Andhra Pradesh High Court - Amravati
P Subramanyam vs The State Of Ap on 25 February, 2021
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.14770 OF 2020
ORDER:
This writ petition is filed under Article 226 of the Constitution of India, seeking the following relief:
"To issue WRIT OF MANDAMUS declaring the action of the 3rd and 4th Respondents in not paying Gross salaries to the Petitioners on par with other Regular Non-teaching staff from the month of April 2019 is as illegal arbitrary and consequently direct the 3rd and 4th Respondent to pay Gross salaries to the Petitioners including arrears of gross salary from April 2019"
Eighteen petitioners filed this writ petition for the relief stated supra, alleging that the third respondent herein/Sri Kalahastheeswara Swamy Vari Devasthanam, Srikalahasti is a public religious institution published under Section 6(a)(ii) of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short 'the Act') and the same is under the administrative control of the Executive Officer appointed by the Government and registered under Section 43 of the Act.
The fourth respondent/Sri Kalahasteswara Institute of Technology was established with the funds of the third respondent vide G.O.Ms.No.875 Revenue (Endowments.II) dated 17.11.1997. The Government of Andhra Pradesh has accorded permission to the third respondent to establish an engineering college in the name of the fourth respondent with the approval of the All India Council for Technical Education (AICTE), New Delhi vide G.O.Ms.No.299 Education (E.C-II) Department dated 24.09.1997 with four B.Tech courses namely Computer Science Engineering, Electronics and Communication Engineering, Mechanical MSM,J WP_14770_2020 2 Engineering, Electrical & Electronics Engineering with an intake of 60 seats in each branch.
All the administrative affairs of the fourth respondent are under the control of the Governing Body headed by the Commissioner, Endowments Department, who is the Chairman of the fourth respondent Governing Body. The entire funds incurred for the establishment of the fourth respondent institution are borne by the third respondent.
The petitioners are appointed in different categories and in different pay-scales. A copy of the appointment order of the first petitioner - P. Subramanyam is placed on record at Page No.24 of the writ affidavit, to show that he is sanctioned pay scale and other allowances such as DA and HRA, and it reads as follows:
"In pursuance of the Governing Body Resolution 1st cited read with the orders passed by the Three Men Committee consisting of the Chairman, Board of Trustees, Sri Kalahastheeswara Swamy Vari Devasthanam, Srikalahasthi, Executive Officer, cum Correspondent of SKIT and the Principal, SKIT in the meeting held on 04.02.2006, the services of Sri P. Subramanyam, working as Junior Assistant/Steno in the Sreekalahastheeswara Institute of Technology are hereby ordered with effect from 01.02.2006 and he is sanctioned the Pay Scales 1989 approved by the Govt. of A.P i.e. Rs.3290-82- 3450-100-3950-120-4550-150-5300-170-6150-200-6550 per month.
Accordingly, the Basic Pay of Sri P. Subramanyam, Junior Assistant/Steno is fixed at Rs.3290-00 per month in the above Time Scales of Pay with effect from 01.02.2006. He is also eligible for all the other allowances such as DA & HRA, etc., applicable to the above Pay Scales. Necessary entries will be made in the S.R of the incumbent."
It is the contention of the petitioners that the fourth respondent failed to pay salary to these petitioners from April, 2019. However, a copy of the proceedings is produced which shows salary particulars of the employees furnished by the Principal MSM,J WP_14770_2020 3 disclosing that the amount payable to each individual employee along with bank account details. Therefore, the petitioners were appointed on agreement to pay salary, which is shown in the salary particulars issued by the Principal of the fourth respondent institution. But, for one reason or the other, salary is not being paid from April, 2019 onwards, except paying the basic pay. Thus, deferred payment of DA and other allowances on the basic pay, payable to them. The petitioners questioned the same in the present writ petition on the ground that it is violative of Articles 14, 21 and 300-A of the Constitution of India, as it is a case of part deprivation of benefits payable to these petitioners.
