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2004 DIGILAW 663 (KAR)

NIJAGUNI v. STATE OF KARNATAKA

2004-11-29

body2004
K. BHAKTHAVATSALA, J. ( 1 ) TWO Government Orders one dated 7-6-2003 bearing No. FD. 8. SRP. 2003 and the second dated 29-1-2004 bearing No. FD 24 SRP 2003, insofar as adjusting the grant of enhanced Dearness Allowance at the rate of 3% and 4% of Basic Pay for the period from January 2003 to may 2003; and July 2003 to December 2003, respectively, towards calamity Relief Fund (in short, 'crf') are questioned in these writ petitions. Reg. Writ Petition Nos. 28702 of 2003, 10279 of 2004, 30484 and 30485 of 2003, 28270 to 28281 of 2003 and 9917 to 9920 of 2004. ( 2 ) THE contentions of the petitioners viz. , certain employees of the high Court of Karnataka and Karnataka High Court Employees' welfare Association (in short, 'khcew Association') are as under.- (i) that the service conditions of the employees of the High court of Karnataka are governed by the Rules framed under article 229 of the Constitution of India and the Chief Justice is the sole Authority to fix pay and allowance of the employees. (ii) that the petitioners are not the members of the Karnataka state Government Employees' Association (in short, 'ksge association') and therefore the unilateral decision of the said association to contribute the arrears of Dearness Allowance to the CRF is not binding on the petitioners and therefore the transfer of the arrears of Dearness Allowance as donation to the CRF is arbitrary and illegal. (iii) that the State Government has no power to impose its decision on the petitioners since they are not employees of the State Government. (iv) that the suo motu transfer of arrears of Dearness Allowance to the CRF is an unauthorised deduction from the salary of the employees. ( 3 ) THEREFORE, they have prayed for quashing the impugned portion of the above said Government Orders. Reg. Writ Petition Nos. 29955 to 29958 of 2003. The brief facts of the case leading to the filing of the writ petitions may be stated as under.- the petitioners 1 and 2 are working as Assistant Teachers in Vikasa high School, R. M. Nagar, Bangalore, and Sri Jaya Bharathi co-operative High School, Attibele, Bangalore, respectively. The 3rd petitioner is working as Physical Education Teacher in Sree Maruthi high School, Thataguni, Bangalore. The 4th petitioner is working as second Division Clerk in S. S. S. High School, Chamarajpet, Bangalore. The 3rd petitioner is working as Physical Education Teacher in Sree Maruthi high School, Thataguni, Bangalore. The 4th petitioner is working as second Division Clerk in S. S. S. High School, Chamarajpet, Bangalore. The above said Educational Institutions are Grant-in-Aid Educational institutions. The Government of Karnataka, by impugned Order dated 7-6-2003 has sanctioned enhanced Dearness Allowance by 3% of Basic pay, with effect from 1-1-2003, to the Government Servants, employees of Boards, Corporations, Aided Educational Institutions, Local authorities, etc. , on par with the Central Government employees. Further, as per the impugned Government Order, the enhanced dearness Allowance is payable to the employees in cash from the month of June 2003 onwards, but the 3% Dearness Allowance of Basic Pay for the period 1-1-2003 to 31-5-2003 shall be transferred to CRF, as agreed by the KSGE Association. It is contended that the so-called consent or authorisation given by the KSGE Association does not bind the petitioners as the association does not represent the employees of the boards, Corporations, Local Authorities, Aided Educational Institutions, etc. The action of the Government in depriving the arrears of enhanced dearness Allowance to the employees at 3% of the Basic Pay for the above said period is without the authority of law. As per para 6. 3 of the revision of Scales of Pay of the Government Order dated 18-1-1999, the dearness Allowance shall be paid twice a year from 1st of January with the salary for March and from 1st of July with the salary from september. Therefore, the KSGE Association had no role to play with regard to release of Dearness Allowance by the Government. ( 4 ) IN short, the petitioners have urged the following grounds.