JUDGMENT

Kamat, J.

1. The first petitioner is the Goa Unit and the second petitioner is the All India Trade Union of the employees of the Food Corporation of India, for short "the Corporation" established under Section 45 of the Food Corporation Act, 1964. The Corporation has its regional office at Bombay of which the second respondent is the Senior Regional Manager and its district office at Marmagoa at Goa of which the third respondent is the District Manager.

2. The controversy in this petition relates to the withdrawal of the benefit of overtime allowance which was made available to the employees of the Corporation under the provisions of the Goa, Daman and Diu Shops and Establishments Act, 1973, and falling back upon overtime allowance as is applicable to the employees of the Central Government without any prior notice of the change.

3. Shortly stated, the facts are that prior to the coming into force of the Goa, Daman and Diu Shops and Establishments Act, 1973, the employees of the Corporation in the District of Goa were being paid overtime allowance as was payable to the employees of the Central Government. However, when the Goa, Daman and Diu Shops and Establishments Act, 1973, for short Shops and Establishments Act, was brought into force as from January 26, 1975, the employees of the Corporation in this district were paid overtime allowance in accordance with Section 29 of the Shops and Establishments Act. Section 29 of the Act says that where any employee in any establishment is required to work overtime he shall be entitled in respect of such overtime work to wages at twice the ordinary rate of wages. It is an admitted position that under the Central Government Rules the overtime paid prior to the enforcement of the Shops and Establishments Act was much less and subject to a maximum of Rs. 3.45 per hour.

4. By virtue of the power conferred on the State Government by the provision of Sector 61 of the Shops and Establishments Act the establishment of the Corporation is exempted from the operation of all the provisions of the Act. This was done pursuant to a Notification bearing No. 25/25/79-ILD (Part), dated October 13, 1986, issued by the Department of Industries and Labour. The Notification mentions that the exemption shall come into operation from the date of its issue and since Notification was published in the Official Gazette dated October 15, 1986, needless to say that the Shops and Establishments Act ceased to apply to the Corporation insofar as its district office in Goa is concerned as from October 16, 1986. Soon thereafter the third respondent made an order on December 29, 1986, directing the concerned officer to recover from the employees the overtime allowance paid for the period from October 16, 1986, to October 31, 1986, from the salary payable for the month of December, 1986. It is equally common ground that from November 1, 1986, overtime allowance is being paid to the employees on the basis of the Central Government Rules in that behalf.

5. The discontinuance of the overtime allowance as from November 1, 1986, and the recovery made for the period from October 16, 1986, to October 31, 1986, is now challenged in the present petition. In fact that the challenge is short, in the sense that exemption notification dated October 13, 1986, is not disputed nor for that matter the power of the State Government and the sole challenge is rested on invoking Section 9A of the Industrial Disputes Act, 1947. The contention on behalf of the petitioners now is that once the notification was issued exempting the Corporation, the overtime allowance which was being paid to its employees in the district of Goa could not have been withdrawn unless a prior notice to the effect was given.

6. Section 9-A of the Industrial Disputes Act reads thus :

"No employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Forth Schedule, shall effect such change, -

(a) without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected;

(b) Within twenty-one days of giving such notice;

Provided that no notice shall be required for effecting any such change, -

(a) where the change is effected in pursuance of any settlement or award, or

(b) where the workmen likely to be affected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations, Civilians in Defence Services (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply".

7. Shri Dias now says that admittedly no notice has been given by the Corporation to its employees after the publication of the exemption notification dated October 13, 1986, for effecting change in their service conditions and, therefore, the withdrawal of the overtime allowance without compliance of Section 9-A of the Industrial Disputes Act is illegal and arbitrary as also its action of recovering the overtime allowance paid for the period of October 16, 1986 to October 31, 1986. According to him, clausee (b) of Section 9-A of the Industrial Disputes Act cannot be invoked by the Corporation because even after the issue of the Notification exempting the Corporation from the operation of the Shops and Establishments Act, nothing has been published by the Corporation that, thereafter, the workers would be paid under the Central Government Rules.

8. He now says that the challenge in this petition is very fairly covered on all fours by a case already decided by a Division Bench of this Court at Bombay in the decision of Transport and Dock Workers' Union v. Food Corporation of India (1987) Mah LJ 102.

