Andhra Pradesh High Court - Amravati
A.V.V.B. Eeswara Rao, vs The State Of Andhra Pradesh, on 13 August, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.9789 of 2020
ORDER:
This writ petition is filed under Article 226 of the Constitution of India to issue Writ of Mandamus declaring the action of respondent No.1 in issuing the Memo No.ENDW/221/2020/Endt.I(2) dated 20.05.2020 and consequential Memo In. RC.NoA2/11/4/2020-2 dated 26.05.2020 issued by respondent No.2 as bad, illegal, arbitrary, void, violative of principles of natural justice, without jurisdiction and violative of Articles 14 and 21 of Constitution of India, and set aside the same and direct the respondents to implement the provisions of Section 65-A of A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short "the Act") for payment of salary of the employees of the Charitable and Hindu Religious Institutions & Endowments.
The petitioner is working as Senior Assistant, Sri Kukuteswara Swamy Devasthanam, Pitapuram, East Godavari District.
It is alleged that in view of the present situation prevailing the in the state because of the Epidemic COVID-19 and the economic consequences due to lock down, the cessation of the revenue inflow and extra burden imposed on the state's resources, the Government has issued G.O.Ms.No.26 Finance (HR-V-TFR-AL-EWF) Department dated 31.03.2020 ordered deferment of salary for the month of March 2020 to be payable in the month of April 2020 and stated that the same deferment would continue to be in force till further orders. The details of the deferment are as follows:
(i) There shall be (100)% deferment in respect of Hon'ble C.M / Hon'ble Ministers / Hon'ble M.L.As / Hon'ble M.L.Cs, Chairperson & Members of all Corporations, elected representatives of all Local Bodies & people holding equivalent posts, as per the orders issued from time to time.
MSM,J WP_9789_2020 2
(ii) There shall be (60)% deferment in respect of All India Service Officers viz.,IAS, IPS and IFS;
(iii) There shall be (50)% deferment in respect of all other Government employees, including work-charged employees & persons engaged under the category of direct individuals professions & through 3rd party, except Class-IV Employees;
(iv) There shall be (10)% deferment in respect of Class-IV, Out-sourcing, Contract and the Village & Ward Secretariat employees.
(v) The deferment mentioned in respect of Para 5(i), (ii), (iii) & (iv) supra shall be made applicable mutatis-mutandis in respect of the retired employees in the respective categories.
(vi) The above deferment shall be equally applicable to the serving & retired employees of all PSUs/Government aided Institutions /Organizations /Universities /Societies /Autonomous bodies/ Semi autonomous bodies, etc. in respect of their Salaries /Wages/Honorarium/Pensions.
Further, the Government has issued another G.O.Ms.No.27 Finance (HR-V-TFR-AL-EWF) Department dated 04.04.2020 partially modifying the earlier G.O.Ms.No.26 dated 31.03.2020 and ordered for payment of full eligible salary to the employees of the following departments:-
(i) Medical & Health Department
(ii) Police Department
(iii) Sanitation workers working in Rural Local Bodies/Urban Local bodies i.e. Nagar Panchayats/Municipalities/Municipal Corporations.
It is further alleged that in view of the extended lockdown till 3rd May 2020, the Government has issued G.O.Ms.No.37 dated 26.04.2020 continuing the deferment of salary for the month of April 2020 payable in May 2020 as per the percentage mentioned in G.O.Ms.No.26 dated 31.03.2020 and ordered payment of full pension to all the categories of pensioners. Further, the lock down was extended till 31st May 2020 by the Ministry of Home Affairs with certain relaxations, thereafter the State of Andhra Pradesh has MSM,J WP_9789_2020 3 issued certain guidelines for full functioning of all Government officer, including Secretariat and Heads of Departments.
It is further contended that as the office started functioning, the State Government of Andhra Pradesh has issued G.O.Ms.No.44 dated 22.05.2020 ordered to pay the salary without deferment from the month of May 2020 payable in the month of June 2020, wherein it has further ordered as follows for payment of deferred salary.
"6. Separate orders will be issued, basing upon the improvement in the flow of the revenues to the State Exchequer, regarding payment of the salaries/pensions already deferred. Separate orders shall also be issued regarding recoveries/deductions pertaining to the months of March and April & contribution to the CM Relief Fund by the employees.
7. The Special Chief Secretaries/Principal Secretaries/Secretaries to Government, DTA/ PAO/ DWA/ Registrars of Universities/Heads of Corporations/PSUs/ State Autonomous Bodies, all the Drawing and Disbursing Officers of HODs/ Secretariat Heads are requested to take suitable action in this regard"
Adhering to G.O.Ms.No.26 dated 31.03.2020 and G.O.Ms.No.37 dated 26.04.2020 the salary of the petitioner along with other temple staff are deferred and when the Government has issued G.O.Ms.No.44 dated 22.05.2020 for payment of full salary from the month of May 2020 payable in June 2020 and for payment of deferred amount as and when the flow of the revenues are increased, respondent No.1 has issued impugned Memo No.ENDW/221/2020/Endt.I(2) dated 20.05.2020 to evade payment of salary to the temple/ Charitable institution employees. The instructions in the said Memo are as follows:
"In the circumstances reported by the Commissioner of Endowments Department in the reference cited, Government permit the Commissioner to issued necessary instructions to all Executive Authorities of Endowments institutions in the state , for deferment of salaries to the employees working in the institutions, for a period of 3 months as proposed in view of the severe MSM,J WP_9789_2020 4 financial constraints being faced due to closure for temples due to Covid-19 lockdown with the following "
2. However , if any temple does not have financial resources to even pay wages at these above rates then they make suitable adhoc decision based on rational grounds to suit specific situation.
