Where two views are possible, view in favour of workmen has to be preferred.

The Chief Justice:

This writ appeal has been filed against the impugned order of the learned single Judge dated 22.04.2004.

2. Heard the learned counsel for the parties.

3. The facts in detail are given in the judgment of the learned single Judge, and hence we are not repeating the same except where necessary.

4. The writ petition was filed by the respondent praying for quashing of the award of the Industrial Tribunal, Madras dated 29.3.1996. The writ petition was allowed by the learned single Judge, and hence this writ appeal.

5. The short controversy in this case is whether the subsistence allowance during the period of suspension of an employee of the bank should be paid by taking into account the increments which fell due during the period of suspension.

6. The service conditions of the members of respondent no.1 (writ petitioner) are governed by bank awards as modified by the various Bipartite settlements. Paragraph-557 of Sastry Award reads: -

“1. For the first three months one-third of the pay and allowance which the workman would have got but for the suspension.

2. Thereafter where the enquiry is departmental by the bank, one half of the pay and allowances for the succeeding months. Where the enquiry is by an outside agency, one-third of the pay and allowances for the next three months and thereafter one half for the succeeding months until the enquiry is over”

7. By the Bipartite settlement dated 08.09.2003 between the bank and its union, paragraph-557 of the Sastry Award, as endorsed by paragraph 17.14 of the Desai Award, was partially modified as under: -

“Where the investigation is not entrusted to or taken up by an outside agency subsistence allowance will be payable of the following rates: -

1.For the first three months 1/3 of the pay and allowance which the workman would have got but for the suspension.

2.Thereafter 1/2 of the pay and allowances.

3.After one year full pay and allowance if the enquiry is not delayed for the reason attributable to the concerned workman or any of his representatives”

8. The appellant bank had been paying subsistence allowance up to the year 1988 by taking into consideration the increments which fell due during the period of suspension. However, subsequently the bank decided that the increments which fell due during the period of suspension should not be included for calculation of subsistence allowance and issued circular dated 21.1.1988 to all its offices to discontinue the inclusion of increments for the purpose of calculating subsistence allowance during the period of suspension. It was this circular which has raised the present controversy.

9. The contention of the union is that the inclusion of increments for the purpose of subsistence allowance has been part of the service conditions of its members and has been in existence for over 35 years. Hence, even admitting, without conceding, that this was only the practice and custom without having sanction of any award or settlement, the bank has no authority or right to alter such custom or practice to the prejudice to the petitioner - Union and its members. Moreover, no notice under Section 9A of the Industrial Disputes Act to alter the service conditions was given. It was alleged that the bank has indulged in unfair labour practice.

10. On the other hand, the contention of the bank was that the clause pertaining to payment of subsistence allowance both in Sastry and Desai Awards cannot be interpreted to include increments in the subsistence allowance. It was contended that increment is an incidence of employment and an employee gets an increment by working the full year and drawing full salary. During the period of suspension, the contract of service remains suspended. Hence the employees are not entitled to increments during the period of suspension, even though master and servant relationship continues. After the conclusion of the enquiry, if the workman is exonerated, he shall be entitled to get wages and allowances including in