Respondent No.3 filed counter affidavit, admitting everything, except pleading that there were no admissions in the college for the past two years and the present strength of the college is around 30 to 40 students per year. It is submitted that as on date, both the teaching and non-teaching staff as on date is approximately 70 members. The amount whatever collected as fee from the students is being spent for the salaries and in fact the management intended to close the institution and addressed a letter to the Commissioner of Endowments seeking permission to close the institution, but permission was not accorded to the fourth respondent to close the institution. Therefore, due to financial problem, the institution could not be run and part of the salary could not be paid, but not otherwise. Along with the counter affidavit, the third respondent furnished details of admission from 2009 to 2021 to establish that there were no admissions during several years and even if there are admissions, they are minimum. Therefore, in those circumstances, the respondents could not pay MSM,J WP_14770_2020 4 total salary to these petitioners and requested to dismiss the writ petition.
During hearing, Sri Davuluri Narasimha Rao, learned counsel representing Sri Rama Krishna Akurathi, learned counsel for the petitioners, while reiterating the contentions urged in the affidavit, has drawn attention of this Court to the judgment passed by learned single Judge of this Court in T. Janardhana Chari and others v. State of Andhra Pradesh1 to contend that similarly placed employees are being paid the total salary by the respondents in pursuance of the order and denial of the same benefit and non-payment of part of the salary to these petitioners is illegal, arbitrary and requested to extend the same benefit, as extended to the petitioners in the judgment referred supra.
Sri G. Ramana Rao, learned Standing Counsel for Endowments opposed the petition while demonstrating the financial incapacity of the institution to meet the expenditure to pay gross salary. Therefore, when the institution itself is in financial crunch, insisting the respondents to pay entire salary may amount to creating additional burden on the institution which could not be run as on today.
Learned Standing Counsel for Endowments has also drawn attention of this Court to the letter L.Dis.No.C1/28370/2016 dated 13.07.2017 addressed by Assistant Commissioner of Endowments to the Executive Officer, Sri Kalahasteeswara Swamy Devasthanam, Srikalahasthi, Chittoor District, directing the latter to pay salaries (basic pay) to the teaching and non-reaching staff of 1 W.P.No.9037 of 2019 dated 12.07.2019 MSM,J WP_14770_2020 5 the fourth respondent institution from the Devasthanam funds from November, 2016 onwards upto financial strengthening of the institution.
Apart from that, Section 72 of the Act does not permit spending any amount by the temple on the engineering colleges, except for religious institutions specified therein. Therefore, no amount could be diverted from the temple to the fourth respondent institution to meet the demands of these petitioners. hence, malafides for non-payment of part of the salary cannot be attributable to the respondents, but it was due to financial difficulties of the institution and requested to dismiss the writ petition.
Considering rival contentions, perusing the material available on record, the point that arises for consideration is:
Whether non-payment of part of dearness allowance and other allowances amounts to denial of payment of salary. If so, whether such act of the respondents is violative of Articles 14, 21 and 300-A of the Constitution of India. if so, whether a direction by way of writ of mandamus be issued to the fourth respondent for payment of gross salary from the month of April, 2019 together with arrears (after deducting basic pay already paid) to these petitioners?
P O I N T:
Undoubtedly, there are financial difficulties to the fourth respondent to meet the expenditure to run the institution. But, such difficulty itself is not a ground to deny payment of gross salary to the employees of the fourth respondent institution.
MSM,J WP_14770_2020 6 However, an identical question came up before the Division Bench of this Court in Smt. Dinavahi Lakshmi Kameswari v. The State of Andhra Pradesh2, wherein, the State pleaded financial difficulties to pay salaries to the employees due to Covid pandemic. But, the Division Bench of this Court (to which I am a member) held that non-payment of salary, if not authorized by law, is violation of Article 300-A of the Constitution of India and awarded interest 12% per annum on the deferred salary. The matter was carried to Supreme Court by way of Special Leave to Appeal (c) No.12553 of 2020, wherein the Apex Court while affirming the order of the Division Bench of this Court, scaled down the interest from 12% to 6%. Therefore, based on the judgment of the Apex Court in the judgment referred supra, interest at the rate of 6% on the arrears of salary payable to the petitioner is to be awarded.
