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The Kerala High Court on Tuesday refused to grant interim stay on the Kerala Disaster and Public Health Emergency (Special Provisions) Ordinance 2020 and the consequent orders which provides for deferment of a part of salary of government employees for a period of five months.

The Court had earlier on April 27 stayed for two months the order of the State government on deferment of 6 days salary per month for the next five months. Thereafter, on April 30 the government promulgated an ordinance deferring upto 25% of the salaries of government employees to meet the emergency situation arising out of COVID 19 Pandemic.

Senior Advocate Dr. K.P. Satheeshan assisted by Advocate Sudhin Kumar appearing for the petitioners led the arguments on the side of the petitioners. He submitted that the impugned ordinance was promulgated with undue haste and without deliberation, solely for the purpose of overcoming the order of the Court which had stayed the State governments order on deferment of salary.

It was further submitted that “the Kerala Service Rules which govern the field is legislative in character and rights under that cannot be taken away by another statute. Further the Ordinance is unconstitutional as there is no legislative competence and that there is discrimination writ large, under the impugned Ordinance. According to him, the only method in which the deduction of salary could have been carried out, was by resort to Article 360 4(a) of the Constitution and not by an Ordinance.”

However, Advocate General C.P. Sudhakara Prasad assisted by Senior Government Pleader Sri. N Manoj Kumar appearing for the state government submitted that the source of authority of the Ordinance is entry 6 and Entry 41 of list II apart from entries 20, 23 and 29 of list III of the 7th schedule of the Constitution of India and also submitted that no fundamental rights have been entrenched upon. “It was pointed out that the alleged haste in passing the ordinance is nothing but a reflection of the urgency of the situation that warranted promulgation of the Ordinance as contemplated in Article 213 of Constitution of India.”

The case was heard by the single judge bench of Justice Bechu Kurian Thomas who observed that that there is legislative competence for the State to promulgate the Ordinance and the legislation can be brought within one of the entries in List II and List III of the 7th Schedule to the Constitution.

The bench further observed that “This Court cannot question the wisdom in the promulgation of the impugned Ordinance, especially when the Ordinance does not partake the character of appropriating the salary of an employee, but only defers it for a time, that too, under authority of law. It directs 20% of the total monthly pay and allowances (six days), due to various categories of employees of the Government or other bodies, to be deferred, for a period of five months from April 2020 to August 2020, for managing the situation arising out of the Disaster and Public Health Emergency of Corona Virus Disease (Covid 19 pandemic).”.

As regards  the claim that the health workers were entitled to be treated as a different class altogether and ought to have been excluded from the deferment of salary, the bench observed that“when the Government thought it fit not to exclude any person based upon the nature of work but only upon the quantum of salary or wages they earn, it cannot be held, at this stage, by this Court, that  is any discrimination in including health workers also in the category of employees whose salary is liable to be deferred.”

The High Court has listed the matter for further consideration in second week of June, 2020.

-India Legal Bureau

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