# Khem Singh v. U.P. State

- **Citation:** (2021) 4 ILRA 196
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-15
- **Case number:** Writ A No. 14808 of 2020
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/khem-singh-v-u-p-state-46978
- **Pages:** 11

## Headnote

A. Civil Law - Contractual Service -
Abandonment of service - Termination -
Scope of Judicial Review - Industrial
Employment (Standing Orders), 1946; Specific
Relief Act, 1963: Section 14

i) Jurisdiction - Employees of the State
Road Transport Corporation are not civil
servants, and they are not entitled to
protection
of
Article
311(2)
of
the
Constitution. (Para 15)

Where
an
employee
intends
to
enforce
constitutional rights or right under statutory
regulations, the civil court will have jurisdiction
to try a suit. Where, however, the employee
claims rights and obligations under Industrial
Disputes Act or sister laws (Standing Orders)
the civil court would lack jurisdiction. The
4 All. Khem Singh Vs. U.P. State Road Transport Corp. at Lucknow & Ors.
197
employee will have to take remedy before the
forum under the Industrial Disputes Act. Where
the relationship between the employer and
employee is contractual, the right to enforce the
contract of service is prohibited in terms of
Section 14 of the Specific Relief Act, 1963. (Para
16)

ii) Arbitration clause - The presence of an
arbitration
clause
within
a
contract
between a state instrumentality and a
private party has not acted as an absolute
bar to availing remedies u/Article 226 of
the Constitution of India. If the state
instrumentality
violates
its
constitutional
mandate under Article 14 to act fairly and
reasonably, relief under the plenary powers of
the Article 226 of the Constitution would lie.
(Para 17)

It is not being disputed that Transport
Corporation is a State within the meaning of
Article 12. The employees of the Transport
Corporation do not enjoy the status, and/or
protection of a civil servant within the meaning
of Article 309 and 311 of the Constitution. The
service condition of the petitioner is governed
by the terms stipulated in the contract of service
and not by rules/regulation having statutory
force.
A
writ
u/Article
226
would
be
maintainable notwithstanding the arbitration
clause in the contract of service.

(iii) Judicial Review - The relationship of
master and servant is purely contractual,
it is well settled that a contract of
personal
service
is
not
specifically
enforceable. Even if the termination of the
contract of employment (by dismissal or
otherwise) is found to be illegal or in breach of
the contract, the remedy of the employee is
only to seek damages and not specific
performance. (Para 20)

Employee
cannot
seek
enforcement
of
reinstatement by way of a mandamus but all the
same he would be entitled to all his benefits
(pecuniary)
flowing
from
the
terms
of
appointment from the date of termination order
to date of expiry of the contract. (Para 22)

Writ Court can examine the validity of
a termination order passed by public
authority. It is no longer open to the
authority passing the order to argue that
its action being in the realm of contract is
not open to judicial review. A writ Court is
entitled to judicially review the acti

## Text

196 INDIAN LAW REPORTS ALLAHABAD SERIES
separate offences. Multiplicity of cases
manifested repetitive criminal conduct and
thus assumed significance.

76. The competent authority cannot
be faulted for finding that the aforesaid
antecedents revealed traits which made the
petitioner unsuitable for appointment.

77. True it is that Case Crime No. 30
of 2018, under Sections 498-A, 323, 504,
506, 307, 313 I.P.C. and 3/4 of Dowry
Prohibition Act, at Police Station Mahila
Thana, District Hathras, arose out of a
matrimonial
dispute
between
the
petitioner's brother and his wife. However,
it is of no avail to the petitioner, in the facts
of this case. The multiplicity of criminal
cases as seen earlier constitute aggravating
circumstances
which
compelled
the
competent authority to find against the
petitioner.

78. In the opinion of the competent
authority the multiple criminal cases
yielded material of credible nature with
high probative value. The order of the
competent authority based on the said
material is supported by reasons. The
impugned order factors relevant criteria and
excludes irrelevant considerations. The
inferences drawn by the authority are
reasonable. The impugned order is in
conformity with judicial authorities in
point. There is no procedural impropriety
committed by the authority while passing
the impugned order.

79. The pleadings in the writ petition
and the material in the record before this
Court, do not establish any perversity in the
findings. In these facts, disclosure of the
criminal cases by the petitioner is not a
defence
against
cancellation
of
his
selection.

