H. K. RATHOD, J. ( 1 ) HEARD learned advocate Mr. Keyur gandhi for Nanavaty Associates for the petitioner and learned advocate i Mr. T. R. Mishra for respondent. ( 2 ) IN the present petition, the petitioner has challenged the order passed by Labour court, Surendranagar in Recovery application No. 130 of 2005 dated 22. 9. 2006. The Labour Court has allowed the said Recovery Application with a direction to the petitioner to pay rs. 4,80,703/- from date of application with 6% simple interest, within a period of 30 days from the date of receiving the copy of said order. ( 3 ) THE respondent - workman, Shri K. K. Pujara, was suspended by the petitioner on 28. 5. 1998. He was transferred at chotila Selling Centre on 20. 10. 1996. The misconduct as alleged by the petitioner is that after his transfer at Chotila Selling centre, he was not performing any duty and remained absent in the place of working and also remained absent without pay. Thereafter, he signed the muster after having collusion with other employees. Therefore, it was decided by the petitioner to hold departmental inquiry against the respondent. Therefore, petitioner is having apprehension that if during the pendency of inquiry, respondent is continued in service, he may tamper with the evidence or record and, therefore, he was suspended. The headquarter was fixed at Surendranagar and as per the order, he is entitled six months 50% subsistence allowance and beyond six months, 75% subsistence allowance and he has to report once in a day in the office of petitioner and if he tailed to do so, for that period he is not entitled for the subsistence allowance from the petitioner. The respondent workman is not permitted to work either in private or in government job during suspension period. ( 4 ) ONE fact which is not disputed by petitioner is that there is no standing order or service rules which provides for suspension in the petitioner establishment. The question is that in absence of standing orders or services rules, whether the petitioner is entitled to suspend the respondent workman or not ? Even considering the implied power of the employer to suspend the employee, the petitioner shall have to pay the full wages or salary to the concerned respondent. The suspension allowance as decided in suspension order dated 28. 5. 1998 was not paid by petitioner. Even considering the implied power of the employer to suspend the employee, the petitioner shall have to pay the full wages or salary to the concerned respondent. The suspension allowance as decided in suspension order dated 28. 5. 1998 was not paid by petitioner. Therefore, recovery application was filed by the respondent under Section 33 (c) (2) of the I. D. Act, 1947. That was objected by the petitioner by filing detailed reply and various contentions have been raised by the petitioner before the Labour Court. After passing the suspension order, according to petitioner, in fact the respondent has not reported for work in any occasion and not signed the muster. Therefore, he is not entitled the amount of suspension allowance. One fact is very clear that after suspending the employee, he had not reported to sign the muster. Even though no notice was sent by the petitioner to the respondent. According to petitioner, a notice vide Exh. 31 and exh. 32 sent to the respondent and RPAD acknowledgment with the petitioner but. the petitioner is not having RPAD slip with him and has not produced before the labour Court means no notice served to respondent. Therefore, after passing the suspension order, considering the misconduct as alleged against the respondent in suspension order, the intention was very clear though there was no specific power to continue the respondent in suspension, no departmental inquiry was initiated and charge-sheet was served to him for a pretty long time till the recovery application is decided by the labour Court. Such kind of suspension apparently is a pre-determined issued by the petitioner. A letter dated 27. 1. 1998 addressed to the Assistant PF commissioner by Manager stating that employee of the petitioner establishment shri K. K. Pujara working as a Clerk at chotila Selling Centre has not been paid any salary because of the direction issued by the Chairman. Similarly, demand is also made for resignation of the respondent as per Resolution No. 59 in presence of respondent workman. The Board of director has called the respondent where he demanded the subsistence allowance. One mangalsinh Parmar has informed the respondent that first, he should tender his resignation and then only, he will be paid his legal dues. Otherwise, after obtaining necessary advice from the lawyer, necessary proceedings should be initiated against the respondent. The Board of director has called the respondent where he demanded the subsistence allowance. One mangalsinh Parmar has informed the respondent that first, he should tender his resignation and then only, he will be paid his legal dues. Otherwise, after obtaining necessary advice from the lawyer, necessary proceedings should be initiated against the respondent. Why I am referring this may not be relevant for examining the merits of the order passed by Labour Court in recovery Application but it is very relevant to point out the conduct, attitude, intention, unfair labour practice, victimization of the petitioner against the respondent. These are the tactics adopted by the petitioner establishment against the respondent with a view to see that the respondent may leave the job, surrender to their conditions or may not fight or may not continue to legal fight with the petitioner. This is nothing but a high handed action by the establishment with a view to see that not a single pie from the date on which the order was passed, is paid to him against the employee working as a clerk, who has claimed suspension allowance from the petitioner. In this case, no charge-sheet was served and no departmental inquiry was initiated but, the employee concerned is continued under suspension so that he may be not able to raise any grievance against the petitioner. This is nothing but to cut the legal right of the respondent in the legalized manner while suspending the respondent workman. Such type of attitude gathered by this Court from the record is relevant and, therefore, same is referred by this Court. From the entire record, intention of the petitioner from the very beginning was to suspended the respondent, not to issue any charge-sheet and not to hold any inquiry and to see that he remains under suspension and for that period, no suspension allowance is to be paid and they want to see how long he can remain under suspension without wages, without salary and ultimately, one day, respondent must have to surrender the demand of the