Purushottam Suryabanshi vs The State Of Madhya Pradesh
2023 Latest Caselaw 4142 MP

                                                      1
                           IN    THE    HIGH COURT OF MADHYA PRADESH
                                             AT JABALPUR
                                                    BEFORE
                                      HON'BLE SHRI JUSTICE VISHAL MISHRA
                                           ON THE 16 th OF MARCH, 2023
                                           WRIT PETITION No. 29 of 2023

                          BETWEEN:-
                          PURUSHOTTAM SURYABANSHI S/O SHRI CHHOTELAL
                          SURYAVANSHI, AGED ABOUT 44 YEARS, OCCUPATION:
                          SAMUH PRERAK M.P. DAY STATE LIVELIHOOD
                          MISSION BLOCK REHLI DISTT. SAGAR (MADHYA
                          PRADESH)

                                                                             .....PETITIONER
                          (BY SHRI V.D.S. CHOUHAN - ADVOCATE)

                          AND
                          1.    THE STATE OF MADHYA PRADESH THROUGH
                                THE SECRETARY PANCHAYAT AND RURAL
                                DEVELOPMENT     DEPARTMENT      VALLABH
                                BHAWAN BHOPAL (M.P.) (MADHYA PRADESH)

                          2.    DEVELOPMENT COMMISSIONER PANCHAYAT
                                D E P A R T M E N T VINDHYANCHAL BHAWAN
                                BHOPAL (MADHYA PRADESH)

                          3.    JOINT COMMISSIONER M.P. DAY STATE
                                LIVELIHOOD  MISSION BHOPAL (MADHYA
                                PRADESH)

                          4.    COMMISSIONER (REVENUE) DIVISION SAGAR
                                (MADHYA PRADESH)

                          5.    COLLECTOR SAGAR DISTRICT SAGAR (MADHYA
                                PRADESH)

                          6.    DISTRICT PROJECT MANAGER M.P. DAY STATE
                                LIVELIHOOD      MISSION DISTRICT  SAGAR
                                (MADHYA PRADESH)

                                                                           .....RESPONDENTS
                          (SHRI SHRADDHA TIWARI - PANEL LAWYER FOR RESPONDENTS NO.1, 2,
                          4 AND 5
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 3/20/2023
4:36:17 PM
                                                     2
                          SHRI MANAN AGRAWAL - ADVOCATE FOR RESPONDENTS NO.3 AND 6)

                                This petition coming on for admission this day, th e court passed the
                          following:
                                                               ORDER

The present petition has been filed against the termination order passed by the respondents authorities without affording any opportunity of hearing to the petitioner and without issuing any show-cause notice.

2. The case of the petitioner is that he was appointed as Samuh Prerak on contract basis in the establishment of the respondents and was posted at M.P. Day State Livelihood Mission Block Rehli, District Sagar in the year 2015. An agreement letter dated 01.09.2015 was executed to the aforesaid effect. The

same was continued till 31.03.2016. The services of the petitioner were governed by the Scheme of Madhya Pradesh Rajya Gramin Ajivika Mission (SRLM) issued from time to time, wherein, the procedure with respect termination has been provided. The respondent No.5 Collector being a competent authority to take action against the Samuh Prerak after affording reasonable opportunity of hearing. While in service, the petitioner was transferred from Block Rehli, District Sagar to Block Porsa, District Morena on 20.03.2020. Against his transfer order, he has filed a petition being Writ Petition No.7896 of 2020 before this Court and vide order dated 20.08.2020 the petition was disposed off with a direction to consider the representation of the petitioner and till the decision of the representation, he was permitted to continue at the present place of posting. The representation submitted by the petitioner was rejected vide letter dated 21.09.2020 and he was directed to join within seven days at the transferred place i.e. Block Porsa, District Morena failing which his contract will automatically be considered as terminated. It is his case that the Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 3/20/2023 4:36:17 PM

