HRA, educational, and medical allowances are compensatory allowances within the meaning of Standing Order 25(5-A) and should be included in the subsistence allowance paid to suspended workmen.

JUDGMENT - A.P. SHAH:---This petition under Article 226 challenges the order dated 24th November, 1998 passed by the Industrial Court, Mumbai in Complaint (U.L.P.) No. 1557 of 1990, a proceeding under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ("the Act" for short).

2.The 1st respondent is a company engaged in the business of manufacture of various types of magnets. The petitioner is a trade union, registered under the Trade Unions Act, 1926 and represents some of the workmen of the respondent company. The petitioner union filed Complaint (U.L.P.) No. 1557 of 1990 in the Industrial Court, Mumbai alleging unfair labour practice on the part of the company under Item 9 of Schedule IV of the Act. The Union has alleged that the management has not paid subsistence allowance to 17 workmen who have been put under suspension by the management pending the domestic enquiry. It is alleged that the company paid only the basic pay and dearness allowance (DA) at the rate of 50% during the first three months and at the rate of 75% thereafter for the next three months and at the full rate during the subsequent period which lasted for about two years. The grievance of the union is that under the relevant Standing Order 25(5-A), the subsistence allowance is liable to be fixed on the basis of the basic pay, DA and other compensatory allowances but the management has not taken into account the house rent allowance (HRA), educational allowance and medical allowance while fixing the subsistence allowance of the workmen. On consideration of the evidence adduced before him, oral and documentary, the learned Judge of the Industrial Court came to the conclusion that HRA, educational and medical allowances were not the part of the subsistence allowance and, therefore, the workmen are not entitled to those allowances during the period of suspension. For coming to this conclusion, the Industrial Court relied upon a decision of the Apex Court in (Indian Oil Corporation v. Workmen)1, 1975(II) L.L.J. 319.

3.Thus the short question which falls for consideration is whether HRA, educational and medical allowances are compensatory allowance within the meaning of the Standing Order 25(5-A). Standing Order 25(5-A) reads as follows:

"(5-A) Subject to the provisions of the Payment of Wages Act, 1936 a workman who is placed under suspension under sub-clause (5) shall, during the period of such suspension, be paid a subsistence allowance at the following rates namely:-

(i) For the first ninety days of the suspension period subsistence allowance to be paid per month shall be equal to one-half of 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 for 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.

...... ...... ......"

On a plain reading of the above provision, it is clearly seen that compensatory allowances to which the workman would have been entitled if he were on leave with wages are liable to be included while computing the subsistence allowance.

4.At the outset, let me clarify that the judgment of the Apex Court in Indian Oil Corporation v. Workmen (supra) does not in any way assist the management. That was a case where the Apex Court was dealing with the question whether the concession of compensatory allowance granted to the employees posted in Assam was an implied condition of service. It was held that the gran

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