Facts:

1. The petitioner is a manufacturer of Indian Made Foreign Liquor. It had, posted by the Government, a contingent of officers-one Circle Inspector, one Inspector, two Preventive Officers and eight Guards-to supervise the day-to-day functioning of the petitioner-factory. Following Section 14 of the Abkari Act (‘the Act’ for brevity) read with Rule 14 of the Kerala Distillery & Warehouse Rules, 1968 (Part-I) (‘the Rules’ for brevity), the Government has deployed the supervisory staff to ensure that there is no evasion of the duty on the manufacturer’s part.

2. As per the statutory mechanism, the petitioner continued to pay to the said supervisory staff the salary and allowances. It is the specific case of the petitioner that from November 2010, the Circle Inspector, heading the supervisory staff and being the competent authority to raise the necessary bills for payment of salary and other allowances by the petitioner, did not make any demand for the overtime allowance due for the months from November, 2010 to March, 2011. It is said to be in anticipation of the pay revision, which in fact was introduced through Exhibit P1, dated 26.02.2011.

3. As can be seen from Exhibit P1, the implementation of the pay revision was at two stages: the revised scale of pay was with effect from 01.07.2009; all other service benefits were to be paid with effect from 01.02.2011.

4. Presumably, taking advantage of Exhibit P1 revised pay scales, the third respondent forwarded, as can be seen from Exhibit P2, countersigned chalans claiming overtime allowance for the supervisory staff from November 2010 to March 2011. Later, the said official has also submitted Exhibit P3 reminder to the petitioner, explicitly stating that the chalans have been submitted earlier based on the revised scales of pay. Faced with the demand from the third respondent to pay the overtime allowance at an enhanced rate, apparently, in tune with Exhibit P1 revised pay, the petitioner submitted Exhibit P4 representation before the second respondent, the Commissioner of Excise.

5. In response, the second respondent communicated through Exhibit P5 that in terms of Rule 128 of the Kerala Distillery & Warehouse Rules, 1968 (Part II), what has been demanded by the third respondent is the overtime ‘fee’ but not overtime allowance. And the petitioner is liable to pay the amounts thus demanded. Aggrieved, the petitioner has filed the present writ petition.

Submissions:

(a) Petitioner’s:

6. In the above factual backdrop, the learned counsel for the petitioner, initially, has taken me through Section 14(e) of the Act and Rule 14 of Part I Rules, as well as Rule 128 of Part II Rules. He has submitted that only regular pay has been given retrospective effect following Exhibit P1. The learned counsel has also submitted that all other service benefits, which, according to him, obviously include the overtime fees or allowance, had the benefit of revision only from 01.02.2011.

7. In elaboration of his submissions, the learned counsel has further contended that whether the expression overtime ‘fees’ or ‘allowance’ is employed in Rule 128, it has no material difference, for it cannot be treated as part of the regular pay, which alone has been given retrospective effect.

8. The learned counsel has also pointed out what is said to be an anomaly in the demand made by the third respondent. According to him, though the retrospective effect was given to the pay revision from 01.07.2009, instead of demanding overtime fees for the said period onwards, the third respondent has, however, confined his demand only for the months of November, December, 2010 and January 2011.

(b) Respondents’:

9. Per contra, the learned Government Pleader, in tune with the averments made in the counter affidavit filed by the second respondent, has submitted that the overtime fee is entirely different from any sort of allowance regarding which the pay revision has been implemented only prospectively. In elaboration of his