Law Web: Kerala HC stays Govt Order Deferring Payment Of Portion Of Salary To Govt Servants Amid COVID-19

In State of M.P Vs. Ranojirao Shinde [AIR

(1968) SC 1053], it has been held that right to a sum of

money is ‘property’. In the decision in Deokinandan Prasad

Vs. State of Bihar & others [AIR 1971 SC 1409], it has

been held that right to receive pension is a property and the

same cannot be taken away or withheld by a mere executive

order. If, right to receive a sum of money is a property right

and if pension, which is only a deferred salary, cannot be

withheld without authority of law, it needs no elaborate

consideration, at this stage atleast, to hold that salary or any

portion of it cannot be withheld/deferred/denied, by the State

Government, without authority of law. Article 300A of the

Constitution of India which confers a constitutional right to

property, will include within its purview, salary also, as a

property right, atleast prima facie. Though, as submitted by

the learned Advocate General, Kerala Financial Code is only a

compilation of various orders and is not a law unto itself but

only lays down the procedure in which the disbursement of

salary is to be made, I cannot countenance the submission that

the Government has the power to delay the disbursement of

salary by few months by an executive order. When our

Constitution in unmistakable terms stipulates that property of a

citizen can be deprived only by an authority of law, and when

that authority of law means a law duly framed, Ext.P1 to be

valid, must of necessity trace its source to some provision of

law.

18. However much I tried to bring Ext.P1 within some

framework of law, I could not find any basis for such an order

in any of the statutes. Neither in the Epidemic Diseases Act

1897 as amended by the Ordinance of 2020 (Epidemic Diseases

Amendment Ordinance No.5 of 2020) nor in the Disaster

Management Act 2005, could I seek solace, to give a legal

justification for the issuance of Ext.P1. The provisions that were

read out, specifically Sections 38 and 39 of the Disaster

Management Act 2005, do not specify or confer any power

upon any Government to defer the salary due to its employees

during any kind of disaster. Prima facie, I feel that law is found

wanting to justify the issuance of Ext.P1.

19. I also find from Ext.P1 that there is ambiguity in the

manner in which the amounts obtained from the proposed

deferment of salary is planned to be utilized. It only refers to

the financial difficulty that is faced by the Government. The

said financial difficulty is not a ground for the State

Government to defer the payment of salary by an executive

order. Prima facie, I find that deferment of salary for whatever

purposes it may be, amounts to denial of property. In such a

view of the matter, I stay the operation of Ext.P1 for a period of

two months.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

MR.JUSTICE BECHU KURIAN THOMAS

W.P(C) TMP NO.182 OF 2020

KERALA VYDYUTHI MAZDOOR SANGHAM (BMS) Vs STATE OF KERALA,

Dated this the 28th day of April, 2020

[W.P.(C) TMP Nos.182, 183, 184, 196 & 198 of 2020]

All these Writ Petitions are admitted. Government

Pleader takes notice for the respondents in all cases. Due to the

importance of the issue involved in these cases, the learned

Counsel on both sides were at ad idem, that the interim

application should be considered today itself. Due to the

prevailing lockdown, the cases were considered through video

conferencing.

2. The Covid-19 pandemic has thrown open

different situations of a myriad nature, leaving the citizens as

well as the Government in a challenging situation. When

extraordinary circumstances arise, extraordinary approach is

resorted to. Natural calamities in the form of floods and viral

attacks in the form of Nipah – initially and now the Corona,

have pushed the Government of Kerala into a severe financial

crisis. It finds itself in a tight spot to meet even the day to day

expenses.

3. As a means of overcoming the financial

difficulties, Government of Kerala has issued an executive

order on 23-04-2020, which is produced as Ext. P1. The gist of

Ext.P1 is that all Government employees who are in receipt of a

gross salary of above Rs. 20,000/- shall be subjected to a

deferment of a small portion of their salary. The said deferment

is on the salary payable for the period April 2020 till August

2020. The quantum of salary proposed to be deferred under

Ext. P1 is the salary equivalent to 6 days for each of the

aforesaid months. Thus, by the end of five months, Ext.P1

contemplates, deferment of salary of one month, due to a

Government employee.

