KRISHNESHWAR KUMAR SINHA v. Bhawan, Bailey Road, Patna

the writ petition pending. With consent of parties, it is heard for purposes of final disposal at this stage itself. Petitioner is an operational employee in the Bihar State Electricity Board and works in Transmission Grid Sub Station. Transmission Grid Sub Station is the main artery through which Board’s supply flows to large areas. It is a technical and sensitive position. Because of work contingency, during the period December, 1997 to March, 2000 and thereafter up to 2002 the petitioner was required to do substantial over time work at the Grid Sub Station. - 2 - When the amount that was due for over time was not being paid the petitioner filed a writ petition being C.W.J.C. No. 11273 of 2004 before this Court. This writ petition was disposed of on 05.07.2007 directing the petitioner to file their claims before the Respondent Executive Engineer who was directed to verity and make recommendations for the amount to be paid. It is not in dispute that while the writ petition was pending, Respondents paid substantial amount of dues to the petitioner without contest or protest and only a small amount was left. After disposal of the writ petition petitioner made an application for payment of balance amount. What to talk of receiving the balance amount, he was served the impugned order dated 18.02.2008 (Annexure-2) asking for refund of what was already paid to him being Rs. 1,68,526/- granting petitioner to split up the refund into 24 equal installments of Rs. 7022/- per month as deduction. Petitioner has challenged this. Board in its counter affidavit has taken a stand that in view of Circular Letter No. 451 dated 19.01.1995, in fact the amount was not payable to the extent as paid to the petitioner. What was payable was maximum of fifty hours of over time per quarter i.e. per three months. Petitioner was paid much more. That was contrary to the Circular and as such payment having been made by mistake, they had a right to recover the same. Petitioner on the other hand - 3 - submits that there was no mistake in the matter. The Circular which is Annexure-3 basically applies to 4th Grade employees. It then makes a general statement with regard to workmen as defined in the Factories Act. It is further submitted on behalf of the petitioner that while adjudication with regard to legality of petitioner’s claim was pending before this Court, without demur Board paid the amount. Even before this Court on the earlier occasion Board did not choose to contest the claim. Thus they are now precluded from changing their stand or contesting their liability once writ petition has been disposed of. Having considered the matter, in my view, the writ petition must succeed. The first thing that comes to the notice of this Court is that there is not a whisper or even a suggestion in the counter affidavit or the stand of the Board that petitioner had in fact not worked over time more than fifty hours in a quarter. Board has not taken a stand that the claim of higher over time work is wrong. The stand of the Board is simple and categorical that they have no liability to pay for over time in excess of fifty hours a quarter. In my view, apart from not contradicting the claim of petitioner, they accept that petitioner has worked more than fifty hours over time but they would pay only for fifty hours and no more. On face of it this is most arbitrary, fanciful and capricious. Once it is - 4 - admitted that a worker was made to work over time and that is not disputed then it is the obligation of the employer to make payment of the over time work done. No work in service tenure is gratuitous. Petitioner works for wages and not for fun. If petitioner was not entitled to get over time in excess of fifty hours in a quarter then it was for the Authority of the Board to see that this time schedule was not exceeded and strictly adhered to. They can not have the cake and eat it too. They can not say that we needed the petitioner to work over time but we will not pay for the entire period of over time work. If such is permitted, it would not only be violative of Article-23 of the Constitution which is a fundamental right against Exploitation by State(Forced Labour), it would also be violative of Article 42 and 43 of the Constitution which is part of the directive principles of the State policy. Thus petitioner can not be asked to refund the amount paid to him being payment for work done over time. In fairness to learned counsel for the Board, it may be noted that he submits that the Authority wrongly sanctioned payment to the petitioner in ignorance of or in defiance of the Circular (Annexure-3). Petitioner on the other hand states that since 1995 things had changed radically. There had been a trade agreement on 12.06.2004 wherein over time payment had to be made. Board was bound to by the said agreement with the worker’s Union. The counter - 5 - affidavit conveniently glosses over this aspect of the matter and choses not to controvert it. Be that as it may, this Court having found that petitioner could not be deprived of his payment for over time, if he had actually done work over time, which fact is not in dispute, the question of non payment does not arise. Even if payments are said to be wrongly made or sanctioned, then it is open for the Board to realize the same from Officers who wrongly sanctioned and paid the amount. Petitioner can not be made to suffer. For the reasons aforesaid, the writ petition is allowed. The demand as per Annexure-2 dated 18.02.2008 is quashed. Any amount recovered the petitioner’s emoluments in these regards during the pendency of the writ petition would be refunded to the petitioner forthwith. Shageer (Navaniti Prasad Singh, J)