petitioner. ( 5 ) LEARNED advocate Mr. Gandhi raised contention that Labour Court has committed gross error in allowing the application in absence of pre-existing right of the respondent. ( 5 ) LEARNED advocate Mr. Gandhi raised contention that Labour Court has committed gross error in allowing the application in absence of pre-existing right of the respondent. He also submitted that conditional order of suspension not satisfying the condition by the respondent, therefore, he is not entitled any amount of subsistence allowance from the petitioner and Labour Court has no jurisdiction to grant such amount. He also raised contention that from the date of suspension till the date of respondent reinstated in november,2006, he has not reported to establishment and, therefore, he is not entitled any amount of subsistence allowance from the petitioner. He also submitted that order passed by Labour court is beyond the scope of Section 33 (c) (2) of the I. D. Act, 1947. He relied upon the decision of Apex Court reported in 2005 (8) SCC 211 , particularly Para. 49 wherein it is held that where according to service rules, if rule requires marking of presence every day during the suspension, then, the respondent shall have to mark the presence during the suspension period. He submitted that respondent failed to mark his presence, therefore, he is not entitled the amount of subsistence allowance from the petitioner. ( 6 ) LEARNED advocate Mr. Mishra appearing for the respondent submitted that there is no service rules which provides the power to suspend the employee. He also submitted that in absence of service rules, during the period of suspension, the respondent employee entitled full wages as a matter of right. He also submitted that after passing the order of suspension, no charge-sheet and departmental inquiry conducted against the respondent. He also submitted that according to petitioner, upto 2000 the respondent reported on the basis of record and marked the presence but, after 2000, there is nothing on record. However, he submitted that even upto 2000 also, not a single pie has been paid by petitioner to the respondent about the suspension allowance. Therefore, he submitted that there are various decisions of the various High Courts in such circumstances wherein it is held that the workman entitled the suspension allowance, which are as under : (1) Management of SS-7 Inam Byroji primary Agricultural Co-operative Bank ltd. , Inam Byroji Post, Verrapandi v. R. Natesan and Others, reported in 2007 (2)LLN 698. (2) Sachidanand Lal v. State of Bihr and others, reported in 2007 (2) LLN 932. , Inam Byroji Post, Verrapandi v. R. Natesan and Others, reported in 2007 (2)LLN 698. (2) Sachidanand Lal v. State of Bihr and others, reported in 2007 (2) LLN 932. (3) Kamta Parsad and Anr. v. Presiding officer, Labour Court, Guragaon and Anr. Reported in 2002 Lab I. C. 1934. (4) Union of India and Ors. v. Gulam mohamed Ghanchi reported in 2006-I-LLJ-33. (5) Commercial Co-operative Bank Ltd. v. Pravin S. Mehta. reported in 2007-I-LLJ-513. ( 7 ) LEARNED advocate Mr. Mishra submitted that Labour Court has not committed any error which requires interference by this Court. He also submitted that Labour Court is entitled to consider the legal right to receive amount from the employer. He also submitted that labour Court is also entitled to consider the incidental matter while exercising the power under Section 33 (c) (2) of the i. D. Act, 1947. He also submitted that according to service condition, if any amount due. the workman is entitled to claim it from employer by filing recovery : application. Therefore, the Labour Court has rightly examined the issue. For that, no error is committed by the Labour Court. ( 8 ) I have considered the submissions made by both the learned advocates. I have also perused the order passed by Labour court. The respondent was suspended by petitioner on 28. 5. 1998. The reply was filed by petitioner before the Labour Court. The request was made by the respondent on 17. 12. 1999 claiming suspension allowance from the petitioner. Thereafter, certain documents were produced by both the parties before the Labour Court. Vide exh. 17, the respondent was examined before the Labour Court and vide Exh. 29, the petitioner establishment produced certain documents before the Labour Court and one Kamubhai Malek, witness of. petitioner establishment vide Exh. 30 was examined before the Labour Court and vide exh. 51, further documents produced by petitioner and vide Exh. 52, one another witness Shri Gambhirsinh T. Khere was examined. Vide Exh. 54 to 65, certain documents were produced by petitioner and thereafter, the Labour Court has considered the evidence on record, appreciated the same and also considered certain decisions relied upon by both the parties and come to conclusion that respondent workman is entitled the amount of subsistence allowance from the petitioner under Section 33 (c) (2) of the I. D. Act,1947. The Issue no. The Issue no. 1 decided by the Labour Court after considering the submissions as well as documentary evidence and oral evidence, which is undisputed facts between the parties that there is no service rules for suspension. These facts were admitted by the witness of the petitioner vide Exh. 30 in cross-examination in Para. 5. The notice issued by the petitioner was not received by the respondent because there was no acknowledgment produced by the petitioner before the Labour Court. One fact was admitted by the witness that after suspending the respondent, no charge-sheet was served to the respondent by the petitioner and another admission is very important that no letter was written to the respondent by the petitioner that why he is i not coming to establishment to sign the muster roll. For that, no correspondence at all made by the petitioner with the respondent. These facts were admitted by the witness of the petitioner in cross-examination in Para. 15. The witness has also admitted that 90% work is at plant which is half a kilometre away from the office and he was not aware about the fact whether respondent has personally reported for work or in office for signing muster. Same evidence was of Shri Gambhirsinh T. Khere vide Exh. 52. One Mr. R. A. Chauhan who has given answer to the petitioner establishment in response to their letter that in such cases of suspension, the suspension allowance must be paid and after completion of departmental inquiry, report is to be given to the concerned workman. These facts are produced vide Exh. 70 before the Labour Court. Witness gambhirsinh also admitted that he is not aware about the fact as to whether before 2 years, the respondent had come for signing the muster roll. One Mr. Chauhan has given opinion which was received by the petitioner where a specific advice was given to the petitioner but. not acted by the petitioner. These evidence have been appreciated by the Labour Court and the labour Court has come to the conclusion that from 28. 