Allahabad High Court
Brajesh Kumar Pathak vs State Of U.P. And 4 Others on 30 June, 2021
Bench: Munishwar Nath Bhandari, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 29 Case :- SPECIAL APPEAL DEFECTIVE No. - 365 of 2021 Appellant :- Brajesh Kumar Pathak Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Sanjai Kumar Pandey Counsel for Respondent :- C.S.C. Hon'ble Munishwar Nath Bhandari,Acting Chief Justice Hon'ble Rajendra Kumar-IV,J.
Order on Civil Misc. Exemption Application No. 1 of 2021 The application seeking exemption from filing certified copy of the order of the High Court is allowed.
The defect stands cured.
Order on Special Appeal Heard the learned counsel for the parties.
Learned counsel for the appellant submits that the writ petition preferred by the petitioner-appellant was dismissed holding it to be not maintainable. The similar treatment was given to other writ petition preferred by Prem Chandra Gupta. An appeal thereupon was preferred bearing Special Appeal No. 104 of 2021 (Prem Chandra Gupta Vs. State of U.P. and 4 others). The judgment of the learned Single Judge has been set aside by the judgment dated 14th June, 2021. The following judgment was passed therein:
"Matter is taken up through Video Conferencing.
Challenge in this petition is to an order dated 23.2.2021 passed in Writ-A No.2697 of 2021 whereby the writ petition preferred by appellant-petitioner against termination of his service was declined on the anvil of judgment rendered by co-ordinate Bench of this Court in Rajesh Bhardwaj Vs. Union of India and others 2019 (2) ADJ 830.
To wit with, the impugned order is in following terms :
"Heard learned counsel for the petitioner and the learned Standing Counsel.
The Court finds no ground to entertain this petition directed against an order of termination of the contractual engagement of the petitioner bearing in mind the judgment rendered by the Division Bench of the Court in Rajesh Bhardwaj Vs. Union of India and Others [2019 (2) ADJ 830]. The writ petition is accordingly dismissed as not maintainable"
The relevant fact borne out from the record reveals that the petitioner was appointed by Block Development Officer/Programme Officer, Block Bahadurpur, Basti in the panel of Technical Assistant on 26.11.2007. The said appointment was in pursuance to the policy decision taken by the State as spelt out in the letter No.1225/38-7-2007-10 NREG/05 T.C. dated 3.9.2007 issued by Chief Secretary, Government of Uttar Pradesh with subject to manage the compliance of programme implemented under MGNREGA through the panel of Technical Assistant under the supervision of District Magistrate.
The petitioner since his appointment continued to discharge his service. In the year 2020, certain complaints were lodged against the petitioner. The complaint was subjected to inquiry by the committee constituted by the Chief Development Officer, Basti. The committee submitted it's report on 24.8.2020 whereon the Chief Development Officer, Basti vide letter no.1381/eujsxk-f'k0@,0Vh0vkj0@2020&21 dated 3.10.2020 informed the Block Development Officer/Programme Officer, MGNREGA, Bahadurpur Basti relating to the complaint and the report of the inquiry committee constituted by him to take further steps. The Chief Development Officer vide order dated 22.1.2021 terminated the service of petitioner purportedly on the basis of inquiry report, which was forwarded to him by the Block Development Officer, Basti. The said termination order came to be challenged in writ petition under Article 226 of Constitution of India vide Writ-A No.2697 of 2021 on the ground that the termination is without affording an opportunity of hearing and as per se illegal.
Evident it is from the impugned order that learned Single Judge instead of adverting on the merits of the matter relied on the decision in Rajesh Bhardwaj (supra) and declined to cause any indulgence.
In Rajesh Bhardwaj (supra), following issues came up for consideration:
"(1) Whether CUPGL can be said to be 'State' within the meaning of Article 12 of Constitution?
(2) Even if Question-(1) is answered in favour of petitioner, whether writ petition is maintainable in the matter of termination of service of employee of CUPGL when terms and conditions are not governed by any statutory provisions and are purely within the realm of contract?
(3) Whether relief of reinstatement can be granted to petitioners when terms and conditions of employment are not governed by statutory provisions, if order of termination is said to be vitiated in law?
(4) Whether order of termination is illegal or bad in law?"
While dwelling on issue nos.2, 3 and 4, it was 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."
The question is when jurisdiction under Article 226 of Constitution of India is invoked in respect of allegation of arbitrary exercise of power by the State functionary whether the incumbent can be prevented from invoking the said remedy.
The principle that High Court should not exercise its writ jurisdiction when efficacious alternative remedy is available is a rule of prudence and not a rule of law.
In the case of Bharati Reddy V. State of Karnataka, (2018) 12 SCC 61, it was held :
"13. It is thus clear that power of judicial review under Articles 226/227 of the Constitution is an essential feature of the Constitution which can neither be tinkered with nor eroded. Even the Constitution cannot be amended to erode the basic structure of the Constitution. Therefore, it cannot be said that the writ petition filed by Respondent 6 to 9 under Article 226 of the Constitution is not maintainable. However, it is left to the discretion of the court exercising the power under Articles 226/227 to entertain the writ petition."
