Terminating a Twelve-Year Part-Time Employee: Writ, Retrenchment and Regularization

The rule and its character. The rule that a petitioner must exhaust an alternative remedy before invoking Article 226 is a rule of self-restraint, not a rule of jurisdiction. It yields where the order is challenged as without jurisdiction, where a statutory provision has been contravened, where the principles of natural justice have been violated, where the vires of an enactment is challenged, or where the order is ex facie arbitrary and no disputed question of fact needs to be resolved.

Testing the present petition. The reliefs divide cleanly. The prayer for regularization rests on disputed questions – whether the petitioner completed 240 days in each year, whether the 43 persons are identically situated, whether the 2019 policy covered part-time engagements. Those cannot be tried on affidavits. But the challenge to the termination order itself is different: it is a challenge to a 'terminable at will' order passed without enquiry, in which the State has neither pleaded nor shown any misconduct or unsuitability, and which the petitioner says is stigmatic in character. Whether that order is founded on a public law error can be decided on the order itself and the record.

Is an industrial dispute a bar here? Only if the department answers to the definition of 'industry'. Following Bangalore Water Supply and Sewerage Board v. A. Rajappa, an educational activity is ordinarily within the definition, but a government department discharging functions that lie within the State's inalienable sovereign functions is outside it. That question itself is a question of law on which the parties must be heard, and the petitioner cannot be told that her only forum is a forum whose jurisdiction over her employer is itself contested.

Ruling. The objection cannot be sustained as an absolute bar. I would entertain the petition, decline to decide the disputed factual issues concerning continuity and parity, and confine the writ hearing to two questions: whether the termination order discloses a public law infirmity, and whether the claim for regularization can be granted consistently with State of Punjab v. Salaria. The petitioner is not prejudiced, because those two questions do not require the sort of evidence that only an industrial adjudicator can record.

Regularization. State of Punjab v. Salaria holds that regularization is not a mode of recruitment; an appointment made contrary to the constitutional scheme, without advertisement and competition, cannot be validated by the accident of long continuance. The court cannot direct regularization, and any scheme for one-time absorption must be framed by the executive, not by judicial order. The consequence is that the prayer for a mandamus to regularize must be refused at the threshold. What the court can do, following State of Karnataka v. M.L. Kesari, is to test whether the 2019 policy, if it is a valid one, has been applied arbitrarily – but the petitioner must first show that she answers the policy's terms, which she has not done beyond an assertion.

Article 14 and negative equality. The plea that 43 others were regularized must fail on two grounds. First, Article 14 is a positive concept; it cannot be enforced in a negative manner so as to perpetuate an illegality committed in favour of others (Ekta Shakti Foundation v. Government of NCT of Delhi). Second, the petitioner has neither pleaded the terms of the policy nor placed on record the orders of regularization of the 43 persons, nor shown that any of them was a part-time employee engaged on contingency funds. The burden of establishing the classification is on the person alleging discrimination; a writ court does not conduct a roving inquiry to find material for the petitioner.

Remedy for the manner of termination. Here the petitioner does have a real grievance. A termination order which casts no stigma, and which is founded on the contractual terms of a contingent engagement, ordinarily requires no hearing. But the State's own case is that the engagement was need-based; if the need subsisted and the termination is unexplained, the order is arbitrary in the Wednesbury sense. The appropriate relief is not reinstatement and not regularization, but the relief recognized consistently as a substitute: (i) quashing of the order insofar as it dispenses with the statutory process, and (ii) payment of compensation as a one-time measure for the arbitrary exercise of power, quantified by reference to the length of service, while leaving the petitioner free to raise an industrial dispute on the disputed facts.

The nature of the violation. Non-compliance with Section 25-F renders a retrenchment void. The provision is mandatory; the requirement of one month's notice or wages in lieu, and of retrenchment compensation at the statutory rate, is a condition precedent to a valid retrenchment. Where the violation is established, the ordinary consequence is reinstatement with continuity of service and back wages, subject always to the court's discretion to award compensation where reinstatement would be unjust.

Why the writ court should not decide it. Three difficulties stand in the way. First, the applicability of Section 25-F depends on whether the department is an 'industry' within Section 2(j); that is a mixed question of law and fact on which evidence about the nature of the functions of the office is necessary. Second, the foundational fact of 240 days of continuous service is disputed and can be established only through the muster rolls, the details of the contingency budget and the accounts of the school, and that is precisely the evidence a Labour Court is equipped to record. Third, the respondent has a right to lead evidence on whether the engagement was in fact excluded.

The correct course. In this case, an additional complication exists: the petition was filed within time and the termination is barely seven weeks old. The petitioner should be relegated to the forum under Sections 2-A and 10 of the Industrial Disputes Act, but with protections built into the order – (i) an express direction that the period of the writ proceedings shall be excluded under Section 14 of the Limitation Act while computing the period for raising the dispute and seeking reference; (ii) a direction to the conciliation officer to take up the matter within eight weeks; (iii) an observation that the order will not prejudice the petitioner's claim for the period during which the termination operated.

What I would not do. I would not grant reinstatement on a contested foundation, and I would not award compensation in lieu of a remedy the statutory forum has not yet refused. Compensation under Salaria is a remedy for a public law illegality; it is not a substitute for the statutory remedy of a workman whose retrenchment is void, and to award it here would be to deny her the continuity of service she says she is entitled to.