3. The Commissioner of Endowments Department, Vijayawada may take necessary action accordingly."
The petitioner contended that basing on the above Memo dated 20.05.2020 respondent No.2 Commissioner of Endowments has issued consequential impugned Memo in RC.No.A2/11/4/2020-2 dated 26.05.2020 directing all the concerned authorities to implement the orders of respondent No.2 issued in Memo No.ENDW/221/2020/Endt.I(2) dated 20.05.2020. Aggrieved by the action of respondent in issuing the impugned Memos the present writ petition is filed.
Respondent No.2 filed counter denying material allegations while admitting that a fund in compliance of Section 65A of the Act was created in the year 2014.
Further, it is contended by respondent No.2 that as per the Guidelines issued by the State, all the places of worship shall be MSM,J WP_9789_2020 5 closed for public. No religious congregations would be permitted without any exception, till 08.06.2020. The initial lockdown was imposed for a period of 21 days with effect from 25.03.2020, and the same was extended in a phased manner up to 08.06.2020 for Religious places/places of worship for public. Due to lockdown the Executive Authorities of the temples in the State have restricted the darshan in temples. The income of the temples totally depends on the offerings by the devotees, due to lockdown and stoppage of darshan to devotees, the income of the Temples drastically came down. As such the religious institutions are not in a position to pay the salary to the employees working in the Temples as usual for the time being. Even after re-starting/allowing darshan, the flow of the pilgrims may be less for few months due to the effect of Covid-19.
It is further contended by respondent No.2 that due to the financial constrains being faced by the institutions in the State, the Government after examining the matter in detail issued instructions for deferment of payment of salary for a period of three months duly fixing the percentage of deferment of salary basing on the Gross salary of each employee. After the financial position of the institutions became normal, the deferred part of salary of employees will be paid to the individuals. It is only an arrangement made in the interest of institutions, which are under the control of Endowments Department.
It is further contended that Sri Kukkuteswara Swamy Temple, Pithapuram is being administered by a Board of Trustees. The employees of an institution shall work under the control of Board of Trustees. The Trust Board and its employees shall obey the lawful directions issued by the Government from time to time in the interest MSM,J WP_9789_2020 6 of the institution. Further, the petitioner has no locus standi to question the orders issued by the Government in Memo No.ENDW/221/2020/Endt.I(2) dated 20.05.2020 and this office Memo in RC.No.A2/11/4/2020-2 dated 26.05.2020, prayed to dismiss the writ petition.
Sri D.V.Sasidhar, learned counsel for the petitioner, contended that respondents have no jurisdiction to issue the impugned Memos bypassing the policy decisions taken by the State of Andhra Pradesh vide G.O.Ms.No.26 dated 31.03.2020, G.O.Ms.No.37 dated 26.04.2020 and G.O.Ms.No.44 dated 22.05.2020. Further, the salary of the employees of temple/ charitable institutions is not paid from the exchequer of the state and the same are paid out of the income derived from the donations, hundi collections, income from the land, shops, sale of various Pooja tickets, prasadam, hair, coconut halves, books etc. As such, it is not a burden on the state exchequer in payment of salary of these employees.
It is further contended that as per the section 65(1) of the Act, the temples/religious institutions have to pay contributions @ 9% from the annual income towards the actual expenditure incurred by the above authorities. Hence the respondents and other authorities appointed by the government are only there to render their services for the development of the temples/ charitable institutions and for the well being of the employees who are the main pillars of these temples/ charitable institutions but not to issue the Memos placing the employees to severe hardship under the guise of the financial constraints. As per section 65(4) of the Act the temples/ charitable institutions even pays 1.5% of Audit Fee to the Government, as such the question of any free service rendered by the state does not arise.
MSM,J WP_9789_2020 7 Hence the employees of temples/ charitable institutions have every right to claim full salary.
As per the Section 69 of the Act, the Endowments Administrative Fund is established and the same is under the control of the Commissioner of Endowments. The amount collected towards contributions and audit fee as per section 65 of the Act will be credited this Administrative Fund. The amount in this fund runs into crores of rupees.
Learned counsel for the petitioner further contended that as the religious and secular employees are suffering as and when there is no income to the temples/institutions or the expenditure towards establishment charges including salary is crossing 30%, the State Government has taken policy decision and inserted statutory provision as per Act w.e.f. 3-01-2008 i.e. Section 65-A, which reads as follows:-
"A fund shall be created and vested with the Commissioner for the purpose of payment of salaries and other emoluments to all such Archakas, office holders and servants of Charitable and Hindu Religious Institutions and Endowments Published under section 6 of the Act who have been appointed by competent authorities as per the sanctioned cadre strength following the prescribed procedure. Every such institution shall pay contribution annually to such fund at the rate prescribed from their annual income as defined under sub-section (5) of section 65. The procedure for collection of contribution to and disbursement from the fund shall be such as may be prescribed."
