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Shankar Mahadeo Charpe Vs. S.S.H. Qazi and Others - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberW.P. No. 1087/83
Judge
Reported in(1985)IILLJ94Bom; 1984MhLJ615
ActsTrade Unions Act, 1926 - Sections 28
AppellantShankar Mahadeo Charpe
RespondentS.S.H. Qazi and Others
Excerpt:
.....the complaint for failure to comply with the requirement of filing an application for condonation of delay along with the..........act must be filed along with the original complaint.2. briefly the facts are that the petitioner filed a complaint under s. 28 of the act on 7th september, 1981 challenging the order of the respondent no. 1 dated 5th june, 1981 withholding increments, as an unfair labour practice under the act. according to the petitioner, the impugned order dated 5th june, 1981 is communicated to him on 8th june, 1981. it is not in dispute that the petitioner did not file a separate application for condonation of delay along with his original application which he filed on 7th september, 1981. a separate application for condonation of delay was filed on 21st april, 1982. on a preliminary objection being raised on behalf of the respondent under the aforesaid regulation 101 of the act, the complaint of.....
Judgment:
ORDER

1. A short question that arises in this writ-petition, arising out of the proceedings initiated under the provisions of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 (for short the 'Act'), is whether it is mandatory under regulation 101 that an application for condonation of delay in filing the complaint under S. 28 of the Act must be filed along with the original complaint.

2. Briefly the facts are that the petitioner filed a complaint under S. 28 of the Act on 7th September, 1981 challenging the order of the respondent No. 1 dated 5th June, 1981 withholding increments, as an unfair labour practice under the Act. According to the petitioner, the impugned order dated 5th June, 1981 is communicated to him on 8th June, 1981. It is not in dispute that the petitioner did not file a separate application for condonation of delay along with his original application which he filed on 7th September, 1981. A separate application for condonation of delay was filed on 21st April, 1982. On a preliminary objection being raised on behalf of the respondent under the aforesaid regulation 101 of the Act, the complaint of the petitioner under S. 28 of the Act was dismissed on the ground that it is barred by time and his application for condonation of delay cannot be considered as it is not filed along with the original complaint.

3. It is at this stage worthwhile to note that the Industrial Court Regulations 1975, framed under S. 339 of the Act are for regulating the procedure before the Industrial Court in the proceedings initiated before it under the Act. The relevant regulations which come into play at the time of filing or initiation of proceedings before the Industrial Court under the Act are Regulations 5, 5A, 100 and 101. The reliance is placed by the Industrial Court for its view upon the provisions of Regulation 101 which are reproduced below for the sake of convenience.

'Regulation 101. If a complaint under S. 28 covers any unfair labour practice which occurred more than 90 days before the complaint was filed, the complainant shall file along with the complaint a separate application for condonation of delay. That application shall disclose separately and specifically each unfair labour practice which occurred more than 90 days before the complaint was filed and in respect of which condonation of delay is sought, the date of occurrence thereof and the reasons for condonation of delay in respect thereof. Such an application shall be supported by an affidavit.'

4. The learned counsel for the respondent has brought to my notice the provisions of Regulation 100 which provide that a complaint under the Act has to be in form 19. Form 19 provides in paragraph 5A that there shall be a declaration by the complainant whether the complaint is filed within 90 days or not. Relying upon the said provision, it is contended on behalf of the respondent that it is obligatory upon the complainant to make a declaration about limitation and if his complaint is not within time, to file a separate application for condonation of delay along with the complaint as provided in Regulation 101. On the other hand, the learned counsel for the petitioner has brought to my notice the procedure which has to be followed on the complaint being filed under the Act. According to him, Regulation 5 provides for scrutiny of the application and item 4 therein relates to the question of limitation. Further, Rule 5A(a) provides that if on verification of the complaint any short comings or lacuna are found, the Court can direct the petitioner to remedy the defect or comply with the requirements which have not been complied with within a specified time. The learned counsel for the petitioner, therefore, contends that the provisions of Regulations 5, 5A should be read with Regulation 101 and if thus read, the requirement of filing a separate application along with the complaint is not a mandatory requirement under Regulation 101.

5. In my view, the contention raised by the learned counsel for the petitioner has to be upheld. Procedure is handmaid of justice and not its master. Procedural provisions, therefore, should not be construed strictly so as to defeat or to preclude the determination on merits of the causes of the litigants on the basis of the technicalities of the procedural law. Reading Regulation 101 along with the Regulation 5 and 5A, it is clear that the provisions of Regulation 101 are directory in nature. Normally, it is expected under regulation 101 that a separate application for condonation of delay should be filed along with the complaint, but the same cannot be a hard and fast rule because there may be circumstances in which an occasion to file an application for condonation of delay may arise at a later stage, particularly when it is not revealed at the time of filing the complaint that the complaint is barred by time. It must, therefore, be held that compliance with the filing of a separate application along with the complaint in Regulation 101 is not mandatory. The very fact that the Court has the power to grant time to remedy the defect found on examination and verification of the complaint, viz., non filing of a separate application for condonation of delay in the instant case, as provided in Regulation 5A(a), cuts against the construction that the said provisions in Regulation 101 is mandatory.

6. It is true that the word used is 'shall' in Regulation 101. It is well settled that the use of the word 'shall', in a statute does not mean that in every case the provision is mandatory. No general rule can be laid down to find out whether a particular provision of a statute using the word 'shall' is mandatory or directory because the determination of the said question depends upon the facts of each case and in particular on a consideration of the purpose and object of the enactment. The purpose of which the provision has been made, the object to be attained, the intention of the legislature in making the provision, the serious inconvenience or injustice which may result in treating the provision one way or the other, the relation of the purpose to which may result in treating the provision one way or the other, the relation, of the provision to other consideration which may arise on the facts of any particular case are some of the relevant factors to be taken into consideration to determine whether a particular provision is mandatory or directory. The two main considerations for regarding the rule as directory are (i) absence of any provision for the contingency of any particular rule not being complied with or followed, and (ii) serious general inconvenience or prejudice to the general public would result if the act in question is declared invalid for non-compliance with the particular rule.

7. Regulation 101 or any other regulation does not provide a consequence of dismissal of the complaint if there is non compliance with Regulation 101. On the contrary, the Regulation 5 and 5A show that if there is such a defect of non filing of a separate application for condonation of delay, time can be granted to the petitioner for remedying the defect. It is only on failure to remedy the defect within the time granted under Regulation 5A(a) that the power is conferred upon the Industrial Court under Regulation 5A(b) to reject the complaint. There is, thus, no automatic dismissal of the complaint for failure to comply with the requirement of filing an application for condonation of delay along with the complaint. In the context of the aforesaid provisions of Regulations 5, 5A(a) & (b), even though the word used is 'shall', the provisions of Regulation 101 cannot be construed as mandatory so as to entail dismissal of the complaint, on its non compliance, on the ground that a separate application for condonation of delay was not filed along with the complaint.

8. In the result, the writ-petition is allowed. The impugned order of the learned Industrial Court dated 21st January, 1983 is quashed and set aside. The learned Industrial Court is directed to consider the application of the petitioner for condonation of delay on merits and, if allowed to decide the complaint case according to law. Rule made absolute. No order as to costs.


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