Allahabad High Court
Uttar Pradesh Power Corporation ... vs State Of U.P. And 5 Others on 20 July, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:145507 Court No. - 33 Reserved A.F.R. Case :- WRIT - A No. - 10459 of 2023 Petitioner :- Uttar Pradesh Power Corporation Contract Employees Sangh Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Braj Mohan Singh,Shiksha Singh Gautam Counsel for Respondent :- C.S.C.,Adarsh Bhushan,Devesh Vikram Hon'ble J.J. Munir,J.
1. Heard Mr. Braj Mohan Singh, learned Counsel for the petitioner, Ms. Monika Arya, learned Additional Chief Standing Counsel on behalf of respondent Nos.1 and 2, Mr. Devesh Vikram, learned Counsel appearing on behalf of respondent Nos.3 and 5 and Mr. Adarsh Bhushan, learned Counsel appearing on behalf of respondent No.6.
2. This writ petition under Article 226 of the Constitution has been filed by the Uttar Pradesh Power Corporation Contract Employees Sangh, Lucknow through its General Secretary.
3. It is the petitioner's case that the petitioner is a registered union of contract employees, all of whom are employed with the Electricity Department in the District of Kushi Nagar, besides the entire State of Uttar Pradesh. The Managing Committee of the petitioner by a resolution dated 28.05.2023 have authorized the General Secretary of the Union, Devendra Kumar Pandey, to file this writ petition on behalf of the aggrieved members of the union. It must be remarked at the outset that what evidently the petitioner means by saying that its members are contract employees of the Electricity Department at Kushi Nagar and all across the State, is that they are employees of the Uttar Pradesh Power Corporation Limited (for short, 'the UPPCL') and the various Regional Power Distribution Corporations functioning under the control of the UPPCL. This Court is compelled to understand it this way, because there is indeed no Electricity Department of the Government in the State of Uttar Pradesh.
4. A perusal of the averments in Paragraph No.4 of the writ petition shows that the petitioner espouses the cause of about 167 of its members, who are contract employees, serving the Purvanchal Vidyut Vitran Nigam Limited at Kushi Nagar. A list of these contract employees, numbering 167, to be precise 170, there being a discrepancy in the figure between the averment in Paragraph No.4 and the actual account in the list appended, is annexed as Annexure No.2 to the writ petition. The members of the petitioner association (for short, 'the workmen') say that they are contract employees, doing skilled and unskilled work for the last about 10 years. They have been discharging their duties under the supervision and control of a certain M/s. SMM Infratech Pvt. Ltd., represented by its Managing Director at various KV Sub-stations within Vidyut Vitran Khand, Hata and Kasya, District Kushi Nagar. M/s. SMM Infratech Pvt. Ltd has not been characterized or described much in its relationship to the Purvanchal Vidyut Vitran Nigam Limited (for short, 'the Corporation'), but the said party appears to be a work force supplier for the Corporation.
5. Admittedly, the workmen participated in a strike by powermen serving under the UPPCL and the Corporation as well for 2-3 days between 16th March to 19th March, 2023. The fact is admitted in Paragraph No.8 of the writ petition and also in a letter dated 26.04.2023, addressed by the workmen working at Hata and Kasya, District Kushi Nagar to the Collector, Kushi Nagar. Along with the writ petition, a copy of the letter dated 1st May, 2023 by the Executive Engineer, Electricity Distribution Division, Hata, Kushi Nagar, addressed to the Collector, Kushi Nagar and the Sub-Divisional Officer, Tehsil Hata/ Kaptanganj, Kushi Nagar, has been appended as Annexure No.5 to the writ petition. There is an averment in Paragraph No.9 of the writ petition that the letter by the Executive Engineer acknowledges the expertise of the workmen in their trade, but says that they were on strike for 2-3 days. A perusal of the letter shows that the Executive Engineer has said that the workmen participated in the strike on account of being misguided, leading to termination of their services by M/s. SMM Infratech Pvt. Ltd.
6. The learned Counsel for the petitioner has argued that the workmen are contractual employees and their services cannot be dispensed with in order to replace them by other contract employees. He has relied upon the decision of this Court in Rajesh Kumar Singh v. District Basic Education Officer and others, 2022 (4) ADJ 535.
7. On the other hand, Ms. Monika Arya, learned Chief Standing Counsel, Mr. Adarsh Bhushan and Mr. Devesh Vikram, learned Counsel for the respondents, have submitted that the workmen are merely contractual employees and cannot ask for relief, that can be in the form of reinstatement in service. It is urged that the decision in Rajesh Kumar Singh (supra) goes directly against the workmen on the issue. Attention of this Court has also been drawn to the fact that on 4th of January, 2023, the State Government issued a notification in the exercise of powers under sub-Section (1) of Section 3 of the Uttar Pradesh Essential Services Maintenance Act, 1966 (for short, 'the ESMA') prohibiting strike for six months in all services, amongst others, in the Purvanchal Vidyut Vitran Nigam Limited, Varanasi and also the UPPCL.
