# Sushil Chandra v. State of U.P. & Ors - **Citation:** (2024) 8 ILRA 322 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2024-08-06 - **Case number:** Writ-A No. 7169 of 2024 - **Bench:** Subhash Vidyarthi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushil-chandra-v-state-of-u-p-ors-52321 - **Pages:** 5 ## Headnote (A) Service Law - Writ petition under Article 226 not maintainable for disputes arising from private contracts of service without statutory force or backing, and where the petitioner has not approached the court with clean hands - Remedy under Article 226 - Remedy available only when twin tests are satisfied (i) Authority/person discharges public function/public duty (ii) Action challenged falls within public law domain.(Para - 11,12,13) Petitioner challenged termination of his service - as Assistant Workshop Superintendent at Raj Kumar Goel Institute of Technology - Institute produced petitioner's resignation letter and proof of payment of dues. (Para - 2) HELD: - Petitioner's service contract was private, without statutory force or backing. Resignation letter and payment of dues were not disclosed in the writ petition. Petitioner's amended plea of forged resignation appeared to be an afterthought. Petitioner did not approach court with clean hands. No merit. (Para -13 to 16) Petition dismissed. (E-7) List of Cases cited: ## Text 322 INDIAN LAW REPORTS ALLAHABAD SERIES be undertaken, if it is so desired, by adopting legal recourse of Regulation 351A of the Civil Service Regulations. 16. Accordingly, the writ petition is allowed. 17. No order as to costs. ---------- (2024) 8 ILRA 322 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 06.08.2024 BEFORE THE HON'BLE SUBHASH VIDYARTHI, J. Writ-A No. 7169 of 2024 Sushil Chandra ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioner: Ashok Kumar Rai Counsel for the Respondents: C.S.C., Diptiman Singh, Rohit Pandey (A) Service Law - Writ petition under Article 226 not maintainable for disputes arising from private contracts of service without statutory force or backing, and where the petitioner has not approached the court with clean hands - Remedy under Article 226 - Remedy available only when twin tests are satisfied (i) Authority/person discharges public function/public duty (ii) Action challenged falls within public law domain.(Para - 11,12,13) Petitioner challenged termination of his service - as Assistant Workshop Superintendent at Raj Kumar Goel Institute of Technology - Institute produced petitioner's resignation letter and proof of payment of dues. (Para - 2) HELD: - Petitioner's service contract was private, without statutory force or backing. Resignation letter and payment of dues were not disclosed in the writ petition. Petitioner's amended plea of forged resignation appeared to be an afterthought. Petitioner did not approach court with clean hands. No merit. (Para -13 to 16) Petition dismissed. (E-7) List of Cases cited: 1. C/M Pratibha Inter College, Barabanki through Manager & Anr. Vs St. of U.P. through Principal Secy., Dept. of Secondary Education, U.P. Govt, Special Appeal No. 115 of 2024 2. St. Mary's Education Society & anr. Vs Rajendra Prasad Bhargava & ors., (2023) 4 SCC 498 3. Uttam Chand Rawat Vs St. of U.P. & ors . , (2021) 9 ADJ 304 (Delivered by Hon'ble Subhash Vidyarthi, J.) 1. Heard Sri Ashok Kumar Rai - the learned counsel for the petitioner, Sri Saurabh, the learned Standing Counsel representing the opposite party no. 1 - the State of U.P., Sri Rohit Pandey - the learned counsel for the opposite party no. 2 - Dr. A.P.J. Abdul Kalam Technical University, U.P. and Sri. Diptiman Singh, the learned counsel for the opposite party no. 3 - Raj Kumar Goel Institute of Technology, Ghaziabad. 2. By means of the instant writ petition filed under Article 226 of the Constitution of India, the petitioner has challenged validity of termination of his service as Assistant Workshop Superintendent, Department of Mechanical Engineering in Raj Kumar Goel Institute of Technology, Ghaziabad. 8 All. Sushil Chandra Vs. State of U.P. & Ors. 323 3. It has been pleaded in the Writ Petition that the petitioner was appointed as an Assistant Workshop Superintendent in the Department of Mechanical Engineering by means of an appointment order dated 23.08.2007. He worked on the aforesaid post till 30.06.2021, on which date he was removed from service by an oral order. The petitioner has stated in the Writ Petition that the institution has given three months salary to him amounting to Rs.1,23,883/-. 4. The petitioner has further stated in the Writ Petition that he approached the Director of the Institute for his reinstatement in service but the Director did not pay any heed to his requests. However, no document has been annexed in support of this contention. 5. On 08.05.2024, this Court had passed an order directing the Director, Raj Kumar Goel Institute of Technology, Ghaziabad to produce the order terminating the petitioner's services, along with his personal affidavit. On 27.05.2024, the Director, Raj Kumar Goel Institute of Technology, Ghaziabad had filed his personal affidavit inter alia stating that the petitioner had submitted his resignation from the post of Workshop Superintendent on 14.07.2021 and he had requested that his entire arrears of salary and gratuity etc. be paid within the month of July, 2021. By another letter dated 14.07.2022, he had demanded experience certificate. The petitioner's resignation was accepted on the same day. The petitioner was paid his dues through five cheques for different amounts - (1) Rs.45,022/-, (2) Rs.6,753/-, (3) Rs.6,753/-, (4) Rs.45,022/- and (5) Rs.20,333/- totaling to Rs. Rs.1,23,883/- on 30.07.2021, which were received by the petitioner on the same date. On 18.08.2022, another cheque for Rs.1,71,188/- was given to the petitioner as full and final payment towards his gratuity. On 18.08.2022, the petitioner had given an affidavit stating that he had received all his dues and he had no claims left against the institute. 