5. 1998 upto the year 2000 which is proved from the record that workman had reported for signing the muster but, it was not allowed by the petitioner, after appreciating the oral evidence of two witnesses of the petitioner vide Exh. 30 and Exh. 52. 5. 1998 upto the year 2000 which is proved from the record that workman had reported for signing the muster but, it was not allowed by the petitioner, after appreciating the oral evidence of two witnesses of the petitioner vide Exh. 30 and Exh. 52. Thereafter, the labour Court has considered that when there is no service rules for suspension then to put such condition to report in muster roll every day is also without jurisdiction and in absence of service rules, workman is entitled the full wages as subsistence allowance. The Labour Court has also considered that under Section 33 (c) (2) of the I. D. Act,1947 where it is provided that any workman is entitled to receive from the employer any money or any benefit which is entitled of being computed in terms of money and if any question arise as to the amount of money due or as to the amount on which said benefit should be computed then the question may subject to any rules that may be made under this Act, be decided by such Labour Court, as may be specified in this behalf by the appropriate government. So Section 33 (c) (2) of the i. D. Act,1947 specifically made it clear that if any question arise which is required to be decided by Labour Court being an incidental matter to examine the claim of workman, whether the workman is entitled the said amount or not. This is merely a bare reading of Section itself. In absence of service rules, it is a pre-existing right of the respondent workman to claim the salary from the petitioner as a subsistence allowance. Looking to the conduct, attitude, tendency, intention of the petitioner, it is clear that whatever order is issued by petitioner in absence of service rules is with a view to keep away the respondent from the duty. Otherwise there is no other purpose which justified such suspension because from date of suspension, no charge-sheet, no departmental inquiry though more than 7 years have passed. That suggests the bad intention on the part of the petitioner. Therefore, according to my opinion, the Labour Court has rightly examined the claim and decided it and come to the conclusion that respondent workman is entitled the full wages as a subsistence allowance from the petitioner. The decision relied by learned advocate mr. That suggests the bad intention on the part of the petitioner. Therefore, according to my opinion, the Labour Court has rightly examined the claim and decided it and come to the conclusion that respondent workman is entitled the full wages as a subsistence allowance from the petitioner. The decision relied by learned advocate mr. Gandhi reported in 2005 (8) SCC 211 is not applicable to the facts of this case because there was a specific service rules where condition to report each day during the suspension period. Here, in the present case, there is a total absence of service rules, which cannot be compared with decision which is relied by learned advocate mr. Gandhi. Therefore, according my opinion, the Labour Court has rightly considered the oral evidence appreciated the same and come to right conclusion that whenever service rules are not there and the workman is suspended then workman is entitled the full wages as a suspension allowance and in absence of service rules, question of putting the condition to report to sign muster is also not permissible because on one hand, the employer is suspending the employee on the apprehension that he will tamper with the evidence and record and on the other hand, the employer is calling the workman to report to sign the muster. These two things are completely contradictory to each other. Therefore, according to my opinion, the labour Court after appreciating the oral as well as documentary evidence and in absence of service rules, considering that condition is not necessary to be observed by the respondent workman and another aspect not to pay suspension allowance to the respondent workman upto the period from 2000, naturally the workman may not report further in absence of subsistence allowance with the petitioner. Not to pay the subsistence allowance amounts to denying the opportunity to the respondent workman which caused great prejudice to the respondent workman who is maintaining the family in absence of the salary for more than 7 years, even though petitioner has not paid a single pie to the respondent workman except as ordered by this Court paid six months amount and Rs. 15000 additionally and reinstated him in November,2006. Therefore, these are the steps taken by petitioner in pursuance to the order passed by this Court. 15000 additionally and reinstated him in November,2006. Therefore, these are the steps taken by petitioner in pursuance to the order passed by this Court. ( 9 ) IT is necessary to note that in absence of preliminary inquiry and charge-sheet, the question of suspension does not arise. In model Standing Orders 1946, Section 10a where no provision is made to report daily for marking presence before establishment. So the suspension order was issued without charge-sheet. The suspension must be in or during pending enquiry. But, in this case, in absence of charge-sheet, there is no pending enquiry against respondent even though he was suspended. That suspension without any enquiry is bad or without jurisdiction or power. The power to suspend the employee in pending enquiry but when charge-sheet not served at all then there was no pending enquiry, therefore suspension order itself is illegal and without any power in absence of rules. The provision of Model Standing Orders 1946 must be applicable and under Section 10a, no such condition incorporated which required to mark presence daily. Therefore, the order of suspension with such condition itself is illegal. ( 10 ) THIS Court has taken the view in identical case in case of Commercial Cooperative Bank Ltd. v. Pravin S. Mehta reported in 2007 I LLJ 513. The relevant observations are in Paras 4 and 5 which are quoted as under : "4. I have considered the submissions made by the learned Advocates for the parties. I have also perused the order in question as well as the order of this Court in SCA No. 443 of 1999 decided on 8. 10. 