http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: THE REMINGTON RAND OF INDIA LTD.

       Vs.

RESPONDENT: THE WORKMEN

DATE OF JUDGMENT: 11/08/1967

BENCH: MITTER, G.K. BENCH: MITTER, G.K. WANCHOO, K.N. (CJ)

CITATION:  1968 AIR  224  CITATOR INFO :  RF         1970 SC1421  (14)  E          1973 SC 883  (19)  R          1986 SC 125  (7)

ACT: Industrial Disputes Act (14 of 1947), s.  17(1)--Publication of the award within 30 days of its receipt--If mandatory.

HEADNOTE: Section  17(1) of the Industrial, Disputes Act, 1947,  makes it  obligatory on the appropriate Government to publish  the award received by it from the Industrial Tribunal; but,  the provision  in  the section as to time, that  the  Government shall  publish  it within a period of thirty days  from  the date of its receipt, is merely directory and not  mandatory. Therefore,  where the Government received the award on  14th October  1966  and published it in the Gazette on  the  15th November  1966, the award did not cease to  be  enforceable. [166F-G] Observations  in  The Sirsilk Ltd. v. Government  of  Andhra Pradesh, [1964] 2 S.C.R. 448, 452, explained. The  State  of Uttar Pradesh & Others v. Babu  Ram  Upadhya, [1961] 2 S.C.R. 679, 710, followed. Erumeli Estate V. Industrial Tribunal, [1962] II L.L.J. 144, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 548 of 1967. Appeal by special leave from the award dated October 5, 1966 ,of the Industrial Tribunal, Alleppey in Industrial  Dispute No. 9 ,of 1965. H.   R. Gokhale and D. N. Gupta, for the appellant. M.   K. Ramamurthi, Shyamala Pappu, Vineet Kumar and R. Nagaratnam, for the respondents. The Judgment of the Court was delivered by Mitter,  J.-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. The  first point taken against this award is that it  cannot

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

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. Gokbale  that  in terms  of s. 17(1) of the Industrial Disputes Act the  award bad  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  of the Act was mandatory.  Our attention was also drawn to                             165 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 in  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 counsel relied on certain observations  of this  Court  in  The Sirsilk Ltd. v.  Government  of  Andhra Pradesh.(1)  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  Art.  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  page  452  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

             withhold  the publication of the award,  as  a               binding  settlement  has.  already  come  into               force........" (1) [1964] 2 S.C.R. 448, 452 166 Reference  was  also made to the case of Erumeli  Estate  v. Industrial Tribunal (1).  There the question directly  arose as to whether non-publication of 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:               "Exceptioning   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.  17-A,  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..........." Mr.  Gokhale  also referred us to the case of the  State  of Uttar Pradesh & Others v. Babu Ram Upadhya(2) 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 Subba Rao, 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 noncompliance 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.  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.   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 (1) [1962] IT L.L.J. 144. (2  ) [1961]2 S.C.R 679, 710 167 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  merely  on  the   ground   of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

publication  after  thirty  days, it might  entail  a  fresh reference with needless 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 The Sirsilk Ltd. v. Government  of  Andhra Pradesh(1)  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. Coming  to the merits of the case, Mr. Gokhale  argued  that the Tribunal. had gone wrong in revising the wage scales  as it  had done.  The head of dispute referred to the  Tribunal was  "revision  of wages as per award of the  Madras  Labour Tribunal in 38 of 1960." The arguments advanced in this case were  the same as in the Bangalore case (just  now  disposed of) and the Tribunal after noting the phenomenal progress of the Company and the enormous profits it was making, came  to the conclusion that there was no reason why there should  be any disparity in wages between the employees of a branch and the regional office when they were doing the same or similar work.   In  this  case  also,  there  was  no  evidence   of comparable concerns.  In our view, what we have said on this point  of  the dispute with regard to the  Bangalore  branch applies  equally  with regard to the Kerala branch  and  the matter  will have to go back to the Tribunal for fixing  the wages and the adjustment of the workers in the revised scale in  the light of the observations made in that case  bearing in  mind  Mr. Gokhale’s offer on behalf of  the  Company  to increase the wages as in the other appeal. With  regard to dearness allowance again, what was  said  in the  Bangalore  appeal applies equally to this appeal.  Here again the Tribunal said:               "It is also an accepted fact that the cost  of               living both at               Trivandrum and at Ernakulam is higher than the               cost of living at Madras. Therefore, there  is               no justification in perpetuating the disparity               in the payment of D.A. to the workmen  working               at Madras and those working in the  Trivandrum               Branch." In  the  result, the Tribunal directed that the  workmen  of Ernakulam branch should get dearness allowance "at the  rate at  which and in the manner in which" the pay  and  dearness allowance was being paid to the employees of Madras Regional Office.  In our view, dearness allowance should be the  same as  decided  in  the case of the workers  of  the  Bangalore branch. (1) [1964] 2 S.C.R. 448. 168 The  scheme for gratuity is the same as in the case  of  the Bangalore  branch with the only difference that the  maximum fixed  was 20 months’ wages after 20 years service.  In  our view, there is no reason why the scheme for gratuity  should not be the same in the Ernakulam branch as in the  Bangalore branch in case of termination of service for misconduct  and the qualifying period should be 15 years’ service. Again, on principles already formulated, we hold that  leave facilities  at  Ernakulam  should  be  the  same  as   those prevailing at Madras. Next  comes  the dispute with regard to the  working  hours. The  working  hours  of  the  employees  of  Trivandrum  and Ernakulam  as  prevalent were from 9 a. m. to 1. p.  m.  and from 2 p. m. to 5-30 p. m. on week days and from 9 a. m.  to 1 p. m. on Saturdays.  At Madras the Company’s workers  work