On reading this decision, it is clear that Shri Dias is entirely right. The facts in that reported decision, apart from being similar, involved the same Corporation is a similar challenge thrown by the Union of Workers of its Regional Office at Bombay. Needless to say that the employees of the Corporation employed in the Bombay region were being paid overtime allowance under the provisions of the Bombay Shops and Establishments Act and once the Corporation was exempted, like in the present case, without complying with Section 9-A of the Industrial Disputes Act, the employees were paid on the basis of what was being paid to the Central Government employees. The challenge accepted on behalf of the Union and the employees in that petition is that even when the Corporation is exempted, the exemption notification by itself is not enough and a notice will have to be given to the workmen in compliance with the provisions of Section 9-A of the Industrial Disputes Act. The facts in the present case, as mentioned earlier, are so similar and the point raised is so common that there can hardly be any dispute and no other view of the matter is possible. We respectfully agree with the view expressed by the Division Bench in that case. We may also mention that we are equally bound by the decision rendered as it has been by another co-ordinate Division Bench of this Court and nothing is left or available to distinguish the present case from the reported case.

9. Shri Sharma, learned counsel appearing for the Corporation,has however taken a strong line to oppose this petition and, according to him, there is no question of compliance of Section 9-A of the Industrial Disputes Act in the first instance for the reason that after the issuance of the exemption notification dated October 13, 1986, the Corporation has fallen back upon the Staff Regulations, 1971, by which conditions of service of the workmen of the Corporation are regulated and governed. That, under the Staff Regulations, 1971, vide clause 78, allowances are required to be determined from time to time; that in any case the overtime allowance comes in sub-clause (iii) of clause 78 under which the Central Rules in relation to the payment of overtime allowance is made applicable to the workmen of the Corporation and, therefore, relying upon the proviso to Section 9-A of the Industrial Disputes Act, according to him, no notice for change is required.

10. It is true that the proviso in clear terms says that no notice shall be required for effecting any change in the first place where the change is effected in pursuance of any settlement or award and secondly where the workmen likely to be affected by the change are persons to whom the several rules as mentioned in sub-clause (b) of the proviso to Section 9-A apply.

11. Shri Sharma now says that the Food Corporation of India is nothing but a Central Government organisation governed by its Staff Regulations which are otherwise approved by the Central Government and being so, for effecting any change in service conditions, Section 9-A of the Industrial Disputes Act shall have no part to play and is inapplicable and, therefore, nothing can be faulted with the withdrawal of overtime allowance at double the rate which was otherwise payable under the Shops and Establishments Act once the exemption notification had been issued.

12. Apart from this, Shri Sharma, now says that the change that has been brought about in withdrawing the overtime allowance payable under the Shops and Establishments Act and falling back upon the allowance payable under Central Government Rules by virtue of the Staff Regulations, 1971, is not a voluntary act and not enforced by the Corporation on its own volition but such change has been effected or brought about by an independent act on the part of the Government of Goa when it exempted the Corporation under Section 61 of the Shops and Establishments Act. In other words the argument is that the change effected is by virtue of the operation of law and not by any action directly attributable to the Corporation and hence Section 9-A of the Industrial Disputes Act is not attracted.

13. In support of this proposition he now relies upon the decision of the Madhya Pradesh High Court in Hemant Kumar Gupta v. District Co-operative Central Bank Ltd., Ambikapur, (1982 Lab IC 1435). It is true that in this case an observation is made in paragraph 6 that an employer need not give a notice under Section 9-A of the Industrial Disputes Act when a change is brought about in compliance with the directions of the Registrar of Co- operative Societies and not by the employer on his own volition.

14. Before, however, we deal with this case in some detail it is advantageous to deal with what is urged by Shri Sharma in relation to the decision of Transport and Dock Workers' Union v. Food Corporation of India (Supra).