1999. According to my opinion, labour court has rightly considered the matter at issue that when there is no service rule providing specific subsistence allowance during the period of suspension, then, petitioner shall have to pay full wages to the workman during the period of suspension. According to my opinion, the controversy sought to be raised by the petitioner is no more res integra in view of the aforesaid decision of this Court (Coram : R. M. Doshit, J.) dated 8. 10. 1999. In para 4 of the said decision, this Court observed as under: 4. It is not disputed that the relevant standing order does not provide for payment of wages at the reduced rate during the period of suspension pending inquiry. 10. 1999. In para 4 of the said decision, this Court observed as under: 4. It is not disputed that the relevant standing order does not provide for payment of wages at the reduced rate during the period of suspension pending inquiry. In absence of specific rule to that effect the respondent would be entitled to the full wages even during the period of suspension. However, the demand was for 25% of wages by way of additional amount of subsistence allowance. The Learned Judge ought not to have granted more than what was demanded. The petition is, therefore, allowed. The impugned order of the Learned labour Judge is modified to the effect that the respondent will be entitled to 25% of the wages by way of additional amount of subsistence allowance for the period in question. Rule is made absolute to the above extent only. There shall be no order as to costs. 4 to be quoted. " "5. Therefore, in view of the observations made by this Court in aforesaid case, it is clear that the contention sought to be raised by petitioner in this case has been negatived by this Court in aforesaid decision and, therefore, according to my opinion, labour court, Jamnagar was right in examining the matter at issue and was right in relying upon earlier decision of this Court referred to above and in doing so, no error has been committed by labour court calling for interference of this court under Article 227 of the Constitution of india. " ( 11 ) THE view taken by the Punjab and haryana High Court in case of Kamta prasad and Anr. v. Presiding Officer, labour Court, Gorgaon and Anr. reported in 2002 Lab IC 1934. " ( 11 ) THE view taken by the Punjab and haryana High Court in case of Kamta prasad and Anr. v. Presiding Officer, labour Court, Gorgaon and Anr. reported in 2002 Lab IC 1934. The relevant observation are in Head-Note (A) and (B), paras 9 and 10, which are quoted as under: " (A) Industrial Disputes Act (14 of 1947), S. 33-C (2) - Scope and ambit of jurisdiction of Labour Court - Suspension of employee - Non-payment of subsistence allowance - Application under S. 33-C (2)for computing amount due on account of subsistence allowance - Dispute regarding entitlement of employee to subsistence allowance on ground of his failure to mark attendance during period of suspension -Labour Court has jurisdiction to go into question of law and fact to determine entitlement of employee to claim benefit under S. 33-C. " " (B) Industrial Disputes Act (14 of 1947), Ss. 33-C (2), 10 - Industrial employment (Standing Orders) Act (1946), s. 10-A - Failure of workman to mark attendance during period of suspension -Denial of payment on ground of non-compliance with Standing Order 20 (d) and (g) - Not proper as under S. 10-A of 1946 act workman is entitled to subsistence allowance during period of suspension without any condition - Provision of S. 10-A would prevail over provision of Certified standing Order. " "9. A perusal of the award shows that the Labour Court has refused to go into the questions of fact and law, by holding that this would be in excess of the jurisdiction conferred on the Labour Court under section 33-C (2) of the Industrial Disputes act. I am of the considered opinion that the labour Court has failed to exercise its jurisdiction while deciding the application of the petitioners. It is a settled proposition of law that the Labour Court would not become powerless to grant any relief to the workman on the Management raising even the slightest dispute to the entitlement of the workman to the benefit claimed under section 33-C (2) of the Industrial Disputes act. Considering the scope and ambit of jurisdiction of the Labour Court under section 33-C (2) of the Industrial Disputes act, a Constitution Bench of the Supreme court in the case of Central Bank of India v. P. S. Rajagopalan, AIR 1964 SC 743 , has held as follows : 16. . . . . Considering the scope and ambit of jurisdiction of the Labour Court under section 33-C (2) of the Industrial Disputes act, a Constitution Bench of the Supreme court in the case of Central Bank of India v. P. S. Rajagopalan, AIR 1964 SC 743 , has held as follows : 16. . . . . In our opinion, on a fair and reasonable construction of sub-sec. (2) it is clear that if a workman s right to receive the benefit is disputed, that may have to be determined by the Labour Court. Before proceeding to compute the benefit in terms of money, the Labour Court inevitably has to deal with the question as to whether the workman has a right to receive that benefit. If the said right is not disputed, nothing more needs to be done and the Labour court can proceed to compute the value of the benefit in terms of money; but if the said right is disputed, the Labour Court must deal with that question and decide whether the workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answers this point in favour of the workman that the next question of making the necessary computation can arise. It seems to us that the opening clause of sub sec. (2) does not admit of the construction for which the appellant contends unless we add some words in that clause. The clause "where any workman is entitled to receive from the employer any benefit" does not mean "where such workman is admittedly, or admitted to be, entitled to receive such benefit". The appellant s construction would necessarily introduce the addition of the words "admittedly, or admitted to be" in that clause, and that clearly is not permissible. Besides, it seems to us that if the appellant s construction is accepted, it would necessarily mean that it would be at the option of the employer to allow the workman to avail himself or the remedy provided by sub-sec. (2), because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the labour Court to entertain the workman s application. (2), because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the labour Court to entertain the workman s application. The claim under Section 33-C (2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by sub-section (2 ). As Maxwell has observed "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution". We must accordingly hold that S. 33-C (2) takes within its purview cases of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by : their employers". "10. That