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PETITIONER: STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: LAKSHMI ICE FACTORY & OTHERS

DATE OF JUDGMENT: 07/02/1962

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. GAJENDRAGADKAR, P.B. WANCHOO, K.N.

CITATION:  1963 AIR  399            1962 SCR  Supl. (3)  59  CITATOR INFO :  RF         1992 SC1277  (22)

ACT: Industrial  Dispute-Award-Pronouncement of in open  court-If imperative-United  Provinces industrial Disputes  Act,  1947 (U. P. 28 of 1947, ss. 3, 6-Statutory Orders cl. 9 (7).

HEADNOTE: The  Government  of  Uttar Pradesh under s. 3  of  the  U.P. Industrial  Disputes  Act, 1947, and  the  Statutory  orders framed  thereunder  referred certain. disputes  between  the respondent  Ice Factories and the respective workmen  to  an Industrial  Tribunal.   The Tribunal heard the  matters  but failed  to  pronounce its award in open court,  as  required under the clause 9 (7) of the Statutory Orders.  Instead the Registrar  of the Tribunal informed the Ice  Factories  that the  award  of  the  Tribunal  had  been  submitted  to  the Government.  The award was published in the U.P. Gazette and the  Regional  Conciliation  officer  called  upon  the  Ice Factories  to  implement  the award  immediately.   The  Ice Factories  moved the High Court at Allahabad  alleging  that the  award  was a nullity as it had not been  pronounced  in open  court  as  required  under the clause  9  (7)  of  the Statutory  Orders  and asking for writs to quash  it.   High Court issued the writs quashing the Notification  publishing the award.  The questions are whether the provisions of sub- cl.  (7) of cl. 9 of the Statutory Orders are imperative  or merely directory and whether that sub-clause is ultra  vires as  being in conflict with the Act under which it  had  been framed. Held, that the clear intention of the legislature is to make it  imperative that judgments should be pronounced  in  open court by the Tribunal and a judgment not so pronounced would therefore be a nullity.  The provision in sub-cl.(7) of  cl. 9 of the Statutory Order is imperative and not directory. Held,  further, that the provisions as to the  pronouncement of the decision in open court contained in cl. 9 (7) of  the Statutory  Order was clearly within the powers  contemplated in s. 3 (g) of the Act and s. 6 of the Act does not prohibit the making of such provisions.  A rule duly framed under the Act requiring the Tribunal to pronounce its decision in open

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court is therefore not in conflict with s. 6 of the Act. Montreal Street Railway Co. v. Normandin, [1917] A. C.  170, referred to. 60

