M.L. Joshi, J.
1. In these two writ petitions the common question that arises for consideration is as to whether Rule 61(1) of Industrial Disputes Rules (Central) which prescribes time for filing application for recognition of a workman as a 'protected workman' is a Mandatory or is a directory one. The petitions are therefore being disposed of by a common judgment.
2. In order to appreciate the point of controversy it will be appropriate to give first the material facts of both the petitions in brief.
S.B. Civil Writ Petition No. 51/75.
3. Rajasthan Anushakti Karamchari Union is a registered & recognised trade union functioning in the Rajasthan Atomic Power Project, Rawatbhata. This Union is affiliated to CITU, This Union was formed for the first time in September, 1974 The Union moved an application to the Chief Project Officer on 30-9-74 for declaring some of its office bearers as 'protected workmen'. Admittedly this application was filed after the time prescribed by Rule 61 of the Industrial Disputes (Central) Rules, hereinafter called 'the Rules'. The application was rejected by the Project Officer by his letter dated 11.10.74. The Union then 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 Project Officer. The Assistant Labour Commissioner accepted the representation of the Union and directed the Protect Officer to give recognition as a 'protected workman' atleast to its six workers, office bearers. The petitioner has challenged this order of the Assistant Labour Commissioner by this writ petition on the grounds mentioned therein. The respondent has filed the return wherein it has taken the plea that the writ petition is bad on account of non-joinder of necessary parties, that the petitioner has been guilty of suppression of material facts and so the writ petition deserves to be rejected on the score also and further that toe time prescribed in Rule 91(1) of the Rules is not absolute but has been fixed as a matter of mere convenience and to that extent Rule 61(1) is directory and not mandatory.
S.B. Civil Writ Petition No. 61/75:
4. The Rajasthan Anushskti Pariyojna Karamchari Singh is also a recognised registered trade union functioning at Rajasthan Atomic Power Project, Rawatbhata. It submitted an application on 26-6-74 for declaring some of its workmen named in the application as 'protected workmen' in terms of Rule 61 of the Rules read with Section 33(4) of the Industrial Disputes Act. This application was rejected by the Chief Project Engineer by his letter dated 11-7-74 on the ground that the petitioner failed to submit the list of workmen for being declared 'protected workmen' within the time prescribed i.e. before 30-4-74. The petitioner then raised the dispute before the Assistant Labour Commissioner (Central), Kota who substantially accepted the representation of the respondent No. 1 by issuing a direction to the petitioner to give recognition to 12 to 13 members of the petitioner as protected workmen. It appears that no return was filed by the contesting respondents i.e. Karamchari Sangh in the writ petition. However, reply given to the stay application in which it was contended that the provisions of Rule 61 so far they fix 30th April as the date for filing the application under that rule is directory only, that the petitioner itself has been recognising the workmen of the Karamchari Sangh as 'protected workmen' on applications although they were filed after 30th April of the year in the past i.e. in the years 1971 and 1972, It has, therefore, been contended that the rule relating to the filing of the application before 30th of April should not be construed in a rigid manner.
5. Mr. L.R. Mehta appearing on behalf of the petitioner has put forth the following contention in support of the writ petition.
(1) Rule 61(1) of the Rules is mandatory and it is obligatory on the past of the trade union seeking recognition for its office bearers of the status of a 'protected workmen' to move, an application to the employer by 30th April of each year;
(2) that the applications of both the Unions were moved after 30th April and therefore, the petitioner could not be compelled to declare their workers as 'protected workmen'
(3) that the Assistant Labour, Commissioner (Central) Kota had no jurisdiction to entertain the dispute of this nature under Sub-clause (4) of Rule 61 of the Rules, and.
(4) that the Assistant labour Commissioner had no jurisdiction to entertain a time-barred application.
6. In reply to the above contentions learned Counsel for both the trade unions have put forth the following contentions.
(1) That the Industrial. Disputes Act is a socio-economic legislation and is principally meant for the benefit of the, workmen and has to be interpreted, in a manner so as to advance the object of the Act as intended by the legislature.
