WPPIL/82/2019
2021 Latest Caselaw 2075 UK

          IN THE HIGH COURT OF UTTARAKHAND
                               AT NAINITAL

      THE HON'BLE THE CHIEF JUSTICE Mr. RAGHVENDRA SINGH CHAUHAN

                                        AND

                THE HON'BLE JUSTICE Mr. ALOK KUMAR VERMA

          WRIT PETITION (PIL) NO. 82 OF 2019

                            26TH JUNE, 2021

BETWEEN:

Uttarakhand Roadways Karamchari Union and another.
                                                         ............Petitioners.
and

State of Uttarakhand and others.                                 ....Respondents

Counsel for the petitioners: Mr. M.C. Pant, Advocate.

Counsel for the respondents: Mr. S.N. Babulkar, learned Advocate General with Mr. C.S.

                                         Rawat, learned Chief Standing
                                         Counsel         for      the      State   of
                                         Uttarakhand.

                                         Mr.     Gopal      K.    Verma,     learned
                                         Additional Chief Standing Counsel
                                         for the State of U.P.

The Court made the following:

JUDGMENT: (per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)

In pursuance of the order dated 25.06.2021, Mr.

Om Prakash, the learned Chief Secretary, Mr. Amit Negi, the

learned Finance Secretary, Dr. Ranjit Kumar Sinha, the

learned Transport Secretary, and Mr. Abhishek Rohila, the

learned Managing Director, Uttarakhand Transport

Corporation, are present in the virtual Court through video

conferencing.

2. Mr. Om Prakash informs this Court that by G.O. No.

53 and G.O. No. 54, both dated 25.06.2021, the Government

has already released Rs. 23.00 crores in favour of the

Corporation as compensation for "the hill loss".

3. Dr. Ranjit Kumar Sinha informs this Court that he

was appointed as a Secretary, Transport, on 06.03.2021.

Ever since then, he has been discussing the financial crisis,

which has enveloped the Corporation. On 16.04.2021, the

Department had received a proposal for seeking a soft loan of

Rs. 20.00 crores from the Transport Corporation. According

to him, the proposal is still under consideration by the

Government. Only recently, they have received a re-payment

schedule for the said soft loan from the Transport

Corporation.

4. Moreover, he informs his Court that there is arrears

of salary / wages to be paid to the employees of the

Corporation for the last four months. Since the monthly

expenditure of salary and wages is approximately Rs. 17.00

crores, the arrears of salary for the last four months is about

Rs. 68.00 crores.

5. He further informs this Court that a proposal is

about to be prepared by the Transport Department with

regard to revamping and resurrecting the Corporation.

According to him, the proposal will deal with the following

three aspects:-

(A) How to tie over the present financial crisis?

(B) How to improve the performance of the Corporation

so that it becomes a profit earning instead of loss facing

Corporation?

(C) To strategise what needs to be done with the future

of the Corporation.

6. According to him, it is for the Cabinet to decide as

to how much amount should be shelled out to the Corporation

to extricate the Corporation from its financial crisis.

7. Mr. Amit Negi, the learned Finance Secretary,

informs this Court that the State has already suffered a

financial loss of Rs. 1000 to 1200 crores. Therefore, the

State is, presently, financially constrained. According to him,

although the State does not have the amount in cash, but it

does have a contingency budget of Rs. 500.00 crores.

However, the said budget is detected from the Annual Budget

of the State. Moreover, since Rs. 500.00 crores in the

contingency budget cannot be given to a single Corporation,

as the interest of the other Department and the Corporation

have to be kept in mind necessarily, it is for the Cabinet to

decide as to how much funds can be disbursed to the

Corporation out of the contingency budget.

8. Mr. Om Prakash informs this Court that the Cabinet

is likely to be convened within fifteen days. Therefore, the

issue regarding the financially critical position of the

Corporation, and the issue with regard to the payment of

arrears of salary and wages to the Corporation's employees

would, at best, be resolved within fifteen days. Moreover,

according to him, since the Government has already released

Rs. 23.00 crores on 25.06.2021, a temporary relief can be

given to the employees in the coming few weeks.

9. Mr. S.N. Babulkar, the learned Advocate General

appearing for the State, submits that the contention of the

learned counsel for the petitioners, that right to livelihood is

included in right to life under Article 21 of the Constitution of

India, is highly misplaced contention. For, in none of the

cases decided by the Hon'ble Supreme Court has the Apex

Court even held that right to life includes the right to

livelihood.

10. Secondly, the Court would not be justified in

saddling the State with financial liability far beyond its

financial means. In order to buttress this plea, the learned

Advocate General has relied on the case of State of Punjab

& others vs. Ram Lubhaya Bagga & others, [(1998) 4

SCC 117].

