1. This is a batch of letters Patent Appeals and Civil Writ Petitions. Apart from certain special facts in each case which we shall mention later on, the common point which arises in all these appeals and writ petitions relates to whether an employee of Delhi Municipal Corporation working on DESU side if suspended pending a departmental enquiry or during the pendency of investigation or enquiry on criminal charges is entitled to be paid full wages as urged by the workman respondent or only the subsistence allowance, as claimed by the appellant Management. We shall take the facts from L.P.A. 107 of 1977.
2. The respondent workman remained under suspension from 9th June, 1970 to 31st December, 1974. He thereafter moved the Labour Court under S. 33(C)(2) of Industrial Disputes Act claiming the full wages for the period he was under suspension. The Delhi Municipal Corporation resisted plea amongst others on the ground that only subsistence allowance was payable in terms of Regulation 13 which had been framed by the erstwhile Delhi State Electricity Board in exercise of power under S. 79(c) of the Electricity Supply Act. 1948. The Labour Court held that Regulation 13 had ceased to exist after the coming into force of the Delhi Municipal Corporation Act 1957 (to be called 1957 Act) which came into force on 28th April, 1957. He, thereforee, held that the workman was entitled to his full pay and allowance during the period of suspension.
3. The appellant thereafter files C.W. No. 553/1976, D. K. Kapur J. by this impugned order dated 29th May, 1977, affirmed the view of the Labour Court and dismissed the writ petition. Aggrieved the present appeal has been filed by DESU.
4. Electricity (Supply) Act 1948 was enacted, being an Act to provide for rationalisation of the production and supply of electricity. Section 5 of the said Act empowered the constitution and composition of State Electricity Board. By S. 18 of the Act the Board was charged with general duty of promoting the coordinated development of the generation, supply, distribution of electricity within the State. In Delhi this function was performed by Delhi State Electricity Board (DESB).
5. Section 78 to 1948 Act empowered the State Government to make Rules to give effect to the provisions of the Act. Section 79(c) empowered the Board to make regulations not inconsistent with the Act and the Rules to provide for amongst others for various matters, namely the duties of officers and servants of the Board and their salaries, allowances and other conditions of service. In exercise of power under S. 79(c) of the Electricity Act 1948 regulations were framed by the Delhi State Electricity Board. Regulation 13 reads as under :
'Where a servant of the Board is suspended pending enquiry into charges against him the Board may grant him a subsistence allowance not exceeding half of the pay last drawn by him in accordance with the Government rules on subject in force in the State of Delhi, provided that for the purpose of this regulation the pay drawn by an employee in a post held by him in an officiating capacity shall not be deemed to be his pay.'
6. By S. 286 of the DMC Act the Delhi State Electricity Board constituted under the Electricity Supply Act 1948 shall cease to function as from and shall be deemed to be dissolved from the date of establishment of the Corporation under the Act. Sub-section (2)(a)(b) provided that on the dissolution of the Board the provisions of the Electricity Supply Act 1948 relating to the Board shall cease to have effect and the other provisions of the Act shall have effect as if Delhi State Electricity Board had never been constituted. Section 511(1) provided that every officer and employee of the bodies and local authorities specified in second schedule shall from the establishment of the Corporation be transferred to and become an officer and employee of the Corporation. The second schedule included Delhi State Electricity Board. Section 516(2)(a) provided that any appointment, notification, order, scheme, rule, notice or bye-law made or issued and any license or permission granted under any of the Acts or enactments referred to in sub-s. (1) of this Section or under the Act referred to in clause (a) of sub-s. (2) of S. 286 and in force immediately before the establishment of the Corporation, shall, in so far as it is not consistent with the provision of this Act, continue in force and be deemed to have been made, issued or granted under the provisions of this Act, unless and until it is suspended by any appointment, notification, order, scheme, rule, form, notice or bye-law made or issued or any license or permission granted under the said provisions.
7. It will be seen that the clause (2)(a) of S. 516 mentions rule and not regulations. This aspect was put forth successfully by the workman before the Labour Court as well as the learned single Judge to persuade them to hold that S. 516(2)(a) of 1957 Act only saved rule and not regulations, and, thereforee, Regulation 13 could not be invoked by DESU to deny paying full wages and to pay only subsistence allowance during the period of suspension. It is the correctness of this view that is challenged before us.
