Madhya Pradesh High Court
Sunil Kumar Upadhya vs The State Of Madhya Pradesh on 4 March, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 4 th OF MARCH, 2025
WRIT PETITION No. 19442 of 2023
SUNIL KUMAR UPADHYA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Vaibhav Kumar Pandey - Advocate for the petitioner.
Shri Jubin Prasad - Panel Lawyer for the respondents/State.
ORDER
The present petition has been filed seeking the following reliefs :-
"i) This Hon'ble Court may kindly be pleased to
issue a writ of mandamus by directing the respondents to
permit the petitioner to re-join his post of Gram Rojgar
Sahayak at Gram Vicharpur, Tehsil Kotma, District
Anuppur and also directed the respondent to give back
wages to the petitioner as per looking to his bad financial
condition in the interest of justice.
ii) This Hon'ble Court may kindly be pleased to issue
a writ of mandamus to direct the respondents to consider
the representations of the petitioner in accordance of law,
in the interest of justice.
iii) To grant any other relief which may deem fit and
proper in the facts and circumstances of the case."
2. It is the case of the petitioner that he was appointed on the post of
Gram Rozgar Sahayak in Gram Panchayat, Vicharpur District Annupur on
04.03.2014 and after the appointment, the petitioner was working with
utmost devotion and sincerity in the respondent/department. In the year 2022
a false criminal case has been registered against the petitioner due to which
he was arrested on 17.11.2022 and on 02.12.2022 he was released on bail by
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the Hon'ble High Court vide order dated 30.11.2022 in
M.Cr.C.No.55804/2022. On 05.12.2022, he approached the authorities by
filing a representation requesting for re-joining on the post in question as he
has already been released on bail by this Court. The authorities without
rhyme and reason had not paid any heed to his representation, neither they
have passed any order terminating the services of the petitioner. It is argued
that the respondent No.4/C.E.O. Janpad Panchayat Kotma by oral
instructions has informed the petitioner that as the criminal case is registered
against him, therefore, he cannot be permitted to continue on the post in
question. It is argued that the provisions as contemplated under the Rules for
terminating the services of Gram Rojgar Sahayak are not followed in the
present matter. No show cause notice was issued to the petitioner at any point
of time, nor any opportunity of hearing was granted to him. Only on oral
instructions, he has been thrown out of services, therefore, the present
petition has been filed.
3. On notice being issued, a detailed reply has been filed by the
authorities pointing out the fact that the criminal case has been registered
against the petitioner for offence under Sections 376, 376 (2)(n) of Indian
Penal Code at Crime No.73/2022 at Police Station - Mahila Thana, Shahdol
in which the petitioner was arrested on 17.11.2022 and he was confined to
jail for a period of 16 days. Thus, he remained on unauthorised absent from
his duties w.e.f. 04.09.2022 without any intimation to the competent
authority. He is a contract employee and his service conditions are governed
by the conditions mentioned in the guidelines dated 02.06.2012 and the
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conditions mentioned in the agreement of service. The condition No.16 of
the guidelines deals with termination of service of Gram Rozgar Sahayak
and condition No.16.1 specifically mentions that in case of registration of a
criminal case or detention of a contract employee in custody for more than
48 hours, the services stands terminated. It is submitted that there is no
dispute with respect to the proposition that the petitioner is a contract
employee and he was arrested and confined to jail for a period of 16 days.
Thus, in view of the guidelines, the authorities have not permitted the
petitioner to rejoin the duties. Even otherwise, the contract period of the
petitioner is over, therefore, he cannot be permitted to rejoin his services any
more. The criminal case is still pending consideration before the learned
Trial Court. Charge sheet has been filed in the case, therefore, no relief can
be extended to the petitioner. It is further contended that the rights of the
contractual employee is limited and he cannot ask for continuation of
contract period. Under these circumstances, he has prayed for dismissal of
the petition.
