Kerala High Court
State Of Kerala Represented By Its Chief ... vs M.B.Nishad Sait on 1 September, 2022
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
Thursday, the 1st day of September 2022 / 10 th Bhadra, 1944
WA NO. 1319 OF 2022
AGAINST ORDER DATED 24/08/2022 IN WP(C) 18462/2022 OF THIS COURT
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APPELLANT/1ST RESPONDENT IN THE WRIT PETITION:
STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695 001.
BY GOVERNMENT PLEADER
RESPONDENTS/WRIT PETITIONER AND RESPONDENTS 2 AND 3 IN THE WRIT PETITION:
1. M.B.NISHAD SAIT, STORE ISSUER II ND GRADE,KSRTC,REGIONAL
WORKSHOP,ALUVA,ERNAKULAM DISTRICT, PIN - 683 101.
AND 2 OTHERS
BY ADV.SRI.K.P.RAJEEVAN FOR R1 & 3
STANDING COUNSEL SRI.DEEPU THANKAN FOR R3
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to stay the operation of the order dated 24.08.2022 in WP(C) No.18462 of
2022 of the learned Single Judge, pending disposal of this Writ Appeal.
This Writ Appeal again coming on for orders along with connected
cases on 01/09/2022 upon perusing the appeal memorandum and this court's
order dated 31/08/2022, the court on the same day passed the following:
P.T.O.
A.K.JAYASANKARAN NAMBIAR, J.
&
MOHAMMED NIAS C.P., J.
-------------------------------
W.A.NOS.1318, 1319 & 1320 OF 2022
&
W.P.(C).NOS.15353, 18462 & 23949 OF 2022
-----------------------------------
Dated this the 1st day of September, 2022
ORDER
A.K. Jayasankaran Nambiar, J.
The Writ Appeals aforementioned are preferred by the State Government and impugn the common order dated 24.8.2022 of the learned Single Judge in the writ petitions. By the said order, the learned Single Judge, while considering the prayers in the writ petitions, seeking a direction to the State Government to invoke its powers under Section 38 of the Road Transport Corporation Act, 1950, for compelling the respondents to pay salary to the employees of the Kerala State Road Transport Corporation [KSRTC] including the writ petitioners, as also to formulate a Scheme whereby the monthly salary would be paid before the 5th of every succeeding month, directed the Finance Department or other competent Authority of the Government to release the amounts required by the KSRTC, after deducting any sum that was with the KSRTC, so as to pay the salaries of their W.A.NOS.1318, 1319 & 1320/2022 & :: 2 ::
W.P.(C).NOS.15353, 18462 & 23949/2022 employees for the months of July and August, 2022 along with the eligible bonus on or before 1.9.2022.
2. When the Writ Appeals came up for admission before us on 31.8.2022, the learned Advocate General, who appeared on behalf of the State Government in the appeals, contended inter alia that the State Government had no statutory or contractual obligation to pay salary and other allowances to the employees of the KSRTC or to provide any financial assistance to the KSRTC to meet its salary or other expenses/liabilities. It was also pointed out that the State Government had limitations with regard to disbursement of funds, since, in terms of Article 266(3) of the Constitution of India, an appropriation of money out of the Consolidated fund was prohibited except when the same was in accordance with law and for the purposes and in the manner provided under the Constitution. It was also pointed out that inasmuch as the determination of priorities for public spending was within the realm of the Executive and the Legislature, it was improper for the learned Single Judge to have directed the Government to pay funds to the KSRTC, to the extent of Rs.103 crores, towards salary for the months of July and August, 2022 along with festival bonus.
W.A.NOS.1318, 1319 & 1320/2022 & :: 3 ::
W.P.(C).NOS.15353, 18462 & 23949/2022
3. After hearing the learned Advocate General on behalf of the State Government, we stayed the operation of the impugned interim order of the learned Single Judge. We felt that although well intentioned and passed with a view to ameliorate the difficulties faced by the employees of the KSRTC, the directions in the interim order went too far and strayed beyond the bounds of the restraint required of courts in matters of governance especially when the issue involved pertained to the fiscal policy and spending of the State Executive. Further, taking note of the fact that the issue being considered in the writ appeals was the main issue urged in the writ petitions as well, with the consent of counsel on either side we directed the writ petitions also to be posted along with the writ appeals before us.
4. Taking note of the submissions of the learned Advocate General, we realised that the State Government was in fact facing a financial crunch and a severe liquidity problem, although it was hopeful of infusing additional funds to the KSRTC for the purposes of meeting the latter's liabilities to its employees. On the other hand, we could not overlook the claim of the employees for wages for the months of July and August, 2022 together with the festival allowance W.A.NOS.1318, 1319 & 1320/2022 & :: 4 ::
W.P.(C).NOS.15353, 18462 & 23949/2022 that was due to them, all of which were traceable to their fundamental rights under Article 21 of the Constitution. To balance the interests of either parties, we requested the learned Advocate General to explore the possibility of making available at least a portion of the employees' salary by way of cash and providing an option to willing employees to opt for credit vouchers/coupons for the remaining portion of the wages and festival allowance or part thereof, which vouchers/coupons could be redeemed by the employees at any of the outlets/shops of the Corporations owned and controlled by the State Government such as;
(1) Civil Supplies Corporation
(2) Consumer Fed
(3) Maveli Store
(4) Horticorp (Vegetables and Fruits)
(5) Hantex
(6) Hanveev and
(7) Kerala Khadi and Village Industries Board.