80. In wake of the preceding
discussion, the impugned order dated
15.06.2020 passed by respondent no. 3-
Superintendent of Police, Jalaun is not
liable to be interfered with.

81. The writ petition is liable to be
dismissed and is dismissed.
----------
(2021)04ILR A196
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.032021

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Writ A No. 14808 of 2020

Khem Singh ...Petitioner
Versus
U.P.
State
Road
Transport
Corp.
at
Lucknow & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bhawesh Pratap Singh

Counsel for the Respondents:
Sri Adarsh Bhushan

A. Civil Law - Contractual Service -
Abandonment of service - Termination -
Scope of Judicial Review - Industrial
Employment (Standing Orders), 1946; Specific
Relief Act, 1963: Section 14

i) Jurisdiction - Employees of the State
Road Transport Corporation are not civil
servants, and they are not entitled to
protection
of
Article
311(2)
of
the
Constitution. (Para 15)

Where
an
employee
intends
to
enforce
constitutional rights or right under statutory
regulations, the civil court will have jurisdiction
to try a suit. Where, however, the employee
claims rights and obligations under Industrial
Disputes Act or sister laws (Standing Orders)
the civil court would lack jurisdiction. The
4 All. Khem Singh Vs. U.P. State Road Transport Corp. at Lucknow & Ors.
197
employee will have to take remedy before the
forum under the Industrial Disputes Act. Where
the relationship between the employer and
employee is contractual, the right to enforce the
contract of service is prohibited in terms of
Section 14 of the Specific Relief Act, 1963. (Para
16)

ii) Arbitration clause - The presence of an
arbitration
clause
within
a
contract
between a state instrumentality and a
private party has not acted as an absolute
bar to availing remedies u/Article 226 of
the Constitution of India. If the state
instrumentality
violates
its
constitutional
mandate under Article 14 to act fairly and
reasonably, relief under the plenary powers of
the Article 226 of the Constitution would lie.
(Para 17)

It is not being disputed that Transport
Corporation is a State within the meaning of
Article 12. The employees of the Transport
Corporation do not enjoy the status, and/or
protection of a civil servant within the meaning
of Article 309 and 311 of the Constitution. The
service condition of the petitioner is governed
by the terms stipulated in the contract of service
and not by rules/regulation having statutory
force.
A
writ
u/Article
226
would
be
maintainable notwithstanding the arbitration
clause in the contract of service.

(iii) Judicial Review - The relationship of
master and servant is purely contractual,
it is well settled that a contract of
personal
service
is
not
specifically
enforceable. Even if the termination of the
contract of employment (by dismissal or
otherwise) is found to be illegal or in breach of
the contract, the remedy of the employee is
only to seek damages and not specific
performance. (Para 20)

Employee
cannot
seek
enforcement
of
reinstatement by way of a mandamus but all the
same he would be entitled to all his benefits
(pecuniary)
flowing
from
the
terms
of
appointment from the date of termination order
to date of expiry of the contract. (Para 22)

Writ Court can examine the validity of
a termination order passed by public
authority. It is no longer open to the
authority passing the order to argue that
its action being in the realm of contract is
not open to judicial review. A writ Court is
entitled to judicially review the action and
determine whether there was any illegality,
perversity, unreasonableness, unfairness or
irrationality that would vitiate the action, no
matter the action is in the realm of contract.
The Court, however, cannot sit in the arm chair
of the employer to decide whether a more
reasonable decision or course of action could
have been taken in the circumstances. (Para
27)

In the present case, the question is whether
termination of the petitioner is arbitrary, in
violation of Article 14 to warrant interference
with the impugned order. The impugned order
records that petitioner has not resumed service
at the place of transfer/attachment, against the
terms of the contract requiring the employee to
render service for 22 days in a month. The
attachment was made due to shortage of staff
at Agra. The medical certificate was not
submitted by the petitioner though demanded,
as has been noted by the authority in the
impugned
order.
The
medical
certificate,
brought on record, merely prescribes four weeks
bed rest due to complaint of low back pain. The
certificate is not supported by any medical
prescription nor the course and nature of
treatment undergone by the petitioner. The
onus in the first instance is upon the petitioner
to discharge the burden. It is a question of fact
resting upon evidentiary determination, which
cannot be gone into u/Article 226 of the
Constitution in the first instance. The motive or
foundation for passing the termination order
that weighted with the employer would rest
upon evidence of the respective parties. The
petitioner in the circumstances would have to
seek
remedy
before
the
appropriate
authority/forum. (Para 29)

