WPSS/1169/2004 of NANDA BALLABH KANDPAL Vs STATE

HIGH COURT OF UTTARANCHAL AT NAINITAL

(Court’s order whether the case is or not approved for reporting.)

(Chapter VIII Rule 32 (2) (b)

Description of the case.

W.P. No. 1169 of 2004 (S/S)

Babda Ballabh Kandpal

State of Uttar Pradesh and others

Approved for reporting

Not approved for reporting

Date of decision: 30.03.2006.

Initial of Judge

HIGH COURT OF UTTARANCHAL AT NAINITAL

Writ Petition no. 1169 of 2004 (SS)

Nanda Ballabh Kandpal s/o Sri Gauri Dutt Village Jaypur Patali, P.O. Lamachaur, Tehsil Haldwani District Nainital ……….

………. Petitioner

Versus

1.State of Uttaranchal

2.The Chief Engineer, Level I, P.W.D. Uttaranchal

3.The Chief Engineer, P.W.D. Kumaon Region, Almora

4.Superintending Engineer, 22[nd] Circle P.W.D. Nainital 5.The Executive Engineer, Provincial Division P.W.D. Nainital 5.The Executive Engineer, Provincial Division P.W.D. Nainital

6.The Executive Engineer, Construction Division, P.W.D. Haldwani, District Nainital .………. RespondentsHaldwani, District Nainital .………. Respondents

Sri Chetan Joshi, Advocate for the petitioners Standing Counsel for the respondents.

Dated: 30.3.2006

Hon. Rajesh Tandon, J.

Heard the learned counsel for the parties at length.

By the present writ petition the petitioners have prayed for the issue of writ, order or direction in the nature of Mandamus directing the respondents not to impose ceiling on dearness allowance payable to the petitioners.

Briefly stated the petitioners are work charge employees

of Public Works Department. The Government vide order dated 26.8.99 imposed ceiling on dearness allowance payable to the petitioners. Relevant paragraph of the said G.O. is quoted below:

fuEu izdkj iquZjhf{kr fd;s tkus dh Jh jkT;iky egksn; lg"kZ LohÑfr iznku djrs gSaA

Further by order dated 1.2.01 while granting dearness allowance

the following ceiling was imposed:

&&a&&'kk0 la0 5892@9927fl788 22@91fnukad 26-8-99 }kjk fu/kkZfjr lagr osru dh vf/kdre lhek ds vUrZxr gh dk;ZizHkkfjr deZpkfj;ksa dks osru lhfer j[kk tk;sxkA

Similar ceiling was also imposed regarding payment of

bonus to the work charge employees. Relevant paragraph of

G.O. dated 1.3.2001 is quoted below:

dk;ZizHkkfjr deZpkfj;ksa dks nSfud osru Hkksxh deZpkfj;ksa dh HkkWfr cksul vuqeU; &gS vr% dk;ZizHkkfjr deZpkfj;ksa ds fy, ekfld ifjyfC/k;ksa 1200@ izfrekg ekuh tk;sxhA pkgs mudh okLrfod ifjyfC/k;kW tks Hkh gksa bu deZpkfj;ksa dks ns; cksul dh /kujkf’k #0 1200 30@30-4 vFkkZr #01181@ iw.kkZfdr gksxhA

The petitioners have submitted that ceiling imposed as mentioned above is in contravention of Articles 14 and 21 of Constitution of India and the same is liable to be declared as ultra virus to the Constitution of India.

The Division Bench of this Court has passed order on 10.5.2002 in Writ Petition No. 392 (SB) of 2002 to the following effect:

“Notice on behalf of the opposite parties has been accepted by the Chief Standing Counsel, who prays for and allowed four weeks time to file counter affidavit, list thereafter.

In the mean time, the opposite parties shall make payment of salary to the petitioners from the current month ignoring the ceiling prescribed.”

The purpose of dearness allowance is to neutralize

increase in the costs of living due to rise in the price. Apex Court in the case of C.V.K.U. Sahakari Mandli vs. G.S. Barot, AIR 1980 SC 31, has defined the purpose of grant of dearness allowance. The observations are quoted below:

The law thus that dearness allowance is intended to neutralise portion of the increase in the cost of living. Though 100 per cent neutralisation is not advisable as it will lead to inflation, full neutralisation may be permissible only in the

case of the lowest class of employees. The management is entitled to complain if the neutralisation is more than 100 per cent.

