Allowed

Devicolam Distilleries Ltd. v. State of Kerala

Kerala HC16 Nov 2022WP(C)/12752/2021

Case brief

AI extract

What is this about?

The High Court held the respondent's demand for full cost of establishment including pay and allowances of an Excise Inspector on additional charge illegal. The petitioner must pay only for actual establishment costs.

What did the court decide?

Exhibits P2 to P9 directed to be quashed; respondents directed to recompute 'Cost of Establishment' taking only additional charge of Excise Inspector.

Devicolam Distilleries Ltd. Vs State of Kerala — Kerala HC (2022) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL

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WEDNESDAY, THE 16TH DAY OF NOVEMBER 2022 / 25TH KARTHIKA, 1944

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WP(C) NO. 12752 OF 2021

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PETITIONER:

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DEVICOLAM DISTILLERIES LTD.
KAKKANAD-682030, ERNAKULAM DISTRICT,
REPRESENTED BY ITS MANAGER AND AUTHORIZED SIGNATORY
MR.ABHILASH V.

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BY ADV RAJU K.MATHEWS

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, THIRUVANANTHAPURAM-695001.

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2 THE COMMISSIONER OF EXCISE, EXCISE COMMISSIONERATE, THIRUVANANTHAPURAM-695001.

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3 THE EXCISE INSPECTOR, DEVICOLAM DISTILLERIES LTD. , KAKKANAD-682030, ERNAKULAM DISTRICT.

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4 DEPUTY COMMISSIONER OF EXCISE, EXCISE DIVISION OFFICE, ERNAKULAM-682018.

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SRI.JUSTIN JACOB – SR. GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 12752 OF 2021

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JUDGMENT

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Petitioner is a company engaged in the manufacturing of Indian made Foreign Liquor (IMFL). It sells IMFL to the Kerala State Beverages (Manufacturing and Marketing) Corporation Limited. The petitioner is bound by the provisions of the Abkari Act, Rules there under and licence conditions to conduct its activities under the strict supervision of the Excise Staff. The petitioner is liable to pay for the 'Cost of establishment' under Rule 14 of the Distillery and Warehouse Rules. The then incumbent in the post of the 3^rd respondent was transferred and the Excise Circle Inspector of Ernakulam was put in additional charge from January to July and August 2020 and from September 2020 to 14^th March 2021, Excise Inspector, Excise Range office, Ernakulam was given additional charge and from 15^th March to 14th June 2021, the Excise Inspector, Excise Range office, Thripunithura and from 15^th June to date, the Excise Inspector, Enforcement and Anti Narcotic Special Squad was, put in full additional charge of the post of the 3^rd respondent. No cost of the post of Excise Inspector was demanded or collected from the petitioner during the period.

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WP(C) NO. 12752 OF 2021

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It appears that the 4th respondent detected the omission and issued direction to the 3^rd respondent to collect the full cost of the post of the Excise Inspector for the period from January 2020 to date.

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The petitioner submits that the respondents have been demanding the 'Cost of Establishment’ from the petitioner by not including the pay and allowances for the post of Excise Inspector during the period from January 2020 till May 2021, for the reason that there was no regular incumbent in that post and accordingly the petitioner paid what was demanded. However to the shock and surprise was served with a letter No. DDE01/2021 dated 05.05.2021 Ext.P2 stating that the Deputy Commissioner of Excise found out that the Cost of Establishment remitted was without factum of Pay and allowances of the Excise Inspector, and since more time was required for calculating the pay and allowances of the Excise Inspectors, who held additional charge of the petitioner's unit, the pay and allowances of the Excise Inspector, who held additional charge during the months of April and May 2021, should be remitted in the Treasury. Thereafter the 3^rd

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WP(C) NO. 12752 OF 2021

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4

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respondent issued letter No. DDE-01/2021 dated 06.05.2021 Ext.P3 along with calculation/statements of the pay and allowances pertaining to the post of the Excise Inspector, for the months of April and May 2021 directing the petitioner to remit an amount of Rs.1,43,238/. The petitioner was also served with another letter No. DDE-01/2021 dated 06.05.2021 of the 3^rd respondent Ext. P4, along with a statement showing the arrears payable on the revision of pay of the Post of the Excise Inspector, directing to remit Rs.58,807/ being the pay revision arrears for the moths of August 2020 to February 2021. Thereafter the petitioner was served with another letter No. DDE-01/2021 dated 06.05.2021 Ext.P5 along with calculation statements showing the pay and allowances applicable to the post of Excise Inspector for the months of August 2020 to March 2021, with a direction to remit an amount of Rs. 5,66,848/-, another letter No. DDE01/2021 dated 12.05.2021 produced herein as Ext.P6 with calculation statements showing the pay and allowances applicable to the post of Excise Inspector for the months of January 2020 to June 2020, directing to remit an amount of Rs. 34,874/-, another

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WP(C) NO. 12752 OF 2021

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letter No. DDE-01/2021 dated 12.05.2021 produced herein as Ext.P7 with calculation statements showing the pay and allowances applicable to the post of Excise Inspector for the months of January 2020 to June 2020, directing to remit an amount of Rs. 3,97,260/-, another letter No. DDE-01/2021 dated 12.05.2021 produced herein as Ext.P8 with calculation statements showing the pay and allowances applicable to the post of Excise Inspector for the year 2021 to 2022, directing the petitioners to remit an amount of Rs. 5,600/- and another letter No. DDE-01/2021 dated 24.05.2021 produced herein as Ext.P9 with calculation statements showing the 'Cost of Establishment' for the month of June 2021, directing the petitioners to remit an amount of Rs. 2,74,355/-. Aggrieved by the aforementioned orders of the 3^rd respondent, Exts.P2 to P9, petitioner approached this court with the following prayers:-

