JUDGMENT
Mohan, C.J.
1. The facts leading to the Writ Appeal are as follows :
N. S. Giri, respondent-1 herein, joined the services of appellant-1 Municipality as a Health Assistant in the year 1950. He was promoted as a Sanitary Inspector in the year 1962. There was a further promotion as a Selection Grade Sanitary Inspector on a substantive basis with effect from 1st June, 1967. Thereafter, the post was re-designated as Assistant Health Officer.
2. Originally the Mangalore City Municipality was constituted under the provisions of the then Madras District Municipalities Act (the Act, for short). As far as the service conditions and the age of retirement of Health Officers of the Health Department are concerned, they were governed by the Madras Public Health Act and the Rules framed thereunder. Under the said Rules, the retirement age of the servants of the Public Health Department was 60 years in some cases and in some other cases it was 58 years. There was also a provision in the said Rules for extension of the age of the retirement. Subsequently, in pursuance of the State re-organisation, the Mangalore City Municipality became part of the Mysore State, presently Karnataka. With the enactment of the Karnataka Municipalities Act, the Mangalore City Municipality was deemed to have been constituted under the said Act. Subsequently, the Mangalore City Municipality has been constituted under the provisions of the said Act. In the year 1976, the Karnataka Municipal Corporations Act, 1976 (for short, the Act of 1976) was enacted. In exercise of the powers under Section 3 of the Act of 1976, the Mangalore City Municipality was declared as the Mangalore City Corporation. Section 503 of the Act of 1976 deals with the consequences of declaring the City Municipality as a City Corporation under the act of 1976. Sub-section (1) of Section 503 of the Act of 1976 says that subject to the provisions of Section 3, the Government may declare by notification that any City Municipality constituted under the Karnataka Municipalities Act, 1964, shall with effect from a date to be specified in such notification be a City Corporation constituted under Section 3 of the Act of 1976. It clearly states that all Officers and servants in the employment of the City Municipality immediately before the date shall become the Officers and servants of the Corporation under the Act of 1976 and until other provisions in this regard are made. They were also entitled to receive salaries and allowances and subject to the conditions of service to which they were entitled immediately before such date. By virtue of the Act of 1976, the said service conditions continued and the services of respondent-1 were absorbed in the Corporation of the City of Mangalore and he had been working as an Assistant Health Officer in the Corporation.
3. The workmen of the Mangalore City Municipality raised an industrial dispute to raise the age of superannuation from 55 to 58 years. An agreement was entered into between the workmen represented by the Karnataka Sanitary and General Workers Union, Mangalore and the Management of Mangalore City Municipality represented by its Commissioner, to refer the said dispute to the sole Arbitrator for arbitration under Section 10A of the Industrial Disputes Act. An award was passed on 11th January, 1969 holding that the workmen of the Municipality belonging to the superior services were entitled to retire at the age of 58 years. Inasmuch as respondent-1 belonged to the superior service and this award was not enforced which award is protected, according to respondent-1, under clause (k) of sub-section (3) of Section 503 of the Act, 1976, he preferred W.P.No. 1202 of 1981 praying for a writ of certiorari to quash the order of the Commissioner dated 31st December, 1980 wherein he was directed to retire at the age of 55 and also for a writ of mandamus directing the appellant Municipality to retain respondent-1 in the service till he attained the age of superannuation of 58 years.
4. The Municipality, presently the Corporation, contested the matter. The learned single Judge allowed the writ petition stating that the award was binding between the parties, it is in these circumstances that this writ appeal has come to be presented.
5. Before us the important question of law that is argued is that the age of superannuation under Rule 14 of the Municipal Rules framed under the then Madras District Municipalities Act, is 55 years. That being the statutory Rule cannot be modified by an award of an Arbitrator made under Section 10A of the Industrial Disputes Act. In other words, where there is a statutory provision fixing the age of superannuation as 55 years, that would operate as a bar for the invocation of the Industrial Disputes Act. This submission derives support from and unreported Judgment in W.P.No. 2134 of 1967.
