SONAL SHRIVASTAVA vs THE STATE OF MADHYA PRADESH

In this petition filed under Article 226 of the Constitution, the petitioner has challenged the order dated 3.10.2016 (Annexure P/13) whereby her services are terminated by giving her one month''s notice.

Shri Khandekar assails this order by advancing singular contention. He submits that petitioner''s services are terminated on the ground that she remained absent w.e.f 30.6.2016. However, the document dated 26.8.2016 (Annexure P/8) shows that the petitioner was on medical leave w.e.f 30.6.2016 and she submitted her joining on 25.7.2016. By placing reliance on the order passed by this court in the case of Amit Chandra Vs. State of M.P and others (W.P.No.20952/12 decided on 18.3.2015), it is submitted that since the impugned order is punitive in nature, interference may be made in the writ jurisdiction under Article 226 of the Constitution.

Shri Pushpendra Yadav, GA opposed the relief by contending that the petitioner was a contractual employee. There is no justification in entertaining the petition when she can raise a dispute as per clause-25 of the terms and conditions of appointment order. He submits that there is no public law element involved in a case of contractual employee.

No other point is pressed by learned counsel for the parties.

I have heard the parties at length and perused the record.

In the case of Shivrati Barmaiya Vs. State of M.P. (W.P.No.15502/16), this court held as under :-

"6. This is not in dispute between the parties that the petitioner is not holding any substantive or civil post in the Government department. She was admittedly a contractual employee. In Rahul Tripathi and Ramraj Maran(Supra), this Court interfered with the termination order on the ground that such orders were stigmatic in nature and the same could not have been passed without following the principles of natural justice. However, later on, the Apex Court delivered the judgment reported in 2008 (8) SCC 92 ( State Bank of India vs. S.N. Goyal ) wherein the Apex Court opined that remedy for such employee is to file suit for damages. There are three exceptions to this rule namely (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 the 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. It was further held that to decide the nature of relief to be given, it is necessary to examine whether the employment is governed by contract or by a statute or by statutory rules. In 2013 (5) SCC 470 (Rajasthan State Industrial Development and Investment Corporation and another vs. Diamond & Gem Development Corporation Limited and another), the Apex Court opined that dispute relating to contract cannot be agitated nor terms of the contract can be enforced through writ jurisdiction under Article 226 of the Constitution. Thus, the writ court cannot be a forum to seek any relief based on terms and conditions incorporated in the agreement by the parties. See also (1989) 2 SCC 116 ( Bareilly Development Authority vs. Ajai Pal Singh ) and (1996) 6 SCC 22 ( State of U.P. vs. Bridge & Roof Co. (India) Ltd .).

In 2015 (7) SCC 728 (Joshi Technologies International Vs. Union of India and others), the Apex Court after considering various judgments held as under:

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 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 Corporation vs. Registrar of Trade Marks ) 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.

The position thus summarised in the aforesaid principles has to be understood in the context of discussion that preceded which we have pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under certain circumstances, it can refuse to exercise. It also follows that under certain circumstances, normally, the Court would not exercise such a discretion.

From para 69 onwards of the said judgment, the Court has laid down the parameters for examining the issues relating to contractual matters. It was further held that the court may not examine the issue unless the action has some public law character attached to it. The case of termination of a contractual employee may be his personal grievance but it does not involve any public law element in it. For this reason also, this petition cannot be entertained."

This court held that in case of termination of a contractual employee, no public law element is involved. Hence, the petitioner was relegated to avail the alternative remedy.

In the present case, the terms and conditions of appointment order makes it clear that petitioner can raise a dispute before the appropriate forum. Accordingly, in view of judgment of Shivrati (supra), this court is of the view that writ jurisdiction can be exercised only when the impugned action has some public law character attached to it.

For the reasons stated above, I am not inclined to exercise the writ jurisdiction under Article 226 of the Constitution in the present case. The dispute relating to termination of petitioner does not have any public law element in it. The petitioner can seek relief of damages etc. before the appropriate forum or can avail the remedy of dispute as per the condition of the appointment order.

With the aforesaid observation, petition is disposed of.