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Judgment
Nidhi Gupta, J. Present Civil Writ Petition under Articles 226/227 of the Constitution of India has been filed by the petitioner for issuance of a writ in the nature of Mandamus directing the respondents to make the payment of arrears of salary of the petitioner for the period 01.06.2021 to 17.06.2021; and 12.07.201 to 07.01.2022 (Maternity Leave period), as admitted by respondents in their reply dated 18.07.2022 (Annexure P-11), along with 12% interest per annum w.e.f. the due date till the date of actual payment.
Brief facts of the case in chronological sequence are as under:-Nil: Petitioner was appointed as Staff Nurse on contractual basis through Outsourcing Agency with the respondent-Department during COVID-
She was posted as Staff Nurse in Isolation Ward of Civil Hospital, Kurukshetra. 15.09.2020: Due to onset of COVID-19, the Chief Secretary to Government of Haryana had issued Instructions dated 15.9.2020 (Annexure P-1), as per which it was advised that all pregnant women/employees whether regular, contractual, outsourced, daily wage or ad hoc are to work from home. 30.04.2021:Vide Instructions dated 30.04.2021 (Annexure P-2), the previous Instructions dated 15.09.2020 were again reiterated and it was decided that if required, employees can work from home. 10.05.2021:Vide letter dated 10.05.2021 (Annexure P-3), the aforesaid Instructions were forwarded by the Civil Surgeon, Kurukshetra to Medical Superintendent, LNJP Civil Hospital, Kurukshetra. 18.05.2021:Vide Certificate dated 18.05.2021 (Annexure P-4), it was informed that as per the Gynaecologist at LNJP Civil Hospital, Kurukshetra, expected date of delivery of the petitioner is 31.07.2021. Nil:Petitioner had submitted application dated Nil(Annexure P-6) applying for maternity leave from 12.07.2021 for 180 days. 11/12/13.07.2021:As per the Discharge Summary (Annexure P-5) given by Shri Balaji Arogyam Hospital Private Limited, Kurukshetra, petitioner was admitted on 11.07.2021. Petitioner had given birth on 12.07.2021; and was discharged on 13.07.2021 at 09:20 PM.
14.07.2021: Certificate dated 14.07.2021 (Annexure P-7) was issued by the Medical Officer, LNJP Hospital, Kurukshetra, which reads as follows:-
“Recommended of leave or extension of leave. I, Dr. Vipra Rai after careful personal examination of the case hereby certify that Smt. Sandeep Kaur whose particular are given below. He/ She is suffering from Pregnancy wave & I consider that a period of absence from duty of 180 days with effect from 12.07.2021 to 12.01.2022 is absolutely from the retroactions of his/her health.” 06.10.2021:Vide letter dated 06.10.2021 (Annexure P-8), respondent No. 3/Civil Surgeon, Kurukshetra had written to respondent No.4/The Sharp Global Group/the Outsourcing Agency of the petitioner, to give salary of 6 months to the petitioner as per rules by considering her on duty and submit bill to the Civil Surgeon office for payment as per rules. 07.01.2022: Vide Fitness Certificate dated 07.01.2022 (Annexure P-9), petitioner was examined and was declared fit to resume her duty on 07.01.2022. As such, petitioner had joined back and resumed her duties on 07.01.2022. March/April 2022: Petitioner had resigned from the said job to take care of her child. 16.06.2022:Thereafter, petitioner had issued legal notice dated 16.06.2022 (Annexure P-10) requesting for payment of arrears of salary for the period 23.05.2021 to 30.06.2021; and 12.07.2021 to 07.01.2022 (maternity leave period) along with interest @ 12% per annum.
18.07.2022: Respondent had filed reply dated 18.07.2022 (Annexure P-11) to the aforesaid legal notice informing that concerned outsourcing agency has given in writing for claiming benefit and same was intimated to concerned employee. 20.10.2022: Hence, the present writ petition.
Ld. CCounsel for the petitioner submits that petitioner is entitled to salary for the maternity leave period and the Covid period in terms of the Instructions (Annexures P-1 and P-2), and the letter dated 10.05.2021 (Annexure P-3), as per which the petitioner was allowed to work from home.
It is submitted that even as per the Maternity Benefit (Amendment) Act, 2017 applicable to female employees working under the Outsourcing Policy Part-I, maternity leave for working women is now 26 weeks.
It is contended that the action of the respondents in not releasing salary of the petitioner for the aforesaid period is absolutely illegal, arbitrary and unconstitutional as the petitioner is entitled to salary for maternity leave period w.e.f. 12.07.2021 to 07.01.2022 as per the aforesaid Instructions. Accordingly, prays that the present writ petition be allowed and salary be released for the period aforesaid along with interest.
Per contra, ld. counsel appearing for respondents No. 1 to 3 has strongly controverted submissions of the petitioner and contended that
petitioner was appointed as Staff Nurse through Outsourcing Agency namely The Sharp Global Group/respondent No. 4 during COVID-19 on 16.09.2020.
