Allowed

Ram Kumar Akela v. Food Corporation of India

Chhattisgarh HC16 Nov 2018WPS/1014/2018

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh held that initiating recovery proceedings against low-paid workers for excess incentive payments made during a stay period was bad in law. Citing the Patna High Court judgment subsequently affirmed by the Supreme Court, the court quashed the recovery actions and directed a refund.

What did the court decide?

The action of recovery initiated by the respondents is quashed. Any amount recovered must be refunded to the petitioners within 90 days of this order.

Ram Kumar Akela Vs Food Corporation of… — Labour and Industrial Disputes | Chhattisgarh HC (2018)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Writ Petition (S) No. 1014 of 2018

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Ram Kumar Akela S/o Mishri Lal Ray, Aged About 53 Years, R/o Ward No. 24, House No. 23, Amba Talab Road Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Praful Kumar Sahu S/o Panu Sahu, Aged About 53 Years, R/o Ward No. 09 Makeshwar House No. 142 Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Jagnath Jaina S/o Late Sadhu Jaina, Aged About 59 Years, Ward No. 9 Makai Talab Road, Makeshwar Dhamtari, District Dhamtari (Chhattisgarh)

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Guleshwar Bind S/o Late Dhano Bind, Aged About 56 Years, R/o FCI Neora, Post Office Neora, District Raipur (Chhattisgarh)

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Krishna Nand Yadav S/o Kameshwar Yadav, Aged About 59 Years R/o Ward No. 24, House No. 23, Amba Talab Road Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Juti Pradhan S/o Natabar Pradhan, Aged About 50 Years R/o Village Bilapanch Gochhia, Post Office Rebana, Naugaon, Police Station Brahmagiri, District Puri (Orissa)

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Nitai Chandra Mondal S/o Late Pulin Chanra Mondal, Aged About 57 Years R/o VIII- South Alipur Police Station Surjopur Hat, Police Station Baruipur, District 24-Paragans (West Bengal)

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Fagu Samal S/o Late Jayee Samal, Aged About 50 Years, R/o Ram Sagar Para Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Purustam Raj S/o Late Girdhari Raj, Aged About 57 Years R/o Village Raghunathpur, Post Office Shayadpur, Police Station Binjharpur, District Jajpur (Orissa)

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Duryodhan Lenka S/o Late Mahendra Lenka, Aged About 55 Years R/o Village Sanagunjar, Post Office Manada, Police Station Brahmagiri, District Puri (Orissa)

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Shatrughan Pradhan S/o Late Markand Pradhan, Aged About 56 Years R/o Village Bilapanchgochhia, Post Office Rebana, Nuagoan, Police Station Brahmagiri, District Puri (Orissa)

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Sukumar Paik S/o Late Brindaban Paik, Aged About 55 Years, R/o Lal Bagicha, Shitla Para Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Upendra Kumar Ray S/o Chano Roy, Aged About 40 Years R/o Mahant Ghasidas Ward No. 10, Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Haripad Mistri S/o Late Devendra Nath Mistri, Aged About 55 Years R/o Lal Bagicha Shitlapara Dhamtari Post And District Dhamtari (Chhattisgarh)

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Ramesh Prasad Nayak S/o Late Purna Chandra Nayak, Aged About 45 Years R/o H.B. Colony Hatkeshwar Dhamtari Post And District Dhamtari (Chhattisgarh)

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Dasarath Singh Dhruw S/o Late Narishing Dhruw, Aged About 51 Years R/o Amatalab Gaurav Path Dhamtari (Chhattisgarh)

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Surendra Swain S/o Late Jadumani Swain, Aged About 56 Years R/o H.B. Colony Hatkeshwar Dhamtari Post Office And District Dhamtari (Chhattisgarh)

