Giri Vs. The Corporation of City of Mangalore & Ors  INSC 217 (14 May 1999)
V.Manohar, D.P.Manohar, R.C.Lahoti. R.C. LAHOTI, J.
facts relevant for the purpose of deciding this appeal are undisputed and are
briefly set out hereafter.
the appellant joined the services of erstwhile Mangalore Municipality as a Health Assistant in the year
1950. He was promoted as Sanitary Inspector 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 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 between the
workmen and the management of Mangalore City Municipality
was referred to a sole arbitrator under Section 10A of Industrial Disputes Act,
1947. 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 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 re- employed after 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 and under the statutory service rules 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.
31.12.1980 the appellant received a communication from the Karnataka 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 Municipal Corporation preferred an appeal before the Division Bench of
Karnataka High Court which has been allowed reversing the judgment of the
learned Single Judge.
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 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 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 Karnataka
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.
exercise of powers conferred by Section 3 thereof, Mangalore 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 formation of the Corporation, by virtue of clause (k) of
sub-section (3) of Section 503 of the Karnataka 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
short question arising for decision in this appeal is whether an award made
under Section 10A 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.
New Maneck Chowk Spinning and Weaving Co. 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
by the subject matter with which it is dealing and also by the existing
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." 1962 (3) SCR 1, the
award of the Industrial Tribunal holding entitlement to 15 days
casual-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 days only
being allowed. The decision in M/s by the Dalmia Cement Workers Union, Dalmiapuram
AIR 1960 SC 413 which is to the same effect, was followed. So is the view taken
by this Court in M/s Dalmia Cement (Bharat) Ltd., AIR 1963 SC 1332 also the
Industrial Tribunal fixing the period of sick leave at 15 days and permitting
accumulation contrary to the provisions of the Delhi Shops and Establishments
Act, 1954 was held to have acted illegally.
Constitution Bench in State Bank of India & Ors. Insurance Co. Ltd.,
Calcutta 1961 (I) LLJ 249 have held that any reference by way of industrial
dispute seeking award of bonus beyond the limits prescribed by law was
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 Court
and if it does so, it is illegal and cannot be enforced.
learned counsel for the appellant heavily relied on the three-Judges Bench
decision in The Life Insurance 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 Kumar 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 the Corporation Act, cannot supersede the contract
respecting bonus between the parties resulting from the settlement of 1974."
The abovesaid decision does support the proposition canvassed by the learned
counsel for the appellant that an industrial settlement would 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.
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 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 Section
10A 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
consistently with the service rules as applicable on that day.
the foregoing reasons, the appeal is held devoid of any merit. It is dismissed
accordingly though without any order as to costs.