(2) That Rule 61(1) is merely directory as no penal consequences for its non-compliance have been provided either in the Act or under the Rules framed thereunder.
7. Before ideal with the contentions on merits I may here notice the following preliminary, objections raised on behalf of the non-petitioner trade union:
(1) That the workmen whose names were given in the application for declaring them as 'protected workmen' are necessary parties and in their absence the writ petition cannot proceed.
(2) That the writ petition No. 51/75 is liable to be rejected as the petitioner deliberately concealed material facts.
(3) That Rule 61(1) is a rule of limitation and could not be provided under the Rules as the period of limitation could be prescribed in the Act only.
8. Taking up the first preliminary objection I may at once say that no relief is being asked against the particular workman by the petitioner. The respective trade unions had moved the Assistant Labour, Commissioner for granting relief. The unions only were the parties before the Assistant Labour Commissioner and it was on their representations that the Labour Commissioner had passed the impugned orders No relief having been asked against the particular workmen, it is futile to contend that they are necessary parties. The writ petition can very well be decided in their absence as Union at whose instance the impugned orders have been passed are already party in the writ petition. The preliminary objection in this behalf is, therefore, turned down.
9. Coming to the next preliminary objection that the petitioner is guilty of suppression of material facts in writ petition No. 61/75, it may be stated that the alleged mis-representation pointed out in reply to the writ Petition No. 51 of 1975 has to bearing on the result of the writ petition. Every mis-representation does not warrant the dismissal of the writ petition. Having locked into para 15 and 18 of the writ petition No. 51/75, f am fully satisfied that there is no deliberate suppression or concealment of material facts This preliminary objection has, therefore, no force either.
10. The last preliminary objection is that Rule 61 Sub-clause (1) prescribing the time for filing the application is ultra vires and beyond the competence of the Government Learned Counsel for the Karamchari Sangh has drawn my attention to Bharat Barrels & Drum Mfg Co. Ltd. v. ESI Corporation : (1971)IILLJ647SC and Regional Director ESI Carp. v. Assistant Engineer, Municipal Council 1972 RLW 258. I have gone through these cases carefully Having perused these cases I am of the opinion that they are wholly distinguishable. The reason is Rule 61(1) of the Rules does not prescribe a period of limitation. The period of limitation his co-relation with legal proceeding What Rule 61(1) lays down is that the application for conferring the status of a protected workman has to be made to the employer within the prescribed time. This is nothing but a mode for moving the appropriate authority for conferring the benefit of the protected workman. Such a rule cannot by any stretch of imagination be said to be a rule of limitation The cases cited by learned Counsel by Shri G.L. Parekh relate to period prescribed for initiating legal proceedings. Application under Rule 61(1) is to be made to the employer and not to any court or the tribunal and, therefore, the application cannot be said to be in a legal proceeding. These cases therefore are wholly distinguishable and are of no avail to Mr. Parekh The preliminary objection on this score is also devoid of force and has to be rejected.
11. Coming to the merits, I take up first, the question whether the provision relating to the filing of the application for conferment of the benefit of a 'protected workman' is directory or mandatory. The test to determine whether a particular rules is mandatory or directory has been indicated in State of U.P. v. Babu Ram : 1961CriLJ773 where there is an elaborate discussion as to whether the use of word 'shall' in the provision of the statute would make that provision mandatory. It was observed by Subba Rao J. (as he then was) that '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 fellow from construing it one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstances namely, the statute provides for a contingency of the non-compliance with the provisions, the fact that non compliance with the provision is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether object of the legislation will be defeated or furthered.
12. In Sutherland Statutory Construction vol. 3, learned author has observed as follows:
No statutory provisions are intended by the legislature to be disregarded, but where the consequences of not obeying them in every particular are rot prescribed, the courts must judicially determine them In doing so they must necessarily consider the importance of the literal and punctilious observance of the provision in question to the object the legislature had in view.
13. Here it may also be appropriate to extract the observations from Crawford's Statutory Construction as under:
While usually in order to ascertain whether a statute is mandatory or directory, one must apply the rules relation 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 is merely a matter of convenience rather than of substance, are directory.