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Chait Ram Sahu S/o Late Punit Ram Sahu, Aged About 44 Years R/o Village Gokulpur, Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Minaketan Samal S/o Late Anadi Samal, Aged About 55 Years R/o Sunderganj, Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Kalu Charan Dalai S/o Late Daitari Dalai, Aged About 55 Years R/o Village Makeshwar Ward Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Babu Kumar Mandal S/o Late Kalipada Mandal, Aged About 46 Years R/o Lalbagicha Gaura- Gauri Chaowk Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Satya Narayan Mahto S/o Brinda Mahato, Aged About 43 Years R/o Village Kostapara Ward Ajad-Chowk Dhamtari (Chhattisgarh)

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Rameshwar Singh S/o Late Ramasis Singh, Aged About 57 Years R/o Hatkeshwar, Chapada Colony Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Rampravesh Paswan S/o Late Bharosi Paswan Aged About 52 Years R/o Amma-Talab Road Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Mritunjay Halder S/o Subodh Halder, Aged About 52 Years R/o Village Lalbagicha Gaura-Gauri Chowk Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Kalipada Gayen S/o Amay Gayen, Aged About 55 Years R/o Lal-Bagicha Sitlapara Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Rangu Lal Chandralekh S/o Late Ram Lal Chandralekh, Aged About 56 Years R/o Village Hatkeshwar Chapada Colony Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Panchanan Haldar S/o Late Balai Chand Haldar, Aged About 56 Years Bathena Para Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Manoranjan Haldar S/o Late Sarbeshwar Haldar, Aged About 58 Years, R/o Lalbagicha Shitlapara Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Aktu Ram Yadav S/o Late Kanhaiya Ram Yadav, Aged About 53 Years R/o Lalbagicha Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Punit Ram Sahu S/o Late Firanta Ram Sahu, Aged About 57 Years R/o Village Khapari- Arjuni, Post- Demar And District Dhamtari (Chhattisgarh)

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Tirath Ram S/o Late Dheeraji Ram, Aged About 52 Years R/o Village Adhari Nayagaon, Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Narayan Chandra Das S/o Late Giridhari Das Aged About 54 Years R/o Sunderganj Ward Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Madan Mohan Ray S/o Late Denbandhu Ray Aged About 53 Years R/o Makeshwar Ward, Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Akhya Dalai S/o Late Sudarshan Dalai, Aged About 50 Years R/o Hatkeshwar Chapada Colony, Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Kanak Mishra S/o Late Niranjan Mishra, Aged About 45 Years R/o Lalbagich Shitla Para, Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Sarat Dalai S/o Late Basu Dalai Aged About 51 Years R/o Makeshwar Ward, Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Sadhu Ram S/o Late Lalu Ram Aged About 54 Years R/o Bajarang Chowk Nayapara Ward, Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Ramdas Ghilor S/o Late Samay Lal Ghilor, Aged About 58 Years R/o Hatkeshwar Chapada Colony, Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Binod Mistri S/o Shankar Mistri, Aged About 39 Years R/o Village Adhari Nayagaon Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Madan Lal S/o Late Kasi Ram Jatap, Aged About 53 Years R/o Adhari Nayagaon, Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Sarun Fakir S/o Jailal Fakir, Aged About 38 Years R/o Jalampur Ward Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Chandrashekhar Dalai S/o Banchhanidhi Dalai, Aged About 58 Years R/o Dindayal Puram Colony Hatkeshwar, Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Maheshwar Jaina S/o Late Bhikari Jaina, Aged About 56 Years R/o Makeshwar Ward Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Abhiram Sahoo S/o Late Balunki Sahoo, Aged About 58 Years R/o Hatkeshwar Chapada Colony, Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Khetrawasi Dalai S/o Late Narottam Dalai, Aged About 58 Years Resident Din Dayal Puram Colony Hatkeshwar Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Dinabandhu Sethy S/o Late Karunakar Sethy, Aged About 54 Years R/ Dindayal Puram Colony Hatkeshwar Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Hata Biswal S/o Late Lakhan Biswal, Aged About 56 Years R/o Dindayal Puram Colony Hatkeshwar, Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Braja Behera S/o Natbar Behara, Aged About 36 Years R/o Quarter No. LIG- 2 Dindayal Puram Colony Hatkeshwar, Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Fakir Das S/o Late Ramchandra Das, Aged About 54 Years R/o Hatkeshwar Chapada Colony, Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Gadadhar Pradhan S/o Late Kunja Pradhan, Aged About 56 Years R/o Bathena Ward, Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Sidheshwar Pradhan S/o Late Gokhei Pradhan, Aged About 52 Years R/o Hatkeshwar Chapada Colony Dhamtari, Post And District Dhamtari (Chhattisgarh)

