JUDGMENT : 1. Heard Sri Bhawesh Pratap Singh, learned counsel for the petitioner and Sri Adarsh Bhushan, learned counsel appearing for the respondents. 2. The petition is being decided on merit at the admission stage, on consent, without calling for counter affidavit as per Rules of the Court. 3. The facts, inter se, parties are not in dispute. 4. The facts giving rise to the instant petition, briefly stated, is that petitioner came to be appointed conductor on contract with the respondent-Uttar Pradesh State Road Transport Corporation, Mathura (for short ‘Transport Corporation’) in January 2007. The contract of service is for a period of 11 months which has been renewed from time to time by executing subsequent contract. The copy of the contract executed on 7 July 2020 by the petitioner has been supplied by learned counsel appearing for the respondent. 5. The petitioner came to be terminated earlier by order dated 22 August 2018, passed by the third respondent, Assistant Regional Manager, U.P. State Road Transport Corporation, Taj Depot, Agra, on the ground of misconduct, alleging that petitioner while on duty on bus No. U.P. 85H9600 entered into an altercation. F.I.R. came to be lodged on 22 August 2018 against 13 named persons and 14 unknown persons. Petitioner was admitted to bail by the competent court. 6. Aggrieved, petitioner challenged the termination order in a petition being Writ-A No. 808 of 2020, which came to be allowed vide order dated 17 January 2020. The matter was remanded to the concerned authority for proceeding afresh, in accordance with law on specific charges of misconduct. A further direction was issued to reinstate the petitioner. Pursuant thereof, petitioner came to be reinstated on 18 February 2020. It is urged that before the enquiry came to be concluded petitioner came to be attached/ transferred, due to shortage of staff, to Taj Depot, Agra, from the present place of posting at Mathura, vide order dated 4 November 2020. Pursuant thereof, petitioner came to be relieved vide order dated 5 November 2011, passed by the Additional Regional Manager, Mathura. Petitioner by the impugned order came to be terminated for not joining and rendering service at the place of attachment in terms of the contract. 7. It is urged that neither the order of attachment was served upon the petitioner nor it was marked to the petitioner. Petitioner by the impugned order came to be terminated for not joining and rendering service at the place of attachment in terms of the contract. 7. It is urged that neither the order of attachment was served upon the petitioner nor it was marked to the petitioner. It is alleged that petitioner, thereafter, fell seriously ill on 3 November 2020 and was advised bed rest by the doctor at district hospital Mathura. The parcha of the hospital shows that petitioner was complaining of low back pain. It appears that the third respondent vide communication dated 28 November 2020, demanded the medical certificate in support of his illness. Petitioner responded but did not submit the medical certificate dated 4 November 2020, which records that petitioner was suffering from low back pain and was advised bed rest for four weeks. 8. It is urged by learned counsel for the applicant that without considering the fact that the letter reached the petitioner on 4 December 2020, by the impugned order dated 5 December 2020, the services of the petitioner came to be terminated. The order of termination is under challenge. 9. Learned counsel for the petitioner submits that order terminating the services of the petitioner is vitiated for the reason that no opportunity of hearing was provided; petitioner was advised bed rest from 4 November 2020 for four weeks, therefore, he could not report at the place of attachment; the impugned order is punitive in nature; fulfledged departmental enquiry was not conducted; nor charge sheet was issued. In other words the order of punishment is punitive, arbitrary and not as per terms of the contract. 10. In rebuttal, learned counsel appearing for the respondents, on instructions, submits that the services of the petitioner came to be dispensed with as per terms and conditions of the contract; petitioner had not reported at the place of posting and had given an impression that he is no longer interested in continuing with the service. It is further submitted that there is an arbitration clause in the agreement for redressal of the dispute. The writ petition, therefore, is not maintainable. The impugned order terminating the services is simpliciter and does not cast any stigma. The motive of passing the order is abandonment of service; the order is not founded on misconduct, malice or efficiency. 11. Rival submissions fall for consideration. 12. The writ petition, therefore, is not maintainable. The impugned order terminating the services is simpliciter and does not cast any stigma. The motive of passing the order is abandonment of service; the order is not founded on misconduct, malice or efficiency. 11. Rival submissions fall for consideration. 12. The question that arises for consideration is whether the Court would have jurisdiction in matter of contract of service under Article 226 of the Constitution or in the alternative whether the contract of service can be enforced in writ jurisdiction. 