Allahabad High Court
Ashish Kumar Pandey And 29 Others vs State Of U.P. And 5 Others on 20 July, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:145374 Court No. - 33 Reserved A.F.R. Case :- WRIT - A No. - 10561 of 2023 Petitioner :- Ashish Kumar Pandey And 29 Others Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Ram Pravesh Pandey Counsel for Respondent :- C.S.C.,Abhishek Srivastava,Siya Ram Yadav Hon'ble J.J. Munir,J.
1. Heard Mr. R.P. Pandey, learned Counsel for the petitioners, Mr. Girijesh Tripathi, learned Additional Chief Standing Counsel on behalf of respondent No. 1, Mr. Abhishek Srivastava, learned Counsel appearing on behalf of respondent Nos. 2 and 3 and Mr. Adarsh Bhushan, learned Counsel appearing for respondent No. 4.
2. This writ petition has been filed by thirty contract employees, who were linemen with the Purvanchal Vidyut Vitran Nigam Limited (for short, 'the Corporation') and have had their services dispensed with under orders of approval passed by the Managing Director of the Corporation. The petitioners, though thirty in number, the order terminating the contract of service in terms of an approval by the Managing Director, annexed as Annexure No.10 to the writ petition, sought to be quashed, relates to the first petitioner alone. Similar orders relating to the other petitioners are not annexed.
3. Nevertheless, there is a case urged on behalf of the petitioners that they have been dealt like the first petitioner, Ashish Kumar Pandey with the Managing Director of the Corporation, approving the termination of their contract, with a further direction that in future, their services will not be hired by the Corporation for any work. The petitioners have, therefore, prayed for a mandamus, directing the respondents to permit the petitioners to continue working for the Corporation and further to pay them their due emoluments.
4. The petitioners, as they say, were employed on the post of Single Sign-On and lineman. The petitioners were recruited as contract workers through a certain M/s. Orient Secare Pvt. Ltd., New Delhi, an outsourcing agency. It is pleaded that subsequently, the said outsourcing agency was appointed a workforce supplier and the petitioners are Secare's employees working at various centres of the Corporation. The petitioners claim that they have been sincere, honest and dedicated workmen. There is an undertone of resentment of the kind that could have fueled the powermen's strike, of which reference shall be made a little later, pleaded in Paragraph No.6 of the writ petition. It is said there that the Corporation were treating the petitioners unfairly, particularly, with regard to their wages. There was a demand by persons retained like the petitioners on contract for the provision of a minimum salary. It is also said that similar workmen in other States, working on contract, have been favoured with their demands about the minimum salary being accepted, but not so in Uttar Pradesh. It is then said in Paragraph No.6 further on that the petitioners, despite their long standing unmet demand, never refused to discharge their duties or strike work.
5. It is the petitioners' case that the regular employees of the Corporation, represented by their union, known as the Vidyut Karmachari Sanyukt Sangharsh Samiti, Uttar Pradesh had a meeting between their office bearers and officials of the Corporation, including the Minister of the Department concerned, but despite assurance given by the Authorities, the demands of the petitioners were not fulfilled. Hence, the employees' union gave a notice of strike to the Chairman of the Uttar Pradesh Power Corporation on 16.02.2023. Again, on 03.03.2023, an identical notice was given by the employees of the union last mentioned to the Chairman of the Corporation.
6. It is then pleaded in Paragraph No.9 that the petitioners are not members of the union aforesaid, because it is a union of regular employees working throughout Uttar Pradesh under the Uttar Pradesh Power Corporation Limited (for short, UPPCL'). It is also asserted that the petitioners are members of another union called the Uttar Pradesh Vidyut Outsourced Mazdoor Sangh, Azamgarh. The said union was registered on 8th December, 2022 with the Registrar of Trade Unions, Uttar Pradesh, Kanpur. The petitioners acknowledge the fact that on 4th 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, under the UPPCL. It is admitted to the petitioners that after issue of this notification, no strike was permissible by employees, regular or contractual, in the UPPCL for a period of six months. A notice of strike was nevertheless given by employees of the UPPCL, which includes those of the Corporation on 20.02.2023.
