S.K. Lodha, J.
1. Both these appeals arise out of a common judgment dated September 24, 1976 passed by the learned Single Judge by which he dismissed the writ petitions filed by the appellant. D.B. Civil Special Appeal No. 85 of 1976 arises out of a writ petition No. 61 of 1975 and D.B. Civil Special Appeal No. 86 of 1976 arises out of S.B. Civil Writ Petition No. 51 of 1975.
2. The facts in S.B. Civil Writ Petition No. 51 of 1975 out of which D.B. Civil Special Appeal No. 86 of 1976 has arises are these.
3. The Rajasthan Anu Shakati Pariyojana Sangh, Rawat Bhata (respondent-non-petitioner No. 1) and the (Union here in) is a registered and recognised Union functioning in the Rajasthan Atomic Power, Rawat Bhata. It is affiliated to C.I.T.U. It was formed for the first time in September 1974. It moved an application to the Chief Project Officer on September 30, 1974 for declaring some of its office bearers as 'protected workmen'. This application was filed after the time which is prescribed in Rule 61 of the Industrial Dispute (Central) Rules, 1957 (for short 'the Rules' here in). The Chief Protected Officer ('the Officer) rejected its application by his letter Anx. 1 dated October 11, 1974. Thereupon, the Union raised a dispute Under Rule 61(4) of the Rules by a written representation praying therein to declare some of its workers as 'protected workmen' as per the list furnished by the Union to the Officer. The Assistant Labour Commissioner (non-petitioner-respondent No. 2) accepted the representation of the Union and directed the officer to give recognition as 'protected workmen' at least to its six workers, Office bearers. The petitioner-appellant challenged this order of the Assistant Labour Commissioner by the written petition on the ground that Rule 61(1) is mandatory and as the application was filed after the expiry of the time limit provided in Rule 61 of the Rules and so the order passed by the Assistant Labour Commissioner is illegal and without jurisdiction. The Union filed the counter and raised various pleas. It was, inter alia, contended that Rule 61(1) of the Rules so far as it relates to the communication of the names before the 30th April every year is directory and not mandatory.
4. D.B. Civil Special Appeal No. 85 of 1976 arises out of S.B. Civil Writ Petition No. 61 of 1975. The Rajasthan Anu Shakati Pariyojana Karamchari Sangh is a recognised registered trade union functioning at Rajasthan Atomic Power Project' Rawat Bhata. It will here in after be referred to as 'the Sangh'. It submitted an application on June 26, 1974 for declaring some of its workmen whose names are mentioned in the application as 'protected men' in terms of Rule 61 of the Rules read with Section 33(4) of the Industrial Disputes Act (No. XIV) of 1947, which will for the sake of brevity here in after be referred to as 'the Act'. This application was rejected by the Chief Project Officer ('the Officer') by his letter Anx. 2 dated July 11, 1974. The ground for rejection was that the Sangh failed to submit the list of the workmen before April 30, 1974 for being declared as 'protected workmen'. The Sangh raised a dispute before the Assistant Labour Commissioner (Central) Kota (non-petitioner-respondent No. 2). 'The Assistant Labour Commissioner (Central) Kota (non-petitioner-respondent No. 2) issued a direction to the petitioner-appellant to give recognition to 12 to 13 members of the Sangh as 'protected workmen'. Against that the writ petition was filed on the ground that Rule 61(1) of the Rules is mandatory. No return was filed to the writ petition by the Sangh. However, in reply to the stay application it was contended that the provisions of Rule 61 in so far as it provided that before 30th April every year the names should be communicated is directory only, and that the petitioner-appellant itself has been recognising the workmen of the Sangh as 'protected workmen' on the application, although they were filed after 30th April in, the past i.e. in the years 1971 and 72. It was submitted that the rule relating to the filing of application communicating the names before 30th April every year should be construed as directory.
5. The learned Single Judge came to the conclusion that there was no manifest error of law in the impugned orders of non-petitioner No. 2 (respondent No. 2) when it directed the petitioner-appellant to give recognition to the workmen of the Union, and the Sangh as 'protected workmen' as the provision of Rule 61(1) are directory and the impugned orders are in consonance with the principles of substantial justice and to avert miscarriage of justice. He, therefore, dismissed the writ petitions by his judgment dated September 24, 1976.
6. Aggrieved, the petitioner-appellant has filed these appeals as aforesaid.
7. We have heard Mr. Rajendra Mehta, learned Counsel for the appellant and Mr. Rajesh Balia, for the Union and the Sangh (respondents in both the appeals).
