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2024 DIGILAW 753 (MP)

Umesh Kumar Tiwari v. State of Madhya Pradesh

2024-12-04

SANJAY DWIVEDI

body2024
ORDER : Sanjay Dwivedi, J. 1.Heard on admission. 2. By the instant petition, the petitioner is challenging the validity of the order dated 27.09.2024 (Annexure-P/8) whereby his services have been terminated and he has been removed from service. The said order/communication is made by respondent No.5/Director, Urmila International Service Private Ltd. 3. Learned counsel for the petitioner submits that Urmila International Service Private Ltd. is a registered company under the statute and having its registered number. He also submits that the services of the petitioner cannot be terminated in this manner, that too without conducting any enquiry and without giving any opportunity of hearing to him. He further submits that a writ under Article 226 of the Constitution can be issued against the respondent-employer in the light of the law laid down by the Supreme Court in the case of Federal Bank Ltd. v. Sagar Thomas and others (2003) AIR (SC) 4325 and also in the case of The Praga Tools Corporation v. Shri C.A. Imanual and others (1969) 1 SCC 585 . He further submits that the petitioner is the employee of respondent No.5 though it is a private company and therefore outsourcing services of the petitioner are provided to respondents No.2 to 4 and the termination order is apparently illegal and in violation to the principles of natural justice, and therefore writ can be issued because the respondents are engaged in performing the public duty. He further submits that the petitioner was performing the duties with respondents No.2 to 4, a company which is involved in generation of electricity and its supply to the public and therefore it is a public duty and the petition is maintainable. However, I am not convinced with the submissions made on behalf of the petitioner. Indeed, the Supreme Court in the cases, on which petitioner has placed reliance, has categorically observed that writ against a private company cannot be issued under Article 226, but writ can be issued to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute fort he purpose of fulfilling public responsibilities. A mandamus would also lie against a company constituted by a statute fort he purpose of fulfilling public responsibilities. In the case at hand, although the petitioner failed to show as to under which statute, respondent No.5 is constituted and what duties/obligations have been assigned by the statute to respondent No.5 to perform the public duties. Otherwise also, it reveals that respondent No.5 is a company providing employees to respondents No.2 to 4 and also to other Organisations which take services of the employees from outsourcing instead giving them employment directly. It does not reveal for what purpose, respondent No.5 has been formulated. It is not for discharging the public obligation/responsibility, but has been formulated to earn money for livelihood and to provide employees through outsourcing. The outsourcing agency has no obligation to discharge the public duties/responsibility but providing employees to the government or private organisations in any manner cannot be termed as discharge of public duties and as such termination of the employee working in the private organisation, which is an outsourcing agency, providing employees to the government and private organisations, cannot be interfered with in a petition under Article 226 is not maintainable. Of-late, the Supreme Court in the case of Army Welfare Education Society vs. Sunil Kuma r reported in 2024 SCC OnLine SC 1683 has considered the similar issue and laid down as to what is a public duty and where the cause raised by the petitioner can be considered to be a public duty and the petition can be entertained by the court under Article 226 of the Constitution of or not. The Supreme Court has observed as under:- “50. We have discussed in detail in preceding paragraphs that even if the function being performed by a private educational institution in imparting education may be considered as a public function, the relationship between the administration of such an institution and its employees remains a contractual one, falling within the ambit of private law. 51. Nothing has been placed on record by the respondents to show that any express or implied promise was made by the appellant regarding keeping their salary and service conditions intact. There have been no past negotiations or dealings between the respondents and the appellant society as the dispute arose as soon as the appellant took over the administration of the school. There have been no past negotiations or dealings between the respondents and the appellant society as the dispute arose as soon as the appellant took over the administration of the school. Moreover, there is no statutory obligation on the appellant society which requires that the salaries and allowances of the respondents are to be kept at par with what is payable to teachers of Government institutions. Lastly, the appellant society, for the purposes of its relationship with its employees, cannot be regarded as a public or Government authority." And thereafter, in the said case, the Supreme Court has drawn conclusion in para-53, which is as under:- “53. In the result, the appeals succeed and are hereby allowed. The impugned judgment and order passed by the High Court is hereby set aside.” 4. In the case of Army Welfare Education Society (supra), the Supreme Court has also considered the earlier decisions rendered in the cases of St. Mary’s Education Society (supra), K.Krishnamacharyulu v. Sri Venkateswara Hindu College of Engineering reported in (1997) 3 SCC 571 , Sushmita Basu v. Ballygunge Siksha Samity reported in (2006) 7 SCC 680 and S.K. Varshne vs. Our Lady of Fatima Higher Secondary School reported in (2023) 4 SCC 539 . 5. onsidering the above-cited judgments of the Supreme Court wherein it has been laid down what are the public duties and under which circumstances, writ can be issued, I am of the view that this petition is not maintainable and no writ under Article 226 of the Constitution can be issued in favour of the petitioner. 6. In view of the above, this petition is dismissed.