Though Shri Sharma for the Corporation does not dispute that the facts involved in the present case are similar to the facts involved in that decision, he, however, says that the same is distinguishable because there is nothing to show that the counsel appearing for the Corporation in that case placed before the Division Bench at Bombay the Staff Regulations and Service Conditions of the workmen. He, therefore, urges that the decision rendered in that reported case is in the absence of Staff Regulations and Service Conditions made known to the Court. He now points out that the Corporation has placed on record and otherwise relied upon material an which rates the overtime allowance was paid prior to the Shops and Establishments Act and after exemption notification. Regard being had to this material it is not possible to import the ratio of that case and grant relief to the present petitioners in this case urges Shri Sharma.

He profusely read paragraphs 12 and 13 of that case to suggest that the Rules and Regulation governing service conditions had not been placed before the Bench. He also says that the Division Court has misconstruced a passage extracted from the decision of the Supreme Court in Workmen of Food Corporation of India v. Food Corporation of India (1985-II-LLJ-4), incorporated in paragraph 12.

15. In the first place it must be seen that what is urged by Shri Sharma is not correct and this is clear from paragraph 13 itself of that report. The Division Bench in paragraph 13 observed that if Section 9-A was to be excluded because of the existence of the Rules and Regulations governing the service conditions of the employees, counsel for Food Corporation of India before the Supreme Court would not have forgotten to place them before the Court. After having said this, the Division Court further held that the Rules and Regulations contemplated by clause (b) to proviso of Section 9-A of the Industrial Disputes Act are those which relate to the "term of service" in which is sought to be effected and had there been Rules and Regulations governing the payment of overtime allowance and had these been notified in the Official Gazette as being applicable after the issue of the notification exempting the Corporation, then recourse to clause (b) to proviso of Section 9-A would have been possible.

16. We do not think Shri Sharma is right in his contentions. Reading paragraph 13 of the report it is clear that the Corporation had placed before the Court the relevant rules and regulations governing the service conditions and despite that, the Division Bench clearly took the view that after the notification exempting the Corporation, a notice is a must under Section 9-A for effecting a change in service conditions or atleast a notification ought to have been issued after the exemption granted, 21 days in advance before effecting the change. There is hardly any scope for Shri Sharma to complain that the Division Bench had misconstrued the passage referred to in paragraph 12 thereof.

17. Shri Sharma now says that on behalf of the Corporation it was never urged before the Division Bench in that case that the change effected in the conditions of service by the withdrawal of the overtime allowance was not by violation of the Corporation but it was by virtue of the provision whereby the Corporation was exempted unlike in the present case. He, therefore, says that on this ground this Bench is not bound by that reported case.

18. It may, however, be mentioned that the petitioners have averred in the petition that the Goa Government has granted exemption to the Corporation from the operation of the Act under Section 61 of the Shops and Establishments Act at the behest of the respondent Corporation. Thought it is indeed true that the Corporation has barely denied this averment but have nowhere categorically stated that the Corporation had never sought nor taken up the issue of exemption with the State Government of Goa at any time. It is beyond our comprehension as to why the Goa Government on its own would exempt the Corporation from the operation of the Act denying the benefits to the workmen of the Corporation when admittedly the Goa Government has no financial liability in the matter nor it in any manner stands to gain. The interference clearly, therefore, goes that the notification issued exempting the Corporation must have been at the behest of the Corporation which alone stands to gain by it. This position is undeniable by the Corporation.

19. Coming back to the argument of Shri Sharma that the grant of the exemption to the Corporation being under a statute and, therefore, not an act of violation on the part of the Corporation and reference to the decision of Hemant Kumar Gupta v. District Co-operative Central Bank Ltd., Ambikapur, (supra), what is worth consideration is that Section 9-A of the Industrial Disputes Act will have no application when the employer by himself is not bringing about any change in conditions of service.

20. In so far as the present case is concerned, the facts belie the Corporation and we will succinctly point out relevant Staff Regulation of 1971. Reliance is placed only on clause 78 which is only an enabling provision.

21. Clause 78(i) gives power to the Corporation in the first place to fix rates at which and the conditions subject to which travelling allowance may be paid to the employees in connection with journeys undertaken by them on tour or transfer in the service of the Corporation; sub-cluase (ii) refers to the rates at which and the conditions subject to which conveyance allowance may be paid to the employees for the maintenance of different types of conveyances for use on official duties; and sub-clause (iii) says the kinds and rates of any other allowance and the terms and conditions on which such allowances may be granted. Shri Sharma insists that the overtime allowance is include in this last category. Truly so.