8. Upon hearing learned Counsel for the parties, it is evident that the workmen struck work during the State-wide strike by employees of the UPPCL between 16th to 19th March, 2023. The strike was illegal as it was prohibited by a notification issued by the State Government under the ESMA. Apart from the fact that the strike was illegal, this Court takes judicial notice of the fact that disruption of electric supply in the contemporary world run mostly on electrical and electronic gadgets is like snuffing out oxygen. The three days' strike had a disastrous impact on the State, which cannot be trifled. The decision of the Corporation or the work force supplier to weed out striking contractual workmen, in the opinion of this Court, ought not to be interfered with by considering it what the workmen say 'a minor infraction'.
9. So far as the right of the workmen to relief of reinstatement is concerned, there is no cavil on facts that the workmen are serving the Corporation on contract. If the contract is between them and the work force supplier, there may not be much privity with the Corporation. However, for the sake of the present matter, the Court assumes that effectively the workmen are serving the Corporation on some kind of a contract of engagement. They are not holding any kind of a post under the Corporation. A contract employee, it is by now well settled, cannot enforce his rights against the employer, even in a case of wrongful determination of his services by seeking relief that has the effect of reinstatement. Reference, in this connection, may be made to the decision of a Division Bench of this Court in Rajesh Bhardwaj v. Union of India and others, 2019 (2) ADJ 830 (DB), where it has been held:
"30. Now we come to Questions-(2), (3) and (4), which, in our view, can be dealt with together. In the present case, terms and conditions of employment, applicable to petitioner are not challenged that such terms and conditions are arbitrary and violative of Article 14 of Constitution read with Section 23 of Indian Contract Act, 1872 (hereinafter referred to as ''Act, 1872'') being unfair, unreasonable or unconscionable, and against public policy. The order of termination is challenged on the ground that petitioner has not been given adequate opportunity of defence and termination is in violation of principles of natural justice. It is not in dispute that terms and conditions are not governed by any Statute or statutory provision or by any provision made under any authority of Statute. Petitioner being in the Cadre of Manager, his terms and conditions are also not governed by Standing Orders made by Employer with respect to employees governed by provisions of Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as ''Act, 1946''). In these circumstances, in the cases like petitioner, consistently it has been laid down that employment is simply a part of contract. If employment is terminated or contract of service is terminated, Court shall not grant relief of reinstatement, i.e. specific performance of contract of personal service, as it is barred by the provisions of Specific Relief Act, 1963 (hereinafter referred to as ''Act, 1963'') and, therefore, no remedy under Article 226 shall be available since employee, if complains about wrongful termination of service, then must avail remedy in common law by claiming damages.
32. In the present case also, relationship of employment between petitioner and CUPGL is purely and simply an ordinary contract of service which is not governed by any statute or statutory provision. In such cases, a contract of service cannot be sought to be enforced by Court of law by giving relief of reinstatement or continuance in employment as this relief is barred under Act, 1963."
10. The said view has been followed by a learned Single Judge of this Court in Rajesh Kumar Singh (supra), a decision relied upon by the workmen, which hardly supports them. In Rajesh Kumar Singh, the petitioner was initially appointed on the post of a District Coordinator (Civil) by the District Magistrate, Deoria. His engagement was not extended and his writ petition against non-continuance of contract failed before the Single Judge and also in appeal. He was re-engaged on the post of the post of a District Coordinator (Civil) by the District Basic Education Officer, Deoria. The petitioner claimed that he joined his duties and discharged his obligations with all sincerity and devotion. He was charge-sheeted on certain allegations. He denied the allegations by submitting a reply against the charges. After considering the petitioner's reply in that case, no inquiry was held against him. Later on, the petitioner's services were terminated by the District Magistrate, Deoria by an order dated 06.08.2021, that is described in the report of the decision as an order restraining the petitioner from functioning on the post of District Coordinator (Civil), Deoria. It was in the context of the aforesaid termination of the petitioner's contractual engagement by Authorities of the State that it was held in Rajesh Kumar Singh (supra):
"15. The Division Bench in taking the above view in Rajesh Bhardwaj (supra) case has relied on recent judgment of Apex Court in Kailash Singh v. The Managing Committee, Mayo College, Ajmer and others, (2018) 10 SCALE 638, where in respect of dispute related to termination of an employee of Mayo College, Court held that employment was governed by simple contract of employment and, hence, no relief of reinstatement can be granted, but employee, if wrongfully terminated, may claim damages.
16. So far as the relief with respect to reinstatement of the petitioner is concerned, if employee is terminated or contract of service is terminated, Court shall not grant relief of reinstatement, i.e. specific performance of contract of personal service, as it is barred by the provisions of Specific Relief Act, 1963, therefore, the relief as prayed cannot be granted."
11. The workmen are nothing more than employees engaged on contract. They cannot claim any relief of reinstatement.
12. In these circumstances, no case for the issue of a mandamus to the respondents directing them to permit the workmen to work and be paid salary is made out.
13. The petition fails and is dismissed.
Order Date :- 20.7.2023 Anoop (J.J. Munir, J.)