N.S. GIRI

CORPORATION OF CITY OF MAN GALORE & ORS.

MAY 14, 1999

[SUJATA V. MANOHAR, D.P. MOHAPATRA

AND R.C. LAHOTI, JJ.]

Labour Law:

Industrial Disputes Act, 1947 : Section 10-A.

Arbitration award-Dispute-Regarding-Age of superannuation- Referred to arbitration-Statutory service rules prescribed 55 years as age

of superannuation-However, arbitrator gave award enhancing age of superannuation to 58 years-Validity of-Held, Arbitration award inconsistent with the statutory provision or law laid down by the Legislature or by the Supreme Court is illegal and cannot be enforced-Karnataka Municipalities D (Conditions of Service of Officers and Servants) Rules, 1972, R. 48-Madras District Municipalities Act, 1920 (renamed as the Tamil Nadu District Municipalities Act, 1920)-Karnataka Municipal Corporation Act, 1976, SS. 3 and 503(3)(k).

Constitution of India, 1950 : Article 141.

Precedents-Binding effect of-Held, A decision by the Constitution Bench and a decision by a Bench of more strength cannot be overlooked to treat a latter decision by a Bench of lesser strength as of a binding authority; more so, when attention of the Judges deciding the latter case was not F invited to earlier decisions available.

The appellant was an Assistant health Officer with the respondent- Corporation. An industrial dispute regarding the age of superannuation of the workmen of the respondent-Corporation was referred to arbitration under Section 10-A of the Industrial Disputes Act, 1947. The age of superannuation G was prescribed as 55 years under Rule 48 of the Karnataka Municipalities (Conditions of Service of Officers and Servants) Rules, 1972. The appellant was governed by this Rule. However, the arbitrator gave an award enhancing the age of superannuation to 58 years.

The respondent-Corporation ordered the appellant to retire in view of H 771

A his having attained the age of 55 years. The appellan&iled a writ petition challenging the aforesaid order, which was allowed by a Single Judge on the ground that the award, was binding between the parties. But the Division Bench dismissed the appeal on the ground that the award could not be given effect to as it was inconsistent with the statutory provisions governing the service conditions of the appellant, including the age of superannuation.

B Hence its appeal.

Dismissing the appeal, this Court

HELD : 1. Rule 48 of the karnataka Municipalities (Conditions of C Service of Officers and Servants) Act, 1972, which governed the employees such as the appellant, prescribed 55 years as the age of superannuation.

Therefore, an award under the Industrial Disputes Act cannot be inconsistent with the statutory provisions or the law laid down by the Legislature or by this Court and if it does so, it is illegal and cannot be enforced.

[774-D-E; 775-F]

New Maneck Chowk spinning and Weaving Co. Ltd. v. Textile Labour Association, [1961) 3 SCR 1; Hindustan Times Ltd. v. Workmen, AIR (1963) SC 1332 and State Bank of India v. Workmen, followed.

Marina Hotel v. Workmen, [1962) 3 SCR 1; Dalmia Cement (Bharat) E Ltd v. Workmen, AIR (1960) SC 413; Dalmia Cement (Bhar(; zt) Ltd v. Workmen AIR, (1967) SC 209 and Workmen v. Hercules Insurance Co. Ltd., (1961) LLJ 249, relied on.

LIC of India v. D.J. Bhadur, AIR (1980) SC 2181, held inapplicable.

F LIC of India v. SunilKumar Mukherjee, [1964) 5 SCR and Sukhdev Singh v. Bhagat Ram, [1975) 3 SCR, cited.

2. A decision by the Constitution Bench arid a decision by a Bench of more strength cannot be overlooked to treat a latter decision by a Bench of lesser strength as of binding authority; more so, when the attention of the G Judges deciding the latter case was not invited to the earlier decisions available. [776-D)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 771of1993.

From the Judgment and Order dated 11.1.90 of the Kamataka High Court H in W.A. No. 1872of1989.

N.S. GJRJ v. CORPN. OF THE CITY OF MANGALORE [R.C. LAHOTI, J.] 773

S.R. Bhat for the Appellant.

R.S. Hegde, K.R. Nagaraja, Kh. Nobin Singh and M.Veerappa for the Respondents.