As per the above provision the salary of the petitioner can be paid from the above fund, which provision was created as long back as in the year 2008 i.e. around 12 years back. Hence the issuance of impugned Memo without following the above statutory provision is violation of law, and the same is liable to be set aside.
MSM,J WP_9789_2020 8 Whereas, learned Government Pleader for Endowments vehemently contended that the financial resources of the State are dried up totally due to Covid-19 pandemic and the government was forced to incur huge amount to take safety measures for the health and lives of the citizenry of the State and that, keeping in view the guidelines issued by the Ministry of Home Affairs and Ministry of Health and Family Welfare, the State was forced to incur huge amount, besides loss of revenue during the lockdown period. When there is no sufficient revenue for the temple, liability of payment of salary became burden to the temple and the act of respondents cannot be said to be arbitrary, illegal or violative of any of the constitutional provisions, and the Court must take into consideration the situation prevailing during March to May 2020. Learned Government Pleader also further contended that the petitioner has no locus standi to file the present petition, requested to dismiss the petition.
Considering rival contentions, perusing the material on record, the points that arise for consideration are:
"Whether deferment/non-payment of part of the salary for the months of March, April and May 2020 payable in the months of April, May and June 2020 respectively is violative of Articles 21 and 300-A of the Constitution of India. If so, whether the impugned Memo No.ENDW/221/2020/Endt.I(2) dated 20.05.2020 issued by respondent No.1 and consequential Memo in RC.No.A2/11/4/2020-2 dated 26.05.2020 issued by respondent No.2 are liable to be set aside?
P O I N T:
It is not in dispute that by virtue of G.O.No.26 Finance (HR-V-
TFR-AL-EWF) Department dated 31.03.2020 the Government deferred payment of Salary/Wage/ Remuneration /Honorarium/Pension on gross basis, for the month of March, 2020 MSM,J WP_9789_2020 9 payable in the month of April, 2020, including pension for the month of March, 2020 referring the guidelines issued by the Ministry of Home Affairs and Disaster Management Act. The said G.O.No.26 Finance (HR-V-TFR-AL-EWF) Department dated 31.03.2020 reads as follows:
GOVERNMENT OF ANDHRA PRADESH ABSTRACT Finance Department - Disaster Management Act, 2005 - COVID-19 Pandemic - Payment of Salaries / Wages / Remuneration / Honorarium / Pensions - Deferment of payment - Orders - Issued. ----------------------
------------------------------------------------------------ FINANCE (HR-V-TFR-
AL-EWF) DEPARTMENT
G.O.Ms.No.:26 Dated: 31.03.2020
Read the following:-
1. The Disaster Management Act, 2005
2. MHA, GoI Order No.40-3/2020-DM-I(A), dated 24.3.2020.
3.G.O.Rt.No.216, Health Medical & Family Welfare (B2) Department, dated:24.03.2020.
*** ORDER: Whereas the COVID-19 outbreak has occurred in Wuhan, Hubei Province in China in December 2019, & has rapidly spread throughout the globe, with startling speed. The virulent strain of the virus & the ease of the spread of the contagion has led to the recognition of COVID-19 by the World Health Organisation (WHO) as a global pandemic.
2. Recognizing the extreme danger to Public Health and Safety, preventive measures are initiated by the State Governments across the country in coordination with Ministry of Health and Family Welfare.
3. Further, vide the G.O. mentioned in the reference 3rd read above, the Government of Andhra Pradesh has instituted a "Lockdown", till the 14th of April 2020, under the Disaster Management Act, 2005 as per the guidelines issued by the Ministry of Home Affairs, Government of India for the containment of the COVID-19 pandemic. Barring the essential services, all commercial/non-essential services have been shut down.
4. As a result of the above measures taken, while the revenue streams have totally dried up due to the lockdown, the demand on State resources has increased tremendously for contact tracing, quarantining, providing personal protection equipment, drugs, health facilities, etc. & for providing financial assistance to the poor people most affected by the lockdown.
5. Government, after careful consideration of the situation arising due to the COVID-19 outbreak, the economic consequences of the lock down, the cessation of the revenue inflows and extra burden imposed on the State's resources to contain the epidemic & to provide relief to the people affected/likely to be affected, hereby orders for the deferment of Salaries/Wages/Remuneration/Honorarium/Pensions on gross basis, as per the following pattern:
i. There shall be (100)% deferment in respect of Hon'ble C.M / Hon'ble Ministers / Hon'ble M.L.As / Hon'ble M.L.Cs, Chairperson & Members of all Corporations, elected representatives of all Local Bodies & people holding equivalent posts, as per the orders issued from time to time.
ii. There shall be (60)% deferment in respect of All India Service Officers viz., IAS, IPS and IFS;
iii. There shall be (50)% deferment in respect of all other Government employees, including work-charged employees & persons engaged under the category of direct individuals professions & through 3rd party, except Class-IV Employees;
iv. There shall be (10)% deferment in respect of Class-IV, Out-sourcing, Contract and the Village & Ward Secretariat employees.
v. The deferment mentioned in respect of Para 5(i), (ii), (iii) &
(iv) supra shall be made applicable mutatis-mutandis in MSM,J WP_9789_2020 10 respect of the retired employees in the respective categories.
vi. The above deferment shall be equally applicable to the serving & retired employees of all PSUs / Government aided Institutions / Organizations / Universities / Societies / Autonomous bodies / Semi autonomous bodies, etc. in respect of their Salaries/Wages/Honorarium/Pensions.
