Kerala HC stays Govt Order Deferring Payment Of Portion Of Salary To Govt Servants Amid COVID-19

In State of M.P Vs. Ranojirao Shinde [AIR

(1968) SC 1053], it has been held that right to a sum of

money is ‘property’. In the decision in Deokinandan Prasad

Vs. State of Bihar & others [AIR 1971 SC 1409], it has

been held that right to receive pension is a property and the

same cannot be taken away or withheld by a mere executive

order. If, right to receive a sum of money is a property right

and if pension, which is only a deferred salary, cannot be

withheld without authority of law, it needs no elaborate

consideration, at this stage atleast, to hold that salary or any

portion of it cannot be withheld/deferred/denied, by the State

Government, without authority of law. Article 300A of the

Constitution of India which confers a constitutional right to

property, will include within its purview, salary also, as a

property right, atleast prima facie. Though, as submitted by

the learned Advocate General, Kerala Financial Code is only a

compilation of various orders and is not a law unto itself but

only lays down the procedure in which the disbursement of

salary is to be made, I cannot countenance the submission that

the Government has the power to delay the disbursement of

salary by few months by an executive order. When our

Constitution in unmistakable terms stipulates that property of a

citizen can be deprived only by an authority of law, and when

that authority of law means a law duly framed, Ext.P1 to be

valid, must of necessity trace its source to some provision of

law.

18. However much I tried to bring Ext.P1 within some

framework of law, I could not find any basis for such an order

in any of the statutes. Neither in the Epidemic Diseases Act

1897 as amended by the Ordinance of 2020 (Epidemic Diseases

Amendment Ordinance No.5 of 2020) nor in the Disaster

Management Act 2005, could I seek solace, to give a legal

justification for the issuance of Ext.P1. The provisions that were

read out, specifically Sections 38 and 39 of the Disaster

Management Act 2005, do not specify or confer any power

upon any Government to defer the salary due to its employees

during any kind of disaster. Prima facie, I feel that law is found

wanting to justify the issuance of Ext.P1.

19. I also find from Ext.P1 that there is ambiguity in the

manner in which the amounts obtained from the proposed

deferment of salary is planned to be utilized. It only refers to

the financial difficulty that is faced by the Government. The

said financial difficulty is not a ground for the State

Government to defer the payment of salary by an executive

order. Prima facie, I find that deferment of salary for whatever

purposes it may be, amounts to denial of property. In such a

view of the matter, I stay the operation of Ext.P1 for a period of

two months.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

 MR.JUSTICE BECHU KURIAN THOMAS

W.P(C) TMP NO.182 OF 2020

KERALA VYDYUTHI MAZDOOR SANGHAM (BMS) Vs STATE OF KERALA,

Dated this the 28th day of April, 2020

[W.P.(C) TMP Nos.182, 183, 184, 196 & 198 of 2020]

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Whether government servant can be denied pension if he is compulsorily retired?

In the present case, the qualifying service for getting the pension is of 10 years' duration, as prescribed under Regulation 14 of the Pension Regulations. The right to get the pension accrues as soon as an employee completes 10 years of his service. It cannot be denied to him unless it is shown that he is either disqualified for getting the pension or the past service rendered by him is forfeited under any of the statutory provisions. Under the service jurisprudence, normally an employee, who is terminated, dismissed or removed from service by way of punishment, is disqualified for getting the pension. On tendering resignation upon rendering qualifying service, an employee incurs forfeiture of his past service. The voluntary retirement, after rendering qualified service, or compulsory retirement, would not result either in disqualification for getting the pension or forfeiture of the past service rendered.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 2348 of 2017

Decided On: 21.09.2018

 Vandana Vs. State Bank of India and Ors.

Hon'ble Judges/Coram:

R.K. Deshpande and Arun D. Upadhye, JJ.

Citation: 2019(2) MHLJ 197

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Whether right to property is fundamental right?

A brief history of property rights in Independent India: The history of property rights in India is way too complicated for me to provide for a detailed account herein. I’ll instead just aim for a very brief summary of the same.

When independent India first adopted its Constitution, the Right to Property, as enshrined in Article 19(1)(f), was a fundamental right and therefore placed at a high pedestal. Article 19(1)(f) had to be read along with Article 31 of the Constitution in order to prevent the Government from depriving a person of his property without the “authority of the law” and further that such law should provide “for compensation for the property taken possession of or acquired and either fixes the amount of compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and give”.

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Whether municipal corporation can evict tenant for road widening relying on consent given by landlord?

 The question referred is limited whether in case of
acquisition of land by municipal authorities, for road widening,
on consent of landlord of a shop any notice is necessary to be
given to the tenant in the shop?.  The Full Bench in
Ushodaya Publications (supra) considered almost similar
question and observed that a Municipal Corporation being
statutory authority has right to take possession of the land but
they must exercise their right within four corners of the
statute.  It was further observed that it is one thing to say
that the provisions of the MCH Act for acquiring land are not
required to be taken recourse to as the owner thereof has
given consent but the same would not mean that the lessees
consent need not be taken.  There cannot be any doubt
whatsoever that the consent granted by the lessor/owner
would not be binding upon a lessee and in that view of the
matter the Corporation has no right to take forcible possession
of the shop/land, such as in the present case, relying on the
purported consent obtained by it from the lessor, without
taking recourse to the provisions of the Land Acquisition Act,
thereby depriving the lessee of his valuable right.  Thus,
according to the Full Bench, a notice to the lessee/tenant in
the shop is necessary in case of acquisition of land by the
municipal authorities for road widening on consent of landlord
of a shop. 
HYDERABAD HIGH COURT

Order Dated;27-11-2015 

Raisunna Begum & others Appellants/Petitioners  
Vs

Premsukhai Jain & others Respondents   




THE HONBLE THE ACTING CHIEF JUSTICE SRI DILIP B.BHOSALE,           
THE HONBLE SRI JUSTICE M.S.RAMACHANDRA RAO,            
THE HONBLE SRI JUSTICE S.V.BHATT,      
THE HONBLE SRI JUSTICE S.RAVI KUMAR        
AND  
THE HONBLE MRS. JUSTICE ANIS      

W.A.No.453 of 2005, W.P.Nos.5135 of 2001 and 10106 of 2002   


Citation;AIR 2016 Hyderabad 100

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