6. After filing of a personal affidavit of the Director of the college bringing on record the aforesaid facts which have not been disclosed in the writ petition, the petitioner has filed an application for amendment of the writ petition seeking to incorporate a payer for quashing of his resignation letter dated 14.07.2021 alleging that the resignation letter is forged and fabricated and that he has not received any amount of gratuity, and that he has received some amount towards the salary and arrears of salary only. 7. The learned counsel for the opposite parties did not oppose the amendment application filed by the petitioner and, accordingly, the amendment application has been allowed. The learned Counsel for the opposite parties said that no counter affidavit was required in the case. 8. The learned counsel for the opposite parties have raised a preliminary objection that the petitioner was working in a private college under a private contract of service and his services are not governed by any statutory provision. Therefore, the writ petition filed in respect of termination of service under a private non-statutory contract would not be maintainable. The second submission of the learned counsel for the opposite parties is that the petitioner has not been terminated and he had himself resigned from the service, which resignation was accepted, all the dues of the petitioner were paid and the petitioner had accepted the dues and it is after about three years since he resigned from service, 324 INDIAN LAW REPORTS ALLAHABAD SERIES that he has filed the writ petition claiming that his services has been terminated orally. The learned counsel for the opposite parties have submitted that the petitioner has not approached this Court with clean hands and the writ petition has been filed by concealment of relevant facts as also by misstatements made by the petitioner. 9. The learned counsel for the petitioner has placed reliance on a judgment rendered by a Division Bench of this Court in C/M Pratibha Inter College, Barabanki through Manager & Anr. v. State of U.P. through Principal Secretary, Department of Secondary Education, U.P. Govt, Special Appeal No. 115 of 2024, decided on 03.07.2024, Neutral Citation: 2024 AHCLKO 45575. 10. Pratibha Inter College is a college governed by provisions of Intermediate Education Act and regulations framed thereunder, which specifically contain a provision for the employees of private unaided intermediate colleges. The petitioner was employed in an Engineering College affiliated to Dr. A. P. J. Abdul Kalam Technical University and, therefore, the judgment in the case of Pratibha Inter College would not apply to petitioner, whose services are not governed by any statutory provisions. 11. In Pratibha Inter College (supra), the Division Bench has referred to a judgment of the Hon'ble Supreme Court in the case of St. Mary's Education Society & Anr. v. Rajendra Prasad Bhargava & Ors: (2023) 4 SCC 498, wherein the Hon'ble Supreme Court held as follows:- "75. We may sum up our final conclusions as under: 75.1. An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public. 75.2. Even if it be assumed that an educational institution is imparting public duty, the act complained of must have a direct nexus with the discharge of public duty. It is indisputably a public law action which confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction under Article 226 for a prerogative writ. Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through a writ petition under Article 226. Wherever Courts have intervened in their exercise of jurisdiction under Article 226, either the service conditions were regulated by the statutory provisions or the employer had the status of "State" within the expansive definition under Article 12 or it was found that the action complained of has public law element. 75.3. It must be consequently held that while a body may be discharging a public function or performing a public duty and thus its actions becoming amenable to judicial review by a constitutional court, its employees would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of 8 All. Sushil Chandra Vs. State of U.P. & Ors. 325 matter relating to service where they are not governed or controlled by the statutory provisions. An educational institution may perform myriad functions touching various facets of public life and in the societal sphere. While such of those functions as would fall within the domain of a "public function" or "public duty" be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, the actions or decisions taken solely within the confines of an ordinary contract of service, having no statutory force or backing, cannot be recognised as being amenable to challenge under Article 226 of the Constitution. In the absence of the service conditions being controlled or governed by statutory provisions, the matter would remain in the realm of an ordinary contract of service. 