14. Keeping the above principles in mind I have now to decide whether Rule 61(1) is of directory nature or is of a mandatory character. It will be appropriate at this stage to reproduce Section 33 of the Industrial Disputes Act and Rule 61(1) of the Rules:
Section 33 Conditions of service, etc., to remain unchanged under certain circumstances curing pendetcy 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 or Tribunal or 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 condition of service applicable to them immediately before the commencement of such proceedings; or.
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing 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 workman 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 work-man'.
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman 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 workman; Provided that no such workman shall be discharged or dismissed, unless be 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 workman concerned in such dispute:
(a) by altering, to the prejudice of such protected workman, 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 workman.
save with the express permission in writing of the authority before which the proceeding is pending.
Explanation - For the purposes of this sub-section, a 'protected workman', in relation to an establishment, means a workmen who, being a member of the executive or other office bearer of a registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf.
(4) In every establishment, the number of workmen to be recognised as protected workmen for the purposes of Sub-section (3) shall be one percent of the total number of workmen employed therein subject to a minimum number of five protected workmen 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.Rule 61. Protected Workmen (1) Every registered trade union connected with an industrial establishment, to which the Act applied, shall communicate to the employer before the 30th April every year, the names and addresses 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.
Sub-section (3) of Section 33 of the Industrial Disputes Act protects 'protected workman' and the reason is obvious for the blanket protection of such a work-man. The legislature in his case appears to be anxious for the interest of healthy growth and development of trade union movement to ensure for him complete protection against every kind of order of discharge or punishment because of his special position as an officer of a registered trade union recognised as such in accordance with the rules made in that behalf. It further enables the workmen to have a collective bargaining strength to countenance the unwarranted victimisation and to give fillip to their collective bargaining power with their employer. Obviously the object behind Sub-sections (3) and (4) of Section 33 is essentially for the benefit of the workmen so as to give them blanket protection from unwarranted victimisation and to act without fear to raise legitimate demand on behalf of the workers before the employer. The protected workman enjoys the immunity against being retrenched, terminated or dismissed while the dispute or reconciliation proceeding is pending between the Union and its employer Keeping the object underlying Sub-sections (3) and (4) of Section 33 in mind I have to see whether the provisions of Rule 61(1) regarding the filing of the application before 30th April of each year can be taken to be mandatory.
15. It has been contended by Mr. Mehta on behalf of the petitioner that Rule 61(1) provides that the application shall be made before the 30th of April every year. He, therefore, contends that the very existence of the word 'shall' implies that the rule is a mandatory one. On the other hand, it has been vehemently argued by the learned Counsel for the respective trade unions that mere employing of the word 'shall' in Rule 61(1) does not necessarily lead to the inference that the rule is a mandatory one I have given my earnest consideration to the rival contentions of the parties. Having regard to the object underlying Section 33, I am of the view that the Rule 61(1) is not of a mandatory character. To me it appears that prescribing of the time is not a matter of substance, nor does this provision relate to the essence of the matter in question. It appears that the time has been prescribed merely as a matter of convenience to give guidance to the workman to file the application as expeditiously as possible. In this connection I may refer to a few cases which support the view which I have taken.
16. In Remington of India v. The Workmen : (1967)IILLJ866SC an award was made under the Industrial Disputes Act. Section 17 of the Industrial Disputes Act makes it obligatory on the Government to publish the award. The limit of lime has been fixed showing that the publication of the award should be made within 30 days of the making of the award. The award was, however, not published within the time prescribed. A contention was raised that the award was vitiated as it was not published within the time prescribed which was a mandatory provision. The Supreme Court refuting the contention held that a provision as to time in Section 17(1) is merely directory and not mandatory. The Supreme Court held that the essence and substance underlying Section 17 is that the Government is under obligation 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 in Section 17 does not mean that the publication beyond that time will render the award invalid. The reason which persuaded their Lordships to take that view was that non publication of award within the period of 30 days does not entail any penalty which is important consideration to be borne in mind when one has to deal with the question whether a particular provision is directory or mandatory.