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Vinay Bhushan Jaina S/o Late Kanhu Charan Jaina, Aged About 52 Years R/o Quarter No. LIG-18 Dindayal Puram Colony Hatkeshwar Dhamtari, Post And District Dhamtari (Chhattisgarh)

---- Petitioners

Versus

Food Corporation Of India Through Its Chairman Cum Managing Director Head Office 16-20 Barakhamba Lane, New Delhi

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The General Manager, Food Corporation Of India Regional OfficeVidhan Sabha Road Raipur Kapa, District Raipur (Chhattisgarh)

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The Area Manager, Food Corporation Of India, Regional OfficeVidhan Sabha Road, Raipur Kapa, District Raipur (Chhattisgarh)

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---- Respondents

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For Petitioners : Shri Ravi Maheshwari with B. L. Sahu, Advocates For Respondents : Shri R. S. Patel, Advocate

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Hon'ble Shri Justice P. Sam Koshy Order On Board

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16/11/2018

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The challenge in the present writ petition is to the circular Annexure -4 dated 17.08.2016. As a consequence of the impugned circular, the respondents have initiated recovery proceedings against the petitioners and initially a deduction of Rs.10,000/- per month was made from the wages payable to the petitioners and subsequently, the said amount has been enhanced to Rs.20,000/- per month as per the contention raised by the petitioners.

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2. The whole grievance of the petitioners seems in respect of withdrawal of certain incentives that they had received in the past known as piece rate incentive under the Piece Rate Incentive Scheme operational in the respondent Corporation. The said scheme was made applicable with the weight of the bags of respondent corporation were weighing more than 66 Kg. and at times it also weighed around 100 Kg.. Subsequently, by virtue of an instruction received from the International Labour Organization and also

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a decision from Bombey High Court in a public interest litigation, the weight of these bags were reduced and it has been ordered that the weight of the bags should not be more than 50 kg. When the weight of bags were reduced, the respondents thought it fit for withdrawing the incentive scheme which was given to the workers for handling bags with greater weight. The said withdrawal of the incentive scheme was subjected to challenge before the Central Industrial Tribunal-cum-Labour Court-1 Delhi where the terms of reference was “ whether the demand of the Union for withdrawing the new incentive scheme announced vide circular dated 15.12.2005 is legal and justified? If not, what relief the workmen are entitled for?

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3. The record would show that the learned Tribunal vide its award dated 05.07.2016 answered the reference holding that the demand of FCI Union withdrawing the new incentive scheme announced vide circular dated 15.12.2005 to be neither legal nor justified. It is thereafter that the impugned circular dated 17.08.2016 has been passed. As a consequence of the impugned circular, the department appears to have initiated recovery proceedings against the petitioners so far as the excess payment made to the workers pending the industrial dispute before the Tribunal during which the incentives were continued to be paid to the petitioners.