5. We felt that through such an arrangement, the employees would get at least a part of their wages in cash and be able to obtain essential items of provisions, clothing etc. through a credit facility made available to them on optional basis. While making the said suggestion, we were not unmindful of the fact that, in the ultimate analysis, the employees are entitled to their full wages by way of cash, W.A.NOS.1318, 1319 & 1320/2022 & :: 5 ::
W.P.(C).NOS.15353, 18462 & 23949/2022 which they have received till June, 2022, and it was only taking note of the situation where the paucity of funds of the KSRTC as well as that of the Government would have entailed a deprivation of some portion of the wages of the employees that we directed the learned Advocate General to explore the above option. We were also guided by the decision of the Supreme Court in Express Newspapers (P) Limited & Another v. The Union of India & Others - [(1961) 1 LLJ 339 (SC)], where the Supreme court while considering a challenge against the fixation of wages of Working Journalists under the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955, examined the concepts of Living Wages, Minimum Wages and Fair Wages and brought out the distinction between the various concepts. While a living wage was considered as one that should enable the male earner to provide for himself and his family not merely the bare essentials of food, clothing and shelter but a measure of frugal comfort including education for the children, protection against ill health, requirements of essential social needs, and a measure of insurance against the more important misfortunes including old age, a minimum wage was seen as one providing not merely for the bare sustenance of life but for the preservation of the efficiency of the worker. For this latter purpose, it was observed that W.A.NOS.1318, 1319 & 1320/2022 & :: 6 ::
W.P.(C).NOS.15353, 18462 & 23949/2022 the minimum wage must also provide for some measure of education, medical requirements and amenities. A distinction was drawn between a bare subsistence or minimum wage, and a statutory minimum wage, where the latter might be higher than the bare subsistence or minimum wage, providing for some measure of education, medical requirements and amenities. A fair wage was seen as a mean between the living wage and the minimum wage. All these concepts were also seen as dynamic and not static, and were expected to vary from time to time for, with the growth and development of national economy, living standards would improve and, along with it, the ambit of the concepts of minimum wage, living wage and fair wage. The concepts referred above had to take into consideration various factors such as cost of food, shelter, clothing, education, medical facilities and amenities so as to ensure that the wage fixed comprises of these components in the required proportion. While we are aware that the actual exercise of determining the proportion of these components requires the expertise of labour economists, and that Courts do not have the necessary expertise for the same, we looked into various factors only for the purposes of determining what proportion of the wages payable to the employees in the instant cases had necessarily to be covered by the cash component.
W.A.NOS.1318, 1319 & 1320/2022 & :: 7 ::
W.P.(C).NOS.15353, 18462 & 23949/2022
6. When the matters were taken up today, the learned Advocate General submitted that without prejudice to the State's contentions regarding the absence of any liability/obligation to sanction funds to the KSRTC, the State Government was prepared to immediately sanction an amount of Rs.50 crores to tide over the present impasse.
The learned Advocate General also agreed that the option of issuing credit vouchers/coupons to willing employees to cover part or whole of the remaining component of the wages would also be explored so that those employees could redeem the said credit vouchers/coupons at the outlets/shops of the Corporations owned and controlled by the State Government. However, the learned counsel for the writ petitioners continue to maintain that they are entitled to the entire wages and allowances due to them in cash and the State is not justified in refusing to disburse the necessary funds to KSRTC for the latter to discharge its obligations to the writ petitioners.
7. On a consideration of the rival submissions and taking note of the precarious financial situation that is prevailing in the KSRTC as also the State Government, and realising that Courts are not expected to issue directions in matters of governance more so when it involves W.A.NOS.1318, 1319 & 1320/2022 & :: 8 ::
W.P.(C).NOS.15353, 18462 & 23949/2022 the fiscal policy and spending from the State exchequer, we feel that, for the months of July and August, 2022, the following arrangements will meet the exigency that is brought to our notice through these petitions:
(i) We direct the State Government to immediately release Rs.50 crores to the KSRTC as agreed to by them. The KSRTC shall, on receipt of the said amount from the State Government, use Rs.25 crores each for the months of July and August, 2022 for disbursal of 1 /3rd of the wage component of the employees concerned for those months.
(ii) The State Government and the KSRTC shall jointly ensure that a credit facility is extended to all employees, opting for the same, through vouchers/coupons in physical/electronic format so that such employees can redeem the same at any of the outlets/stores of the Corporations owned and controlled by the State Government for obtaining items of provisions/clothing etc. Credit vouchers/coupons shall be of a value equivalent to 2 /3rd of the wages and festival allowance due to the employee concerned or part thereof at the option of the employee for the aforesaid months. The vouchers/coupons shall also have a validity of at least six months duration.
(iii) The wages due to the employees for the months of July and August, 2022 by way of cash component and credit component as above shall be disbursed to them on or before 6.9.2022.
W.A.NOS.1318, 1319 & 1320/2022 & :: 9 ::
W.P.(C).NOS.15353, 18462 & 23949/2022
(iv) The employees who do not opt for the credit facility above will be entitled to treat the /3rd portion of their salary for the 2 months of July and August, 2022 as arrears of unpaid salary.
8. We make it clear that the aforesaid arrangement is made taking note of the peculiar circumstances prevailing in the instant case and with a view to ameliorate the hardship faced by the employees of the KSRTC who would otherwise have been denied their wages for the months of July and August, 2022.
Post these Writ Appeals and Writ Petitions before this Court on 22.9.2022, for further consideration.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE Sd/-
MOHAMMED NIAS C.P. JUDGE prp/1/9/22 01-09-2022 /True Copy/ Assistant Registrar