6. The Municipality was a party to the award. In so far as there is lack of legal competence for the award itself, that can be questioned when it is sought to be enforced. If the reasoning of the learned single Judge is to be accepted, then it would mean that authorities exercising the power – be it Tribunal or an Arbitrator under the Industrial Disputes act – would be enabled to alter the statutory provision which is the function of the Legislature. Then again, the Supreme Court in Management of Marina Hotel v. The Workmen (1961-II-LLJ-431) where an award ran counter to Section 22 of the Delhi Shops and Establishments Act, held the award to be illegal.
7. No Court will ever issue Mandamus for enforcement of an illegal act as laid down by a Full Bench ruling of the Kerala High Court in A. M. Mani v. Kerala State Electricity Board Represented by its Secretary. Trivandrum and others (1967-II-LLJ-831).
8. In answer to this submission learned Counsel for respondent-1 states that the very question as to whether the award is enforceable or not came up for consideration in The Life Insurance Corporation of India v. D. J. Bahadur and others (1981-I-LLJ-1). To the same effect is the Thiruvenkataswami v. Coimbatore Municipality (1968-I-LLJ-361). This is not a case where it should be held that there was any lack of jurisdiction may be it is a wrong order. Even though it is a wrong order while it is sought to be enforced, its correctness cannot be questioned as laid down in M. V. S. Manikayala Rao v. M. Narasimhaswamy & others . Besides, when similar orders had withstood the test of time, there is no justification for this Court at this stage to hold in this case alone that a different interpretation has to be applied.
9. Rule 14 of the Rules framed under the then Madras District Municipalities Act in respect of the service conditions of the employees prescribes the age of superannuation as 55 years. Where there is a statutory Rule clearly specifying the age of superannuation as 55 years, it is not open to the Arbitrator under Section 10A of the Industrial Disputes Act to alter the same on the ground that the Municipality is an industry and further that the age of retirement is a service condition. We are clearly of the view that the statutory provision, referred to above, would constitute a bar on the jurisdiction of the authority acting under the Industrial Disputes Act. It should be remembered that Rule 14 is a statutory Rule. Where the statute occupies a place, it is not open to an Arbitrator or Tribunal under the Industrial Disputes Act to amend the legislation. We are clearly of the opinion that such power of amendment has been conferred only on the Legislature. It matters very little whether it is a plenary power of legislation or delegated power of legislation. One thing requires to be mentioned here. Under the delegated power Rule cannot be made contrary to the provisions of the statute. These observations are only in passing. All that we want to emphasise is where a service condition is governed by the statute; it would operate as a bar on the jurisdiction of the Arbitrator and he cannot assume jurisdiction and fix the age of retirement in being a part of service condition on the basis of the evidence let in, before him. We may at this stage at once refer to Mangalore University Non-Teaching Employees Association v. Mangalore University Our learned brother Rama Jois, J., happened to deal with this aspect though in a different context and observed at page 2233 as follows :-
“…… Moreover it should be pointed out that while it is true that the Industrial Tribunal has wide powers in matters relating to conditions of service of workmen, in that it can create new conditions of service or alter existing conditions of service, it can do so only if the matter is not regulated by law. It has no jurisdiction to deal with matters covered by Law and to make an award directing an employer to regulate the conditions of service otherwise than in accordance with statutory provisions …….”
At page 2235 it is further observed as follows :-
“From the aforesaid authorities, it is beyond doubt that the Industrial Court has no jurisdiction to make an award directing the University to make recruitment to non-teaching and ministerial posts in its service otherwise than in accordance with the provisions of Section 50 of the Act …….”
