Gujarat Housing Board vs Gujarat Housing Board Employment Union

H.K. Rathod, J.—Heard Mrs. K.A. Mehta learned Advocate for the petitioner. In the present petition the award passed by the Industrial Tribunal in Ref. (I.T.) No. 174 of 1982 dated 27-4-1993 is challenged by the petitioner.

This Court has issued Rule and granted interim relief in terms of Para 9(B) on 2-9-1994. The Rule has been served on the respondent but nobody has remained present on behalf of the respondent. No appearance has been filed on behalf of the respondent. Therefore, the matter has been taken up for final hearing today in the absence of the respondent.

Mrs. K.A. Mehta learned Advocate appearing on behalf of the petitioner has submitted that the Tribunal has no jurisdiction to pass a mandatory Order against the petitioner to fill up 143 posts of Sr. Clerks as per seniority as mentioned in the Schedule at item No. 11. She has submitted that the respondent-Union has not pointed out any material before the Tribunal to the effect that right person has not been granted promotion according to seniority. In fact, no detail was produced by the respondent-Union and in absence of the detail, the Tribunal has passed an Order directing the petitioner to fill up the 143 posts in the category of Sr. Clerks. She has further submitted on behalf of the petitioner that the petitioner has specifically mentioned that in all, the petitioner was having 555 posts and out of which 332 posts have been filled in by the petitioner and now remaining 223 posts are to be filled in. Even though this specific submission was made by the learned Advocate for the petitioner, the Tribunal has roughly calculated the post and passed an award directing the petitioner to fill up 143 posts of Sr. Clerk. She also submitted that the respondent-Union has not produced any detail and in absence of the detail, the award passed by the Tribunal is erroneous and the Tribunal has committed grave jurisdictional error in directing the petitioner to fill up the said posts.

I have considered the submissions made by Mrs. Mehta learned Advocate for the petitioner. It is necessary to note that the dispute which has been referred to the Tribunal has been mentioned in Para 9 of the award. I have also gone through the reasons given by the Tribunal on page No. 9 which suggests that the petitioner-Board should fill up the posts in all the categories according to availability of the posts and on the basis of the seniority and promotion. Similarly, if the posts are to be filled in on the basis of roster system, such posts are to be filled in after observing the Rules and regulations of roster system. Thus, whatever financial loss caused to the employees the same will have to be paid by the Board. The Tribunal also suggested that permanent posts in Class-IV cadre are also required to be filled in immediately. The petitioner-Board has pointed out to the Tribunal that they governed by the statutory Rules, and therefore, under the Rules of recruitment and promotion, the Board has recruited the persons and granted promotion on the basis of seniority-cum-merits.

The Tribunal has committed an error in coming to the conclusion that all the posts are required to be filled in by seniority which is contrary to the statutory service regulation. The contention of the Union before the Tribunal was that the posts should be filled in by seniority. However, in the absence of such a relief, only relying upon Schedule to Exh. 37 which has been submitted by the petitioner wherein the detail has been given about the total posts, the posts already filled up by the petitioner and the remaining posts which are required to be filled up by the petitioner. The Schedule to Exh. 37 has been accepted by the Tribunal and came to the conclusion that 143 posts of Sr. Clerks are required to be filled in immediately by the petitioner-Board. Therefore, considering this aspect according to my opinion the award of the Tribunal is contrary to the statutory service Rules and regulations which governs the relationship between the employer and employee. Therefore, according to my opinion, the Tribunal has committed an error in passing such an award, and therefore, me same is required to be set aside.

This question has been examined by the Apex Court in case of N.S. Giri v. Corporation of City of Mangalore and Ors. reported in 1999 Lab. IC 1982. In the said decision, the Apex Court was examining the award of enhancing the age of superannuation to 58 years. The Apex Court has held that if the award enhancing the age of superannuation to 58 years is inconsistent with the statutory provisions governing the service conditions or the law laid down by the legislature or by the Supreme Court, it is illegal and cannot be observed. The Apex Court has also observed that if the award is contrary to the statutory Rules applicable to the establishment, then also, such an award is illegal and bad. This aspect has been examined by the Apex Court in greater detail. In Paras 11 and 12 of the said judgment, the Apex Court has observed as under:

The learned Counsel for the appellant heavily relied on the three Judges Bench decision in Life Insurance Corporation of India Vs. D.J. Bahadur and Others, . 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 and Others, and reiterated in Sukhdev Singh, Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation Employees Associations Vs. Bhagat Ram, Association of Clause II. Officers, Shyam Lal, Industrial Finance Corporation, , 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 above said 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 The New Maneck Chowk Spinning and Weaving Co. Ltd., Ahmedabad and Others Vs. The Textile Labour Association, Ahmedabad, and also the decision of this Court in, The Hindustan Times Ltd., New Delhi Vs. Their Workmen, which is four Judges Bench decision, were not placed before the learned Judges deciding the L.I.C. 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 later 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 u/s 10A of the I.D. Act appointing the age of retirement as 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.

In the result, the petition is allowed the award passed by the Tribunal in Ref. (I.T) No. 174 of 1982 dated 27-4-1993 is hereby quashed and set aside. Rule is made absolute No order as to costs.