The dearness allowance cannot be clubbed with the pay. Pay is not bounty but it is right under Article 21 of the Constitution of India and it is also covered under Article 21 from the judgment of the Apex Court in the case Kapila Hingorani (supra).

The petitioners’ counsel also drew the attention of the Court towards the Government Order dated 1.1.2000 issued by the State of U.P. by which restriction imposed with regard to ceiling on dearness allowance on the work charge employees have been withdrawn. The Government order reads as under:

v/kksgLrk{kjh dks ;g dgus dk funsZ”k gqvk gS fd osru lfefr dh laLrqfr;ksa

ijkUr ;g fu.kZ; fy;k x;k gS fd foRrh; fu;e laxzg [k.M &6 ds izLrj 667] 668 o 669 esa dk;ZizHkkfjr vf/k"Bku ls lEcfU/kr fu;qfDr dh O;oLFkk dks lekIr fd;k tk,A vr% jkT;iky egksn; foRrh; fu;e laxzg [k.M &6 ds mDr izLrj 667] 668 o 669 dh O;oLFkk dks rkRdkfyd izHkko ls lekIr fd;s tkus dh LohÑfr iznku djrs gSaA

Clause 668 of Work- charged Establishment Condition of

Employment reads as under:

668. In all cases previous sanction of the competent authority as laid down in Volume I of the Handbook or in the

departmental manuals of orders is necessary which should specify in respect of each appointment (1) the consolidated rate of pay (2) the period of sanction, and (3) the full name (as given in the estimate) of the work and the nature of the duties on which the person engaged would be employed.”

The petitioner has also argued that there cannot be arbitrariness in the salary in as much as any curtailment of pay will amount to unequal treatment as held in the case of Kumari Shrilekha Vidyarthi etc. vs. State of U.P. & others AIR 1991 SC 537. The Apex Court has observed as under:

“The preamble of the Constitution of India resolves to secure to all its citizens Justice, Social economic and political and Equality of status and opportunity. Every State action must be aimed at achieving this goal. Part IV of the Constitution contains ‘Directive Principles of State Policy’ which are fundamental in the governance of the country and are aimed at securing social an economic freedoms by appropriate State action which is complementary to individual fundamental rights guaranteed in Part III for protection against excesses of State action, to realise the vision in the Preamble. This being the philosophy of the Constitution, can it be said that it contemplates exclusion of Art. 14 –non-arbitrariness which is basic rule lo law-from State actions in contractual field when all actions of the State are meant for public good and expected to be fair and just? We have no doubt that the Constitution does not envisage or permit unfairness or unreasonableness in State actions in any sphere of its activitycontrary to the professed ideals in the Preamble. In our opinion, it would be alien to the Constitutional Scheme to accept the arguments of exclusion of Art.14 in contractual matters. The scope and permissible grounds of judicial review in such matters and the relief which may be available are different maters but that does not justify the view of its total exclusion. This is more so when the modern trend is also to examine the unreasonableness of term in such contracts where the bargaining power is unequal so that these are not negotiated contract but standard from contracts between unequal”

Apex Court in the case Kapila Hingorani vs. State of Bihar

2003 (7) AIC 18 SC has held that right to get salary is fundamental right and there cannot be any curtailment upon it. The Apex Court has held as under:

“The right to development in the developing countries is

itself human right. The same has been made part of WTO and GATT. In the World Trade Organization, Law, Practice, and Policy (Oxford) by Mathusushitaq Schoenbaum and Mauroidis at page 389, it is stated:

The United Nations has proclaimed the existence of

human right to development. The right refers not only to economic growth but also to human welfare, including health, education, employment social security, and wide-range of other human needs. This human right to

development is vaguely defined as so-called third-generation human right that cannot be implemented in the same way as civil and political human rights. Rather, it is the obligation of states and intergovernmental organizations to work within the scope of their authority to combat popery and misery in disadvantaged countries.

