Thursday, 30 April 2020

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
(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.
The Writ Petition shall be posted for further consideration
on 20.05.2020.
BECHU KURIAN THOMAS
JUDGE

Print Page

No comments:

Post a comment