[Article 300A] Executive Fiat Not 'Authority Of Law' To Deny Salary, Pension: AP HC Quashes G.O.s Deferring Payments Amidst Lockdown [Read Order]

The Andhra Pradesh High Court on Tuesday, in exercise of "equity jurisdiction", directed the state government to disburse to its employees the deferred part of salary and pension with interest @ 12%, quashing the Government Orders deferring the payments as being violative of Articles 14, 15, 16, 21 and 300-A of the Constitution and Human Right to Livelihood guaranteed under Article 25(1) of Universal Declaration of Human Rights. On account of the lockdown and the consequent financial crisis, by the impugned G.O.'s, the government had effected the deferment of part of salary to the government servants for the months of March and April, 2020 and deferment of part of pension to the retired government servants for the month of March, 2020. "No doubt, when financial emergency is declared in the State, Article 360(4)(a)(i) of the Constitution of India permits reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of a State. But, in the State of Andhra Pradesh, no such financial emergency was in force during the months of March and April, 2020 and no other law permits such deferment of salary or pension etc., payable to the employees of the State or State Corporations, etc", observed Justices M. Satyanarayan Murthy and Lalitha Kanneganti. Conceding that on account of lockdown, there was no business activity in the State, and the Country as well as State's generation of income or taxes by the Government is reduced to minimum extent, the division bench stated that merely because the Government is without any resources to meet the liability to pay full salary or pension to the employees, the State employees cannot be deprived of their right to property in the absence of any authority of law. "The State's dried up financial resources to meet the liability to pay salaries and pensions is not a ground and the State cannot run away from discharging its duty to pay salaries having extracted work from the employees and such act is violative of the fundamental right guaranteed under Articles 21 and 300-A of the Constitution of India and Human Right under Article 25(1) of Universal Declaration of Human Rights", ruled the bench. Right to property a human right "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", appreciated the bench. Reliance was placed on apex court authorities holding that right of a person to his livelihood is that property, and that 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. The division bench further said that 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 bench reflected that the right to property of a private individual, though permitted to be deprived of, must be by authority of law. Noting that even still, Article 25 (1) of the Universal Declaration of Human Rights recognized such right in property as human right, and that India is a State Party to the declaration, the bench regretted that the right to property is not being considered as human right till date by many Courts. "A liberal reading of these two provisions (Article 300A of the Constitution and Article 25(1) of the UDHR), 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", remarked the bench. The bench was of the view that the government servants after retirement being pensioners 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 in service are bound to face certain difficulties, if salary payment is deferred either in full or part for the reason that sometimes most of the employees would be under obligation to repay housing loans and would be having other financial commitments, their regular maintenance, besides deduction of income tax and other tax liabilities. If, part of the amount is appropriated toward those liabilities, hardly the balance amount which the employees would be receiving would not be sufficient for their livelihood. "While deciding such an issue, the Court has to take into consideration the common man's and middle class employee's lifestyle and decide the ...

[Article 300A] Executive Fiat Not 'Authority Of Law' To Deny Salary, Pension: AP HC Quashes G.O.s Deferring Payments Amidst Lockdown [Read Order]

Mehal Jain

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