S.Bujji Babu Sharma, vs State Of Andhra Pradesh,
2021 Latest Caselaw 1175 AP

 THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                 WRIT PETITION NO.2447 of 2021


ORDER:-

      This writ petition is filed under Article 226 of the

Constitution of India seeking the following relief:

              "...to issue a Writ, Order or Direction more particularly one in
      the nature of Writ of Mandamus, declaring the action of the
      respondents in not paying the arrears of salaries from June 2019 to till

date @ Rs.45,911/- per month as bad, illegal, arbitrary and violative of principles of natural justice and Articles 14, 21 and 300A of Constitution of India and consequently direct the respondents to pay the arrears of salaries totaling to a tune of Rs.8,72,309/- and Rs.3,50,000/- towards Paditharam with interest to the petitioner and pass such order."

The petitioner was initially appointed as Archaka on a

monthly salary of Rs.150/- and Paditharam of Rs.450/- per

month on 22.04.1992. Thereafter his services were regularized

in the year 2004 with 1999 PRC. Thereafter pay scale was

extended from time to time to the petitioner along with all the

allowances as per the orders of the Assistant Commissioner,

Endowments Department vide proceedings in

D.Dis.No.A5/3768/2008 dated 10.07.2008. The scales of 2010

PRC was extended as per the proceedings of the 3rd respondent

in L.Dis.No.A5/4455/2015 dated 10.08.2015. Subsequently as

per the directions of the 2nd respondent dated 20.09.2018, 2015

PRC was extended to the petitioner by the proceedings of the 3rd

respondent in R.C.No.B3/3769/2018-3, dated 22.09.2018.

Thus, petitioner is a regular Archaka in the temple but he is not

being paid his salary or paditharam as agreed in terms of the

appointment order. The petitioner was paid salary as per the

2015 PRC @ Rs.45,911/- till June 2019 and subsequently

salary was not paid to him. The petitioner submitted a

representation 14.08.2019 to the 2nd respondent for payment of

arrears of salaries from June, 2019 along with paditharam to a

tune of Rs.3,50,000/-. Basing on the representation, the

Executive Officer of the 4th respondent Devasthanam has sent a

report on 09.09.2019 to the Assistant Commissioner,

Endowments Department to grant permission to pay the salary

or to make arrangements to pay the salary from the funds of

major temple. Basing on the same, the Assistant Commissioner

has forwarded a report to the 3rd respondent on 23.09.2019. In

turn, the 3rd respondent has forwarded the report to 2nd

respondent on 29.01.2020 requesting to grant permission to pay

arrears of salary and arrears of Paditharam to the petitioner.

Instead of considering the reports of the authorities and the

Executive Officer, the 2nd respondent has taken a different stand

altogether and issued proceedings in C2/CEO-

13022(49)/1/2019 dated 23.12.2020 directing the Executive

Officer to decrease his PRC from 2015 to 2010 without any

notice to the petitioner and directed to pay Rs.1,00,000/- as

arrear advance to recover the arrears of Maktha of

Rs.4,00,000/-. Hence, the same is challenged in this Writ

Petition with a direction to pay salary while declaring the action

of the respondent was illegal and arbitrary and the petitioner

raised several contentions with regard to the means of the

temple to pay salary despite Section 69 of the A.P.Act 30/87,

65(1) of the Act 30/87 and 65(4) of the Act 30/87 etc. Finally, it

is contended that the nonpayment of arrears of salary and

paditharam is nothing but depriving the petitioner to enjoy the

property and it is violative of Articles 14, 21 and 300A of

Constitution of India and requested to declare the same is illegal

and arbitrary and consequently direct the respondent to pay the

amount claimed by this petitioner with interest.

The 4th respondent filed counter admitting the time of

appointment of this petitioner extension of benefit of PRCs upon

to 2015 and to issue of the proceedings by the 2nd respondent

reducing the salary to the PRC 2010 or PRC 2015.

It is further contended that the reduction of scale without

notice does not amount to violation of Article 14, 21 and 300A of

the Constitution of India and thereby no direction can be issued

to the respondents as claimed by this petitioner.