8. The only point involved in these appeals is whether the provisions contained in Rule 61(1) providing time limit for filing the application (communication of the names of workman) for recognition as 'protected workmen' are directory as held by the learned Single Judge or mandatory as contended by the learned Counsel for the appellant.
9. Before we do that it will be profitable to read material part of Section 33 of the Act. It is as under:
Section 33. Conditions of the service, etc., to remain unchanged under certain circumstances during pendency of proceedings:
(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before (an arbitrator or) a Labour Court, Tribunal, National Tribunal in respect of an industrial dispute, no employer shall:
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or
(b) for any misconduct connected with the dispute, discharge or punish whether by dismissal or otherwise any workmen concerned of the authority before which the proceeding is pending
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workmen concerned in such dispute (or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workmen).
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workmen immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workmen;
Provided that no such workmen shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
(3) Not with standing anything contained in Sub-section (2), no employer shall during the pendency of any such proceeding in respect of an industrial dispute take any action against any protected workmen concerned in such dispute-
(a) by altering, to the prejudice of such protected workmen, the conditions of service applicable to him immediately before the commencement of such proceedings; or
(b) by discharging or punishing, whether by dismissal or otherwise, such protected workmen save with the express permission in writing of the authority before which the proceeding is pending.
Explanation:-For the purpose of this sub-section, a protected workman in relation to an establishment, means a workman who being (a member of the executive or otherwise office bearer) of a registered trade union connected with the establishments in recognised as such in accordance with rules made in this behalf-
(4) In every establishment, the number of workman to be recognised as protected workmen for the purpose of Sub-section (3) shall be one per cent of the total number of workman employed therein subject to a minimum number of five protected workman and a maximum number of one hundred protected workmen and for the aforesaid purpose, the appropriate Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recognised as protected workmen
(5) Where an employer makes an application to a conciliation officer, Board, (an arbitrator, a) Labour Court, Tribunal or National Tribunal under the proviso to Sub-section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, as expeditiously as possible, such order in relation thereto as it deems fit.
The Rules have been framed in exercise of the powers conferred by Section 38 of the Act. Section 38 of the Act deals with power to make Rules. Sub-section (1) is as follows:
(1) The appropriate Government may, subject to the condition of previous publication, make rules for the purpose of giving effect to the provisions of this Act.
Sub-section (2) of Section 38 is as follows:
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters; namely:
(a) the powers and procedure of Conciliation Officers, Boards, Courts, (Labour Courts, Tribunal & National Tribunals) including rules as to the summoning of witnesses, the production of documents relevant to the subject-matter of any inquiry or investigation, the number of members necessary to form a quorum and the manner of submission of reports and awards;..
Rule 61 of the Rules deals with 'protected workmen'. It is as under:
61. Protected workmen-(1) Every registered trade union connected with an industrial establishment to which the Act applies, shall communicate to the employer before the (30th April) every year, the names and addresses of such of the officers of the union who are employed in that establishment and who, in the opinion of the union should be recognised as 'protected workmen'. Any change in the incumbency of any such officer shall be communicated to the employer by the union within fifteen days of such change.
(4) The employer shall, subject to Section 33, Sub-section (4) recognise such workmen to be 'protected workmen' for the purposes of Sub-section (3) of the said section and communicate to the union in writing Within fifteen days of the receipt of the names and addresses under Sub-rule (]), the list of workmen recognised as protected Workmen (for the period of twelve months from the date of such communication).
(3) Where the total number of names received by the employer under Sub-rule (1) exceeds the maximum number of protected workmen admissible for the establishment, under Section 33, Sub-section (4), the employer shall recognize as protected workmen only such maximum number of Workmen
Provided that where there is more than one registered trade union in the establishment, the maximum number shall be so distributed by the employer among the union that the numbers of recognised protected workmen in individual union bear roughly the same proportion to one another as the member-ship figures of the unions. The employer shall in that case intimate in writing to the President or the Secretary of the union the number of protected workmen allotted to it:
Provided further that where the number of protected workmen allotted to a union under this sub-rule falls short of the number of officers of the union seeking protection, the union shall be entitled to select the officers to be recognized as protected workmen such selection shall be made by the union and communicate to the employer within five days of the receipt of the employer's letter
(4) When a dispute arises between an employer and any registered trade union in any matter connected with the recognition of 'protected workmen' under this rule, the dispute shall be referred to the Assistant Labour Commissioner (Central) concerned, whose decision thereon shall be final.