6. The above orders shall come into force in respect of the Salary/Wages/ Remuneration/Pensions for the month of March 2020, payable in the month of April 2020 and will continue to be in force till further orders.
7. In case of the Bills which are already uploaded for payment, the deferment shall be centrally effected through the CFMS.
8. In case of the Bills pertaining to the month of March 2020 which are yet to be uploaded in CFMS, the Bills shall be passed only after effecting the provisions of this G.O. read in Para 5 (i) to (vi).
9. The DTA/PAO/DWA and all the Drawing & Disbursing Officers shall ensure that the above order is implemented, without any deviation. (BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) NILAM SAWHNEY CHIEF SECRETARY TO GOVERNMENT It is equally not in dispute that, by virtue of G.O.Ms.No.27, the salary payable to Medical & Health Department, Police Department, Sanitation workers working in Rural Local Bodies/Urban Local Bodies i.e Nagar Panchayats/Municipalities/Municipal Corporations is ordered to be paid and whereas in the later G.O.Ms.No.37 dated 26.04.2020, certain percentage of salary payable to the government servants of the state for the month of April 2020 was also deferred. Basing on the said G.Os, respondents issued impugned memos. By virtue of said impugned memos, part of salary of the petitioner for the months of March, April and May 2020 was deferred.
Coming to deferment of salary, the contention of the petitioner is that a salary payable to an employee cannot be deferred to any extent, except authorized by law.
The word 'salary' is not defined in any enactment, but salary is a fixed regular payment, typically paid on a monthly basis but often expressed as an annual sum, made by an employer to an employee. Thus, salary is a form of payment from an employer to an employee, which may be specified in an employment contract. It is contrasted with piece wages, where each job, hour, or other unit is paid MSM,J WP_9789_2020 11 separately, rather than on a periodic basis. In accounting, salaries are recorded on payroll accounts. Though the word 'salary' was not specifically defined under any statute, the Court may fall back on the law laid down by the Apex Court in various judgments and dictionary meaning of salary.
According to Cambridge dictionary, "salary" is defined as the total amount of money that an employee is paid every year to do their job, or one of the payments they receive each month as part of the job.
In Collins dictionary, "salary" is the money that someone is paid each month by their employer.
The word 'property' is inclusive of both movable and immovable property, both pension and salary payable to an employee can be said to be part of the property, as held by the Apex Court in Madhav Rao Scindia Vs. Union of India1, where the Apex Court opined that that Prievy Purse payable to ex-rulers is property. In K. Nagraj Vs. State of A.P2, Apex Court opined that right of person to his livelihood is property which is subject to rules of retirement. In State of Kerala Vs. Padmanabhan3 the Apex Court opined that right of pension is property under the Government service Rules, In Madhav Rao Scindia Vs. State of M.P4, and State of M.P. Vs. Ranojirao5, the Apex Court opined that property in the context of Article 300-A includes 'money', salary accrued pension, and cash grants annually payable by the Government; pension due under Government Service Rules; a right to bonus and other sums due to employees under statute.
1 AIR 1971 SC 530 2 AIR 1985 SC 553 3 AIR 1985 SC 356 4 AIR 1961 SC 298 5 AIR 1968 SC 1053 MSM,J WP_9789_2020 12 In view of the definitions referred above, salary is an amount payable by an employer to an employee for the service rendered by him under a tacit contract of employment. In the present case, there is a contract for payment of salary between the endowments department and its employees on their reporting to duty consequent upon their appointment to service. When, there is a contact between the employee and employer for payment of salary either monthly or annually, duty of the State is to pay salary as agreed. Article 72 of the Andhra Pradesh Financial Code deals with claims of government servants, due date for payment of pay, allowance etc and it reads as follows:
(a) Except as provided in clauses (b) and (c) the pay and allowances, leave salary and other monthly recurring payments of all the State Government employees and also the salaries/wages to work-charged establishments and menials paid from contingencies become payable on the last working day of the month to which they relate except for the month of March which shall be paid on the first working day of April. In case the last working day of the month happens to be a bank holiday, the disbursement shall be made on the previous working day.
(b) (i)(a) The persons become due for payment only on the expiry of the month to which they relate. However, when the first day (including Sunday) of the following month is a public holiday, on which funds for disbursement of pensions cannot be drawn from the Treasury or the Bank, as the case may be, the pensions shall be paid on the last working day of month to which they relate except for the month of March which shall be paid on the first working day of April. However, in such cases other than March if the last working day of the month also happens to be a Government holiday or Bank holiday, disbursement shall be made on the previous working day.
(b)(i)(b) Pensions which are paid through Banks and Post Offices are to be paid on the last working day of each month except for MSM,J WP_9789_2020 13 the month of March which shall be paid on the first working day of April. However, in such cases other than March if the last working day of the month also happens to be a Bank or Postal holiday disbursement shall be made on the previous working day.
(c) The payment due for a part of a month should ordinarily be made at once without waiting till the end of the month in the following circumstances:-
(1) When a Government servant proceeds out of India on deputation, leave or vacation, and does not elect to draw leave salary in India under the provisions of Fundamental Rule 91. (2) When a Government servant is transferred to another Audit Circle, or within the same Audit Circle and -
(i) to or from the Public Works Department or the Forest Department,
(ii) from one Public Works Division to another, or
(iii) from one department to another so that there is a change in the controlling authority, or
(iv) to or from famine duty.
