Kerala HC stays state's order deducting salaries of government staff to fight COVID-19

The sections 38 and 39 of the Disaster Management Act do not specify or confer any power upon any government to defer salary due to its employees during any kind of disaster, said the court

Published: 28th April 2020 03:28 PM  |   Last Updated: 28th April 2020 03:28 PM   |  A+A-

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By Express News Service

KOCHI: The Kerala High Court on Tuesday stayed for two months the state government's order to deduct the salary of government employees for six days every month for the next five months to raise funds for fighting the COVID-19 pandemic in the state.

Justice Bechu Kurian Thomas issued the interim order on a batch of cases including the petition filed by Kerala Water Authority Staff Association-INTUC, Kerala Vyduthi Mazdoor Sanghom (BMS) and Aided Higher Secondary Teachers Association seeking to quash the order.

The court observed that there is ambiguity or obscurity in respect to the manner in which the amounts that are proposed to be set apart is to be utilized. It only refers to the financial difficulty that is faced by the government. This financial difficulty is not a ground for the state government to defer the payment of salary. "Prima facie, I find that deferment of salary for whatever purposes may amount to a denial of property," observed the Bench.

The submission of the learned advocate general that the government has the power to delay the disbursement of salary by a few months by executive order cannot in the face of law be countenanced. The court could not find any basis for the order in any of the statutes. It could not find any justification for the order neither in the Epidemic Diseases Act as amended by 2020 Ordinance, or in the Disaster Management Act. The sections 38 and 39 of the Disaster Management Act do not specify or confer any power upon any government to defer salary due to its employees during any kind of disaster.

The petitioners contended that the government order to defer payment of six days salary of employees every month from April 2020 to August is illegal and without authority. In fact, the deferment has been ordered to tide over the financial crisis faced by the government due to the pandemic. Even though it is named as deferred payment, nothing has been mentioned about the time when the payment would be affected. It is really a deduction of salary permanently. Six days in a month for five months constituted 30 days salary which is equivalent to the salary of one month.

They also pointed out that there was no provision empowering the government to withhold a part of the salary of the government employees. The government servants should have been given an option for making a voluntary donation as was done by other state governments and the Centre. The financial capacity of each government servant should have also been considered. Even the deferred payment was admissible only when there was an assurance for release of the deferred payment within a fixed time limit. No such time limit was specified in the order, stated the petitioners.

The petitioners said that when the Travancore Devaswom Board order asking to donate a month's salary to the Chief Minister's Distress Relief Fund in the wake of 2018 flood was challenged, the High Court held that no contribution or donation could be effected through compulsion. It had observed that when the amount was collected by compulsion, it amounted to extortion. As a result, the TDB had to withdraw the order. The High Court had held that employees should be given an option to donate salary without any compulsion, based on their financial capacity.

Besides, the deferment was ordered to be deposited in a separate treasury saving account, which means that it did not go to the normal state exchequer. It could be utilised by the government without any restrictions at its sweet will and pleasure. Therefore, such a directive in the order was a violation of Article 14 of the Constitution, stated the petitioners.

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