The order, however, did not apply to those employees who had contributed one month’s salary to the CM’s Disaster Relief Fund. The writ petition challenging the order was heard by Justice Bechu Kurian of the Kerala High Court.
Grounds For Challenge
The counsels for the petitioners, in summary, put forth two significant challenges to the order passed by the State’s government.
Firstly, the government order was violative of Article 300A of the Constitution of India. Article 300A of the Constitution does not allow the property of any person to be taken away without authority. The petitioners contended that the impugned order had no legal authority to support its issuance. Further, the apex Court has held that money also comes within the scope of ‘property’ in State of Madhya Pradesh v. Ranojirao Shinde.
Secondly, the petitioners contended that the right to receive salary came under Article 21 of the Constitution. They argued that the State Government were rubbing salt in the wounds of those government employees leading the fight against the spread of the virus in Kerala and have been working tirelessly for the last month to do so.
The petitioners also drew the attention of the court to the Kerala Services Rules, which gave the government employees a statutory right to their salaries.
The Epidemic Diseases Act And The Disaster Management Act: A Shield?
Sections 38 and 39 of the Disaster Management Act allow the State Government to ensure the cooperation of all its departments during times of disaster and impose certain duties on the departments.
The Advocate General, CP Sudhakara Prasad referred to Sections 38 and 39 of the Disaster Management Act as the legal authority which allowed the State Government to issue such an order. He also argued that Section 2 of the Epidemic Diseases Act allowed the government to pass such orders when it found that the current law was insufficient during the breakout of an epidemic virus.
The Court’s Ruling
After considering the arguments of both parties, Justice Kurian found that the executive order indeed had no legal authority for its backing as there was no express provision in any of the enactments referred to be the Advocate General which allowed the state government to issue orders pertaining to the salary of its employees.
Justice Kurian observed that the right to property could not be taken away by a mere executive order. He drew a parallel between pensions and salaries, stating that pensions were “deferred salaries” and they could not be withheld without the authority of law. Therefore the same would apply to salaries because salary could prima facie be regarded as property under Article 300A of the Constitution. He stated that salaries were also a part of the “conditions of service” enshrined in Article 309 of the Constitution.
Justice Kurian also found the term “financial difficulty” to be insufficient grounds for the government to issue orders for deferment of salary. Justice Kurian in his order stated,
“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.”
Accordingly, he stayed the operation of the government order for two months and scheduled the next hearing of the writ petition for the 20th of May, 2020.
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