4. Petitioners are unions and certain individuals of

different departments / institutions under the Government.

They challenge Ext. P1 Government Order as having been

issued without authority of law and unconstitutional as being

violative of Article 300A of the Constitution of India.

5. Since payment of salary for the month of April

2020 is on the anvil, Counsel on both sides were at ad idem

again, that an interim order be passed today itself.

6. I have heard Senior Advocate Dr.K.P.Satheesan

duly instructed by Adv.Sri.Sudhin Kumar and also Adv.Elvin

Peter for the Petitioners. I also heard the learned Advocate

General as instructed by Senior Government Pleader Sri.

N.Manoj Kumar for the Respondents. During the course of

arguments, two Advocates, Adv.Sri.Kiran Lal and

Adv.Sri.Rekesh Sharma sought permission of the Court to put

forth their arguments also, in support of the petitioners, even

though, the cases filed by them, challenging the very same

order have not been posted before the Court today due to some

technical snag. Since e-filing and video conferencing are in its

nascent stages for the legal fraternity, I felt their request to be

justifiable. I have had the pleasure of hearing the arguments of

those two young Advocates also.

7. Learned Senior Counsel Dr.K.P.Satheesan

commenced his arguments by pointing out that Ext.P1 having

been issued without reference to any provision of law as its

source of authority itself is a reflection of the fact that the same

is issued without authority of law. He referred to Article 75(b)1

and Article 89 of the Kerala Financial Code- Vol.I and canvassed

that salary is liable to be paid within the first three working

days of the succeeding month and that deductions can be

carried out only under the seven heads mentioned in Article 89

and no other. He also referred to Rules 22, 22A and 22B of

Chapter 3 of Part I of the KSR to buttress his arguments that

recovery from salary can be done only under the manner

mentioned therein. According to him, none of these provisions

warrant deduction or even a deferment of payment of salary

nor does it empower the Government to withhold salary or any

part of it. He further vehemently submitted that deferment of

salary even for a day amounts to denial of salary. The Senior

Counsel also invited attention of this Court to the

orders/circulars issued by the Hon’ble Supreme Court of India

and states like Tamil Nadu, Departments of the Central

Government like Ministry of Finance, Ministry of

Communications etc, all of which requesting for donation or

contribution in contradistinction to a command.

8. Sri.Elvin Peter, learned Counsel appearing for some

of the petitioners submitted that, right to receive salary is a

property coming within the purview of Article 300A of the

Constitution of India and the same can be deprived only by

authority of law. He refers to various decisions in support of his

contention that law means an Act of Parliament or an Act of

Legislature or atleast a Rule having a statutory character.

Sri.Elvin Peter further submitted that, no provision of law is

available with the State Government, for the time being in

force, to deny/defer the salary of a Government employee for

any purposes whatsoever. He also reiterated with due

vehemence that deferment of payment certainly means denial

of payment under whatever nomenclature it be referred to.

Relying upon various decisions, it is the contention of the

learned Counsel that, when State has no power to withhold

pension, which is nothing but a deferred salary, it goes without

saying that the State Government does not have the power to

issue Ext.P1 as an executive order.

9. Learned Counsel Sri.Kiran Lal and Sri.Rekesh

Sharma, whose writ petitions have not been posted, have also

put forth their submissions. Adv.Kiran Lal submitted that salary

is part of the right to life and in view of Article 21, the same

cannot be deprived without procedure established by law. He

attempted to convince this Court by reference to a hypothetical

situation where an employee would get only Rs.720/- a month,

as his salary, if the amount of deferment is carried out, of

course on account of the various deductions and liabilities he

had already incurred. Adv. Rekesh Sharma pointed out that

Ext.P1 order failed to even reckon the plight of the numerous

health workers, police personal and others who have been

rendering exceptional work for the State and its citizens,

unmindful of the consequences. He submits that, depriving

those persons also from their monthly salary, even if it is by

way of deferment, would amount to great injustice and

supplicated that this Court should not lose sight of these

aspects also at this juncture.

