1. This appeal arises out of a civil petition No. 61/48-49 filed before this Court by the respondent under Section 45, Spe-cific Relief Act, praying for the issue of a Writ in the nature of Mandamus directing the Commissioner of Labour in Mysore to ascertain from the Mysore Iron and Steel works, Bhadravathi, whether certain demands of the respondent made under Section 10(3) of the Mysore Labour Act 1942 would be agreed to by the said Iron and Steel works. The learned Judge of this Court who heard the petition passed an order directing the issue of a writ as prayed for. It is against that order that this appeal has been preferred.
2. The respondent in this case is the Mysore Iron and Steel Works Labour Association. It is a registered body that came into existence under the provisions of Section 3, Mysore Labour Act which came into force in January 1942. In pursuance of Section 9(2) of the Labour Act, the standing orders of the Mysore Iron and Steel Works were settled by the Commissioner of Labour on 14-11-1942. In the meantime, the State Legislature passed another Act known as the Mysore Essential Services (Maintenance) Act in July 1942 making provision for the maintenance of certain essential services. This act is made applicable to all employment under the Government and power is reserved under Section 3 of the said Act to make it applicable to any employment or class of employment which the Government being of opinion that such employment or class of employment is essential for securing the Defence of India, the public safety, the maintenance of public order or the efficient prosecution of war or for maintaining supplies or services necessary to the life of the community. By a notification dated 17-9-42 the Government have made the Essential Services Act applicable to the Mysore Iron and Steel Works which is a Government concern under Section 3 of the said Act. Subsequently on 5-1-1945, the Government directed that for purposes of regulating the wages and conditions of service of persons employed in the said Works, the standing orders as settled by the Commissioner of Labour under Section 9, Mysore Labour Act 1942 be treated as rules framed under Section 6, Essential Services Maintenance Act. The said rules continued to be in force for some years and the respondent-Association is deemed to have acquiesced in the same.
3. On 24-3-1948 the respondent-Association gave notice through its President to the General Manager, Mysore Iron and Steel Works, Bhadravathi, under the provisions of Sub-section (2) of Section 10, Mysore Labour Act, desiring a change in the existing standing orders and other industrial matters in accordance with the statement appended in the annexuro thereto. Copies of notice of change were also sent to the Commissioner of Labour in Mysore and the Registrar of Associations in Mysore. The Labour Commissioner who is the appellant in this case is said to have sent a reply dated 30-3-1948 inviting the attention of the petitioner therein to Government Order No. S. R. 2971-78 L. W. 124-47-3 dated 28-2-1948 and stating that in the circumstances mentioned in the said Government Order the notice of change could not be negotiated by the Commissioner of Labour in accordance with the provisions contained in the Mysore Labour Act. The petitioner thereupon wrote to the Secretary to Government, General Department, and sent copies thereof to the Chairman, Mysore Iron and Steel Works, Bhadravathi, and the Minister for Law and Labour in Mysore, Bangalore. As he did not get the relief he sought for, he filed the petition on 20-12-1948 as stated above.
4. At the outset, the learned Advocate-General on behalf of the appellant urged that a petition to enforce a writ does not lie as the provisions of the Labour Act do not Invest the petitioner with any legal right, the performance of which he coulddemand. This contention does not appear to have much force. It is undoubted that 'The prosecutor must be clothed with a clear legal and equitable right to something which is properly the subject of the Writ, as a legal right by virtue of an Act of Parliament'. (Vide 'The Queen v. Guardians of The Lewisham Union', (1897) 1 Q. B. 498)But if the law casts a duty upon the authority to do something and the performance thereof is demanded and denied, such 'a mandatory duty may be enforced although the relator will not be benefited (Vide Ex parte Jordon (1877) 94 U. Section 248 Cyclopedia of Law and Procedure, Vol. 26, page 149). In the present case, there has been a clear demand and a failure on the part of the Labour Commissioner to comply with the terms of it, for Section 10(3), Mysore Labour Act lays down
'The Commissioner shall ascertain within 15 days after the receipt of such notice whether the proposed change is mutually agreed to between the employer and the Association and if agreed to, send a copy relatingxto the change to the Registrar for registering it in the Register of Agreements and inform both parties. In case of agreement not being reached within 15 days, he shall repoi't to the Chief Conciliator for initiating conciliatory proceedings under this Act'.
The Labour Commissioner has failed to comply with what in effect is a mandatory duty cast upon him.