8. It is by now well settled that 'on general principles the Government, like any other employer, would have a right to suspend a public servant in one of two ways. It may suspend any public servant pending departmental enquiry or pending criminal proceedings; this may be called interim suspension.' Vide R. P. Kapur v. Union of India : (1966)IILLJ164SC . 'Bus what amount should be paid to the public servant during interim suspension will depend upon the provisions of the statute or rule in that connection. If there is such a provisions the payment during suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension.' (See R. P. Kapur's case (supra). Thus the real question that has to be answered is whether there is in fact a rule or any term in the condition of service of the employee empowering the management to pay subsistence allowance during the suspension period. It is common case that there is no term for payment of subsistence allowance in the letter of appointment of the workman. The only support which the DESU sought was from Regulation 13 and which was negatived.
9. Section 2(48) of the D.M.C. Act defines regulations to mean regulations made by the Corporation under this Act by Notification in the official gazette. Similarly, S. 2(51) defines 'rule' to mean a rule made by the Central Government under this Act by Notification in the official gazette. It is patent that the definition of Rule and Regulation in DMC Act 1957 has no relevancy to the meaning of the word Rule in S. 516(2)(a), which saves rule, order etc. issued under the Act referred to in clause (a) of sub-s. (2) of S. 286 of 1957 Act, namely, the Electricity Supply Act 1948. Thus the meaning of the word 'rule' in S. 516(2)(a) would have to be found out from what it would mean under the General Clauses Act because S. 3 of the last Act clearly provides that in that Act and in a Central Act unless there is anything repugnant in the subject or the context the definition therein will apply to all Central Acts.
10. Section 3(51) in General Clauses Act 1897 is defined to mean a regulation made by the President under Art. 240 of the Constitution and shall include a Regulation made by the President under Art. 243 thereof and a Regulation made by the Central Government under the Government of India Act, 1870, or the Government of India Act, 1915, or the Government of India Act, 1935. Evidently the above definition of 'Regulation' is a special one and is obviously not attracted not was it really the case of the appellant that it would be so attracted. Reliance however, is placed by Mr. Dhanda, the learned counsel for the appellant on S. 3(51) which says that rule shall mean rule made in exercise of a power conferred by any enactment, and shall include a regulation made as a rule under any enactment. The argument of Mr. Dhanda is that if a regulation has a statutory force it is deemed to be included within the definition of the 'rule' and thereforee when the word 'rule was used in S. 516(2)(a) it necessarily included within its compass Regulation like Regulation 13 which has a statutory force. The learned single Judge has accepted that these service regulations framed by the Board did have force of law while they were in force but has held that their continuance was not saved after the passing of S. 516(2) of DMC Act. Another reason for the learned Judge to so hold was that as the Delhi State Electricity Board was totally abolished by S. 286 of the DMC Act all the regulations relating to the Electricity Board will become wholly redundant, because if there is no Board there can be no procedure for holding of meeting or administration of the funds and thereforee, as none of the provisions relating to the Board in S. 20, 23 or 24 of the Electricity Supply Act 1948 could be made applicable if followed that service regulations framed by the Board would also become redundant. In coming to this conclusion the learned Judge was also persuaded to hold that the division bench judgment in L.P.A. 110/69 decided on 28th May, 1970 had held that since regulation framed by the Board do not continue to be in force after Delhi Municipal Corporation Act was passed. In our opinion no such broad principle has been decided by any of the benches of this Court. In our view the learned single Judge was not correct in extending the ration of the division bench decision to an extent to hold that all the service regulations framed by the Board by virtue of power under S. 79(c) have ceased to exist after the enactment of DMC Act 1957.
11. Let us refer to the decision of this Court to appreciate the real ratio of the various decisions. The first case on this subject is reported in Ramesh Chander v. D.E.S.U. etc. I.L.R. 1970 Delhi 311. In that case some of the respondents had been promoted as Superintending Engineers by the Corporation, working in the Electricity Wing. The writ petitioner had claimed these appointments to be illegal on the ground that as service regulations framed by the D.S.B. Board continued even after the D.C.M. Act 1957 and as Regulation 5 provided for appointment only by direct recruitment the appointment of respondents made by promotion being contrary to such regulation was illegal. This plea was negatived by Deshpandey, J. (as his lordship then was). It is no doubt, true that the learned Judge observed that in view of the express distinction made between 'regulation' and 'rule' in the Electricity Supply Act 1948. S. 516(2)(a) did not expressly save operation of any of the regulations made under S. 79 of the Act of 1948, and the reliance on regulations would be without any basis. But it is relevant to note that the learned Judge did not base his decision this ground alone. The learned judge went on to examine whether the regulation of 1951 is reconcilable with the scheme of Ss. 90 and 96 of the Act of 1957. The learned Judge noticed that under the Service Regulations, Board alone was competent to make the appointments while reading Ss. 96 and 97, it would appear that appointments by the Corporation can only be made after consultation with the U.P.S.C. The learned Judge also noticed that under S. 96 of the DMC Act appointments could be either by direct recruitment or by promotion and that this procedure is contrary to Regulation 5 of the Regulations of 1951, which restricts the appointment to Class I post by direct recruitment. In that context the learned Judge observed;
'In this respect, thereforee, Regulation 5 is inconsistent with S. 96. It does not thereforee survive under S. 516(2)(a) of the Act of 1957.'
