Andhra Pradesh High Court - Amravati
J. Aswartha Narayana, vs The State Of Ap on 17 December, 2021
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.9279 OF 2019
ORDER:
This writ petition is filed under Article 226 of the Constitution of India, seeking the following relief:
"To issue WRIT OF MANDAMUS to declare the action of the respondents are not paying the salaries since April 2019 till date to the petitioner as a Village Revenue Assistant in Medameedhipalle Village Proddatur Mandal Dr YSR Kadapa District though the petitioner is discharging his duties regularly is highly illegal arbitrary unreasonable discriminatory and also in violation of Art 14 16 and 21 of the Constitution of India and declare the same as bad in law and consequently direct the respondents to pay the salaries regularly to the petitioner for which he is discharging his duties as Village Revenue Assistant in Medameedhipalle Village "
The writ petitioner filed the present writ petition for the relief stated supra, alleging that he was appointed as Village Revenue Assistant on 01.04.2018 by the fourth respondent in Medameedhipalle Village, Proddatur Mandal, Dr.Y.S.R Kadapa District. The petitioner is regularly working in the respondent office after joining into service. It is alleged that, though the petitioner is discharging his duties regularly, the respondents are not paying salary to the petitioner since two months i.e. April and May, 2019. Inspite of representation dated 28.05.2019 submitted by the petitioner, the third respondent did not pay regular salary for the above two months.
It is the contention of the petitioner that the fourth respondent failed to pay salary to the petitioner for the months April and May, 2019. However, a copy of the proceedings Rc.No.R.Dis/198/2018 dated 01.04.2018 appointing this petitioner is produced which shows that the petitioner is appointed in the fourth respondent office. But, for one reason or the other, MSM,J WP_9279_2019 2 salary is not paid since April and May, 2019. Thus, deferred salary to the petitioner by the fourth respondent. The petitioner 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 this petitioner.
Respondents did not file any counter affidavit. During hearing, Sri C. Raja Sekhar Reddy, learned counsel for the petitioner, 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 salary to the petitioner is illegal, arbitrary and requested to extend the same benefit, as extended to the petitioner in the judgment referred supra.
Considering rival contentions, perusing the material available on record, the point that arises for consideration is:
Whether non-payment of salary amounts to deprivation of property. 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 salary since April & May, 2019 together with arrears to the petitioner?1
W.P.No.9037 of 2019 dated 12.07.2019 MSM,J WP_9279_2019 3 P O I N T:
Undoubtedly, there are financial difficulties to the fourth respondent to meet the expenditure. But, such difficulty itself is not a ground to deny payment of gross salary to the employees of the fourth respondent.
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 2 2020 (5) ALT 77 MSM,J WP_9279_2019 4 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 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 3 AIR 1971 SC 530 4 AIR 1985 SC 553 5 AIR 1985 SC 356 MSM,J WP_9279_2019 5 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 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 6 AIR 1961 SC 298 7 AIR 1968 SC 1053 MSM,J WP_9279_2019 6 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 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).
8 AIR 1960 SC 932 9 AIR 1978 SC 597 10 AIR 1986 SC 180 MSM,J WP_9279_2019 7 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 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 11 (1991)ILLJ395SC 12 AIR 1999 SC 1416 MSM,J WP_9279_2019 8 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 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. 13 (2012) 3 Mah.L.J 126 MSM,J WP_9279_2019 9 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 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 14 W.P.No.3208 of 2011 dated 08.12.2014 MSM,J WP_9279_2019 10 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, 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 15 1993 (0) MPLJ 663 16 1979 MPLJ 379 MSM,J WP_9279_2019 11 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 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. 17 (2001) 3 ILR 387 MSM,J WP_9279_2019 12 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 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") 18 AIR 1956 SC 479 19 AIR 1955 SC 25 20 1955 (1) SCR 599 MSM,J WP_9279_2019 13 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") 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.
21 AIR 1959 SC 149 22 AIR 1967 SC 52 23 AIR 1982 SC 33 MSM,J WP_9279_2019 14 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. 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: 24 AIR 2003 SC 250 25 AIR 2013 SC 565 MSM,J WP_9279_2019 15 "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 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 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 petitioner guilty of any misconduct to defer payment of salary in the present case does not arise. Therefore, deferring payment of salary to the petitioner 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 petitioner would be deprived of his livelihood, though they are under obligation to meet different expenses, including maintaining their health condition for the rest of their life. Similarly, the MSM,J WP_9279_2019 16 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 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 petitioner. Merely because the fourth respondent is without any resources to meet the liability to pay full salary to the petitioner, the petitioner cannot be MSM,J WP_9279_2019 17 deprived of hsi 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 the petitioner, the financial constraints is not relevant for disowning the liability to pay the full salary and pensions to the petitioner of the State.
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.
26 AIR 1980 SC 1622 MSM,J WP_9279_2019 18 In view of my foregoing discussion, I have no hesitation to hold that the action of Respondent No. 4 in not paying gross salaries to the petitioner since April & May, 2019 is nothing but pay docking, it is illegal, arbitrary and violative of Articles 14, 21 and 300-A of the 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 No. 4 in not paying salaries to the petitioner from April & May 2019 as illegal and arbitrary. Respondent No. 4 is directed to pay deferred salary to the petitioner since April & May 2019, within two months from today, together with interest @ 6% per annum on the deferred salary. No costs.
Consequently, miscellaneous applications, pending if any, shall stand closed.
__________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 17.12.2021 SP