5. The next and the most important question for consideration in this appeal is whether the provisions of the Mysore Labour Act could be invoked by the respondent in view of the express application of the Essential Services (Maintenance) Act to the Bhadravathi Iron Works. The latter Act is a susequent piece of legislation but it does not repeal the Labour Act. It is undisputed that if both the Acts are in force, the provisions contained in the subsequent Act gain in precedence and importance over similar provisions contained in the earlier Act.
6. At this stage it is somewhat strenuously urged by the learned Counsel for the respondent that the Mysore Labour Act is a Special Act and that the subsequent enactment viz., the Essential Services Maintenance Act is a General Act and that the provisions of the Special Act will control the general provisions according to the general maxim 'generalia specialibus non derogant' (General provisions do not derogate from special provisions). What is a general statute and what a special statute is often a question of difficulty to solve in most cases; but the classification has to be made with reference to the context in each case and the subject-matter dealt with by each statute. As Justice Ramesam has pointed out in 'Gunpally Tham-mayya v. Viswanatha Mallapuraj', AIR (17) 1930 Mad 963, most Acts can be classed as General Acts from one point of view and Special Acts from another. For example, it may be argued as he says that the Contract Act which is applicable to all is general in relation to the Labour Act which is limited to the relationship of the employer and the employee; and in another sense the Labour Act which applies to all concerns will be general in relation to the Labour employed in concerns engaged in supplies as essentials. In this case looking at the preambles to the two Acts, it may be said with more justification that in the particular context the Labour Act Is a general Act and the Essential Services Act is a Special Act. The preamble to the Labour Act seeks to make provision for the organization of the employees and the promotion of their welfare and is broadly concerned with labour problems in all departments and concerns, and in this sense the Act may be called a General Act. On the other hand, the Essential Services Act as its very title signifies and in this sense is more narrowed and restricted as compared with the other Act may be properly considered to be a Special Act. It is contended that these provisions provide only for making rules to regulate the wages and that what was claimed in the notice of change by the respondent-Association is the Inclusion of demands other than wages. At any rate, it is not denied that some of the demands touch the question of wages also. Regarding the other demands, it is urged that they fall under 'Industrial matter' which includes not merely the regulation of wages but all other matters concerning the interest and welfare of the labour community as a whole; the expression 'Industrial matter' is defined by Section 3(ii) as under
'3 (ii) 'Industrial matter' means any matter relating to work, pay, wages, reward, hours of work, privileges, rights or duties of employers and employees or the mode, terms and conditions of employment or non-employment and includes
(a) all matters pertaining to the relationship between employers and employees or to the dismissal or non-employment of any person :
(b) all matters as to the demarcation of functions of any employees or classes of employees : (e) all matters pertaining to any right' or claim or under or in respect of or concerning an agreement, settlement or award made under this Act; and
(d) all Questions of what is fair and right in relation to any industrial matter, having regard to the interest of the person immediately concerned and of the community as a whole'.
7. The crux of the question is whether these matters could or could not be regulated under the provisions of Section 6, Essential Services (Maintenance) Act. Looking at the clear provisions of the Act and in the light of the above discussion, we have) no hesitation in holding that the expression 'other conditions of service' mentioned in Section 6, Essential Services (Maintenance) Act, is comprehensive enough not to exclude most of the matters falling within the definition of 'Industrial matter'. In this view, the provisions of the Labour Act cannot be made applicable where the Essential Services Maintenance Act contained similar provisions :
'As a rule, general provisions do not derogate from special provisions, but that the latter do derogate from the former'. (Vide 'Natesan Chetty v. Soundararaja', 21 Mad 141).
Where a Special Act is made after the General Act,the resulting position will be as observed by ReillyJ. in 'Corporation of Madras v. Madras ElectricTramways Ltd.' A. I. R. (18) 1931 Mad 152
'Having made the general Act if the Legislatureafterwards makes a special Act in conflict withit, we must assume that the Legislature had inmind its own general Act when it made thespecial Act and made the special Act, which Isin conflict with the general Act, as an exceptionto the General Act.'
A special Act on the same subject passed subsequently where an earlier general Act deals with the same matter the special Act constitutes an exception to the general enactment. The Essential Services (Maintenance) Act gives exclusive jurisdiction to the Government and clearly indicates the intention of the Legislature that the special questions which are made the subject of a particular legislation shall be tried according to the procedure established by the Act and in no other manner. In 'Mamtazul Huq v. Nirbhai Singh', 9 Cal 711, it has been held that an express provision in a special Act overrides any provision of a general Act incorporated or introduced into the former Act, even if the effect be to render the provision of the latter Act wholly inoperative. The provisions ofthe Labour Act cannot be made applicable where the Essential Services (Maintenance) Act contain similar provisions.
