IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE RAVI MALIMATH, CHIEF JUSTICE &

HON'BLE SHRI JUSTICE VISHAL MISHRA th ON THE 6 OF FEBRUARY, 2024 WRIT APPEAL No. 2185 of 2023 BETWEEN:-

GAURAV JAIN S/O SHRI SUNIL KUMAR JAIN, AGED ABOUT 28 YEARS, OCCUPATION: DATA ENTRY OPERATOR (MGNAREGA) WARD NO. 10 SHAHPURA BHITONI TAHSIL AND DISTRICT JABALPUR (MADHYA PRADESH)

.....APPELLANT (BY SHRI K.C. GHILDIYAL - SENIOR ADVOCATE WITH SHRI S.K. MISHRA -

ADVOCATE)

AND

1. THE COMMISSIONER, JABALPUR DIVISION, JABALPUR (MADHYA PRADESH)

2. THE COLLECTOR, JAB ALPUR DISTRICT, JABALPUR (MADHYA PRADESH)

3. THE CHIEF EXECUTIVE OFFICER, JILA PANCHAYAT JABALPUR, DISTRICT JABALPUR, (MADHYA PRADESH)

4. THE CHIEF EXECUTIVE OFFICER, JANPAD PANCHAYAT SHAHPURA, DISTRICT JABALPUR, (MADHYA PRADESH)

5. THE CHIEF EXECUTIVE OFFICER, JANPAD PANCHAYAT PATAN, DISTRICT JABALPUR, (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI AMIT SETH - DEPUTY ADVOCATE GENERAL)

Signature Not Verified This appeal coming on for admission this day, Hon'ble Shri Justice Vishal Mishra passed the following:

ORDER

Assailing the order dated 27.09.2023 passed by the learned Single Judge in dismissing W.P. No.15433 of 2022, the writ petitioner is in appeal.

2. It is the case of the petitioner that he was appointed on 29.03.2008 on the post of Data Entry Operator on contractual basis in Janpad Panchayat Shahpura, District Jabalpur. He worked satisfactorily till 2018. All of a sudden he fell ill on 31.05.2018 and applied for grant of medical leave along with certain documents. On 24.05.2019, the respondent No.3 has issued a notice in the form of last warning to the petitioner to be present on duty within seven days failing which ex-parte proceedings would be initiated against him. A reply was submitted by the petitioner. Authorities have not considered the reply and terminated the service of the petitioner on the ground of unauthorized absence for a long period.

3. It is a case of the petitioner that he was ill and could not recover from illness for a long time. Therefore, the authorities should have considered the reply filed by him and should have permitted him to rejoin the service after recovery from the illness. Even otherwise the order impugned is a non-speaking order by the authorities only based upon the condition made in the appointment order. The writ court considered the aspect that the appointment order was a conditional order and the petitioner could not remain absent for more than 15 days otherwise his services could have been terminated automatically.

4. In the present case it is not disputed that the petitioner is a contractual employee. The appointment order clearly shows that he was entitled for 15 days medical leave. Remaining on unauthorized absence for more than 15 days will Signature Not Verified result in automatic termination of his services. The petitioner has remained on unauthorized absence for almost two years without any justification.The authorities have repeatedly issued notices to him but he failed to join.

5 . The law with respect to contractual employees is settled by the Hon'ble Supreme Court in the case of State Bank of India Vs. S.N. Goyal reported in (2008) 8 SCC 92 wherein, it is held as under :-

"Where the relationship of master and servant is purely contractual, it is well settled that a contract of personal service is not specifically enforceable, having regard to the bar contained in section 14 of the Specific Relief Act, 1963. Even if the termination of the contract of employment (by dismissal or otherwise) is found to be illegal or in breach, the remedy of the employee is only to seek damages and not specific performance. Courts will neither declare such termination to be a nullity nor declare that the contract of employment subsists nor grant the consequential relief of reinstatement. The three well recognized exceptions to this rule are: (i) where a civil servant is removed from service in contravention of the provisions of Article 311 of the Con