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 filling 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. The Rajasthan Anushakti Karamchari Union is a registered and 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 Chef 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 Dispute (Central) Rules, hereinafter called "the Rules". The application was rejected by the Project Officer by his letter dated 11. 10. 74. The Union than raised a dispute under rule 61 (4) of the Rules by a written representation praying therein to declare some of its workers as "protected workman" 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 Project 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 that score also and further that the time prescribed in rule 61 (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. The Rajasthan Anushakti Pariyojna Karamchari Sangh 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 "protect 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 was 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. Mr L. R. Mehta appearing on behalf of the petitioner has put forth the following contentions in support of the writ petition : (1) Rule 61 (1) of the Rules is mandatory and it is obligatory on the part 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) rule 61 of the Rules; and (4) that the Assistant Labour Commissioner had no jurisdiction to entertain a time barred application. 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 noncompliance have been provided either in the Act or under the Rules framed thereunder. Before I deal with the contentions on merits I may here notice the following preliminary objections raised on behalf of the non-petitioner trade unions: - (i) 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, (ii) That the writ petition No. 51/75 is liable to be rejected as the petitioner deliberately concealed material facts, (iii) 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. Taking up the first preliminary objection I may atonce 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 Unions at whose instance the impugned orders have been passed are already party in Writ petition. The preliminary objection in this behalf is, therefore, turned down. Coming to the next preliminary objection that the petitioner is guilty of suppression of material facts in writ petition No. 51/75, it may be stated that the alleged mis-representation pointed out in reply to the writ petition No. 5 of 1975 has no bearing on the result of the writ petition. Every mis-representation does not warrant the dismissal of the writ petition. Having looked into para 15 and 18 of the writ petition No. 51/75 I am fully satisfied that there is no deliberate suppression or concealment of material facts. This preliminary objection has, therefore, no force either.
(3.) 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 Barrals & Drum Mfg. Go. Ltd. vs. E. S. I. Corporation (1) and Regional Director E. S. I. Corp. vs. Assistant Engineer, Municipal Council (2 ). 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 has co-relation with a legal proceeding. What rule 61 (1) lay down is that the application for conferring the status of a protected workmen 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 workmen. 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. Pareek 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. Pareek. THE preliminary objection on this score is also devoid of force and has to be rejected. 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 rule is mandatory or directory has been indicated in State of U. P. vs. Babu Ram (3) where there is an elaborate discussion as to whether the use of the 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 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, 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. " 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 not prescribed, the courts must judicially determine them. In doing so they must necessarily consider the importance of the literal and punctilious observan:e of the provision in question to the object the legislature had in view. " 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 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 is merely a matter of convenience rather than of substance, are directory. " ;