17. The next case is Municipal Corporation, Bombay v. BEST Workers Union : 3SCR285 , In that case the aggrieved workman was an Assistant Fitter in the Transportation Engineering Department of Dadar Workshop of the Bombay Corporation. He was found carrying a bag in suspicious circumstances and on being searched by the Police the bag was found to contain brass bearings and he could not explain his possession. Departmental inquiry was instituted against this workman who was found to be guilty of the charges and was dismissed. The workman then approached the Labour Court and pressed before it that the order of dismissal was illegal as it was passed after the expiry of six months from the date of the notice of misconduct. Section 78(1)(d) of the Bombay Industrial Relations Act enjoined upon the employer to complete the the departmental inquiry within six months from the date when the misconduct committed by the employee came to the notice of the employer. The inquiry was not completed within six months A contention was raised that under Section 78(1)(d) it was obligatory upon the employer to complete the inquiry within six months, but that having not been done, the enquiry was vitiated The detention was repelled by the Supreme Court and it was held that the provisions of Section 78(1)(d) are not mandatory as it does not provide a period of limitation and the Labour Court can relax the period.
18. Now the object behind Section 33 is to give protection to workers of the union to strengthen their collective bargaining power on behalf of the workmen without fear of being retrenched or dismissed during the pendency of dispute or conciliation proceedings. It is also evident that the Industrial Disputes Act is a socio economic legislation and is not to be interpreted narrowly so as to defeat its object vide State v. K.K. Modi : (1968)IILLJ164All . Having regard to the object which the rule seeks to achieve and further having regard to the fact that no penal consequences have been prescribed for noncompliance of Clause (1) of Rule 61 in the matter of filing the application before 30th April, I am, definitely of the opinion that Rule 61(1) so far as it prescribes the time for filing the application for seeking protection of the status of a 'projected workman' is merely directory and not mandatory If it is to be taken as a mandatory then the very object of the Act which it seeks to achieve will be defeated and it will lead to mischief instead of advancing the remedy.
19. The matter can be viewed from another angle. Suppose the Union comes into existence say, on 1st May i.e. a day after the prescribed time and its office bearers pray for giving recognition to some of their office bearers the status of a 'protected workman', could this prayer be refused simply because their union was formed a day after the prescribed time. If the contention of the learned Counsel for the petitioner is to be accepted then such a union cannot ask protection to its some office bear's as the time prescribed bad already elapsed prior to its formation. Such a construction is bound to result in mischief to the workmen for whose benefit the provisions of Section 33(4) and Rule 61(1) have been enacted. This further leads assurance to my view that the provisions of Section 61(1) relating to the filing of the application before 30th April of each year is merely directory and not mandatory. Now in S.B. Civil Writ Petition No. 51/75 the Union had actually come into existence in September, 1974 i.e. after 30th April. If a rigid view as if being propounded by the learned Counsel for the petitioner is taken then the employees of such union will be deprived of the benefit of the salutary provision which was meant for the healthy growth of trade union activity. This could not have been the intention of the legislature. To me it appears that the time prescribed is not the essence of the matter and has been provided as a matter of convenience for the guidance of the workmen so that they may not sit idle to lose the benefits conferred under the provisions of law. Even otherwise one cannot lose sight of the well known maxim lex non cogit and impossivilia aut inutilia. In other words, to put it in simple English language it is well known that when a condition is impossible of performance; the condition must be treated as Dispensed with and it is in such cases that the maxim comes into operation. This proposition of law can be put in a different manner. The law does not compel the impossible. To the same effect are two other maxims 'inpotentia excusat leges' which means 'inability is an excuse in law and 'Argumentum ab inpossibili plurlmum valey in lege' which means 'an argument deduced from an impossibility greatly avails in law', Obviously in Civil Writ Petition on No. 51/75 it was high impossible for the Union to have moved the application before 30th April as it came into existence only in September, 1934. It could not have been the intention of the legislature to deny the benefit of Section 33(4) to such a union which farther leads to the inference that the provisions of Rule 51(1) are merely directory and not mandatory.
