Termination Of Contractual Employee Governed By Contract, Cannot Be Adjudicated Under Article 226: Allahabad High Court

The Allahabad High Court has held that a termination of a contractual employee by the employer in terms of the conditions of the contract or their violation cannot be adjudicated upon by the High Court under Article 226 of the Constitution of India as there cannot be a violation of Article 14 or Article 16 where the terms of the contract are per se not arbitrary.

The Court held that such contractual disputes must be referred under the Uttar Pradesh Industrial Disputes Act, 1947.

“The issue whether the termination is in accordance with the contract or contrary to it in the absence of violation of any statute or statutory rules, or at least a statutory contract, is not fit to be determined by this Court in the exercise of our writ jurisdiction under Article 226 of the Constitution,” held Justice J.J. Munir.

“The determination of the petitioner's employment in terms of the contract of service or in violation thereof, given the terms of the contract and its nature, does not involve any arbitrariness, as may make it fall foul of the petitioner's right under Article 14 or 16 of the Constitution.”

Factual Background

In 2006, petitioner was appointed as a contractual Safai Karmi (Sweeper) with the Nagar Palika Parishad, Modi Nagar, Ghaziabad in terms of Government Orders dated 26.08.2005 and 09.05.2006. The appointment was made subject to the condition that if the work is found unsatisfactory, his appointment would be terminated.

Petitioner pleaded that though he was appointed as a Sweeper and was being paid that salary, he was assigned duties of a driver. During the elections at Nagar Palika, petitioner stood for Chairman of the Nagar Palika Parishad and sought sanctioned leave from 15.04.2023 to 26.04.2023 for contesting elections. After the petitioner lost I the elections, his services were terminated for contesting election which was allegedly in violation of service conditions under the Uttar Pradesh Municipalities Act, 1916.

Counsel for petitioner contended that when the no objection certificate was granted and his leave for contesting elections had been sanctioned by the Executive Officer of the Nagar Palika, then his services could not be terminated for contesting the elections.

Further, it was argued that the petitioner was neither aware nor made aware of the provisions which prohibit him from contesting elections. It was also contended that petitioner's services could not be terminated under Rules of 1956 without affording him an opportunity of hearing.

Per contra, counsel for respondents argued that petitioner being a contractual employee had no lien on any post. It was submitted that according to his contract contesting elections was barred under the Uttar Pradesh Government Servant Conduct Rules, 1956. It was submitted that such act constitutes unsatisfactory work and conduct which makes the petitioner liable for termination.

It was submitted that no NOC was granted to the petitioner, but an order was issued informing him that he was prohibited from contesting elections which he refused to accept. Accordingly, it was stated that the petitioner had the knowledge about the prohibition and was never granted any NOC.

High Court Verdict

Petitioner had placed reliance on State of U.P. and another v. Kaushal Kishore Shukla where the Supreme Court had held that “even a temporary government servant has no right to the post and his services can be terminated by a month's notice without assigning any reason, either in terms of the contract or the relevant statutory rules. It is observed there that a temporary government servant also can be dismissed from service by way of punishment.

The Court distinguished the case of Kaushal Kishore Shukla on grounds that the employee therein was an ad-hoc employee governed by the Rule, however, petitioner himself called himself a contractual employee who's services shall be governed by the contract. It was held that the Uttar Pradesh Temporary Government Servants (Termination of Services) Rules, 1975 apply to temporary employees.

The Court observed that the Supreme Court in Kaushal Kishore Shukla has laid down a twin test for determining if the punishment order is punitive in nature. Firstly, the temporary employee must have a right to the post, and secondly, he must be visited with 'evil consequences'.

The Court observed that in Parshotam Lal Dhingra v. Union of India, the Supreme Court has clarified that that “termination of services of a temporary government servant in accordance with the terms and conditions of service do not entail evil consequences.”

The Court held that the petitioner is not a temporary employee who has lien on any post but a contractual employee who's service conditions are governed by the contract. The Court held that such contractual dispute between the employee and employer could be adjudicated under the Uttar Pradesh Industrial Disputes Act, 1947 and not under Article 226 of the Constitution of India.

Accordingly, the writ petition was dismissed.

Case Title: Mahesh Kumar vs. State of U.P. and Another 2024 LiveLaw (AB) 230 [WRIT - A No. - 13670 of 2023]

Case Citation: 2024 LiveLaw (AB) 230

Counsel for Petitioner: Harish Chandra

Counsel for Respondent: Radhamani Saxena, Ms. Amrita Singh

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