The precise question is whether communication of the names of the workmen to the employer before the 30th April every year is imperative as the word used is 'shall'. In other words whether time limit before the 30th April every year in Rule 61(1) is mandatory or directory. In case it is mandatory then if the communication is made after 30th April of the year, recognization can be refused. The Act has been promulgated to make provision for the investigation and settlement of industrial disputes and certain other purposes mentioned in it. It was rightly not disputed that the Act is a beneficial piece of legislation so far as the employees of the industrial establishments are concerned. The Act aims at protecting and safeguarding the interests of the workmen employed in an industrial establishment.
10. Now we proceed to notice principles of interpretation of such statutes. It will be profitable to extract the observation made in Crawford's Statutory Construction which are as follows:
While usually in order to ascertain whether a statute is mandatory or directory, one must apply the rules relating to the construction of statutes; yet it may be stated, as a general rule, that those whose provisions relate to the essence of the thing to be performed or to matters of substance, are mandatory, and those which do not relate to the essence and whose compliance in merely a matter of convenience rather than of substance, are directory.
Maxwell on the Interpretation of Statutes in Chapter XIII while dealing with 'Imperative and Directory Enactments' has stated that it is impossible to lay down any general rule for determining whether a provision is imperative or directory. Lord Campbell I.C. in Liverpool Borough Bank v. Turner (1860) 2 Re. G.F. & J. 502 said no universal rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience and that it is the duty of the courts of justice to try to examine the real intention of the legislation by carefully attending to the whole scopes of the statute to be considered. Lord Ponsace said in Howard v. Bodington (1877) 2 P.D. 203 'I believe as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case on that aspect decide whether the matter is what is called imperative or only directory.'
11. While dealing with the mandatory and directory statutes in Sutherland on Statutory construction Vol. III page 77 in para 5803 it has been stated that in determining the mandatory or directory character of a statutory provision, the problem as with other question of statutory construction is primarily one of ascertaining the intent of the legislature. It has been stated as follows:
But the better technique is to apply a liberal construction such as will effectuate the actual intent and purpose of the legislature, and to resort to judicial rules of construction only when there is no basis for ascertaining or implying the legislative intent.
In para 5804 under the head 'Purpose of The Act' the Author has stated in the aforesaid book that it can be stated as a general proposition that, as regards the question of mandatory and directory operation the Courts will apply that construction which best carries into effect the purpose of the statute under consideration and to this and the Courts may inquire into the purpose behind the enactment of the legislation requiring construction as one of the first steps in treating the problem. The ordinary meaning of the language may be over-ruled to effectuate the purpose of the statute. The learned Author has also expressed himself in these words 'no statutory provisions are intended by the legislation to be disregarded; but where the consequences of not obeying them in every particular are not prescribed, the courts must judicially determine them. In doing so, they must necessarily consider the importance of the literal and punctilious observance of the provisions in question to the object the legislature had in view'.
12. It will be profitable to consider the cases of the Apex Court of the country hearing on the question for our examination.
13. It was observed in State of U.P. v. Babu Ram : 1961CriLJ773 while dealing with the question relating to the rules of interpretation as under:
When a statute used the word 'shall' prima facie it is mandatory, but the Court may ascertain the real Intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Legislature the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the, provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and above all, whether the object of the legislation will be defeated or furthered.
14. In M/s Sainik Motors v. State of Rajasthan 0065/1961 : 1SCR517 it was held that ordinarily, though the word 'shall' is mandatory it can be interpreted as directory if the context and intention otherwise demands.
15. A question arose while considering the provision of Bihar Private Irrigation Workman Act (B&O;) (Mo. V of 1922) regarding its interpretation whether it is mandatory or directory and their Lordships observed in Collector of Monghyr v. Keshav Prasad AIR 1962 SC 1694 as under:
It is needless to add that the employment of the auxiliary word 'shall' is inconclusive and similarly the mere absence of the imperative is not conclusive either. The question whether any requirement is mandatory or directory has to be decided not merely on the basis of any specific provision which, for instances, sets out the consequences of the omission to observe the requirement, but on the purpose for which the requirement has been enacted particularly in the context of the other provisions of the Act and the general scheme thereof. It would, inter alia, depend on whether the requirement is insisted on as a protection for the safeguarding of the right of liberty of person or of property which the action might involve.
