High court declines to stay salary deferment ordinance

TIMES NEWS NETWORK

Kochi:6.5.2020

The high court on Tuesday declined to stay an ordinance brought in by the state government to defer payment of salaries of government employees.

Justice Bechu Kurian Thomas said the constitutional provisions granting powers to the state government should be liberally and widely interpreted. When the government submits that the ordinance is issued under the powers issued under such constitutional provisions, it is not justifiable on the part of the court at this stage to hold otherwise that there is no authority on the government to enact a law, the court held.

“I find that there is legislative competence for the State. I find, prima facie, that there is legislative competence on the part of the Legislature to enact the ordinance,” the court’s order stated. The government was represented by advocate general CP Sudhakara Prasad and special government pleader N Manoj Kumar.

The court further said in the order, “As was mentioned by the learned advocate general, the state is reeling through a very difficult situation… and extraordinary measures are required… to overcome the situation, and this legislation is intended to overcome the present position the state has fallen into. This court cannot question the wisdom of the legislature in bringing out an ordinance, especially when the ordinance does not partake of character of appropriating the salary but deferring it for the time being, that too under authority of law. Article 300A, which grants authority to the State to deprive a person, has a condition that the same must be in accordance with law. The law has now been promulgated. This Court cannot find that the law now promulgated is unjustified at the moment.”

During the admission hearing on Tuesday, the court considered petitions filed by various government employees’ and teachers’ unions.

Under challenge was the Kerala Disaster and Public Health Emergency (Special Provisions) Ordinance 2020. The ordinance was issued on April 30 after the high court had on April 28 issued a stay on the government’s order of April 23 to defer payment of six days’ salary for five months. It gave the government the power to defer payment of salaries in the event of disaster and public health emergency.

The petitioners alleged that the ordinance allows the government to defer their pay in part or in full and it is vitiated with mala fides and is aimed at circumventing the HC order.

They also argued that the deferment of salary can only be done through an amendment of the Kerala Service Rules.

The period of deferment is not specified and the decision was taken without their consent and without giving them an opportunity to raise their objections.

The ordinance amounts to oppression and dictation and such a power cannot be exercised by the government, particularly against the employees, the petitions said.

The union representing government nurses contented that the ordinance is “clearly thanklessness” to the health workers who are the frontline soldiers in the fight against Covid-19.

I find, prima facie, that there is legislative competence on the part of the Legislature to enact the ordinance, said the high court in its order