11. Heard Mr. Om Prakash, the learned Chief

Secretary, Government of Uttarakhand, Mr. Amit Negi, the

learned Finance Secretary, Dr. Ranjit Kumar Sinha, the

learned Transport Secretary and Mr. Abhishek Rohila, the

learned Managing Director, Uttarakhand Transport

Corporation.

12. Under the Constitution of India, Article 21

guarantees the fundamental right to life. As interpreted by

the Hon'ble Supreme Court, the right to life includes the right

to livelihood, besides many other rights, such as right to food,

right to shelter, and right to personal development. Moreover,

Article 23 of the Constitution of India categorically and

absolutely prohibits forced labour. In fact, forced labour is a

punishable offense.

13. Furthermore, under Article 39(e) of the Constitution

of India, it is the constitutional duty of the State to preserve

and protect the health and strength of workers, men and

women, and of children.

14. Under Article 39(f) of the Constitution of India, it is

the duty of the State to ensure that children are given

opportunities and facilities to develop in a healthy manner,

and to protect their freedom and dignity in the childhood.

15. Article 43 of the Constitution of India, on the other

hand, directs the State to endeavour to secure "a living wage

for the workers". It shall ensure that the condition of the

work is upto a decent standard, and provide a decent

standard of life and full enjoyment of leisure. Therefore, while

dealing with the employees of the Corporation, the State is

duty bound to keep these provisions of the Constitution in

mind.

16. In the case of Kapila Hingorani vs. State of

Bihar [(2003) 6 SCC 1], the Hon'ble Supreme Court was

seized with an identical issue, as has been raised in the

present case, namely in a situation when the employees of

the Roadways and other Corporations are not being paid their

wages / salaries, whether it is the duty of the State to step-

in, and to ensure that the employees are duly paid their

wages and salaries or not? Or whether it is the duty of the

Corporation to pay wages and salaries of its employees?

17. In the said case, the Roadways' employees of the

State of Bihar were denied their wages for many months. In

other Corporations, run by the State, the employees were

equally denied their wages for many months. It had created

a crisis for the employees, where many employees had, in

fact, committed suicide. For, they were unable to cope-up

with the financial crisis being faced by their families.

18. The Hon'ble Supreme Court, in the said case,

opined as under:-

"Having regard to the deep and pervasive control, the State exercises over the Government Companies, in the matter of enforcement of human rights and/ or rights of the citizen of life and liberty, the State has also an additional duty to see that the rights of employees of such corporations are not infringed. In relation to the statutory authority, the State had also the requisite power to issue necessary directions which were binding upon them.... The State, therefore, cannot be permitted to say that it did not know the actual state of

affairs of the Government undertakings and / or it was kept in dark that the salaries of their employees had not been paid for years leading to starvation death and/or commission of suicide by a large number of employees".

19. The Hon'ble Supreme Court further pointed out as

under:-

".....the State acts in a fiduciary capacity. Moreover, in the present case, the statutory authorities have failed and/or neglected to enforce the social welfare legislations enacted in this behalf, i.e. the Payment of Wages Act, Minimum Wages Act etc. Such welfare activities as adumbrated in Part IV of the Constitution of India indisputably would cast a duty upon the State being a welfare State and its statutory authorities to do all things which they are statutorily obligated to perform".

20. Therefore, the Hon'ble Supreme Court concluded

that "the State cannot be so insensitive to the plight of its

own citizens, but particularly, the employees of the public

sector undertakings".

21. Moreover, the Hon'ble Supreme Court observed

that "the Court in a situation of this nature is obligated to

issue necessary directions to mitigate the extreme hardship

of the employees involving violation of human rights of the

citizens of India at the hands of the State of Bihar and the

Government Companies and Corporations fully owned or

controlled by it".

22. The Hon'ble Apex Court further concluded that "the

State cannot escape its liability when a human rights problem

of such magnitude involving the starvation deaths and/or

suicide by the employees has taken place by reason of non-

payment of salary to the employees of Public Sector

Undertaking for such a long time".

23. Ultimately, the Hon'ble Supreme Court directed

that "the State should deposit Rs. 50.00 crores before the

High Court in two instalments. That amount together with

amounts received from any other source should be paid

proportionately to the employees of the Government

Companies / Public Sector Undertaking concerned. It also

directed that the High Court may direct disbursement of more

fund to the needy employees on an ad hoc basis".

24. In the case of K.K. Baskaran vs. State [(2011) 3

SCC 793], the Hon'ble Supreme Court observed that " the

State being the custodian of the welfare of the citizens as

parens patriae cannot be a silent spectator without finding a

solution".

25. The Hon'ble Mr. Justice V.R. Krishna Iyyer observed

in the case of M/s Fatehchand Himmalal and others vs.

State of Maharashtra [(1977) 2 SCC 670] that "we can

never forget, except at our peril, that the Constitution

obligates the State to ensure an adequate means of livelihood

to its citizens and to see that the health and strength of

workers, men and women, are not abused, that exploitation,

moral and material, shall be extradited".