16. The interpretation of the words 'shall' and 'may' in a statute came up for consideration in State, of U.P. v. Manbodhan Lal : (1958)IILLJ273SC . It was observed as under;
The use of the word 'shall' in a statute, though generally taken in mandatory sense, does not necessarily mean that in every ease, it shall have that effect that is to say, that unless the words the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid. On the other hand, it is not always correct to say that where the word 'may' has been used, the statute is only permissible or directory in the sense that non-compliance with those provisions will not render the proceeding invalid.
17. In State of Mysore v. V.K. Kangan : 1SCR369 the Supreme Court has ruled as under:
The determination of the question whether a provision is mandatory or directory would, in the ultimate analysis, depend upon the intent of the law maker. And that has to be gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequences which would follow from construing it in one way or the other.
The tests were reiterated in Govindlal v. Agr. P.M. Committee : 1SCR451 in the following words:
The governing factor is the meaning and intent of the legislature, which should be gathered not merely from the words used by the legislature but from a variety of other circumstances and considerations. In other words, the use of the word 'shall' or 'may' is not conclusive on the question whether the particular requirement law is mandatory or directory. But the circumstances that the legislature has used a language of compulsive force is always of great relevance and in the absence of anything contrary in the context indicating that a permissive interpretation is permissible, the statute ought to be construed as peremptory.
18. From the aforesaid decisions it is abundantly clear that the court has to consider, inter alia, the nature and decision of the statute and the consequence that would follow from construing it one way or the other, the impact of other provision whereby the necessity of complying with the provision in question is avoided the circumstance that the statute provides for a contingency of the non-compliance with the provisions or is not visited by some penalty and whether the object of the legislation will be defeated or furthered. It is also clear that if the consequences of the failure to comply is provided by the statute itself there can be no manner of doubt that such statutory requirement must be interpreted as mandatory.
19. It has also to be remembered that Rule 61(1) of the Rules does not prescribe any period of limitation. It only provides time limit for communication of the names of the workmen for recognition as 'protected workmen' In Municipal Corpn. Bombay v. B.M.B.T. Worker's Union() Section 78(1)(d) of the Bombay Industrial Relations Act, 1946 (Act No. 11 of 1947) was examined. The provision of Section 78(1)(d) is to the effect that a Labour Court shall have power to require an employer where it finds that the order of dismissal discharge, removal, retrenchment, termination of service or suspension of an employee made by the employer was for fault of misconduct committed by the employee which came to the notice of the employer more than six months prior to the date of such order. The Supreme Court held that the use of the word 'shall' in a statute does not always indicate that the provisions are mandatory in character. It was further held that they are not mandatory and it does not provide a period of limitation and the Labour Court can consider whether the employee has shown sufficient cause for not passing the orders within a period of six months.
20. Section 17(1) of the Act was considered in Remington Rand of India v. The Workmen AIR 1968 SC 224. The publication of the award was beyond the fixed time and the question arose whether the award was invalid. It was held that a provision as to time in Section 17(1) of the Act is merely directory and not mandatory. The following may usefully be extracted:
A provision as to time in Section 17(1) in merely directory and not mandatory. Section 17(1) makes it obligatory on the Government to publish the award. The limit of time has been fixed as showing that the publication of the award ought not to be held up. But the fixation of the period of 30 days mentioned therein does not mean that the publication beyond that time will render the award invalid.
21. In a recent case in Balchand v. Municipal Corpn., Bhopal AIR 1953 SC 303 the question whether a particular provision is mandatory or directory was examined. The question that came up for consideration was whether Rule 9(j) of the Prevention of Food Adulteration Rules, 1955, providing a period of ten days is mandatory or directory. His Lordship O. Chinnapa Reddy has made the following illuminating observations:
There are no ready tests or invariable formulas to determine whether a provision is mandatory or directory. The broad purpose of the statute is important. The object of the particular provision must be considered. The link between the two is most important. The weighing of the consequence of holding a provision to be mandatory or directory is vital and, more often than not, determinative of the very question whether the provision is mandatory or directory. Where the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of.
It is, therefore, clear from Remington Rand of India's case (10), Municipal Corpn.'s case (9), and Balchand's case (11) that where a time limit is prescribed even then having regard to the intent of the legislature and the purpose for which statute has been made, make the time limit provision, directory. Rule 61(1) of the Rules does not prescribe a period of limitation. The provisions relating to the period of limitation are mandatory but where time limit is provided for doing a particular act or taking a particular action, then in the absence of the consequences provided for failure to do that act or take action within that time limit, the provision is to be construed directory. It may be stated that the negative words have not been used and the use of the word 'shall' in the context, keeping in view the legislative intent and the purpose for which the statute has been framed cannot be construed as mandatory.
