The Kerala High Court on Tuesday declined to stay the Ordinance empowering the government to defer payment of salary of the employees of government and government-run institutions for six days every month for five months in view of the COVID-19 situation.
Refusing a plea to stay the Ordinance by various service organisations, Justice Bechu Kurian Thomas said that the court could not question the wisdom of the government in bringing the ordinance which did not appropriate the salary of the employees but only deferred payment of their salary.
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The court also prima facie found that the Ordinance was enacted under the legislative competence of the government. The court pointed out that it was promulgated as the State was reeling under a very difficult situation and was intended to overcome it.
The court passed the order when a batch of petitions filed by service organisations including the Kerala NGO Association challenging the Ordinance came up for hearing.
According to them, the Kerala Disaster and Public Health Emergency (Special Provisions) Ordinance had made a special provision for deferring the salary of employees of the government and its institutions in part in the event of disaster and public health emergency in the State. In fact, 25% of the pay can be deferred every month as per the ordinance.
The petitioners pointed out that it was issued to circumvent the High Court stay on government order which allows deducting six days’ salary in a month for five months from April.
Advocate General C.P. Sudhakara Prasad argued that the government had the legislative competence to resort to such ordinance. In fact, the ordinance did not deduct the salary of the employees but it only defers the payment of salary. It was brought in hastily because of the situation warranted immediate promulgation of such an ordinance.
The petitioners alleged that there was mala fide intention on the part of the government in issuing the ordinance. The Ordinance allows the government to defer the pay which is guaranteed to them under the provision of the Kerala Service Rules. In fact, the payment and other service conditions of the government servants were governed by these rules framed under Article 309 of the Constitution. Unless the service rules were amended in accordance with the law, the rights and benefits conferred on the employees could not be taken away. In fact, the remuneration paid to the government employees for the service rendered by them should be paid in a month and not in part. It was a right of property of every government employee and in view of Article 300(A) of the Constitution, they contended.