1. This petition under Article 226 of the Constitution is to obtain a mandamus directing the respondent to pay to the petitioner, what he believes to be his entitlement vis-a-vis subsistence allowance, under the law applicable.
2. The respondent is a Nationalised Bank, so nationalised under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980. The petitioner was in the service of the respondent's Branch at Kalbadevi, Bombay, as a Manager. The salary last drawn by him was Rs. 4,500/- per month. On 16th March, 1985, the petitioner was served with an order suspending him from service with immediate effect. For the period of suspension the petitioner was granted subsistence allowance as per the details shown in the chart accompanying the affidavit tendered on behalf of the respondent on March 31, 1986. Broadly speaking the subsistence allowance was worked out at a rate 1/3 of the basic salary as also the dearness allowance admissible for the first six months, and, at 1/2 the rate for the period commencing from the expiry of the six months aforementioned.
3. The petitioner's contention is that the subsistence allowance admissible to him under the Rule had to be worked out under Section 38B of the Bombay Shops and Establishments Act, 1948 (Shops Act) read with Section 10A of the Industrial Employment (Standing Orders) Act, 1946 (S.O. Act). Had the subsistence allowance been so worked out, he would have been entitled to the full salary and allowance after the expiry of 180 days and 75% immediately after the expiry of the first 90 days succeeding the suspension. The respondent, however, was dealing with him as if he were governed by Regulation 14 of its Bank Officer Employees' (Discipline and Appeal) Regulations, 1982 (Regulations). This was subordinate legislation and could not prevail against a statute framed by the legislature. In any case, while working out the allowance admissible, even the Regulation had not been followed. The Regulation required that allowance admissible be worked out at "the prevailing rate or rates applicable to that category of officers in respect of the pay that the suspended employee was getting towards reduced pay" Instead of doing that the allowance admissible had been reduced by 2/3 and 1/2 as had been done in the case of the basic pay. This was not permissible and hence the direction sought.
4. The respondent in its affidavit in reply contends that Section 38B of the Shops Act read together with S.O. Act, is not applicable. Alternatively, it does not apply to one who is not a 'workman' within the meaning of the S.O. Act. The petitioner was not a workman under the S.O. Act and therefore, could not resort to Section 38B of the Shops Act. He was an officer of the respondent and the subsistence allowance paid to such officers upon suspension would be governed by Regulation
14. It was an error to say that the Regulation permitted the petitioner to draw allowance in excess of the proportion by which the pay had been reduced. He would get allowance representing the same fraction as that by which the basic pay had been reduced pursuant to his suspension. Understood thus, the petitioner had been paid whatever he was entitled towards subsistence allowance.
5. Before coming to the points at issue it will be necessary to reproduce some portions of the enactments aforementioned. The Shops Act defines an 'employee' at Section 2(6) thus :
"'Employee' means a person wholly or principally employed, whether directly or through any agency, and whether for wages or other consideration in or in connection with any establishment; and includes an apprentice but does not include a member of the employer's family."
6. Section 4 of this Act entitles the grant of exemptions to establishments to the extent considered appropriate by the State Government. The exempted establishments together with the extent of exemptions are listed in Schedule-II to the Act. The respondent-bank has obtained an exemption and the relevant entry at serial No. 316(8) is worded thus :
"Sections 13, 15, 18, 33(3), 35, 36, 37, 38-C and 62, subject to the following conditions :
(i) The exemptions are without prejudice to reference to the Act or 'the Shops Act of States' etc. made in the
Awards/Settlements/Agreements (as defined in the Industrial Disputes Act, 1947/Bombay Industrial Relations Act, 1946), applicable to the establishments mentioned in Col. 2 thereof (hereinafter referred to as 'the Bank')."
7. Counsel for the petitioner emphasises the non-inclusion of Section 38B from the excluded provisions and I take note of this emphasis. Section 38B runs as follows :
"38B. The Provisions of the Industrial Employment (Standing Orders) Act, 1946, in its application to the State of Maharashtra (hereinafter in this Section referred to as the 'said Act') and the rules and standing orders (including model standing orders) made thereunder from time to time, shall, mutatis mutandis, apply to all establishments as if they were industrial establishment within the meaning of the said Act."
