1976 PLP 567 (PLC)

This is an appeal against an award dated 24-4-1973 of the Punjab Labour Court, Central Zone, Lahore.

2. The facts of the case are that the Traders Co-operative Bank Staff Union, Sialkot, appellant filed an application under section 32(1-A) of Indus trial Relations Ordinance, 1969 for the adjudication of the dispute raised by them. The respondents, namely, Traders Bank Limited, Sialkot and the Admi nistrator, Traders Co-operative Bank Limited, Sialkot, raised some prelimi nary objections one of which being that the appellant had not complied with the provisions of section 29, Industrial Relations Ordinance, 1969, in so far as a copy of the strike notice which they had sent to the Conciliator had not been sent to the Labour Court. The appellant conceded the above facts and the Court below held that since the industrial dispute had not been raised in the prescribed manner as mentioned in section 43 of Industrial Relations Ordinance, 1969, the petition was not competent and dismissed it as such.

3. Section 28 of Industrial Relations Ordinance, 1969, lays down that the period of notice of lock-out or strike even under subsection (3 of section 26 shall be fourteen days. Section 29 lays down that where a party to industrial dispute serves a notice of strike or lock-out under section 26, it .4 shall, simultaneously with the service of such notice, deliver a copy thereof to the Conciliator who shall proceed to conciliate in the dispute and to the Labour Court. Section 30 provides that the Conciliator shall, as soon as possible, call a meeting of the parties to the dispute for the purpose of bring ing about a settlement. Section 31 provides that if conciliation fails the Con ciliator should try to pursuade the parties to agree to refer the dispute to an arbitrator. Section 32 provides that if no settlement is arrived at during the course of conciliation proceedings and parties do not agree to refer the dispute to an arbitrator, the workmen may go on strike or, as the case may be, the employer may declare a lock-out on the expiry of period of notice under section 28 or upon a declaration by the Conciliator that conciliation proceedings have failed, whichever is later. Section 32(1-A) provides that a party raising a dispute can at any time either before or after commencement of strike or lock out, make an application to the Labour Court for adjudication of the dispute. Section 3 i (2) provides that where a strike or lock-out lasts for more than 30 days, the Federal Government, if it relates to a dispute which the Commission is competent to adjudicate and determine, and the Provincial Government, if it relates to any other dispute, may, by order in writing, prohibit the strike or lock-out, section 32 (3) provides that in any case in which the Federal Government or the Provincial Government prohibits a strike or lock-out, it shall forthwith refer the dispute to the Commission or, as the case may be, the Labour Court. Section 32(4) provides that the Commission or, as the case may be, the Labour Court, shall after giving both the parties to the dispute, an opportunity of being heard, make such award as it seems fit.

4. From the perusal of the above it is clear that the Labour Court has no function to perform till the dispute is either referred to it or any party comes before it, whereas, a Conciliator has a specific function to perform, when a copy of the strike notice is sent to him. Therefore, the provision regarding the sending of a copy of strike notice to the Conciliator is mandatory but the provision regarding the sending of a copy of the strike B notice to the Labour Court is only directory. Further it is also clear that when the Labour Court starts adjudicating an industrial dispute, there is no provision in any law which lays down that if a copy of the strike notice ha not been sent to it before, it cannot adjudicate the dispute. In the case, State of U. P. v. Manbodhan Lal Srivastava and another v. State of U. P. (PL D 1958 S C (Ind.) 170,), it was observed :- "The principle laid down in this case was adopted by the Federal Court in the case of Biswanath Khernka v. The King-Emperor A I R 1945 F C

67. In that case, the Federal Court had to consider the effect of non-compliance with the povisions of section 25 of the Government of India Act, 1935, requiring consultation between public authorities before the conferment of magisterial powers or of enhanced magisterial powers, etc." The Court repelled the contention that the provisions of section 256, aforesaid, were mandatory. It was further held that non-compliance with that section would not render the appointment otherwise regularly and validly made, invalid or inoperative. That decision is particularly important as the words of the section then before their Lordships of the Federal Court, were very emphatic and of a prohibitory character. An examination of the terms of Article 320 shows that the word "shall" appears in almost every paragraph and every clause or sub-clauses of that Article. If it were held that the provisions of Article 320 (3) (c) are mandatory in terms, the other clause or sub-clauses of that Article will have to be equally held to be mandatory. If they are so held, any appointments made to the public services of the Union or a State, without observing strictly, the terms of these sub-clauses in clause (3) of Article 320, would adversely affect the person so appointed to a public service, without any fault on his part and without his having any say the matter. The makers of the Constituton could not have contemplated this result. Hence, the use of the word "shall" in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding, or the outcome of the proceeding, would he invalid. On the other hand, it is not always correct to say that where the word "may" has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceedings invalid. In that connection, the following quotation from Crawford on Statutory Construction'. Article 261 at page 516 is pertinent: "The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature anti not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and those are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in the one way or the other." In the case Abdul Majid v. Province of West Pakistan (P L D 1964 Lab. 531), it was ob served :- "As regards the construction of the sub-rule (2) of rule 3 it will be seen again that it is expressed in affirmative language: Seven clear days' notice shall be given. The word "clear" emphasizes that both the terminal days, i.e. the day on which the notice is given and the day on which it is received have to be excluded. I consider that the sub-rule is couched in words of command but the command is directory in nature and is not absolute and obligatory in the sense that its non compliance or disobedience nullifies all the incidents connected there with and the consequences flowing therefrom." In the result, I hold that the provision regarding the sending of a copy of a strike notice to the Labour Court mentioned in section 29, Industrial Relations Ordinance, 1969, is directory and its non-compliance does not to any way contravene the provisions of section 43 of industrial Relations Ordinance, 1969. I, accordingly, accept the apppeal, set aside the award of the Court below and remand the case back for proceeding in accordance with law.