22. The Tamilnadu Cultivating Tenants Protection Act, 1955 is a beneficial legislation for granting security of tenure to cultivating tenant of the agricultural lands. Its provisions contained Sections 3, 4(a) and 4(b) came up for interpretation in Chinummerkaihin v. Ayyavoo : 2SCR146 . Their Lordships observed as under:
It was a beneficent legislation for granting security of tenure to cultivating tenants of agricultural lands. It is a well settled canon of construction that in constraining the provisions of such enactments the court should adopt that construction which advances, fulfills and furthers the object of the Act rather than the one which would defeat the same and render the protection illusory.
23. Section 33(3) of the Act gives protection to 'protected workmen'. It appears that the legislature is anxious for the growth and development of the trade union movement to ensure for the protected workmen complete protection against every kind of order of discharge of punishment. The other object that appears to be is to enable the workmen to have a collective bargaining strength to countenance unwarranted victimization and to give fillip to their collective bargaining power with their employer. Thus the whole purpose and object behind Section 33(3) and (4) of the Act is for the benefit of the workmen so as to give them blanket protection from unwarranted victimization to act without fear to raise legitimate demands regarding their employment before the employer. The 'protected workmen' are immune from being retrenched, terminated or dismissed while the dispute or reconciliation proceedings are pending between the Union and its employer. The Act is a social and economic legislation and is not to be interpreted, narrowly no as to defeat its object. Keeping this object of Section 33(3) and Section (4) in view, we have to examine whether the provisions of Rule 61(1) regarding communication of the names before 30th April every year are to be construed as mandatory. The registered union is required to communicate to the employer the names & addresses of the officers of the Union before April 30, every year who are to be recognised as 'protected workmen'. The employer has to communicate Under Rule 61(2) within fifteen days of the receipt of the names and addresses under Sub-rule (1), the list of workmen recognised as 'protected workmen' for the period of twelve months from the date of such communication. This shows that recognition which is granted by the employer to the workmen/officers of the Union as 'protected workmen' is for a period of twelve months from the date of the communication by the employer. The communication of the names by the registered trade union connected with an establishment for recognition as 'protected workmen' is for the benefit and advantage to the Union. We give some illustration to show that if it is interpreted mandatory, it will defeat the very purpose and object of the Act. Suppose a defective application (communication) is made by the registered trade union for recognition of officers workmen as 'protected workmen's before 30th April of a particular year. The defects are removed after a laps of five months by the registered trade union and it becomes a proper application (communication). Thereafter the employer communicates the names of the officers/workmen to whom it has recognised as 'protected workmen' within fifteen days. This takes place some where within six months after the filing of the application before 30th April. The names so approved are according to Rule 61(2) of the Rules. If the provision under consideration is construed as mandatory then the list of recognised workmen /officers as 'protected workmen' will be for six months only which is not the intention of the legislature. Let us take another example. Suppose Union comes into existence on 1st May of a particular year i.e. after the prescribed time and the Union communicates for recognition some of its office bearer as the 'protected workmen'. If the provision regarding communication before the 30th April every year is mandatory, the prayer has to be refused. Then in that case such Union cannot ask for the recognition of the protected workmen, for at least one year. These illustrations have been given to show that if the provisions of Rule 61(1) regarding communication before the 30th April every year are construed mandatory then it is bound to result in mischief to the workmen for whose benefit Section 33(3) and (4) and Rule 61(1) have been enacted.
24. The upshot of the discussion is:
(a) that Rule 61(1) does not prescribe any period of limitation but time limit has been fixed for the convenience of the registered trade union. It is not a matter of substance nor does it relate to the essence of the matter.
(b) that no consequence or penalty has been provided for failure to comply with the time limit.
25. Our attention was drawn by the learned Counsel for the appellant to S.R.N. Service v. I.T. Commr., Hyderabad (13) and In re Srinivasala Naicker (14). We have read these authorities. For non-compliance, penal consequences were provided in the provisions which come up for consideration and examination. The authorities relied on by the learned Counsel are of no avail.
26. We are of considered opinion that the provisions contained in Rule 61(1) of the Rules for communicating the names of officers of the Union for recognition as 'protected workmen' before 30th April of every year are directory and not mandatory. It follows, therefore, that no valid exception can be taken to the action of the Assistant Labour Commissioner who entertained the application of the Union after 30th April. In our opinion, the writ petitions were rightly dismissed by the learned Single Judge.
27. The result is that both the appeals fail and are hereby dismissed.
28. We leave the parties to bear their own costs.