Writ petition disposed of with liberty. (E-3)

Precedent followed:
198 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Rajasthan State Road Transport Corporation
& anr. Vs Bal Mukund Bairwa, (2009) 4 SCC 299
(Para 13)

2. Rajasthan SRTC Vs Krishna Kant, (1995) 5
SCC 75 (Para 14)

3. Rajasthan State Road Transport Corporation
& ors. Vs Zakir Hussain, (2005) 7 SCC 447;
2005 SCC (L&S) 945 (Para 15)

4. Unitech Ltd. & ors. Vs Telangana State
Industrial Infrastructure Corporation (TSIIC)
and others, Civil Appeal No. 317 of 2021,
decided on 17th February, 2021 (Para 17)

5. ABL International Ltd. Vs Export Credit
Guarantee Corporation of India, (2004) 3 SCC
553 (Para 18)

6. Executive Committee of Vaish Degree College
Vs Lakshmi Narain, MANU/SC/0066/1973 (Para
19)

7. Smt. J. Tiwari Vs Smt. Jawala Devi Vidya
Mandir, AIR 1981 SC 122 (Para 19)

8. S.B.I. Vs S.N. Goyal, Civil Appeal Nos. 42434244 of 2004, decided on 02.05.2008 (Para 20
(iii))

9. A.P. State Federation of Coop. Spinning Mills
Ltd. & anr. Vs P.V. Swaminathan, (2001) 10 SCC
83 (Para 21)

10. State of Orissa Vs Chandra Shekhar Mishra,
(2002) 10 SCC 583 (Para 23)

11. Satish Chandra Anand Vs U.O.I., 1953 AIR
(SC) 250 (Para 24)

12. Delhi Transport Corporation Vs D.T.C.
Mazdoor Congress & ors., 1991 Suppl. SCC 600
(Para 25)

13. Balmer Lawrie & Co. Ltd. Vs Partha Sarathi
Sen Roy, (2013) 8 SCC 345 (Para 25)

14. Central Inland Water Transport Corporation
Ltd. & anr.Vs Brojo Nath Ganguly and another,
1986 3 SCC 156 (Para 26)

15. Pearlite Liners (P) Ltd. Vs Manorama Sirsi,
(2004) 3 SCC 172 (Para 28)

Present petition challenges termination
order dated 05.12.2020.

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Sri Bhawesh Pratap Singh,
learned counsel for the petitioner and Sri
Adarsh Bhushan, learned counsel appearing
for the respondents.

2. The petition is being decided on
merit at the admission stage, on consent,
without calling for counter affidavit as per
Rules of the Court.

3. The facts, inter se, parties are not in
dispute.

4. The facts giving rise to the instant
petition, briefly stated, is that petitioner
came to be appointed conductor on contract
with the respondent-Uttar Pradesh State
Road Transport Corporation, Mathura (for
short ''Transport Corporation') in January
2007. The contract of service is for a period
of 11 months which has been renewed from
time to time by executing subsequent
contract. The copy of the contract executed
on 7 July 2020 by the petitioner has been
supplied by learned counsel appearing for
the respondent.

5. The petitioner came to be
terminated earlier by order dated 22 August
2018, passed by the third respondent,
Assistant Regional Manager, U.P. State
Road Transport Corporation, Taj Depot,
Agra, on the ground of misconduct,
alleging that petitioner while on duty on
bus No. U.P. 85H9600 entered into an
altercation. F.I.R. came to be lodged on 22
August 2018 against 13 named persons and
4 All. Khem Singh Vs. U.P. State Road Transport Corp. at Lucknow & Ors.
199
14 unknown persons. Petitioner was
admitted to bail by the competent court.