- (a) that the Government Order adjusting the arrears of dearness Allowance from the salary of the employees for the period 1-1-2003 to 31-5-2003 as donation to the CRF without obtaining individual written consent of the employees, is violative of Articles 14, 16 and 21 of the Constitution of india. (b) that the KSGE Association does not represent the employees of Boards, Corporations, Local Authorities, Aided educational Institutions, etc. , and therefore the so-called consent of the Association cannot bind the petitioners. (c) that it is the obligation of the State to re-habilitate the people, who are adversely affected by the Calamity by mobilising the revenues by way of taxation and it is not by expropriation. , and therefore the so-called consent of the Association cannot bind the petitioners. (c) that it is the obligation of the State to re-habilitate the people, who are adversely affected by the Calamity by mobilising the revenues by way of taxation and it is not by expropriation. (d) that there is no law by which the State can take away the money payable to the employees through wages/salary. (e) that the employees, who are in the lower strata may not be able to donate the entire arrears of Dearness Allowance for five months, and what the percentage of arrears should be contributed to the CRF should be left to the employees' choice for voluntary contribution instead of suo motu recovery. (f) that the KSGE Association may have a bargaining capacity to discuss the issues, but it cannot under any stretch of imagination give consent like a Trade Union. (g) that more than Rs. 55 crores was sought to be deducted by the impugned order towards the CRF, but the petitioners/employees do not know for what purpose the money is sought to be utilised. (h) that the action of the Government insofar as compulsory contribution towards CRF is high handed, illegal, arbitrary and capricious. Since these writ petitions are directed against either of the two government Orders, insofar as, adjusting the grant of enhanced Dearness allowance towards CRF, I have heard common arguments, and I am proceeding to dispose of the writ petitions by this common order. ( 5 ) SRI K. Subba Rao, learned Senior Counsel, appearing for the petitioners/employees of the Aided Educational Institutions, reiterated the grounds urged in the writ petition and also submitted that the ksge Association, which is registered under the Karnataka Societies registration Act, 1960, with an object of promotion of Education, science, Literature, Fine Arts, Charity and Sports cannot play the role that of a Trade Union registered under the Trade Unions Act, 1926. Apart from that, the petitioners are not the members of KSGE association. Therefore, any such consent given by the said KSGE association is not binding on the petitioners. It is also contended that the KSGE Association has not done any such great favour in getting the enhanced Dearness Allowance released, because para 6. Apart from that, the petitioners are not the members of KSGE association. Therefore, any such consent given by the said KSGE association is not binding on the petitioners. It is also contended that the KSGE Association has not done any such great favour in getting the enhanced Dearness Allowance released, because para 6. 3 of the government Order dated 18-1-1999 itself mandates that Dearness allowances shall be paid twice a year from the 1st January with the salary of March and from 1st J / with the salary for September and it is an accrued right of the employees, and therefore the contention of ksge Association that the enhanced Dearness Allowance was got released at its intervention and effort holds no water. ( 6 ) SRI P. S. Rajagopal, learned Counsel appearing for the KHCEW association and certain employees of the High Court, reiterated the grounds urged in the writ petitions, and also submitted that the petitioners are not the employees of the KSGE Association, and the hon'ble High Court of Karnataka has recognised only KHCEW association and without the consent of KHCEW Association, which represented the High Court employees, the KSGE Association had no right to represent the employees of Karnataka High Court and give its unilateral consent for transferring the enhanced Dearness Allowance towards the CRF. He further submitted that as per Articles 50 and 229 of the Constitution of India, the impugned portions of the Government orders are not binding on the High Court. He also cited the following decisions with reference to Article 229 of the Constitution of India. The decisions cited by him are as under.