IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 WP(C).No. 10459 of 2008(T) -------------------------- PETITIONER(S): --------------- MODERN PHARMACEUTICALS PVT. LTD P.B.NO. 22 TIRUR 676 101 REPRESENTED BY ITS MANAGING DIRECTOR SRI. T. PADMANABHAN BY ADV. SRI.S.RAMESH BABU RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY EXCISE DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM. 2. EXCISE COMMISSIONER THIRUVANANTHAPURAM. 3. THE DEPUTY COMMISSIONER OF EXCISE NORTH ZONE, KOZHIKODE. 4. THE EXCISE INSPECTOR ,EXCISE RANGE OFFICE, TIRUR (ADDITIONAL CHARGE OF EXCISE INSPECTOR,MODERN PHARMACEUTICALS PVT.LTD TIRUR) GOVERNMENT PLEADER K R DEEPA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B RADHAKRISHNAN, J ........................................... WP(C).NO. 10459 OF 2008 ............................................ DATED THIS THE 26th DAY OF MAY, 2009 JUDGMENT The petitioner is engaged in the manufacture of products for which rectified spirit is supplied under the Kerala Rectified Spirit Rules, 1974. Rule 16(4) of those rules provide that transactions in the spirit store shall be conducted only in the presence of an Excise Officer not below the rank of an Excise Inspector. That provision requires the licensee to pay the cost of establishment of such officer and Guards who are to assist the Excise Inspector. The term” cost of establishment” for the purpose of that provision is explained under that sub rule to mean the average cost of pay and leave salary contribution. Interpreting those provisions in Ext.P1 judgment in the writ appeal inter partis, it has been held that as per the rule, licensee is liable to pay the cost of establishment of such officers who are deputed to the petitioner's warehouse. The Bench affirmed the finding of the learned Single Judge that on the basis of Rule 16(4), only the actual expenses incurred by the Government for such officers, who are deputed to WP(C) 10459/2008 2 the petitioners establishment can be recovered from the licensees. 2. It is the case of the petitioner, corroborated by the contents in the second paragraph of Ext.P4 and by the averments in paragraph 5 of the counter affidavit, that the Excise Inspector, Excise Range Office, Tirur was put in full additional charge of the petitioner's company from 27.7.2007. This means that the said officer was officiating in two independent posts at one time. The allowances to be granted to that officer is governed by Rule 53 (B) of Part I of Kerala Service Rules. The Excise Inspector who discharged the duties from 27.7.2007 was holding the post of Excise Inspector, Excise Range Office, Tirur and discharging the duties of the Excise Inspector for the purpose of Rule 16(4) of the KRS Rules in relation to the petitioner's establishment from 27.7.2007 by holding full additional charge of that post. Therefore, in so far as the discharge of his duties and responsibilities in re, the establishment of the petitioner, the allowances payable to that officer would be only in terms of Rule 53(B) of Part I, Kerala Service Rules. Therefore the impugned demand for payment, which is far in excess of such amount, is WP(C) 10459/2008 3 without authority and is invalid. For the aforesaid reasons, the impugned demand is quashed and writ petition is allowed further directing that the amount due from the petitioner in terms of what is stated above shall be quantified by the fourth respondent on the basis of the actuals of the allowances enjoyed by the Officer who had held the full additional charge. Such decision shall be taken after hearing the parties, within a period of three months. Writ petition ordered accordingly. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/26/5