- (1.) This appeal by the Remington Rand of India Ltd. against their workmen arises out of an award dated 5th October, 1965 made by the Industrial Tribunal, Alleppey published in the Kerala Gazette dated 15th November, 1966.
(2.) The first point taken against this award is that it cannot be given effect to as it was published beyond the period fixed in the Act. The notification accompanying the gazette publication stated that Government had received the award on 14th October, 1966. It was argued by Mr. Gokhale that in terms of S. 17 (1) of the Industrial Disputes Act the award had to be published within a period of thirty days from the date of its receipt by the appropriate Government". According to learned counsel, the award having reached Government on 14th October, 1966 it should have been published at the latest on 12th November, 1966 as S. 17 (1) of the Act was mandatory. Our attention was also drawn to sub-s. (2) of S. 17 according to which it is only the award published under sub-s. (1) of S. 17 that is final and cannot be called in question by any court in any manner. We were also referred to S. 17-A and S. 19. Under sub-s. (1) of S. 17-A an award becomes enforceable on the expiry of thirty days from the date of its publication under S. 17 and under sub-s. (3) of S.19 an award is to remain in operation for a period of one year from the date on which the award becomes enforceable under S. 17-A. From all these provisions it was argued that the limits of time mentioned fin the Sections were mandatory and not directory and if an award was published beyond the period of thirty days, in contravention of S. 17 (1) it could not be given effect to. To fortify his argument, learned control relied on certain observation of this Court in Sinilk Ltd. v. Govt. of Andhra Pradesh, (1964) 2 SCR 448 at p. 452: (AIR 1964 SC 160 at p. 162). In that case, there was an order referring certain disputes between the appellant and its workmen to the Industrial Tribunal, Andhra Pradesh. The Tribunal sent its award to Government in September 1957. Before the Government could publish the award, the parties to the dispute came to a settlement and on 1st October, 1957 a letter was written to the Government jointly on behalf of the employer and the employees intimating that the dispute which had been pending before the Tribunal had been settled and a request was made to Government not to publish the award. Government expressed its inability to withhold the publication taking the view that S. 17 of the Act was mandatory. The appellants filed writ petitions before the High Court of Andhra Pradesh under Article 226 of the Constitution praying that Government might be directed not to publish the award sent to it by the Industrial Tribunal. The High Court held that S. 17 was mandatory and it was not open to Government to withhold publication. The contention on behalf of the appellants was that S. 17 providing for the publication of the award was directory and not mandatory. Mr. Gokhale relied on the passage at p. 452 (of SCR) : (at p. 162 of AIR SC) of the judgment reading : "It is clear therefore, reading S. 17 and S. 17-A together, that the intention behind S. 17 (1) is that a duty is cast on Government to publish the award within thirty days of its receipt and the provision for its publication is mandatory and not merely directory." Ultimately, however, on a conspectus of Ss. 17, 17-A, 18 and 19, it was observed that "though S. 17 (1) is mandatory and the Government is bound to publish the award received by it from an industrial tribunal, the situation arising in a case like the present is of an exceptional nature and requires a reconciliation between S. 18 (1) and S. 18 (3), and in such a situation, the only way to reconcile the two provisions is to withhold the publication of the award, as a binding settlement has already come into force ..............". Reference was also made to the case of Erumeli Estate v. Industrial Tribunal, 1962-2 Lab LJ 144 (Ker). There the question directly arose as to whether non-publication of the award within the period mentioned in S. 17 (1) invalidated the award and the learned Judge observed that he was not inclined to accept that contention although it was highly desirable that the award should be published within the time mentioned. He said : "Excepting that a slight delay in publishing the award under S. 17 (1) results in postponing its finality under S. 17 (2) or its becoming enforceable under S. 17A, no other consequence flows from the delay and therefore, in my view, the provisions of sub-s. (1) of S. 17 should be considered only to be "merely directory.....".
(3.) Mr. Gokhale also referred us to the case of State of Uttar Pradesh v. Babu Ram Upadhya, (1961) 2 SCR 679 at p. 710 : (AIR 1961 SC 751 at p. 765) where there is an elaborate discussion as to whether the use of the word "shall" in a statute made the provision mandatory. It was observed by Subbarao, J. (as he then was) speaking for the majority of the Court 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 follow 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, 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." Keeping the above principles in mind, we cannot but hold that a provision as to time in S. 17 (1) is merely directory and not mandatory. S. 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 90 days mentioned therein does not mean that the publication beyond that time will render the award invalid. It is not difficult to think of circumstances when the publication of the award within thirty days may not be possible. For instance, there may be a strike in the press or there may be any other good and sufficient cause by reason of which the publication could not be made within thirty days. If we were to hold that the award would therefore be rendered invalid, it would be attaching undue importance to a provision not in the mind of the legislature. It is well known that it very often takes a long period of time for the reference to be concluded, and the award to be made. If the award becomes invalid on the ground of publication after thirty days, it might entail a fresh reference with needless harassment to the parties. The non-publication of the award within the period of thirty days does not entail any penalty and this is another consideration which has to be kept in mind. What was said in the earlier passage from the judgment in (1964) 2 SCR 448 : (AIR l964 SC 160) (supra) merely shows that it was not open to Government to withhold publication but this Court never meant to lay down that the period of time fixed for publication was mandatory.;