13. It would be apposite to examine the law with regard to jurisdiction; scope of judicial review in contractual matter pertaining to service. (A) Jurisdiction: 14. A three Judge Bench of Supreme Court in its decision titled Rajasthan State Road Transport and another v. Bal Mukund Bairwa, (2009) 4 SCC 299 , revisited the issue with regard to jurisdiction of civil court/Labour Court to entertain suits/petitions questioning the orders of termination of workman and held as follows : "36. If an employee intends to enforce his constitutional rights or a right under a statutory regulation, the civil court will have the necessary jurisdiction to try a suit. If, however, he claims his right and corresponding obligations only in terms of the provisions of the Industrial Disputes Act or the sister laws so called, the civil court will have none. In this view of the matter, in our considered opinion, it would not be correct to contend that only because the employee concerned is also a workman within the meaning of the provisions of the 1947 Act or the conditions of his service are otherwise governed by the Standing Orders certified under the 1946 Act, ipso facto the civil court will have no jurisdiction. This aspect of the matter has recently been considered by this Court in Rajasthan SRTC v. Mohar Singh, (2008) 5 SCC 542 . The question as to whether the civil court's jurisdiction is barred or not must be determined having regard to the facts of each case. 37. If the infringement of the Standing Orders or other provisions of the Industrial Disputes Act are alleged, the civil court's jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil court's jurisdiction may not be held to be barred. 37. If the infringement of the Standing Orders or other provisions of the Industrial Disputes Act are alleged, the civil court's jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil court's jurisdiction may not be held to be barred. If no right is claimed under a special statute in terms whereof the jurisdiction of the civil court is barred, the civil court will have jurisdiction. 38. Where the relationship between the parties as employer and employee is contractual, the right to enforce the contract of service depending on personal volition of an employer is prohibited in terms of Section 14(1)(b) of the Specific Relief Act, 1963. It has, however, four exceptions, namely, (1) when an employee enjoys a status i.e. his conditions of service are governed by the rules framed under the proviso appended to Article 309 of the Constitution of India or a statute and would otherwise be governed by Article 311(2) of the Constitution of India; (2) where the conditions of service are governed by statute or statutory regulation and in the event mandatory provisions thereof have been breached; (3) when the service of the employee is otherwise protected by a statute; and (4) where a right is claimed under the Industrial Disputes Act or sister laws, termination of service having been effected in breach of the provisions thereof. 39. The appellant Corporation is bound to comply with the mandatory provisions of the statute or the regulations framed under it. A subordinate legislation when validly framed becomes a part of the Act. It is also bound to follow the principles of natural justice. In the event it is found that the action on the part of the State is violative of the constitutional provisions or the mandatory requirements of a statute or statutory rules, the civil court would have the jurisdiction to direct reinstatement with full back wages." (Refer-Premier Auto mobiles Ltd. v. Kamlekar Shantaram Wadke of Bombay and others, (1976) 1 SCC 496 ) 15. Industrial Employment (Standing Orders) Act, 1946, are statutorily imposed conditions of service and are binding both upon the employers and employees, though they do not amount to `statutory provisions' and any violation of these Standing Orders entitles an employee to appropriate relief before the forum created by the Industrial Disputes Act. Industrial Employment (Standing Orders) Act, 1946, are statutorily imposed conditions of service and are binding both upon the employers and employees, though they do not amount to `statutory provisions' and any violation of these Standing Orders entitles an employee to appropriate relief before the forum created by the Industrial Disputes Act. The legal position is that Standing Orders have no statutory force and are not in the nature of delegated/ subordinate legislation. .(Refer:Rajasthan SRTC v. Krishna Kant, (1995) 5 SCC 75 ) 16. In Rajasthan State Road Transport Corporation and others v. Zakir Hussain, (2005) 7 SCC 447 : 2005 SCC (L&S) 945, Supreme Court held that the employees of the State Road Transport Corporation are not civil servants, and they are not entitled to protection of Article 311(2) of the Constitution. 17. It follows that where an employee intends to enforce constitutional rights or right under statutory regulations, the civil court will have jurisdiction to try a suit. Where, however, the employee claims rights and obligations under Industrial Disputes Act or sister laws (Standing Orders) the civil court would lack jurisdiction. The employee will have to take remedy before the forum under the Industrial Disputes Act. Where the relationship between the employer and employee is contractual, the right to enforce the contract of service is prohibited in terms of Section 14 of the Specific Relief Act, 1963. (B) Arbitration clause: 18. The presence of an arbitration clause within a contract between a state instrumentality and a private party has not acted as an absolute bar to availing remedies under Article 226 of the Constitution of India. If the state instrumentality