26. The first contention raised by Mr. S.N. Babulkar,

the learned Advocate General, is unacceptable. For, in the

case of Olga Tellis & others vs. Bombay Municipal

Corporation & others, [(1985) 3 SCC 545], the

Constitution Bench of the Hon'ble Supreme Court has clearly

declared that right to livelihood is part and parcel of right to

life under Article 21 of the Constitution of India. Further, in

the case of Delhi Transport Corporation vs. D.T.C.

Mazdoor Congress & others, [1991 Supp. (1) SCC 600],

the Apex Court also opined that the right to work and earn

livelihood is part of right to life.

27. Moreover, the case of Ram Lubhaya Bagga

(supra) is distinguishable on factual matrix. For, in the said

case what was under challenge was a policy framed by the

Government. However, in the present case, no such policy is

under challenge. In fact, what is under challenge is the

omission being committed by the State in not rushing to the

rescue of the employees of the Corporation.

28. As mentioned and quoted hereinabove, according

to the judgment of Kapila Hingorani (supra), it is, indeed,

the foremost duty of the State to ensure that the employees

of the Corporation are duly paid their arrears of salaries and

wages. Therefore, reliance placed on the case of Ram

Lubhaya Bagga (supra) is highly misplaced.

29. Moreover, this Court is well-aware of the fact that

the State does have its own financial constraints. The State

has to cater to the needs and interest of different sections of

the society, of different departments, and of different State

Corporations. By no means is this Court asking the State

Government to go beyond its financial means and limits. This

Court merely hopes that within its financial means and limits,

the State will take up the present issue of payment of arrears

of salaries of four months of the employees of the

Corporation on a war-footing, and to immediately resolve the

financial crises being faced by the employees of the

Corporation. In light of the case of Kapila Hingorani

(supra), the Court would be justified in issuing such a

direction to the State.

30. Admittedly, the employees of the Corporation have

not been paid their salaries since February, 2021 till present.

Admittedly, the salary expenditure of the Corporation per

month is about Rs. 17.00 crores. According to G.O. Nos. 53

and 54, the Government has released merely Rs. 23.00

crores as a "hill loss" suffered by the Corporation. Therefore,

even if the Corporation were to use the said amount, the

Corporation would be in a position to pay the salary of merely

one and a half months to its employees. Thus, the arrears of

salary would continue for approximately fifteen days of

March, and for the months of April, May and June, 2021.

Hence, the release of Rs. 23.00 crores is merely a drop in the

bucket. The Government is also required to ensure that not

only the present salaries, but also the future salaries for the

remaining period of the year are assured to the employees of

the Corporation. Thus, the Corporation would need a total of

Rs. 170.00 crores. And yet, there is no discussion, and no

proposal as to where and how the Corporation will get Rs.

170.00 crores in order to meet-out its salary expenditure for

its employees?

31. Undoubtedly, the employees have been suffering

for the last five months. They have badly suffered not only

due to the pandemic, but are also faced with the onslaught of

the natural disasters, such as landslide, monsoon rains, which

are beginning to batter the State. Needless to say, each

employee has his own familial and social obligation to fulfil on

a daily basis: children need to be fed, elderly parents need to

be taken care of, medical needs of the wife have to be

fulfilled. And yet, during this crisis of pandemic, the employee

is left high and dry by the State. Despite their tragedies and

crisis, the State is merely making a mumble full of promises

that "it shall look into their future difficulties and resolve

them in an uncertain future date". The State cannot be

permitted to function in a laid-back style. Each day, without

any financial support, is an uphill task for its people to

survive. It is a critical condition that requires an immediate

solution for people who are penniless, and who are beginning

to starve. Every single minute counts. They cannot be

satisfied with a mere promise that the Cabinet will be

convened within fifteen days to solve their socio-economic

problems. Such placebo does not cure the disease.

32. Considering the critical financial problem being faced by the employees, considering the violation of their fundamental rights under Articles 21 and 23 of the Constitution of India, considering the violation of their statutory rights under the Payment of Wages Act, and other labour legislations, this Court requests the Hon'ble Chief Minister to immediately call an emergent Cabinet meeting, preferably on or before 28.06.2021 to resolve this financial crisis of the Corporation, and to ensure that the arrears of salaries for the months of February to June, 2021 are paid to the employees. For, the State cannot turn a Nelson's eye to the plight of its employees. In case, the Cabinet were to be convened on or before 28.06.2021, the learned Chief Secretary Mr. Om Prakash is directed to inform this Court on 29.06.2021 about the decision of the Cabinet with regard to the proposals made by the learned Secretary, Transport, and about the payment of arrears of salary to the employees of the Corporation.

33. The Registry is directed to list this case on

29.06.2021, along with the connected matter.

(RAGHVENDRA SINGH CHAUHAN, C.J.)

(ALOK KUMAR VERMA, J.) Dated: 26th June, 2021 Rathour