The Kerala High Court on Tuesday stayed for two months the operation of the State government order deferring the payment of six days salary of its employees and other government institutions every month from April to August.
Justice Bechu Kurian Thomas, while issuing the stay order, observed that prima facie the law authorising the government to issue such an order was found wanting. Besides, he also noted that there was ambiguity in the order regarding the manner in which the amount was proposed to be set apart or was to be utilised.
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The government order only referred to the financial difficulties faced by the government due to COVID-19 situation for deferring the payment of salaries. The financial difficulty was not a ground for it to defer payment of salaries. Prima facie , deferment of payment of salaries, for whatever purposes, amounted to denial of property the court said.
Counsel for the petitioners, including the Kerala Water Authority Staff Association that owes allegiance to the INTUC and the Kerala Vyduthi Mazdoor Sanghom (BMS), contended that Article 300A of the Constitution (right to property) would include within its ambit ‘salary’ as well .The Article mandated that no person shall be deprived of his property save by the authority of the law.
They further argued that no law empowered the government to defer salaries payment. The employees should have been given an option of making voluntary donation as was being done by other State governments, they pointed out.
Advocate General C.P. Sudhakara Prasad submitted that the government order only postponed the payment of salaries. And that did not deprive the employees of their salaries. Besides, no provision of the law stipulated that the salaries should be paid on a particular day. In fact, the condition that the salaries should be paid on a particular day was based on the Financial Code, which was a compilation of various executive orders. The government had the power to defer the payment of salaries. It could be traced to the provisions of the Disaster Management Act, 2005, and the Epidemic Diseases Act, 1897, as amended in 2020, he argued.