It is further contended that the annual demand of the

temple is Rs.7,63,400/-. Due to drought in the village for the

last three years the lessees have not paid the makthas properly

and their dues by way of arrears of Rs.8,08,300/- and the 4th

respondent temple has also filed rent suits against the tenants

for recovery of arrear of maktha. The amount received is hardly

sufficient for day to day expenditure of the temple. Apart from

that the petitioner is also being paid salary and paid upto May,

2019. The petitioner was paid his salary of Rs.20,491/- upto to

2018 September as per R.P.S., 2010. As per Section 57 of Act,

30/87 the establishments charges of both Religions and Secular

staff shall not exceed 30% of its annual income calculated

U/s.65 of the Act. The annual assemble income of the temple

calculated as per Section 65 for the last three years is

Rs.4,48,934/-, Rs.8,49,687/- and Rs.3,57,419/- in the years

2017-18, 2018-19 and 2019-20 respectively. Thus, the

establishment charges of the temple exceeded 30% of the

income and inspite of it, as per the instructions of the then

Deputy Commissioner, the then Executive Officer of the temple

extended 2015 P.R.C. Scales, the salary of the petitioner raised

from Rs.20,491/- to Rs.45,911/- per month. As such the

temple could not pay salary regularly. However, as and when

funds are received the petitioner is being paid his salary even

though there is hardship to run the day to day administration

and the statutory festivals to be performed as per usage and

custom, to avoid public criticism. Therefore, the 2nd respondent

issued a direction to reduce the salary from 2015 PRC to 2010

PRC keeping in view the bar under Section 57 of AP Act 30/87.

Thereby the petitioner is not entitled to claim the arrears of

salary on the basis of 2015 PRC and paditharam arrears

including interest thereon and requested to dismiss the writ

petition.

During hearing, the learned Counsel for the petitioner Sri

D.V.Sasidhar reiterated the contentions by drawing attention of

this Court to the Judgment reported in Smt. Dinavahi Lakshmi

Kameswari v. The State of Andhra Pradesh1, 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 and on the strength of the same

requested to issue a direction as stated above.

Whereas, learned Standing Counsel for the respondent Sri

G.Ramana Rao supported the action of the respondent in all

respects while contending that the temple is not getting any

sufficient income to meet the expenditure subject to Section 57

of A.P.Act 30/87 and requested to issue a direction keeping in

view Sections 57 and 65(1) and 65(4) of the A.P.Act 30/87.

Admittedly, service of the petitioner was engaged as

Archaka initially on temporary basis. Later his services were

regularized and extended benefit of 2010-15 PRCs thereby his

salary was increased from Rs.20,491/- to Rs.45,911/- as per

the proceedings of Deputy Commissioner as admitted in para 4

of the counter affidavit. Thus, the salary payable to the

2020 (5) ALT 77

petitioner per month was Rs.45,911/- but based on the

correspondence between respondents 3 and 4, the 2nd

respondent suddenly directed the Executive Officer to reduce

the pay scale of this petitioner to 2010 PRC from 2015 PRC

without following any procedure. Reduction of pay scale

without serving any notice and without any reasons is a serious

illegality and not only violative of Article 300A of Constitution of

India, but also violative of principles of natural justice, since no

opportunity was afforded the petitioner to give explanation to

the notice. Therefore, the said order is not in accordance with

law and such arbitrary exercise of power without issuing notice

to this petitioner cannot be encouraged by this Court while

exercising power and Article 226 of the Constitution of India.

No doubt, the temple is under obligation to contribute, besides

meeting audit fund etc. in terms of the provisions of the A.P. Act

30 of 87 and limit its expenditure to 30 % of the annual income.