10. We are clearly of the opinion that this ratio squarely applies to the facts of the case. Then again, the Supreme Court had an occasion to consider the grant of 15 days casual-cum-sickness leave under an award and had found that was in violation of Section 22 of the Delhi Shops and Establishments Act. This was in Management of Marina Hotel v. The Workmen (supra) which we quote now : (p. 434) :
“Leave : The contention of the appellant in the connection is that Tribunal was not justified in awarding 15 days’ casual-cum-sickness leave in view of the provisions of Section 22 of the Delhi Shops and Establishments Act (No. VII of 1954) as that provides for a maximum of 12 days for sickness-cum-casual leave. This matter was considered by this Court in Messrs Dalmia Cement (Bharat) Ltd., New Delhi v. Their Workers (1961-II-LLJ-130) and it was pointed out that the position with regard to sickness-cum-casual leave was that Section 22 fixed a maximum of 12 days total leave for sickness or casual leave with full wages, and it was not open to the Tribunal to disregard this peremptory direction of the Legislature. In this case the Tribunal was aware of the provisions of Section 22 of the Delhi Shops and Establishments Act; but inspite of that it decided to grant 15 days’ sickness-cum-casual leave instead of 12 days which was the maximum provided under the Act. This is our opinion was illegal and the amount of casual-cum-sickness leave must be reduced to 12 days as provided in the Act.”
11. We are unable to appreciate the stand of the learned Counsel for respondent-1 workman that because it is service condition, it is open to the Tribunal to modify it. The ruling in Thiruvenkataswamy’s case (supra) relied on in support of the submission is out of the context because the service condition was governed by the Industrial Employment (Standing Orders) Act and not statutory Rules as in the instant case. Then again, the ruling if Life Insurance Corporation case (supra) has also no application because the service conditions mentioned therein were governed by the settlements. Having regard to the fact that those conditions were governed by the settlements arrived at between the parties, those settlements were held to be applicable. But that it not the position here because of the intervention of the statutory Rules.
12. Once we arrive at this conclusion that the Arbitrator in the instant case has no power to amend statutory provision, it would mean total lack of competence on the part of the Arbitrator. It is incorrect to state, as urged by the learned Counsel for respondent-1, that it is a wrong order. It is totally want of competence because the matter as already stated is governed by a statutory provision, the power of amendment is given only to the Legislature.
13. For the sake of completion, we would do well to refer to the definition of ‘retrenchment’ occurring in sub-section (a) and (b) of clause (oo) of Section 2 of the Industrial Disputes Act, 1947. They read :
“(oo) “Retrenchment” means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include –
(a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or XXXX XXXXXX XXX"
14. The very object of retiring the workman on reaching the age of superannuation as per the terms of the contract is to see that such a contract is respected. If that be so in the case of an ordinary contract, it should be much more so where the age of superannuation has been fixed by the statutory provision under Rule 14 of the Rules framed under the Madras District Municipalities Act. We will refer to the decision of the Supreme Court in The New Maneek Chowk Spg. and Wvg. Co. Ltd., Ahmedabad & others v. The Textile Labour Association, Ahmedabad (1961-I-LLJ-521). In paragraphs 5 and 6 (pages 525-526) of that Judgment, it has been observed as follows :-
“(5) Two question immediately arise in this connection : the first relates to the jurisdiction of the Industrial Court to impose new obligation upon the parties and the second is whether, if the Industrial Court has jurisdiction to impose new obligation, it could do so in a matter of this kind considering the concept of bonus as laid down by the decisions of this Court.
(6) ……. There is no doubt therefore that 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 existing agreement or making a new one. This, however, does not mean that an Industrial Court can do anything and everything when dealing with an industrial dispute. 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 this court.”
15. This clearly points out to the lack of competence on the part of the Arbitrator. If there was lack of competence, the question would be whether, at the time when the award is sought to be enforced by means of a Mandamus, is it open to the Municipality to say that it is not enforceable ? In other words, the liability flowing out of an incompetent award cannot be enforced against the Municipality even though it was passed as early as on 11th January 1969. In our considered view, the answer should be in the affirmative because the incompetence goes to the root of the matter. Therefore, we see no scope for applying the ruling of the Supreme Court in Manikayala Rao’s case (supra).
16. Under these circumstances, the writ appeal will stand allowed. The order passed by the learned Single Judge is set aside. However, respondent-1 being a workman, we do not want to mulct him with costs.