Institution of Mechanical Engineers (India) Through its Chairman v. State of Punjab and others reported in

Applicant :- U.P. Power Corporation Thru. Its General Secy. Devendra Kumar Pandey Opposite Party :- U.P. Power Corporation Ltd. Thru. Its Managing Director And 3 Others Counsel for Applicant :- Renu Misra,Pradip Kumar Srivastava Hon'ble Rajesh Singh Chauhan,J.

1. Heard Ms. Renu Misra, learned counsel for the review applicant.

2. The order under review is order dated 26.03.2025 which reads as under: "1. Heard Sri P.K. Srivastava along with Ms. Renu Mishra, learned counsel for the petitioner and Sri Neerav Chitravanshi, learned counsel for the opposite party Nos.1, 2 & 4. However, notice on behalf of opposite party No.3 has been accepted by Sri Alok Saran, learned counsel.

2. Learned counsel for the petitioner has filed the supplementary affidavit, today in the Court, the same is taken on record.

3. By means of this writ petition, the petitioner has prayed for the following reliefs:- "(i) to issue a writ, order or direction in the nature of certiorari quashing the orders dated 13.09.2019/01.02.2025/ 17.02.2025 contained in Annexure No.5 to the extent it provides upper age limit of 55 years for Contract Employees. (ii) to issue a writ,order or direction in the nature of mandamus commanding the opposite parties not to press retirement of contract employees at the age of 55 years, working on the post of TG-II, Lineman, Karyakari Sahayak etc. and allow them to work until they attain the age of 60 years and pay them their salary."

4. This is admitted case of the petitioner that the members of the Association are outsource employees of U.P. Power Corporation inasmuch as Annexure No.2 is the proposal of the petitioner's Association wherein this fact has been admitted. The members of the petitioner's Association have been appointed through respective outsourcing Agencies at the different districts.

5. Learned counsel for the opposite parties are not raising any objection to the effect that the Association may not file this writ petition but the precise contention and objection of learned counsel for the opposite parties is that the employees of the petitioner's Association may not claim their relief as a matter of right being outsource employee, therefore, the Association cannot be granted relief for the employees.

6. Attention has been drawn by the learned counsel for the opposite parties toward the dictum of Apex Court rendered in the case in re: Institution of Mechanical Engineers (India) Through its Chairman vs. State of Punjab and others reported in 2019 (6) AWC 5342 (SC) referring para-39 of the aforesaid judgment wherein the Apex Court has held that the principle that what cannot be done directly cannot be achieved indirectly is well- settled and was elaborated by this court in catena of cases.

7. Sri Chitravanshi has also referred the judgment and order dated 30.05.2023 passed by the Division Bench of this Court in Special Appeal No.277 of 2023; Rajesh Kumar Gautam and 12 others vs. State of U.P. and others referring para-10 thereof, which reads as under:_ "(10) Admittedly, there is no relationship of employee and employer between the petitioner and U.P. Power Corporation Ltd. The appellants were working under M/s GlobeTech Creations Private Ltd., which has been entrusted with the job of providing outsource employee for the U.P. Power Corporation Ltd. Further it is not the U.P. Power Corporation Ltd. that has removed the appellants from contractual service. It is the outsourcing contractor i.e. M/s GlobeTech Creations Private Ltd. that has disengaged the appellants. More so, there is no binding contract between the appellants and the U.P. Power Corporation Ltd. Thus, the cause of action or grievance of the appellants accrues against M/s GlobeTech Creations Private Ltd. and not against the U.P. Power Corporation. Thus, the learned Single Judge has rightly observed that the privity of contract is with the M/s GlobeTech Creations Private Ltd., who does not fall within the meaning of 'State'."

8. The Division Bench of this Court has categorically held that there is no relationship of employee and employer between the petitioner and U.P. Power Corporation Ltd. as the appellants were appointed by the outsourcing agencies.