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4. Contention of the counsel for the petitioners is that the said action of the respondents in initiating recovery proceedings is bad in law for the reason that firstly there was no such agreement specifically made with the petitioners by the Department wherein the petitioners had given an undertaking. Second contention is that the petitioners had been paid the said amount by virtue of an incentive scheme which was implemented in the department. The petitioners had not misrepresented or played any fraud in

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getting the said amount paid to them. Moreover, contention of the counsel for the petitioners is that such recovery is otherwise not permissible under law in the light of the judgment of the Supreme Court in the case of State of Punjab and others etc. vs. Rafiq Masih (White Washer) etc. reported in 2015 AIR SCW 501 . It was also the contention of the counsel for the petitioners that all the petitioners before this Court are low paid Class-IV employee and therefore, recovery of an excess amount from the petitioners should not have been made by the respondents.

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5. Counsel appearing for the respondent Corporation, on the contrary, submits that since the Industrial Tribunal has specifically answered the reference in favour of the Corporation and pending the dispute before the Industrial Tribunal the workers were being paid something excess which they were otherwise not entitled for in the light of the newly introduced incentive scheme dated 15.12.2005, it is this excess amount which has been ordered to be recovered from the petitioners. It is the further contention of the respondents that the circular itself has been issued in the light of the award passed by the Industrial Tribunal, Delhi dated 05.07.2016 and also a judgment of Bombey High Court Bench at Nagpur in PIL No.84/14 decided on 20.11.2015. Thus, the action of the respondents cannot be said to be bad in law, arbitrary or in any manner malafide. He referred to paragraph-30 of the judgment of Bombey High Court in respect of his contention where specific directions were issued for the respondents to be taken:

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“30. In that view of the matter, we dispose of the present Public Interest Litigation by passing the following order; (i) The Government of India is directed to decide the representation made by the Food Corporation of India for grant of exemption under the provisions of Section 31 of the said Act within a period of one month from today, in the light of

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observation made by us hereinabove within a period of one month from today.

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(ii) The Government of India shall decide the issue regarding de-notification of the depots of the Food Corporation of India, in respect of which notification is issued u/s 10 of the said Act, within a period of six months from today, in the light of the observations made by us hereinabove and the report of M/s. Deloitt Consultancy and the report of High Level Committee appointed by the Government of India itself.

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(iii) We clarify that the respondent/Food Corporation of India would be entitled to transfer the services of departmental labourers from one depot to another subject to protecting their salary and all other service conditions.

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(iv) We also clarify that the respondent/Corporation would be at liberty to implement its policy of change in the Scheme of incentives.

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(v) The Government of India shall also take a decision regarding abolition of system of departmental labourers in a phased manner or absorbing their services in other establishments as recommended by the High Level Committee.”

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6. Having heard the contentions put forth on either side and on perusal of records particularly taking into consideration the entire factual matrix of the case, certain undisputed facts which would reveal are that the petitioners undisputedly are Class-IV workers working as Hamal under the respondent corporation. The petitioners had been receiving periodical wages commensurate to the nature of work discharged. The petitioners considering the nature of duties were initially being paid certain incentives under the piece rate incentive scheme which was in operation since 1991 and the petitioners had been receiving the benefits all along till a revised incentive scheme was floated by the department vide circular dated 15.12.2005 whereby the entitlement of the petitioners got reduced. The said circular was subjected to scrutiny before the Industrial Tribunal at Delhi in a dispute raised under the Industrial Disputes Act. The Tribunal passed an award holding that the demand of the Union and its workers were not

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justified, that means the petitioners would not be entitled for the benefits in accordance with the revised circular of the Department dated 15.12.2005.

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7. What is pertinent at this juncture to take note of is that pending the dispute before the Industrial Tribunal, the Department itself had vide order dated 20.02.2006 stayed the operation of the circular. As a consequence of the stay of the operation of the revised circular, the petitioners had been receiving certain benefits under the pre-revised scheme and this benefit under the pre-revised scheme was being paid to the petitioners till the impugned circular dated 17.08.2016 was passed. Now as a consequence of the circular dated 17.08.2016, the Department has initiated recovery proceedings in respect of the excess payment that was paid to the petitioners in between 15.12.2005 to 17.08.2016. It is this action which is under challenge in the present writ petition.