It will thus be seen that this decision really related to the question of survival of Regulation 5 dealing with recruitment and the same must really be confined to the survival of Regulation 5 only. The observation of Deshpandey, J., thereforee, cannot be taken to be an authority that all the service regulations framed under S. 79(c) of the Electricity Supply Act 1948 had automatically ceased to exist on the coming into force of the D.M.C. Act. That the learned Judge, V. S. Deshpandey, J. himself also did not mean clear from a reference to his later conclusion is Surendra P. Gupta v. D.E.S.U. 1973 SLJ 457. In that case the writ petitioner, who were Inspectors, Grade II in the Delhi Electricity Supply Undertaking, challenged the resolutions passed by the Municipal Corporation in 1964 governing the appointment to some of the posts in the electricity department. The ground of attack was that these resolutions were administrative acts and were contrary to the statutory regulations governing the conditions of service of the Delhi Electric Supply Undertaking. The learned Judge noted that prior to the enactment of the Act, regulations have been framed under S. 79(c) of the Electricity Act. Reference was made to S. 516(2) and S. 286(2) of the D.M.C. Act and thereafter the learned Judge observed :
'In so far as these service conditions applied to the staff taken over by the Corporation from the Electricity Board, they cannot be varied to the disadvantage of such staff without the previous sanction of the Central Government in view of the first proviso to S. 511(1) of the Act. Even in regard to the staff appointment after 9th April, 1958, when the Act came into force, the service regulations would apply unless and until they are superseded by service conditions framed under the Act.'
This is clear finding to the effect that not all such regulations framed under S. 79(c) of 1948 Act automatically lapse simply because the word 'regulation' is not mentioned in S. 516(2)(a) of 1957 Act. As a matter of fact the learned Judge in para 11 came to the definite conclusion that 'the three impugned resolutions are contrary to the pre-existing statutory service regulations. These resolutions are, thereforee, prima facie void,' The writ petition, however, was dismissed on the ground of delay. It is significant that the observations in Surinder Gupta's case (supra) clearly support the contention of Mr. Dhanda that not all service regulations automatically lapse after coming into force of D.M.C. Act. That is why we say that the earlier observations made in Ramesh Chandra's case (supra) that regulations made under S. 79(c) did not survive the passing of 1957 Act were merely in the nature of obiter. The Division Bench judgment on which reliance has been place by Kapur, J. (namely LPA 110/69 decided on 28th May, 1970 which is against the judgment of the Single Judge in Ramesh Chandra's case (supra) does not really advance the matter. The counsel for the respondents Mrs. Kapoor and Mr. Charya referred us to the observations by the Judge at page-42 (the judgment is published in Delhi Electricity Supply Undertaking Hand Book of settlements, awards to support their contention that whole to the service regulations have ceased to exist by virtue of S. 516(2)(a). We cannot agree. These observations by the Bench only affirm the finding of the learned Single Judge about the invalidity of Regulation 5 only and cannot be contended to invalidate all the Service Regulations (more so in view of Deshpandey, J.'s view in Surendra Gupta's case (supra) holding that Service Regulations will continue even after coming into force of D.M.C. Act 1957. As a mater of fact there is not separate discussion in the Division Bench Judgment, which thereforee cannot be read beyond what was held by the learned Single Judge and must be restricted to a finding on the non-survival of Regulation 5 only. We may in this connection also refer to another Division Bench Judgment of this Court in D.E.S.U. v. Tara Chand 1978 SLJ 467. This is a judgment of Chief Justice Tatachari and Ranganathan, JJ. (it may be mentioned that the judgment in L.P.A. 110/1968 was written by Tatachari, J.) In Tara Chand's case (supra), the point raised before the learned Judges was whether Regulation 8 framed by D.S.E.B. survived after the D.M.C. Act 1957. It was held : 'that the Rules and Regulations of the D.E.S.U. and the terms and conditions of the employees continued unaffected by the creation of D.M.C. and the emergence of D.S.E.B. as a wing of D.M.C.' It was further observed that there is, thereforee, no doubt that the service regulations are applicable. This case is rather an authority for the preposition that the service regulations made under S. 79(c) of 1948 Act did not automatically lapse on the coming into force of the D.M.C. Act. In the above case reliance was placed on an earlier Division Bench Judgment of Chief Justice Tatachari, J. and Yogeshwar Dayal, J. reported in Delhi Transport Corporation v. Surendra Kumar etc. : 1978RLR537 . One of the points raised in that case was whether after public road transport in Delhi was taken over by Municipal Corporation of Delhi under the provisions of Delhi Municipal Corporation Act the regulations based under Delhi Road Transport Corporation Act were saved or not. The Bench held in paras 15 and 64 that by virtue of S. 3(31) of the General Clauses Act, 1897, wherein 'rule' has been defined to mean a rule made in exercise of power conferred by enactment and shall include a regulation made as a rule under any enactment read with the provisions of S. 516(2) of the Municipal Corporation Act, the regulations framed under the D.R.T. Act also continued. It was specifically held that the operation of the regulations were saved. Ratio of that case will clearly be applicable to the present case.