(3) When a Government servant is promoted from a non-
gazetted to a gazetted post or reverted from a gazetted to a non-gazetted post in circumstances involving a transfer from one office to another.
(4) When a Government servant finally quits the service of the Government or transferred to foreign service. (5) When a portion of a civil pension is commuted, in which case the amount of the unreduced pension due up to the day preceding that on which the commutation takes effect should be paid along with the commuted value of the portion commuted.
In view of Article 72 of the Andhra Pradesh Financial Code, it is the duty of the State to pay salary on the last working day of the month of a government servant on presentation of bills. Non- payment of salary would amount to denial of livelihood. When a specific fund is created for payment of salary under Section 65-A of the Act, applicability of Article 72 of Financial Code is doubtful.
MSM,J WP_9789_2020 14 Payment of salary to the employees is only to eke out their livelihood during their service. If, whole or part of the salary is deferred, it amounts to denial of right to life guaranteed under Article 21 of the Constitution of India. Initially, right to livelihood was not recognized as fundamental right under Article 21 of the Constitution of India. But, later it was recognized as Fundamental Right by judicial interpretation to Article 21 of the Constitution of India.
Article 21 of the Constitution of India guarantees right to life. The right to life includes the right to livelihood. Time and again the Courts in India held that Article 21 is one of the great silences of the Constitution. The right to livelihood cannot be subjected to individual fancies of the persons in authority. The sweep of the right to life conferred by Article 21 is wide and far reaching. An important facet of that right is the right to livelihood because, no person can live without the means of living i.e. the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation.
In Re: Sant Ram6 a case which arose before "Maneka Gandhi Vs. Union of India7", the Supreme Court ruled that the right to livelihood would not fall within the expression "life" in Article
21. The Court observed:
"The argument that the word "life" in Article 21 of the Constitution includes "livelihood" has only to be rejected. The question of livelihood has not in terms been dealt with by Article 21."
6 AIR 1960 SC 932 7 AIR 1978 SC 597 MSM,J WP_9789_2020 15 In "Olga Tellis Vs. Bombay Municipal Corporation8" the Apex Court held as follows:
"If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21."
(Emphasis is supplied).
The right to live with human dignity, free from exploitation is enshrined in Article 21 and derives its life breadth from the Directive Principles of State Policy and particularly Clauses (e) and (f) of Article 39 and Articles 41 and 42 and at least, therefore, it must include the right to live with human dignity, the right to take any action which will deprive a person of enjoyment of basic right to live with dignity as an integral part of the constitutional right guaranteed under Article 21 of the Constitution of India.
In "Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress9", the Supreme Court while reiterating the principle observed that the right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. Income is the foundation of many fundamental rights. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them.
The Apex Court in various judgments interpreted the right to livelihood is a part of right to life under Article 21 of the Constitution 8 AIR1986SC180 9 (1991)ILLJ395SC MSM,J WP_9789_2020 16 of India and it is relevant to refer the principle in "M. Paul Anthony Vs. Bharat Gold Mines Limited10, the Apex Court held that when a government servant or one in a public undertaking is suspended pending a departmental disciplinary inquiry against him, subsistence allowance must be paid to him. The Court has emphasized that a government servant does not loose his right to life. However, if a person is deprived of such a right according to the procedure established by law which must be fair, just and reasonable and which is in the larger interest of people, the plea of deprivation of the right to livelihood under Article 21 is unsustainable.
Thus, in view of the law laid down by the Apex Court in various judgments (referred supra), widening the meaning of word 'right to life' includes 'right to livelihood', right to livelihood is a fundamental right, and it is an integral part of right to life guaranteed under Article 21 of the Constitution of India. Therefore, non-payment of part of eligible salary and pension to the employees in service and to the employees retired from service by issuing G.O.Ms.No.26 dated 31.03.2020 and G.O.Ms.No.37 dated 26.04.2020 is violative of Article 21 of the Constitution of India.
The major contention of the petitioner from the beginning is that, deferment of part of salary and non-payment of pension as stated above, is contravention of Article 300 of the Constitution of India. No doubt, as per Article 300-A of the Constitution of India, no citizen of India be deprived of his/her right to property, except by authority of law. As salary form part of property of an individual to 10 AIR 1999 SC 1416 MSM,J WP_9789_2020 17 attract Article 300-A of the Constitution of India, such right cannot be taken away except by authority of law.
On a bare look at Article 300-A of the Constitution of India, any citizen of India cannot be deprived of their right to property, except by authority under law. That means a property of any citizen of India cannot be taken away, unless the State is authorized to do so. In "Shapoor M. Mehra Vs. Allahabad Bank11", wherein Bombay High Court opined that retiral benefits including pension and gratuity constitute a valuable right in property.
In "Deoki Nandan Prasad Vs. State of Bihar" (referred supra), the Apex Court held as follows:
"(i) The right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no powers to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by sub-article (5) of Article 19. Therefore, it follows that the order denying the petitioner right to receive pension affects the fundamental right of the petitioner under Article 19(1)(f) and 31(1) of the Constitution and as such the writ petition under Article 32 is maintainable."
