The cost of establishment for Excise Officers must be fully paid by distilleries, not limited to charge allowance, as determined by the Government.

JUDGMENT :

Muralee Krishna, J.

1. The common issue involved in these writ appeals is as to whether the cost of establishment payable to the Government by the respondents - private distilleries for deploying exercise officials to supervise the manufacturing of liquor and allied activities is the full pay and allowances payable to the post of the Officers deployed or only the charge allowance payable under Rule 53(b) of Part I of the Kerala Service Rules (‘KSR’ in short), since the Officers deployed were holding only additional charge?

2. The respondents in these writ appeals are private distilleries engaged in the manufacturing of Indian Made Foreign Liquor who sell the same to the Kerala State Beverages (Manufacturing and Marketing) Corporation. They filed the respective writ petitions raising a grievance that even though the Inspectors deputed to supervise the activities of the distilleries were holding only additional charge, the Excise Commissioner collected full pay and allowances payable to the post of Excise Inspector from them. In the writ petitions filed under Article 226 of the Constitution of India, the respondents sought a writ of mandamus directing the appellants to recompute the amount payable by them by way of cost of establishment for the period mentioned in those writ petitions, in terms of provisions of Rule 53(b) of Part I of KSR and to refund the amount collected from them in excess of the said amount and other ancillary reliefs. By the impugned judgments in the respective writ petitions, the learned Single Judge found that in view of Rule 53(b) of Part I of KSR and a previous judgment dated 26.05.2009 of a learned Single Judge of this Court in W.P. (C) No.10459 of 2008, which was marked as Ext.P1 in the writ petitions, the appellants are entitled to charge only the additional allowance and not full pay of the persons who were deployed in the distilleries of the respondents, since they were deputed by giving additional charge of the Excise Inspector of the respective Excise Range.

3. Heard the learned Senior Government Pleader and the learned counsel for the party respondents.

4. The learned Senior Government Pleader would argue that the production, manufacture, possession, transport, purchaseand sale of intoxicating liquors are coming under Schedule VII, list II - State list under the Constitution of India. By the provisions under the Abkari Act, the Kerala Distillery and Warehouse Rules 1968, Foreign Liquor (Storage in bond) Rules 1961 and Kerala Rectified Spirit Rules 1972, the State Government is authorised to depute Excise Officials for supervising the activities of distilleries and the cost of establishment for deputing such Officer has to be borne out by the distilleries. The learned Single Judge went wrong by holding that such cost of establishment or in other words the salary of the Excise Inspector so-deployed is only the charge allowance that has to be paid under Section 53(b) of part I of KSR. It is vehemently argued by the learned Senior Government Pleader that the respondents cannot take such a stand since they are bound by the license conditions, wherein they have agreed to pay the actual cost payable to the Officer deputed from the Excise Department as decided by the Excise Commissioner. The decision regarding the charge allowance payable under Section 53(b) is actually the one between the Government and its employees and the respondent distilleries cannot take advantage of the same. The learned Senior Government Pleader submitted that the presence of the officer deployed from the Excise Department in the distilleries would be necessary throughout the manufacturing and allied activities, and hence it cannot be said that the Excise Inspector deputed had done only a supervisory additional duty.

5. On the other hand, the learned counsel appearing for the distilleries would argue that the cost of establishment payable by the respondents for deputing an Officer of the Excise Department is the actual cos