[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 case in a proper perspective. If an ordinary employee is maintaining a 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", observed the bench.

The bench repeated that an important facet of that right to life under Article 21 is the right to livelihood because no person can live without the means of living. If the right to livelihood is not treated as a part of the fundamental 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. "The right to live with human dignity, free from exploitation is enshrined in Article 21 and derives its life breath 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", reiterated the bench.

Right to property cannot be deprived without authority of law

"As salary and pension 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", noted the bench, adding that this means a property of any citizen of India cannot be taken unless the State is authorized to do so.

Noting that 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, the bench opined that 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.

The High Court referred to the meaning of 'authority of law', noting that 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.

"Law means the legislation passed by the parliament or State Legislation or Statutory rules or orders", inferred the bench. Reliance was placed on Apex Court judgments holding that 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 State Legislature, a rule, or a statutory order; having the force of law, that is positive or State made law.

The bench appreciated that except reduction of pensionary benefits under Rule 9 of the Andhra Pradesh Revised Pension Rules and reduction of salary in terms of C.C.A Rules, and too only if the government servant is found guilty of misconduct after conducting necessary enquiry, no other procedure is available in any statute to defer payment of salary, pension or defect of salary or pension in part or in full. "But the question of all the employees in the state guilty of any misconduct to defer payment of salary or pension in the present case does not arise", said the bench.

Noting that one of the references made in the G.Os deals with regard to State Plan prescribed under Section 23 of the Disaster Management Act, the bench proceeded to hold that none of the provisions of the Disaster Management Act, more particularly, Chapter III which deals with State Disaster management Authorities consisting of Sections 14 to 24, provide for deferment either in part or in full and pension. The bench concluded that the G.O.s are not based on any authority of law, except executive fiat, thereby declaring them as arbitrary and illegal and violative of fundamental rights.

"There is a distinction between pay docking of employees and deferment 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 part 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 salaries or pension 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 part of salary or pension amount to violation of constitutional right guaranteed under Article 300-A of the Constitution of India, since such deferment is witout any authority of law", explained the bench.

One of the contentions raised by this petitioner was that, when the other departments like Medical & Health Department, Police Department, Sanitation workers working in Rural Local Bodies/Urban Local Bodies are being paid their full salary without deferment, the other employees shall also be paid full amount of salary and pension. "In the instant case, undisputedly, G.O.No.27 dated 04.04.2020 has limited payment of salaries to Medical & Health Department, Police Department, Sanitation workers working in Rural Local Bodies/Urban Local Bodies i.e Nagar Panchayats/Municipalities/ Municipal Corporations employees who are frontline warriors to prevent spreading of Covid-19 and the other employees were not given the benefits to claim full salary", noted the bench, holding thereby that such deferment of salary to employees of other departments is contrary to the concept of equal pay for equal work, as enshrined under Articles 14, 15 & 16 of the Constitution.

Petitioner, despite being a retired judicial officer of Telangana, can, as citizen of the country, question unconstitutional State acts

An issue which was raised by the state at the outset was whether the petitioner being a retired Judicial officer who was allotted to the State of Telangana after separation from State of Telangana and State of Andhra Pradesh is competent to file the writ petition, invoking pro bono publico

"Here, the petitioner is native of Draksharamam and retired Judicial officer, allotted to the State of Telangana. She being the citizen of this country can question the State acts if those acts are violative of any constitutional provisions", ruled the bench.

The High Court observed that if the petitioner is denied her right to approach the court by invoking pro bono publico, it is denial of her right on the ground that she has no interest directly or indirectly in the litigation and it would amount to depriving a citizen of India to access to Justice for violation of any of the constitutional provisions and that was not the main intention of the public interest litigation.

"In the present facts, the petitioner had no personal interest, but she approached the Court, Court representing more than four lakh employees, besides approximately equal number of pensioners", acknowledged the bench, adding that each and every employee or pensioner cannot approach this Court spending huge amount and time and that even if everyone files such petitions, no purpose would be served, except multiplication of work and duplication of order.

"No personal or political colour is attributed to the very filing petition. In the absence of attribution of any malafides or political or other reasons, the petitioner being a citizen is entitled to espouse the cause of a class of citizenry. Hence, we find that the public interest litigation is maintainable", ruled the bench.

Nevertheless, the bench recognised that "today people rush to Courts to file cases in profusion under this attractive name of public interest", and that there are certain "no-go" areas where the Court cannot exercise power in the name of Public Interest Litigation. "PIL is not a process to be invoked or used for the purpose of seeking or laying down advisory opinions on matters of governance and exercise of governmental authority, since PIL is a supplement to existing means of constitutional governance", reiterated the bench. 

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