being the position of law, the labour Court ought to have decided the question as to whether the applicants would : have been denied the subsistence allowance on the ground that they have failed to mark their presence at the Security Gate. This was not such a dispute which needed any complicated adjudication. The Labour: court had to decide as to whether Section 10-A of the Act would prevail over the provisions of the Certified Standing Orders. A perusal of the Act shows that the certified Standing Orders have to be made in conformity with the Model Standing orders which have been set out in terms of section 15 (2) (b ). the Standing Orders made by the employer have to be clarified under section 4 of the Act. While certifying the standing Orders, the Certifying Authority has to satisfy itself that the Standing Orders contain provisions for every matters set out in the Schedule which is applicable to the industrial establishments. The Standing orders have to be in conformity with the provisions of the Act. It is the mandatory function of the Certifying Officer or the appellate Authority to adjudicate upon the fairness or reasonableness of the provisions of the Standing Orders. Upon certification, the Standing Orders bind the Management and the workman. The Standing orders have to be in conformity with the provisions of the Act. It is the mandatory function of the Certifying Officer or the appellate Authority to adjudicate upon the fairness or reasonableness of the provisions of the Standing Orders. Upon certification, the Standing Orders bind the Management and the workman. Nevertheless the Model standing Order or the Certified Standing orders remain law made under the Act. In the present case, the claim of the petitioners is disputed by the respondent Management on the ground that the petitioners have failed to comply with the proviso to standing Orders 30 (d) and (g ). The provisions with regard to the grant of subsistence allowance during the period of suspension is made in Section 10-A of the act. For facility or reference Section 10-A of the Act and Standing Orders 30 (d) and (g) are reproduced as under : "10-A Payment of subsistence allowance:- (1) Where any workman is suspended by the employer pending investigation or enquiry into complaints or charges of misconduct against him, the employer shall pay to such workman subsistence allowance (a) at the rate of fifty per cent of the wages which the workman was entitled to immediately preceding the date of such suspension, for the first ninety days of suspension; and (b) at the rate of seventy-five per cent of such wages for the remaining period of suspension if the delay in the completion of disciplinary proceedings against such workman is not directly attributable to the conduct of such workman. (2) If any dispute arises regarding the subsistence allowance payable to a workman under sub-section (1), the workman or the employer concerned may refer the dispute to the Labour Court, constituted under the Industrial Disputes act, 1947, within the local limits of whose jurisdiction the industrial establishment wherein such workman is employed is situate and the Labour Court to which the dispute is so referred shall after giving the parties an opportunity of being heard, decide the dispute and such decision shall be final and binding on the parties. (3) Notwithstanding anything contained in the foregoing provisions of this Section, where provisions relating to payment of subsistence allowance under any other law for the time being in force in any State are more beneficial than the provisions of this section, the provisions of such other law shall be applicable to the payment of subsistence allowance in that State. " "30 (d) A workman under suspension shall report for half an hour on every working day at the Security Gate at 10. 00 a. m. to receive any communication which may be tendered to him on behalf of the manager, and get his attendance marked. "39 (g) A workman under suspension will be paid subsistence allowance at the rate of half his average pay calculated in accordance with the provisions of Section 2 (aaa) of the Industrial Disputes Act,1947: provided that for the days the suspended workman fails to report in terms of sub-clause (d), or leaves the Station without leave or is allowed leave without subsistence allowance in terms of sub-clause (g), he shall not be paid any subsistence allowances at all for those days: provided further that if the enquiry proceedings go beyond a period of 90 days for which the suspended workman has been paid subsistence allowance, at the rate of 50% of the average pay, he shall thereafter be paid subsistence allowance at the rate of 3/4th of his average pay calculated in the like manner. " ( 12 ) THE view taken by this Court in case of Union of India and Others v. Gulam mohamed Ghanchi is in reported in 2006 I llj 33. The relevant Paras. 4 and 5 are quoted as under : "4. The common grievance advanced by the respondents is that during the course of inquiry they were not paid subsistence allowance, therefore, they could not defend themselves in the inquiry proceedings, and consequently, there is failure of principles of natural justice, and on this count, inquiry proceedings stand vitiated. CAT placed reliance on Apex Court decisions in Peter d Jada and another v. Superintendent of post Offices Udupi and others ( (1989) ATC 225 ). Fakirbhai Fulabhai Solanki v. The presiding Officer and another ( 1986 LLJ 124 ), Ram Lakhan etc. v. Presiding Officer and others ( 2000 (2) Scale 9 ), State of maharashtra v. Chanderbhan ( AIR 1983 sc 803 ), Capt. Fakirbhai Fulabhai Solanki v. The presiding Officer and another ( 1986 LLJ 124 ), Ram Lakhan etc. v. Presiding Officer and others ( 2000 (2) Scale 9 ), State of maharashtra v. Chanderbhan ( AIR 1983 sc 803 ), Capt. M. Paul Anthony v. Bharat gold Mines Limited and another ( AIR 1999 sc 1416 ) and O. P. Gupta v. Union of India ( 1987 4 SCC 328 ), and came to the conclusion that non-payment of subsistence allowance during the pendency of domestic inquiry amounts to violation of principles of natural justice, therefore, enquiry proceedings stand vitiated, and consequently respondents has been directed to be reinstated with immediate effect in the same post. It was further directed that lump sum compensation be paid in four months from the date of order, and failure will entail running interest @ 12% per annum in the case of Arvindbhai M. Patel, and in the case of Shri Gulam Mohmad Ghanchi, direction is for reinstatement and payment of Rs. 5000/- etc. etc. " "5. Shri Anant S. Dave, learned additional Standing Counsel for the petitioners, contended that the judgments of cat are liable to be set aside, since it did not consider that respondents did not raise the objection