In the case of Maharashtra Chess Association Vs. Union of India (2020) 13 SCC 285, it was held :
11. Article 226 (1) of the Constitution confers on High Courts the power to issue writs, and consequently, the jurisdiction to entertain actions for the issuance of writs. The text of Article 226 (1) provides that a High Court may issue writs for the enforcement of the fundamental rights in Part III of the Constitution, or "for any other purpose". A citizen may seek out the writ jurisdiction of the High Court not only in cases where her fundamental right may be infringed, but a much wider array of situations. Lord Coke, commenting on the use of writs by courts in England stated:
"The Court of King's Bench hath not only the authority to correct errors in judicial proceedings, but other errors and misdemeanours [...] tending to the breach of peace, or oppression of the subjects, or raising of faction, controversy, debate or any other manner of misgovernment; so that no wrong or injury, public or private, can be done, but that this shall be reformed or punished by due course of law...."
13. The role of the High Court under the Constitution is crucial to ensuring the rule of law throughout its territorial jurisdiction. In order to achieve these transcendental goals, the powers of the High Court under its writ jurisdiction are necessarily broad. They are conferred in aid of justice. This Court has repeatedly held that no limitation can be placed on the powers of the High Court in exercise of its writ jurisdiction. In A V Venkateswaran v Ramchand Sobhraj Wadhwani a Constitution Bench of this Court held that the nature of power exercised by the High Court under its writ jurisdiction is inherently dependent on the threat to the rule of law arising in the case before it: (AIR p.1510, para 10) "10...We need only add that the broad lines of the general principles on which the court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the court."
The powers of the High Court in exercise of its writ jurisdiction cannot be circumscribed by strict legal principles so as to hobble the High Court in fulfilling its mandate to uphold the rule of law.
14. While the powers the High Court may exercise under its writ jurisdiction are not subject to strict legal principles, two clear principles emerge with respect to when a High Court's writ jurisdiction may be engaged. First, the decision of the High Court to entertain or not entertain a particular action under its writ jurisdiction is fundamentally discretionary. Secondly, limitations placed on the court's decision to exercise or refuse to exercise its writ jurisdiction are self- imposed. It is a well settled principle that the writ jurisdiction of a High Court cannot be completely excluded by statute. If a High Court is tasked with being the final recourse to upholding the rule of law within its territorial jurisdiction, it must necessarily have the power to examine any case before it and make a determination of whether or not its writ jurisdiction is engaged. Judicial review under Article 226 is an intrinsic feature of the basic structure of the Constitution.
15. These principles are set out in the decisions of this Court in numerous cases and we need only mention a few to demonstrate the consistent manner in which they have been re-iterated. In State of U.P. v Indian Hume Pipe Co. Ltd. this Court observed that the High Court's decision to exercise its writ jurisdiction is essentially discretionary:
"4...It is always a matter of discretion with the Court and if the discretion has been exercised by the High Court not unreasonably, or perversely, it is the settled practice of this Court not to interfere with the exercise of discretion by the High Court."
In this context reference can also be had of the decision in the case of Shrilekha Vidyarthi Vs. State of U.P., AIR 1991 SCC 537, it was held :
20. Even apart from the premise that the 'office' or 'post' of D.G.Cs. has a public element which alone is sufficient to attract the power of judicial review for testing validity of the impugned circular on the anvil of Art. 14, we are also clearly of the view that this power is available even without that element on the premise that after the initial appointment, the matter is purely contractual. Applicability of Art. 14 to all executive actions of the State being settled and for the same reason its applicability at the threshold to the making of a contract in exercise of the executive power being beyond dispute, can it be said that the State can thereafter cast off its personality and exercise unbridled power unfettered by the requirements of Art. 14 in the sphere of contractual matters and claim to be governed therein only by private law principles applicable to private individuals whose rights flow only from the terms of the contract without anything more? We have no hesitation in saying that the personality of the State, requiring regulation of its conduct in all spheres by requirements of Art. 14, does not undergo such a radical change after the making of a contract merely because some contractual rights accrue to the other party in addition. It is not as if the requirements of Art. 14 and contractual obligations are alien concepts, which cannot co-exist.