12. The Counsel for the respondent then sought to urge that Regulation 13 or for that after any regulations framed under S. 79(c) of 1948 Act did not enjoy statutory status or force and were mere terms of contract and could not, thereforee, be equated to the high sounding pedestal of Regulation as being included in S. 3(51) of General Clauses Act and relies on Raj Kumar v. Rajasthan S.E. Board, Jaipur 1979 Lab. IC 869. We cannot accept the correctness of this judgment and as a matter of fact it runs contrary to the observations in U.P.S.E. Board v. Hari Shankar 1978 2 L.L.J. 399, where dealing with the Regulations framed under S. 79(c) of Electricity Act the Court observed (para 12) that the Board is a statutory body and is an authority within the meaning of Art. 12 of the Constitution and the employees of these bodies have a statutory status and that Regulation made under the statutes creating these bodies have the force of law. It was further observed that 'the question is not whether the employees and the Board have a statutory status; they undoubtedly have. The question is not whether the Regulations made under S. 79 have the force of law; again, they undoubtedly have.' It is thereforee pointless to urge that the Regulations framed under S. 79(c) did not have the statutory force. As a matter of fact the learned Single Judge has accepted that the Regulations did have the force of law, but fell into error in assuming that the Division Bench had already decided that the Regulations ceased to exist on the coming into force of D.M.C. Act of 1957. We have shown above that the Division Bench has not so decided, rather the contrary.
13. In our view definition of S. 3(51) of General Clauses Act means that just as a rule made in exercise of the power conferred by an enactment, similarly the definition shall include a Regulation made as a Rule under any enactment. In short just as a Rule has statutory force, it Regulation also has a statutory force, it will be treated as a Rule. In case thereforee, Regulations are made by virtue of powers of an enactment like in the present case where Regulations are framed by virtue of powers of S. 79(c) of the 1948 Act Regulation so framed shall be considered to be Rule but if some Regulation are framed not by a body by virtue of its management power, the same will not be treated as a Rule. The test thereforee to find is whether the Regulations owe their source to an enactment. If they do as in the present case the Regulations must Rule has betaken to be include in the definition of Rule under the General Clauses Act. In a case like the present where both Rules and Regulations owe their source to statute there is no difference between Rules and Regulations and this is now well settled by an decision of the Supreme Court in Sukhdev Singh v. Bhagat Ram 1975 1 L.L.J. 399. In that case the Court was considering the effectiveness and status of the Regulations framed by various bodies like Oil and Natural Gas Commission, Life Insurance Corporation, the Industrial Finance Corporation Act. S. 31 of the O.N.G.C. Act empowered the Central Government to frame Rules while S. 32 gave power to the Commission to frame Regulations amongst others to provide for the terms and conditions etc. of the employees. Similarly S. 48 of the L.I.C. Act enabled the Central Government to make Rules while S. 49 empowered the Corporation to make Regulations to provide for matters inter-alia for the method and recruitment of the employees. S. 42 of the Industrial Finance Corporation Act empowered the Central Government to make Rules in consultation with the Development Bank and S. 43 empowered the Board of Directors with the previous approval of the Development Bank to make regulations to provide inter-alia for the terms and conditions of the service of the employees. An argument was raised before the Supreme Court that the regulation framed did not have a statutory binding character. Negativing this the Supreme Court observed that the rules and regulations, scheme, bye-laws, orders made under statutory powers are all comprised in delegated legislation. The Court pointed out that 'the noticeable feature is that these statutory bodies have no free hand in framing the conditions and terms and conditions as laid down in the regulations. The source of the power for making rules and regulations in the case of Corporation created by a statute is the statute itself.' The court further said :
'There is no substantial difference between a rule and a regulation in as much as both are subordinate legislation under powers conferred by a statute. A regulation framed under a statute applies uniform treatment to every one or to all members of same group or class.'