JUDGMENT: CIVIL  APPELLATE  JURISDICTION: Civil Appeals  Nos.  51  and 52/61 Appeals  from  the judgment and decree dated  September  23, 1959, of the Allahabad High Court (Lucknow Bench) at Lucknow in  C. M. Applications Nos. 15 (O.J.) and 16 (O.J.) of  1957 respectively. C.   B. Agarwala and C. P. Lal, for the Appellants (in both  the appeals). A.   V.  Viswanatha Sastri, and K. L. Arora, for  Respondent No. 1 (in both the appeals). 1962.   February 7. The Judgment of the Court was  delivered by SARKAR, J.- These two appeals have been heard together. The, appellants in each case are the State of Uttar Pradesh,  for short  called  U.  P.  and some  of  its  officers  and  the respondents  in  one  appeal are  Lakshmi  Ice  Factory  and certain  of  its workers and in the other  the  Prakash  Ice Factory and certain of its workers.  These appeals involve a question of construction of certain provisions of the U.  P. Industrial Disputes Act, 1947, hereafter referred to as  the Act. By   a  Notification  issued  on  February  10,  1956,   the Government  of  U. P. referred certain  disputes  which  had cropped  up  between  each  of the  Ice  Factories  and  its respective   workmen,   to  an   Industrial   Tribunal   for adjudication.   The  details  of  these  disputes  are   not material for these appeals.  The Tribunal heard the  matters but  failed to pronounce its award in open court.   Instead, on November 8, 1956, the Registrar of the Tribunal  informed the  Ice Factories that the award of the Tribunal  had  been submitted  to  the Government.  On December, 15,  1956,  the award  was  published in the U. P. Gazette and  it  appeared from  this publication that the award was dated November  8, 1956.  On December 26, 1956, the Regional Conciliation Offi- cer appointed under the Act " called upon the Ice 61 Factories to implement the award immediately.  Thereupon the Tee  Factories moved the High Court at Allahabad on  January 3,  1957  under  Art.  226 of  the  Constitution  for  writs quashing  the award and prohibiting the Government  and  the workmen  from taking steps to implement it.  They  contended that the award sought to be enforced was a nullity as it had not  been  pronounced in open court as required  by  certain rules  to  which  reference will presently be  made.   By  a judgment  passed  on  September 23,  1959,  the  High  Court allowed the petitions of the Ice Factories and issued  writs quashing the Notification publishing the award.  The appeals are against this judgment of the High Court. Section  3 of the Act gives the Government power in  certain circumstances  to  make provisions by  general,  or  special order   (1)  for  appointing  Industrial  courts,  (2)   for referring  any  industrial dispute for adjudication  in  the manner provided in the order and (3) for matters  incidental or  supplementary  to  the other provisions  of  the  order. Under  this power the Government had issued an  Order  dated July  14,  1954  and  this Order  is  hereafter  called  the "Statutory Order." It was under powers conferred by the  Act

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read with the Statutory Order that the Government had issued the Notification of February 10, 1956. In  exercise of powers conferred by el. 8 of  the  Statutory Order  the Government had set up the Tribunal.  Clause 9  of the  Statutory  Order  provides  for  the  procedure  to  be followed by the Tribunal.  Sub-clause (7) of this clause  is in  these terms: "The decision of the Tribunal shall  be  in writing and shall be pronounced in open court and dated  and signed by the member or members of the Tribunal, as the case may  be,  at the time of pronouncing it." Clause 11  of  the Statutory  Order  gives  power to Government  to  refer  any industrial dispute to the Tribunal. Sub-clause (9) of el. 9 of the Statutory Order 62 gives power to the Tribunal to make Standing Orders relating to  its practice and procedure.  Under this  sub-clause  the Tribunal framed certain Standing Orders.  Standing Order No. 36  provided.  "Judgment shall be pronounced in  open  court either immediately after the close of the arguments or on  a subsequent  date of which previous notice shall be given  to the  parties.   It  shall then be signed and  dated  by  the Tribunal." Acting presumably under Standing Order No. 36, the  Tribunal in  the  present  case bad fixed a date on  which  it  would pronounce  its judgment in open court.  This date  does  not appear on the record but on September 25, 1956, the Tribunal informed the parties that the date for pronouncing the award had been changed to October 9, 1956.  On that date, however, the  award  was not pronounced in open court,  nor  was  any intimation of any other date for its pronouncement given  to the  parties.  The lee Factories first came to know  of  the making of the award from the letter of the Registrar of  the Tribunal  dated  November 8, 1956 earlier referred  to.  The award had in fact never been pronounced in open court. The first question is whether the provisions in sub el.  (7) of el. 9 are imperative.  The High Court held that they were and thereupon quashed the Notification publishing the award. The appellants contend that the High Court was in error  and that the provisions are only directory and that the  failure of the Tribunal to pronounce the award in open Court did not result  in  the  award becoming  void.   The  Ice  Factories contend for the contract view. Mr. Aggarwala for the appellants referred us to the rule  of construction   stated  in  Maxwell  on   Interpretation   of Statutes, 10th ed. at p. 381, which is as follows :  ",Where the prescriptions of a statute relate to the performance  of a public duty and 63 where  the  invalidation of acts done in  neglect  of  them, would  work  serious general inconvenience or  injustice  to persons  who have no control over those entrusted  with  the duty   without   promoting  the  essential   aims   of   the Legislature,   such  prescriptions  seem  to  be   generally understood  as  mere  instructions  for  the  guidance   and government  of  those on whom the duty is  imposed,  or,  in other  words as ’directory only".  Ho said that sub el.  (7) of cl. 9 of the Statutory Order imposed a public duty on the Tribunal  and  as  none of the  contesting  parties  to  the proceedings before the Tribunal had any control over it, the provision  in the Statutory Order as to how the Tribunal  is to  discharge its duty must be regarded as merely  directory and therefore a disregard of that provision by the  Tribunal would not render the thing done by it a nullity. It  seems  to  us that the rule read  from  Maxwell  is  not applicable  to this case.  It applies only when to hold  the