6. Aggrieved, petitioner challenged
the termination order in a petition being
Writ-A No. 808 of 2020, which came to be
allowed vide order dated 17 January 2020.
The matter was remanded to the concerned
authority
for
proceeding
afresh,
in
accordance with law on specific charges of
misconduct. A further direction was issued
to reinstate the petitioner. Pursuant thereof,
petitioner came to be reinstated on 18
February 2020. It is urged that before the
enquiry came to be concluded petitioner
came to be attached/ transferred, due to
shortage of staff, to Taj Depot, Agra, from
the present place of posting at Mathura,
vide order dated 4 November 2020.
Pursuant thereof, petitioner came to be
relieved vide order dated 5 November
2011, passed by the Additional Regional
Manager, Mathura. Petitioner by the
impugned order came to be terminated for
not joining and rendering service at the
place of attachment in terms of the
contract.

7. It is urged that neither the order of
attachment was served upon the petitioner
nor it was marked to the petitioner. It is
alleged that petitioner, thereafter, fell
seriously ill on 3 November 2020 and was
advised bed rest by the doctor at district
hospital Mathura. The parcha of the
hospital
shows
that
petitioner
was
complaining of low back pain. It appears
that
the
third
respondent
vide
communication dated 28 November 2020,
demanded the medical certificate in support
of his illness. Petitioner responded but did
not submit the medical certificate dated 4
November
2020,
which
records
that
petitioner was suffering from low back
pain and was advised bed rest for four
weeks.

8. It is urged by learned counsel for
the applicant that without considering the
fact that the letter reached the petitioner on
4 December 2020, by the impugned order
dated 5 December 2020, the services of the
petitioner came to be terminated. The order
of termination is under challenge.

9. Learned counsel for the petitioner
submits that order terminating the services
of the petitioner is vitiated for the reason
that no opportunity of hearing was
provided; petitioner was advised bed rest
from 4 November 2020 for four weeks,
therefore, he could not report at the place of
attachment; the impugned order is punitive
in nature; fulfledged departmental enquiry
was not conducted; nor charge sheet was
issued. In other words the order of
punishment is punitive, arbitrary and not as
per terms of the contract.

10. In rebuttal, learned counsel
appearing
for
the
respondents,
on
instructions, submits that the services of the
petitioner came to be dispensed with as per
terms and conditions of the contract;
petitioner had not reported at the place of
posting and had given an impression that he
is no longer interested in continuing with the
service. It is further submitted that there is an
arbitration clause in the agreement for
redressal of the dispute. The writ petition,
therefore, is not maintainable. The impugned
order terminating the services is simpliciter
and does not cast any stigma. The motive of
passing the order is abandonment of service;
the order is not founded on misconduct,
malice or efficiency.
200 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Rival submissions fall for
consideration.

12. The question that arises for
consideration is whether the Court would
have jurisdiction in matter of contract of
service
under
Article
226
of
the
Constitution or in the alternative whether
the contract of service can be enforced in
writ jurisdiction.

13. It would be apposite to examine
the law with regard to jurisdiction; scope of
judicial review in contractual matter
pertaining to service.

(A) Jurisdiction:

A three Judge Bench of Supreme
Court in its decision titled Rajasthan State
Road Transport and another v. Bal
Mukund Bairwa1, revisited the issue with
regard to jurisdiction of civil court/Labour
Court
to
entertain
suits/petitions
questioning the orders of termination of
workman and held as follows :

"36. If an employee intends to
enforce his constitutional rights or a right
under a statutory regulation, the civil court
will have the necessary jurisdiction to try a
suit. If, however, he claims his right and
corresponding obligations only in terms of
the provisions of the Industrial Disputes
Act or the sister laws so called, the civil
court will have none. In this view of the
matter, in our considered opinion, it would
not be correct to contend that only because
the employee concerned is also a workman
within the meaning of the provisions of the
1947 Act or the conditions of his service
are otherwise governed by the Standing
Orders certified under the 1946 Act, ipso
facto the civil court will have no
jurisdiction. This aspect of the matter has
recently been considered by this Court in
Rajasthan SRTC v. Mohar Singh. The
question as to whether the civil court's
jurisdiction is barred or not must be
determined having regard to the facts of
each case.

37. If the infringement of the
Standing Orders or other provisions of the
Industrial Disputes Act are alleged, the
civil court's jurisdiction may be held to be
barred but if the suit is based on the
violation of principles of common law or
constitutional provisions or on other
grounds, the civil court's jurisdiction may
not be held to be barred. If no right is
claimed under a special statute in terms
whereof the jurisdiction of the civil court is
barred,
the
civil
court
will
have
jurisdiction.