Even otherwise, coming to deferment of salary, the 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 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 2 2020 (5) ALT 77 MSM,J WP_14770_2020 7 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 v. Union of India3, where the Apex Court opined that that Prievy Purse payable to ex-rulers is property. In K. Nagraj v. State of A.P4, Apex Court opined that right of person to his livelihood is property which is subject to rules of retirement. In State of Kerala v. Padmanabhan5 the Apex Court opined that right of pension is property under the Government service Rules, In Madhav Rao Scindia Vs. State of M.P6, and State of M.P. Vs. Ranojirao7, 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.
Thus, in view of the definitions referred above, salary is an amount payable by an employer to an employee for the service 3 AIR 1971 SC 530 4 AIR 1985 SC 553 5 AIR 1985 SC 356 6 AIR 1961 SC 298 7 AIR 1968 SC 1053 MSM,J WP_14770_2020 8 rendered by him under a tacit contract of employment. In the present case, there is a contract for payment of salary between the State 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 or institution to pay salary as agreed.
Payment of salary or pension to the employees is only to eke out their livelihood during their service by way of salary and after retirement by way of pension. If, whole or part of the salary or pension 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, that is, 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 MSM,J WP_14770_2020 9 his right to life would be to deprive him of his means of livelihood to the point of abrogation.
In Re: Sant Ram8 a case which arose before "Maneka Gandhi Vs. Union of India9", 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."
In "Olga Tellis Vs. Bombay Municipal Corporation10" 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. 8 AIR 1960 SC 932 9 AIR 1978 SC 597 10 AIR 1986 SC 180 MSM,J WP_14770_2020 10 In "Delhi Transport Corporation v. D.T.C. Mazdoor Congress11", 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 of India and it is relevant to refer the principle in "M. Paul Anthony Vs. Bharat Gold Mines Limited12, 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, 11 (1991)ILLJ395SC 12 AIR 1999 SC 1416 MSM,J WP_14770_2020 11 non-payment of part of eligible salary to the employees in service 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, is contravention of Article 300-A 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 and pension form part of property of an individual to 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 unless the State is authorized to do so. In Shapoor M. Mehra v Allahabad Bank13, wherein Bombay High Court opined that retiral benefits including pension and gratuity constitute a valuable right in property.
In Deoki Nandan Prasad v. 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 13 (2012) 3 Mah.L.J 126 MSM,J WP_14770_2020 12 show that respondents have taken any action in invoking the said rules to stop or withhold gratuity or other dues..." Thus, salary to the employees in 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/pension to the employees in service or retired from service. In the absence of any statute governing deferment of salary or pension, deprivation of right to property by employees in service or retired employees would amount to violation of constitutional right guaranteed under Article 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 v. The State of M.P14 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 v. State of Madhya Pradesh15 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, 14 W.P.No.3208 of 2011 dated 08.12.2014 15 1993 (0) MPLJ 663 MSM,J WP_14770_2020 13 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 v. State of Mahdya Pradesh16 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 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 16 1979 MPLJ 379 MSM,J WP_14770_2020 14 money available in the Institutional Fund is utilized for the purposes specified and that it is done efficiently.
In North Malaysia Distributors Sdn Bhd v. Ang Cheng Poh17, 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 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 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 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 17 (2001) 3 ILR 387 MSM,J WP_14770_2020 15 referred in the earlier paragraphs, since no law authorizes the government to permit the employer to defer payment of salaries 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 amounts 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 India18" and "Edward Mills Co.Ltd. Vs. State of Ajmer19" held that the law, in this Article, means the law made by the legislature and includes intra vires statutory orders. The orders made in exercise of power conferred by statutory rules also deemed to be law. (Vide: State of M.P. Vs. Madawar G.C.20") 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.21 and "Mervyn Coutindo Vs. Collector, Customs Bombay22") 18 AIR 1956 SC 479 19 AIR 1955 SC 25 20 1955 (1) SCR 599 21 AIR 1959 SC 149 22 AIR 1967 SC 52 MSM,J WP_14770_2020 16 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 Pradesh23" 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.