22. Shri Sharma, however, never denied and indeed he cannot do so that by reason of the fact of the enforcement of the Shops and Establishment Act, 1973, ipso facto conditions of service of the workmen of the Corporation are changed. Undoubtedly, the service conditions of the workmen of the Corporation are governed by the staff Regulations, 1971, as approved by the Central Government. It, therefore, stands to reason that the local Government, namely, the Government of Goa, cannot make any inroads into the service conditions of the employees of the Corporation. Shri Sharma also does not deny that overtime allowance was made payable at double the rates by virtue of Section 29 of the Shops and Establishments Act, 1973. The reason is obvious because it is a condition of service the Corporation made that the wages for overtime will be paid on the basis of the Shops and Establishments Act of the concerned State. It is by virtue of this term of service condition that in the district of Goa the provisions of the Shops and Establishments Act governed the rate of overtime allowance and, accordingly, made applicable. For instance, in Bombay, the allowance is payable in terms of the Bombay Shops and Establishments Act and so is the case in Madras, Calcutta and elsewhere. This being a term of service condition is undoubtely made by the Corporation under sub-clause (iii) of clause 78 of the Staff Regulations, 1971. Therefore, when the Corporation is exempted under a local Act, the effect is that it enables the Corporation to bring about a change in the service condition and not that the local Government which enacts the Shops and Establishments Act does it. A fortiori, therefore, Section 9-A of the Industrial Disputes Act has to be complied with by giving notice of the change, exemption from the operation of the Shops and Establishments Act notwithstanding.

23. The ratio of the Madhya Pradesh case Hemant Kumar Gupta v. District Co-operative Central Bank Ltd., (supra) is not applicable on facts of the present case. There the Register of Co-operative Societies made certain directions and orders to the bank which was abound by such directions and orders. The Registrar had powers under Section 65 of the M.P. Co-operative Societies Act to make rules in respect of conditions of service. Accordingly, he framed rules and subsequently amended them. It is rightly held that the Registrar who made the directions of transfers and changed the designation was not the employer of the employer of the employees of the bank and the bank was bound to give effect to such orders of the Registrar which were statutory in nature and, therefore, not of the volition of the bank.

24. The reference made regarding Staff Regulations, 1971, earlier regarding the rate of overtime allowance payable as per the provisions of the respective State Shops and Establishments Act is in fact found in the Circular of the Food Corporation of India, New Delhi, bearing No. EP-26-2/82, dated December 14, 1982 (124 of 1982), which was produced by Shri Sharma during the course of the hearing. Shri Sharma accepts that the overtime allowance was paid in Goa in terms of Section 29 of the Goa Shops and Establishments Act from the time of its enforcement in 1975, because it was made a term of the condition of service. It is clear that such term of condition of service was already in existence before 1975. The Circular No. 124 of 1982 is on the subject of overtime allowance of employees of the Corporation in ports, godowns and depots and recites as follows :

"It has now been decided in consultation with the Government of India to regulate the payment of overtime allowance w.e.f. December 1, 1982, subject to the following :

1(a) the provision of the Shops and Establishments Act in respect of overtime allowance payments will be applicable only to the staff working in ports, godowns and depots falling within the local areas to which the Act has been extended ....

(b) The rate of overtime will be calculated as per the provisions of the respective Shops and Establishments Act of the Concerned States."

The other material placed on record are the 1961 and modified 1976 Regulations of the Ministry of Finance, Government of India, governing the rates payable to the Central Government employees which indeed will be applicable to the employees of the Corporation otherwise, when the concerned State law is not made applicable.

In other words, the Corporation made it a term of condition of service that overtime allowance will be governed under the State Act and, therefore, voluntarily imbibed the provision of Section 29 of the Shops and Establishments Act to pay double the rate and when exempted from the operation of the Act, it cannot abandon the same without notice, for, the action becomes an action of the Corporation on its own volition.

25. In our view, therefore, nothing more survives in this case and the petition succeeds. Rule accordingly made absolute in terms of prayers (a) and (b). There shall, however, be no order as to costs.