4. Learned counsel for the petitioner has placed reliance upon the
judgment passed by the Hon'ble Supreme Court in the case of Hari Ram
Mauraya Vs. Union of India and others reported in 2005 0 Supreme (SC)
1145 wherein in similar circumstances without issuance of show cause
notice, the services of contractual employee was terminated, the Hon'ble
Supreme Court came to the conclusion that an opportunity of hearing is the
basic requirement to be complied with while passing the order of
termination. He has relied upon the judgment passed by the Division Bench
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of this Court in the case of The Mission Director, National Health Mission,
Bhopal Vs Mukesh Yadav and others (Writ Appeal No.402/2019) decided on
10.05.2019.
5. Heard the learned counsel for the parties and perused the record.
6. From the perusal of the record, it is seen that the petitioner is a
contractual employee working on the post of Gram Rojgar Sahayak. The
appointment order of the petitioner dated 04.03.2014 reflects that the
appointment is subject to certain conditions of contract. Condition No.6 is
relevant which reads as under :-
"सं वदा पर िनयु ाम रोजगार सहायक बना कसी विश
कारण के बगैर सूचना के कत य से एक माह से अिधक
अनुप थत रहता है तो िनयु वतः समा मानी जावेगी।"
7. Condition No.15 is also important which reads as under :-
"सं वदा पर िनयु य के कदारचार या कसी आपरािधक
याकलाप म संिल पाये जाने पर िनयु ािधकार उसे
सुनवाई का यु यु अवसर दे ने के प ात ् ऐसी सं वदा िनयु
समा कर सकेगा ।"
8. From the perusal of the aforesaid conditions, it is apparently clear that
the services of the petitioner can be terminated at any point of time without
issuance of show cause notice to him, if he remained absent for more than a
month, coupled with the fact that in case of registration of a criminal case
against the petitioner, the services can be terminated. It is an admitted
position that criminal case for offence under Sections 376, 376 (2)(n) of
Indian Penal Code has been registered at Crime No.73/2022 at Police Station
- Mahila Thana, Shahdol, District Shahdol. The petitioner remained in
custody from 17.11.2022 till 30.11.2022 i.e. almost for more than 15 days. If
a criminal case is registered against the employee merely on the grounds that
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he has been enlarged on bail by the order of this Hon'ble Court, he cannot
claim reinstatement in service as a criminal trial is pending against him,
therefore, a specific question is put to the counsel for the petitioner that on
what basis the respondents be directed to reinstate the petitioner on his
service on the post of Gram Rojgar Sahayak in the event when the Sessions
Trial is pending consideration against the petitioner.
9. Counsel appearing for the petitioner has no answer to the aforesaid
proposition. However, he has placed reliance upon the conditions mentioned
in the appointment order and has pointed out that without issuance of a show
cause notice to him, his services could not have been terminated and in terms
of Condition No.15 an opportunity of hearing is required to be granted but
the fact remains that how an employee against whom a criminal case is
registered can be permitted to rejoin his duties in the event when the criminal
trial for heinous offence is pending against the petitioner. In absence of any
cogent justification to the aforesaid aspect, no relief can be extended to the
petitioner. The petitioner being a contractual employee and contract
employees are having a limited right to even ask for continuation of his
service, no relief can be extended to the petitioner. The Hon'ble Supreme
Court in the case of State Bank of India Vs. S.N. Goyal reported in (2008) 8
SCC 92 = 2008 0 Supreme(SC) 760 has considered the rights of a contractual
employee and has held as under :-
"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
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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 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."
10. The Division Bench of this Court in the case of Brijendra Gupta vs.
State of M.P. and Others (W.A.No.617 of 2015) vide order dated 18.03.2016
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 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
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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."
11. Another question was put to the counsel for the petitioner that whether
contract period of the petitioner was extended by the authorities, to this he
submits that he is unaware of the same and the record also indicates that no
such order extending the contract period of the petitioner was placed on
record. Under these circumstances and in terms of the settled legal position
that the contractual employee is having limited rights and cannot even ask for
extension of his services, no relief can be extended to the petitioner.
12. The petition sans merit and is accordingly dismissed. No order as to
costs.
(VISHAL MISHRA)
JUDGE
AM
