Deepak Sharma vs State Of Mp
2021 Latest Caselaw 3526 MP

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         THE HIGH COURT OF MADHYA PRADESH
                      WP.12820/2021
           Deepak Sharma v. State of M.P. and Ors.

                   Through Video Conferencing.

Gwalior, Dated : 22-07-2021

      Shri Siddharth Sharma, Counsel for the petitioner.

      Shri Deepak Khot, Counsel for the State.

      This petition under Article 226 of the Constitution of India has

been filed seeking the following reliefs:-

                "i. That, the respondents no. 4 and 5 be

directed to make the payment of remaining salary for the period of August, 2020 to August, 2021 along with interest.

Any other relief which this Hon'ble Court deems fit in the facts and circumstances of the case may also kindly be granted."

It is submitted by the Counsel for the petitioner that an

agreement was entered into between the respondents no. 4 and 5,

according to which the respondent no. 5 was called upon to provide

manpower. Accordingly, the petitioner was appointed by respondent

no. 5 as a Civil Engineer. As per appointment order dated

03.06.2020, gross salary of the petitioner was fixed at Rs. 23,650/-

per month. It was also mentioned in the appointment order that the

petitioner shall be govern by the working hours and holidays as per

the requirement of the establishment/client company as determined

from time to time. It is submitted that after the appointment of the

petitioner he is providing services to respondents no. 4. The

petitioner has been paid salary for the initial two months i.e. June

and July, 2020 and thereafter, no salary has been paid to the

THE HIGH COURT OF MADHYA PRADESH WP.12820/2021 Deepak Sharma v. State of M.P. and Ors.

petitioner. Whenever, the petitioner approached the respondent no. 5

for payment of his salary then it was responded by respondent no. 5

that as the respondent no. 4. has not paid the amount to them,

therefore, they are not in a position to pay the salary to the petitioner.

Accordingly, the petitioner submitted an application dated

27.04.2021 to respondent no. 4 requesting for payment of salary,

however, no heed has been paid by respondent no.4. It is submitted

that during Covid-19 Pandemic period the petitioner has been

providing service to respondent no. 4 as per the direction/instructions

of respondents no. 4 and 5. It is submitted that respondent no. 4 is

principal employer therefore, it is duty bound to secure rights of the

petitioner being state instrumentality and cannot violate Articles 14

and 16 of the Constitution of India. It is submitted that getting work

done without making payment of salary amounts to Beggar and

forced labour. The Counsel for the petitioner has relied upon the

judgment passed by the High court of Telangana in the case of

Srinivasa Chary v. State of Telangnana order dated 17th of

August, 2020 passed in W.P. No. 4765/2018.

Per contra, the petition is vehemently opposed by the Counsel

for the State. It is submitted that by this petition the petitioner is

trying to get his contract enforced which was entered into between

himself and respondent no. 5. The petitioner is an employee of

respondent no. 5 and if he has any grievance regarding non-payment

THE HIGH COURT OF MADHYA PRADESH WP.12820/2021 Deepak Sharma v. State of M.P. and Ors.

of salary, then he has to avail the remedy available under the Civil

Law.

Heard the learned Counsel for the parties.

It is the case of the petitioner that since respondent no. 4 is

principal employer, then he is bound to ensure that the salary is paid

to the petitioner.

The petitioner has filed copy of the appointment order dated

03.06.2020 issued by respondent no. 5 by which the petitioner was

appointed as a Civil Engineer and posted at Government Medical

College, Shivpuri. Clause '6' of the appointment order reads as

under:-

"Your appointment with us is on a contractual basis and you cannot establish any employee- employer relationship with the client company.".

From the plain reading of the above mentioned stipulation

mentioned in the appointment order, it is clear that the petitioner was

already informed by respondent no. 5 well in advance that he would

not be in a position to establish any employer/employee relationship

with respondent no. 4 on account of his appointment as Civil a

Engineer by respondent no.5. The petitioner was well aware of the

fact that he cannot claim that respondent no. 4 is his principal

employer. It is the case of the petitioner that except for two months

i.e. June and July, 2020, he has not been paid salary by respondent

no. 5. Under these circumstances, this Court is of the considered

THE HIGH COURT OF MADHYA PRADESH WP.12820/2021 Deepak Sharma v. State of M.P. and Ors.

opinion that in the light of the stipulation of Clause '6' of the

appointment order, it cannot be said that respondent no. 4 has

become principal employer of the petitioner.

It is next contended by the Counsel for the petitioner that since

respondent no. 4 has not paid dues to the respondent no. 5, therefore,

he has been informed that respondent no. 5 is not in a position to pay

salary to the petitioner.

Thus, It is clear that petitioner wants to get execution of

contract executed between respondents no. 4 and 5. Undisputedly,

respondent no. 5 has not approached this Court. Primarily, the only

cause of action is against respondent no. 5.

It is well establish principle of law that the writ petition under

Article 226 of the Constitution of India is not maintainable against

private persons. Furthermore, writ petition under Article 226 is not

maintainable for enforcement of contractual obligation.

Accordingly, the petition is dismissed as not maintainable

with liberty to the petitioner to approach appropriate forum for

redressal of his grievance.

(G.S. Ahluwalia) Judge

ar

ABDUR RAHMAN 2021.07.24 13:42:47 +05'30'