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8. At this juncture, it would be relevant to take note of the fact that a bunch of writ petitions were filed in the Patna High Court by a set of petitioners who were discharging their duties under the respondent Corporation within the territories of the State of Bihar. The lead case of which was registered as Civil Writ Jurisdiction Case No. 1330 of 2018. The bunch of writ petitions finally came up for hearing before the Patna High Court on 18.05.2018 and the High Court of Patna finally vide its judgment dated 18.05.2018 allowed the writ petitions. The relevant paragraphs of the said judgment are being reproduced hereinunder:

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“15. In the instant case, the respondents have never ever pressed their request for implementation of decision taken vide Circular No. 18 of 2005 rather by issuing Circular No. 5 of 2006 dated 20.02.2006, they themselves stayed operation of the Circular of 2005.

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It would be pertinent to note that while passing the award, the Tribunal has not ordered for recovery of excess wage incentive from the workers paid for handling bags since

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01.12.2005. The issue was not even pressed as an ancillary issue by the respondents before the Tribunal. As the respondents themselves stayed the implementation of Circular No. 18 of 2005 vide Circular No. 5 of 2006 dated 20.02.2006, as a result of which, the workmen were getting their wages as was being paid to them prior to issuance of Circular No. 18 of 2005, the wages paid to the workers were neither illegal nor unjustified and the payment was result of a conscious decision of the respondents to continue with the payment to the workmen as was the norms existing prior to issuance of Circular No. 18 of 2005.

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It is also not the case of the respondents that the workmen had made any misrepresentation or committed any fraud in obtaining the wages for handling bags since 01.12.2005.

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Thus, keeping in mind the ratio laid down by the Supreme Court in State of Punjab & Ors. vs. Rafiq Masih (Supra), in the opinion of the Court, the decision of the respondents to recover so called excess amount paid to the workmen in excess under Piece Rated Incentive Scheme for handing bags since 01.12.2005 would be unfair, wrongful, improper and unwarranted and such deduction from salary or retirement benefits of the workmen would put them in extreme hardship and would make it difficult for them to provide for the need of their family.

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In view of the discussions made above, the writ petitions are allowed. The impugned Circular Nos. 08 of 2016 and 01 of 2017 dated 17.08.2016 and 17.01.2017 respectively issued by the respondents are hereby quashed.”

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9. The said judgment passed by the Patna High Court was subsequently also put to challenge before the Supreme Court vide Special Leave to Appeal No. 24799/2018. The Supreme Court finally vide its order dated 05.10.2018 dismissed the Special Leave to Appeal preferred by the respondent Corporation. As a consequence of the judgment of the Patna High Court being affirmed by the Supreme Court, the circular dated 17.08.2016 challenged in the present writ petition has already been held to be bad in law to the extent of the action on the part of the respondents initiating recovery proceedings against the petitioners.

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10. Given the nature of dispute and the facts and circumstances of the case and also taking into consideration the specific findings of the Patna

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High Court in respect of the same circular, by way of judicial discipline and propritary this Court is inclined to take the same view and hold that the impugned order dated 17.08.2016 to the extent of initiating recovery proceedings against the petitioners to be bad in law and impermissible. Accordingly, the said circular to the aforesaid extent stands set aside/quashed.

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11. The writ petition accordingly stands allowed. The action of recovery initiated by the respondents is held to be bad in law and is finally set aside/quashed. The amount if any that has been recovered from the petitioners, the same should be refunded back to them forthwith preferably within a period of 90 days from the date of receipt of certified copy of this order.

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Khatai

Ram Kumar Akela v. Food Corporation of India

Case brief

What is this about?

What did the court decide?

Ram Kumar Akela v. Food Corporation of India

Case brief

What is this about?

What did the court decide?

What the court decided

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