21. The Preamble of the Constitution of India resolves to secure to all its citizens Justice, social, economic and political; and Equality of status and opportunity. Every State action must be aimed at achieving this goal. Part IV of the Constitution contains 'Directive Principles of State Policy' which are fundamental in the governance of the country and are aimed at securing social and economic freedoms by appropriate State action which is complementary to individual fundamental rights guaranteed in Part III for protection against excesses of State action, to realise the vision in the Preamble. This being the philosophy of the Constitution, can it be said that it contemplates exclusion of Art. 14 -- non-arbitrariness which is basic to rule of law -- from State actions in contractual field when all actions of the State are meant for public good and expected to be fair and just? We have no doubt that the Constitution does not envisage or permit unfairness or unreasonableness in State actions in any sphere of its activity contrary to the professed ideals in the Preamble. In our opinion, it would be alien to the Constitutional Scheme to accept the argument of exclusion of Art. 14 in contractual matters. The scope and permissible grounds of judicial review in such matters and the relief which may be available are different matters but that does not justify the view of its total exclusion. This is more so when the modern trend is also to examine the unreasonableness of a term in such contracts where the bargaining power is unequal so that these are not negotiated contracts but standard form contracts between unequals.
22. There is an obvious difference in the contracts between private parties and contracts to which the State is a party. Private parties are concerned only with their personal interest whereas the State while exercising its powers and discharging its functions, acts indubitably, as is expected of it, for public good and in public interest. The impact of every State action is also on public interest. This factor alone is sufficient to import at least the minimal requirements of public law obligations and impress with this character the contracts made by the State or its instrumentality. It is a different matter that the scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes. However, to the extent, challenge is made on the ground of violation of Art. 14 by alleging that the impugned act is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the domain of contractual obligations would not relieve the State of its obligation to comply with the basic requirements of Art. 14. To this extent, the obligation is of a public character invariably in every case irrespective of there being any other right or obligation in addition thereto. An additional contractual obligation cannot divest the claimant of the guarantee under Art. 14 of non-arbitrariness at the hands of the State in any of its actions.
23. Thus, in a case like the present, if it is shown that the impugned State action is arbitrary and, therefore, violative of Art. 14 of the Constitution, there can be no impediment in striking down the impugned act irrespective of the question whether an additional right, contractual or statutory, if any, is also available to the aggrieved persons.
24. The State cannot be attributed the split personality of Dr. Jekyll and Mr. Hyde in the contractual field so as to impress on it all the characteristics of the State at the threshold while making a contract requiring it to fulfil the obligation of Art. 14 of the Constitution and thereafter permitting it to cast off its garb of State to adorn the new robe of a private body during the subsistence of the contract enabling it to act arbitrarily subject only to the contractual obligations and remedies flowing from it. It is really the nature of its personality as State which is significant and must characterize all its actions, in whatever field, and not the nature of function, contractual or otherwise, which is decisive of the nature of scrutiny permitted for examining the validity of its act. The requirement of Art. 14 being the duty to act fairly, justly and reasonably, there is nothing which militates against the concept of requiring the State always to so act, even in contractual matters. There is a basic difference between the acts of the State which must invariably be in public interest and those of a private individual, engaged in similar activities, being primarily for personal gain, which may or may not promote public interest. Viewed in this manner, in which we find no conceptual difficulty or anachronism, we find no reason why the requirement of Article 14 should not extend even in the sphere of contractual matters for regulating the conduct of the State activity.
34. In our opinion, the wide sweep of Art. 14 undoubtedly takes within its fold the impugned circular issued by the State of U. P. in exercise of its executive power, irrespective of the precise nature of appointment of the Government counsel in the districts and the other rights, contractual or statutory, which the appointees may have. It is for this reason that we base our decision on the ground that independent of any statutory right, available to the appointees, and assuming for the purpose of this case that the rights flow only from the contract of appointment, the impugned circular, issued in exercise of the executive power of the State, must satisfy Art. 14 of the Constitution and if it is shown to be arbitrary, it must be struck down. However, we have referred to certain provisions relating to initial appointment, termination or renewal of tenure to indicate that the action is controlled at least by settled guidelines, followed by the State of U. P., for a long time. This too is relevant for deciding the question of arbitrariness alleged in the present case.
When the finding in paragraph 30 of the decision in Rajesh Bhardwaj (supra) is tested on the anvil of the decision in Bharati Reddy (supra), Mahrashtra Chess Association (supra), Shrilekha Vidyarthi, (supra), we are of considered opinion that the same run contrary to the decisions of the Hon'ble Supreme Court where in a case State is one of the party even in contractual matter a writ petition under Article 226 of Constitution cannot be thwarted.
The impugned order when tested on the anvil of aforesaid analysis, cannot be given stamp of approval.
Accordingly the same is set aside. The matter is relegated to learned Single Judge for its decision on merit.
Special appeal is allowed to the extent of above. No costs."
The controversy involved in this case is similar to what has been decided in Prem Chandra Gupta (supra). The judgment in the case of Prem Chandra Gupta (supra) is applicable to this appeal also. It is thus ordered to be governed by the judgment in the case of Prem Chandra Gupta (supra). The impugned judgment is accordingly set aside. The matter is relegated to Single Bench for its decision on merit.
Special appeal is allowed to the extent of above. No costs.
Order Date :- 30.6.2021
VMA
(Rajendra Kumar-IV, J.) (Munishwar Nath Bhandari, A.C.J.)