1. This appeal is directed against the Judgment and order dated August 2, 1979 passed by the learned single Judge (S. K. Desai, J) making the Rule in Misc. Petition No. 704 of 1977 absolute in terms of prayer (a) of the petition.
2. Few facts leading to the present proceedings may be summarised as under : The Appellant in this appeal are the original respondent No. 1 in the Misc. Petition No. 704 of 1977 - hereinafter referred to as 'the 1st Respondent Company.' Respondent No. 1 in this appeal is the original Petitioner who is hereinafter referred to as 'The Union.' Respondent No. 2 is the General Secretary of other Union known as 'Bharatiya Kamgar Sena.' Respondent No. 3 is the Presiding Officer of the Second Labour Court.
3. The 1st Respondent (Appellant) is a Private Limited company. The Petitioner Union is the General Secretary of the Maharashtra Mazdoor Congress, Bombay, representing one section of the workers employed by the 1st Respondent in the Company. Originally the company filed a reference (ULP) No. 21 of 1977 in the Labour Court, Bombay under S. 25(1) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the 'said Act'). This reference was made seeking a relief that the strike notice dated 14th May, 1977 given by the petitioner union be declared not in consonance with the mandatory provisions of the said Act and Regulation and as such the strike be declared illegal and that the strike resorted to and continued by the workmen be declared illegal under S. 24(1)(h) of the Act and for certain other consequential reliefs. This reference was filed in the Second Labour Court at Bombay on or about 8th June, 1977.
4. It is common ground that the Petitioner-Union gave notice on 14th May, 1977 about their intention to go on strike on any day after 28th May, 1977 to the Company. The Company by their letter dated 19th May 1977 replied to the said notice and ultimately filed the reference in the Labour Court seeking the above referred reliefs. The company in their application before the Labour Court stated, inter alia, that the notice of the proposed strike was not in accordance with the Regulation 95 framed under the said Act. The strike which had commenced and continued in contravention of the provisions contained in S. 24(1)(h) of the said Act, is illegal and, therefore, the company is entitled to the declarations sought in the said application.
5. This application was resisted by the Union on several grounds contending, inter alia, that the strike notice issued and served upon the company was valid, legal and in accordance with the provisions of law and the company is not entitled for any of these declarations. The application filed by the company is without any substance and the reference be rejected.
6. The Labour Court after perusing the material produced before it and after hearing the arguments of the parties by its order dated 17th June, 1977 held that the impugned notice dated 14th May, 1977 was illegal and not in accordance with the provisions of law and consequently the strike commenced pursuant to the said strike notice is also illegal. Consistent with these findings the Labour Court granted the declarations as prayed for in the said reference.
7. The Union aggrieved by the order passed by the Labour Court preferred Misc. Petition No. 704 of 1977 to this Court under Article 226 of the Constitution of India challenging the legality and correctness of the findings recorded by the Presiding Officer of the second Labour Court at Bombay. This Misc. Petition was heard by the Learned Single Judge of this Court and the learned single Judge by his order dated August 2, 1977 quashed and set aside the order passed by the Presiding Officer of the Second labour Court at Bombay and rejected the reference. The learned single Judge came to the conclusion that the strike notice dated 14th May, 1977 is illegal and strike commenced and continued cannot be declared illegal. The learned single Judge further held that the provisions contained in Rule 22 of the Rules framed under the Act are directory and not mandatory. Consistent with these findings, the learned single Judge further held that the strike commenced after the expiry of 14 days of such notice cannot be declared illegal under S. 24(1)(a) of the said Act. Thus the learned single Judge made the rule absolute in terms of prayer (a) and directed that the parties to bear their own costs of the proceeding. It is this order passed by the learned single Judge that is the subject matter of this appeal.
8. Shri John, learned counsel appearing for the company in support of this appeal principally challenged the impugned order on the ground that the learned single Judge has committed an error of law while holding that the provisions contained in Rule 22 are directory and not mandatory. In order to substantiate this submission the learned counsel drew our attention to Rule 22 along with certain other provisions contained in the Act and the Rules thereunder. According to the learned counsel on proper construction of the provision contained in Rule 22 read with S. 24(1)(a) of the Act, it must be held that Rule 22 is mandatory and breach of any of the requirements contained therein must result the strike notice being illegal. In order to appreciate this contention it would be necessary to reproduce the provisions of S. 24 of the Act and Rule 22 :
Sub-section (1) of S. 24 of the Act, defines what is a 'illegal strike' and in this appeal we are mainly concerned with clauses (a), (b) and (h) of S. 24, which are as follows :
'24. Illegal strike and lock-out. In this Act, unless the context requires otherwise.