These regulations impose obligation on the statutory authorities. The existence of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. 'These regulations impose obligation on the statutory authorities. The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by courts to invalidate actions in violation of rules and regulations. The existence of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The statutory regulations in the cases under consideration given the employees a statutory status and impose restriction on the employer and the employee with no option to vary the conditions.' Thus there is no manner of doubt that these regulations are having the statutory binding force. It is not the suggestion of the respondents that any other regulations have been framed under S. 98 read with S. 480 of the DMC Act on the subject of what amount is payable to an employee who is put under suspension pending an Enquiry. As it is not shown that there is any regulations framed by the Corporation which is inconsistent with Regulation 13 the result would be that Regulation 13 would continue to apply when determining what quantum of allowance is to be payable to an employee under suspension pending an Enquiry.
14. Counsel for the respondent however contends that it is not possible to read the word rule S. 516(2)(a) of DMC Act as including regulation because if the legislature so intended it should have been so specifically mentioned. The infirmity in this argument is that when an Act like the D.C. Act was being passed by which various bodies like the Delhi State Electricity Board, constituted under the Electricity Supply Act were to cease to function (vide S. 286 (i) or as from the date of the establishment of the Corporation, under S. 516 of the DMC Act, Delhi Joint Water and Sewage Board Act 1926 and the Delhi Road Transport Act 1950 were to stand repealed, a specific reference to the regulations in definition clause of 1957 Act if mentioned separately would then further have had to be qualified by specifying which of the regulations i.e., whether framed under the Electricity Supply Act or under the D.T.A. Act or under any other repealed Act. This is because unless there was a qualification of particular regulation in the section it could not have been found out as to whether, the reference was to the regulations framed under the Electricity Act or the Regulations which were framed under the D.R.T. Act (as they had been) or under some other repealed Act. This would have only created confusion. In order to avoid this S. 516(2)(a) only used the word 'Rule' because the legislature knew that in terms of General Clauses Act S. 3(51) rule shall include a regulation made as a rule under any enactment. Thus anybody wanting to know whether any regulation had survived after passing of S. 516(2)(a) of DMC Act would only have to find out whether regulation had been made as a rule under any enactment namely whether regulation had a statutory status. If it was found that the regulation had a statutory status they would be saved by S. 516(2)(a) unless of course they were superseded by rule or regulation framed under the provisions of the DMC Act. Kapur-J. Though observing that he felt some difficulty in understanding what is a regulation made as a rule and a regulation not made as a rule himself went on to answer the question by saying that perhaps it depends on whether the regulation in question has the force of law under the Act or not. In our view the learned Judge answered the question correctly, but notwithstanding this fell in error in still deciding that Regulation 13 even though it has a statutory binding force will not be included in the word 'Rule' as mentioned in S. 516(2)(a) of the Act. Once the conclusion that Regulation 13 has the force of law, it must inevitably be held to be included in the saving clause of S. 516(2)(a) of the DMC Act.