8. It is next urged by the learned Counsel for the appellant that no Writ could be issued after the expiration of the time prescribed for performance. The writ does not lie before but only after default in the performance of a ministerial duty. If it is considered a good defence to allege that the time fixed for performance of such a duty has passed, then it may be tantamount to holding that a public official could by merely delaying to take action within the time prescribed by law, defeat the intention of the legislature; but, ordinarily the rule is applicable unless the mala fides of the authority regarding the delay being intentional is otherwise established. In this case, the refusal to comply with the terms of the demand was notified by the Labour Commissioner on 30-3-1948 within the prescribed period of fifteen days. Yet, no action was taken by the petitioner till as late as 20-12-1948 when he filed the petition. The delay of nearly nine months must be considered to be very inordinate, specially when it is viewed in the light of the fact that for performing the duty a period of only fifteen days is prescribed from the date of notice. In Corpus Juris (Vol. 38, para 26, page 555) under the Chapter 'Mandamus', it is stated as follows
'Ordinarily, it is no objection to the issuance of the writ that the time for the performance of the duty is past, since it is only in case of default in performance at this time that the writ can issue. However, although the opposite view has been taken in some cases, generally it has been held that, where the time within which performance may be lawfully had is fixed by statute, mandamus will not lie to compel the performance of such act after the expiration of the time so limited. In any event mandamus will not issue after the time for performance has passed where the issuance of the writ would be nugatory and unavailing.'
In 'Stepney (Borough of) v. John Walker & sons Ltd. 1934 AC 365 at p. 395, Lord Wright makes similar remarks and observes that the time fixed for performance is peremptory and not directory and that the matter cannot be decided on the basis of 'retroactive effect', of any final order. In this view also, the petition should fail, though it is unnecessary for the purpose of this case to base the decision upon that point.
9. A number of Acts like the Trade Union Act, The Industrial Standing Orders Act and the Industrial Disputes Act of the Central Government touching questions of labour and other allied matters as throwing light on the question in dispute were brought to our notice. These Acts which were recently applied to this State are not of much avail as the matter in dispute arose in 1948 and is essentially governed by the then Acts of local legislation.
10. In the result, we hold that the petitioner should look to and be governed by the Essential Services Act and the similar provisions in the Labour Act cannot have any force. The appeal is accordingly allowed and the petition is dismissed. (Advocate's fee Rs. 100/-).
11. MALLAPPA J.: I agree. There is hardly any doubt that if the provisions of the Labour Act had not been superseded by Essential services (Maintenance) Act made applicable to the Mysore Iron & Steel Works, the appellant i.e. the Labour Commissioner in Mysore can be said to have failed in his duty in not ascertaining within 15 days after the notice issued by the Respondent whether the proposed change is mutually agreed to between the employer and the employees. But it is equally clear that the Essential Services (Maintenance) Act enacted later than the labour Act has superseded the latter Act. It is so as the Essential Services (Maintenance) Act is a special enactment compared to the Labour Act which is comparatively speaking a general enactment. Essential Services (Maintenance) Act is a special enactment intended to enable the Government to secure employment es-sential for the defence of India and other purposes mentioned in the enactment, unless the Government made it applicable to such essential services as in their opinion is essential for defence of India etc., the Labour Act would be applicable. The Government made the Essential Services (Maintenance) Act applicable to the Mysore Iron & Steel Works and it must be said that with refer-ence to the employer and employees the Essential Services (Maintenance) Act superseded the provisions of the Labour Act and as such the Labour Commissioner was not bound to ascertain within 15 days after the notice issued by the Respondent whether the mutual change proposed was agreed to between the employer and employees.
12. The duty if any had to be performed within 15 days. The question that arises is whether a writ can be issued even after the time fixed for its performance. The answer is that ordinarily the expiration of the time fixed for performance does not come in the way of the issue of a writ. The reason is that
'The writ does not lie before, but only after default in the performance of a ministerial duty.... and if it be a good defence to allege that the time fixed for its performance has passed, it is evident that the very ground upon which you must base your application for the writ becomes a sufficient reply to the alternative writ when granted'. McConihe v. State', 17 Fla 238.
Again as observed in 'State v. Chouteau County', 44 Mont. 51, 70: 118 P 804,
'To say that the Courts are helpless to compel performance of such a duty, merely because the time within which the duty should have been performed has elapsed, is tantamount to holding that a public official, by delaying action until the time designated by law for action has expired, may defeat the will of the people as expressed by the legislature, and that there is not any redress for those who are injured by such non-action'.