11. In the light of aforesaid legal position, it is crystal clear that right to get the aforesaid benefits is constitutional right. Gratuity or retiral dues can be withheld or reduced only as per provision made under M.P. Civil Services (Pension) Rules, 1976. In the present case, there is no material on record to show that respondents have taken any action in invoking the said rules to stop or withhold gratuity or other dues..."
Thus, both salary and pension payable to the employees in service or retired from service falls within the definition of property under in Article 300-A of the Constitution of India.
Though the Constitution of India permits the State to deprive any person's right in property by authority of law, the respondents were unable to show any provision which authorized the State to defer payment of part of salary to the employees in service. In the absence of any statute governing deferment of salary, deprivation of right to property by employees in service even temporarily would amount to violation of constitutional right guaranteed under Article 11 (2012) 3 Mah.L.J 126 MSM,J WP_9789_2020 18 300-A of the Constitution of India. In this regard, it is profitable to mention few judgments of the Apex Court and other Courts with regard to right of the state to defer payment of salary, pension etc. In "Dr.Smt. Manmohan Kaur Vs. The State of M.P12" the Gwalior Bench of Madhya Pradesh High Court had an occasion to deal with non-payment of salary and pensionary benefits, held that deferment or non-payment of salary or part of it is illegal. In another judgment of High Court of Madhya Pradesh in "Suresh Kumar Dwivedi and others Vs. State of Madhya Pradesh13" held that the dignity of a man is inviolable, as enshrined in Article 21, which cannot assured unless his personality is developed, and the only way to do that is to educate him. Thus, the Directive Principles which are fundamental in the governance of the country, cannot be isolated from the fundamental rights guaranteed under Part III of the Constitution. These principles have to be read into the fundamental rights. Both are supplementary to each other. The Court referred the earlier case of a Division Bench in "Siddhi Bala Bose Library Association Vs. State of Mahdya Pradesh14" while considering the validity of Section 5 of the Act, after referring to various provisions of the Act in some detail, in paragraph 4 has observed that the provisions of the Act mainly provide for a machinery to ensure payment of full salary in time without any unlawful deduction to recognized teachers and other employees every month through the treasury, availability of enough funds for this purpose and utilization of the amount of grant and most of the fees received from the students to make this payment. The Act has also made provisions to 12 W.P.No.3208 of 2011 dated 08.12.2014 13 1993 (0) MPLJ 663 14 1979 MPLJ 379 MSM,J WP_9789_2020 19 secure the tenure of service of teachers, etc. and provide for recruitment of suitable staff. Suitable provision has also been made to ensure compliance of the provisions by the management of the private educational institutions. To secure payment of salary within time before the expiry of 20th of each month without any unauthorised deduction, as required by Section 3, Section 5 provides for constitution of 'Institutional Fund.' Various sub-clauses of this section show that the Institutional Fund is constituted mainly for the purpose of disbursement of salary of teachers and employees of that institution in the manner specified in Section 5 itself. The Education Officer or his nominee under Sub-section (7) is not empowered to act otherwise, his function is only to ensure that the money available in the Institutional Fund is utilized for the purposes specified and that it is done efficiently.
In North Malaysia Distributors Sdn Bhd Vs. Ang Cheng Poh15, the Malaysian Court held that the employer's unilateral reduction of an employee's salary constituted a significant breach of going to the root of the contract of employment. Such breach shows that the employer is no longer wants to be bound by one of the essential terms of the contract. That being said, there are certain situations in which a unilateral salary reduction may be permissible where an employee is legitimately demoted, the demotion will usually come with a salary reduction to reflect the employee's lower job ranking. Some companies may also choose to impose salary cuts as an alternative to retrenchment. In such situations, in the event of a dispute, the Industrial Court will examine all circumstances as a whole to determine whether the salary cut was an unfair labour 15 (2001) 3 ILR 387 MSM,J WP_9789_2020 20 practice. In the event the employee feels that the salary cut is not made in good faith, she/he can consider filing a claim of constructive dismissal on the basis that the salary reduction is a fundamental breach of contract.
There is a distinction between pay docking of employees and deferment of salary. Pay docking is nothing but reduction of employee's salary. Docking the pay of exempt employees is permissible in certain circumstances. In the instant case, complaint of the petitioner is not about pay docking, but it is only a deferment of part of the salary or pension. However, such deferment is contrary to law laid down by various courts, as referred in the earlier paragraphs, since no law authorizes the government to permit the employer to defer payment of salary which is payable on the last working day of the same month, as per Article 72 of Andhra Pradesh Financial Code. Therefore, in the absence of any authority of law, deferment of part of salary amount to violation of constitutional right guaranteed under Article 300-A of the Constitution of India, since such deferment is without any authority of law.