38.
Where
the
relationship
between the parties as employer and
employee is contractual, the right to
enforce the contract of service depending
on personal volition of an employer is
prohibited in terms of Section 14(1)(b) of
the Specific Relief Act, 1963. It has,
however, four exceptions, namely, (1) when
an employee enjoys a status i.e. his
conditions of service are governed by the
rules framed under the proviso appended to
Article 309 of the Constitution of India or a
statute and would otherwise be governed
by Article 311(2) of the Constitution of
India; (2) where the conditions of service
are governed by statute or statutory
regulation and in the event mandatory
provisions thereof have been breached; (3)
when the service of the employee is
otherwise protected by a statute; and (4)
where a right is claimed under the
Industrial Disputes Act or sister laws,
termination of service having been effected
in breach of the provisions thereof.
4 All. Khem Singh Vs. U.P. State Road Transport Corp. at Lucknow & Ors.
201

39. The appellant Corporation is
bound to comply with the mandatory
provisions of the statute or the regulations
framed under it. A subordinate legislation
when validly framed becomes a part of the
Act. It is also bound to follow the principles
of natural justice. In the event it is found
that the action on the part of the State is
violative of the constitutional provisions or
the mandatory requirements of a statute or
statutory rules, the civil court would have
the jurisdiction to direct reinstatement with
full back wages."

(Refer-Premier Auto mobiles
Ltd. v. Kamlekar Shantaram Wadke of
Bombay and others3)

14. Industrial Employment (Standing
Orders) Act, 1946, are statutorily imposed
conditions of service and are binding both
upon the employers and employees, though
they do not amount to `statutory provisions'
and any violation of these Standing Orders
entitles an employee to appropriate relief
before the forum created by the Industrial
Disputes Act. The legal position is that
Standing Orders have no statutory force
and
are
not
in
the
nature
of
delegated/subordinate
legislation.
.(Refer:Rajasthan
SRTC
v.
Krishna
Kant)

15. In Rajasthan State Road
Transport Corporation and others v.
Zakir Hussain, Supreme Court held that
the employees of the State Road Transport
Corporation are not civil servants, and they
are not entitled to protection of Article
311(2) of the Constitution.

16. It follows that where an employee
intends to enforce constitutional rights or
right under statutory regulations, the civil
court will have jurisdiction to try a suit.
Where, however, the employee claims
rights and obligations under Industrial
Disputes Act or sister laws (Standing
Orders)
the
civil
court
would
lack
jurisdiction. The employee will have to
take remedy before the forum under the
Industrial
Disputes
Act.
Where
the
relationship between the employer and
employee is contractual, the right to
enforce the contract of service is prohibited
in terms of Section 14 of the Specific
Relief Act, 1963.

(B) Arbitration clause:

17. The presence of an arbitration
clause within a contract between a state
instrumentality and a private party has not
acted as an absolute bar to availing
remedies
under
Article
226
of
the
Constitution
of
India.
If
the
state
instrumentality violates its constitutional
mandate under Article 14 to act fairly and
reasonably, relief under the plenary powers
of the Article 226 of the Constitution would
lie. The jurisdiction under Article 226 is a
valuable constitutional safeguard against an
arbitrary exercise of state power or a
misuse of authority. (Refer- Unitech
Limited and others versus Telangana
State
Industrial
Infrastructure
Corporation (TSIIC) and others)

18. This principle was recognized in
ABL International Ltd. V Export Credit
Guarantee Corporation of India :

"28. However, while entertaining
an objection as to the maintainability of a
writ petition under Article 226 of the
Constitution of India, the court should bear
in mind the fact that the power to issue
prerogative writs under Article 226 of the
202 INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution is plenary in nature and is not
limited by any other provisions of the
Constitution. The High Court having
regard to the facts of the case, has a
discretion to entertain or not to entertain a
writ petition. The Court has imposed upon
itself certain restrictions in the exercise of
this power. (See Whirlpool Corpn. v.
Registrar of Trade Marks [(1998) 8 SCC 1]
.) And this plenary right of the High Court
to issue a prerogative writ will not
normally be exercised by the Court to the
exclusion of other available remedies
unless such action of the State or its
instrumentality
is
arbitrary
and
unreasonable
so
as
to
violate
the
constitutional mandate of Article 14 or for
other valid and legitimate reasons, for
which the Court thinks it necessary to
exercise the said jurisdiction."
 (emphasis supplied)

19. Therefore, while exercising its
jurisdiction under Article 226, the Court is
entitled to enquire into whether the action
of the State or its instrumentalities is
arbitrary or unfair and in consequence, in
violation of Article 14. The jurisdiction
under
Article
226
is
a
valuable
constitutional safeguard against an arbitrary
exercise of state power or a misuse of
authority. The High Court having regard to
the facts of each case, has a discretion to
entertain or not to entertain a writ petition.