This is not a case in which it can be said that the expiration of 15 days' time alter the issue of notice fixed for the performance of the duty comes in the way of the issue of a writ as it cannot be said that issuance of the writ would be nugatory and on-availing. Even if the Labour Commissioner now takes steps which he was bound to take within 15 days, the respondents will get relief. It is true that the time of 15 days within which it had to be performed is past but as observed in 'State v. Philips', 98 Mo 570, 573 : 10 SW 182,
'The supreme Court has power to command the performance of a neglected duty, and although your neglect has rendered you powerless to do it upon your own motion, its command carries with it the power to do the act required. The constitution has placed no such restriction of time upon the exercise of its power to command the performance of neglected duty, and when that duty is performed, under its mandate, it is by virtue of and in obedience to the power of that mandate and not sua sponte, by virtue of the power given by the constitution which created the duty which has been neglected. The provisions of the constitution enacted for the purpose of securing a prompt performance of a duty by prescribing a period of time within which it must be done, cannot be defeated by delay to performthat duty until the allotted time has expired. ........'
It is true that as observed by Lord Wright in 'Stepney (Borough of) v. John Walker & Sons, Ltd., 1934 A. C. 365 at pages 398 and 399,
'.....It was contended that when in April,1932, the appellants refused to do so, they were guilty by relation back of a breach of duty, which the Court ought to enforce by mandamus, though the time for performance has passed. I think the argument is fallacious. 'It is true that in certain cases a writ of mandamus may issue to perform a duty for which the time of performance fixed by law has passed.' What difficulties may be involved in such a course is shown by the judgment in the 'Mayor of Rochester v. The King', (1858) E1 B1 & E1 1024, where the successor of the delinquent Mayor was ordered to revise the burgess list of the previous year; in the Exchequer Chamber, Crowder and Williams JJ. thought the writ should not go, the Lord Chief Baron and Martin B. thought it should; with these latter Willes J. only agreed with grave doubts. But the same course has been taken in other cases, for instance, in 'Rex v. Hanley Revising Barrister', (1912) 3 K.B. 518, whereby inadvertence voters had been left on the lists whose names the revising barrister had ordered to be struck off. In these and similar cases the duty had not been fulfilled and the Court has held, it may be with justification, that the statutory times are merely directory and that it is more in accordance with the intent of the statutes that the act should be done, though out of time, than not be done at all. I cannot, however, apply this way of looking at things to such a case as the present, because the retroactive revision of the Valuation List, save as the statute provides, would in my judgment be contrary to the whole purpose and effect of the legislation. 'Times are here peremptory, not directory.....'
13. In this case, however, the time of 15 days axed is merely directory and not peremptory. 15 days time is fixed in order that the Labour Commissioner might give relief within a short time. This would be a fit case for issuing a writ in spite of the fact that 15 days' time flxed is over, unless ihe writ cannot be issued for other reasons.
14. As already observed, one such reason is that the Labour Act itself has ceased to be applicable as the Essential Services (Maintenance) Act is made applicable. Other reasons may also be given. As observed in 'Conn v. Richmond', 17 Cal A 705, 121 P 714, 719,
'A limitation of this rule has been recognized to the effect that mandamus may issue, notwithstanding the expiration of the time within which performance may be had where the requirements and purposes of the law have been disregarded and defeated of their own volition by respondent.'
In this case, however, all that could be said is that it was possible for the respondents to apply for a writ within the expiration of 15 days' time within which the Labour Commissioner had to take action. It is not a case, however, in which the respondent was not informed within 15 days that the Labour Commissioner would not take action under Section 10(3) of the Labour Act. Notice was sent on 24-3-48. A reply refusing to take action was sent to Respondent on 30-3-48. He failed to apply for a writ within 15 days' time within which alone the Labour Commissioner had to take action under Section 10(3) of the Labour Act and is thus responsible for the lapse of time within which the Labour Commissioner could have been directed to take action.
15. The issue of a writ Is a matter of discretion. Long delay in the filing of an application for a writ is a good reason for refusing to exercise the discretion in favour of the applicant. In this case the applicant not only failed to apply for a writ within 15 days' time within which the Labour Commissioner had to take action under Section 10(3) of the Labour Act but also waitea to apply for a writ for about 9 months more. It was contended that a number of other enactments have since come into force, and the Labour Act is no longer applicable. This, however, does not require any consideration in view of the fact that there are sufficient other circumstances to justify the refusal of a writ in this case. The appeal is therefore allowed and the order directing a writ is set aside.
16. Appeal allowed.