged that because the workman had worked for 240 days, the termination of his services amounted to retrenchment under Section 2 (oo) of the Industrial Disputes Act, 1947 and the same being in violation of Section 25 F of the Industrial Disputes Act, 1947 was illegal. The Apex Court held that it was unnecessary to go into the question whether a workman had worked for 240 days in a year inasmuch termination of services of the workman did not constitute retrenchment in view of clause (bb) in Section 2 (oo) of the Act. The termination of the services of the workman was in accordance with the stipulation contained in his contract which is to be found in his letter of appointment. Therefore, even though termination of the services of the workman was before the expiry of the period of probation, however, since the termination of the service was in accordance with the terms of the contract, it fell within the ambit of Section 2 (oo) (bb) of the statute and did not constitute retrenchment. In this regard, the Supreme Court cited with approval its earlier decision reported at (1994) 2 SCC 323 entitled M. Venugopal v. Divisional Manager, LIC.

14. Therefore, there can be no manner of doubt that this court is bound by the authoritative judicial pronouncement of law to the effect that so long as the termination of service of the workman is in accordance with the terms of the contract on or expiry of the contract, the same does not amount to retrenchment within the meaning of the expression as it is excepted under Section 2 (oo) of the Industrial Disputes Act, 1947. In these circumstances, the employer would not be required to comply with the provisions of Section 25 F of the Industrial Disputes Act, 1947.

15. Learned counsel for the petitioner has also placed reliance on the authoritative and binding pronouncement of the Apex Court in (1996) 1 SCC 595 (para 5) entitled State of Rajasthan v. Rameshwar Lal Gahlot, it was held by the Supreme Court that termination on account of expiry of the specified period mentioned in the appointment letter would be valid, unless the same is found to be mala fide or in colourable exercise of power. In its absence, the employer could terminate the services in terms of letter of appointment. The court held that such a termination would be covered by Clause (bb) of Section 2(oo) of the Act and, therefore, Section 25-F would have no application. In 2002 (5) SCC 646 (para 15) entitled Haryana State F.C.C.W. Store Ltd. & Another v. Ram Niwas & Another, the engagement of the workman was for a specific purpose and for a particular period and disengagement was effected when the period of their appointment had expired. It was held that such disengagement was in terms of the contract of service and, therefore, not “retrenchment” within the meaning of Section 2(oo) of the Act. In these circumstances, the workman was held not entitled to any relief. In these circumstances, in the light of the principles laid down by the Apex Court in the aforenoticed judgment, Section 25-F would have no application to the facts and circumstances of the case …..

21. Therefore, the finding of the industrial tribunal to the effect that the management violated the provisions of Section 25-F of the Act is erroneous in law in as much as Section 25-F would have no application to the case where the termination of the services of the workman is covered under the provisions of Section 2(oo)(bb) of the Statute. iii. In Anil Kumar Prabhakar(supra) a Co-ordinate Bench of this Court was dealing with a workman who had raised an issue regarding termination of his services. The Industrial Tribunal held that the appointment was contractual. The Court upheld the Labor Courts conclusion and stated as under:

September, 1985 when the petitioner was in India and was neither being assigned any work nor being paid anything. The argument of the petitioner that his statement that he was being paid during the said period should be accepted as gospel truth for the reason of the respondent No. 1 having not led any evidence also cannot be accepted. It was for the petitioner to prove the aforesaid contention. Though the case of the petitioner of payment by repatriation from London during the said time is unbelievable but even if that were to be so, it was for the petitioner to produce the documents in this regard. The Supreme Court in Shankar Chakravarti v. Brittania Biscuit Co. Ltd., AIR 1979 SC 1652 has held that in a proceeding before an Industrial Tribunal or Labour Court the obligation to lead evidence or establish an allegation made by a party is on the party making the allegation. The test would be who would fail if no evidence is led. It is also not as if the respondent No. 1 accepted the said statement of the petitioner. The same was challenged in cross examination. Merely because a contractual employee is issued a letter/order, informing him that his services are not required will not convert such contractual employment into a regular appointment.” iv. In Mahipal Singh (supra) a Co-ordinate Bench of this Court was dealing with an issue of termination of services of the petitioner, and whether it was a case under Section 2(oo) of the Act or whether Section 2(oo)(bb) would have any application. The petitioner was appointed in March 1984 by the respondent with no appointment letter given to him. He worked for more than two years and, therefore, claimed that he was to be treated as a regular employee, but his services were terminated in April 1986, with no compensation or notice. The Court examined provisions and noted as under:

