Jupalli Radhika, vs The State Of Andhra Pradesh
2021 Latest Caselaw 559 AP

        THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY

                       WRIT PETITION No.2349 OF 2021

ORDER:

This writ petition is filed under Article 226 of the Constitution of

India, questioning the inaction of the respondents in not paying the

salaries to the petitioner basing on the appointment orders issued vide

Proceedings Rc.No.3884/E3/2019 dated 08.01.2020 in the post of

second Auxiliary Nurse Midwife (ANM) by the fourth respondent as

illegal, arbitrary and consequently direct the respondents to pay salary to

this petitioner including the arrears from 22.01.2020 as per the

appointment order dated 08.01.2020.

In view of the proceedings of the District Collector in

Rc.No.553/2019-C3 dated 16.12.2019 directing the Superintendent,

Government General Hospital, Guntur to provide employment to the

petitioner on contract basis immediately as per the provisions of

G.O.Ms.No.95 SW (CV.POA) Department DATED 29.08.2016, the fourth

respondent/DMHO, Guntur appointed the petitioner as second ANM on

outsourcing basis vide proceedings Rc.No.3884/E3/2019 under NHM

and posted at Etukuru Sub-Centre of Katrapadu PHC, Guntur District.

The petitioner is rendering services since 22.01.2020 as second ANM

with all requisite qualification and waited for period of eight months for

salaries, but not paid and finally the petitioner has submitted

representations on 21.09.2020 and 07.12.2020 to the third respondent

and requested for payment of salaries. But, no amount was paid till date,

though she is rendering services as ANM. Therefore, the petitioner

submitted another representation on 07.12.2020 to the Medical Officer,

PHC Katrapadu and submitted another presentation on 08.01.2021 to

the fourth respondent, but she was not paid salary and no purpose was

served. Therefore, the petitioner herein approached this Court to issue a 2 MSM,J WP_2349_2021

direction to the second respondent to pay salary for the services she

rendered as an employee in terms of the appointment orders issued vide

Proceedings Rc.No.3884/E3/2019 dated 08.01.2020.

Learned Government Pleader for Services placed on record, written

instructions Rc.No.HMF04-11021(32)/16/2020-EST-SEC-CHFW dated

03.02.2021 admitting about issue of directions to appoint Smt. Jupalli

Radhika w/o Pedda Hanumaiah and mother of Kum. J. Lavanya (aged 05

years) as per Serial No.6 of Government in Circular Memo

No.627352/CV.POA Social Welfare Department dated 10.10.2020 read

with G.O.No.95 Social Welfare (CV.POA) Department dated 29.08.2016.

On the strength of the same, learned Government Pleader for Services

contended that, in the absence of any service certificate, she is not

entitled and requested to pass appropriate orders.

Appointment of this petitioner on outsourcing basis as second

ANM is not in dispute, but discharge of duties by the petitioner for the

last eight months is disputed by the learned Government Pleader for

Services-III. However, the petitioner obtained Service Certificate dated

18.01.2021 from Medical Officer, Primary Health Centre, Katrapadu,

Guntur District, certifying that the petitioner is working as second ANM

Sub-Centre Etukuru, Primary Health Centre Katrapadu since

22.01.2020 till 18.01.2021. Therefore, the certificate issued by the

Medical Officer is suffice to conclude that the petitioner is discharging

her duties as second ANM, since the date of her appointment i.e.

appointment orders issued vide Proceedings Rc.No.3884/E3/2019 dated

08.01.2020. Based on this certificate, the petitioner is deemed to have

been discharging her duties as second ANM. As long as the petitioner is

rendering service in terms of appointment orders issued, vide

Proceedings Rc.No.3884/E3/2019 dated 08.01.2020, she is entitled to

claim the salary payable to her as per the appointment orders issued,

vide, Proceedings Rc.No.3884/E3/2019 dated 08.01.2020. But, non-

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payment of salaries amounts to depriving this petitioner to livelihood and

it is violative of Article 21 of the Constitution of India.

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 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 India1, where the Apex Court opined that that

Prievy Purse payable to ex-rulers is property. In K. Nagraj v. State of

A.P2, Apex Court opined that right of person to his livelihood is

property which is subject to rules of retirement. In Madhav Rao Scindia

Vs. State of M.P3, and State of M.P. Vs. Ranojirao4, 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

1 AIR 1971 SC 530 2 AIR 1985 SC 553 3 AIR 1961 SC 298 4 AIR 1968 SC 1053 4 MSM,J WP_2349_2021

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 appointment to service. When,

there is a contact between the employee and employer for payment of

salary either monthly or annually, duty of the State is to pay salary as

agreed. Article 72 of the Andhra Pradesh Financial Code deals with

claims of government servants, due date for payment of pay, allowance

etc and it reads as follows:

(a) Except as provided in clauses (b) and (c) the pay and allowances, leave salary and other monthly recurring payments of all the State Government employees and also the salaries/wages to work- charged establishments and menials paid from contingencies become payable on the last working day of the month to which they relate except for the month of March which shall be paid on the first working day of April. In case the last working day of the month happens to be a bank holiday, the disbursement shall be made on the previous working day.