At this stage, it is relevant to refer the meaning of 'authority of law'. The Apex Court while considering the word used 'law' under Article 13 and 300-A of the Constitution of India, construed the meaning of word "Law" not only with reference to Article 13 of the Constitution of India, but also with reference to Article 300-A and 31C of the Constitution of India. The Apex Court in "Bidi Supply Co. Vs. Union of India16" and "Edward Mills Co.Ltd. Vs. State of Ajmer17" held that the law, in this Article, means the law made by the legislature and includes intra vires statutory orders. The orders 16 AIR 1956 SC 479 17 AIR 1955 SC 25 MSM,J WP_9789_2020 21 made in exercise of power conferred by statutory rules also deemed to be law. (Vide: State of M.P. Vs. Madawar G.C.18") The Law does not, however, mean that an administrative order which offends against a fundamental right will, nevertheless, be valid because it is not a "law" within the meaning of Article 13 (3) of the Constitution of India (Vide: Basheshar Nath Vs. C.I.T.19 and "Mervyn Coutindo Vs. Collector, Customs Bombay20") Therefore, whatever legislation made by the Legislature or Parliament alone can be said to be law within the meaning Article 13 (3) of the Constitution of India. At the same time, the Apex Court in "Bishambhar Dayal Chandra Mohan Vs. State of Uttar Pradesh21" while deciding the issue with reference to Article 300-A of the Constitution of India defined the word "authority of law", held that Article 300-A provides that no person shall be deprived of his property save by authority of law. The State Government cannot while taking recourse to the executive power of the State under Article 162, deprive a person of his property. Such power can be exercised only by authority of law and not by a mere executive fiat or order. Article 162, as is clear from the opening words, is subject to other provisions of the Constitution. It is, therefore, necessarily subject to Article 300A. The word 'law' in the context of Article 300A must mean an Act of Parliament or of a State Legislature, a rule, or a statutory order; having the force of law, that is positive or State made law.
18 1955 (1) SCR 599 19 AIR 1959 SC 149 20 AIR 1967 SC 52 21 AIR 1982 SC 33 MSM,J WP_9789_2020 22 In "Hindustan Times Vs. State of U.P.22" the Apex Court while referring to "Bishambhar Dayal Chandra Mohan Vs. State of Uttar Pradesh" (referred supra) held as follows:
"By reason of the impugned directives of the State the petitioners have been deprived of their right to property. The expression 'law', within the meaning Article 300A, would mean a Parliamentary Act or an Act of the State Legislature or a statutory order having the force of law."
Thus, in view of the law laid down by the Apex Court in the judgments (referred supra), law means the legislation passed by the parliament or State Legislation or Statutory rules or orders.
No doubt, as discussed above, right to livelihood of a person can be deprived by authority of law. Article 300-A of the Constitution of India, protects right of an individual, but such right in the property can be deprived of save by authority of law.
The right to property is now considered to be not only a constitutional or a statutory right, but also a human right. Though, it is not a basic feature of the constitution or a fundamental right, human rights are considered to be in realm of individual rights, such as the right to health, the right to livelihood, the right to shelter and employment etc. Now, human rights are gaining an even greater multi faceted dimension. The right to property is considered, very much to be a part of such new dimension (Vide: Tukaram Kanna Joshi Vs. M.I.D.C.23) Right to property of a private individual, though, permitted to be deprived of, it must be by authority of law. Still, Article 25 (1) of the Universal Declaration of Human Rights recognized such right in property as human right, which reads as follows:
"Everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food,
22 AIR 2003 SC 250 23 AIR 2013 SC 565 MSM,J WP_9789_2020 23 clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control."
India is a State Party to the declaration, but the right to property is not being considered as human right till date by many Courts. Right to property in India at present protected not only under Article 300-A of the Constitution of India, but also recognized as human right under Article 25 (1) of the Universal Declaration of Human Rights. A liberal reading of these two provisions, the intention to protect the owners of either movable or immovable only from Executive fiat, imposing minimal restrictions on the power of the State. This is in sharp contrast to the language adopted in the Indian Constitution.
Learned Government Pleader for Endowments explained the State's economic crunch, lack of resources to meet the liability to pay full salary to the employees during the months of March, April and May 2020 and as to how the resources are dried up in the department is explained while narrating the facts in the counter filed by the respondent.
No doubt, on account of lockdown, there was no activity in the temples, as a matter of fact, in the Country as well as State's generation of income or tax by the Government is reduced to minimum extent including income to temples on account of lockdown. Merely because the department is without any resources to meet the liability to pay full salary to the employees, they cannot be deprived of their right to property in the absence of any authority of law. But, when the State is under any obligation to pay salary to employees, the financial constraints is not relevant for disowning the liability to pay the full salary to the employees of the department.
MSM,J WP_9789_2020 24 Justice Krishna Iyer in "Municipal Council Ratlam Vs. Shri Vardichand24", while rejecting the plea of financial difficulty of the Municipal Council in effectively protecting the Right to Health of the citizens, had observed as follows:
"Affirmative action to make the remedy effective is of the essence of the right which otherwise becomes sterile. A responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability. Decency and dignity are non-negotiable facets of human rights".
Of course, I agree that law is realistic and not idealistic. What cannot be performed under given circumstances cannot be prescribed as a norm to be carried out. From that angle, the progressive taxation system of the country gives enough powers to the government to make its revenue systems workable. However, in a Constitutional Democracy, it cannot be accepted that the financial difficulties of the government can override the rights of the citizens.
Applying the principle laid down in the above judgment to the present facts of the case, the financial resources of the department are dried up to meet the liability to pay salary is not a ground and the department cannot run away from discharging its duty to pay salaries having extracted work from the employees and such act is violative of the fundamental right guaranteed under Articles 21 and Constitutional right under Article 300-A of the Constitution of India and Human Right under Article 25(1) of Universal Declaration of Human Rights. Hence, the plea of lack of financial resources to meet the liability is not a ground to defer payment of salary.