7. A memo was issued by the Managing Director of the UPPCL asking the Principal Secretary (Home), Government of U.P., Lucknow to maintain law and order. A circular was also issued by the Secretary in the Energy Department, Government of U.P. on 12.03.2023, addressed to all Commissioners of Police, all District Collectors and all Senior Superintendents of Police/ Superintendents of Police in the State that the proposed strike is illegal and that necessary deployment of force be done to ensure maintenance of law and order. The petitioners' case, pleaded in Paragraph Nos.15, 16, 19 and 22 of the writ petition, is that when the strike was in fact resorted to from 16.03.2023 for 72 hours by powermen, the petitioners stayed on duty and did not participate. Nevertheless, the petitioners' contractual engagement has been terminated by the Managing Director of the Corporation in terms of orders like the one dated 17.03.2023 passed in the case of the first petitioner for striking work in violation of the notification issued under the ESMA, prohibiting strikes, and further, debarring their engagement in future for any work relating to the Corporation.
8. It is argued by the learned Counsel for the petitioners that the provisions of the ESMA would not be attracted to the petitioners' case because they never struck work. It is also argued that a perusal of the impugned order dated 17.03.2023 passed in the case of the first petitioner would show that it has been passed in a casual manner, granting approval to the termination of contract and further disqualifying the petitioners. It is, particularly, argued that the decision taken by the Managing Director of the Corporation is stigmatic, with disabling consequences, but has been passed without providing any opportunity of hearing to the petitioners, that causes them substantial prejudice.
9. A careful look at the impugned order shows that the order has been passed by the Managing Director upon a recommendation by the service provider, M/s. Prime Secare Workforce Private Limited, described in the order as M/s. Primeone. The petitioners have privity of contract with the service provider and not the Corporation. There is no reason why the service provider would report the first petitioner or the others to the Managing Director, asking for their engagement to be terminated. That apart, the strike by powermen in Uttar Pradesh was all encompassing and debilitating, and judicial notice must be taken of the fact that without the total participation of all powermen, such widespread strike and disruption of power was not possible. Once a notification under the ESMA had been issued, apart from the fact that it made the strike absolutely illegal, given the importance of uninterrupted supply of electricity in modern life that runs more on electricity-driven gadgets than human effort or other resources, the decision of the Corporation to weed out striking contractual workmen, in the opinion of this Court, ought not to be interfered with on principles of violation of natural justice. There are no allegations of mala fides against the Chairman of the Corporation or the workforce supplier Secare, who reported the petitioners to the Chairman of the Corporation for action. In any event, the petitioners were engaged on contract through the workforce supplier, a nature of engagement that does not entitle the petitioners to seek reinstatement in service or restoration of their contract.
10. 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."
11. The decision of the Division Bench in Rajesh Bhardwaj (supra) was followed by a learned Single Judge of this Court in Rajesh Kumar Singh v. District Basic Education Officer and others, 2022 (4) ADJ 535, where 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 the contract failed before the Single Judge and also in appeal. He was re-engaged on 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."
15. The case of the petitioners here is nothing more than a contractual engagement through a workforce supplier. The petitioners, therefore, cannot claim any relief of reinstatement, even if it be a case of violation of natural justice.
12. So far as the stigma cast upon the petitioners is concerned, the order of the Managing Director of the Corporation does not, in any manner, disqualify the petitioners from contractual employment elsewhere. It is, at the most, a decision to forbid the petitioners' engagement in the Corporation's establishment. It does not disable the petitioners from seeking employment elsewhere.
13. In the entirety of circumstances, no case for interference with the impugned order or issue of the mandamus sought is made out.
14. The petition fails and is dismissed.
Order Date :- 20.7.2023 Anoop (J.J. Munir, J.)