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PETITIONER: N.S.  GIRI

       Vs.

RESPONDENT: THE CORPORATION OF CITY OF MANGALORE & ORS.

DATE OF JUDGMENT:       14/05/1999

BENCH: Sujataq V.Manohar, D.P.Manohar, R.C.Lahoti.

JUDGMENT:

     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 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.

     On  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

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Division  Bench  of  Karnataka  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 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. In  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 same.

     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.

     In  The  New  Maneck Chowk Spinning  and  Weaving  Co. Ltd., Ahmedabad & Ors.  Vs.  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 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."

     In  The  Management of Marina Hotel Vs.   The  Workmen 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 Dalmia  Cement (Bharat) Ltd.  Vs.  Their Workers represented by  the Dalmia Cement Workers Union, Dalmiapuram AIR 1960 SC 413  which  is to the same effect, was followed.  So is  the

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view taken by this Court in M/s Dalmia Cement (Bharat) Ltd., New Delhi Vs.  Their Workmen and Anr.  AIR 1967 SC 209.

     In  Hindustan Times Ltd., New Delhi Vs.  Their Workmen 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.

     The  Constitution Bench in State Bank of India &  Ors. Vs.   Their Workmen 1959 (II) LLJ 205 and three-Judges Bench in  Workmen  of  Hercules Insurance Co.Ltd.   Vs.   Hercules 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 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 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 Vs.  D.J.  Bahadur and Ors.  AIR  1980 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 Vs.  Sunil 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. (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 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

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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.

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