Th~ Judgment of the Court was delivered by

R.C. LAHOTI, J. The facts relevant for the purpose of deciding this appeal are undisputed and are briefly set out hereafter. N.S. Giri, the appellant joined the services of erstwhile Mangalore Municipality as a Heal!h Assistant in the year 1950. He was promoted as Sanitary Illspector in the year 1962 and

..,.. as a Selection Grade Sanitary_Inspector with effect from 1.6.1967. The post has been re-designated as Assistant Health Officer. The Mangalore City C Municipality was constituted under the then Madras District Municipalities Act, 1920 (renamed in the year 1969 as The Tamil Nadu District Municipalities Act, 1920).

. In the year 1968, an industrial dispute etween the workmen and the management of Marigalore City Municipality was referred to a sole arbitrator D under Sedion I OA of Industrial Disputes Act, 194 7. The dispute referred to was : whether the age of superannuation of 55 years of the employees of Mangalore City Municipality including those whose services were extended or of those who were re-employed after the age of 50 years should be fixed at 58 years. The arbitrator gave an award on 11.1.1969 (published in the E Mysore Gazette dated 13.2.1969) enhancing the age of retirement of the workmen belonging to the 'superior service' from 55 years to completion of 58 years of age including those whose services were extended or who were reemployed aftet the age of 55 years. The admitted case of both the parties as noted in the award itself has been that the workmen (including the appellant) whose dispute was before the arbitrator were classified as superior servants F and under the statutory service rtiles as then applicable the age of superannuation was 55 years. However, the arbitrator had thought it fair to fix the age of superannuation at 58 years. Consistently with such opinion formed by the arbitrator the award was given.

On 31.12.1980 the appellant received a communication from the Karnataka G

Municipal Corporation, informing the appellant that he was to retire with effect from 31.12.1980 (afternoon) in view of his having attained the age of superannuation, i.e., 55 years. On 17.1.1981, the appellant filed a writ petition which was allowed by the learned Single Judge quashing the order of retirement forming an opinion that the award was binding between the parties. The H

A Municipal Corporation preferred an appeal before the Division Bench of Kamataka High Court which has been allowed reversing the judgment of the learned Single Judge. The Division Bench has formed an opinion that the award to the extent to which it was inconsistent with the statutory provisions governing the service conditions of the appellant, including the age of B retirement could not be given effect to. The aggrieved appellant has filed this appeal by special leave.

As noted by the Division Bench in its judgment it has been the admitted case of the parties also before 'the High Court that Mangalore City Municipality was constituted under the provisions of the then Madras District Municipalities C Act under which rules were framed which provided for the retirement of persons in superior service such as the appellant, at the age of 55 years. The Kamataka Municipality Act, 1964 came into force w.e.f. 1st April, 1965. The Mangalore City Municipality was deemed to have been constituted under the Karnataka Act. Then came into force the Karnataka Municipal Corporation Act, 1976. In exercise of powers conferred by Section 3 thereof, Mangalore D City was declared a Corporation and all the employees of the erstwhile Municipality were deemed to be in service of the Municipal Corporation. Rule 48 of the Karnataka Municipalities (Conditions of Service of Officers and

Servants) Rules, 1972 which governed the employees such as the appellant, also prescribed for the age of superannuation being 55 years. In spite of the E fonnation of the Corporation, by virtue of clause (k) of sub-section (3) of

Section 503 of the Kamataka Municipal Corporation Act, 1976 the employees of Karnataka. Municipality continued to be governed by the same service rules by which they were being governed before and thus their service conditions remained the same.

F The short question arising for decision in this appeal is whether an award made under Section lOA of the Industrial Disputes Act~ 1947 can be given effect to if it be inconsistent with the statutory provisions governing the service conditions of the employees.

In The New Maneck Chowk Spinning and Weaving Co. Ltd., G Ahmedabad & Ors. v. The Textile Labour Association, Ahmedabad, [1961] 3

SCR 1, the Constitution Bench has held :-

"It is open to an industrial court in an appropriate case to impose new obligations on the parties before it or modify contracts in the interest of industrial peace or give awards which may have the effect of extending Agreement or making new one, but this power is conditioned

N.S. GIRi v. CORPN. OF THE CITY OF MANGALORE [R.C. LAHOTI, J.] 775

by the subject matter with which it is dealing and also by the existing A industrial law and it would not be open to it while dealing with a particular matter before it to overlook the industrial law relating to that matter as laid down by the legislature or by the Supreme Court."

