1 WP 6822..............2011 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6822 OF 2011 WITH WRIT PETITION NO. 6823 OF 2011 WITH WRIT PETITION NO. 6824 OF 2011 WITH WRIT PETITION NO. 6825 OF 2011 WITH WRIT PETITION NO. 6826 OF 2011 WITH WRIT PETITION NO. 6827 OF 2011 WITH WRIT PETITION NO. 6828 OF 2011 WITH WRIT PETITION NO. 6829 OF 2011 WITH WRIT PETITION NO. 6830 OF 2011 WITH WRIT PETITION NO. 6831 OF 2011 WITH WRIT PETITION NO. 6832 OF 2011 WITH WRIT PETITION NO. 6833 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders 2 WP 6822..............2011 Mr. N.B.Suryawanshi, Advocate for the petitioners. Mr. P.P.More, Asstt. Govt. Pleader for State. Mr. V.A.Pawar, Advocate for Resp. No. 2. ................................ CORAM : S.V. GANGAPURWALA, J. DATE :19/10/2011 PER COURT : 1. The respondents herein had filed Complaint (ULP) before the Industrial Court on the ground that the benefits to them of the 6th Pay Commission were illegally withdrawn. The petitioners were not authorized to withdraw the same nor any procedure was followed. The Industrial Court allowed the Complaint filed by respondent no. 3. Aggrieved thereby, the present Writ Petitions are filed. 2. Mr. N.B.Suryawanshi, the learned counsel for the petitioners submits that the petitioners get the grants from the Govt. and it is only if the amount is received from the Govt., the petitioners are in a position to pay to the employees. The complainants are not the permanent employees and as such they do not have any right to claim the benefit of the 6th Pay commission. All the complainants were paid salary as per the 6th Pay commission. The complainants are under the scheme of the Central Govt. which is implemented through the State Govt. and as such the complainants can not be regarded as “ workmen ”. The learned counsel further contends that the complainants were given the salary as per the 5th Pay Commission from 3 WP 6822..............2011 01/04/2004 as per the directions of the Govt. The petitioners are implementing the directions of the Govt. and unless the Govt. sanctions and pays the amount, the petitioners are not liable for the same. It was in these circumstances, the petitioners have withdrawn the benefits of the 6th Pay Commission. 3. Mr. V.A.Pawar, the learned counsel for the complainants submits that the complainants are the permanent employees. They come within the ambit and definition of “ workmen ”. Their appointments were issued by the Chief Executive Officer of the petitioner/Corporation. Even when the benefit of 6th Pay commission was withdrawn, no notice U/s 9-A of the Industrial Disputes Act was given. The Industrial Court has rightly come to the conclusion. 4. With the assistance of the learned counsel, I have gone through the pleadings and the Judgment. 5. In March 2010, the petitioners had passed resolution and decided to give benefit of 6th Pay Commission w.e.f. 2006. The complainants were paid salary as per the 6th Pay Commission in the month of May and June, 2010. The same was withdrawn and the recovery is also claimed. 6. It is a trite law that the benefit even if given under mistake, can not be recovered. The Apex Court in the case 4 WP 6822..............2011 of Syed Abdul Qadir and others V/s State of Bihar and others reported in 2009 ( 3 ) SCC – 475 has held that when there is no mis-representation or fraud on the part of the employee, then recovery of payment should not be allowed on the ground of equity. More over, the benefits which were given were abruptly withdrawn even without issuing notice to the complainants. The notice of change has to be notified to the employee as is mandated under Section 9-A of the Industrial Disputes Act. The Tribunal has observed that no such compliance has been made and the said action has been rightly set aside. Without following the legal procedure, the service conditions can not be changed to the detriment of the employee. In such circumstances, no illegality has been committed by the Industrial Court in passing the impugned order. 7. If any action is taken by the petitioners in respect of the benefits of the 6th Pay Commission, then the complainants have right to agitate in respect of the same. 8. The Writ Petitions being sans merit, as such are dismissed. No costs. [ S.V. GANGAPURWALA, J.] KNP/WP 6822..............2011 5 WP 6822..............2011