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prescriptions in a statute as to the performance of a public duty  to  be imperative would work  injustice  and  hardship without  serving the object of the statute.  None  of  these conditions  are present ill the statute now before us.   The rule may be illustrated by reference to the case of Montreal Street  Railway  Co.  v.  Normandin(1)  which  is  cited  in Maxwell’s  book. That was a case in which certain  Statutory provisions as to how the jury list was to be revised had not been followed and the question arose whether the verdict  of a jury empannelled out of a list revised in disregard of the provision  was a nullity.  It was hold that the verdict  was not a nullity as the provision regarding the revision of the jury  list was merely directory.  It was further  held  that the object of the provision was to distribute the burden  of jury  equally between all liable to it, to secure  effective jurors likely to attend and lastly to prevent packing of the jury.   It  was said that "It does far less  harm  to  allow cases tried by a jury formed as this one was (1)  [1917] A.  C. 170. 64 with  the  opportunities  there  would  be  object  to   any unqualified man called into the box, to stand good, than  to hold  the proceedings null and void.  So to hold would  not, of course, prevent, the courts granting new trials in  cases where there was reason think that a fair trial had not  been had": P. 176). The case in hand is wholly different.  The proceedings  that were had before the Tribunal would not become null and void if   we  hold  el.  9(7)  of  the  Statutory  Order  to   be imperative,.  A view that the provision was imperative would cause  no serious hardship to any one.  The  Government  can always  require the Tribunal to pronounce, its  decision  in open court extending, if necessary for the purpose. he  time fixed  for  giving  its  decision.   Either  party  of   the proceeding  can  also ask the Government to  call  upon  the Tribunal to pronounce its award in open court.  There is no doubt  that  the Government will go call upon  the  Tribunal when the defect s brought to its ’notice for the  Government itself referred the matter to the Tribunal for if  decision. As soon as the Tribunal pronounces it,; award in open court, the proceedings will become fully effective. It is also an accepted rule of construction that  enactments regulating the procedure in courts are usually imperative  : Maxwell  on Interpretation of statues 10th ed. p.  379.   It further  appears  to us that the object of  the  legislature would be defeated by reading cl. 9(7) of the Statutory Order as containing a provision which is merely director v. We now proceed to ascertain that object from the, other  provisions in the Statutory Order, the Act and connected legislation. Section 6 of the IT.  P. Act provides as follows :--               (1)   When an authority to which an industrial               dispute has been referred for               65               adjudication  has completed it,%  enquiry,  it               shall, within such time as may be  ,specified,               submit its award to the State Government.               (2) The State Government may...... enforce for               such  period as it may specify all or  any  of               the decisions in the award. It  was under this section that the Tribunal submitted  it,% award  to  the  Government and  the  Government  issued  the Notification in the Gazette dated December 15, 1956  earlier mentioned  and  directed that the award be  enforced  for  a period of one year from the date of the publication. Since the award has to be submitted to the Government by the