In "Hindustan Times Vs. State of U.P.24" 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. 23 AIR 1982 SC 33 24 AIR 2003 SC 250 MSM,J WP_14770_2020 17 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.25) 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, 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 25 AIR 2013 SC 565 MSM,J WP_14770_2020 18 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.
In the instant case on hand, if the employee of the institution is found guilty of misconduct after conducting necessary enquiry, no other procedure is available in any statute to defer payment of salary in part or in full. But the question of all the petitioners in the institution guilty of any misconduct to defer payment of salary in the present case does not arise. Therefore, deferring payment of part of salary to employees in service is deprivation of a citizen in right to property. Such deprivation is violative of fundamental rights guaranteed under Article 21 and Constitutional Right to property under Article 300-A of the Constitution of India and Human Rights of livelihood as per Article 25(1) of Universal Declaration of Human Rights, since the petitioners would be deprived of their livelihood, though they are under obligation to meet different expenses, including maintaining their health condition for the rest of their life. Similarly, the employees are bound to face certain difficulties, if salary payment is deferred either in full or part for the reason that sometimes most of the employees would be under obligation to repay housing loans and would be having other financial commitments, their regular maintenance, besides deduction of income tax and other tax liabilities. If, part of the amount is appropriated toward those MSM,J WP_14770_2020 19 liabilities, hardly the balance amount which the employees would be receiving would not be sufficient for their livelihood. While deciding such an issue, the Court has to take into consideration the common man's and middle class employee's lifestyle and decide the case in a proper perspective. If, an ordinary employee is maintaining minimum standard of life, he is bound to incur different expenses towards education of his/her children, discharging different liabilities etc. In those circumstances, it is difficult for any ordinary employee to maintain himself/herself. Therefore, such deferment of part of salary creates dent on the financial condition of an ordinary employee who is getting meager income as a salary. That would temporarily deprive right to property, though not authorized by law, certainly violates the fundamental rights guaranteed under Article 21 and Constitutional Right to property under Article 300-A of the Constitution of India and Human Rights of livelihood as per Article 25(1) of Universal Declaration of Human Rights and such deprivation is illegal and impermissible.
No doubt, on account of financial crunch, the fourth respondent could not pay salaries to the petitioners. Merely because the fourth respondent is without any resources to meet the liability to pay full salary to the employees, the employees cannot be deprived of their right to property in the absence of any authority of law. But, when the fourth respondent is under any obligation to pay the salary to employees, the financial constraints is not relevant for disowning the liability to pay the full salary and pensions to the employees of the State and retired employees.
MSM,J WP_14770_2020 20 Justice Krishna Iyer in Municipal Council Ratlam v. Shri Vardichand26, 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 fourth respondent's dried up financial resources to meet the liability to pay salaries to it's employees is not a ground and the fourth respondent 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 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.
In view of my foregoing discussion, I have no hesitation to hold that the action of Respondent Nos. 3 & 4 in not paying gross salaries to the petitioners on par with other regular non-teaching staff from the month of April, 2019 is nothing but pay docking, it is illegal, arbitrary and violative of Articles 14, 21 and 300-A of the
26 AIR 1980 SC 1622 MSM,J WP_14770_2020 21 Constitution of India, Human Right to Livelihood guaranteed under Article 25(1) of Universal Declaration of Human Rights.
In the result, writ petition is allowed declaring the action of Respondent Nos. 3 and 4 in not paying salaries to the petitioners from April, 2019 as illegal and arbitrary. Respondent Nos. 3 and 4 are directed to pay deferred salary on gross basis to all petitioners from April, 2019 (after deducting the basic salary already paid), within two months from today, together with interest @ 6% per annum on the deferred salary.
Consequently, miscellaneous applications, pending if any, shall stand dismissed.
__________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 25.02.2021 SP