The matter may be considered from another angle. While the State expects the industrial houses and multi national companies to take such measures which would provide decent file to the persons living in the society in general and to their employees in particular and in that premise it too much to ask the State of practice what it preaches? This gives rise to another question. Can the State be so insensitive to the plight of its own citizens in general and the employee of the public Sector undertaking in particular?

The Court in 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 owner or controlled by it. right to carry on business is subjects to

compliance of constitutional obligations as also limitations provided for in the Constitution.

Financial stringency may not be ground for not issuing

requisite directions when question of violation of fundamental right arises. This Court has been highlighting this aspect in the matters concerning fundamental rights and maintenance of ecology. See Rural Litigation and Entitlement Kendra and others vs. State of Uttar Pradesh and others, AIR 1987 SC 359 Municiap Council Ratlam (1980)4 SCC 162 and B.L. Wadhera vs. Union of India AIR 1996 SC 2969. In All India Imam Organization and others vs. Union of India and others 1993 (3) SCC 584 this Court held:

…..Much was argued on behalf of the Union and the Wakf Boards that their financial position was not such that they can meet the obligations of paying the Imams as they are being paid in the State of Punjab. It was also urged that the number of mosque is so large that it would entail heavy expenditure which the Boards of different State would have not be able to bear. We do not find any correlation between the two. Financial difficulties of the institution cannot be above fundamental right of citizen. If the Boards have been entrusted with the responsibility of supervising and administering the wakf

then it is their duty to harness resources to pay those persons who perform the most important duty namely of leading community prayer in mosque the every purpose for which it is created.

The State of India are welfare States. They having

regard to the constitutional provisions adumbrated in the Constitution of India and in particular Part IV thereof laying down the Directive Principles of the State Policy and Part IVA laying down the Fundamental Duties are bound to preserve the practice to maintain the human dignity.”

In the case Secretary, Haryana State Electricity Board vs. Suresh and others, 1999 (2) SLR 1, the Apex Court has held as under:

“In this context reference to the Constitution Bench

decision of this Court in Nakara’s case (D.s. Nakara and others vs. Union of India, AIR 1983 SC 130, seems to be rather apposite. This Court stated that democratic socialism aims to end poverty, ignorance, disease and inequality of opportunity. The primary impact of socialism as matter fact is to offer and provide security of life so that the citizens of the country may have two square meals day, and maintenance of minimum standard of life, it is expected, would lead to the

abridgment of the gap between the have-s and have not-s. The feudal exploitation and Draconian concept of law ought not to outweigh the basic structure of the Constitution, or its socialistic status.

Our is socialist State as the Preamble depicts and the aim of socialism, therefore, ought to be to distribute the common richness and the wealth of the country in such way so as to sub-serve the need and the requirement.

of the common man. Article3 39 is pointer in that direction. Each clause under the Article specifically fixes certain social and economic goal so as to expand the horizon of benefits to be accrued to the general public at large. In particular reference to Article 39 (a) it is seen that the State ought to direct its policies in such manner so that the citizens men and women equally, have the right of an adequate means of livelihood and it is in this perspective again that the enactment in the statute book as notices above (The Contract Labour (Regulation & Abolition) Act 1970) ought to be read and interpreted so that social and economic justice may be achieved and the constitutional directive be given full pay.”

Division Bench of Uttaranchal High Court in the case State of Uttaranchal and others vs. Pushkar Bhatt and others, 2006(1) Uttaranchal Decision 587 has also held as under:

“In view of the logic and concept for payment of dearness allowance as laid down by the Hon’ble Apex Court quoted above, no ceiling limit can be fixed on the dearness allowance and since the Government has taken decision to pay the dearness allowance to the work charge employees, then it cannot fix ceiling limit thereon. Thus, the Government Order dated 26.8.1999 fixing the ceiling limit is contrary to the law laid down by the Hon’ble Apex Court which is law of the land under Article 141 of the Constitution of India and cannot be sustained.”

In view of the aforesaid facts and circumstance, writ of certiorari is issued quashing the Government order dated 26.8.1999 so far as it relates to the imposition of ceiling on dearness allowance and the respondents are directed to pay salary to the petitioners ignoring the ceiling prescribed.

Accordingly, writ petition is allowed. There will be no order as to costs.

Dated: 30.3.2006 Rajesh Tandon, J. *Dhyani