Payment of salary is a part of expenditure being incurred

by the temple. In such case, the temple is bound to pay salary

to the employees and lack of funds with the temple cannot be a

ground to deny payment of salary depriving the employees from

enjoying the property. Therefore, the financial constraints of

respondent No.4 is not a ground to deny payment of salary to

the petitioner and paditharam expenses from June, 2019

onwards. When once the services of the petitioner are engaged

on payment of salary, as agreed and extending benefits of PRCs

from time to time, the 4th respondent is under legal obligation to

pay salary to the employee and it is a right of every employee to

claim the eligible salary. Undoubtedly, there are financial

difficulties to the fourth respondent to meet the expenditure to run

the temple. But, such difficulty itself is not a ground to deny

payment of gross salary to the employees of the fourth respondent

temple.

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 part of salary, the

part of 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

2020 (5) ALT 77

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

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

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

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

11 (1991)ILLJ395SC 12 AIR 1999 SC 1416

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 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 arrears 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 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

13 (2012) 3 Mah.L.J 126

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 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 arrears of salary to the employees. In the absence

of any statute governing deferment of arrears 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 arrears 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,

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

15 1993 (0) MPLJ 663 16 1979 MPLJ 379

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 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

17 (2001) 3 ILR 387

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 arrears 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 arrears 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 arrears 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

arrears 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.

18 AIR 1956 SC 479

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")

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

19 AIR 1955 SC 25 20 1955 (1) SCR 599 21 AIR 1959 SC 149 22 AIR 1967 SC 52 23 AIR 1982 SC 33

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.

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)

24 AIR 2003 SC 250 25 AIR 2013 SC 565

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

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 temple is

found guilty of misconduct after conducting necessary enquiry, no

other procedure is available in any statute to defer payment of

arrears of salary or to defer payment of arrears of salary in part or

in full. But the question of the petitioner guilty of any misconduct

to defer payment of arrears of salary in the present case does not

arise. Therefore, deferring payment of arrears 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

about the arrears of salary 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 arrears 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 arrears of salary to the petitioner. Merely

because the fourth respondent is without any resources to meet

the liability to pay arrears of salary to the petitioner, the petitioner

cannot be deprived of his right to property in the absence of any

authority of law. But, when the fourth respondent is under any

obligation to pay salary to the petitioner, the financial constraints

is not relevant for disowning the liability to pay the arrears of

salary.

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 salary to the

petitioner is not a ground and the fourth respondent cannot run

away from discharging its duty to pay salaries having extracted

26 AIR 1980 SC 1622

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 to this petitioner.

In view of the law declared by this Court in judgment in

Dinavahi Lakshmi Kameswari Case(referred supra) discussing

the rights of employee in detail held that the State is not entitled

to deprive any employee from enjoying the property by issuing

any G.O. by way of executive instructions, exercising power

under Article 162. In the present case, the 2nd respondent

issued proceedings in C2/COE-13022(49)/1/2019 dated

23.12.2020 by way of executive instructions. The petitioner is

entitled to claim salaries as per the statutory rules under Article

309. The order impugned in the writ petition by way of

executive instructions will not prevail. Therefore, the order of

the 2nd respondent impugned in the writ petition is illegal. At

the same time, non-payment of salary to this petitioner and

agreed rate of paditharam amount depriving the petitioner to

enjoy the fund is violative of fundamental right the guaranteed

under the 21 of Constitution of India and human right under

Article 25 of Universal Declaration of Human Rights as held by

this Court in the earlier judgment. Therefore, the financial

constrains of the 4th respondent temple by virtue of Section 57

of the A.P.Act will not come in the way of payment of salary to

this employee. Hence, the respondent No.4 is directed to pay

arrears of salary of Rs.8,72,309/- and paditharam of

Rs.3,50,000/- within two months, from the date of receipt of the

copy of this order. But, I am not inclined to award any interest

as the respondent temple which is charitable institution is in

financial distress.

12. In the result, the writ petition is allowed, directing the

respondents to pay the arrears of salary to a tune of

Rs.8,72,309/- and Rs.3,50,000/- towards Paditharam to the

petitioner, within two(2) months from the date of receipt of the

copy of the order.

As a sequel, interlocutory applications, if any, pending

shall stand closed.

__________________________________________ JUSTICE M.SATYANARAYANA MURTHY

Date: 26.02.2021 KLPD

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

Writ petition No.2447 of 2021

Date: 26.02.2021

KLPD