# Ashish Kumar Pandey & Ors v. State of U.P. & Ors

- **Citation:** (2023) 9 ILRA 779
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-20
- **Case number:** Writ-A No. 10561 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashish-kumar-pandey-ors-v-state-of-u-p-ors-50752
- **Pages:** 5

## Headnote

C.S.C., Sri Abhishek Srivastava, Sri Siya
Ram Yadav, Sri Adarsh Bhushan

Contractual
Employment
-
Linemen
engaged through outsourcing agency -
Termination
of
contract
for
alleged
participation in strike - ESMA notification
in force - No reinstatement permissible in
case of simple contract of service -
Allegation of stigma not sufficient to
invoke principles of natural justice -

Held:
Petitioners,
being
contract
workers
engaged through a third-party outsourcing
agency and not directly under the Corporation,
cannot seek reinstatement. Their termination
was based on the strike conducted in violation
of the ESMA notification, and even assuming
violation of natural justice, no relief of
reinstatement is legally permissible in a nonstatutory contract. Moreover, the impugned
order does not disqualify the petitioners from
seeking employment elsewhere and is limited to
future
engagement
with
the
respondent
corporation only.

Rajesh Bhardwaj Vs U.O.I. & ors., 2019 (2)
ADJ 830 (DB) and Rajesh Kumar Singh Vs
District Basic Education Officer & ors.,
2022 (4) ADJ 535 - relied on.

Petition dismissed.

## Text

9 All. Ashish Kumar Pandey & Ors. Vs. State of U.P. & Ors.
779
respondents directing them to permit the
workmen to work and be paid salary is
made out.

13. The petition fails and is
dismissed.
----------
(2023) 9 ILRA 779
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.07.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 10561 of 2023

Ashish Kumar Pandey & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ram Pravesh Pandey

Counsel for the Respondents:
C.S.C., Sri Abhishek Srivastava, Sri Siya
Ram Yadav, Sri Adarsh Bhushan

Contractual
Employment
-
Linemen
engaged through outsourcing agency -
Termination
of
contract
for
alleged
participation in strike - ESMA notification
in force - No reinstatement permissible in
case of simple contract of service -
Allegation of stigma not sufficient to
invoke principles of natural justice -

Held:
Petitioners,
being
contract
workers
engaged through a third-party outsourcing
agency and not directly under the Corporation,
cannot seek reinstatement. Their termination
was based on the strike conducted in violation
of the ESMA notification, and even assuming
violation of natural justice, no relief of
reinstatement is legally permissible in a nonstatutory contract. Moreover, the impugned
order does not disqualify the petitioners from
seeking employment elsewhere and is limited to
future
engagement
with
the
respondent
corporation only.

Rajesh Bhardwaj Vs U.O.I. & ors., 2019 (2)
ADJ 830 (DB) and Rajesh Kumar Singh Vs
District Basic Education Officer & ors.,
2022 (4) ADJ 535 - relied on.

Petition dismissed.

(Delivered by 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,
780 INDIAN LAW REPORTS ALLAHABAD SERIES
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,
9 All. Ashish Kumar Pandey & Ors. Vs. State of U.P. & Ors.
781
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,
782 INDIAN LAW REPORTS ALLAHABAD SERIES
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
9 All. Jeet Lal Saroj Vs. State of U.P. & Ors.
783
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.
----------
(2023) 9 ILRA 783
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.08.2023

BEFORE

THE HON'BLE VIKAS BUDHWAR, J.

Writ-A No. 10696 of 2023

Jeet Lal Saroj ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shivendu Ojha, Sri Sneh Pandey, Sri
R.K. Ojha (Sr. Adv.)

Counsel for the Respondents:
C.S.C., Sri Prabhakar Awasthi, Sri Ramesh
Chandra Dwivedi, Sri Santosh Kumar
Mishra, Sri Pradeep Srivastava, Sri Anil
Bhushan (Sr. Adv.)

A. Service Law - Constitution of India -
Article 226 - Writ - Maintainability -
Objection to locus standi of the petitioner
challenging grant of the Lecturer pay scale
to the respondent, was raised - Legal
injury - Relevancy - Breach of GO dated
25.10.2000 - Effect - Duty of the Court -
Explained - Held, once the very basis of
according designation of Lecturer itself is
without any base then the very foundation
gets eroded - Hence, any benefit which
would be available to a non-deserving
Assistant Teacher would be detrimental to
the interest of the deserving Teacher with
regard to their future prospects - The
Courts of law have a solemn duty to
correct the errors - High Court rejected
the
objection
questioning
the
maintainability of writ. (Para 32)

B. Service Law - Constitution of India -
Article 14 - Concept of negative equality -
Lecturer
pay
scale
-
Entitlement
-
Respondent, not fulfilling the condition,
was accorded Lecturer pay scale on the