calendar months preceding the date of his termination which fact was also noted by the Tribunal and neither there was any denial by the respondent in this regard in the written statement nor any evidence was led by the respondent. Admittedly, the provisions u/s 25F of the Act were not complied with. Therefore, the termination of services of the workman was in violation of the mandatory provisions of the Act. The counsel further submits that the finding has been given by the Tribunal that the petitioner has completed 240 days preceding the date of his termination which finding has not been challenged by the Management. Therefore, the onus shifts on the management to prove that the termination of the petitioner was legal.

17. He further submitted that the appointment of the petitioner was for a fixed period and for specified work which is covered by Section 2(oo)(bb) of the ID Act, hence, if after the specified work was over and he was terminated, such termination is not illegal.

18. Reliance was placed on the following cases:-

(i) State of Rajasthan v. Rameshwar Lal Gahlot, AIR

(ii) Haryana State FCCW Store Ltd. v. Ram Niwas,

(iii) Batala Cooperative Sugar Mills Ltd. v. Sowaran

(iv) Secretary, State of Karnataka v. Umadevi, (2006)

(v) Punjab State Electricity Board v. Sudesh Kumar

(vi) M.D. Karnataka Handloom Dev. Corpn.

Ltd. v. Mahadeva Laxman Raval, AIR 2007 SC 631.” v. The Court notes the decision of the Supreme Court in State of Karnataka v. Umadevi (3)5 where it was observed as under:

5(2006) 4 SCC 1 given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.

47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.”

74. The Court, therefore, disagrees that there was retrenchment, considering the exception in clause Section 2(oo) (bb) of the Act. It is also noted that it is a matter of record, that the project was completed on 30th June 2018; a Notification dated 29th June 2018 has been handed up to the Court.

75. Considering the appointment letter which categorically stated that they were being engaged for a period of one year for SSA project and that the same was continued for the next couple of years, till handing over the supply of services to BVG and that the project finally concluded on 30th June 2018, it cannot be denied that indeed there was a project which subsisted for a finite period of time.

76. It would thus, be difficult to accept the Tribunal's finding that there was nothing on record to show that the further appointments were not for a specific project, which is the premise on which the Tribunal has passed the award in favor of the worker.

77. The bald denial by the worker, in his cross- examination, despite having filed the documents which clearly stated so, is also a testament to the fact that a case was being created by the worker, despite having known the terms of their engagement, which were contractual and for finite periods of time and connected to a particular project.

78. There could not have been a case by the worker that they were appointed through a recruitment process, in a regular post, for the NECRT, and therefore, the provisions of Section 25F Act would not be applicable.

79. The appointment was clearly contractual in nature and, therefore, the provisions of Section 2(oo) (bb) would be applicable, as an exception, to the provision for retrenchment.

80. An ameliorative option had been given by the management, for the respondents/ workmen, to resume work under BVG, however, they have refused to accept.

81. Even by order dated 10th February 2017, the Court had directed the respondents to join service through M/s Impressions Services Private Limited, however, despite having joined, their services were discontinued.

82. It is also noted that other similarly placed workers had joined through M/s BVG India and completed their services till the project was concluded in 2018

83. Considering that Section(s) 25F, 25G, 25H and 25N, all apply to “retrenchment” which is defined under Section 2(oo) of the Act, the said will not be applicable, once this Court has reached a conclusion that this is not case of retrenchment but is a case falling under Section 2(oo) (bb), where termination of service was a result of expiry of the contract or a non-renewal of the same.

84. It is evident that the management had discontinued the process of engaging workers on a contractual basis, for SSA project and instead had outsourced it to BVG.

85. It cannot be expected for the NCERT to be forced to continue their services, considering that the contract had expired. The option which was given for them to join BVG was not availed by them, at their own peril.