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Tribunal  under  s.  6 of the Act, the award has  to  be  in writing, for a verbal award cannot obviously be submitted to the   Government.   It  would  therefore  appear  that   the provision  in sub cle. (7) of el. 9 of the  Statutory  Order that  the  decision of the Tribunal shall be in  writing  is imperative,  This  would  be an indication  that  the  other provisions  in  the same sub-clause connected with  it  were intended to be equally imperative. Then we find that el. 18 of the Statutory Order is in  these terms  :  "The Tribunal or the adjudicator  shall  hear  the dispute  and  give  its  or his  decision  within  180  days (excluding  holidays  but Dot annual vacations  observed  by courts  subordinate  to  the High Court) from  the  date  of reference  made  to it or him by the  State  Government  and shall  thereafter as soon as possible, supply a copy of  the same to the parties to the dispute................  Provided that  the State Government may extend the said  period  from time  to  time." It seems to us that the provision  in  this clause  in clearly mandatory.  The Tribunal has no power  to make an award after the time mentioned in it; if it had, the proviso  to el. 18 would be wholly unnecessary.  The  result therefore is that it is 66 obligatory  on the Tribunal to give its decision within  180 days from the date of the reference.  A decision given, that is  an  award made, beyond this period would be  a  nullity. Now when cl. 18 talks of giving a decision, it can only mean giving it in the manner indicated in sub-cl, (7) of cl. 9 of the  Statutory  Order, that is, by pronouncing  it  in  open court,  for  that is the only manner of  giving  a  decision which  that  order contemplates.  It would follow  that  the terms  of  cl. 9(7) were imperative, for  otherwise  no  one would  know  whether the terms of el. 18  of  the  Statutory Order  had been complied with, that is to say, no one  would know  whether the award was void or not.  The provisions  of cl.  IS may thus be rendered nugatory by holding el. 9(7) to be  only  directory.   It  would  follow  that  unless   the provision as to the pronouncement of the award in open court was mandatory, the intention of the framers of the Statutory Order would be defeated. Sub-clause  (2) of cl. 24 of the Statutory Order also  leads to the same conclusion.  That sub-clause is in these terms : "Clerical  or arithmetical mistakes in decisions or  awards, or errors arising therein from any accidental slip or  omis- sion  may, within one month of giving the decision or  award be  corrected by the Tribunal or the adjudicator, either  of its  or his own motion or on the application of any  of  the parties." Under this rule therefore clerical or arithmetical errors  or  slips may be corrected within one month  of  the giving  of  the decision and the parties have the  right  to apply  for such corrections within that time.  The  Tribunal has no right to correct an error beyond that time.  Nor  has a  party  a right to move the Tribunal for making  any  such corrections after the time has expired. In  order  that the intention of cl. 24 (2)  may  be,  given effect to, it is necessary that the date of the  67 giving of the decision should be known.  It cannot  promptly be  known to the parties unless the award is  pronounced  in open  court.   If  any other Manner of  the  giving  of  the decision  was permissible as would be the result if  it  was not obligatory to pronounce the decision in open court, then a  party may be deprived of its right under cl. 24  to  move the  Tribunal  for  correction of errors.  It  is  for  this reason  that  cl. 9(7) provides that the decision  shall  be

