Judgment : ASHIM KUMAR BANERJEE, J. (1) Rabindra Smriti(S) Bidyaniketan is an educational institution fully aided by the State duly recognised by the West Bengal Board of Secondary Education. The respondent No.1 was an approved Assistant Teacher in English. The respondent No.1 was put under suspension by the Managing Committee with effect from September 27, 2002 followed by a disciplinary proceeding. The respondent No.1 approached the learned Single Judge for release of the subsistence allowance in accordance with law as according to respondent No. 1 the School Authority had not been paying him appropriate suspension allowance. In the writ petition it was alleged that the respondent No. 1 was put under suspension vide order dated September 27, 2002. He was furnished with a copy of the resolution of the Managing Committee on January 27, 2003 wherein the Managing Committee expressed their desire to initiate proceeding in the meeting held on January 4, 2003. Even after three years the proceeding did not culminate in a logical conclusion and he was not paid salary since August, 2002. The School Authority contested the said proceeding before the learned Single Judge. Two principal issues were raised before His Lordship by the respondent No.1:- (i) he was entitled to the subsistence allowance according to his scale of pay along with appropriate increments available to his credit; (ii) the institute should compensate him for the financial loss which he had suffered due to lapse of the life insurance policy. (2) With regard to the life insurance policy His Lordship was not inclined to go into the aspect in absence appropriate details as the respondent No.1 was not in a position to produce relevant documents before His Lordship. (3) With regard to the suspension allowance His Lordship observed that the said institute did not have any statutory or other rules to govern the case of suspension. His Lordship negated the contention of the institute to the effect that in absence of any rule governing the case of suspension The Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969 (hereinafter referred to as the "said Rules of 1969") would be applicable. His Lordship observed that since the institute was fully sponsored by the State and the said institute did not adopt the said Rules of 1969 the same was not applicable. His Lordship observed that since the institute was fully sponsored by the State and the said institute did not adopt the said Rules of 1969 the same was not applicable. Following the decision in the case of R. P. Kapur v. Union of India and Ors., reported in All India Reporter 1964 Supreme Court Page 787 His Lordship held that in absence of any provision with regard to the suspension as well as the suspension allowance the respondent No. 1 was entitled to subsistence allowance at the rate equivalent to his full salary and allowances which he would have otherwise entitled to as an approved teacher working in the institute. His Lordship directed payment of the subsistence allowance at the said rate. Hence, this appeal by the institute. (4) Mr. Kallol Bose, learned Counsel appearing for the appellant being ably assisted by Mr. Jyotiprakash Chatterjee, learned Counsel, contended before us that the institute was fully aided by the Government under the Special Rules for Management of Secondary Schools established and run of a Christian Church/ Missionary Society (Board)/ Religions Society/ Subsidiary Trust or their successor in law in West Bengal, the School Committee was entitled to suspend any employee in contemplation of disciplinary proceeding. It was also provided that during the period of suspension the concerned employee would be entitled to allowances as per the provision of West Bengal Payment of Subsistence Allowance Act, 1969 (hereinafter referred to as the "said Act of 1969") where a particular scale of suspension allowance was prescribed. Our attention was drawn to Rule 1 (2) of the Special Rules which, inter alia, provides that any school aided or unaided specified in the schedule appended to the Special Rules and recognised by the West Bengal Board of Secondary Education would come within the mischief of the said Special Rules. Such Special Rules would, however, not apply to the schools for which special set of Rules were framed and approved by the Government. Relying on the above provisions Mr. Bose tried to contend that when the institute admittedly did not have any rule the Special Rule would govern the field as there could be no vacum. He, however, fairly conceded that this particular institute did not find place in the schedule appended to the said Special Rules. Relying on the above provisions Mr. Bose tried to contend that when the institute admittedly did not have any rule the Special Rule would govern the field as there could be no vacum. He, however, fairly conceded that this particular institute did not find place in the schedule appended to the said Special Rules. He tried to contend that in absence of any rule once the institute was recognised by the Board it should either be guided by The Management of Recognised of Non-Government Institution (Aided or Unaided) Rules, 1969 or by the Special Rules applicable for the minority institutions referred to above. In either of the said rules particular procedure was laid down for payment of suspension allowance. (5) In the alternative Mr. Bose tried to contend that even assuming but not admitting that neither of the said Rules would be applicable in the instant case by virtue of the provisions of the West Bengal Payment of Subsistence Allowance Act, 1969 the incumbent was not entitled to full salary. He referred to Section 3 of the said Act of 1969 wherein a particular schedule of payment was prescribed. According to him, under Section 2 "Employee" coming within the mischief of the said Act was defined as person attached to any establishment rendering services. "Establishment" was defined which includes "industry". Mr. Bose relied on the Apex Court decision in the case of Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors., reported in All India Reporter 1978 Supreme Court Page 548 where the Apex Court described a school as an "industry". He also distinguished the subsequent decision of the Apex Court in the case of Ms. A. Sundarambal v. Government of Goa Daman and Diu and Ors., reported in All India Reporter 1988 Supreme Court Page 1700 wherein a two Bench decision of the Apex Court held, Ateacher employed in a school does not fall within the definition of expression "workman" though the school is an industry in view of the definition of "workman" as it now stands. Therefore, when the service of teacher is terminated it cannot be referred under Section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to as the "said Act of 1947"). Mr. Therefore, when the service of teacher is terminated it cannot be referred under Section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to as the "said Act of 1947"). Mr. Bose contended that the subsequent decision of the Apex Court although held that a teacher could not be termed as "workman" within the definition of Section 2(j) and 2(s) of the said Act of 1947 the Apex Court once again reiterated that school was an industry. Hence, the said Act of 1969 would be squarely applicable in the instant case. Mr. Bose lastly contended that payment of full salary during the period of suspension was unjust as the concerned teacher did not render any service to the institute. This aspect, according to Mr. Bose, was not considered by the learned Single Judge. (6) Supporting the appellant Mr. Tapabrata Chakraborty, learned Counsel appearing for the State contended that the Management Rules of 1969 would be applicable in the instant case and under Rule 28(9) of the said Rules of 1969 the concerned teacher was not entitled to subsistence allowance more than 50% of his salary. In this regard Mr. Chakraborty relied on Rule 23 of Management of Sponsored Institutions (Secondary) Rules, 1972. Under the said Rules of 1972 sponsored secondary institutions within the State would be governed by the said Rules. Under Rule 23 the Managing Committee of the sponsored institution was entitled to, inter alia, remove or dismiss teachers and/or other employees. Under Rule 23(xii) the Managing Committee was also empowered to impose minor penalties like stoppage of increment and/or reduction of time scale with approval of the Board where the lapse on the part of the staff did not warrant removal or dismissal. In all such cases the Committee was to observe the procedure laid down under Rule 28(8) of the Management Rules of 1969. Mr. Chakraborty tried to contend that since the concerned institute is a sponsored institution it was to be guided under the said Rule of 1972 and in terms of Rule 23(xii) the Managing Committee was obliged to follow Rule 28(8) of the Management Rules of 1969 while proceeding against the incumbent for imposing minor punishment. Mr. Chakraborty tried to contend that since the concerned institute is a sponsored institution it was to be guided under the said Rule of 1972 and in terms of Rule 23(xii) the Managing Committee was obliged to follow Rule 28(8) of the Management Rules of 1969 while proceeding against the incumbent for imposing minor punishment. Under Rule 28(8) of the Management Rules both in case of aided and unaided institutions the committee was empowered subject to the approval of the Board to remove or dismiss permanent or temporary teachers and/or other employees after affording him adequate opportunity to defend himself in the disciplinary proceeding. Under Rule 28(9) the Committee was also empowered to suspend teacher or an employee paying him suspension allowance equal to 50% of his pay. According to Mr. Chakraborty once Rule 28(8) was made applicable in case of sponsored institution as a consequence Rule 28(9) would also be applicable and the incumbent would be entitled to subsistence allowance only to the extent of 50% and not the full salary. In this regard he relied upon a Single Bench decision of this Court reported in 2006 Calcutta Weekly Notes Page 326 (Sri Chandan Kumar Singh v. State of West Bengal and Ors). (7) We have considered the rival contentions of the parties. Let us first deal with the submissions made by Mr. Bose. Management Rules of 1969 was for the aided and unaided non-government schools and this Rule could in no stretch of imagination, be extended to the sponsored institutions who have separate rules for being followed. Hence, it is clear that the Management Rules per se did not have any application in the instant case as erroneously contended by Mr. Bose. Similarly, the Special Rules relate to the institution run by the minority community those are specially mentioned in a schedule to remove doubts. Admittedly, the present institute is a Government Institute fully aided by the Government. Hence, neither it could be termed as a Non-Government Institution within the meaning of Management Rules, 1969 nor it could be termed as a minority institution more specifically scheduled in the Special Rules. Hence, both the Rules relied upon by Mr. Bose per se did not have any application. Hence, neither it could be termed as a Non-Government Institution within the meaning of Management Rules, 1969 nor it could be termed as a minority institution more specifically scheduled in the Special Rules. Hence, both the Rules relied upon by Mr. Bose per se did not have any application. (8) With regard to the said Act of 1969, on a cobmined reading of Section 2(a), 2(b) and 2(c) we would find that an employee working under an employer being the owner of an establishment would be governed by the said Act of 1969 attracting subsistence allowance under Section 3 thereof. "Establishment" was defined as an industry, trade, business, undertaking, manufacture, occupation or service but does not include any office or department