The Kerala High Court on Tuesday issued a two-month stay on an order passed by the state government to postpone payment of a portion of the salaries of government employees due to the COVID-19 pandemic.
On April 23, the state government issued an order stating that it would defer paying six days’ salaries of all government employees. The deferment of six days worth of pay will be done every month for five months beginning April. The order will apply to all government and autonomous government body employees who are earning a gross salary above Rs 20,000.
The order stated that salaries were being deferred as the ongoing COVID-19 pandemic has triggered a financial crisis in the state.
Several petitions challenging this order reached the Kerala High Court soon after the order was issued. And on Tuesday, a single judge bench of Justice Bechu Kurian Thomas said that the ‘order was, prima facie, not supported by any provision of law’.
According to a report by Live Law, the judge noted that ‘it was the vested right of every individual to receive salary for the work discharged’. The court also did not accept the state government’s arguments that it had the power to issue this order under the Disaster Management Act, 2005 and the Epidemic Diseases Act, 1897.
“However much I tried to bring the impugned order within some framework of law, I could not find the framework for such an order in any of the statutes. Neither in the Epidemic Diseases Act as amended by the 2020 ordinance, or in the Disaster Management Act could I seek solace to justify the issuance of the order,” the bench observed.
Salary is ‘property’
The judge also stated that as per Article 300 A of the Constitution - which states that no person shall be deprived of his property save by the authority of law - an individual's salary is, prima facie, considered property. ‘Therefore, deferment of salary, for whatever purposes, amounts to denial of property’,
Ambiguity in use of the amount set aside
The court also noted that the government order was ambiguous while asking how the proposed amount, generated via deferment of salary, will be utilised. “It only refers to the financial difficulty that is faced by the government,” the bench observed, concluding that ‘financial difficulty is not a ground for the state government to defer the payment of salary.
Arguments
Several advocates, appearing for various parties, submitted their arguments against implementing the government order. Among them, advocate KP Satheesan, submitted that government servants are entitled to receive their salaries within the first three days of each month, as per the Kerala Financial Code.
Advocate Elvin Peter, appearing for employees of the Kerala State Financial Enterprises Ltd, submitted that the directive violated article 300 A of the Constitution. Appearing for KSEB employees, advocate MS Kiranlal, submitted that the order also violated the right to life guaranteed under Article 21 of the Constitution, as several employees will find it difficult to make ends meet with salaries being deferred.
In response to these arguments, CP Sudhakara Prasad, Advocate General of Kerala stated that the government order is only deferring the salary and not deducting it. There is no provision of law which states that salary must be paid on a particular day, he said. The rule that salary should be paid on specific days is from the Kerala Financial Code, which can be amended with a government order, he added.
The Advocate General also submitted that similar and more stringent measures were taken by the governments of Andhra Pradesh, Maharashtra and Odisha. In the case of the AP government, an order was issued citing deferment of 50% of salary of government employees.
The AG insisted that if such deferment measures are not taken, the state would reel under a deep financial crisis, according to reports.