86. At this stage, it would be apposite to advert to the decision of a Division Bench of this Court in Dinesh Kumar v. Central Public Works Department[6], wherein the Court referred to various decisions of the Apex Court to demarcate the jurisdiction/ scope of interference by this Court, in its exercise of powers under Articles 226-227 of the Constitution of India, against an award passed by an Industrial Tribunal. In this regard, the Court observed as under:

11. The Hon'ble Supreme Court in paragraph 17 of the judgment in Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union, (2000) 4 SCC 245, has held as under: “17. The learned Single Judge seems to have undertaken an exercise, impermissible for him in exercising writ jurisdiction, by liberally reappreciating the evidence and drawing conclusions of his own on pure questions of fact, unmindful, though aware fully, 2023 SCC OnLine Del 6518 that he is not exercising any appellate jurisdiction over the awards passed by a tribunal, presided over by a judicial officer. The findings of fact recorded by a factfinding authority duly constituted for the purpose and which ordinarily should be considered to have become final, cannot be disturbed for the mere reason of having been based on materials or evidence not sufficient or credible in the opinion of the writ court to warrant those findings, at any rate, as long as they are based upon some material which are relevant for the purpose or even on the ground that there is yet another view which can reasonably and possibly be taken… … The only course, therefore, open to the writ Judge was to find out the satisfaction or otherwise of the relevant criteria laid down by this Court, before sustaining the claim of the canteen workmen, on the facts found and recorded by the fact-finding authority and not embark upon an exercise of reassessing the evidence and arriving at findings of one's own, altogether giving a complete go-by even to the facts specifically found by the Tribunal below.”

12. The Hon'ble Supreme Court in the aforesaid case has held that the findings of fact recorded by a fact finding authority (Tribunal) duly constituted for the purpose becomes final unless the findings are perverse or based upon no evidence. The jurisdiction of the High Court in such matters is quite limited. …

14. In Dharangadhara Chemical Works Ltd. v. State of Saurashtra, 1957 SCR 152, the Supreme Court, once again observed that where the Tribunal having jurisdiction to decide a question comes to a finding of fact, such a finding is not open to question under Article 226, unless it could be shown to be wholly unsupported by evidence.

15. In Management of Madurantakam Coop. Sugar Mills Limited v. S. Viswanathan, (2005) 3 SCC 193, the Apex Court, held that the Labour Courts/Industrial Tribunals as the case be is the final court of facts, unless the same is perverse or not based on legal evidence, which is when the High Courts can go into the question of fact decided by the Labour Court or the Tribunal. But before going into such an exercise it is imperative that the High Court must record reasons why it intends reconsidering a finding of fact. In the absence of any such defect, the writ court will not enter the realm of factual disputes and finding given thereon.

16. In a Constitution Bench judgment of the Supreme Court in Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477, the Apex Court has inter alia held as under:

record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmed Ishaque, Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, Assam, and Kaushalya Devi v. Bachittar Singh.

8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manliest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious misinterpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly rounded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases. the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened.”

17. The Hon'ble Supreme Court has in the aforesaid case again dealt with scope of interference by High Court in respect of finding of fact arrived at by Tribunals and in light of the aforesaid judgment, the question of interference by this Court does not arise.

18. The Hon'ble Supreme Court in State of Haryana v. Devi Dutt, (2006) 13 SCC 32, has held that the writ Court can interfere with the factual findings of fact only if in case the Award is perverse; the Labour Court has applied wrong legal principles; the Labour Court has posed wrong questions; the Labour Court has not taken into consideration all the relevant facts; or the Labour Court has arrived at findings based upon irrelevant facts or on extraneous considerations.

87. In view of the aforesaid position of law, this Court finds that in light of; firstly, the appointment letters issued to the respondents; secondly, communications issued to the respondents; thirdly, documents on record; fourthly, cross-examination of the parties; the finding of the Tribunal, that there is ‘nothing on record’ to show that the employment of the respondents was for a specific period/ project, which forms the basis of the passing of the impugned awards, cannot be sustained. The Tribunal clearly ignored or omitted to appreciate the most critical documents in relation to the essential crux of the matter and reached a conclusion on extraneous considerations.

88. Accordingly, the respective impugned awards in W.P.(C) 923/2017, W.P.(C) 928/2017, W.P.(C) 929/2017 are set aside.

89. Pending applications, if any, are rendered infructuous.

90. Judgment be uploaded on the website of this Court. CM APPL. 19216/2025 in W.P.(C) 923/2017, CM APPL. 19215/2025 in W.P.(C) 928/2017 & CM APPL. 19203/2025 in W.P.(C) 929/2017

1. Directions as regards costs, to be paid by the petitioner, as per order dated 20th February 2025, shall be complied with.

2. Applications are disposed of.

JUDGE APRIL 28, 2025 /RK/kp