'A Person Cannot Be Forced To Donate': Calcutta HC On Unilateral Deduction Of University Employees' Salaries For Contribution To CM Relief Fund

The Calcutta High Court on Tuesday opined that a University cannot deduct a portion of the salary of its employees, as donation, without obtaining their consent.

The Court was adjudicating upon a plea filed by professors of the Visva-Bharati University, Santiniketan against the order of the Registrar compelling them to donate a day's salary to the Chief Minister's Relief Fund, West Bengal/West Bengal State Emergency Relief Fund in aid of the people affected by cyclone Amphan that hit Kolkata and several districts of West Bengal on 20th May, 2020.

Justice Amrita Sinha observed, 

"The employer neither has the power nor the authority to deduct salary or any portion thereof of an employee, unilaterally, in the garb of donation. A person cannot be forced to donate. The moment force is applied, the act of the donor does not remain voluntary, and it amounts to forcible deduction, which is grossly different from the term donation"

On May 24, 2020 a notice was issued by the Registrar (Acting) of the University intimating that the accounts office shall deduct a day's salary from the monthly salary of May 2020 for donating the same to the Chief Minister's Relief Fund, West Bengal. Subsequently, a notice dated May 29, 2020 was issued by the Registrar directing all permanent employees of the University to donate one day's salary to the aforementioned Relief Fund pursuant to the powers vested under Sections 6 and 14(3) and other provisions of the Visva-Bharati Act, 1951 (Act).

The counsel on behalf of the petitioner contended that such a unilateral action of deducting salary by the University without obtaining the consent of the employees is wholly unlawful and without jurisdiction. Further it was contended that the provisions on the basis of which such a deduction was carried out does not confer any such power upon the University. As a result, the petitioners prayed for the refund of amount illegally deducted from their salaries.

Observations:

The Court noted that immediately after the Registrar issued the aforementioned notice dated May 25, 2020, a representation was made to him by the petitioners, objecting to the unilateral salary deduction and thereby requesting the authorities to allow the employees to express their choice in this matter. However, no reply was made by the authorities to such a representation. Instead a subsequent notice dated May 29, 2020 was issued by the administration seeking compliance of its earlier order.

The Court further referred to various provisions of the Act pursuant to which the administration had imposed such a direction. Section 14(3) of the Act empowers the Vice Chancellor to take any immediate action if necessary on any matter. Further, the second proviso to Section 14(3) of the Act enumerates that an employee of the University who is aggrieved by the action taken by Vice-Chancellor under this sub-Section, shall have the right to appeal against such an action to the Executive Council within 90 days from the date on which such action is communicated.

"None of the above provisions gives any power to the University to unilaterally deduct any amount from the salary of an employee as donation", the Court opined.

Further the Court observed that the expression 'donation' implies that the sum is being given as aid with the view to help the concerned person/organisation. Thus donation is a voluntary act of a person who intends to donate.

"I am of the considered opinion that, unilateral deduction of salary or any portion thereof, from an employee, without any authority of law, without taking his consent, cannot be termed as donation. The same amounts to illegal deduction", the Court remarked.

Further the Court observed that expression 'any matter' envisaged under Section 14(3) of the Act would only entail matter authorized by law. Taking a decision on any matter does not give unbridled power or authority to the Vice-Chancellor to act contrary to the provision of law, the Court noted.

Justice Sinha further opined that the right of an employee to receive salary cannot be curtailed or infringed without a definite provision of law. Accordingly, there exists no provision in the Act which permits the University to suo motu deduct a portion of an employee's salary under the garb of donation.

"When the University was trying to provide aid to the needy and affected people, it ought to have adopted a better approach to set up a corpus for providing help, but should not have used a whip to deduct money from reluctant employees. The same has caused dissent and resentment in the mind of the employees. The apparently noble work to stand by the needy got marred due to overzealous action of the University. The same certainly does display the Rabindrik tradition which the University boasts of", the Court further remarked.

However, the Court expressed judicial restraint in passing an order for the refund of the deducted amount by citing that the amount deducted may have been transferred to the account of the donee and used for the aid of the needy. Moreover the Court noted that the petitioners had themselves approached the Court nearly after a year of the publication of the impugned notice. As a result, if the prayer of the petitioners for refund is allowed, such refund cannot be lawfully made from any budgeted head of the University.

Accordingly, the petition was disposed of with the following observation,

"The country is passing through an unprecedented crisis. It is desirable that citizens come forward voluntarily to help the needy. Providing help, certainly, does not mean, snatching away the legal right of an employee. To donate is a benevolent act. It comes from the free will of the donor. It is not to be obtained by force or coercion. The University can always adopt ways and means to provide relief to those in need. It is not necessary that force has to be applied to reach the goal."

Case Title: Sudipta Bhattacharyya & Ors v. Visva-Bharati & Ors.

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