A special allowance paid by mistake cannot mature into a service condition and can be recovered.

( 1 ) THE Background: in this case the workmen, the Telex Operators, claimed that they were entitled to special allowance at the same rate that was allowed to the employees operating Advanced Ledger Posting Machines (ALPM) and Advanced Electronic accounting Machines (AEAM ). The dispute raised by the Union being referred to the learned Tribunal resulted into an award granting the relief of special allowance at the same rate available to the operators of ALPM and AEAM. By reason of the award, the attempt of the Management to rectify the alleged mistake of allowing the special allowance at the rate available to the other categories of employees operating ALPM and AEAM in terms of the Settlement dated 29th of March, 1987, Annexure 'p-1 at page 30 of the application, to the telex Operators entitled to the special allowance as contemplated in paragraph 5. 2 of Chapter V of the First Bipartite Settlement, was set at naught. 1. 1. This was challenged before this Court in a writ petition. The learned single Judge was pleased to dismiss the writ petition filed by the employer on the ground that on materials the learned Tribunal was justified in granting the relief, particularly, in view of section 9a of the Industrial Disputes Act, 1947 (1947 Act), which requires giving of notice before any change in the condition of service is effected. Appellant's contention :

( 2 ) MR. Kaiyan Bandopadhyay, learned Counsel, appearing on behalf of the appellant, challenging the said order of the learned Single Judge in appeal, pointed out that this was not a change within the meaning of section 9a of the 1947 Act, but only a rectification of a mistake related to the rate of special allowance. In case it is paid at a rate higher by mistake, the same cannot mature into a service condition. 1. Mr. Bandopadhyay further contended that from the materials on record, it appears that the nature of the duty performed by the Telex Operators are completely different and distinguished from those of the operators of ALPM and AEAM. He had drawn our attention to the various materials in order to bring home his contention. According to him the Telex Operators are entitled to special allowance in terms of paragraph 5. 2 Chapter V Part-I clause (v); whereas the Telex Operators, Accounting Machine Operators and IBM and ict (Hollerith Power Samas) Machine Operators were entitled to different rate of special allowance under clauses (viii) and (ix ). But these machines were updated by these ALPM and AEAM, which necessitated revision of the allowance of these particular persons operating such machines, which was not found in paragraph 5. 2 of the First Bipartite Settlement. According to him, the Telex operators only operate telex through computers since now telex is linked with the computers. They did not perform any other job except operating telex through computers. 2. He also drew our attention to the settlement dated 29th of March, 1987 in order to support his contention. According to him, the finding of the learned tribunal, since affirmed by the learned Single Judge, are wholly perverse and not in consonance with the settlement arrived at between the parties. The workmen cannot claim any relief beyond the said settlement since binding under section 18 of the 1947 Act. Respondents' submission :

( 3 ) THE learned Counsel for the respondents, on the other hand, contended that there are materials on record and relying on such materials, the learned tribunal came to a conclusion which a reasonable man could take one way or the other. The Writ Court, therefore, cannot interfere with such a finding when the same is based on materials available on record. Even if this Court is of different opinion, the Writ Court cannot interfere. To support this contention, he relied on Shaw Wallace and Co. Ltd. vs. 1st Industrial Tribunal, W. B. , 1986 lab. I. C. 2030 (Para 8), and the decision in State Bank of India vs. Union of india and Ors. , 1998 (2) LLJ 488 (Para 9 ). 1