15. The counsel for the respondents however, has sought to urge that only a regulation which is made in the same manner and subject to the same conditions as the rule can be included in the definition of Rule. The argument being that S. 78 of the Electricity Act postulates that State Government may after previous publication in official gazette frame Rules, only those regulations can come within the definition of rules which are also made similarly. We cannot agree. It is relevant to note that in case of Sukhdev Singh (supra) statute provided that all rules made under the Act shall be as soon as possible laid before each house of the Parliament. No such requirement was laid down for the regulations which were framed by the Commissioner or the LIC. Thus the manner of making rules and regulations differed in one of the important requirements. Notwithstanding that the Supreme Court held that there was no difference between the regulations and rules and both would have equal binding force. The argument thereforee that because the regulations are not required to be previously published in the official gazette or that they do not require the Central Government approval makes them any less binding rule of conduct or of any less statutory force is unsupported by any principle or law. Thus to invoke S. 21 of the General Clauses Act is in apposite because all that it says is that where by any Central Act power to issue notifications, orders, rules, or bye-law is conferred, then that power includes the power exercisable in the lake manner and subject to like conditions. In the present case the rules are to be framed by the Central Government while different agency that is the board was to frame regulations. Of course both of them owe their source to statute and thereforee the binding force and compulsion is the same.
16. We may mention that not only Regulations like 79(c) but even provisions like S. 79(k) of the Electricity Act was held to permit the board to delegate its disciplinary powers to any officer notwithstanding that it was not so specifically mentioned in S. 79(k) which only permitted the board to make the regulations for any other matter arising out of the boards function under the Act. In so holding the court observed :
'Section 79(k) is a residuary provision and which embraces the power to make regulation in regard to the functions of the Board and that his power so used by necessary implication to take disciplinary action or to terminate employment.'
17. We may note that the Corporation itself understood that the regulations made under S. 79(c) of the Electricity Supply Act 1948 continued to be in force even after the coming into force of DMC Act, 1957. In this connection reference may be made to the manual of Service Rules and Regulations Order published by the DESU in 1967 wherein it is mentioned in the note that these service regulations of 1951 continue to be in force by S. 516 of the Act. DMC issued subsequently regulations called Delhi Municipal Corporation Seniority Regulations 1968. Regulation 10 of the same clearly mentioned that provisions relating to the determination of seniority in the regulations framed under S. 79(c) are hereby repealed. This shows that the Corporation took the provisions regarding seniority under the Regulations of 1951 to be continuing in force till the same was repealed by Regulations of 1968. Similarly a reference to DESU and DMC Service Control and Appeal Regulations, 1967 will show that the procedure and the quantum of punishment and the provisions with regard to the appeals are provided from Regulations 5 onward. Regulations 18 of 1976 Regulations repeal Regulations 9, 11 except the provisions relating to power of imposing fine, Regulations 12, 13 made under S. 79(k) of the Electricity Supply Act and any other resolutions to the extent to which they apply to a person to whom these regulations apply. This was done because penalty provisions of earlier service regulations could no longer continue in force because of new 1976 regulations on the same subject. This also shows the understanding of the Corporation so far as the continuance of the service regulations of 1951 were concerned, till some of them were specifically repealed. We are mentioning this not for the purpose of interpreting the word 'Rule' we have already decided that the service regulations of 1951 would continue in force till repealed by regulations framed by the Corporation Act or to the extent they were inconsistent, but only to show that even in practice this is what was understood by the Corporation and the employees. As admittedly no other regulations have been framed or shown dealing with the aspect of payment of wages during the period of suspension pending enquiry it is clear that Regulation 13 continued to be in force at the time action was taken by the appellant.
18. One other argument raised by Mr. Charya was that even assuming the Regulation 13 to be valid this did not include the power to suspend an employee against whom criminal case is pending. Mr. Charya urges that the word used in Regulation 13 is 'suspended pending an enquiry' and cannot be invoked in case a person had been suspended pending criminal trial. We cannot agree. Regulation 13 clearly provides that were a servant of the Board is suspended pending enquiry the subsistence allowance to be paid to him is to be in accordance with the Government Rules on the subject in force in the State of Delhi. In this connection reference may be made to C.C.S. (CCA) Rules 1965 which were applicable up to 1980. Rule 10 provides that the appointing authority may place a government servant under suspension where a disciplinary proceeding against him is contemplated or where the case against him instituted on any criminal offence under investigation, enquiry or trial. Thus under the rules suspension is permitted both in the case of pendency of disciplinary enquiry in respect of criminal offence. We cannot read the word 'enquiry' in Regulation 13 to be restricted to a departmental enquiry only. It would be anomalous and a little ludicrous if one were to hold that power of suspension was available to the Board if a departmental enquiry was pending; where the punishment may only be withholding of increment or revision but not in case of enquiry in criminal charge which may ultimately result in sentence of imprisonment and hence of removal. In our view the word enquiry has been used in respect of departmental as well as criminal offence. Thus even Regulation 13 provides for payment during suspension pending enquiry it must encompass within it suspension pending enquiry either in departmental proceedings or an enquiry in respect of criminal charge. We have thereforee no doubt that regulations can be invoked where an employee is suspended pending the departmental enquiry or enquiry in respect of criminal charges.