(1) 'illegal strike' means a strike which is commenced or continued -
a) without giving to the employer notice of strike in the prescribed form, or within fourteen days of the giving of such notice;
b) where there is a recognised union, without obtaining the vote of the majority of the members of the union, in favour of the strike before the notice of the strike is given;
h) in cases where an industrial dispute has been referred to the adjudication of the Industrial Tribunal or Labour Court under the Central Act, during the pendency of such proceeding before such authority and before the conclusion of such proceeding, if such proceeding in respect of any of the matter covered by notice of strike;
Provided, nothing in clauses (g) and (h) shall apply to any strike where the Union has offered in writing to submit the industrial dispute to arbitration under sub-section (6) of S. 58 of the Bombay Act or Section 10-A of the Central Act...'.
In exercise of its powers under sub-section (1) of S. 61 of the Act the Government of Maharashtra has framed the Rules called the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Rules, 1975. Rule 22 provides that the notice of strike shall be given in Form I and shall be sent by registered post. Rule 22 reads as under :
'22. Notice of strike - The notice of strike under clause (a) of sub-section (1) of S. 24 shall be in the Form I and shall be sent by registered post.'
This Form I is divided into two parts. The first part is a general provision whereas the second part namely clause (2) is applicable to the union being recognised union. It is common ground that the petitioner-union is not a recognised union and, therefore, the provisions contained is clause (2) of the said form are not attracted in the present case. Form I requires the following particulars to be stated in the notice :
1) Name of the Trade Union;
2) Name of 5 elected representatives of the workmen, where no Trade Union exists;
3) Address; and
It is addressed to the undertaking whereunder the name of the employer and the full address of the undertaking is required to be mentioned. This Form I prescribes an annexure containing the statement of reasons for the proposed strike. It is also required to be mentioned that the employees employed in the undertaking propose to go on strike along with the other workmen employed in the undertaking from a particular day and/or any day after the expiry of 14 days as required under S. 24(1)(a) of the Act. This form is also required to be signed by the General Secretary. Form I further requires that copy of the notice be sent to the authorities mentioned therein. At the foot of the said form relevant recital reads as follows :
'Copy to -
1) The Investigating Officer.
2) The Registrar, Industrial Court,
3) The Judge, Labour Court and
4) The commissioner of Labour, Bombay.'
Since the company has heavily relied upon this requirement of sending copies to these authorities mentioned therein being mandatory, we have reproduced Form I in extenso.
9. As stated earlier it is common ground that the union has issued and served the strike notice dated 14th May, 1977 on the Company and after expiry of statutory period of 14 days employees commenced and continued the strike. Relying upon the provisions contained in S. 24(1)(a) read with Rule 22 and the Form I prescribed under the said rule. Shri. John learned Advocate for the Company submitted that unless the union satisfies that the strike notice dated 14th May, 1977 was issued in the prescribed Form I, the strike notice must be held illegal. The main emphasis is on the requirement of the endorsement at the foot of the said notice namely sending of copy of the notice to the four authorities as stated in the said Form I. According to Shri. John, Rule 22 is a mandatory provision and strict compliance of the same must be proved by the union. According to the learned counsel in the present proceedings admittedly the union has failed any neglected to send a copy of the strike notice to any of these four authorities. According to learned counsel the Legislature has with definite purpose and intent used the word 'shall' in Rule 22 contained in Chapter V making it mandatory upon the union to give notice in Form I and, therefore, every requirement laid down in the Form I must also be held mandatory. According to the learned counsel if the copy of the notice as required under Form I was not forwarded to any of these four authorities the strike notice must be held illegal. At first flush and looking at the provision contained in Rule 22, the argument appears to be quite attractive but in our opinion this argument has no force. Merely because the word 'shall' has been used in Rule 22, would not necessarily make the said rule mandatory. Where the word 'shall' has been used in a particular provision of law ipso facto does not amount to a mandatory requirement but the same had got to be construed in the context of the said provision, and in a given case the word, 'shall' would mean 'may' - a directory one. In our opinion, the fair and proper construction of Rule 22 would be that the word 'shall' used in Rule 22 is directory and not mandatory. If one looks at the contents of Form I dealing with notice of strike it is apparent that the union has to give all the necessary details as prescribed under the said form. All these details undoubtedly are given by the union in the impugned strike notice dated 14th May, 1977 and no serious arguments were advanced before us that the contents of the said strike notice were in any manner in-sufficient or not in accordance with the said prescribed form. The only technical objection raised before us is that a copy of the strike notice was not sent to these four authorities as stated at the foot of the Form I. If sending of the copy of the strike notice to these four authorities was mandatory then it should have also contained the provision that the same should be served on these authorities. In addition the said provision should have also provided the consequence of non-service of such notice. In our opinion, this is only an enabling provision and/or directory and having regard to the object of S. 24(1)(a) and Rule 22, and the Form I, it cannot be said that the Rule 22 is mandatory merely because, the word 'shall' has been used therein. Shri John while emphasising that Rule 22 must be read as mandatory relied upon the provisions of S. 8, 9 and 28 of the Act. Section 8 and 9 of the Act deal with Investigating Officers and duties of Investigating Officers.
