Assistant Workshop Superintendent of a private engineering college challenged termination by writ petition. The court found he had actually resigned, received all dues, concealed facts, and that his service was governed by a private contract with no statutory force, hence not amenable to Article 226. Petition dismissed.
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Neutral Citation No. - 2024:AHC:126819
A.F.R.
Court No. - 9
Case :- WRIT - A No. - 7169 of 2024
Petitioner :- Sushil Chandra Respondent :- State Of Up And 2 Others Counsel for Petitioner :- Ashok Kumar Rai Counsel for Respondent :- C.S.C.,Diptiman Singh,Rohit Pandey
Hon’ble Subhash Vidyarthi J.
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service but the Director did not pay any heed to his requests. However, no document has been annexed in support of this contention.
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amendment application has been allowed. The learned Counsel for the opposite parties said that no counter affidavit was required in the case. 8. The learned counsel for the opposite parties have raised a preliminary objection that the petitioner was working in a private college under a private contract of service and his services are not governed by any statutory provision. Therefore, the writ petition filed in respect of termination of service under a private non-statutory contract would not be maintainable. The second submission of the learned counsel for the opposite parties is that the petitioner has not been terminated and he had himself resigned from the service, which resignation was accepted, all the dues of the petitioner were paid and the petitioner had accepted the dues and it is after about three years since he resigned from service, that he has filed the writ petition claiming that his services has been terminated orally. The learned counsel for the opposite parties have submitted that the petitioner has not approached this Court with clean hands and the writ petition has been filed by concealment of relevant facts as also by misstatements made by the petitioner.
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“75. We may sum up our final conclusions as under:
75.1. An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public.
75.2. Even if it be assumed that an educational institution is imparting public duty, the act complained of must have a direct nexus with the discharge of public duty. It is indisputably a public law action which confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction under Article 226 for a prerogative writ. Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through a writ petition under Article 226. Wherever Courts have intervened in their exercise of jurisdiction under Article 226, either the service conditions were regulated by the statutory provisions or the employer had the status of “State” within the expansive definition under Article 12 or it was found that the action complained of has public law element .
75.3. It must be consequently held that while a body may be discharging a public function or performing a public duty and thus its actions becoming amenable to judicial review by a constitutional court, its employees would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by the statutory provisions. An educational institution may perform myriad functions touching various facets of public life and in the societal sphere. While such of those functions as would fall within the domain of a “public function” or “public duty” be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, the actions or decisions
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taken solely within the confines of an ordinary contract of service, having no statutory force or backing, cannot be recognised as being amenable to challenge under Article 226 of the Constitution. In the absence of the service conditions being controlled or governed by statutory provisions, the matter would remain in the realm of an ordinary contract of service .
75.4. Even if it be perceived that imparting education by private unaided school is a public duty within the expanded expression of the term, an employee of a non-teaching staff engaged by the school for the purpose of its administration or internal management is only an agency created by it. It is immaterial whether “A” or “B” is employed by school to discharge that duty. In any case, the terms of employment of contract between a school and non-teaching staff cannot and should not be construed to be an inseparable part of the obligation to impart education. This is particularly in respect to the disciplinary proceedings that may be initiated against a particular employee. It is only where the removal of an employee of nonteaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be interfered with by the Court. But such interference will be on the ground of breach of law and not on the basis of interference in discharge of public duty .
75.5. From the pleadings in the original writ petition, it is apparent that no element of any public law is agitated or otherwise made out. In other words, the action challenged has no public element and writ of mandamus cannot be issued as the action was essentially of a private character.”
(Emphasis added)
After referring to numerous precedents on the point, the Full Bench answered the aforesaid question as follows:-
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(Subhash Vidyarthi J)
Order Date: 06.08.2024
Pradeep/-
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Digitally signed by :- PRADEEP SINGH High Court of Judicature at Allahabad
1 issue framed by the court
Whether a writ petition under Article 226 lies against a private engineering college for termination/resignation under a non-statutory contract of service.
Colour shows how this judgement treated each authority
St. Mary's Education Society & Anr. v. Rajendra Prasad Bhargava & OrsRelied on¶11
(2023) 4 SCC 498 · Who else cites this
Uttam Chand Rawat v. State of U.P. & 7 OrsRelied on¶12
(2021) 9 ADJ 304
1 provisions across 1 enactments
Sushil Chandra
State of U.P.
Dr. A.P.J. Abdul Kalam Technical University, U.P.
Raj Kumar Goel Institute of Technology, Ghaziabad
Subhash Vidyarthi
As recorded by the court registry
3 orders share this CNR
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