19. As a result we cannot agree with the finding of the learned single Judge and would thereforee, set it aside and hold that Regulation 13 was available to the DESU. It must thereforee be held that there was provision namely Regulations 13 for payment of less than full wages during the period of suspension. In our opinion the Labour Court as well as the learned single Judge were wrong in holding otherwise. The award of the Labour Court to that extent and the affirmation of the same by the learned single Judge is thereforee quashed. The question of law namely that DESU was competent in terms of Regulation 13 to pay to an employee during the period of suspension less than full wages has to be answered in favor of the appellant. This of course only settles the question of law which are common to all the cases. We shall now deal with each case because of different peculiar facts arising in them.
C.W. 219/75, LPA-132/77, CW 614/77 & CW-109/1978 :
20. In these cases the employees were reinstated and no fresh proceedings were started. It is, thereforee, evident that they are entitled to full payment of wages for the period of suspension. The writ petitions thereforee fail.
C.W. 1063 of 1975
21. In this case minor punishment of stoppage of increment of pay was imposed but without holding any enquiry. The Labour Court allowed the claim of the workmen on the ground that as the Regulation 13 did not survive there was no power to pay less. Though we have held that the Regulation 13 survives and the power to pay subsistence allowance was available, but as it is admitted that the punishment was imposed without holding any enquiry or giving an opportunity to the workman, the penalty imposed would be illegal. Thus the workmen could not be considered to have been justifiably suspended. On that count, though for different reasons, the award of Labour Court would have to be upheld. The writ petition thereforee, fails.
C.W. 750 of 1977 :
22. The employee was removed from service but before the tribunal a settlement was arrived at and the period from the date of removal to the date of reinstatement was treated on half wages. The workman signed that agreement and did not claim any arrears for this period. However for earlier period i.e. from the date of suspension to the date of his removal which was for 13 months, he claimed an amount of Rs. 1015/-. The counsel for the respondent says that suspension for such a long period was not the fault of workman. Considering that the decision of Labour Court was given in 1977 and amount of arrears has already been realised by workman, we feel that in the circumstances of the case justice requires that the Corporation should not ask for refund from the workman. As such we would dismiss the writ petition.
L.P.A. 108 of 1977 & L.P.A. 113/1977 :
23. In this case the employee after an enquiry was removed from service. The Labour Court disposed of the application under S. 33(C)(2) on the ground that there was no power to pay subsistence allowance during suspension but as we have held otherwise the matter has to go back to the Labour Court for disposal on merits in accordance with the opinion expressed by us in accordance with law. The matter will be sent back to the Labour Court.
L.P.A. 109 of 1977 :
24. The respondent has retired and we do not feel that the D.E.S.U. should proceed any further against him. Dismissed.
L.P.A. 110/1977, C.W. - 54/1973, C.W. 1131/1976 & C.W.-625/1977 :
25. The workman is not before us but we fell that the ex-gratia payment should be deemed to be allowed to be claimed by workman and D.E.S.U. should not claim back the amount. Dismissed.
L.P.A. 133 of 1977 :
26. In this case the respondent/workman was kept under suspension pending the criminal trial. Ultimately he was convicted but released on probation. As the Labour Court has not examined the matter on merits this will also have to go back and we so direct accordingly.
C.W. 999 of 1976 :
27. The Workman dismissed from service after holding a departmental enquiry. The matter has not been examined on merits. The matter is thereforee sent back to the Labour Court.
C.W. 284 of 1978 :
28. After enquiry the workman was dismissed from service. He has challenged that in the tribunal where matter is still pending. Evidently the parties will move the Labour Court to bring it to its notice that the dismissal is under challenge and it will be desirable naturally to await the decision in the dismissal case. It is only thereafter that the Labour Court should taken up the matter of subsistence allowance, as we are remitting back the matter to it.
C.W. 25 of 1978 :
29. We do not feel that in the peculiar circumstances of the case the employee should be compelled to fight further long litigation. The D.E.S.U. should treat it as ex-gratia payment and should not claim back the amount. Dismissed.
C.W. 709 of 1978 :
30. The respondent/workman was reverted after departmental enquiry. This case is remitted back to the Labour Court for decision on merits afresh.