(C) Judicial Reviews:

There is 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 employment is governed purely by
contract or by a statute or statutory rules.
Even where the employer is a statutory
body and 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. (Vide
:Executive
Committee of Vaish Degree College v.
Lakshmi Narain8 and Smt. J. Tiwari v.
Smt. Jawala Devi Vidya Mandir)

20. When an employee of a statutory
body whose service is terminated, pleads
that such termination is in violation of
statutory rules governing his employment,
an
action
for
declaration
that
the
termination is invalid and that he is deemed
to continue in service is maintainable and
will not be barred by Section 14 of the
Specific Relief Act. Where, however, the
relationship of master and servant is purely
contractual, it is well settled that a contract
of personal service is not specifically
enforceable. Even if the termination of the
contract of employment (by dismissal or
otherwise) is found to be illegal or in
breach of the contract, the remedy of the
employee is only to seek damages and not
specific performance. Courts will neither
declare such termination to be nullity nor
declare that the contract of employment
subsits nor grant the consequential relief of
reinstatement, subject to the recognised
exceptions:

(i)
a
civil
servant
(Article
311/rules made under Article 309 of the
Constitution);

ii) a workman having protection
of Industrial Disputes Act, 1947;
4 All. Khem Singh Vs. U.P. State Road Transport Corp. at Lucknow & Ors.
203

(iii) an employee of a statutory
body governed by mandatory provisions of
statute or statutory rules. (Refer- State Bank
of India and others versus S.N. Goyal)

21. In A.P. State Federation of Coop.
Spinning Mills Ltd. and another Versus
P.V. Swaminathan11, the appellant therein
was State within the meaning of Article 12 of
the Constitution. The order of termination of
the employee appointed on contract on the
face of it appears to be innocuous, that would
not prohibit the Court from looking at the
attending circumstances prior to the issuance
of the termination order to find out whether
termination was the motive or inefficiency or
misconduct was the foundation for passing
the order of termination.

"The legal position is fairly well
settled that an order of termination of a
temporary employee or a probationer or even
a tenure employee, simpliciter without
casting any stigma may not be interfered with
by the court. But the court is not debarred
from looking at the attendant circumstances,
namely, the circumstances prior to the
issuance of order of termination to find out
whether the alleged inefficiency really was
the motive for the order of termination or
formed the foundation for the same order. If
the court comes to a conclusion that the
order was, in fact, the motive, then obviously
the order would not be interfered with, but if
the court comes to a conclusion that the socalled inefficiency was the real foundation for
passing of order of termination, then
obviously such an order would be held to be
penal in nature and must be interfered with
since the appropriate procedure has not been
followed."

22. The Supreme Court in the given
facts came to the conclusion that the order
of termination founded on inefficiency
is vitiated, but held that the employee
cannot seek enforcement of reinstatement
by way of a mandamus but all the same he
would be entitled to all his benefits
(pecuniary) flowing from the terms of
appointment from the date of termination
order to date of expiry of the contract.

23. In State of Orissa v. Chandra
Sekhar Mishra12, the respondent had been
appointed Homeopathic Medical Officer whose
services were subsequently terminated by issue
of a notice. While rejecting the challenge to the
termination order, the Court observed "when
the respondent was only a contractual
employee, there could be no question of his
being granted the relief of being directed to be
appointed as a regular employee."

