PATEL B S Vs. STATE OF M P

JUDGEMENT

(1.) THE factual backdrop, the relief claimed, the question of law being similar these writ petitions were heard analogously and are disposed of by this common order. For the sake of clarity and convenience the facts in W. P. No. 3592/1997 are herein adumbrated.

(2.) BEFORE I proceed to state the facts which are essential for disposal of these writ petitions, it may be mentioned at the threshold that the petitioners had prayed for quashment of notification dated July 11, 1997 published in the Gazette on July 14, 1997 contained in 'annexure P4' and for quashing of letter dated August 2, 1997 'annexure P-5' and letter dated August 8, 1997 'annexure P-6'. Many a ground has been taken in the writ petition challenging the legal validity of the notification contained in 'annexure P-4' but in course of hearing Mr. V. S. Dabir, learned senior counsel with Mr. A. G. Dhande for the petitioners have fairly stated that they do not intend to challenge the validity of the notification and would confine the challenge to the action taken by the Labour Commissioner and other authorities, the respondent Nos. 2 to 4 herein, who have misinterpreted the Government notifications issued from time to time and have made a demand for recovery of Variable Dearness Allowance (VDA) at the rate of 2 paise per unit for the period May 25, 1996 to September 30, 1997, though such a demand does suffer from lack of authority.

(3.) SANS unnecessary details the factual backdrop which has given rise to the filing of the present writ petition is that the State Government vide notification dated May 23, 1996 published in M. P. Rajpatra on May 25, 1996 issued under Section 5 (i) (b) of the Minimum Wages Act, 1948 read with Minimum Wages (M. P. Amendment and Validation) Act, 1961 increased the Variable Dearness Allowance in respect of the employees working in Bidi Manufacturing concerns to 2 paise. While fixing so, the State Government had linked it with the cost of living index for the period January, 1993 to December, 1993. Feeling aggrieved by the aforesaid enhancement the petitioner preferred a writ petition No. 2731/1996 and simultaneously submitted a representation to the State Government for reconsideration of the matter. The State Government re-examined the entire matter and came to the conclusion that the rate of Variable Dearness Allowance requires to be revised and accordingly vide notification dated December 12, 1996 published in M. P. Gazette on December 17, 1996 was brought into existence. The said notification has been brought on record as 'annexure P-2' whereby the State Government while not changing the basis, changed the Dearness Allowance from 2 paise to 1 paise. In view of the changed scenario the petitioner withdrew his writ petition. The State Government eventually brought the notification on June 5, 1997. published in the Gazette on June 7, 1997 'annexure P-3' fixing the Variable Dearness Allowance at 1 paise per point. At this juncture the petitioner made a representation to the Labour Commissioner on August 7, 1997 wherein it was stated that as per the spirit of the notification dated June 5, 1997 VDA would be payable at the rate of 1 paise a per point for rise over index 1206 (1960=100 ). The State Government issued another notification on July 11, 1997 published in M. P. Rajpatra on July 14, 1997 wherein it was stipulated that the effective date of notification dated June 5, 1997 was changed from the date of publication of the notification in the M. P. Gazette to October 1, 1997. The; said notification has been brought on record as 'annexure P-4'. Thereafter the respondent No. 2 issued instructions for recovery of Dearness Allowance at the rate of 2 paise per point from May 25, 1996 to September 30, 1997 and 1 paise from October 1, 1997. Pursuant to the direction given by the respondent No. 2 vide 'annexure P-5', the respondent No. 3 directed the petitioner to make payment at the said rate for the aforesaid period. This demand is the cause of grievance of the petitioner. It is averred in the writ petition (1 barring the grounds challenging legal validity of the notification) that such demand made by the respondent Nos. 3 and 4 is totally legal and unjustified,' because the notification vide 'annexure P-1' was no longer in force after issuance of Annexure P-3 and the demand can be made only from October 1. 1997.