9. Sri Neerav Chitravanshi has also cited the judgment of Apex Court dated August 20, 2018 rendered in the case in re: Civil Appeal Nos. 10502-10505 of 2011; K.K. Suresh & another etc. vs. Food Corporation of India & others etc. wherein vide para-8 the Apex Court has held that if the employees who are not directly appointed by the Department/ State/ State Instrumentality may not claim any relief approaching the Constitutional Court.

10. Replying the aforesaid objection of Sri Neerav Chitravanshi, Sri P.K. Srivastava, learned counsel for the petitioner has stated that though the members of the petitioner's Association are outsource employee but they are discharging their duties in the same manner as the duties has been discharging by the regular employees. Sri Srivastava has drawn attention of this Court towards Annexure No.4 of the writ petition which provides the details of some of the members of the petitioner's Association showing their length of service.

11. Sri Srivastava has stated referring Section 21 of the Contract Labour (R & A) Act, 1970 that the Principal Employer, namely, UPPCL, in the present case, is duty bound to see that the contract employee gets his due wages within time as and when it becomes due and that Principal Employer is to see what wages are so disbursed.

12. Sri Srivastava has further submitted that regular employees are being permitted to discharge their duties beyond the age of 55 years but the members of the petitioner's Association are not being permitted to discharge their duties beyond the age of 55 years.

13. Sri Srivastava has also shown Annexure No.9 of the writ petition which is the office memo dated 03.04.2019 issued by the U.P. Power Corporation permitting some retired employee to discharge their duties after his retirement. Therefore, Sri Srivastava has stated that when the retired employees have been permitted to charge their duties after their retirement, the members of the petitioner's Association should also be permitted to discharge their duties after the age of 55 years.

14. Be that as it may, since one fact is undisputed that the members of the petitioner's Association are the outsource employee and those outsource employees have not been appointed directly by the department, therefore, no relief can be granted to the members of the petitioner's Association.

15. In view of the law laid down by the Apex Court in a catena of cases that the outsource employees have got no indefeasible right to claim their services dues by filing writ petition, therefore, the relief prayed in the writ petition may not be granted. Further, if any member of the petitioner files any writ petition claiming relief, which has been prayed in the writ petition, the same may not be granted to him for the simple reason that the employee being a contractual employee of the outsource agency, which does not fall within the meaning of 'State' as defined under Article 12 of the Constitution of India and hence, no relief can be granted in exercise of power under Article 226 of the Constitution of India, then such relief may not be granted to the employees Association, who is the petitioner of this writ petition. The law is trite on the point that what cannot be done directly, cannot be achieved indirectly.

16. So far as Section 21 of the Contract Labour (R & A) Act, 1970 is concerned, it is not a case of the petitioner that the members thereof have not been paid their due wages well in time, therefore, the arguments regarding Section 21 of the Act, 1970 is misconceived so far as the prayer of the writ petition is concerned.

17. Accordingly, the instant writ petition is dismissed."

3. The aforesaid writ petition was dismissed mainly on two grounds, firstly that the petitioner's Association is an Association of outsource employee, those employees have not been directly appointed by the Power Corporation, therefore such petition may not be entertained under Article 226 of the Constitution of India. Secondly, outsource employees have got no indefeasible right to claim their services dues by filing writ petition under Article 226 of the Constitution of India and if such relief may not granted to such employee, any writ petition filed by the employees' Association may also not be maintained, and no relief can be granted to such Association in view of the trite law which provides that what cannot be done directly, cannot be achieved indirectly. Besides there is no application of Section 21 of the Contract Labour (R & A) Act, 1970 in the present case.

4. No apparent illegality or infirmity has been pointed out to review the order dated 26.03.2025. The review is not an appeal in disguise and the order can only be reviewed if there is any apparent error on the face of the order or any relevant argument has been placed by learned counsel for the petitioner/applicant supporting with the relevant document and such argument has not been considered in an order under review. In the present case, I do not find any apparent error on the face of the order and precise argument of the learned counsel for the petitioner as well as other side have been considered in the order dated 26.03.2025.