- (i) Chief Justice of Andhra Pradesh and Another v L. V. A. Dikshitulu and Others; (ii) M. Gurumoorthy v Accountant General, Assam and nagaland and Others; (iii) M/s. Lakshmi Machine Works Limited, Unit I, Coimbatore v m/s. L. M. W. Workers Union, Coimbatore ; (iv) State Bank Staff Union v State Bank of India. Sri Balakrishna Shastry, learned Counsel appearing for the petitioner in W. P. No. 28702 of 2003 has adopted the arguments of Sri p. S. Rajagopal. Sri Krishna Moorthy, learned Counsel appearing for the Petitioner in w. P. No. 10279 of 2004, also adopted the arguments of Sri P. S. Rajagopal, and cited the following decisions with reference to Articles 50 and 229 of Constitution of India. Sri Krishna Moorthy, learned Counsel appearing for the Petitioner in w. P. No. 10279 of 2004, also adopted the arguments of Sri P. S. Rajagopal, and cited the following decisions with reference to Articles 50 and 229 of Constitution of India. The decisions cited by him are as under.- (i) Pradyat Kumar Bose v. Hon'ble Chief Justice of Calcutta high Court; (ii) L. V. A. Dikshitulu's case; (iii) Union of India and Others v Pratibha Bonnerjea and another ; (iv) Union of India and Another v S. B. Vohra and Others. On the other hand, Sri Puttasiddaiah, learned Government Pleader, submitted his arguments in support of the impugned Government notifications. Sri V. Lakshminarayana, learned Counsel appearing for KSGE association has contended as under.- (a) that since the Government had proposed (i) to freeze dearness Allowance, (ii) to withdraw the Scheme of Leave encashment of Earned Leave for the year 2003, and (iii) to allow only 1/5th of Communication of Pension instead of 1/3rd the Association objected to proposals of the State government and in the negotiation, the Association agreed to give arrears of Dearness Allowance towards CRF, so as to safeguard the interest of its members/employees. (b) that earlier also arrears of Dearness Allowance or a day's salary was contributed by the employees towards (i) State irrigation Project Fund, (ii) Gujarat Earthquake Relief Fund, (iii) Kargil War Relief Fund, (iv) Orissa Natural Calamity fund, (v) Andhra Pradesh Floods Calamity Fund, etc. (c) that the KSGE Association represents the petitioners and therefore the decision of the association is binding on them. He has cited the following decisions rendered with reference to industrial Disputes Act.- (i) Hindustan Times Limited, New Delhi v Their Workmen; (ii) Management of M/s. Gaziabad Engineering Company private Limited v Its Workmen ; (iii) Parvathi Mills Limited v Workmen of Parvathi Mills and others. ( 7 ) IN the light of the submissions made by the learned Counsels for the parties, the following points would arise for consideration.- (I) Whether the KSGE Association had any such right or authority to consent for recovery of entire arrears of Dearness Allowance payable for the period from January 2003 to May 2003 and from july 2003 to December 2003 to the employees of the High court/employees of the Aided Educational Institutions, towards crf, as stated in para 3 of the impugned Orders? (ii) If not, whether para 3 of the impugned Government Orders is binding on the petitioners?reg. Point Nos. (i) and (ii ).- as material on these points is inter-linked, I take up both the points together for consideration. ( 8 ) SRI Lakshminarayana, learned Advocate for KSGE Association moved heaven and earth to justify the action of the Association contending that since the Government wanted to freeze Dearness allowance; withdraw the Scheme of Leave Encashment of Earned Leave and restrict Commutation of Pension to the extent of 1/5th instead of 1/3rd the President of the Association, who had participated in the meeting convened by the Government agreed and consented for adjusting the arrears of enhanced Dearness Allowance for a period of five months towards CRF instead of freezing the Dearness Allowance, etc. Again when the KSGE Association requested to release the 2nd installment of enhanced Dearness Allowance with effect from 1-7-2003, it agreed for recovery of 6 months enhanced arrears of Dearness allowance towards CRF in the interest of employees. It is further contended that the Association represents the employees of the State including the petitioners/employees herein and hence it had the right to give such consent in the interest of the employees, and therefore there is nothing wrong on the part of the Government in adjusting the arrears of dearness Allowance to which there was no accrued interest in favour of employees, towards CRF. ( 9 ) THE KSGE Association utterly failed to establish its right par with that of a Trade Union registered under the Trade Unions Act, 1926. I am of the opinion that if the recovery/contribution towards the said relief Fund were to be a day's or a few days salary, the petitioners would not have approached this Court. The enhanced Dearness allowance is to regulate with reference to All India Average Price. As per para 6. 