High court stays govt’s pay cut order, says salary is not charity

TIMES NEWS NETWORK

Kochi:29.04.2020

The high court on Tuesday issued a stay on the state government order to defer payment of one month’s salary to government employees by deducting pay for six days in a month for five months.

Justice Bechu Kurian Thomas issued the stay for two months after considering during admission hearing the argument that the government’s order is not backed by any authority of law and that no provision of law, including Disaster Management Act or Epidemic Diseases Act, can be utilized to take such an action.

In the order, the court noted that the state government’s work with regard to managing Covid-19 is laudable. However, it cannot ignore the legal framework in which the society revolves when it is called upon to consider an issue, the court said.

The court said that payment of salary is certainly not a matter of charity. “Article 300A, which confers right to property, will include within its purview salary also as a property, at least prima facie,” the order said. The advocate general’s submission that the government has the power to delay the disbursement of salary through an executive order cannot in the face of law be countenanced, the court added.

Absence of any power for the state government to issue such an order was also pointed out by the court. Neither the Epidemic Diseases Act of 1897, as amended by the ordinance of 2020, nor in the Disaster Management Act has provisions to issue such an order. The provisions that were read out, specifically Sections 38 and 39 of Disaster Management Act, does not specify or confer any power upon any government to defer salary due to its employees during any kind of disaster, the court said.

The court also cited five Supreme Court decisions that prompted it to arrive at such a conclusion.

The court also found lack of clarity in the state government order, like the manner in which the amounts being set apart is to be utilized. It only refers to the financial difficulty faced by the government and that is not a ground to defer payment of salary. Prima facie, deferment of salary for whatever purposes may amount to denial of property, the court said while issuing a stay.

Advocate general CP Sudhakara Prasad had argued that other state governments have issued orders that are stricter than the Kerala government’s order. Unless such measures are adopted, the state will go into great financial adversity, he had argued.

Around a dozen petitions were filed before the court by services organizations questioning the state government’s salary deduction order of April 23.

The petitioners had pointed out that even though the order says the salary is being deferred, it is not mentioned when it would be released. Thus, the deferment is actually permanent deduction.

Central government and other state governments have issued similar orders. In the case of the central government, one day’s salary per month for 12 months is requested with unwilling staff being given the option of not paying, the petitions had said. But the Kerala government’s is a compulsory deduction order without any authority of law and without the consent of employees, the alleged.

When the state issued a similar directive after the 2018 floods, the high court had stayed a clause in the order compelling the employees to pay.

Citing the government’s order in 2018, the service organizations had now alleged that the government has now found a way out by mentioning the deduction as deferment instead of donation or contribution.

The absence of any power for the state government to issue such an order was also pointed out by the Kerala high court while issuing the two-month stay order