75.4. Even if it be perceived that imparting education by private unaided school is a public duty within the expanded expression of the term, an employee of a non-teaching staff engaged by the school for the purpose of its administration or internal management is only an agency created by it. It is immaterial whether "A" or "B" is employed by school to discharge that duty. In any case, the terms of employment of contract between a school and non-teaching staff cannot and should not be construed to be an inseparable part of the obligation to impart education. This is particularly in respect to the disciplinary proceedings that may be initiated against a particular employee. It is only where the removal of an employee of non-teaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be interfered with by the Court. But such interference will be on the ground of breach of law and not on the basis of interference in discharge of public duty. 75.5. From the pleadings in the original writ petition, it is apparent that no element of any public law is agitated or otherwise made out. In other words, the action challenged has no public element and writ of mandamus cannot be issued as the action was essentially of a private character." (Emphasis added) 12. The learned counsel for the opposite parties has placed reliance on a judgment rendered by Full Bench of this Court in Uttam Chand Rawat v. State of U.P. & 7 Ors: (2021) 9 ADJ 304, wherein the Full Bench has dealt with the following question:- "(i) Whether the element of public function and public duty inherent in the enterprise that an educational institution undertakes, conditions of service of teachers, whose functions are a sine qua non to the discharge of that public function or duty, can be regarded as governed by the private law of contract and with no remedy available under Article 226 of the Constitution" After referring to numerous precedents on the point, the Full Bench answered the aforesaid question as follows:- "(1) The remedy under Article 226 of the Constitution of India would be available against an authority or a person only when twin tests are satisfied. The authority or the person should not only discharge public function or public duty but the action challenged therein should fall in the domain of public law. The writ petition would not be maintainable against an authority or person even if it is discharging public function/public duty, if the controversy pertains to the private law 326 INDIAN LAW REPORTS ALLAHABAD SERIES such as a dispute arising out of contract or under the common law." 13. The service contract of the petitioner with Raj Kumar Goel Institute of Technology is also a private contract of service having no statutory force or backing and, therefore, any rights arising out of that contract or denial thereof would not be amenable to challenge under Article 226 of the Constitution of India. 14. Although by way of amendment the petitioner has alleged that the resignation is forged but this plea has only been raised after the Director of the Institute had filed his personal affidavit bringing on record the fact that the petitioner has resigned from service and he has received his dues. The petitioner has concealed this fact by filing the writ petition that he has already received all his service related dues after termination of his service. The aforesaid plea incorporated by way of amendment after the fact of resignation made by the petitioner and receipt of entire dues was brought on record, appears to be afterthought. Besides, it seeks to raise the disputed questions of fact, which could be gone into by this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India. 15. Even after amending the writ petition, the petitioner has not incorporated any pea in the writ petition explaining the receipt of entire service dues by him in the year 2022 and non disclosure thereof in the writ petition. The aforesaid conduct of the petitioner in not approaching this Court with clean hands and in concealing certain relevant and material facts from this Court, also disentitles the petitioner from seeking any relief from this Court in exercise of its extraordinary discretionary writ jurisdiction. 16. In view of the aforesaid discussion, this Court is of the considered view that the writ petition is without any merit and the same is dismissed as such. ---------- (2024) 8 ILRA 326 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 13.08.2024 BEFORE THE HON'BLE AJIT KUMAR, J. Writ-A No. 8849 of 2018 Sunder Lal ...Petitioner Versus State of U.P. & Anr. ...Respondents Counsel for the Petitioner: Ashutosh Tripathi Counsel for the Respondents: C.S.C., Om Prakash Singh (Sr. Advocate), Sushil Kumar Rao A. Civil Law - Disciplinary Proceedings - U.P. State Warehousing Corporation Staff Regulations, 1966 - Rule 16(1) - Imposition of penalties - For imposing a penalty in the nature of recovery, it is necessary to hold a formal enquiry, provide the delinquent employee an opportunity to offer a written explanation, cross-examine witnesses, if any, and produce evidence in defence (Para 13) B. Civil Law - Disciplinary Proceedings After Retirement - U.P. State Warehousing Corporation Staff Regulations, 1966 - The Regulations do not contain any provision for the continuation of disciplinary proceedings or imposition of penalties after an employee's retirement. (Para 16)