M. Nazeema and Another vs The Director of Collegiate Education and Others

K.A. Nayar, J.—The Original Petition is for a direction to quash proceedings of Respondents directing the Petitioners to refund the salary drawn by them for the period from 14th July 1982 to 23rd October 1982. The Petitioners were appointed as Last Grade staff in the M.S.M. College, Kayamkulam of which the 3rd Respondent is the Principal. Their appointments with effect from 14th July 1982 were duly reported to the Director of Collegiate Education and the Deputy Director of Collegiate Education, Respondents 1 and 2 in the petition. The Director of Collegiate Education approved the appointment of the Petitioners with effect from 14th July 1982. Eversince they were working as the last grade employees and were drawing the salary allowed to the post. After several years the first Respondent informed the 2nd Respondent and through him the 3rd Respondent that the Petitioners'' appointments can be approved only with effect from 23rd October 1982. On receiving the said instruction the 3rd Respondent wrote to Respondents 1 and 2 pointing out that the Petitioners were in service without break from 14th July 1982 and they have been granted salary and allowances from that date and that their appointments from 14th July 1982 had already been approved by Respondents 1 and 2. Therefore, Respondents 1 and 2 were requested that the appointment may be approved from 14th July 1982 But Respondents 1 and 2 directed the 3rd Respondent to recover the salary paid to the Petitioners from 14th July 1982 to 23rd October 1982, though the Petitioners had actually been working in the College during the said period. It is at that juncture the Petitioners approached this Court to restrain Respondents from recovering the salary paid to the Petitioners from 14th July 1982 to 23rd October 1982.

The Petitioners are admittedly appointed as last grade employees and their appointments from 14th July 1982 were also approved originally. They worked during the period in question for which salary and allowances have been paid to them. Now the salary paid for the period from 14th July 1982 to 23rd October 1982 is sought to be recovered from them on the ground that the posts they were holding were found to be excess of the sanctioned, strength for the period.

It may be that the posts have been sanctioned with effect from 23rd October 1982 and for the purpose Of their seniority and other service benefits their appointments to those posts can be considered from 23rd October 1982. But to ask last grade employees, who have been appointed on 14th July 1982 and working thereafter regularly, without objection, to refund the amount of salary and allowances drawn by them during the period they worked is clearly unjust.

The information that the appointment of the Petitioners from 14th July 1982 was not regular came on 22nd August 1987 after the period of five years of their appointments. Originally the, appointments with, effect from 14th July 1982 also have been approved by Respondents 1 and 2. Therefore, there is no justification for directing the Petitioners to refund the salary drawn by them for the work they have done. If they have worked during the period the remuneration including allowances due to them for the post in which they were worked cannot be denied.

Right to life includes the right to minimum subsistence allowance during, suspension see in State of Maharashtra Vs. Chandrabhan Tale, . In Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, at 173, the Supreme Court held that:

The right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a boynty from them nor can its survival be at their, mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work become as much fundamental.

The command that ''thou shall live on the sweat of thy brow'' will read in legal language that thou shall not deny the wages to the sweated labour. Work is done in many cases to earn livelihood and, therefore, if the wages are denied to the work done, it will lead to enforced labour and denial of right to life. Hence if the salary and allowances is directed to be refunded, it would mean that the Petitioners were made to work for the period from 14th July 1982 to 23rd October 1982 without any salary and that will amount to denial of right to life and. right to work.

Therefore, there shall be a direction to Respondents not to initiate any proceedings to recover the salary and allowances given to the Petitioners from 14th July 1982 to 23rd October 1982.

The Original Petition is allowed as above. No costs.