as to non-payment of subsistence allowance during enquiry proceedings, in which they participated regularly and in the absence of prejudice being shown, inquiry proceedings cannot be quashed. Reference is made to the Apex court decision in Indra Bhanu Gaur v. Committee, Management of M. M. Degree college and others (2003 Lab IC 3844 ). We have earlier referred to the decisions of the apex Court referred by the CAT in its judgments in our decision dated 18-06-2004 in Chief Post Master General v. Rameshbhai L. Parmar (S. C. A. No. 5080/04)with regard to the contention raised by Shri anant S. Dave, besides State of Punjab and others v. K. K. Sharma (2003 AIR SCW 2792 ). The fact remains that the respondents have not been paid subsistence allowance. Question is whether the respondents should raise this objection or the petitioners are duty bound to extend the benefit to the respondents. Where statute provides for payment of subsistence allowance, competent authority is duty bound to pay subsistence allowance. The fact remains that the respondents have not been paid subsistence allowance. Question is whether the respondents should raise this objection or the petitioners are duty bound to extend the benefit to the respondents. Where statute provides for payment of subsistence allowance, competent authority is duty bound to pay subsistence allowance. Even in absence of such a provision, the delinquent must be paid monthly salary he is entitled to from time to time, the reason being that suspension does not put an end to his service under the Government, he continues to be member of the service and master-servant relationship continues. What is suspended by termination is that the delinquent is asked not to work. With this relationship, he is entitled to the salary because situation of suspension is brought about by the employer. The delinquent and his family have to subsist, defend the case against him and engage experts to help him. All these require substantial funds. Where-from they will come? Therefore, by denial of pay or subsistence allowance/ compensation amount, he is bound to suffer enormously with regard to his existence and cannot defend himself in the enquiry. The prejudice to the delinquent is writ large, therefore, obvious. The Apex Court has elevated the right to subsistence allowance to the level of right to live under Article 21 of the Constitution of India, therefore, nonpayment thereof amounts to violation of this right. It is profitable to refer to Captan m. Paul Anthony case (supra) (paragraph 29): exercise of right to suspend an employee may be justified on the facts of a particular case. Instances, however, are not rate where officers have been found to be afflicted by "suspension syndrome" and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee s trivial lapse which has often resulted in suspension. Suspension notwithstanding, non-payment of subsistence allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nick name of "subsistence Allowance", so that the employee may sustain himself. Suspension notwithstanding, non-payment of subsistence allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nick name of "subsistence Allowance", so that the employee may sustain himself. This Court in O. P. Gupta v. Union of India, (1987) 4 scc 328 : ( AIR 1987 SC 2257 ) made the following observations with regard to subsistence Allowance (para 15 of AIR): an order of suspension of a government servant does not put an end to his service under the Government. He continues to be a member of the service in spite of the order of suspension. The real effect of suspension as explained by this court in Khem Chand v. Union of India ( AIR 1958 SC 300 ) is that he continues to be a member of the Government service but is not permitted to work and further during the period of suspension he is paid only some allowance which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental inquiry is concluded within a reasonable time, affects a Government servant injuriously. The very expression "subsistence allowance" has the undeniable penal significance. The dictionary meaning of the word "subsist" as given in Shorter oxford English Dictionary, Vol. II at p. 2171 is "to remain alive as on food; to continue to exist". "subsistence" means means of supporting life, especially a minimum livelihood. (Emphasis supplied.)"division Bench of this Court in Special civil Application No. 11693 of 2002 -Union of India v. Ishwarbhai R. Patel, held that where subsistence allowance is not paid during suspension, prejudice to delinquent is obvious. " ( 13 ) THE view taken by the Bombay High court in case of Mahalaxmi Co-operative hsg, Soc. Ltd. v. Dilip Singh Parocha and ors reported in reported in 2007 I CLR 475. The relevant Paras 39 and 40 are quoted as under : "39. We must make a detailed reference to Ganesh Razak s case (supra) as heavy reliance is placed on it by the appellant. In our opinion, this judgment does not help the appellant. Ltd. v. Dilip Singh Parocha and ors reported in reported in 2007 I CLR 475. The relevant Paras 39 and 40 are quoted as under : "39. We must make a detailed reference to Ganesh Razak s case (supra) as heavy reliance is placed on it by the appellant. In our opinion, this judgment does not help the appellant. In that case, the respondents were daily rated workers of the appellant therein. They claimed that they were doing the same kind of work as the regular employees and, therefore, they were required to be paid by the appellant the same pay as the regular employees on the principle of equal pay for equal work. The appellant therein challenged the maintainability of the proceedings under Section 33 (C) (2) of the said Act. on the ground that the claim of the workmen to be paid at the same rate being disputed, proceedings under Section 33 (C) (2) were not maintainable. The supreme Court held that there was no adjudication by any forum of the claim of the workmen of their entitlement to be paid wages at the same rate as regular workmen. There was no award for settlement and, therefore, there could be no occasion for computation of the benefit on that basis to attract Section 33 (C) (2 ). It is pertinent to note that, no submission was made before the Supreme Court that there was any attempt by the employer to oust the jurisdiction of the Labour Court by raising a frivolous plea. It is against the backdrop of the facts before it and submissions advanced before it that though the Supreme court accepted that incidental questions can be decided under Section 33 (C) (2), it went on to hold that if entitlement of a workmen is adjudicated upon earlier and if any interpretation of the Award of settlement is required, that would be an incidental question. In the circumstances we are of