24. I may also refer to the decision of the
Supreme Court in Satish Chandra Anand v.
Union of India13, where the petitioner, an
employee of the Directorate General of
Resettlement and Employment, was removed
from contractual employment after being
served a notice of termination. The contract of
service was initially for a period of five years
which was later extended. A five-Judge Bench
hearing the matter, dismissed the petition,
challenging the termination primarily on the
ground that the petitioner could not prove a
breach of a fundamental right since no right
accrued to him as the whole matter rested in
contract and termination of the contract did not
amount to dismissal, or removal from service
nor was it a reduction in rank. The Court found
it to be an ordinary case of a contract being
terminated by notice under one of its clauses.
The Court observed :

"10. There was no compulsion on
the Petitioner to enter into the contract he
did. He was as free under the law as any
204 INDIAN LAW REPORTS ALLAHABAD SERIES
other person to accept or reject the offer
which was made to him. Having accepted,
he still had open to him all the rights and
remedies
available
to
other
persons
similarly situated to enforce any rights
under his contract, which has been denied
to him, assuming there are any, and to
pursue in the ordinary Courts of the land,
such remedies for a breach as are open to
him to exactly the same extent as other
persons similarly situated. He has not been
discriminated against and he has not been
denied the protection of any laws which
others similarly situated could claim..."

25. In Delhi Transport Corporation
v.
D.T.C.
Mazdoor
Congress
and
others14, Supreme Court was dealing with
the constitutional validity of Regulation 9
(b) that authorized termination by service
of one month's notice or pay in lieu thereof.
Sawant, J. in his concurring opinion held
that the provision contained the much hated
rules of hire and fire reminiscent of the
days of laissez faire and unrestrained
freedom of contract and that any such rule
would have no place in service conditions
being arbitrary and violative of Article 14
of the Constitution. (Refer-Balmer Lawrie
& Co. Ltd. vs. Partha Sarathi Sen Roy15)

26. To the same effect was an earlier
decision of this Court in Central Inland
Water Transport Corporation Ltd. And
another v. Brojo Nath Ganguly and
another16, where the Supreme Court had
refused
to
enforce
an
unfair
and
unreasonable contract or an unfair and
unreasonable clause in a contract entered
into between parties who did not have
equal bargaining power.

27. In Unitech (supra), the Court
cautioned that while exercising jurisdiction
under Article 226 of the Constitution in a
contractual dispute, which in my opinion
would also include contract of service
entered between the employee and the State
or instrumentality of State, the Court,
however, must not enter into disputed
questions of fact resting upon evidence.
The observation in para 35 of the report
reads thus:

"In determining as to whether the
jurisdiction should be exercised in a
contractual dispute, the Court must,
undoubtedly eschew, disputed questions of
fact
which
would
depend
upon
an
evidentiary determination requiring a trial.
But equally, it is well-settled that the
jurisdiction under Article 226 cannot be
ousted only on the basis that the dispute
pertains to the contractual arena. This is
for the simple reason that the State and its
instrumentalities are not exempt from the
duty to act fairly merely because in their
business dealings they have entered into
the realm of contract. Similarly, the
presence of an arbitration clause does oust
the jurisdiction under Article 226 in all
cases though, it still needs to be decided
from case to case as to whether recourse to
a public law remedy can justifiably be
invoked."

(D) Analysis and Summation:

 A
conspectus
of
the
pronouncements of Supreme Court and the
development of law over the past few
decades thus show that there has been a
notable shift from the stated legal position
settled in earlier decisions, that termination
of a contractual employment in accordance
with the terms of the contract was
permissible and the employee could claim
no protection against such termination even
when one of the contracting parties
happened to be the State or instrumentality
4 All. Khem Singh Vs. U.P. State Road Transport Corp. at Lucknow & Ors.
205
of the State. Remedy for a breach of a
contractual condition was by way of civil
action for damages/compensation. With the
development of law relating to judicial
review of administrative actions, a writ
Court can now examine the validity of a
termination
order
passed
by
public
authority. It is no longer open to the
authority passing the order to argue that its
action being in the realm of contract is not
open to judicial review. A writ Court is
entitled to judicially review the action and
determine whether there was any illegality,
perversity, unreasonableness, unfairness or
irrationality that would vitiate the action,
no matter the action is in the realm of
contract. The Court, however, cannot sit in
the arm chair of the employer to decide
whether a more reasonable decision or
course of action could have been taken in
the circumstances. So long as the action
taken by the authority is not shown to be
vitiated by the infirmities referred to above
and so long as the action is not
demonstrably in outrageous defiance of
logic, the writ Court would do well to
respect the decision under challenge.

