V.K. Sharma and Others vs Food Corporation of India and Another

V.K. Jhanji, J.—In this petition under Article 226 of the Constitution of India, petitioners are seeking a direction to the respondents not to recover over time allowance paid to them during the period from December 1982 to May, 1987, as provided under the Punjab Shops and Commercial Establishments Act, 1958.

In brief, the facts are that petitioners are the employees of Food Corporation of India, Haryana Region (in short, the F.C.I.) and at the relevant time were working at Pingli Road and Tara Singh godowns in Karnal. According to the averments made in the petition, these godowns are abutting Karnal City and are in the revenue estate of Karnal. In December, 1982, a decision was taken for payment of over-time allowance to all the employees of the F.C.I, working in these godowns at the rates prescribed under the Punjab Shops and Commercial Establishments Act, 1958 (in short, the Shops Act). Pursuant to this decision petitioners were paid the overtime allowance from December, 1982 to May 1987. After May, 1987, the respondents are stated to have taken a decision to withdraw these godowns from the provisions of the Shops Act and instead of paying the employees the over-time allowance, wages at normal rate Were paid. In regard to over-time work which petitioners had done from December, 1982 to May, 1987, a decision was taken to recover the amount paid to the petitioners on the ground that wages at the normal rate were required to be paid.

Respondents in their written statement have stated that on the basis of erroneous report of Municipal Committee, Karnal that the godowns at Pingli Road and Tara Singh godowns are within the municipal limits of Karnal, over-time allowance to the employees of these godowns was given; Later on, the matter was got clarified from the Municipal Committee Karnal. Vide Memo dated 5.9.1989, the Executive Officer, karnal, informed the District Manager, F.C.I. Karnal that Tara Singh and Pingli Road godowns are situate outside the municipal limits of Karnal. In view of this, it has been stated that petitioners are legally bound to refund the overtime allowance erroneously drawn by them.

Admittedly, before taking a decision to recover the amount or for taking a decision that provisions of the Shops Act do not apply to the godowns in question, no show-cause notice was given to the petitioners. It has come on record that when proposal was being made to recover the amount on the plea of Shops Act being not applicable to the godowns, representation, Annexure P-3 was made wherein the petitioners had submitted that godowns in question are attached/adjacent to Karnal and question of non-implementation of Shops Act does not arise. It has also been stated that godowns are situated in urban area. Mr. Wasu, learned counsel for the respondents, has referred to Annexure P-3 attached to written statement, and contended that no show-cause notice was necessary because the petitioners had given an undertaking to refund the amount in lumpsum on account of any technical error. In order to appreciate the contention of learned counsel for the respondents, the undertaking may be noticed:-

"I, V.K. Sharma, son of Shri S.I. Sharma, hereby undertake that I shall refund forthwith in lumpsum any over payment of O.T.A. (Overtime Allowance) for the month of August, 1985, arising out of any technical error in working out the entitlement of O.T.A. (Overtime Allowance) as per the Punjab Shops & Commercial Establishment Act, 1958 (applicable in Haryana) and for any revised decision with regard to Payment of O.T.A. (Over-time Allowance) by F.C.I. Office/Zonal/Regional Office."

The undertaking alleged to have been given by one of the petitioners, shows that they had undertaken to refund the amount only in case it was paid on account of any technical error in working out the entitlement of Overtime allowance. Entitlement of the petitioners, at no stage was in doubt. It has not been stated in Annexure P-3 that decision to pay over-time allowance was taken provisionally subject to any confirmation by the Municipal Authorities, Petitioners in their petition have averred that they never gave any undertaking to the F.C.I that the amount could be deducted. The undertaking to refund the amount was given only in case the same was found to have been paid due to any technical error. In this view of the matter, I am of the view that petitioners were paid over-time allowance on account of Shops Act having been made applicable to the godowns where they were working. No recovery can be effected from the petitioners without giving an opportunity to submit their case and to show-cause in this regard. The benefit having been given, cannot be withdrawn without following the principles of natural justice. The action of the respondents, thus, being violative of Principles of natural justice, cannot be sustained. Accordingly the order of the respondent, seeking to recover over-time allowance already paid to the petitioners is quashed. Respondents are further directed to decide the representation, Annexure P-3, within three months from the date of receipt of order of this Court. It the petitioners desire they shall also be given personal hearing before the decision, if any, taken on their representation.

With this direction the writ petition stands disposed of. No costs.