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

only for five days in a week from 9 a. m. to 1 p. m. and  1- 45 p. m. to 5-30 p.m. The total working hours were therefore somewhat  less than those at Trivandrum and Ernakulam.   The complaint of the union before the Tribunal was that although by circular dated 24th March 1963 the Company had fixed  the working  hours  from  9.30 a.m. for clerks and  9  a.m.  for mechanics  and peons, it was extracting half an hour’s  work per  day extra contrary to their own orders.   The  Tribunal held  that the circular should be given effect to  and  that the clerical staff should work from 9.30 a.m. to 1 p.m.  and from 2 p.m. to 5.30 p.m. on working days and from 9.30  a.m. to  1 p.m. on Saturdays.  We see no reason to  disturb  this portion of the award. Another head of dispute related to work-load.  The complaint of  the union was that the workload was too heavy  and  that the  method  of  calculation  of  workload  was   arbitrary. According  to them, the workload fixed by agreement  between the Company and its employees in Delhi and Lucknow was seven machines  per  day  or 150 machines  per  month,  while  the workload  at Trivandrum was 10 machines per day.   According to  the Management the workload fixed i.e., 10 machines  per day, was not too much and there was no reason for disturbing the prevailing arrangement.  But the Management did not deny that  during the course of negotiations they had  agreed  to reduce  the  workload  to  seven machines  per  day  or  150 machines  per  month and the Tribunal adopted  this  in  the award  with  a  rider that "all the  machines  attended  to, whether  new or old, whether under the service  contract  or not,  will  be  counted  for  the  sake  of  workload".   No satisfactory  reason  has been adduced as to why  we  should disturb the award. The  last head of dispute was with regard to  "moving  staff allowance".   The  union  demanded  that  workmen  who  were deputed on tour on Company’s work should be given a day  off if they had to travel two nights consecutively.  Demand  was also made that, 169 travelling  staff should be paid overtime for the work  done on holidays while on tour at double the normal wages for the day.  The Management disputed this claim on the ground  that it was not possible to calculate the number of hours  worked by  the  employee  at the out-station while  on  tour.   The Tribunal found on examining a mechanic that the jurisdiction of  the  branch  was limited to  the  districts  Trivandrum, Quilon,  Alleppey and Kottayam and even if he was forced  to work on holidays he was given over time wages.  The Tribunal held  that  it was only just and  reasonable  that  tour-in- mechanics should be given a day off if they travelled on two consecutive days for reaching a place of work and also over- time  wages  at  double  the wages  for  the  work  done  on holidays.   It appears to us that with the limitation as  to jurisdiction  noted  above,  the  occasion  for  a  mechanic spending two consecutive nights for reaching a place of work will  arise very seldom, but if it does, there is no  reason why  he  should  not get overtime wages as  awarded  by  the Tribunal and we see no reason to interfere with this portion of the award. In  the result, the matter will go back to the Tribunal  for disposal of the issue as to the revision of wage scales  and adjustment of workers in the revised scales.  The scheme for gratuity will stand modified as indicated in our judgment in Civil Appeal No. 2105 of 1966 delivered today.  The rest  of the award will stand.  The appellant will pay the respondent the costs of this appeal. A ward modified.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

V.P.S. 170