JUDGMENT
Daud, J.
1. This petition under Article 226 of the Constitution assails an order passed by a Labour Court upon an application made under Section 13-A of the Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as) ‘the S.O. Act’.
2. The petitioner was in the employment of respondent No. 3. The question that arises in this petition is on what basis he should be paid during the period of suspension. According to the petitioner, he is entitled to subsistence allowance as per rule 25(5-A) of Model Standing Orders under the Bombay Industrial Employment (Standing Orders) Rules, 1959 (Rules). The employer on the other hand contends that the subsistence allowance payable to the petitioner would be regulated by the Certified Standing Orders which are at Exh.A.-in particular Clause 25(5A) thereof. At the most, it would be Section 10A(1) of the S.O. Act to which the Petitioner could resort. In no case, would the petitioner be entitled to subsistence allowance as prescribed by Rule 25(5-A) of the Rules. The Labour Court which was approached for an interpretation, held that it had no jurisdiction to go into the matter for which reason the petitioner’s application was rejected.
3. That the question arising from the application is one which falls within Section 13-A of the S.O. Act, cannot be disputed. This section permits a Labour Court to interpret any question raised as to the application or interpretation of a Standing Order, Model Standing Orders or amendment certified under the S.O. Act. The right to seek an interpretation having been conferred upon any employer or workman, the Labour Court to which the question is referred, is, under an obligation after hearing the parties to decide the question. The decision to be recorded by it, is to be final and binding on the parties. In the face of the language of Section 13-A, it is surprising that the Labour Court should have held that it had no jurisdiction. But that apart, and to revert to the subject, let me first set out the relevant clauses or atleast an abstract therefrom: Rule 25(5-A) of these Rules, lays down thus:-
“(i) For the first ninety days of the suspension period subsistence allowance to be paid per month shall be equal to one half of the basic wages, dearness allowance and other compensatory allowance to which the workman would have been entitled if he were on leave with wages.
(ii) If the enquiry gets prolonged and the workman continues to be under suspension for a period exceeding ninety days, the subsistence allowance to be paid per month for a further period of ninety days shall be equal to three-fourths of such basic wages, dearness allowance and other compensatory allowances.
(iii) If the enquiry is not completed within a period of 180 days the workman shall be paid basic wages, dearness allowance and other compensatory allowance in full as subsistence allowance to be paid per month until such time as the inquiry is finally concluded”.
Section 10A(1) of the Standing Orders Act is in the same terms as Clauses (i) and (ii) as aforementioned. The Certified Standing Order provision, at Rules 25(5-A), provides that a suspended worker shall be paid subsistence allowance during the period of his suspension at such rate as may be fixed by the suspending authority. The clause, however, stipulates that the rate to be fixed by the suspending authority, shall not be less than one-third of the basic wages and dearness allowance drawn by the workman, immediately prior to his suspension.
4. Mrs. D’Souza for the petitioner points out to Sub-section (3) of Section 10-A in support of her contention that the petitioner is entitled to the benefit of the Model Standing Order Rules provision reproduced above. Sub-section upon which reliance is placed, is a non-obstante clause and reads as follows:
“Notwithstanding anything contained in the foregoing 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”.
Learned counsel submits that the Model Standing Orders framed vide the rules is ”any other law”, that is in force in the State of Maharashtra and, therefore, the same shall prevail as against Sub-section (1) of Section 10-A. The answer to this is, that the words “any other law” appearing in Sub-section (3) would not cover the Model Standing Orders which are derivations of the S.O.Act. Such derivations are the result of the appropriate Government framing rules under Section 15 of the S.O.Act. Perhaps, the Model Standing Orders framed under the rules would have been covered by Subsection (3), where the words used “any law” rather than “any other law”. Plausible this argument certainly is, but a close scrutiny of Section 10A(3) would show that the words “any other law” do not exclude subordinate legislation resulting from the exercise of power conferred under Section 15 of the Act. These words would have to be read as law other than that set out in Sub-section (1) of Section 10. Such other law may be found in any law not excluding subordinate legislation flowing from the rule making power conferred upon the appropriate Government under Section 15.
5. The other contention raised on behalf of the petitioner is that having regard to Section 2A of the Act, the Model Standing Orders would apply wherever these are inconsistent with the Certified Standing Orders or even provisions of S.O. Act. This contention is sought to be negatived by placing reliance upon Sub-section (2) of Section 2A and Section 12A of the S.O. Act. There is no substance in the submission advanced on behalf of the employer, Section 2A in its first part makes clear the applicability of the Model Standing Orders as from such date as the State Government may by notification in Official Gazette appoint in this behalf. So far as Section 2A is concerned, it became applicable as from 15th January, 1959 to the State of Maharashtra. The proviso to Sub-section (1) of Section 2A contains a limitation. But the saving is only of Standing Orders which are finally certified under the Act and have come into operation before the date of coming into force of the S.O. (Bombay Amendment ) Act, 1957. (Underlining mine). The Certified Standing Orders governing relations between respondent 3 and its employees were certified on the 6th day of December, 1976, i.e. much after 15th January, 1959, not to speak of the coming into force of the enactment mentioned in the proviso. Sub-section (2) of Section 2A deals with Model Standing Orders in so far they relate to additional matters. In fact this sub-section has no relevance to the question under consideration.
6. I then turn to Section 12A upon which reliance is placed by the employer. It is contended that the temporary application of the Model Standing Orders vide Section 12A is limited to such time as the Certified Standing Orders come into force. To buttress this contention, Learned Counsel relies upon the Karnataka High Court’s decision in M.C. Raju v. Executive Director reported at 1985 (1) LLJ, page 210. The ratio of the decision is thus set out in the head note:
“The language of Section 12A makes it clear that the Model Standing Orders shall be deemed applicable until the Standing Orders are made, as contemplated under the Act. The reference to Standing Orders, as finally certified under the Act is Section 12-A is obviously to the first Standing Orders made for the establishment after the Act came into force. It, therefore, follows that if the Model Standing Orders are amended subsequent to the coming into operation of the first Standing Orders in respect of the particular establishment, the same do not automatically become applicable to the establishment concerned. Steps have to be taken to amend the existing Standing Orders in accordance with Section 10 of the Act. Until such steps are taken to amend the existing Standing Orders to bring them in conformity with the amended Model Standing Orders the amended Model Standing Orders will not be applicable to the establishment”.
With great respect to the learned Judges who held as above, that is not an interpretation which can be accepted in the State of Maharashtra and more particularly, because of the inclusion of Section 2A(1) in the S.O. Act by the State Legislature. Even otherwise, I doubt, if Model Standing Orders framed by the Government can be held subservient to Certified Standing Orders, when the two are inconsistent. The normal rule should be that a Model Standing Order framed by an appropriate Government shall prevail over the Certified Standing Orders. However, it is not necessary to go into this aspect of the matter. The rejection of the application by the Labour Court will have to be set aside and substituted by an order running thus:
“The Petitioner shall be entitled to payment of subsistence allowance as per Rule 25(5-A) of the Bombay Industrial Employment (Standing Orders) Rules, 1959. Rule in the above terms made absolute with parties being left to bear their own costs throughout “.