violates its constitutional mandate under Article 14 to act fairly and reasonably, relief under the plenary powers of the Article 226 of the Constitution would lie. The jurisdiction under Article 226 is a valuable constitutional safeguard against an arbitrary exercise of state power or a misuse of authority. (Refer-Unitech Limited and others versus Telangana State Industrial Infrastructure Corporation (TSIIC) and others, Civil Appeal No. 317 of 2021 decided on 17 Februrary 2021) 19. This principle was recognized in ABL International Ltd. V Export Credit Guarantee Corporation of India, (2004) 3 SCC 553 : “28. (Refer-Unitech Limited and others versus Telangana State Industrial Infrastructure Corporation (TSIIC) and others, Civil Appeal No. 317 of 2021 decided on 17 Februrary 2021) 19. This principle was recognized in ABL International Ltd. V Export Credit Guarantee Corporation of India, (2004) 3 SCC 553 : “28. 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 Corpn. v. Registrar of Trade Marks [ (1998) 8 SCC 1 ] .) 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.” (emphasis supplied) 20. Therefore, while exercising its jurisdiction under Article 226, the Court is entitled to enquire into whether the action of the State or its instrumentalities is arbitrary or unfair and in consequence, in violation of Article 14. The jurisdiction under Article 226 is a valuable constitutional safeguard against an arbitrary exercise of state power or a misuse of authority. The High Court having regard to the facts of each case, has a discretion to entertain or not to entertain a writ petition. (C) Judicial Reviews: 21. There is 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 employment is governed purely by contract or by a statute or statutory rules. Even where the employer is a statutory body and the relationship is purely governed by contract with no element of statutory governance, the contract of personal service will not be specifically enforceable. Even where the employer is a statutory body and 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. (Vide :Executive Committee of Vaish Degree College v. Lakshmi Narain, MANU/SC/0066/1973 and Smt. J. Tiwari v. Smt. Jawala Devi Vidya Mandir, MANU/SC/0473/1979) 22. When an employee of a statutory body whose service is terminated, pleads that such termination is in violation of statutory rules governing his employment, an action for declaration that the termination is invalid and that he is deemed to continue in service is maintainable and will not be barred by Section 14 of the Specific Relief Act. Where, however, the relationship of master and servant is purely contractual, it is well settled that a contract of personal service is not specifically enforceable. Even if the termination of the contract of employment (by dismissal or otherwise) is found to be illegal or in breach of the contract, the remedy of the employee is only to seek damages and not specific performance. Courts will neither declare such termination to be nullity nor declare that the contract of employment subsits nor grant the consequential relief of reinstatement, subject to the recognised exceptions: (i) a civil servant (Article 311/rules made under Article 309 of the Constitution); (ii) a workman having protection of Industrial Disputes Act, 1947; (iii) an employee of a statutory body governed by mandatory provisions of statute or statutory rules. (Refer-State Bank of India and others versus S.N. Goyal, Civil Appeal Nos. 4243-4244 of 2004 decided on 02.05.2008) 23. In A.P. State Federation of Coop. Spinning Mills Ltd. and another Versus P.V. Swaminathan, (2001) 10 SCC 83 , the appellant therein was State within the meaning of Article 12 of the Constitution. The order of termination of the employee appointed on contract on the face of it appears to be innocuous, that would not prohibit the Court from looking at the attending circumstances prior to the issuance of the termination order to find out whether termination was the motive or inefficiency or misconduct was the foundation for passing the order of termination. The order of termination of the employee appointed on contract on the face of it appears to be innocuous, that would not prohibit the Court from looking at the attending circumstances prior to the issuance of the termination order to find out whether termination was the motive or inefficiency or misconduct was the foundation for passing the order of termination. “The legal position is fairly well settled that an order of termination of a temporary employee or a probationer or even a tenure employee, simpliciter without casting any stigma may not be interfered with by the court. But the court is not debarred from looking at the attendant circumstances, namely, the circumstances prior to the issuance of order of termination to find out whether the alleged inefficiency really was the motive for the order of termination or formed the foundation for the same order. If the court comes to a conclusion that the order was, in fact, the motive, then obviously the order would not be interfered with, but if the court comes to a conclusion that the so-called inefficiency was the real foundation for passing of order of termination, then obviously such an order would be held to be penal in nature and must be interfered with since the appropriate procedure has not been followed.” 