8. At this stage let me state the undisputed position about the respondent having been registered as an establishment as required by Section 7 of the Act.
9. From the S.O. Act it is the definition of establishment which is relevant. To be brief, one employed mainly in a managerial or administrative capacity would not be a workman within the meaning of the Act. Section 10A goes as follows :
"Payment of subsistence allowance - (1) Where any workman is suspended by the employer pending investigation or inquiry 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 remaining period of suspension if the delay in the completion of disciplinary proceeding against such workman is not directly attributable to the conduct of such workman.
(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."
10. The inspiration for the petitioner claiming full salary comes from Rule 25(5-A) of the Bombay Industrial Employment (Standing Orders) Rules, 1959, which to the extend relevant reads as follows :
"(iii) If the inquiry is not completed within a period of 180 days, the workman shall be paid wages, dearness allowance and other compensatory allowances in full as subsistence allowance to be paid per month until such time as the enquiry is finally concluded."
As against the liberality of the S.O. Act and Rules, Regulation 14 sets out -
"(1) An officer employee who is placed under suspension shall, during the period of such suspension and subject to sub-regulations (2) to (4) be entitled to receive payment from the Bank by way of subsistence allowance on the following scale, namely :-
(a) Basic Pay
(i) For the first three months of suspension 1/3rd of the basic pay which the officer employee was receiving on the date prior to the date of suspension irrespective of the nature of inquiry;
(ii) For subsequent period after three months from the date of suspension -
(1) where the inquiry is held departmentally by the Bank 1/2 of the basic pay the officer employee was drawing on the date of suspension; and
(2) where the inquiry is held by an outside agency 1/3rd of the basic pay for the next three months and half of the basic pay for the remaining period of suspension.
(b) Allowance :
For the entire period of suspension dearness allowance and other allowances excepting conveyance allowance, entertainment allowance and special allowance will be calculated on the reduced pay as specified in items (i) and (ii) of clause (a) and at the prevailing rate or rates applicable to similar category of officers.
(2) During the period of suspension an officer employee shall not be entitled to occupation of rent-free house or free use of Bank's car or receipt of conveyance or entertainment allowance or special allowance.
(3) No officer employee of the Bank shall be entitled to receive payment of subsistence allowance unless he furnishes a certificate that he is not engaged in any other employment, business, profession or vocation.
(4) If, during the period of suspension an officer employee retires by reason of his attaining the age of superannuation, no subsistence allowance shall be paid to him from the date of his retirement.
11. The regulations have been framed in exercise of the powers, to quote the preamble, "conferred by Section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (40 of 1980), upon the Board of Directors of Corporation Bank in consultation with the Reserve Bank and with the previous sanction of the Central Government."
12. Counsel for the petitioner submits that the Shops Act when defining 'employee' makes no distinction between different categories of employees. All employees whether in the lower or the higher ranks, performing menial, ministerial and managerial functions are treated as identical. Therefore when this enactment makes the S.O. Act applicable by virtue of Section 38B, the benefits of the S.O. Act have to be given in the widest possible manner. According to the Counsel, this view which he puts forth has been affirmed in C. N. Bhaskaran's case at (1986-I-LLJ-163) by a a Division Bench of this Court. Bhaskaran was stenographer in the employ of respondent No. 2. He was suspended on March 20, 1978, pending disciplinary enquiry against him. He made an application claiming full wages. The lower court declared that Bhaskaran was entitled to 50% of the wages for the first three months and 75% for the subsequent three months, full wages for the balance period minus the usual deductions. This was on the basis that the S.O. Act, and in particular the standing orders framed thereunder were applicable. The employer pleaded for the exclusion of S.O. Act and Order on the ground that Act itself limited its application to 'industrial establishments wherein 50 or more workmen were employed' which was not the case with Bhaskaran's employment. The contention having been over-ruled by the Labour Court and the Single Judge, Bhaskaran preferred an appeal to a Division Bench. In appeal what transpired is best stated in the following excerpt from the appellate judgment (1986-I-LLJ-163 at 165).