Appellate Authority has passed a conditional order regarding termination of his services. After passing of the order on representation he was relieved from the Department on 16.10.2020, therefore, he was not in a position to comply with the order passed by the authorities to join at the transferred place of posting within seven days. Thereafter, he was seriously ill and suffered a brain hemorrhage as a result of which he could not join at the transferred place. He informed the authorities regarding the same. After recovering, he went to the Department to gave his joining on 15.09.2021, which was not accepted and he was informed that in terms of Clause-17 of the agreement as he was remained absent for more than 30 days, his services were terminated. It is argued that prior to passing of the impugned order no show-cause notice was issued to the petitioner nor any opportunity of hearing was afforded to him. The authorities basically relying upon the condition, which was imposed by the Appellate Authority while dismissing the representation has terminated the services of the petitioner. Therefore, the termination order is per se illegal.

3. Per contra, counsel appearing for the respondents No.3 and 6 has filed a detailed reply contending therein that the services of the petitioner were totally contractual in nature subject to the condition mentioned in the appointment order itself. His services were transferred vide order dated 20.03.2020 to Block Porsa, District Morena against which he preferred a petition before this Court,

which was disposed off on 20.08.2020 directing the authorities to decide the representation and till the decision on the representation, he was permitted to continue at the present place of posting. The authorities took a decision on the representation on 21.09.29020 and the same was dismissed and he was directed to join at the transferred place within seven days. In pursuance to the same he was relieved on 16.10.2020. However, the authorities have not taken into Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 3/20/2023 4:36:17 PM

consideration the aforesaid aspect of the case regarding delayed relieving of the petitioner, but despite of reliving on 16.10.2020 he has not jointed his transferred place of posting for a considerable long time. The authorities while passing the termination order has not taken into consideration seven days time period, which was fixed by the Appellate Authority while rejecting the representation. They have considered Clause-17 of the appointment order, which speaks of unauthorized absence for more than 30 days, the services are liable to be terminated. No cogent explanation could be given by the petitioner regarding his unauthorized absence for more than 30 days. He has only submitted some medical documents to demonstrate that he has suffered a brain hemorrhage ill and could not join at the transferred place of posting, but as he has remained unauthorized absent for almost one year, his services are liable to be terminated in pursuance to Clause-17. Even otherwise, a contractual appointee is having no right to ask for continuation of his services. The initial appointment order clearly reflects that the contract appointment was for a period of one year. The same was continued by the authorities looking to the performance of the petitioner. As the petitioner was unauthorized absent for a long period, his services were terminated. No illegality has been committed by the authorities in terminating his services. He has prayed for dismissal of the writ petition.

4. Heard learned counsels for the parties and perused the record.

5. Admitted fact being that the petitioner is a contractual appointee. His appointment was subject to certain conditions. Clause 17 of the appointment order reads as under:-

vkidks fe'ku esa mifLFkr gksus dh frfFk ls lafonk esa ekuk tkosxk] ;fn fcuk Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 3/20/2023 4:36:17 PM

fdlh lwpuk ds vius drZO; ls 01 ekg ls vf/kd vof/k ds fy, vuqifLFkr jgrs gSa rks lafonk fu;qfDr ,slh vuqifLFkfr dh frfFk ls Lor% lekIr ekuh tk;sxhA

6. From the aforesaid, it is apparently clear that his services are liable to be automatically terminated if he has remained absent for one month. Admittedly, the petitioner was transferred on 20.03.2020. he got the interim order from this Court on 20.08.2020. The authorities have decided the representation of the petitioner on 21.09.2020 and the same was dismissed. He was directed to join at the transferred place within seven days. He was relieved on 16.10.2020 after a lapse of seven days period. Therefore, he could not join at the transferred place within seven days. However, after relieving of the petitioner on 16.10.2020 he has not approached the authorities to submit his joining. He has placed some medical documents to demonstrate that he has suffered brain hemorrhage and could not join at the transferred place of posting, but whether the intimation regarding his illness was given to the authorities is not reflected from these documents. The intimation dated 17.09.2020 (Annexure P-7), which is after considerable delay, no immediate action was taken by the petitioner or his family members to intimate the authorities regarding his illness.