3 of the Government Order dated 18-1-1999, the Government is bound to grant enhanced Dearness Allowance, as stipulated, and it is mandatory. For example, in the case of a Group 'd' employee, whose salary is Rs. 2,500a as per recovery clause, he has to pay Rs. 75/- p. m. (3% of Basic Pay) and Rs. 375/- for 5 months. 3 of the Government Order dated 18-1-1999, the Government is bound to grant enhanced Dearness Allowance, as stipulated, and it is mandatory. For example, in the case of a Group 'd' employee, whose salary is Rs. 2,500a as per recovery clause, he has to pay Rs. 75/- p. m. (3% of Basic Pay) and Rs. 375/- for 5 months. It is pertinent to mention that KSGE Association, while moving the Government for release of the second enhanced Dearness Allowance, has consented to adjust the enhanced arrears of Dearness Allowance (i. e. , 4% of Basic Pay) from 1st of July, 2003 till the end of December 2003 towards CRF. Therefore, the government, by its order dated 29-1-2004, has appropriated the six months' arrears of Dearness Allowance at the rate of 4% of Basic Pay towards CRF. The petitioners viz. , the employees of the Aided educational Institutions have not challenged the second Government order dated 29-1-2004. In the case of Group 'd' employee, 4% of dearness Allowance of Rs. 2,500/- for six months comes to Rs. 600/ -. Thus, a Group 'd' employee, as per the impugned Government Orders, has to contribute his 11 months Dearness Allowance amounting to Rs. 975/- towards the CRF. For a Group 'd' employee, a sum of Rs. 975/- per annum cannot be treated as paltry. The KSGE Association, which claims to have done some service to the employees, had not taken into consideration this aspect of the matter before giving its consent to the government. In other words, the Association has left the employees in lurch, making the lower strata of employees also to suffer. It is not the case of the K. S. G. E Association that the petitioners can afford to suffer the monetary loss. It is common knowledge that whenever the State's financial position is weak and the enhanced Dearness Allowance is released, the arrears of Dearness Allowance is ordered to be kept either in National Savings Certificate or credit the same to Provident Fund account of the employees. Thus, immediate cash payment was deferred for few years. But, in the instant case, there is a total denial of the enhanced Dearness Allowance. Further, there is no truth in the contention of KSGE Association, that it had the authority to represent the petitioners and consent for recovery of arrears of Dearness allowance. Thus, immediate cash payment was deferred for few years. But, in the instant case, there is a total denial of the enhanced Dearness Allowance. Further, there is no truth in the contention of KSGE Association, that it had the authority to represent the petitioners and consent for recovery of arrears of Dearness allowance. The decisions cited with reference to the Industrial Disputes Act by Sri V. Lakshminarayana are of no avail to the case of the respondents. ( 10 ) THE learned Government Pleader also addressed arguments justifying the action of the Government insofar as recovery of arrears of dearness Allowance contending that since the employees had earlier contributed arrears of Dearness Allowance/a portion of their salary towards various Funds like State Irrigation Project Fund, Gujarat earthquake Relief Fund, Kargil War Relief Fund, Orissa Natural calamity Fund, Andhra Pradesh Floods Calamity Fund, etc. , the state acting on the representation and consent given by the KSGE association adjusted the arrears of Dearness Allowance towards the crf, and there is no merit in the writ petitions. Admittedly, the employees of the State have contributed towards certain Relief funds. For example, it is necessary to refer to Government Order dated 24-6-1999 regarding Kargil War Relief Fund. It is useful to excerpt the preamble as well as para l (a), (b) and (c) and para 4 of the above said Government Order dated 24-6-1999, which reads as under.-"proceedings OF THE GOVERNMENT OF KARNATAKA sub: Contribution from each Government Servant towards Kargil war Relief Fund. Preamble: the Karnataka State Government Employee's Association has stated in their letter dated 18-6-1999 that it is the duty of every indian Citizen to contribute towards Relief for the soldiers who are fighting at Kargil in protection of the country's security. Considering the magnitude of sufferings of the soldiers in the extreme climatic conditions at Kargil and also to be a source of solace to the families of soldiers who have sacrificed their lives for the security of the country, the Employees' Association have volunteered to contribute a sum of Rs. 3 Crores out of the salary towards Kargil war Relief Fund. While appreciating the patriotism and the gesture of Government Employees in this noble cause, Government has agreed to recover a sum amounting to around Rs. 3 Crores from the salaries of the employees. Hence, the following order. 