In The Management of Marina Hotel v. The Workmen, [ 1962] 3 SCR 1, the award of the Industrial Tribunal holding entitlement to 15 day.; casual- B cum-sickness leave *was held to be illegal being contrary to the provisions of Section 22 of Delhi Shops and Establishments Act; 1954 which contained a peremptory direction of the Legislature for leave not exceeding 12'tlays onG being allowed. The decision in Mis Dalmia Cement (Bharat) Ltd. v. Their Workers represented by the Dalmia Cement Workers Union, Dalmiapuram, C AIR (1960) SC 413, which is to the same effect, was followed. So the view taken by this Court in Mis Dalmia Cement (Bharat) Ltd., New Delhi v. Their Workmen and Anr., AIR (1967) SC 209. .

In Hindustan Times ltd., New Delhi v. Their Workmen, AIR (1963) SC 1332 also the Industrial Tribunal fixing the period of sick leave at 15 days and D permitting accumulation contrary. to the provisions of the Delhi Shops and Establishments Act, 1954 was heJd to have acted illegally.

The Cons.titution Bench in State Bank of India & Ors. v. Their Workmen,

(1959) (II) LLJ 205 and three-Judges Bench in Workmen of Hercules Insurance Co. Ltd. v. Hercules Insurance Co. Ltd., Calcutta, (1961) (I) LLJ 249 have held E that any reference by way of industrial dispute seeking award o.f bonus beyond the limits prescribed by law was incompetent

It is thus clear that an award under the Industrial Disputes Act cannot be inconsistent with the law laid down by the Legislature or by the Supreme F Court and if it does so, it is illegal and cannot be enforced.

The learned counsel for the appellant heavily relied on the three-Judges Bench decision in The Life Insurance Corporation of India v. D.J. Bahadur and Ors., AIR(I980) SC 2181. Vide para 80, the majority view has been set out as under :-

"In my opinion, it is difficult to resist the conclusion that the Industrial Disputes Act is a special law and must prevail over the Corporation

Act a general law, for the purpose of protecting the sanctity of transactions concluded under the former enactment. It is true that as laid down in Life Insurance Corporation of India v. Sunil Kumar H

Mukherjee, [1964] 5 SCR 528: AIR (1964) SC 847) and reiterated in Sukhdev Singh v. Bhagat Ram, [1975] 3 SCR 619: AIR (1975) SC 1331, the Regulations framed under the Corporation Act have the force of law. But that is of little moment if no reference is permissible to the Regulations when considering the validity and operation of the "settlement" contract. Accordingly; Regulation 58, a product of e Corporation Act, cannot supersede the contract respecting bonus between the parties resulting from the settlement of 1974."

The above said decision does support the proposition canvassed by the learned counsel for the appellant that an industrial settlement would C operate even by overriding a statutory provision to the contrary. However, suffice it to observe that the Constitution Bench decision in The New Maneck Chowk Spinning and Weaving Co. Ltd., Ahmedabad & Ors. (supra) and also the decision of this Court in Hindustan Times Ltd. (supra) which is four Judges' Bench decision, were not placed before the learned Judges deciding the LIC of India's case. A decision by the Constitution Bench and a decision D by a Bench of more strength cannot be overlooked to treat a later decision by a Bench of lesser strength as of binding authority; more so, when the attention of the Judges deciding the latter case was not invited to the earlier decisions available. Respectfully following the earlier two decisions referred to hereinabove, we are of the opinion that the award dated 11.1.1969 under E Section lOA of the ID Act appointing the age of retirement at 58, contrary to the provisions of the statutory rules appointing the age of retirement at 55, cannot be upheld and given effect to by issuing a writ for its implementation.

In any case, the award stood superseded by the subsequent statutory rules of 1974 which too appointed the age of retirement at 55 and there is nothing wrong in the appellant having been asked to superannuate at the age of 55 F consistently with the service rules as applicable on that day.

For the foregoing reasons, the appeal is held devoid of any merit. It is dismissed accordingly though without any order as to costs.

V.S.S, Appeal dismissed.

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