SBCWP No.8415/2005. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.8415/2005. Vinod Jindal Vs. UCO Bank & Ors. Date of Order : September 25, 2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Amit Jindal for the petitioner. Ms. Neelam Pareek on behalf of Shri G.K. Garg for the respondents. **** BY THE COURT :- Heard learned counsel for the parties. 2) The petitioner has challenged the order dated 29/5/2002 by which the respondents have reduced the rate of incentive commission from 3% to 2% and directed the consequential recovery from the petitioner amounting to Rs.36,672/- vide consequential order dated 18/7/2005. 3) Shri Amit Jindal, learned counsel for the petitioner has argued that petitioner was appointed as Laghu Bachat Yojana Agent on 11/3/1989 on the terms and conditions then prevalent but such conditions could not be thereafter modified and the rate of payable commission could not be reduced from 3% to 2%. SBCWP No.8415/2005. 2 In any case, deposits which have been received by the petitioner for and on behalf of the respondents would entitle him to incentive commission @ 3% and the amount which has actually been paid to the petitioner cannot be recovered. This has been so held even by the Andhra Pradesh High Court in similar cases. Respondents have illegally deducted such amount from the security amount of the petitioner. The action of the respondents therefore be declared illegal. 4) Ms.Neelam Pareek, learned counsel for the respondents has opposed the writ petition and argued that the controversy raised in this matter has been settled by the Supreme Court in Indian Banks Association Vs. The Workmen of Syndicate Bank and others : AIR 2001 SC 946 upholding the judgment of the Andhra Pradesh High Court at Hyderabad dated 28/3/1997. The Andhra Pradesh High Court in the similar circumstances has held that recovery of incentive commission amount already paid cannot be made. Learned counsel for the respondents submitted that the controversy in the aforesaid case with regard to reduction of incentive commission has been set at rest by the aforesaid judgment cannot be reopened because ratio of that judgment would apply to all such similar cases. Learned counsel for the respondents further submitted that so far as direction of Andhra Pradesh High Court that amount already paid to the workman may not be recovered is concerned, that was SBCWP No.8415/2005. 3 applicable to the cases decided by that court in particular State and not for the State of Rajasthan. 5) Upon hearing the learned counsel for the parties and perusing the impugned-order as also other documents forming part of record, I find that the respondents have relied on the award passed by the Industrial Tribunal Hyderabad and the judgment given by the High Court of Andhra Pradesh at Hyderabad in which case dispute was about the facts (i) whether Deposit Collectors were workmen, (ii) whether there exist the question of master and servant and (iii) whether they are come within the employment of the respondents on whose behalf they collected the deposits and were paid commission. 6) The Supreme Court in the aforesaid case held that Deposit Collectors are not under the regular employment but they are entitled to receive commission and the commission amount received by them was 'wage' linked to productivity and therefore they are workmen within the meaning of the Act of 1947. However, their work being different from that of regular employees, question of their absorption as regular clerical employees does not arise. Supreme Court however upheld the judgment of Andhra Pradesh High Court at Hyderabad and modified the award of the Industrial Tribunal Hyderabad and in view thereof, the respondents have reduced the rate of commission on uniform pattern from 3% to 2%. No exception can be taken thereto. However, SBCWP No.8415/2005. 4 now they are seeking to recover from the petitioner the amount of commission already paid in excess @ 2%. The Andhra Pradesh High Court also in similar circumstances directed that the amount already paid to the workmen may not be recovered and in the circumstances, when the respondents themselves rely on the judgment of the Andhra Pradesh High Court, the same has to be applied in the similar cases like present one too in all respect. 7) In the terms aforesaid, the writ petition deserves to be allowed in part. 8) In the result, the writ petition is partly allowed to the extent of recovery and therefore the impugned notice of recovery dated 18/7/2005 (Ann.3) is quashed and set-aside. The amount of commission recovered from the security amount of the petitioner is directed to be restored back to the security amount from the date it was so adjusted. The compliance of the order shall be made within three months from the date certified copy of the same is produced before the respondents. (MOHAMMAD RAFIQ), J. anil