3 Crores out of the salary towards Kargil war Relief Fund. While appreciating the patriotism and the gesture of Government Employees in this noble cause, Government has agreed to recover a sum amounting to around Rs. 3 Crores from the salaries of the employees. Hence, the following order. Government Order No. FD 31 SRP 99, Bangalore, dated 24th of June, 1999 government accords sanction for deduction of contribution of one Hundredth (1/100) of gross salary for the month of June 1999 from the salary of each employee for the month of June 1999 in respect of Kargil War Relief Fund. The procedure for deduction and credit of the amount of contribution will be as follows: (a) The Drawing and Disbursing Officers, Heads of Offices and Treasury Officers are authorised to recover the contribution at One Hundredth (1/100) of the gross salary from the employees by deduction from the Pay Bills for the month of June 1999. In case, the recovery cannot be effected in the salary for the month of June 1999, the recovery shall be made in the salary for the month of July 1999 positively. (b) An employee who is unwilling to contribute towards the war Relief Fund should immediately give an intimation in writing to that effect to the respective pay drawing officers on or before 29-6-1999. If no such intimation is received, it will be presumed that the Employee has no objection for the deduction of contribution towards the fund. In case, any officer/official desires to contribute more than One Hundredth (1/100) of the gross salary to the fund, he shall give an undertaking in writing to the pay drawing officer to that effect. (c) The deduction from each employee should be shown against his/her name in the body of the pay bill under separate deduction column "contribution to Kargil War relief Fund" and the total amount of deduction from the entire bill should be shown on the facing page of the bill distinctly as contribution to Kargil War Relief Fund. The treasury Officer should pay the bill for the gross amount by transferring credit of the contribution to the Suspense Head indicated below. He will issue the cheque in favour of the drawing officer for the net amount for disbursement of salaries. (d ). . . . . . . . . . . . (e ). . . . . . . . . He will issue the cheque in favour of the drawing officer for the net amount for disbursement of salaries. (d ). . . . . . . . . . . . (e ). . . . . . . . . . . . (f ). . . . . . . . . . . . (g ). . . . . . . . . . . . 2. . . . . . . . . . . . . 3. . . . . . . . . . . . . 4. The Local Bodies and other Aided Institutions are also requested to take similar action in respect of employees working under them. They may issue cheques for their contribution drawn in favour of Kargil War Relief Fund, ministry of Defence, New Delhi to the address mentioned above under intimation to the Finance Department, Vidhana soudha, Bangalore. 5. . . . . . . . . . ". ( 11 ) IT is crystal-clear from para 1 (b) of the Government Order that an opportunity was given to the concerned employees with regard to making contribution or otherwise towards the fund. In the instant case, no such opportunity has been given to the employees. As rightly contended by Sri Subba Rao, if the Government wants to meet such unforeseen eventualities, it has got all the powers to raise revenue legally by virtue of the legislative powers conferred upon it in the constitution of India and without having recourse to such act compelling the employees to donate the required amount, is against rule of Law. In the event of deduction other than statutory, the employer cannot deduct out of wages/salary without the written consent of the employee. That is the reason why the Payment of Wages Act has been enacted. The action of the State Government in appropriating the enhanced Dearness Allowance of 3% of basic pay granted for the period from 1-1-2003 to 31-5-2003 as contribution from the employees to calamity Relief Fund without their consent is not justifiable in law. With reference to the employees of the High Court are concerned, the registrar General has not filed statement of objections. With reference to the employees of the High Court are concerned, the registrar General has not filed statement of objections. The learned high Court Government Pleader was silent as to the question whether the recovery of