5. Therefore, the review application is dismissed in limini.

6. No order as to costs. Order Date :- 25.4.2025 Reena/- (Rajesh Singh Chauhan,J.) REENA KANNAUJIYA High Court of Judicature at Allahabad, Lucknow Bench

Applicant :- U.P. Power Corporation Thru. Its General Secy. Devendra Kumar Pandey Opposite Party :- U.P. Power Corporation Ltd. Thru. Its Managing Director And 3 Others Counsel for Applicant :- Renu Misra,Pradip Kumar Srivastava Hon'ble Rajesh Singh Chauhan,J.

1. Heard Ms. Renu Misra, learned counsel for the review applicant.

2. The order under review is order dated 26.03.2025 which reads as under: "1. Heard Sri P.K. Srivastava along with Ms. Renu Mishra, learned counsel for the petitioner and Sri Neerav Chitravanshi, learned counsel for the opposite party Nos.1, 2 & 4. However, notice on behalf of opposite party No.3 has been accepted by Sri Alok Saran, learned counsel.

2. Learned counsel for the petitioner has filed the supplementary affidavit, today in the Court, the same is taken on record.

3. By means of this writ petition, the petitioner has prayed for the following reliefs:- "(i) to issue a writ, order or direction in the nature of certiorari quashing the orders dated 13.09.2019/01.02.2025/ 17.02.2025 contained in Annexure No.5 to the extent it provides upper age limit of 55 years for Contract Employees. (ii) to issue a writ,order or direction in the nature of mandamus commanding the opposite parties not to press retirement of contract employees at the age of 55 years, working on the post of TG-II, Lineman, Karyakari Sahayak etc. and allow them to work until they attain the age of 60 years and pay them their salary."

4. This is admitted case of the petitioner that the members of the Association are outsource employees of U.P. Power Corporation inasmuch as Annexure No.2 is the proposal of the petitioner's Association wherein this fact has been admitted. The members of the petitioner's Association have been appointed through respective outsourcing Agencies at the different districts.

5. Learned counsel for the opposite parties are not raising any objection to the effect that the Association may not file this writ petition but the precise contention and objection of learned counsel for the opposite parties is that the employees of the petitioner's Association may not claim their relief as a matter of right being outsource employee, therefore, the Association cannot be granted relief for the employees.

6. Attention has been drawn by the learned counsel for the opposite parties toward the dictum of Apex Court rendered in the case in re: Institution of Mechanical Engineers (India) Through its Chairman vs. State of Punjab and others reported in 2019 (6) AWC 5342 (SC) referring para-39 of the aforesaid judgment wherein the Apex Court has held that the principle that what cannot be done directly cannot be achieved indirectly is well- settled and was elaborated by this court in catena of cases.

7. Sri Chitravanshi has also referred the judgment and order dated 30.05.2023 passed by the Division Bench of this Court in Special Appeal No.277 of 2023; Rajesh Kumar Gautam and 12 others vs. State of U.P. and others referring para-10 thereof, which reads as under:_ "(10) Admittedly, there is no relationship of employee and employer between the petitioner and U.P. Power Corporation Ltd. The appellants were working under M/s GlobeTech Creations Private Ltd., which has been entrusted with the job of providing outsource employee for the U.P. Power Corporation Ltd. Further it is not the U.P. Power Corporation Ltd. that has removed the appellants from contractual service. It is the outsourcing contractor i.e. M/s GlobeTech Creations Private Ltd. that has disengaged the appellants. More so, there is no binding contract between the appellants and the U.P. Power Corporation Ltd. Thus, the cause of action or grievance of the appellants accrues against M/s GlobeTech Creations Private Ltd. and not against the U.P. Power Corporation. Thus, the learned Single Judge has rightly observed that the privity of contract is with the M/s GlobeTech Creations Private Ltd., who does not fall within the meaning of 'State'."

8. The Division Bench of this Court has categorically held that there is no relationship of employee and employer between the petitioner and U.P. Power Corporation Ltd. as the appellants were appointed by the outsourcing agencies.

9. Sri Neerav Chitravanshi has also cited the judgment of Apex Court dated August 20, 2018 rendered in the case in re: Civil Appeal Nos. 10502-10505 of 2011; K.K. Suresh & another etc. vs. Food Corporation of India & others etc. wherein vide para-8 the Apex Court has held that if the employees who are not directly appointed by the Department/ State/ State Instrumentality may not claim any relief approaching the Constitutional Court.