28. In Pearlite Liners (P) Ltd.
Versus Manorama Sirsi17, the question
before the Court was, "Can a contract of
service be specifically enforced?" The case
was of private employment which normally
would be governed by the terms of the
contract between the parties. The issue
before the Court, inter alia, was with regard
to the validity and non compliance of
transfer order. The observation made by the
Supreme Court is relevant in the facts of
the instant case:

"In the absence of a term
prohibiting transfer of the employee, prima
facie, the transfer order cannot be called in
question. The plaintiff has not complied
with the transfer order as she never
reported for work at the place where she
was transferred. As a matter of fact, she
also stopped attending the office from
where
she
was
transferred.
Noncompliance with the transfer order by the
plaintiff amounts to refusal to obey the
orders passed by superiors for which the
employer can reasonably be expected to
take
appropriate
action
against
the
employee concerned.

In case of such insubordination,
termination
of
service
would
be
a
possibility. Such a decision purely rests
within the discretion of the management."

29. Applying the law in the facts of
the case in hand, it is not being disputed
that Transport Corporation is a State within
the
meaning of
Article
12 of
the
Constitution of India. The employees of the
Transport Corporation do not enjoy the
status, and /or protection of a civil servant
within the meaning of Article 309 and 311
of the Constitution. The service condition
of the petitioner is governed by the terms
stipulated in the contract of service and not
by rules/regulation having statutory force.
A writ under Article 226 would be
maintainable
notwithstanding
the
arbitration clause in the contract of service.
The question that arises is whether
termination of the petitioner is arbitrary, in
violation
of
Article
14
to
warrant
interference with the impugned order. The
impugned order records that petitioner has
not resumed service at the place of
transfer/attachment, against the terms of the
contract requiring the employee to render
service for 22 days in a month. The
attachment was made due to shortage of
staff at Agra. The medical certificate was
not submitted by the petitioner though
206 INDIAN LAW REPORTS ALLAHABAD SERIES
demanded, as has been noted by the
authority in the impugned order. The
medical certificate, brought on record,
merely prescribes four weeks bed rest due
to complaint of low back pain. The
certificate is not supported by any medical
prescription nor the course and nature of
treatment undergone by the petitioner. The
issue whether the petitioner was justified in
not complying the order of posting due to
his illness rests upon the genuineness of his
medical treatment. The onus in the first
instance is upon the petitioner to discharge
the
burden.
The
medical
certificate
prescribing bed rest and not supported by
any other material to show the nature and
followup treatment to support the stand of
the petitioner is a question of fact resting
upon evidentiary determination, which
cannot be gone into under Article 226 of
the Constitution in the first instance. The
motive or foundation for passing the
termination order that weighted with the
employer would rest upon evidence of the
respective parties. The petitioner in the
circumstances would have to seek remedy
before the appropriate authority/forum.

30. The writ petition, in the
circumstances would not be maintainable,
accordingly, disposed of with liberty to the
petitioner to take recourse to alternative
remedy.

31. It is clarified that the observations
made in the order touching upon the merit
of the case would have no bearing, the
authority/forum to decide independently on
merit without being influenced by the
observations.

32. No costs.
----------
(2021)04ILR A206
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.03.2021

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

Writ A (Rent Control) No. 125 of 2021

M/s A.B. Corp., Kanpur Nagar ...Petitioner
Versus
Vishnu Kumar Agarwal & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Saurabh Srivastava

Counsel for the Respondents:
Sri Manish Kumar Nigam

A. Civil Law - Rent Control - The U.P.
Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972 - Section 3(j)
- One co-owner is competent to maintain
an action for eviction of the tenant of the
entire
premises,
since
he
can
be
considered as a landlord within the
meaning of Section 3(j) of the Act. One coowner alone would be competent to sign
application for release of premises. (Para
12)

In the present case, the applicant was the
landlord for the purpose of filing of the release
application and is covered under definition of
'landlord' as given Section 3(j) of the Act. (Para
9)

In the appeal three points of determination
were framed by the appellate court, (1) landlord
and tenant relationship between the parties; (2)
bona fide need; and (3) comparative hardship.

Concurrent finding was returned that
there
was
a
landlord
and
tenant
relationship between the parties. (Para 7)
On the issue of bonafide need, it was
found
that
the
property
already
in
possession of the landlord is being used in
different manner to meet out the need of