"Shri Menon, learned counsel appearing for the appellant also did not dispute this definition. But, however, according to him, Section 1(3) of the Industrial Employment (Standing Orders) Act, 1946 must be read as an integral part of Section 38B of the Bombay Shops and Establishments Act, especially in the absence of any notification having been issued by the Government in regard to the number of employees employed in the establishment. This submission, in our opinion, is wholly misconceived. It is well settled that the phrase "Mutatis Mutandis" is often used in legislation in applying or extending legislative provisions to same or similar circumstances or to same or similar subjects. It is nothing but a rule of adaptation. If the contention of Shri Menon is accepted it will amount to adding some words in Section 38B and, in our opinion, this is not permissible. Section 38B of the Shops and Establishments Act makes no provision for the number of employees that the establishment (covered by Bombay Shops and Establishments Act) should employ for the satisfaction of the condition imposed by Section 1(3) of the Industrial Employment (Standing Orders) Act. In our opinion, the interpretation placed by the learned single Judge on S. 38B of the Bombay Shops and Establishments Act, is perfectly legal. By Section 38B, in effect the provisions of the Industrial Employment (Standing Orders) Act, 1946 are engrafted into the Bombay Shops and Establishments Act, 1948 with only the necessary consequential changes in points of details in so far as they are applicable."
13. At first blush there may appear to be some substance in the contention that the above passage governs the problem that has arisen in this case. But the function of the rule of 'Mutatis Mutandis' should not be forgotten. The very words imply, in fact mean, 'that the necessary changes made'. If the S.O. Act and the Rules framed thereunder are made applicable to the establishments governed by the Shops Act, the extent of the applicability in the S.O. Act and Rules, cannot be ignored. Section 10A of the S.O. Act and Rule 25(5A) of the Bombay Industrial Employment (Standing Orders) Rules, repeatedly make a reference to 'workman'. A workman within the meaning of S.O. Act and Rules is not to be equated with the employee of the Shops Act. Merely because the S.O. Act and Rules are mutatis mutandis made applicable for the purpose of subsistence allowance to the employees of the establishments governed by the Shops Act, it would not justify ignoring the limitations in the S.O. Act and the rules framed thereunder. The better approach will be to read the engrafted legislation to the extent required and permitted. Thus, the S.O. Act and Rules will apply to only such of the employees of the shops Act who would be 'workmen' within the meaning of the S.O. Act and Rules. Such of the employees who are not workmen within the S.O. Act and Rules, will not be within the sweep of Section 38B. The rule of harmonious construction is well-known. Whilst not a word of any statute is to be ignored, it is not for Courts to so interpret and construe legislation, as to widen the legislation. Here, the legislature could not have intended to confer on managerial employees the benefit of all benevolent provisions meant primarily to protect 'workmen', within the sweep of the Industrial Disputes Act and the Standing Orders Act. When framing legislation, the legislature is presumed to know what the existing law is. By engrafting the S.O. Act and Rules framed thereunder into the Shops Act, the legislature was introducing a benefit in the matter of subsistence allowance to a limited class. That class was the one specified in S.O. Act and Rules. Had the legislature wanted to give the benefit of Section 38B to all employees nothing could have been easier than making this clear in Section 38B itself. The legislature certainly knew that the S.O. Act and Rules in so far as they are applicable to the State of Maharashtra were restricted in their application to 'workmen' which category, excluded the managerial cadre. Significantly, it did not do so and the obvious inference is that it did not want the provisions of the S.O. Act and Rules to govern the managerial cadre. The argument that the non-inclusion of Section 38B in Schedule II vis-a-vis respondent is a pointer to the contrary, cannot be accepted. The noninclusion is consistent with the view that I have taken above viz. that the S.O. Act and Rules are limited to that class of employees of the respondent who would be 'workmen' within the meaning of such Act and Rules. There is nothing in Bhaskaran's case (supra) which runs counter to the above view.