10. The learned Advocate General countered all the

above submissions and pointed out that there is no provision of

law which stipulates that salary must be paid within a particular

period. According to the learned Advocate General, Financial

Code is only a compilation of different Government Orders and

the same can be varied or modified by another Government

Order which is within the realm of power of the Government. It

was also submitted that the ‘deferment of salary’ is a

methodology available with the Government to allay the

financial difficulties which the State is facing at the moment.

He also referred to the orders issued by the Andhra Pradesh

Government, the Maharashtra Government and the Telengana

Government wherein also such deferment is resorted to. It was

submitted by the learned Advocate General that unless such

measures are initiated, the State will go into deeper financial

crisis.

11. In order to further buttress his submissions, the

learned Advocate General referred to the Epidemic Diseases Act

No.3 of 1897 (as amended in 2020) with specific reference to

Section 2 and pointed out that the State Government has the

power to determine in what manner and by whom any

expenses incurred including compensation if any shall be

withheld. He also referred to the Disaster Management Act of

2005 with specific reference to Sections 38 and 39 and

canvassed that the power to defer the payment of salary can be

read into the said provisions.

12. In reply to the submissions made by the learned

Advocate General, the learned Senior Counsel for petitioners

referred to Rule 2(26) and Rule 12(23) of the Kerala Service

Rules to canvass for the preposition that pay is statutorily fixed

and that every employee under the Government has a vested

right to get the pay. It was pointed out that the Disaster

Management Act 2005 does not confer any power upon the

Government to defer or deny salary at any time during a

disaster. Sri.Elvin Peter also submitted that without consent of

an employee, deferment of salary even for a day amounts to

denial and that the right to receive salary cannot be left to an

uncertain date or an uncertain event at the whims and fancies

of the Government. The other counsel Sri.Rekesh Sharma and

Sri.Kiran Lal also submitted in reply specifically referring to an

order passed by the Ministry of Labour of the Central

Government addressed to the Chief Secretaries of all States

that all employers must make payment of wages without any

deduction. Though I have not got the opportunity of seeing

that document, the said submission is also recorded.

13. I have considered the contentions that have

been advanced. It is true that this is a situation that warrants

extraordinary approach from all corners of the State. The

citizens as well as the State Governments have been taken by

surprise on the attack of the virus and all are startled at the

manner in which the same is spreading. None have been able

to successfully prevent the spread of the virus. However, World

over, efforts of the Kerala State Government are being lauded.

Whether it be in its approach towards containment of the virus

or in its treatment of the affected patients, or even as regards

the maintenance and distribution of the essential commodities,

efforts of the State have not gone unnoticed. It is being

applauded by one and all. Every nook and corner of the State is

being attended to by the State Government through its

Officers. As rightly submitted by the learned Advocate General,

several crores of rupees are being spent by the Government to

meet the needs of its citizens to protect their health and safety.

As on date, efforts of the State Government have not gone in

vain and the same certainly deserves appreciation.

14. However laudable and appreciable, the action of the

State may be in its fight against the pandemic, when this Court

is called upon to determine an issue which has far reaching

legal consequences and which affects the vested right of its

citizens, this Court cannot ignore the legal framework in which

our society revolves.

15. “Man, howsoever high he may be, shall be governed

by the Rule of law”, is an often quoted maxim that all of us in

the legal fraternity have grown up with. This concept of Rule of

law runs through every aspect of governance in our country

and finds its utterance in the Constitution of India. With this

principle in mind, I will appreciate the submissions of the

learned counsel for the limited purpose of considering whether

the petitioners have made out a prima facie case about the

invalidity of Ext.P1.

16. Payment of salary to an employee is certainly not a

matter of bounty. It is a right vested in every individual to

receive the salary. It is also a statutory right as it flows from

the Service Rules. Right to receive salary every month is part of

the service conditions emanating from Article 309 also.

17. In State of M.P Vs. Ranojirao Shinde [AIR