24. The Supreme Court in the given facts came to the conclusion that the order of termination founded on inefficiency is vitiated, but held that the employee cannot seek enforcement of reinstatement by way of a mandamus but all the same he would be entitled to all his benefits (pecuniary) flowing from the terms of appointment from the date of termination order to date of expiry of the contract. 25. In State of Orissa v. Chandra Sekhar Mishra, (2002) 10 SCC 583 , the respondent had been appointed Homeopathic Medical Officer whose services were subsequently terminated by issue of a notice. While rejecting the challenge to the termination order, the Court observed "when the respondent was only a contractual employee, there could be no question of his being granted the relief of being directed to be appointed as a regular employee.” 26. While rejecting the challenge to the termination order, the Court observed "when the respondent was only a contractual employee, there could be no question of his being granted the relief of being directed to be appointed as a regular employee.” 26. I may also refer to the decision of the Supreme Court in Satish Chandra Anand v. Union of India, 1953 AIR (SC) 250, where the petitioner, an employee of the Directorate General of Resettlement and Employment, was removed from contractual employment after being served a notice of termination. The contract of service was initially for a period of five years which was later extended. A five-Judge Bench hearing the matter, dismissed the petition, challenging the termination primarily on the ground that the petitioner could not prove a breach of a fundamental right since no right accrued to him as the whole matter rested in contract and termination of the contract did not amount to dismissal, or removal from service nor was it a reduction in rank. The Court found it to be an ordinary case of a contract being terminated by notice under one of its clauses. The Court observed : "10. There was no compulsion on the Petitioner to enter into the contract he did. He was as free under the law as any other person to accept or reject the offer which was made to him. Having accepted, he still had open to him all the rights and remedies available to other persons similarly situated to enforce any rights under his contract, which has been denied to him, assuming there are any, and to pursue in the ordinary Courts of the land, such remedies for a breach as are open to him to exactly the same extent as other persons similarly situated. He has not been discriminated against and he has not been denied the protection of any laws which others similarly situated could claim...” 27. In Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others, 1991 Suppl SCC 600, Supreme Court was dealing with the constitutional validity of Regulation 9 (b) that authorized termination by service of one month's notice or pay in lieu thereof. In Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others, 1991 Suppl SCC 600, Supreme Court was dealing with the constitutional validity of Regulation 9 (b) that authorized termination by service of one month's notice or pay in lieu thereof. Sawant, J. in his concurring opinion held that the provision contained the much hated rules of hire and fire reminiscent of the days of laissez faire and unrestrained freedom of contract and that any such rule would have no place in service conditions being arbitrary and violative of Article 14 of the Constitution. (Refer-Balmer Lawrie & Co. Ltd. vs. Partha Sarathi Sen Roy, (2013) 8 SCC 345 ) 28. To the same effect was an earlier decision of this Court in Central Inland Water Transport Corporation Ltd. And another v. Brojo Nath Ganguly and another, 1986 3 SCC 156 , where the Supreme Court had refused to enforce an unfair and unreasonable contract or an unfair and unreasonable clause in a contract entered into between parties who did not have equal bargaining power. 29. In Unitech (supra), the Court cautioned that while exercising jurisdiction under Article 226 of the Constitution in a contractual dispute, which in my opinion would also include contract of service entered between the employee and the State or instrumentality of State, the Court, however, must not enter into disputed questions of fact resting upon evidence. The observation in para 35 of the report reads thus: “In determining as to whether the jurisdiction should be exercised in a contractual dispute, the Court must, undoubtedly eschew, disputed questions of fact which would depend upon an evidentiary determination requiring a trial. But equally, it is well-settled that the jurisdiction under Article 226 cannot be ousted only on the basis that the dispute pertains to the contractual arena. This is for the simple reason that the State and its instrumentalities are not exempt from the duty to act fairly merely because in their business dealings they have entered into the realm of contract. Similarly, the presence of an arbitration clause does oust the jurisdiction under Article 226 in all cases though, it still needs to be decided from case to case as to whether recourse to a public law remedy can justifiably be invoked.” (D) Analysis and Summation: 30. Similarly, the presence of an arbitration clause does oust the jurisdiction under Article 226 in all cases though, it still needs to be decided from case to case as to whether recourse to a public law remedy can justifiably be invoked.” (D) Analysis and Summation: 30. A conspectus of the pronouncements of Supreme Court and the development of law over the past few decades thus show that there has been a notable shift from the stated legal position settled in