of any Government. Hence, from the definition we are not in a position to accept Mr. Boses contention that the subject institution would come within the mischief of the said Act of 1969. Strong emphasis was put by Mr. Bose on the decision in the case of Bangalore Water Supply (supra). The Constitution Bench observed that profession clubs, educational institutions, research institute etc. would come within the scope of 2(j) of the said Act of 1947 if they fulfill triple test listed there. The test so laid down by the Apex Court is quoted below:-"Where there is (i) systematic activity, (ii) organised by cooperation between employer and employee (the direct and substantial element is chimerical), (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bilss e.g. making, on a large scale, prasad or food), prima facie, there is an "industry" in that enterprise." (9) We are to read this judgment along with the later judgment in the case of Miss. A. Sundarambal (supra) where the Apex Court held that although the school was an industry a teacher could not come within the definition of workman and as such was not entitled to raise an industrial dispute within the meaning of Section 10 of the said Act of 1947. In the instant case the concerned teacher was proceeded with departmentally and the Managing Committee suspended him in contemplation of such proceeding. Payment of subsistence allowance was to be guided by the appropriate service rules. Admittedly, the concerned institute did not have any service rule. In the instant case the concerned teacher was proceeded with departmentally and the Managing Committee suspended him in contemplation of such proceeding. Payment of subsistence allowance was to be guided by the appropriate service rules. Admittedly, the concerned institute did not have any service rule. Hence, the Managing Committee . exercised their inherent power to suspend him to have smooth conduct of the disciplinary proceeding. The learned Judge, in our view, very rightly directed payment of full salary as subsistence allowance. The Special Rules discussed above as well as the Act of 1969 debarred the suspended employee benefit of obtaining full salary to the extent provided therein. In absence of such restrictive provisions it would be unjust to deny full salary to respondent No.1. Mr. Bose contended that it would be an unjust enrichment on the part of the respondent No.1 as he would be receiving full salary without rendering any service in exchange. Even it is true it cannot be avoided as the respondent No.1 could not be blamed for the same. The Managing Committee in their wisdom suspended him and debarred him from endering any service during the pendency of the proceeding. So long the disciplinary proceeding was not culminated in a logical conclusion it could not be conclusively said that the respondent No.1 was to be blamed for his alleged misconduct. Hence, it would be unjust to deny him his right to receive full salary. (10) Hence, we are unable to accept any part of the submissions of Mr. Bose and such contentions are rejected. (11) Let us now deal with the contentions raised by Mr. Chakraborty. (12) Mr. Chakraborty relied upon the Rules of 1972. We are in full agreement with him when he says that since the institute is a fully sponsored Government institute it would be governed by the Rules of 1972. Rule 23 of the said Rules did not speak of suspension. . The said Rule is an enabling clause empowering the Managing Committee to proceed as against an erring employee and imposing punishment of dismissal or removal in terms of sub-clause (iii) and minor penalty in terms of subclause (xii) subsequently incorporated in 2001. Rule 23 of the said Rules did not speak of suspension. . The said Rule is an enabling clause empowering the Managing Committee to proceed as against an erring employee and imposing punishment of dismissal or removal in terms of sub-clause (iii) and minor penalty in terms of subclause (xii) subsequently incorporated in 2001. Sub-clause (iii) provides that the delinquent would have to be afforded reasonable opportunity of representing his case whereas sub-clause (xii) provides that before imposing any minor penalty he should be proceeded with in terms of Rule 28(8) of the Management Rules. If we look at Rule 28 (8) we would find that the said rule castes an obligation on the Managing Committee to follow the prescribed procedure for conducting the disciplinary proceeding and pass appropriate orders subject to the approval of the Board. Neither sub-clause (8) nor its proviso and/or the subsequent additions being sub-clause 8(a) and 8(b) provide for suspension in contemplation of a disciplinary proceeding. Under sub-clause 8(b) Managing Committee was empowered to suspend an incumbent who suffered detention more than forty-eight hours on a criminal charge. Here also the Committee was not empowered to suspend any employee in contemplation of a disciplinary proceeding. Such provision has been made in sub-clause 9(vii)(a) wherein the Managing Committee has been empowered to suspend any employee in contemplation of a disciplinary proceeding subject to the approval of the Board and in such case the incumbent would be entitled to receive 50% of his full salary for first ninety days and then 75% until the order is recalled and/or the disciplinary proceeding is culminated in a logical conclusion imposing a penalty. We would have accepted Mr. Chakrabortys contention had there been no specific mention of sub-rule (8) in Rule 23(xii). Once it was specifically mentioned it is presumed that the said rule being Rule 23(xii) impliedly excluded subclause (9). Hence, we are unable to accept contention of Mr. Chakraborty and the same is rejected. (13) We are of the view that the learned Judge approached the problem in a right direction and we do not find any scope of interference. (14) The appeal thus fails and is hereby dismissed. (15) There would be no order as to costs.