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to call for the records relating to Exhibits P2, P3, P4, P5, P6, P7, P8 and P9 and to quash the same, to the extent it demand pay and allowances applicable to the post of Excise Inspector, in excess of what is payable in terms of Rule 53(b) of Part I KSR, by the issuance of a writ of certiorari or other appropriate writ direction

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WP(C) NO. 12752 OF 2021

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or order;

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to issue a writ of mandamus or other appropriate writ direction or order directing the respondents 1 to 3 to re-compute the amount payable by the petitioner by way of 'Cost of Establishment', for the period from January 2020 till date, by taking the 'cost' of the post of the 3^rd respondent, in terms of the provisions of Rule 53(b) of Part I KSR;

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The case of the petitioner is that the orders Exts.P2 to P9 in so far as it relates to cost of establishment by calculating the pay and allowances applicable to the post of Excise Inspectors in excess of what is payable in terms of Rule 53(b) of Part I KSR is illegal and against the law laid down in the judgment of this Hon'ble Court in W P (C ) No.10459 of 2008 produced herein as Ext.P1 dated 26.05.2009.

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I have heard the learned counsel for the parties and appraised the paper book and am of the view that the grievance of the petitioner with respect to the claim of illegal demand for pay and allowances applicable to the post of Excise Inspector in excess of what is payable in terms of Rule 53(b) of Part I KSR is justified. Respondents are hereby directed to charge only additional charge and not full charges in respect of the persons already transferred

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WP(C) NO. 12752 OF 2021

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by assigning additional charge to Excise Inspector, Excise Range Office.

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With the aforementioned directions, I allow the writ petition, and Exts.P2 to P9 are hereby quashed and respondents are directed to re-compute the amount payable by the petitioner by way of 'Cost of establishment' for the period from January 2020 to, till date, in accordance with provisions of Rule 53(b) of Part I KSR.

Sd/-

AMIT RAWAL

JUDGE

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WP(C) NO. 12752 OF 2021

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APPENDIX OF WP(C) 12752/2021

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PETITIONER EXHIBITS

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`Exhibit P1`	`A TRUE COPY OF THE JUDGMENT DATED` `26.5.2009 IN WPC NO.10459 OF 2008.`
`Exhibit P2`	`A TRUE COPY OF THE LETTER NO.DDE-01/2021` `DATED 5.5.2021 OF THE 3RD RESPONDENT.`
`Exhibit P3`	`A TRUE COPY OF THE LETTER NO.DDE-01/2021` `DATED 6.5.2021 OF THE 3RD RESPONDENT,` `ALONG WITH CALCULATION STATEMENTS OF THE` `PAY AND ALLOWANCES OF THE POST OF THE` `EXCISE INSPECTOR, FOR THE MONTHS OF APRIL` `AND MAY 2021.`
`Exhibit P4`	`A TRUE COPY OF THE LETTER NO.DDE-01/2021` `DATED 6.5.2021 OF THE 3RD RESPONDENT,` `ALONG WITH A STATEMENT SHOWING THE` `ARREARS PAYABLE ON THE REVISION OF PAY OF` `THE POST OF THE EXCISE INSPECTOR, FOR THE` `MONTHS OF AUGUST 2020 TO FEBRUARY 2021.`
`Exhibit P5`	`A TRUE COPY OF THE LETTER NO.DDE-01/2021` `DATED 6.5.2021 OF THE 3RD RESPONDENT,` `ALONG WITH CALCULATION STATEMENTS SHOWING` `THE PAY AND ALLOWANCES APPLICABLE TO THE` `POST OF THE EXCISE INSPECTOR OF THE` `MONTHS OF AUGUST 2020TO MARCH 2021.`
`Exhibit P6`	`A TRUE COPY OF THE LETTER NO.DDE-01/2021` `DATED 12.5.2021 OF THE 3RD RESPONDENT,` `ALONG WITH CALCULATION STATEMENTS SHOWING` `THE PAY REVISION ARREARS APPLICABLE TO` `THE POST OF THE EXCISE INSPECTOR, FOR THE` `MONTHS OF JANUARY 2020 TO JUNE 2020.`
`Exhibit P7`	`A TRUE COPY OF THE LETTER NO.DDE-01/2021` `DATED 12.5.2021 OF THE 3RD RESPONDENT,` `ALONG WITH CALCULATION STATEMENTS SHOWING` `THE PAY AND ALLOWANCES APPLICABLE TO THE`

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WP(C) NO. 12752 OF 2021

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POST OF THE EXCISE INSPECTOR, FOR THE
MONTHS OF JANUARY 2020 TO JUNE 2020.

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Exhibit P8A TRUE COPY OF THE LETTER NO.DDE-01/2021
DATED 12.5.2021 OF THE 3RD RESPONDENT,
ALONG WITH CALCULATION STATEMENTS SHOWING
THE UNIFORM ALLOWANE APPLICABLE TO THE
POST OF EXCISE INSPECTOR FOR THE YEAR
2021-2022.
Exhibit P9A TRUE COPY OF THE LETTER NO.DDE-01/2021
DATED 24.5.2021 OF THE 3RD RESPONDENT,
ALONG WITH CALCULATION STATEMENTS SHOWING
THE COST OF ESTABLISHMENT FOR THE MONTH
OF JUNE 2021 BY INCLUDING THE PAY AND
ALLOWANCES APPLICABLE TO THE POST OF
EXCISE INSPECTOR.
Exhibit P10A TRUE COPY OF THE LETTER SUBMITTED TO
THE 3RD RESPONDENT.

Devicolam Distilleries Ltd. v. State of Kerala

Case brief

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Devicolam Distilleries Ltd. v. State of Kerala

Case brief

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