Madhya Pradesh High Court
Vivek Choubey vs The State Of Madhya Pradesh on 9 May, 2018
THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.9031/2018
Jabalpur, dated 9.5.2018
Mr. Ankur Shrivastava, learned counsel for the
petitioner.
Mr. Rajesh Tiwari, learned Government Advocate for the
respondents-State.
The present petition has been filed by the petitioner herein whereby he has challenged the termination order issued to him by the respondent no.3 vide letter dated 17.3.2018, Annexure P/4, by which the petitioner was to be relieved from the post of Project Coordinator for Madhya Pradesh from 31 st March 2018.
A short resume of facts essential for the decision of this case is that, the Ministry of Human Resources Development under the Government of India, in order to enhance access to secondary education and improve its quality, implemented a scheme in the year 2009-10 known as "Rashtriya Madhyamik Shiksha Abhiyan" for vocationalisation of secondary and higher education by integrating vocational education into school education. The project was approved for the State of Madhya Pradesh by the Ministry of Human Resources Development and the State Government implemented the said programme in the State with the avowed aim of empowering students with employable skills. The programme is stated to be funded jointly by the Central Government and the State Government. The State Government was entrusted with the task of providing vocational education to the students. In order to achieve the same, the State Government entered into an agreement with the respondent no.3 for the appointment of competent vocational trainers. The said agreement is dated 16.1.2017. Its a tripartite agreement entered into between the Rashtriya Madhyamik Shiksha Abhiyan, which is the first part of the agreement, the IT-ITes Sector Skill Council NASSCOM, which is the second part, and Laqsh Job Skills Academy Private Limited, the respondent no.3 herein, which is the third part of the agreement. Under the agreement, the respondent no.3 was entrusted with the task of ensuring that vocational training is delivered in the sector concerned, to the students enrolled for the courses with a view to develop employable skills in the sector. As per Clause "c", with regard to the role of the third part, it was to appoint competent vocational trainers on a salary as prescribed in Annexure I of the agreement.
Annexure P/2 at page 33 of the petition is the appointment letter dated 20.9.2016 issued to the petitioner by the respondent no.3. The appointment was on the position of Program Coordinator and the contractual period was for 12 months. The petitioner was to be paid a salary of Rs.20,000/- per month with additional expenses given to him to the extent of Rs.5,000/- per month for mobile phone and travel. Clause 4 of the said letter clearly discloses that the petitioner would be in the exclusive employment of the company, which is the respondent no.3, and abide by the company's norms on exclusive employment and non-compete.
At first blush, the case appears to be one of employment by a private company, which is the respondent no.3. There is no preponderant presence of the State in the employment given to the petitioner. The petitioner has not stated or averred in his petition that his salary was being paid either by the respondent no.1, 2 or 4. On the contrary, the appointment letter shows that the petitioner has been appointed solely by the respondent no.3 without any control or directions from the respondent nos.1, 2 or 4. The agreement entered into between the respondent no.3 and the respondent no.2 only restricts the extent of salary that can be paid to persons employed by the respondent no.3, which was restricted to the amount laid down in Annexure P/1 to the agreement.
Learned counsel for the petitioner has drawn the attention of this court to Annexure P/2, pp 34, in which it is given that the coordinator will function under the overall supervision of the RMSA, which is the respondent no.2 herein, and in consultation with LAQSH and will keep VTP/NSDC/ SSC/RMSA and district coordinators informed about all relevant aspects on a monthly basis. Thus, the petitioner's duty was one of dual reporting. Learned counsel for the petitioner has relied upon the fact that the petitioner would function under the overall supervision of the respondent no.2 and suggested that there was an element of control of the State over the activities of the petitioner and, therefore, a petition under Article 226 of the Constitution would be maintainable.
Thereafter, learned counsel for the petitioner has referred to Clause "s" of the agreement, which is at page 25 of the petition relating to termination of vocational trainer and vocational coordinator, which firstly provided for a cure period of one month to be given to a vocational trainer if he was not found suitable by the first part, which is the respondent no.2, in the discharge of his or her duties satisfactorily over a period of two months, and secondly where the performance of the trainers still do not improve, then the respondent no.2 would recommend his/her substitution to the respondent no.3 within ten days. On the basis of this said Clause, learned counsel for the petitioner has submitted that once again the control and supervision of the respondent no.2 over the petitioner is visible and, therefore, he could not have been terminated unless there was a recommendation by the respondent no.2 to the respondent no.3.
This court is unable to accept the arguments put forth by the learned counsel for the petitioner.
The appointment letter, which is Annexure P/2 is at page 33. Its Clause 4 reveals that the petitioner was in the exclusive employment of the respondent no.3, which is a private company. While being in such an employment, the petitioner was bound to abide by the company's policy on exclusive employment and non-compete. As regards the contention of the petitioner that there was a preponderant control of the respondent no.2 over the petitioner, by referring to the terms and conditions of employment of the coordinator, which is at page 34, the Clause under the heading "Coordinator" which states that the petitioner would function under the overall supervision of the respondent no.2 cannot be interpreted to mean that the respondent no.2 had any kind of control over the manner in which the petitioner would have worked. This is clear from the penalty clause, which is there in the agreement entered into between the respondent no.2 and the respondent no.3 where it was the respondent no.3 who would be penalised by the respondent no.2 for the unsatisfactory work of the trainers or VTP coordinators employed by the respondent no.3.
Learned counsel for the petitioner has stated that the mandatory notice period also was not given to the petitioner before his termination vide letter dated 17.3.2018. Even assuming for the sake of an argument that the said mandatory notice of termination was not given to the petitioner by the respondent no.3, the same cannot be agitated under the writ jurisdiction of this court and relief claimed thereunder as it is clear that the respondent no.3 is a private company and the relief claimed by the petitioner may lie elsewhere.
Under the circumstances, the petition is dismissed as the same is not sustainable under Article 226 of the Constitution. However, the petitioner is given the liberty to claim relief under any other provision of law which may be available to him.
(Atul Sreedharan) Judge ps Digitally signed by PRASHANT SHRIVASTAVA Date: 2018.05.10 11:01:16 +05'30'