The main legal point established in the judgment is that the provisions of Section 10-A(3) of the Industrial Employment (Standing Orders) Act, 1946 would supersede any provisions under the Model Standing Orders or Certified Standing Orders.

D. Y. CHANDRACHUD, J.

( 1 ) RULE, by consent made returnable forthwith. Counsel appearing on behalf of Respondent No. 1 waives service. By consent, and at the request of counsel taken up for hearing and final disposal.

( 2 ) THE Petitioner suspended the first Respondent on 9th March, 2000 pending an enquiry into alleged acts of misconduct. During the pendency of the enquiry the First respondent was paid subsistence allowance at the rate of 50% of the last drawn wages for the first 90 days, 75% for the next 90 days and at the rate of 100% for the rest of the period. The First Respondent instituted a complaint under Section 33-A of the Industrial Disputes act, 1947 before the National Industrial tribunal contending that he was entitled to receive annual increments on the basic wages as well as Variable Dearness Compensatory allowances which had not been taken into consideration by the Petitioner in making its calculations of subsistence allowance. On these grounds, it was submitted that the petitioner had during the pendency of a reference to adjudication changed the service conditions of the First Respondent which was redressable in a complaint under Section 33- a. The Petitioner filed its written statement contending that the First Respondent was not a "concerned workman" during the pendency of the reference since he had already accepted the benefits of two settlements signed with the mumbai General Employees Association in 1996 and 2000. Further more it was also submitted that while determining the quantum of subsistence allowance the Petitioner had taken into account the last drawn wages paid before suspension and non-payment of annual increments and Dearness Compensatory allowance during the period of suspension did not amount to an illegal change within the meaning of Section 33 of the Industrial disputes Act, 1947.

( 3 ) THE Presiding Officer of the national Industrial Tribunal by his award dated 8th September, 2004 came to the conclusion that he had jurisdiction to entertain the complaint under Section 33-A. On merits, the Tribunal held that the First Respondent was entitled to the payment of annual increments and Dearness Allowance in computing his subsistence allowance. The Tribunal was of the view that Section 10-A (3) of the Industrial employment (Standing Orders) Act. 1946 saved provisions under any other law in regard to the payment of subsistence allowance which were more beneficial and that the provisions contained in Standing Order 23 of the Bombay industrial Employment (Standing Orders) rules, 1959 in their application to clerical and supervisory staff was one such provision under any other law for the time being in force.

( 4 ) THE award of the Tribunal has been questioned both on the maintainability of the complaint under Section 33-A as well as on the merits of the determination made by the Tribunal. In so far as the maintainability of the complaint is concerned, it was submitted that the First Respondent was a member of the Mumhai Labour Union which had arrived at two settlements in 1996 and 2000. In the reference that was made to adjudication, on the demands of the All India Bajaj Electricals federation an award was made by the tribunal. However, the award was challenged before this Court in Writ Petition No. 1368 of 2004 which ended in a settlement that was arrived at between the parties on 14th december, 2004. As a result of the settlement, the employees situated at Mumbai, Pune and wardha were excluded from the terms of the settlement. Hence, it was submitted that the first Respondent had no connection to the reference which was pending before the industrial Tribunal and that the conditions precedent for the invocation of the jurisdiction under Section 33-A read with Section 33 of the Act do not exist. In so far as the merits are concerned, it was urged that the workman was entitled to the benefit of subsistence allowance under Section 10-A of the Industrial employment (Standing Orders) Act. 1946