Calcutta High Court (Appellete Side)
Sudipta Bhattacharyya & Ors vs Visva-Bharati & Ors on 27 July, 2021
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :- Hon'ble Justice Amrita Sinha
WPA No. 9305 of 2021
Sudipta Bhattacharyya & Ors.
Vs.
Visva-Bharati & Ors.
For the writ petitioners :- Mr. Bikash Ranjan Bhattacharyya, Sr. Adv.
Mr. Samim Ahamed, Adv.
Mr. Arka Maity, Adv.
Mr. Baboni Bhattacharjee, Adv.
For Visva-Bharati :- Mr. Pranit Bag, Adv.
Mr. Anuj Kumar Mishra, Adv.
Heard on :- 14-07-2021
Judgment on :- 27-07-2021
Amrita Sinha, J.:-
The issue to be decided in the instant writ petition is, whether the University
can deduct a portion of the salary of its employees, as donation, without obtaining
their consent.
The petitioners are Adhyapakas of different departments of Visva-Bharati,
Santiniketan. They are dissatisfied with the action on the part of the Registrar
(Acting), Visva-Bharati in issuing a notice being No. REG/1547 dated 24th May,
2020 intimating that the accounts office will deduct a day's salary from the
monthly salary of May, 2020, for donating the same in the Chief Minister's Relief
Fund, West Bengal/West Bengal State Emergency Relief Fund in aid of the people
affected by cyclone Amphan that hit Kolkata and several districts of West Bengal
on 20th May, 2020.
2
A subsequent notice dated 29th May, 2020 issued by the Registrar (Acting)
has also been placed before the Court. The notice mentions that by virtue of the
powers vested in the University and the Vice-Chancellor as per Sections 6 and
14(3) read with Section 5A and other provision of the Visva-Bharati Act, 1951,
herein after referred to as 'the Act', the Vice-Chancellor has found it appropriate
for the University to contribute to the Chief Minister's Relief Fund, West
Bengal/West Bengal State Emergency Relief Fund by means of donation of one
day's salary of all permanent employees to support the endeavour of the
Government. The notice further mentions that the permanent employees of Visva-
Bharati are expected to donate a day's salary in keeping with the Rabindrik
tradition and objectives of the University which are described in Sections 5A, 6 and
elsewhere in the Act and Statutes.
The aforesaid Sections of the Act have been placed.
According to the petitioners, the deduction is impermissible without
obtaining the consent of the employees.
The learned advocate appearing on behalf of the petitioners contends that
the unilateral action on the part of the University in deducting the salary from the
employees, including the petitioners, is wholly without jurisdiction and de hors the
provision of law.
According to the petitioners, there is no provision in the Act which entitles
the University to deduct a portion of the salary of an employee. The provisions
relying which the salary has been deducted do not confer any such power upon the
University. The petitioners strongly contend that the deduction is without any
authority of law.
The petitioners inter alia pray for a direction upon the respondent
authorities to refund the amount illegally deducted from their salary.
Per contra, the learned advocate representing Visva-Bharati submits, that
the deduction has been made invoking the provision of Section 14(3) of the Act
which permits the Vice-Chancellor to exercise any power conferred on any
authority of the University if immediate action is necessary on any matter.
It has further been submitted that the second proviso of Section 14(3) of the
Act lays down that, an employee who is aggrieved by the action of the Vice-
Chancellor shall have the right to appeal against such action to the Karma-Samiti
(Executive Council) within ninety days from the date of communication of such
action. It has been submitted that instead of exhausting the remedy available
under the Act, the petitioners have approached this Court directly. Submission
has been made for dismissal of the writ petition on the ground of availability of an
alternative remedy under the Act.
I have heard the submissions made on behalf of both the parties.
The petitioners are the employees of the University. As per their service
condition they are entitled to receive their salary, on monthly basis, at the end of
each month. The basic pay which the petitioners are entitled to receive is a fixed
and definite amount.
'Salary' as per Oxford Dictionary is, the money that employees receive for
doing their job. According to Black's Law Dictionary 'salary' is an agreed
compensation for services.
The University by a notification dated 28th March, 2020 informed its staff,
that it has been decided that all faculty members and officers of the University will
donate their one day's salary to the Prime Minister's National Relief Fund, in aid of
the people affected by the Corona Virus. Staff members who wish not to opt to
donate, shall inform the Joint Registrar (Accounts) so that no deduction is made
from their salary. The petitioners did not exercise opt out option, and voluntarily
donated a day's salary as requested.
A further notice was issued by the Registrar (Acting) on 24th May, 2020
intimating the staff of the employee that the University has a duty towards fellow
citizens and expressed desire to donate a day's salary to the Chief Minister's Relief
Fund, West Bengal/West Bengal State Emergency Relief Fund in aid of the people
affected by Cyclone Amphan. It was indicated that the Accounts Office will deduct
a day's salary from the monthly salary of May of all permanent employees.
