Madhya Pradesh High Court
Arvind Kumar Dwivedi vs The State Of Madhya Pradesh on 19 March, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2025:MPHC-JBP:17844
1 WP-14642-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 19th OF MARCH, 2025
WRIT PETITION No. 14642 of 2022
ARVIND KUMAR DWIVEDI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Anil Lala - Advocate for petitioner.
Shri Vijendra Singh Choudhary - Government Advocate for State.
ORDER
This petition has been filed challenging the order dated 05.05.2022 (Annexure P-10) passed by the M.P. State Cooperative Tribunal, Bhopal in F.A. 196 of 2018 whereby the appeal preferred by the respondent No.3 was allowed and the order dated 04.07.2018 (Annexure P-3) passed by the respondent No.2 in favour of the petitioner has been set aside.
2. The case of the petitioner is that he was working on the post of Process Server on daily wages in the respondent No.3 Bank along with Umesh Kumar Sen and Tulsi Das Dwivedi. The respondent No.3 has stopped the petitioner from working since 2013 on the ground that there is no permission to continue the post of Process Server. On the contrary, the other two incumbents namely Umesh Kumar Sen and Tulsi Das Dwivedi were permitted to continue. The petitioner challenged the inaction of the respondent No.3 Bank before the Joint Registrar, who has referred the Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 29-04-2025 16:30:58 NEUTRAL CITATION NO. 2025:MPHC-JBP:17844 2 WP-14642-2022 dispute to the respondent No.2 vide order dated 05.10.2013 in terms of Section 66(2) of the Madhya Pradesh Co-operative Societies Act, 1960 (hereinafter referred to as 'the Act'). The respondent No.2 allowed the dispute vide order dated 30.12.2015 and directed the respondent No.3 to keep the petitioner working on the post of Peon/Process Server on daily wages like other similarly situated employees. The respondent No.3 has challenged the aforesaid order by filing an appeal before the Tribunal. The Tribunal vide order dated 16.04.2018 remitted the matter back for adjudication afresh. In pursuance to the same, the respondent No.2 again heard the matter and passed an order dated 04.07.2018 directing the respondent No.3 to keep the petitioner on work on the post of Peon/Process Server on daily rate basis at Collector rate. The said order was put to challenge by the respondent No.3 before the Tribunal by filing an appeal. The appeal preferred by the respondent No.3 was dismissed vide order dated 13.03.2019. The order passed by the Tribunal was put to challenge by the respondent No.3 before this Court by filing a writ petition being W.P. No.9389 of 2019. The writ petition was allowed vide order dated 08.05.2019 and the matter was remitted back to the Tribunal for deciding the first appeal on merits. After remand of the matter no further proceedings were drawn before the Tribunal. However, there is no stay granted by the Tribunal against the order passed in favour of the petitioner. The petitioner approached the authorities by filing representation seeking permission to join the duties, but of no consequence. Therefore, he preferred a writ petition being W.P. No.18375 of 2021, which was disposed off with a direction to the respondent No.3 to consider and Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 29-04-2025 16:30:58 NEUTRAL CITATION NO. 2025:MPHC-JBP:17844 3 WP-14642-2022 decide the representation filed by the petitioner vide order dated 22.09.2021. In pursuance to the same, the respondent No.3 has rejected the representation filed by the petitioner and refused to give joining to him on the ground that the appeal is pending consideration vide order dated 29.11.2021. The petitioner again approached this Court by filing a writ petition being W.P. No.27292 of 2021, which was disposed off with a direction to the Tribunal to decide the pending appeal within a period of four months, in pursuance to which the Tribunal has decided the appeal vide order dated 05.05.2022 and has set aside the order passed by the respondent No.2 in favour of the petitioner. It is now being aggrieved by the said order, the present petition has been filed.
3. Counsel appearing for the petitioner has argued that the petitioner has been discriminated by the respondent No.2 by removing him from service and permitting the other two similarly situated employees to continue in the department. There is no justification being given by the respondent No.2 while removing the petitioner from service. The Tribunal has committed an error in not considering the grounds raised by the petitioner with respect to the action of the respondents whereby the petitioner has been discriminated. It is argued that once the petitioner was working in the respondents/department then prior to removal of the petitioner from service at least a show-cause notice and an opportunity of hearing was required to be given to him which is a minimum requirement, however, nothing has been done by the authorities and outrightly the removal order has been passed.
The said aspect has not been considered by the authorities, therefore, this Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 29-04-2025 16:30:58 NEUTRAL CITATION NO. 2025:MPHC-JBP:17844 4 WP-14642-2022 petition has been filed.
