Hon’ble Dr. Dhananjaya Yeshwant Chandrachud, C.J.—This reference to the Full Bench has been occasioned by a referring order dated 25 January 2005 of a learned Single Judge.

Facts

2. The petitioner manufactured, at the material time, detergent bars in a factory at Orai. The three workmen to whom the proceedings relate were suspended on 5 December 1998 pending a disciplinary enquiry on the allegation that they had committed acts of misconduct within the premises of the factory on 5 December 1998. By the order of suspension they were directed, during the period of suspension to mark their attendance on all working days at 11.00 am in a register maintained for that purpose at the security office at the main gate of the factory. Charge-sheets were issued on 11 December 1998. The workmen did not mark their attendance as directed by the employer in the order of suspension. The employer paid to the workmen subsistence allowance only for the days on which they had marked their attendance in the register kept at the factory gate. On 27 April 2000, the State Government suo motu referred an industrial dispute under Section 4 (k) of the Uttar Pradesh Industrial Disputes Act, 1947 to the Industrial Tribunal-III at Kanpur (Industrial Tribunal). The issue which was referred for adjudication was whether the refusal to pay subsistence allowance to the workmen from 6 December 1998, save and except for those days on which they had marked their attendance, was illegal and contrary to law. The Industrial Tribunal by its award dated 13 March 2003 held that the direction to the suspended employees to mark their attendance at the factory gate during the period of suspension was unjustified and illegal. The employer was directed to pay subsistence allowance to the workmen for the whole of the period of suspension including the days on which attendance was not marked by them. This award was challenged in writ proceedings under Article 226 of the Constitution.

The issues raised

3. In pursuance of the provisions of the Industrial Employment (Standing Orders) Act, 1946 (Act), Standing Orders in relation to the establishment of the employer were certified by the Certifying Officer on 1 July 1991. Provisions have been made for disciplinary proceedings and punishment for misconduct in Standing Order 27. Certified Standing Order 27 (6) contemplates the suspension of a workman where disciplinary proceedings are pending or contemplated or where criminal proceedings against him in respect of an offence are under investigation or trial and the management is satisfied that it is necessary or desirable to place the workman under suspension. Certified Standing Order 28 provides for the payment of subsistence allowance in the following terms:

“28. SUBSISTENCE ALLOWANCE

1. A workman who is placed under suspension shall during the period of such suspension be paid a subsistence allowance at the following rates:

(a) An amount equal to 50% of the wages which he was drawing immediately before suspension for the first ninety days reckoned from the date of such suspension.

(b) If the period of suspension exceeds ninety days but does not exceed one year, the workman will be entitled to receive 75% of his wages drawn by him immediately before his suspension.”

4. The following provision is made in the last paragraph of Certified Standing Order 28:

“The payment of subsistence allowance under this standing order shall be subject to the workman concerned not taking up any employment during the period of suspension.” (emphasis supplied)

5. In pursuance of the provisions contained in Section 15 of the Act, the Uttar Pradesh Industrial Employment Model Standing Orders, 1991 (Model Standing Orders) were notified on 24 July 1992. The Model Standing Orders, as notified, contain provisions of suspension pending an enquiry into an alleged major misconduct in Model Standing Order 24. Clauses (4) and (5) of Model Standing Order 24 are in the following terms:

“(4) No attendance