C.W. 24 of 1978 :
31. The workman was reinstated on a compromise made before the Labour Court. The amount possibly relates to the suspension period prior to that. The amount being small D.E.S.U. should treat as ex-gratia payment.
C.W. 1010 and 50 of 1978 :
32. This is a cased of stoppage of one increment. It will be harsh to start proceedings afresh after such a long spell. The D.E.S.U. should treat it as ex-gratia payment. Dismissed.
C.W. 519 of 1977 & 107 of 1977 :
33. The workman was suspended pending a criminal trial. He has been ultimately convicted but his appeal is still pending disposal in this Court. It will be proper to await the decision to the appeal court. The petition may be listed after the decision of appeal in the criminal court on an intimation by either of the counsel.
L.P.A. 111/77 & C.W. 751/77 :
34. These are cases in which departmental proceedings were taken and ultimately punishment of withholding of increments was imposed. The Labour Court has only gone into the aspect whether there was a power of suspension/retrenchment or not. We have now answered the question. As to the merits and the amount that has to be paid and the various circumstances in the context of the ultimate punishment imposed have not yet been gone into. The matter, thereforee, necessarily has to be remitted for decision on merits of Labour Court. We direct accordingly.
35. Mr. Charya had also raised the point that even if Regulation 13 has been held to be continuing it will not be applicable because of the overriding application of standing orders framed under the Industrial Employment Standing Orders Act which is applicable to the Industrial Establishments like D.E.S.U. He also says that after the suspension was revoked an order under Fundamental Rule 53(b) has to be passed whether the period of suspension has to be treated on full pay or lesser pay and no such order having been passed he would be entitled to payment of full pay in any case. These are all aspects of the matter which it is clear were under consideration by the courts below but were not considered presumably because the matter was disposed of on the preliminary ground that there was no competency in law to pay subsistence allowance to the workman during suspension pending Enquiry. As we have held otherwise and as some of the matters are being sent back to the Labour Court all these matters concerning the merits of the each case raised by the D.E.S.U. or by the workman will necessarily, if raised, be decided by the Labour court. We thereforee deem it unnecessary to give any decision on these points.
36. We are given to understand that the amounts in pursuance of the order of Labour Court were deposited in Court and have already been realised by the respondents. The D.E.S.U. however is restrained to take any proceedings to reclaim back until after it is able to obtain in its favor decision on merits from the Labour Court to which all these cases are now being sent back by us.
37. With these observations the appeals and writ petitions are disposed of as above. No costs.
38. D. R. Khanna, J. Short of dismissal, the worst that can befall an employee is an order of suspension. It is rendered all the more grave in the context of delays and redtapism sadly afflicting the government set ups and public undertakings, when departmental enquiries take long to get finalised and the suspended employee is perforce made to undergo the agony and suspense of long suspension. The employer too stands to lose with the non-availability of active service of the employee.
39. The power of suspension is no doubt available under the service conditions and rules governing the employee, but it has to be exercised with circumspection, care and after due appliance of mind. Normally a sort of preliminary enquiry or investigation is gone through for ascertaining the prima facie view of the matter and whether the circumstances impel recourse to suspension. When they do, the power has to be exercised. In such situation, the disciplinary authority must make a fair and proper assessment of the affair in the given circumstances, and carefully scrutinies that prima facie there exist grave and compelling circumstances which in the light of the material available and collected during the preliminary investigation would lead to the likelihood of removal or dismissal of the employee from service. It may be that formulation of exact punishment that may be finally awarded is not possible at this stage, but a proper judgment exercised can certainly prevent unnecessary harassment and humiliation of suspension.
40. What appears in the present cases is that recourse to suspensions was adopted as a matter of routine pointing out to reckless and cavalier exercise of power without the necessary circumspection and adequate appliance of mind. The result has been distressing. Several of these officers have remained under suspension for a number of years. Ultimately in most of the cases, the punishments awarded of minor nature like warning, withholding of one or two increments etc. Their financial implications qua the employees were negligible as compared to the large amounts that they were required to lose in the form of restricted emoluments allowed to them during the suspension periods. Thus they have been confronted with much worst summary punishments in the form of suspensions vis-a-vis the ultimate punishments awarded without due enquiries. When such have been the appalling state of affairs, the non-recovery of the amounts already paid to them at the full salary rates which have been termed as ex-gratia by my learned brother, can as well be treated as legitimate and sustainable in law.
41. With these observations, I agree with the conclusions arrived at by my learned brother.