arrears of Dearness Allowance towards CRF, as per impugned Orders, is binding on the High Court or not? ( 12 ) INDEPENDENCE of judiciary is an essential attribute of Rule of Law, which is a basic feature of the constitution. Judiciary must be free not only from executive pressure but also from other pressures. As per article 229 of the Constitution of India, appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court, as he may direct. Further, subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the court or by some other Judge or Officer of the Court authorised by the chief Justice to make Rules for the purpose. Further, the administrative expenses of a High Court, including all salaries, allowances and pension payable to or in respect of the officers and servants of the Court, shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of that Fund. Therefore, in view of Article 229 of the Constitution of India, the State Government cannot affect the service conditions of the employees of High Court adversely by issuing a Government Order. Further, the High Court of karnataka has recognised only the Karnataka High Court Employees' welfare Association and the members are also willing to donate towards the CRF after taking a decision in that regard. The petitioners have contended that they are the members of K. H. C. E. W. Association, but not the KSGE Association, and therefore the KSGE Association had no such right to give such consent on behalf of the employees of the High Court for deduction of the arrears of Dearness Allowance and transfer the same towards CRF. The petitioners have contended that they are the members of K. H. C. E. W. Association, but not the KSGE Association, and therefore the KSGE Association had no such right to give such consent on behalf of the employees of the High Court for deduction of the arrears of Dearness Allowance and transfer the same towards CRF. As per the record placed by the High Court of karnataka, the enhanced Dearness Allowance of 3% given for the month of January 2003 to May 2003 (both months inclusive) has not been drawn by the High Court. Whereas the subsequent enhanced Dearness allowance of 4% for the period July 2003 to December 2003 (both months inclusive) has been drawn and credited to the Head of Account, as contribution towards CRF. ( 13 ) IN view of the ratio laid down by the Hon'ble Supreme Court of india while interpreting Article 229 of the Constitution of India, the impugned notifications with regard to the compulsory deduction and transfer of the enhanced Dearness Allowance towards the CRF in relation to employees of High Court are not binding on the High Court and its employees. In other words it is the prerogative of the Hon'ble chief Justice under Article 229 of the Constitution of India to issue suitable direction or orders in that regard after considering the issue in question. There cannot be any dispute about this principle of law. For the foregoing reasons, I answer point Nos. (i) and (ii) in the negative. ( 14 ) CONSEQUENTLY, the Writ Petition Nos. 28702 of 2003, 10279 of 2004, 30484 and 30485 of 2003, 28270 to 28281 of 2003 and 9917 to 9920 of 2004 are allowed. The Registrar (General), High Court of Karnataka, is directed to place this order before the Hon'ble Chief Justice, within a week from today and seek instructions/directions pertaining to obtaining the consent of the Karnataka High Court Employees Welfare association regarding the employees contribution towards CRF and pass appropriate orders regarding High Court employees quantum of contribution towards CRF, quantum of refund if any or investment of arrears of D. A. etc. , and such process shall be completed within two months from today. ( 15 ) FURTHER, the Writ Petition Nos. , and such process shall be completed within two months from today. ( 15 ) FURTHER, the Writ Petition Nos. 29955 to 29958 of 2003 are also allowed, and the impugned Government Order insofar as adjusting the enhanced arrears of Dearness Allowance for the period from 1-1-2003 to 31-5-2003 towards Calamity Relief Fund is struck down insofar as the case of the petitioners only, and they are entitled for refund of the enhanced Dearness Allowance for the period of five months, i. e. , from 1-1-2003 to 31-5-2003, in cash. It is made clear that they are not entitled to seek refund of arrears of Dearness Allowance for the period 1-7-2003 to 31-12-2003 as they have not challenged the Government Order dated 29-1-2004. In the circumstances of the case I pass no order as to costs. The learned Government Pleader is permitted to file memo of appearance within three weeks. --- *** --- .