M. M. Ismail, CJ.
1. This is an appeal against the order of Mohan, J., dated 30th July, 1980 dismissing W. P. No. 1869 of 1979, filed by the appellant herein. The Appellant was an employee of the respondent co-operative society. He filed before the Labour Court a petition under Section 33-C (2) of the Industrial Disputes Act claiming subsistence allowance for the period of his suspension from 23rd December, 1977 to the end of July, 1978. The Labour Court dismissed the petition holding that under bye-law 12(h) the respondent had a discretion to grant or not to grant subsistence allowance, that that discretion had been properly exercised in the present case not to grant subsistence allowance and that therefore the appellant herein would not be entitled to subsistence allowance. That order of the Labour Court was brought up before this Court in the writ petition referred to above. The learned Judge agreed with the conclusion of the Labour Court and dismissed the writ petition. Hence the present appeal has been filed by the appellant.
2. The scope of the bye-law couched in identical language came up for consideration before a Full Bench of this Court in The Secretary, Palani Co-operative Sales Society, Palani v. Presiding Officer, Labour Court, Madurai : AIR1975Mad241 . The said bye-law read as follows:
12(h). The authority competent to suspend as employee may, in its discretion sanction him subsistence allowance at a rate not exceeding one-fourth of his substantive pay during the period of his suspension. No employee shall in any case be kept under suspension for a period exceeding three months at a time.
3. Dealing with this by-law the Full Bench observed as follows:
Generally stating, where the power of appointment is vested in an authority, it has the power of disciplinary action as well, which again necessarily involves the power to keep a particular member of the establishment under suspension in a suitable case pending an enquiry. No conferment of a separate power to that effect is necessary. Apart from the power of appointment, the power can be implied in the disciplinary power to inflict punishment by way of removal or dismissal or any other punishment in the instant case sub-clause (h) extracted above visualises the power of suspension. In our opinion, it is not confined to suspension by way of punishment. It is also applicable to a case of suspension pending an enquiry. Discretion is given in the case of such suspension to allow subsistence allowance at a rate of one-fourth of the substantive pay during the period of suspension. If no order of sanction has been made, it may appear that during the period of suspension no remuneration will be permissible. But this discretion coupled as it is with a benefit has to be exercised in every case reasonably and according to law and justice and not whimsically or arbitrarily. It is only for stated reasons that the authority suspending a member pending an enquiry can deny subsistence allowance to him. We construe the provision in that way, more especially because of the last sentence in the sub-clause which has restricted the power of suspension to a period not exceeding three months at a time.
4. Thus it is clear from the decision of the Full Bench that the power of suspension under bye-law 12(h) includes the power to suspend pending disciplinary proceedings, that the authority competent to suspend has a discretion either to award subsistence allowance or not to award subsistence allowance and that such a discretion has to be exercised reasonably and according to law and justice and not whimsically or arbitrarily. In this particular case, even at the time when the order of suspension was pass d, the discretion was exercised not to grant subsistence allowance. The order read s as follows:
Pending further proceedings into your abovesaid conduct you are hereby suspended from service with immediate effect, As the charges levelled against you are serious in nature, it is not considered expedient to exercise the discretion for grant of any subistence allowance during the period of suspension.
5. Thus it is clear that the authority competent to suspend the appellant herein had applied its mind to the question of sanction of subsistence allowance, and came to the conclusion that it was not expedient to sanction subsistence allowance, having regard to the seriousness of the charges levelled against the appellant herein. The seriousness of the charge levelled against a person like the appellant herein can certainly be a ground for declining to grant subsistence allowance. Consequently the judgment of the Full Bench fully supports the conclusion of the Labour Court as well as the learned Judge.
6. However, the learned counsel for the appellant brought to our notice a decision of V. Ramaswami., J. in Tirunelveli District Co-operative Supply and Marketing Society Ltd., Tuticerin v. Labour Court, Madurai (1976) 1 LLJ 456 which has also been referred to by Mohan, J. The learned Judge in that case was considering a bye-law similar to the one with which we are concerned in the present case. The bye-law in that case was bye-law 13(1) (e), which read as follows:
Notwithstanding anything contained in the special bye-laws, the President shall be competent to place any member of the establishment under suspension from service, pending enquiry into a grave charge where such suspension is necessary in the interests of the Society. He may, at his discretion, sanction to the employee suspended a subsistence allowance at a rate not exceeding 14th of the substantive pay during the period of his suspension. No employee shall in any case be kept under suspension for a period exceeding three months at a time.
7. Though there may be some verbal difference in some respects between the bye-law which we are considering in the present case and the bye-law considered by the learned Judge in the decision referred to above, there is not any verbal difference as far as the provision regarding psyment of subsistence allowance is concerned. Dealing with the bye-law, the learned Judge observed:
The first part of this bye-law deals with the power of the competent authority to place a member of the establishment under suspension from service pending an enquiry into grave charge, and the later portion deals with the direction given to the competent authority to pay a subsistence allowance at the rate not exceeding one-fourth of the substantive pay of the employee, during the period of his suspension. I think the learned counsel for the petitioner is well-founded in his contention that these two parts of the provision will have to be read independently and as providing separate and independent powers. This is more so for the reason that the Supreme Court and this Court in a number of cases have held that a competent authority has an inherent power to suspend an employee pending an enquiry into charges of misconduct. If that is is so, the discretion to pay subsistence allowance during the period of suspension will have to be read as an independent power or obligation to pay. Though this power is given as a discretion, the discretion part of it relates only to the quantum and not for a total rejection of the subsistence allowance itself. Even such discretion, I have no doubt, will have to be exercised in a reasonable manner and not arbitrarily or capriciously.
8. We are of the opinion that the above observation of the learned Judge, that the discretion part of the provision related only to the quantum and not for the total rejection of the subsistence allowance itself, is opposed to the view of the Fall Beach to which we have drawn attention. It is significant to note that the decision of the Full Bench was not brought to the notice of the learned Judge, and therefore in the judgment of the learned Judge no reference has been made to the decision of the Full Bench. However, having regard to the decision of the Full Beach, the view of V. Ramaswami, J., in this behalf cannot be said to be good law.
9. Under these circumstances, there is no ground to interfere with the order of Mohan, J The writ appeal therefore fails and is accordingly dismissed.