Allahabad High Court
Ojas Industries Private Ltd. vs State Of U.P. Thourgh The ... on 30 September, 2011
Bench: Devi Prasad Singh, Satish Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Court No.27
1. Case :- MISC. BENCH No. - 3779 of 2010
Petitioner :- Ojas Industries Private Ltd.
Respondent :- State Of U.P. Thourgh The Principal Secy.Excise Deptt.
Petitioner's Counsel :- Manish Kumar,Rajesh Tewari
Respondent Counsel :- C.S.C.
Alongwith
2.Case :- MISC. BENCH No. - 4590 of 2010
Petitioner :- M/S Narang Distillery Ltd.,Nawabganj, Gonda
Respondent :- State Of U.P.,Thru. Prin. Secy.,Excise & Others
Petitioner's Counsel :- Manish Mathur
Respondent Counsel :- C.S.C.
Alongwith
3.Case :- MISC. BENCH No. - 3372 of 2010
Petitioner :- Mankapur Chini Mills Distillery Division Gonda
Respondent :- State Of U.P. Through Its Principal Secy.Lucknow And Others
Petitioner's Counsel :- Asit Srivastava
Respondent Counsel :- C.S.C.
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Hon'ble Devi Prasad Singh,J.
Hon'ble Dr. Satish Chandra,J.
Heard Sri Rajesh Tiwari, learned counsel for the petitioner and Sri H.P. Srivastava, learned Additional Chief Standing Counsel for the respondents.
The petitioner, a Private Ltd. Company established under the Companies Act, 1956, is engaged in Distillery in District Gonda. Question involved in the present bunch of writ petitions relates to the payment of overtime in pursuance of the impugned order passed under Rule 12 of U.P. Excise (Establishment of Distillery) Rules, 1910 (in short, 'Rules') which provides that in case, the Excise staff stationed at distillery is required to attend the distalery on any of the such holidays or in night, the distillers shall be required to pay to Government an amount per hour or part thereof which shall not be less than 15 minutes, equal to four times of average salary of the employees concerned. But such amount will be only two times of average salary of the employees concerned on overtime done during day time of working days.
After revision of Pay Scale in pursuance of Sixth Pay Commission Report, the State Government had issued an order dated 27.01.2010 providing therein that the payment of overtime under Rule 12 shall be co-related with the salary enhanced in pursuance to Sixth Pay Commission Report and accordingly, directed the petitioner to pay arrears of salary with regard to overtime w.e.f. January, 2006.
While assailing the impugned order, Sri Rajesh Tiwari, learned counsel for the petitioner submits that the law is settled by the Hon'ble Supreme Court in the case reported in 2008 (5) SC 428 Manipal Academic of Higher Education vs. Provident Fund Commissioner, that overtime is not a salary and/or in other words it is not wages, hence enhancement of overtime with regard to payment of arrears is against the law as laid down by the Hon'ble Supreme Court.
In the case of Manipal Academic of Higher Education (supra) relied by the petitioner's counsel, the controversy relates to Provident Fund and while deciding the controversy, Hon'ble Supreme Court held that the amount received by encashment of earn leave is not part of basic wages. However, the facts and circumstances of the present case are based on entirely different footing.
The petitioner had not challenged the vires of Rule 12 of the Rules in pursuance to which the overtime are paid to the workmen.
A plain reading of Rule 12 of the Rules shows that the payment of overtime by the petitioner shall be equal to four times of average salary of the employees concerned. Meaning thereby, in case salary of the employees is increased in pursuance to the Sixth Pay Commission Report, as a natural consequence, the overtime wages shall be increased in the same proportion. Accordingly, the argument advanced by the learned counsel for the petitioner assailing the Government order seems to be misconceived. The impugned order does not suffer from any illegality and impropriety reiterating earlier provisions with regard to payment of wages subject to enhancement of overtime in terms of Sixth Pay Commission Report.
Sri H.P. Srivastava, learned Additional Chief Standing Counsel has invited the attention of this Court to a recent judgment dated 26.07.2011 passed in the bunch of writ petitions, being leading Writ Tax No. 317 of 2010, wherein the Division Bench of this Court at Allahabad had reiterated the aforesaid preposition and held that the payment of overtime under the revised procedure does not suffer from any illegality or impropriety. The relevant portion of the aforesaid judgment is reproduced as under:-
"The distillery is required to run during the working hours fixed by the Excise Commissioner. It is on the request of the distiller that over time is permitted for extra production. The request has to be followed by the cost of such overtime work by the staff of the Excise Commissioner.
In the written argument filed by the learned Standing counsel the details of the working of the distiller are given. The option under Rule 12 has to be exercised by the licensee at such stages of the process of liquor in distillery, voluntarily at the place where the liquor is received from blend vats and is filled in bottle and where the bottle of liquor gets ready for issue. The licence is issued for not more than a period of one year. The distiller is free to take work from the workers under Rule 11 for 8 hours a day. Whenever distiller intends to carry out the activities beyond authorized normal fixed hours for their gain, they may move application for grant of permission for deputing officials or staff. Such an application is given by the distiller subject to the Rules which are included in the conditions of the license. In the case of Saraya Industries Limited in Writ Petition no. 317 of 2010 an application was moved by the petitioners to the Assistant Excise Commissioner Saraya Distillery, Saraiya on 14.7.2008 voluntarily to allow them for bottling the country made liquor from 5 p.m. to 10 p.m. (beyond normal working hours) due to alleged heavy demand of the market.
The overtime fee provided in Rule 12 was never challenged by the petitioners for the last 45 years. There is presumption in favour of the constitutional validity of the statutory provisions including the Rules.
The Rules made by way of supporting administration for supervision are not ultra vires the Act and are not so excessive that they may be treated to be unjust or arbitrary. These Rules are reasonable in their operation and do not cause undue hardship to the distiller. The overtime fees is to be paid only if the distiller decides to run the distillery overtime.
In the present case, the Rules have stood for the last 45 years. They have been amended by increasing the prescribed overtime fees for four times which is neither excessive nor can be treated to be excessive on the distiller makes huge profits in making production overtime.
For the aforesaid reasons, we do not find that any of the submissions namely the rules being ultra-vires to the Act and not co-relative to the services rendered by the department,or oppressive or harsh are established.
We may also observe that prescription of overtime fees is the condition of the license and that by the nature of its imposition it is a fee connected with parting in the privilege to run the distillery.
The writ petitions are dismissed."
In view of above, the law on the point seems to be settled by the Division Bench of this Court at Allahabad. Apart from the finding recorded by the Division Bench, we are of the view that since as per Rule 12 of the Rules, the validity of which has been upheld by this Court, payment of overtime by the petitioner shall be equal to four times of average salary of the employees and the payment of wages has direct nexus with the salary of the employees and, therefore, the impugned order does not suffer from any illegality or impropriety.
Accordingly, all the three writ petitions are dismissed, being devoid of merit.
No costs.
30.09.2011
Rakesh/ank
