Allahabad High Court
Mr. Saroj Kumar Nishad vs Director, Directorate Of ... on 10 August, 2023
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2023:AHC-LKO:53524
Court No. - 7
Case :- WRIT - A No. - 5729 of 2023
Petitioner :- Mr. Saroj Kumar Nishad
Respondent :- Director, Directorate Of Minority Welfare And 3 Others
Counsel for Petitioner :- Skand Bajpai,Manoj Kumar Nishad
Counsel for Respondent :- C.S.C.
Hon'ble Abdul Moin,J.
1. Heard learned counsel for the petitioner and Sri Rahul Shukla, learned Additional Chief Standing counsel appearing on behalf of the State-respondents.
2. Instant writ petition has been filed praying for quashing of the order dated 17.05.2023 and the consequential order dated 19.05.2023 issued by the respondents no. 1 & 4, copies of which have been filed as Annexure Nos. 1 & 2 to the writ petition. A further prayer is for a Mandamus commanding the respondents to pay service benefits along with 18 % interest, salary for his period of working, damages etc.
3. The case set forth by the learned counsel for the petitioner is that the petitioner was employed on a Contractual (outsource) basis as a Computer Operator in the Directorate of Minority Welfare Department, Ambedkar Nagar on 09.03.2015. His services were made available by a private service provider. A Show Cause Notice has been issued to the petitioner by the respondent no. 2 on 09.05.2023 requiring the petitioner to submit his explanation. The petitioner claims to have submitted his explanation but subsequently by means of the impugned order dated 17.05.2023, a copy of which is annexure 1 to the writ petition, the services of the petitioner have been returned back to the service provider.
4. In pursuance thereof, through an order dated 19.05.2023, a copy of which is annexure 2 to the writ petition, the services of the petitioner have been terminated by the service provider and hence the petition.
5. A preliminary objection has been taken by Sri Rahul Shukla, learned Additional Chief Standing counsel appearing on behalf of the respondents no. 1 & 2 by contending that as the petitioner is an employee of the service provider consequently, the instant writ petition would not be maintainable.
6. It is also argued that what cannot be done directly cannot be done indirectly inasmuch as once the writ petition itself is not maintainable consequently, there cannot be any occasion for the order impugned itself to be set aside whereby the respondent no. 1 has returned back the petitioner to the service provider.
7. Responding to that, the argument learned counsel for the petitioner is that keeping in view the judgment of the Apex Court in the case of People's Union For Democratic Rights and Ors Vs. Union of India and Ors reported in (1982) 3 SCC 235 the instant writ petition would be maintainable more particularly when the respondents have adopted unfair labour practice and are also sitting over the salary of the petitioner and his services have been returned back by the respondent no. 1 to the service provider by casting a stigma over the working of the petitioner.
8. Having heard the learned counsel appearing for the contesting parties and having perused the records what emerges is that admittedly the petitioner is an employee of the service provider. His services have been placed with the respondents-State. Upon certain discrepancy being found in the working of the petitioner and after calling for his explanation, the order impugned dated 17.05.2023 has been issued by the respondent no. 1 returning back the petitioner to the service provider i.e the respondent no. 4. In pursuance thereof, the service provider through the order dated 19.05.2023 has terminated the services of the petitioner.
9. Admittedly, the petitioner is an employee of the private service provider consequently, as per Article 12 of the Constitution of India, no writ would be maintainable against the said service provider and as such, the instant writ petition merits to be dismissed on this ground alone.
10. So far as the judgment of the Apex Court in the case of People's Union For Democratic Rights and Ors (supra) is concerned, suffice it to say that the directions have been issued by the Apex Court in a Public Interest Litigation that had been filed before the Apex Court. In the instant case, it is an employee of the service provider who has approached this Court praying for the aforesaid reliefs and considering the provisions of Article 12 of Constitution of India, the writ petition itself is not maintainable. Moreover, what cannot done be done directly cannot be done indirectly. Thus the judgment of the Apex Court in the case of People's Union For Democratic Rights and Ors (supra) would have no applicability in the facts of the instant case.
11. However, before finally deciding writ petition what is apparent from a perusal of the impugned order dated 17.05.2023 is that a stigma has been cast on the working of the petitioner. As the petitioner is an employee of the service provider consequently, this Court does not find any occasion for the respondent-State to cast a stigma as the petitioner service while returning back the services of the petitioner to the service provider.
12. In this view of the matter and this Court while exercising powers under Article 226 of Constitution, the stigma as cast on the petitioner through the order impugned dated 17.05.2023 which records that the conduct of the petitioner has a possibility of tarnishing the image of the department is set aside.
13. This order has been passed in the peculiar facts and circumstances of the case and shall not be treated to be a precedent.
Order Date :- 10.8.2023
Pachhere/-