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dated  and  signed  at the time of pronouncing  it  in  open court.   This  signing  and dating of the  award  after  its pronouncement in open court makes it possible to see whether the terms of  cls. 18 and 24 (2) have been complied with  in any case. The   third   thing  which  to  our  mind   indicates   that pronouncement  in open court is essential is cl. 31 of  the Statutory Order.  That clause is in these terms : "Except as provided  in  this  Order and  in  the  Industrial  Disputes (Appellate   Tribunal)  Act,  1950,  every  order  made   or direction issued under the provisions of this Order shall be final  and  conclusive and shall not be  questioned  by  any party  thereto in any proceedings." The Industrial  Disputes (Appellate  Tribunal)  Act, 1950 provides for  appeals  from decisions  of certain Industrial Tribunals to the  Appellate Tribunal established under it.  Clause 31 therefore makes  a decision of the Tribunal on a reference to it final  subject to  an appeal if any allowed under the  Industrial  Disputes (Appellate  Tribunal) Act, 1950.  Under a. 7 of the  Act  of 1950, an appeal shall lie to the Appellate Tribunal from any award  or  decision  of an  Industrial  Tribunal  concerning certain  specified  matters.   Now  an  Industrial  Tribunal mentioned  in s. 7 includes a Tribunal set up under a  State law  which  law  does not provide for an  appeal  :  see  a. 2(o)(iii)  of  the  Act of 1950.  The U.  P.  Act  does  not provide for any appeal expressly but cl. 31 of the Statutory Order makes a decision of the Tribunal final subject to 68 the  provisions  of  the Act of 1950.   It  would  therefore appear that an appeal would lie under the Act of 1950 to the Appellate Tribunal constituted under it from a decision of a Tribunal set up under the Statutory Order.  Now under a.  10 of  the  Act of 1950, an appeal is  competent  if  preferred within  thirty days from the date of the publication of  the award  where  such publication is provided for  by  the  law under  which  the  award is made, or from the  date  of  the making  of  the award where there is no provision  for  such publication.   Now the U.P. Act or the Statutory Order  does not  provide for any publication of an award.  Therefore  an appeal  from the Tribunal set up under the  Statutory  Order has  to be filed within thirty days from the making  of  the award.   Hence  again it is essential that the date  of  the making of the award shall be known to the parties to  enable them  to  avail  themselves of the right  of  appeal.   This cannot  be known unless the judgment is pronounced  in  open court   for   the  date  of  award  is  the  date   of   its pronouncement.  Hence again pronouncement of the judgment in open court is essential.  If it were not so, the  provisions for appeal might be rendered ineffective. For  all  these  reasons  it seems  to  us  that  the  clear intention  of the legislature is to make it imperative  that judgments should be pronounced in open court by the Tribunal and  judgments  not  so  pronounced  would  therefore  be  a nullity. In  the  view that we have taken it is unnecessary  to  deal separately  with Standing Order No. 36.  The  provisions  of that Standing Order and cl. 9(7) of the Statutory Order  are substantially   the   same.   They   should   therefore   be interpreted in the same way.  In any case since we have held the  el.  9(7) of the Statutory Order to be  imperative.  it would  not  matter whatever view is taken  of  the  Standing Order for the latter cannot affect the former. 69 Mr.  Aggarwala  then argued that cl. 9(7) of  the  Statutory Order and Standing Order No. 36 were ultra vires as being in

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conflict with the Act under which they had been framed.  His contention  was  this : Under s. 6 of the Act all  that  the Tribunal has to do is to submit its award to the  Government after the conclusion of the enquiry before it.  The  section does  not require the Tribunal to pronounce its decision  in open  court.  The provisions in the Statutory Order and  the Standing  Order  both  of  which  were  made  under   powers contained  in the Act, were therefore in conflict with s.  6 and  of  no effect.  Hence he contended  that  the  question whether the provisions of cl. 9(7) of the Statutory Order or of the Standing Order No. 36 were imperative did not  really arise. It  seems  to us that this contention of  Mr.  Aggarwala  is without any foundation.  Section 6 when it requires that the Tribunal   shall   submit  its  award  to   the   Government necessarily  contemplates the making of the award.   Neither s.  6  nor any other provision in the Act provides  how  the award is to be made. Under s. 3(g) however the Government has power by general or special.  order to provide for incidental  or  supplementary matters necessary for the decision of an industrial  dispute referred for adjudication under any order made tinder s.  3. ’rho  provision as to the pronouncement of the  decision  in open  court  in  (19(7) of the Statutory  Order  clearly  is within the power,; contemplated in s. 3(g).  Section 6  does not  prohibit  the  making of such a  provision.   Its  main purpose  is  to direct that the Tribunal  shall  submit  the award to the Government so that it may be enforced.  It  has nothing  to do with the manner in which the ’Tribunal is  to make 70 its  award.  A rule duly framed under the Act requiring  the Tribunal  to  pronounce  its  decision  in  open  court   is therefore not in conflict with s. 6. The result is that these appeals fail and are dismissed with costs. Appeals dismissed.