10. Replying the aforesaid objection of Sri Neerav Chitravanshi, Sri P.K. Srivastava, learned counsel for the petitioner has stated that though the members of the petitioner's Association are outsource employee but they are discharging their duties in the same manner as the duties has been discharging by the regular employees. Sri Srivastava has drawn attention of this Court towards Annexure No.4 of the writ petition which provides the details of some of the members of the petitioner's Association showing their length of service.

11. Sri Srivastava has stated referring Section 21 of the Contract Labour (R & A) Act, 1970 that the Principal Employer, namely, UPPCL, in the present case, is duty bound to see that the contract employee gets his due wages within time as and when it becomes due and that Principal Employer is to see what wages are so disbursed.

12. Sri Srivastava has further submitted that regular employees are being permitted to discharge their duties beyond the age of 55 years but the members of the petitioner's Association are not being permitted to discharge their duties beyond the age of 55 years.

13. Sri Srivastava has also shown Annexure No.9 of the writ petition which is the office memo dated 03.04.2019 issued by the U.P. Power Corporation permitting some retired employee to discharge their duties after his retirement. Therefore, Sri Srivastava has stated that when the retired employees have been permitted to charge their duties after their retirement, the members of the petitioner's Association should also be permitted to discharge their duties after the age of 55 years.

14. Be that as it may, since one fact is undisputed that the members of the petitioner's Association are the outsource employee and those outsource employees have not been appointed directly by the department, therefore, no relief can be granted to the members of the petitioner's Association.

15. In view of the law laid down by the Apex Court in a catena of cases that the outsource employees have got no indefeasible right to claim their services dues by filing writ petition, therefore, the relief prayed in the writ petition may not be granted. Further, if any member of the petitioner files any writ petition claiming relief, which has been prayed in the writ petition, the same may not be granted to him for the simple reason that the employee being a contractual employee of the outsource agency, which does not fall within the meaning of 'State' as defined under Article 12 of the Constitution of India and hence, no relief can be granted in exercise of power under Article 226 of the Constitution of India, then such relief may not be granted to the employees Association, who is the petitioner of this writ petition. The law is trite on the point that what cannot be done directly, cannot be achieved indirectly.

16. So far as Section 21 of the Contract Labour (R & A) Act, 1970 is concerned, it is not a case of the petitioner that the members thereof have not been paid their due wages well in time, therefore, the arguments regarding Section 21 of the Act, 1970 is misconceived so far as the prayer of the writ petition is concerned.

17. Accordingly, the instant writ petition is dismissed."

3. The aforesaid writ petition was dismissed mainly on two grounds, firstly that the petitioner's Association is an Association of outsource employee, those employees have not been directly appointed by the Power Corporation, therefore such petition may not be entertained under Article 226 of the Constitution of India. Secondly, outsource employees have got no indefeasible right to claim their services dues by filing writ petition under Article 226 of the Constitution of India and if such relief may not granted to such employee, any writ petition filed by the employees' Association may also not be maintained, and no relief can be granted to such Association in view of the trite law which provides that what cannot be done directly, cannot be achieved indirectly. Besides there is no application of Section 21 of the Contract Labour (R & A) Act, 1970 in the present case.

4. No apparent illegality or infirmity has been pointed out to review the order dated 26.03.2025. The review is not an appeal in disguise and the order can only be reviewed if there is any apparent error on the face of the order or any relevant argument has been placed by learned counsel for the petitioner/applicant supporting with the relevant document and such argument has not been considered in an order under review. In the present case, I do not find any apparent error on the face of the order and precise argument of the learned counsel for the petitioner as well as other side have been considered in the order dated 26.03.2025.

5. Therefore, the review application is dismissed in limini.

6. No order as to costs. Order Date :- 25.4.2025 Reena/- (Rajesh Singh Chauhan,J.) REENA KANNAUJIYA High Court of Judicature at Allahabad, Lucknow Bench