the opinion that in this judgment the Supreme Court has not departed from the view taken by the Constitution Bench in central Bank of India s case (supra) after taking into consideration the legislative intent. " "40. In the circumstances we are of the opinion that in this judgment the Supreme Court has not departed from the view taken by the Constitution Bench in central Bank of India s case (supra) after taking into consideration the legislative intent. " "40. From the judgments of the Supreme court and of this Court to which we have made a reference following propositions emerge : (a) The legislature recognised that individual workmen should be given a speedy remedy to enforce their existing individual rights and so it inserted Section 33c in the said Act in 1956. By resorting to Section 33c individual workmen can enforce their rights without having to take recourse to Section 10 (1) of the said Act or without having to depend upon their union to espouse their cause. (b) There is no bar preventing a Labour court dealing with an application under section 33c (2) of the said Act from determining the workmen s right to receive benefit if it is disputed by the employer. (c) This view is consistent with the legislative intent and a contrary view would mean that it would be at the option of the employer to allow the workmen to avail himself of the remedy provided by Subsection (2) of the Section 33c because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the Labour Court, to entertain the workman s application. (d) In some cases determination of the question about computing the benefit in terms of money may have to be preceded by an enquiry into the existence of the right, and such an enquiry must be held to be incidental. (e) Whether such inquiry is incidental or not will depend on the facts and circumstances of each case. (f) When Labour Court s jurisdiction is sought to be ousted by raising objection to it, the Labour Court will have to examine whether it has jurisdiction or not. In such a situation the question of status of the person applying under Section 33 (C) (2) becomes an incidental matter and the Labour Court can enquire into that matter. (g) In a given case, it may be necessary to determine the identity of the person against whom the claim is made if there is challenge and such determination would be incidental. (g) In a given case, it may be necessary to determine the identity of the person against whom the claim is made if there is challenge and such determination would be incidental. (h) Interpretation of an Award or a settlement on which the workman s right exists is incidental to the Labour Court s power under Section 33c (2 ). (i) Under Section 33c (2) the Labour court cannot be asked to disregard the dismissal of the workman as wrongful and on that basis compute his wages. (j) Under Section 33c (2) the workman cannot claim that his dismissal or demotion is unlawful and, therefore, he continues to be the workman of the employer and he is entitled to the benefits due to him under a pre-existing contract. (k) Under Section 33c (2), it would not be open to an employee, notwithstanding a settlement, to claim the benefit as though the said settlement has come to an end. (1) If the workman makes his claim on the basis of a lay off and the employer raises a plea that there was no lay off but closure, the Labour Court must decide as to whether there was really a lay off or a closure and if it takes the view that there was a lay off without any closure of the business, it would be acting within its jurisdiction if it awarded compensation in terms of the provisions of Chapter V-A. In such a situation the plea raised by the employer is a jurisdictional plea and the labour Court has to decide whether it has jurisdiction to make the computation. Thus, jurisdiction pleas will have to be decided by the Labour Court. (m) If the workers claim that they had been actually promoted to a particular cadre and the management denies the promotion the Labour Court can decide whether there was such a promotion or not it being an incidental question, but under Section 33c (2) the Labour Court cannot reclassify the workers. (n) While dealing with an application under Section 33c (2) the Labour Court has to keep the legislative intent in enacting this provision in mind. It must adopt a cautious approach and it must not allow an attempt to oust the jurisdiction of the Labour Court by raising frivolous plea succeed for that would mean driving the workman unnecessarily to another forum. It must adopt a cautious approach and it must not allow an attempt to oust the jurisdiction of the Labour Court by raising frivolous plea succeed for that would mean driving the workman unnecessarily to another forum. In such cases it will have to conduct incidental inquiry to determine the identity of the person against whom the claim is made and the person who makes the claim. Nature of incidental inquiry will obviously depend on facts and circumstances of each case. " ( 14 ) THE view taken by the Karnataka high Court in case of K. S. Periyaswamy v. Bharath Earth Movers Ltd. , Bangalore reported in 2006 I CLR 490. The relevant para. 9 is quoted as under : "9. A Division Bench of the Andhra pradesh High Court way back in Zonal manager, Food Corporation of India v. Khaleel Ahmed Siddiqui, 1982 LIC 1140 (AP) has noticed a similar condition and has chosen to see a circular providing for daily attendance even after suspension. The division Bench ruled that : the expression "suspension" means debarring an employee from service temporarily. We fail to understand how when an employee is debarred temporarily from service, he could be compelled to attend office and mark his attendance daily and also be visited with penalty if he does not mark his attendance. The instructions, in our view, cannot be regarded as merely filing up the gaps in the regulations when they are inconsistent with the rules. It is unnecessary to refer to a number of decision of the Supreme Court which have held that it is not open by way of administrative instructions to amend or modify the statutory rules, though it is open to the executive to supplement or fill up the gaps by administrative instructions. In this connection, it has to be noted that the person under suspension is entitled to all allowances referred to in Regulation 66 (6)other than conveyance allowance. This clearly indicates that a person under; suspension is not expected to attend office or claim conveyance for his attendance. In this connection, it has to be noted that the person under suspension is entitled to all allowances referred to in Regulation 66 (6)other than conveyance allowance. This clearly indicates that a person under; suspension is not expected to attend office or