20. It was then contended by Mr. Mehta that Rule 61(1) pertains to the mode for securing immunity of 'protected workmen' which is nothing but a concession It is argued that when particular modes is prescribed under Rule 61(1) to earn a concession, that mode shall have to be strictly complied with and failure to do so would not entitle the workmen to claim immunity under Rule 61 of the Rules' As stated earlier the spirit behind Section 33 of the Act is to fetter the power of the employer in the matte of dismissal, removal and retrenchment of the employee. The immunity which arises in favour of the workmen is not a mere concession or granting benefit. The immunity granted under Sub-section (3) is to advance, the object what Section 33 seeks to fulfil. It is not correct to hold such immunity as a mere concession Mr. Mehta, learned Counsel for the petitioner, relied upon Edward Ramia Ltd. v. African Woods Ltd. 1960 All ER 627 SRM. Service v. IT. Commr. Hyderabad AIR 1973 SC 1444 and Purshottamdas v. Collector, Grid AIR 1955 MB 179, with a view to show that Rule 61(1) is mandatory. 1960 All ER 627 dealt with a provision which was in absolute term and gave clear indication that the provision dealt in this case was mandatory.
21. In SRM Service v. IT Commr, Hyderabad AIR 1973 SC 1444 in order to get the benefit of status of a partnership under the Income Tax Act the concerned firm had to apply for conferment of the benefit within the prescribed time. Penal consequences were prescribed in the provision enjoining upon the officer to refuse to recognise the firm as a partnership firm for the purpose of assessment. Likewise in Purshottamdas's case AIR 1955 MB 179 penal consequences were prescribed for non compliance of the rule which came up for consideration before that High Court, Thus the cases cited by the learned Counsel for the petitioner ate distinguishable and are of no avail to the petitioner.
22. In regard to the contention as to whether the Assistant Labour Commissioner had authority to decide the representation of the respective unions under Clause (4) of Rule 61, it is contended on behalf of the petitioner that no dispute has arisen between the petitioner and its employees and therefore, the matter could not have been taken to the Assistant Labour Commissioner. The argument of the learned Counsel for the petitioner is that the application of the trade unions were admittedly filed after 30th April, 1974 and, therefore, they were obviously barred by time and, therefore, no question of any dispute arises between the petitioner and its employees on that score. I am unable to accept this contention Clause (4) of Rule 61 expressly provides that when a dispute arises between an employer and any registered trade union in any matter connected with the recognition of protected workman under this rule, the dispute shall be referred to the Conciliation Officer concerned whose decision thereon shall be final. The language of Clause (4) of Rule 61 is very comprehensive and embraces in its hold any matter connected with the recognition of the 'protected workman', The petitioner employer raised the dispute that the application for granting the status of a ''protected work-men' to some of the workmen of the respective unions was barred by time. On the other hand the respective unions contended that the rule as to filing the application before 30th April is not a matter of essence but only of a form and the application was within time. There was thus a dispute which positively fell under Clause (4) of Rule 61. In that view of the matter it can be safely said that the Assistant Labour Commissioner the respondent No. 2, was fully competent to entertain the representation of the respective trade unions in the matter of extending protection to some of its workmen as 'protected workmen''. This contention is, therefore, over ruled.
23. The next contention that the officer concerned had no authority to entertain the time barred application has been fully dealt with and covered by the foregoing discussion and it need not be dealt with over again elaborately. Suffice it to say that the provision as to moving of the application before 30th April of each year is merely directory and not mandatory and, therefore, no exception can be taken against the, action of the authority entertaining an application of the Union filed after 30th April, 1974.
24. Lastly, It may be mentioned that present is a writ of certiorari The petitioner had not been able to point out any manifest error of law in the impugned orders. The impugned orders are in consonance with the principles of substantial justice and served to avert miscarriage of justice. I am, therefore, not at all inclined to invoke my extra ordinary jurisdiction to interfere with them.
25. In the result, the writ petitions have no force and are dismissed. However, looking to the fact that the Union raised untenable and rather frivolous preliminary' objections I keep the costs easy.