7. The law with respect to right of a contractual employee is settled by the Hon'ble Supreme Court as well as the Division Bench of this Court in large number of cases. The Hon'ble Supreme Court in the case of State Bank of India Vs. S.N. Goyal reported in (2008) 8 SCC 92 has held as under:-

8. The law with respect to contractual appointments is settled by the Hon'ble Supreme Court in the case of State Bank of India Vs. S.N. Goyal reported in (2008) 8 SCC 92, wherein, the Hon'ble Supreme Court has held as under:-

Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 3/20/2023 4:36:17 PM

"Where the relationship of master and servant is purely contractual, it is well settled that a contract of personal service is not specifically enforceable, having regard to the bar contained in section 14 of the Specific Relief Act, 1963. Even if the termination of the contract of employment (by dismissal or otherwise) is found to be illegal or in breach, the remedy of the employee is only to seek damages and not specific performance. Courts will neither declare such termination to be a nullity nor declare that the contract of employment subsists nor grant the consequential relief of reinstatement. The three well recognized exceptions to this rule are:

(i) where a civil servant is removed from service in contravention of the provisions of Article 311 of the Constitution of India (or any law made under Article 309);

(ii) where a workman having the protection of Industrial Disputes Act, 1947 is wrongly terminated from service; and

(iii) where an employee of a statutory body is terminated from service in breach or violation of any 7 mandatory provision of a statute or statutory rules.

There is thus 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 the employment is governed purely by contract or by a statute or statutory rules. Even where the employer is a statutory body, where 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."

9. The aforesaid judgment was subsequently followed by the Division Bench o f this Court in Writ Appeal No.617of 2015 where by the Division Bench of this Court has held as under :-

"Each of the appellants accepted these conditions and were fully aware that their services would be continued on contract basis only for a period of 2 years. It is a different matter that the appellants were continued in service, but, by extending contract period, their appointment nevertheless, shall remain on contract basis. No Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 3/20/2023 4:36:17 PM

document or Regulation has been filed by the appellants and atleast brought to our notice, which may even remotely suggest that there was an agreement reached between the parties that on completion of 5 years of contractual service the concerned employee would be regularized in service. The fact that the appellants have now become over age and will not be eligible for appointment elsewhere, cannot be the basis to answer the controversy. The matter has to be answered keeping in mind that the contractual employee cannot insist for regularization in absence of policy, scheme or regulation having the backing of law and enforceable against the employer. In the present case, no such document has been brought to our notice. As a result, it is not open to this Court to issue writ to direct the respondents to regularize the appellants in service. The fact that the appellants have served the respondent/Company for almost five years, by itself, cannot be the basis to issue such direction unless it is a case of legally enforceable right which has enured in favour of the appellants. That is not the case at hand."

10. The aforesaid makes it clear that the contractual appointee has very limited rights to ask for continuation of his services. In absence of any cogent reason given by the petitioner regarding his unauthorized absence and considering the fact that the authorities have considered Clause-17 of the appointment order, no illegality appears to have been committed by the authorities. The petitioner was relieved on 16.10.2020 and thereafter, he has submitted his joining on 21.09.2020. Therefore, it is almost after one year from his relieving, he has approached the department for joining. In these circumstances, Clause-17 of the appointment order is clearly attracted. The authorities have not committed any illegality in passing the impugned order of termination. The petitioner could not make out a case for seeking interference in the well reasoned termination order.

11. The writ petition sans merit and is accordingly dismissed. No order as to costs.

(VISHAL MISHRA) Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 3/20/2023 4:36:17 PM

JUDGE taj

Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 3/20/2023 4:36:17 PM