earlier decisions, that termination of a contractual employment in accordance with the terms of the contract was permissible and the employee could claim no protection against such termination even when one of the contracting parties happened to be the State or instrumentality of the State. Remedy for a breach of a contractual condition was by way of civil action for damages/compensation. With the development of law relating to judicial review of administrative actions, a writ Court can now examine the validity of a termination order passed by public authority. It is no longer open to the authority passing the order to argue that its action being in the realm of contract is not open to judicial review. A writ Court is entitled to judicially review the action and determine whether there was any illegality, perversity, unreasonableness, unfairness or irrationality that would vitiate the action, no matter the action is in the realm of contract. The Court, however, cannot sit in the arm chair of the employer to decide whether a more reasonable decision or course of action could have been taken in the circumstances. So long as the action taken by the authority is not shown to be vitiated by the infirmities referred to above and so long as the action is not demonstrably in outrageous defiance of logic, the writ Court would do well to respect the decision under challenge. 31. In Pearlite Liners (P) Ltd. Versus Manorama Sirsi, (2004) 3 SCC 172 , the question before the Court was, “Can a contract of service be specifically enforced?” The case was of private employment which normally would be governed by the terms of the contract between the parties. The issue before the Court, inter alia, was with regard to the validity and non compliance of transfer order. The issue before the Court, inter alia, was with regard to the validity and non compliance of transfer order. The observation made by the Supreme Court is relevant in the facts of the instant case: “In the absence of a term prohibiting transfer of the employee, prima facie, the transfer order cannot be called in question. The plaintiff has not complied with the transfer order as she never reported for work at the place where she was transferred. As a matter of fact, she also stopped attending the office from where she was transferred. Noncompliance with the transfer order by the plaintiff amounts to refusal to obey the orders passed by superiors for which the employer can reasonably be expected to take appropriate action against the employee concerned. In case of such insubordination, termination of service would be a possibility. Such a decision purely rests within the discretion of the management.” 32. Applying the law in the facts of the case in hand, it is not being disputed that Transport Corporation is a State within the meaning of Article 12 of the Constitution of India. The employees of the Transport Corporation do not enjoy the status, and /or protection of a civil servant within the meaning of Article 309 and 311 of the Constitution. The service condition of the petitioner is governed by the terms stipulated in the contract of service and not by rules/regulation having statutory force. A writ under Article 226 would be maintainable notwithstanding the arbitration clause in the contract of service. The question that arises is whether termination of the petitioner is arbitrary, in violation of Article 14 to warrant interference with the impugned order. The impugned order records that petitioner has not resumed service at the place of transfer/attachment, against the terms of the contract requiring the employee to render service for 22 days in a month. The attachment was made due to shortage of staff at Agra. The medical certificate was not submitted by the petitioner though demanded, as has been noted by the authority in the impugned order. The medical certificate, brought on record, merely prescribes four weeks bed rest due to complaint of low back pain. The certificate is not supported by any medical prescription nor the course and nature of treatment undergone by the petitioner. The medical certificate, brought on record, merely prescribes four weeks bed rest due to complaint of low back pain. The certificate is not supported by any medical prescription nor the course and nature of treatment undergone by the petitioner. The issue whether the petitioner was justified in not complying the order of posting due to his illness rests upon the genuineness of his medical treatment. The onus in the first instance is upon the petitioner to discharge the burden. The medical certificate prescribing bed rest and not supported by any other material to show the nature and followup treatment to support the stand of the petitioner is a question of fact resting upon evidentiary determination, which cannot be gone into under Article 226 of the Constitution in the first instance. The motive or foundation for passing the termination order that weighted with the employer would rest upon evidence of the respective parties. The petitioner in the circumstances would have to seek remedy before the appropriate authority/forum. 33. The writ petition, in the circumstances would not be maintainable, accordingly, disposed of with liberty to the petitioner to take recourse to alternative remedy. 34. It is clarified that the observations made in the order touching upon the merit of the case would have no bearing, the authority/forum to decide independently on merit without being influenced by the observations. No costs.