Section 28 lays down the procedure for dealing with complaints relating to Unfair Labour Practices. Relying upon these provisions Shri John urged that if a copy of the strike notice is sent to these authorities they can step in and prevent the Unfair Labour Practice on the part of the Trade Union and avoid the proposed or continued strike. He also further submitted that the Industrial Court has got vide powers of superintendence over all its subordinate courts and in exercise of such powers the Industrial Court can also step in the matter of proposed or continued strike. The argument of the learned counsel is that if the copy of the strike notice was not sent to these authorities they would not know about the proposed or continued strike and would be unable to exercise the jurisdiction and/or power vested in them. He, therefore, submitted that the Legislature has thoughtfully used the word 'shall' in Rule 22 making it obligatory and mandatory upon the union to send the copy of strike notice to these four authorities. This argument need not detain us any longer because the company has sought a reference under S. 25 of the Act. S. 25 reads as under :-
'Reference of Labour Court for declaration whether strike or lock-out is illegal :
(1) Where the employees in any undertaking have proposed to go on strike or have commenced a strike, the State Government or the employer of the undertaking may make a reference to the Labour Court for a declaration that such strike is illegal.
2) Where the employer of any undertaking has proposed a lock-out or has commenced a lock-out, the State Government or the recognised union or, where there is no recognised union, any other union of the employees in the undertaking may make a reference to the Labour Court for a declaration whether such lock-out will be illegal. Explanation - For the purposes of this Section recognised union includes a representative union under the Bombay Act.
3) No declaration shall be made under this section, save in the Open Court.
4) The declaration made under this section, shall be recognised as binding, and shall be followed in all proceedings under this Act.
5) Where any strike or lock-out declared to be illegal under this section is withdrawn within forty-eight hours of such declaration, such strike or lock-out shall not, for the purposes of this Act, be deemed to be illegal under this Act.'
10. S. 24 and 25 of the Act are covered by Chapter V whereas Chapter VI contains section 26 to 30 which deal with Unfair Labour Practices. In the present case we are not concerned with Chapter VI at all as the Company has made reference under S. 25(1) of the Act. If one peruses S. 25, it is clear that none of these four authorities have been referred to in this section much less giving any jurisdiction to make reference to the Industrial Court. On the contrary S. 25 of the Act authorises only the State Government or the employer to make reference. The submission of Shri. John has therefore no substance and must be rejected.
11. The learned single Judge while discussing as to whether Rule 22 is mandatory or directory has observed as follows :
'Now, it is well settled and we need not refer to any authority for this purpose that the use of the word 'shall' or 'may' by the Legislature or by the Government on the exercise of its rule making power is not decisive of the nature of the provision following these words. The provisions following the above word 'shall' may, if the circumstances so require be read as only directory and not considered mandatory. Similarly, if the occasion so warrants, the statutory provision following the word 'may' may be regarded as mandatory and not optional. Now, if the section i.e. S. 24(1)(a), Rule 22 and the Form I are considered in their totality, we find the following requirements...'.
12. We are completely in agreement with the construction placed by the learned single Judge on S. 24(1)(a). Rule 22 and Form I and we do not see any error whatsoever in the finding that Rule 22 is directory and not mandatory.
13. The learned single Judge has also tested the argument of the company in great detail to find out as to whether Rule 22 and Form I are mandatory or directory and we are in full agreement with the finding given by the learned single Judge. After going through the judgment of the learned single Judge we fully concur with the findings recorded therein and we do not see any error of law. The appeal is devoid of any substance and has got to be rejected.
14. Appeal is accordingly dismissed with costs.