claim conveyance for his attendance. Further in Regulation 66 (8) it is also provided that ultimately if the suspension of an employee is held to be unjustified or not wholly justified, or when an employee who has been dismissed or suspended is reinstated, the disciplinary, appellate or reviewing authority, as the case may be, may if he is honourably acquitted grant to him the full pay and allowances other than conveyance allowance to which he would have been entitled, if he had not been dismissed or suspended. These provisions clearly point to the conclusion that suspension by its very nature does not contemplate attendance of the employee at the office and marking his presence daily. It is argued by the learned counsel for the appellants that the power to suspend on the part of the management will include power to suspend a employee partially. In other words, it is open to them to direct the employee to come to the office and mark his attendance, but at the same time not to render service. We have no hesitation in rejecting this contention also. The rules clearly provide for suspension only. The consequence of suspension are also laid down in Regulation 66 (6 ). The Rules do not anywhere provide for a peculiar order of this nature, which we must confess we have come across for the first time. If the employees are suspended, there are innumerable methods open to the management to secure their presence by service of notice and processes, and this method adopted which is clearly contrary to the power vested in them under the regulations cannot be sustained. " "the said judgment supports the petitioner. " ( 15 ) THE view taken by the Madras High court in case of Management of SS-7 Inam byroji Primary Agricultural Co-operative bank Ltd. , Inam Byroji Post, Verrapandi v. R. Natesan and Others, reported in 2007 (2) LLN 698. The relevant Para. " "the said judgment supports the petitioner. " ( 15 ) THE view taken by the Madras High court in case of Management of SS-7 Inam byroji Primary Agricultural Co-operative bank Ltd. , Inam Byroji Post, Verrapandi v. R. Natesan and Others, reported in 2007 (2) LLN 698. The relevant Para. 10 is quoted as under : "it is well-settled that if an employee, who is not governed by any rules or terms of contract of employment but kept under suspension by the employer and if the terms of contract do not provide for temporary suspensions, then the employer is bound to pay full wages to the workman. The supreme Court vide its decision reported in air 1968 SC 800 . Balvantrai Ratilal Patel v. State of Maharashtra has held as follows: the general principle therefore is that an employer can suspend an employee pending an inquiry into his misconduct and the only question that can arise in such suspension will relate to payment during the period of such suspension. If there is no express term relating to payment during such suspension or if there is no statutory provision in any enactment or rule the employee is entitled to his full remuneration for the period of his interim suspension. On the other hand, if there is a term in this respect in the contract of employment or if there is a provision in the statute or the rules framed thereunder providing for the scale of payment during suspension the payment will be made in accordance therewith. This principle applies with equal force in a case where the Government is an employer and a public servant is an employee with this qualification that in view of the peculiar structural hierarchy of government administration, the employer in the case of employment by Government must be held to be the authority which has the power to appoint the public servant concerned. It follows therefore that the authority entitled to appoint the public servant is entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him. But what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or statutory rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or statutory rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension. " "further, the same principle was reiterated by the Supreme Court vide its decision reported in (1970) 1 SCC 362 , v. P. Gidroniya v. State of Madhya Pradesh and another. The relevant passage occurring in Para. 8 is usefully extracted. it is equally well-settled that an order of interim suspension can be passed against the employee while an enquiry is pending into his conduct even though is no such term in the contract of employment or in the rules, but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statute or rule under which, it could be withheld. The distinction between suspending the contract of a service of a servant and suspending him from performing the duties of his office on the basis that the contract is subsisting is important. The suspension in the later case is always an implied term in every contract of service. When an employee is suspended in this sense, it means that the employer merely issues a direction to him that he should not do the service required of him during a particular period. In other words, the employer is regarded as issuing an order to the employee which because the contract is subsisting, the employee must obey. "therefore, the first respondent will have to be paid subsistence allowance in terms of bye-laws. Therefore, even though the writ petition is allowed on a technical ground, i. e. , that the Act is not applicable, yet the case of the writ petitioner will have to be dealt with as per the decisions of the Apex court. " ( 16 ) IN view of aforesaid my observations and conclusion of the Labour Court is within jurisdiction which is not beyond the scope of Section 33 (c) (2) of the i. D. Act, 1947. " ( 16 ) IN view of aforesaid my observations and conclusion of the Labour Court is within jurisdiction which is not beyond the scope of Section 33 (c) (2) of the i. D. Act, 1947. The Labour Court has certainly power to examine the legal claim and decide it on the basis of evidence, merely raising the objection by employer against the recovery application which cannot ousted the jurisdiction of the Labour court. Therefore, the view taken by Labour court is correct, just, proper, legal and valid. This Court is having very limited jurisdiction. This Court cannot act as an appellate authority. This Court cannot re-appreciate the oral and documentary evidence as appreciated by the Labour court. Even in case when two views are possible then also this Court cannot entertain such petition. Therefore, according to my opinion, the Labour Court has not committed any error which requires any interference by this Court while exercising the power under Article 227 of the Constitution of India. Hence, there is no substance in the present petition. Accordingly, present petition is dismissed. Petition dismissed.