14. Mr. Pai also propounded other contentions to exclude the operation of Section 38B to the claim made by the petitioner. It will not be necessary to look into all these contentions. Having regard to what has been stated above, I will only consider and that briefly, some of them. The first submission is that the Regulations, being the product of legislative power flowing from Parliament in respect of an item in the concurrent list of the Constitution, would prevail over the Shops Act, which is State legislation. It will not not be possible to give a proper answer to this submission, for Counsel are not in a position to say whether or not the Shops Act was reserved for the President's assent and did or did nor receive such assent. Article 254 prescribes different outcomes where there is inconsistency between the laws made by the Parliament and laws made by the legislation of the States.
15. Next, it is submitted that the Regulations flowing from an enactment of a date later than the Shops Act, will prevail over the latter. The reply to this submission is that subordinate legislation can never prevail over primary legislation i.e. legislation emanating from a legislative body and not a delegate. There is some force in the contention advanced by Mr. Pai. If the Regulations are the product of a power vested under Section 19(d) of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980, I see no conflict between the said Section and the Regulations. If there were any inconsistency, the normal rule of later legislation over-riding the earlier legislation would prevail - subject, however, to the condition that the subsequent legislation was validly made. The Regulations deal with Officer employees. Section 38B does not pertain to such employees. Assuming that it once did, Officer employees can be taken out of the benefited category, having regard to the power conferred upon the Board of Directors vide Section 19 of the Banking Companies Act.
16. Mr. Pai's reliance upon the judgment of the Madras High Court in the case of C. V. Raman, (1984-II-LLJ-34), is not of any assistance. Firstly, Section 4(1)(c) of the Bombay Shops Act in different from the corresponding section dealing with exemptions under the Tamilnadu Shops and Establishments Act, 1947. It was the latter Act which fell for consideration in the case of C. V. Raman (supra). So far as the respondent is concerned, the admitted position is that the extent of exemptions from the provisions of the Shops Act granted to it do not go beyond that listed in Entry No. 316, Schedule II of the Shops Act. Next, it is admitted that the respondent has been registered under Section 7 of the said Act, whereas C. V. Raman's case (supra) deals with an establishment statutorily excluded from the operation of the corresponding Act prevailing in the State of Tamilnadu. Therefore, what was laid down in that case can be of no relevance to the question that arises for determination in the instant petition.
17. One plea advanced by Mr. Pai is that the regulations should be accepted as prevailing over Section 38B of the Shops Act read together with the S.O. Act and Rules, having regard to the principle of special legislation excluding general. For the petitioner it is contended that this rule has no application, where the two legislatures emanate from unequals. In one case the framers are a delegate and in the other a State Legislature. But the delegate is acting in exercise of its permitted statutory sphere. It is not entrenching upon an occupied area. Consequently, the theory underpinning the mognality of the makers does not apply at all. It is not necessary to further labour over this subject, for, as I have shown earlier, Section 38B does not confer on the managerial cadre the benefits restricted to 'workmen' by the S.O. Act and Rules framed thereunder.
18. The petitioner's attack upon the manner in which the allowance admissible to him has been worked out, will have to be sustained. The words used are 'at the prevailing rate or the rates applicable to the similar category of officers'. This does not provide for a reduction pro rata as is the case in respect of basic pay. What is provided for is that dearness allowance during the period of suspension, shall be at the rate applicable to the similar category of officers. To quantify the dearness allowance, all that has to be taken into consideration is the dearness allowance admissible on the sum to which the suspended employee will be entitled vis-a-vis the reduced basic pay. There is no warrant for effecting a proportionate reduction in the dearness and other allowances to which a suspended employee is entitled. The reference made by Mr. Pai to Rules (ii), (iii) and (v), show the disabilities which a suspended officer has to suffer. The words being plain, they have to be given effect to. Therefore, the petitioner will be entitled to allowances admissible to those receiving the amount of basic pay, to which his basic pay has been reduced by virtue of suspension.