The petitioners, through their Association, immediately made a
representation before the Registrar on 25th May, 2020 objecting the unilateral
salary cut and requested the authority to revise the notice dated 24th May, 2020
and to give option to the employees to express their choices. There was no reply to
the representation filed by the Association of the petitioners. A subsequent notice
dated 29th May, 2020 was published in furtherance to the earlier notice dated 24th
May, 2020, wherein it was mentioned that, by virtue of the powers vested in the
University and the Vice-Chancellor as per Sections 6, 14(3) read with Section 5A
and other provisions of the Act, the Vice-Chancellor has found it appropriate for
the University to contribute to the Chief Minister's Relief Fund, West Bengal/West
Bengal State Emergency Relief fund by means of donation of one day's salary of all
permanent employees. It was further mentioned that the permanent employees of
Visva-Bharati are expected to donate a day's salary in keeping with the Rabindrik
tradition and objectives of the University.
The petitioners have submitted that even though they had lodged a formal
complaint against the unilateral salary cut, the University deducted a day's salary
from the petitioners, without paying any heed to their objection.
The University has taken recourse to Sections 6, 14(3) and 5A of the Act.
Section 6 of the Act lays down the powers of the University. Section 14(3)
mentions that the Upacharyya (Vice-Chancellor) may, if is of opinion that
immediate action is necessary on any matter, exercise any power conferred on any
authority of the University by or under the Act and shall report to such authority
the action taken on such matter.
The second proviso to Section 14(3) of the Act mentions that, provided
further that an employee of the University who is aggrieved by the action taken by
the Upacharyya (Vice-Chancellor) under this sub-Section, shall have the right to
appeal against such action to the Karma-Samiti (Executive Council) within ninety
days from the date on which such action is communicated.
Section 5A of the Act lays down the objects of the University.
None of the above provisions gives any power to the University to unilaterally
deduct any amount from the salary of an employee as donation.
Meaning of the term 'donation' in the Oxford Dictionary is, something that is
given to a person or an organisation such as a charity, in order to help them.
The expression donation implies that the sum is being given as aid with the
view to help the person/organisation. Donation is a voluntary act of a person who
intends to donate.
The employer neither has the power nor the authority to deduct salary or
any portion thereof of an employee, unilaterally, in the garb of donation. A person
cannot be forced to donate. The moment force is applied, the act of the donor does
not remain voluntary, and it amounts to forcible deduction, which is grossly
different from the term donation.
It appears that, on receipt of the objection from the unwilling employees, the
University, to legalise the forcible deduction, took recourse to the provision of
Section 14(3) of the Act.
Submission has been made on behalf of the University that, the said section
gives power to the Vice-Chancellor to take immediate action on 'any matter' of the
University. Expression 'any matter' in the opinion of the Court will mean, any
matter authorised by law, under the Act. Taking a decision on any matter does not
give unbridled power or authority to the Vice-Chancellor to act contrary to the
provision of law.
The Section clearly mentions that, the Vice-Chancellor could exercise any
power, on any matter, conferred on any authority of the University or under the
Act. There is no provision in the Act which permits the University to suo motu
deduct a portion of an employee's salary on the garb of donation.
An employee is paid salary in lieu of the service rendered. The same is a
valuable right in the hand of the employee. The said right cannot be curtailed or
infringed without a definite provision of law. Though the University tried to
overcome the lacuna in the notice dated 24th May, 2020, by publishing the
subsequent notice dated 29th May, 2020 by invoking certain provisions of the Act,
but even then, the act of the University cannot be said to be a valid one.
The notice dated 29th May, 2020 mentions that the employees of Visva-
Bharati 'are expected to donate'. The term 'expected' can never be treated as a
mandate. An option to 'not opt' ought to have been inserted. The University
deducted a day's salary from several employees by ignoring their unwillingness.
When the University was trying to provide aid to the needy and affected
people, it ought to have adopted a better approach to set up a corpus for providing
help, but should not have used a whip to deduct money from reluctant employees.
The same has caused dissent and resentment in the mind of the employees. The
apparently noble work to stand by the needy got marred due to overzealous action
of the University. The same certainly does display the Rabindrik tradition which
the University boasts of.
I am of the considered opinion that, unilateral deduction of salary or any
portion thereof, from an employee, without any authority of law, without taking his
consent, cannot be termed as donation. The same amounts to illegal deduction.
However, keeping in mind that the deduction was made from the monthly
salary of the employees for the month of May, 2020, and by this time the amount
collected from the employees may have been transferred to the account of the
donee, and may have been used for the aid of the needy, the Court exercises
judicial restraint in passing any order for refund of the amount deducted. The
organisation which received the money as donation will also not be in a position to
refund the same at such a distant date as the money might have been utilised by
now.
Moreover, the petitioners have approached this Court after nearly a year of
the publication of the impugned notice. The petitioners have themselves admitted
in paragraphs 14 and 15 of the writ petition, that, if the prayer of the petitioners
for refund is allowed, such refund cannot be lawfully made from any budgeted
head of the University.
The country is passing through an unprecedented crisis. It is desirable that
citizens come forward voluntarily to help the needy. Providing help, certainly, does
not mean, snatching away the legal right of an employee. To donate is a benevolent
act. It comes from the free will of the donor. It is not to be obtained by force or
coercion. The University can always adopt ways and means to provide relief to
those in need. It is not necessary that force has to be applied to reach the goal.
Applying force is sharply contrary to the Rabindrik culture and tradition which
gurudev symbolizes.
In view of the discussions made hereinabove the writ petition stands partly
allowed.
No order as to costs.
Urgent certified photocopy of this judgment, if applied for, be supplied to the
parties or their advocates on record expeditiously on compliance of usual legal
formalities.
(Amrita Sinha, J.)