4. Counsel appearing for the respondent No.3 on notice has filed his response to the petition. It is contended that the petitioner worked as a Process Server for only 89 days as a daily rated employee between November, 2000 to 2004. The Tribunal has rejected the claim of the petitioner on the ground that a daily rated person does not have any right to continue in service and no protection is granted to him as per the requirement of the work and need in the department he was inducted in service, he cannot claim continuation of his service. It is argued that the petitioner was removed in the year 2004 and has chosen not to approach the Court by filing a writ petition against the removal order. It is only after 20 years he has filed this petition before this Court, therefore, no relief can be extended to him. He has raised a dispute under Section 55(2) of the Act after more than 11 years by filing an application before the Joint Registrar which is also after a delay of almost a decade. Therefore, there is no illegality in passing the order passed by the Tribunal. He has prayed for dismissal of the writ petition.
5. Heard the counsels for the parties and perused the record.
6. From the perusal of record, it seems that the petitioner has been removed from service whereas similarly situated employees were permitted to continue in the department. The order of removal of the petitioner was passed way back in the year 2004. The Tribunal has rejected the claim of the petitioner on the ground that the daily rated employee does not have any right for continuation in service and no protection was granted to him. The removal order of the petitioner was not put to challenge for a considerable Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 29-04-2025 16:30:58 NEUTRAL CITATION NO. 2025:MPHC-JBP:17844 5 WP-14642-2022 period. However, a dispute was raised in terms of Section 55(2) of the Act. The application before the Joint Registrar was filed in the year 2013 after more than 11 years. There is no explanation that as to why the petitioner has kept quite for a period of more than 11 years in approaching the Joint Registrar. The petitioner is out of job since 2004. Although, there were certain directions in the earlier round of litigations for keeping the petitioner in service, however, the fact remains that the petitioner was never reengaged. The initial appointment of the petitioner was made on 03.11.2000 for a period of 89 days as a daily rated employee. He has filed an application on 10.12.2012 seeking regularization of his services. The law with respect to rights of the daily rated or a contractual employee was crystalized by the Hon'ble Supreme Court way back in the year 2008 in the case of State Bank of India vs. S.N. Goyal reported in (2008) 8 SCC 92 wherein, the Hon'ble Supreme Court has held as under :-
"Where the relationship of master and servant is purely contractual, it is well settled that a contract of personal service is not specifically enforceable, having regard to the bar contained in section 14 of the Specific Relief Act, 1963. Even if the termination of the contract of employment (by dismissal or otherwise) is found to be illegal or in breach, the remedy of the employee is only to seek damages and not specific performance. Courts will neither declare such termination to be a nullity nor declare that the contract of employment subsists nor grant the consequential relief of reinstatement. The three well recognized exceptions to this rule are:
(i) where a civil servant is removed from service in contravention of the provisions of Article 311 of the Constitution of India (or any law made under Article 309);
(ii) where a workman having the protection of Industrial Disputes Act, 1947 is wrongly terminated from service; and
(iii) where an employee of a statutory body is terminated from service in breach or violation of any mandatory provision of a statute or statutory rules.Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 29-04-2025 16:30:58
NEUTRAL CITATION NO. 2025:MPHC-JBP:17844 6 WP-14642-2022 There is thus a clear distinction between public employment governed by statutory rules and private employment governed purely by contract. The test for deciding the nature of relief damages or reinstatement with consequential reliefs is whether the employment is governed purely by contract or by a statute or statutory rules. Even where the employer is a statutory body, where the relationship is purely governed by contract with no element of statutory governance, the contract of personal service will not be specifically enforceable. Conversely, where the employer is a non-statutory body, but the employment is governed by a statute or statutory rules, a declaration that the termination is null and void and that the employee should be reinstated can be granted by courts."
7. The Hon'ble Supreme Court again considered the aforesaid aspect in the case of Deputy Executive Engineer vs. Kuberbhai Kanjibhai reported in 2019 (4) SCC 307 and has held that a daily wager has no right to claim regularization in service and has no right to ask for continuation in service.
8. Apart from the aforesaid, there is no explanation given by the petitioner for huge delay in raising the dispute. Petitioner being a sleeping litigant, who slept over his rights for 11 years prior to raising any dispute, without there being any explanation for delay coupled with the fact that he was initially inducted in service only for 89 days as a daily rated employee. Therefore, the learned Tribunal has rightly considered all the aspect of the matter and rejected the claim of the petitioner. The orders passed in the earlier round of litigations are merely directions given by the Court for deciding the representation of the petitioner, the same will be of no help to the petitioner. Under these circumstances, no relief can be extended to the petitioner.
9. The writ petition sans merit and is accordingly dismissed. No order as to costs.
Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 29-04-2025 16:30:58NEUTRAL CITATION NO. 2025:MPHC-JBP:17844 7 WP-14642-2022 (VISHAL MISHRA) JUDGE THK Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 29-04-2025 16:30:58