(b) (i)(a) The persons become due for payment only on the expiry of the month to which they relate. However, when the first day (including Sunday) of the following month is a public holiday, on which funds for disbursement of pensions cannot be drawn from the Treasury or the Bank, as the case may be, the pensions shall be paid on the last working day of month to which they relate except for the month of March which shall be paid on the first working day of April. However, in such cases other than March if the last working day of the month also happens to be a Government holiday or Bank holiday, disbursement shall be made on the previous working day.

(b)(i)(b) Pensions which are paid through Banks and Post Offices are to be paid on the last working day of each month except for the month of March which shall be paid on the first working day of 5 MSM,J WP_2349_2021

April. However, in such cases other than March if the last working day of the month also happens to be a Bank or Postal holiday disbursement shall be made on the previous working day.

(c) The payment due for a part of a month should ordinarily be made at once without waiting till the end of the month in the following circumstances:-

(1) When a Government servant proceeds out of India on deputation, leave or vacation, and does not elect to draw leave salary in India under the provisions of Fundamental Rule 91. (2) When a Government servant is transferred to another Audit Circle, or within the same Audit Circle and -

(i) to or from the Public Works Department or the Forest Department,

(ii) from one Public Works Division to another, or

(iii) from one department to another so that there is a change in the controlling authority, or

(iv) to or from famine duty.

(3) When a Government servant is promoted from a non-gazetted to a gazetted post or reverted from a gazetted to a non-gazetted post in circumstances involving a transfer from one office to another. (4) When a Government servant finally quits the service of the Government or transferred to foreign service.

(5) When a portion of a civil pension is commuted, in which case the amount of the unreduced pension due up to the day preceding that on which the commutation takes effect should be paid along with the commuted value of the portion commuted.

In view of Article 72 of the Andhra Pradesh Financial Code, it is the

duty of the State to pay salary on the last working day of the month of a

government servant on presentation of bills. Non-payment of salary

would amount to denial of livelihood.

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 6 MSM,J WP_2349_2021

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 his right to life would be to deprive him of his means of

livelihood to the point of abrogation.

In Re: Sant Ram5 a case which arose before "Maneka Gandhi

Vs. Union of India6", 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 Corporation7" 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."

5 AIR 1960 SC 932 6 AIR 1978 SC 597 7 AIR 1986 SC 180 7 MSM,J WP_2349_2021

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 Congress8",

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 Limited9, 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.

8 (1991) I LLJ 395 SC
9 AIR 1999 SC 1416
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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 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,

non-payment of salary, is contravention of Article 300 of the Constitution

of India. No doubt, as per Article 300-A of the Constitution of India, no

citizen of India be deprived of his/her right to property, except by

authority of law. As salary forms 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 Bank10, 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

10 (2012) 3 Mah.L.J 126 9 MSM,J WP_2349_2021

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 payable to the employee 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.P11 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 Pradesh12 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

12 1993 (0) MPLJ 663 10 MSM,J WP_2349_2021

Court referred the earlier case of a Division Bench in Siddhi Bala Bose

Library Association v. State of Mahdya Pradesh13 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 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 Poh14,

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

13 1979 MPLJ 379 14 (2001) 3 ILR 387 11 MSM,J WP_2349_2021

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.

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.15)

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:

15 AIR 2013 SC 565
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"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.

Therefore, non- payment 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 they would be deprived of their livelihood, though

they are under obligation to meet different expenses, including

maintaining their health condition life. Similarly, the employees are

bound to face certain difficulties, if salary is not paid 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 towards 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, 13 MSM,J WP_2349_2021

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

non-payment 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.

In view of the law declared by the Apex Court in the judgments

referred supra, the petitioner is entitled to claim salary for the period for

which she was not paid.

In the result, writ petition is allowed declaring the action of the

respondents in not paying the salaries to the petitioner basing on the

appointment orders issued vide Proceedings Rc.No.3884/E3/2019 dated

08.01.2020 in the post of second Auxiliary Nurse Midwife (ANM) by the

fourth respondent as illegal and arbitrary. The respondents are directed

to pay salary benefits to this petitioner including the arrears from the

date of her joining into service i.e. on 22.01.2020, if not paid and

continue to pay till her services are terminated/disengaged by the

respondents.

Consequently, miscellaneous petitions pending if any shall stand

closed. No costs.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:03.02.2021

SP