Vide her application dated 18.05.2021 (Annexure R-1), petitioner had applied for 'stay at home' instead of 'work from home' as she was 7 months pregnant. Said application of the petitioner was forwarded by the Deputy Civil Surgeon (NHM), Kurukshetra to respondent No. 4/The Sharp Global Group vide letter dated 21.05.2021 while keeping in mind the Notifications/Instructions dated 15.09.2020 and 30.04.2021(Annexures P-11 and P-2 respectively).
Ld. counsel submits that it is for respondent No.4/The Sharp Global Group to make payment to the petitioner, as, Petitioner is not an employee of the State Government, and she is working through Outsourcing Agency. As such, it is the Outsourcing Agency which is responsible for any outstanding dues. Accordingly, prays for dismissal of the present writ petition.
No other argument is made on behalf of learned counsel for the parties. I have heard ld. counsel and perused the case file and record in detail. I find no merit in the submissions advanced on behalf of the petitioner.
Factual matrix of the case has already been noticed hereinabove. It is not disputed that petitioner was working as Staff Nurse through Outsourcing Agency i.e. respondent No. 4/The Sharp Global Group.It is established position in law that in the absence of any master-servant relationship, no direction can be issued to the State of Haryana as the petitioner is not the employee of the respondent-State. In this regard, reference may be made to judgment of this
Court in CWP No. 11306 of 2019 titled as Sumit vs. State of Haryana and others decided on 16.07.2026; wherein it has been held that:
“As enumerated hereinabove, it is the admitted case of the petitioner himself that he has been engaged by the respondent Department from time to time through different contractors. In similar circumstances, this Court in case of CWP--1822-2019 titled as Yamin and others vs. State of Haryana and other decided on 19.08.2020, held that no direction can be issued to the State of Haryana to allow the petitioner to continue in the absence of any master-servant relationship as State of Haryana is not the employer of the petitioner therein. In the said case also, the petitioner therein had been working for the Health Department of the Govt. of Haryana through a private contractor. It is settled principle of law that writ only can be issued against the State or any instrumentality of State. As a private contractor is not the instrumentality of the State, therefore, writ petition is not maintainable. The right remedy for the petitioner would be to approach the Labor Court against the contractor. In the present Writ Petition, even the contractor(s) have not been impleaded by the petitioner, who would reply to the petitioner's allegations that juniors have been retained. The above-said legal position has been reiterated by this Court in Nishan Singh vs. State of Haryana, (Punjab and Haryana):Law Finder Doc Id#2736781.”
In the present case, petitioner was admittedly working with the respondent-department through Outsourcing Agency/respondent no.4. As such, there existed no master-Servant relationship between the petitioner and the respondent State. Thus, any claim of the petitioner would subsist against respondent no.4, and not the Department.
It may also be pointed out that in any event, vide Memo/Instruction dated 18.06.2021 (Annexure P-11), exemptions given to pregnant employees vide Annexure P-1 and P--2 were withdrawn keeping in view the fact that cases of COVID-19 had declined drastically.
Thereafter, petitioner had again applied to continue to work from home from dated 18.06.2021. Her maternity leave application was duly forwarded by the Deputy Civil Surgeon (NHM) to respondent No.4/The Sharp Global Group for information and necessary action vide letter dated 28.07.2021 (Annexure R-4). Even otherwise, as per Government Instructions dated 18.06.2021 (Annexure R-3), no 'work from home' sanction could have been given to the petitioner.
Respondents No. 1 to 3 in their written statement dated 28.11.2023 have further stated as follows in Para 4:-
“4.That it is pertinent to mentioned here that the petitioner has already been received the salary for the month of May 2021 and dues for the period from 01.06.2021 to 17.06.2021 (17 Days) was not disbursed on time due to clerical error in the attendance of concerned petitioner was employee. Therefore, the petitioner was directed to apply through proper channel through the above mentioned Agency for the payment of above said period but the petitioner did not apply neither to the to this of office nor agency. Thereafter, On 28.04.2022 an E-mail was received from Sharp Global Group (Respondent No 4) vide which the agency mentioned that the payment maternity leave of the petitioner will be given by E.S.I. Department (Respondent No 5) copy of E-mail dated
28.04.2022 is annexed as Annexure--R-5. Thereafter, respondent no. was 4 asked by this office to make clarification w.r.t. the production of bills of Maternity Leave, clarified so that it may be clarified that how respondent No.5 is responsible for the production of bill of the petitioner. However, no response was received from respondent no.4. Hence, keeping in view the above mentioned facts it is submitted that the answering respondents has done its best to get the payment of pending dues of the petitioner and there is no fault at the level of answering respondents It is also worthwhile to mentioned here that the payment of pending dues of the petitioner shall be disbursed as soon as this office would receive the bills of period of pending Maternity Leave either from Respondent No 4 or
5.Therefore, keeping in view, the fact and circumstances of the case the present writ petition of the petitioner may kindly be dismissed qua the answering respondents.”
No replication has been filed by the petitioner controverting the aforesaid assertions. Ld. Counsel for the petitioner is unable to dispute or controvert the above said factual and legal position.
Dismissed.
Pending application(s), if any, also stands disposed of.