The deferred salary for the months of March to May 2020 is not yet paid to the petitioner on the ground of lack of financial resources. As discussed above, it is not a ground to defer part of salary, and for the delay in payment of salary, the respondent- department is liable to pay interest on deferred part of salary, as held by the Apex Court in "Union of India Vs. Justice S.S. 24 AIR 1980 SC 1622 MSM,J WP_9789_2020 25 Sandhawalia (Retd.) and others25", "D.D. Tewari (dead) through LRs Vs. Uttar Haryana Bijli Vitran Nigam Limited and others26". In view of the law declared by the Apex Court in the judgments referred supra, the employees are entitled to claim interest on the deferred part of salary at the rate of 12% P.A. Though no interest is claimed, since the jurisdiction under Article 226 of the Constitution of India is equitable and the Court has to render justice to the litigant. Hence, by exercising equity jurisdiction, interest at the rate of 12% P.A. on the deferred salary is awarded.
State Government issued G.O.Ms.No.26 Dated 31.03.2020 and G.O.Ms.No.37 dated 26.04.2020 for deferment of salary depending upon the cadre of the officers. Based on the above Government Orders; State issued Memo No.ENDW/221/2020/Endt.I (2) dated 20.05.2020 instructed the Commissioner to issue necessary instructions in the State, for deferment of salary to the employees working in the Institutions, for a period of 3 months, depending upon various cadres mentioned below.
25 (1994) 2 SCC 240 26 2014 (8) SCC 894 MSM,J WP_9789_2020 26 Based on the said Memo; the Commissioner of Endowments Department issued Memo in Rc.No.A2/11/4/2020-2 dated 26.05.2020 issued necessary instructions for deferment of salary.
The G.O.Ms.No.26 Dated 31.03.2020 and G.O.Ms.No.37 dated 26.04.2020 are limited only for deferment of salary for the months of March and April 2020, but for one reason or the other, respondents issued impugned Memos contrary to the said Government Orders. Therefore, the impugned memos to the extent of deferment of salary for the month of May, 2020 are contrary to G.O.Ms.No.26 Dated 31.03.2020 and G.O.Ms.No.37 dated 26.04.2020. Even otherwise, the very deferment of salary to the employees of the department is illegal as discussed in the earlier paragraphs.
Another striking feature in the present facts of the case is that according to Section 65-A of the Act, a fund shall be created and vest with the Commissioner for the purpose of payment of salary and other emoluments to all such Archakas, office holders and servants of Charitable and Hindu Religious Institutions and Endowments Published under section 6 of the Act who have been appointed by competent authorities as per the sanctioned cadre strength following the prescribed procedure. Every such institution shall pay contribution annually to such fund at the rate prescribed from their annual income as defined under sub-section (5) of section 65. The procedure for collection of contribution to and disbursement from the fund shall be such as may be prescribed. Therefore, the institutions which are notified under Section 6 of the Act are under statutory obligation to pay contribution annually to such fund at the rate prescribed from their annual income. The fund created under MSM,J WP_9789_2020 27 Section 65A of the Act is known as "Archakas, other office holders and servants' salary and other emoluments fund."
In the counter, respondent No.2 admitted that the fund in terms of Section 65A of the Act was created in the year 2014 for payment of salary to Archakas, other office holders and servants working in the religious institutions. When such fund is created in compliance of Section 65A of the Act, the question of deferment of payment of salary to any extent does not arise.
The very purpose of creation of such fund under Section 65A of the Act is to pay salary to Archakas, other office holders and servants working in the temple irrespective of funds available with the State to meet the liability to pay salary to the persons referred above. If for any reason, the salary is not being paid to Archakas, other office holders and servants' working in the religious institutions, it is difficult for them to eke out their livelihood and they are bound to starve while discharging their duties in the temples even in Covid-19 season also. When statutory obligation is created by the Statute on the authorities under the Act, they have to implement the same in its letter and spirit.
However, similar issue to the extent of deferment of salary and pensions payable to the Government employees and retired employees was already decided by the Division Bench of this Court in WP (PIL) No.128 of 2020.
Further, none of the provisions of the Disaster Management Act, more particularly, Chapter III which deals with State Disaster Management Authorities consisting of Sections 14 to 24. In the absence of any provision in the Disaster Management Act, to defer payment of salary either in part or in full, I can safely hold that the MSM,J WP_9789_2020 28 impugned memos are not based on any authority of law, except executive fiat, thereby the impugned memos shall be declared as arbitrary and illegal and violative of fundamental rights.
In the result, the writ petition is allowed declaring the action of respondent No.1 in issuing the Memo No.ENDW/221/2020/Endt.I(2) dated 20.05.2020 and consequential Memo In. RC.NoA2/11/4/2020-2 dated 26.05.2020 issued by respondent No.2 as bad, illegal and arbitrary besides violative of Article 14, 21 and 300-A of the Constitution of India, and the said memos are hereby set aside. The State Government/Respondent Nos. 1 & 2 are directed to pay deferred salary/wage/remuneration /Honoraria on gross basis to all cadres of Archakas, other office holders and servants working in the Charitable and Hindu Religious Institutions and Endowments published under Section 6 of the Act for the months of March, April and May 2020 payable in the months of April, May and June 2020 respectively, within two months from today, together with interest @ 12% per annum on the deferred salary. No costs.
The miscellaneous petitions pending, if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 13.08.2020 Ksp