1974 PLP 78 (PLC)

In the case Rana Muhammad Jamll v. The Punjab Road Transport Board, Lahore and others", it was observed :‑ "Statutory provisions which require the laying of the rules or regulations made under the Act, before the Legislature without attaching any condition of invalidating them if they are not so laid are directory in nature and not mandatory."

5. The learned counsel for the respondent contended that if a mode is prescribed expressly in law, then all other modes are necessarily forbidden the intention of the Legislature is to be searched from the provision and the surrounding circumstances which led to the provision. He further contended that where some provision creates new obligations, it is a mandatory provi sion and not directory. In this connection the learned counsel urged that previously the provision regarding the sending of a copy of a notice of strike to the Labour Court was not there but it was added only on 13th April 1972, therefore, this provision is mandatory. In support of his contention the learned counsel relied on the following rulings :‑- "In Col. Bashir Hussain and 10 others v. Land Acquisition Collector Lahore Improvement Trust, Lahore and 2 others" (P L D 1970 Lah. 321) it was held :‑ "It is an accepted principle of law that if a statute requires something to be done and also prescribes the mode for doing it the requirements of law can be fulfilled by the act in the manner prescribed." In Nazir Ahmad v. King‑Emperor (AIR 1936 P C 253), it was observed :‑ "The rule which applies is a different and not less well recognized rule, namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all‑other methods of performance are necessarily forbidden." In Ghulam Abbas v. State (P L D 1963 Lah. 101), it was held :‑ "It is well settled that where a power is given to a particular person to do a certain thing in a certain way, the thing must be done in that way or not at all ; other methods of performance are necessarily forbidden." In the case, Muhammad Sharif v. Sh. Muhammad Rafiq, Settlement and Rehabilitation Commissioner, Lahore and 2 others (P L D 1968 Lah. 263), it was held :‑ "That when a particular act is directed by the Legislature to be done in a particular manner it should be done by that and that manner alone." In the case, Chairman, Evacuee Trust Property, West Pakistan v. Muhammad Din and another (P L D 1971 Lah. 217), it was held :‑ "Whenever a statute limits a thing to be done in a particular manner it necessarily includes in itself a negative viz., that the thing shall not be done otherwise." In the case, Mst. Sardar Begum v. Lahore Improvement Trust, Lahore (P L D 1972 Lah. 458) it was held that sections 9, 11 and 16 of Land Acquisition Act I of 1894 requiring particular thing to be done in a particular way, the provision of such law must be complied with. Failure to do so renders proceedings invalid. There is no dispute regarding the principle laid down in the aforemen tioned rulings. This principle only applies to the mandatory provisions and not to the directory provisions in an enactment. In the case, Tenzeem‑e- Mulazamin Baldiya v. Government of West Pakistan" (P L D 1971 Kar. 535), it was held :‑‑ "The use of the words such as 'may' or 'shall' as representing the permissive or compulsive nature respectively of the act intended to be done has long ceased to be a conclusive and unerring index to the intention of the Legislature. To ascertain the real intention of the Legislature it is necessary to examine the subject‑matter, the scope and the object of the enactment; whether the act creates public duties or confers private rights; whether any injury will result from ignoring it; whether it requires some antecedent and pre‑requisite conditions to the performance of an act or taking of a proceeding in order to invest it with validity." This ruling in fact helps the appellant because in order to ascertain as to whether a provision is mandatory or directory, one has to examine the scheme, scope and object of an enactment in order to ascertain the intention of the Legislature. Scope no injury will result if a copy of the notice or strike is not sent to the Labour Court, this provision is not mandatory but directory. The learned counsel for the respondent further contended that if~ some duty is cast on an individual towards a public servant, the provision is mandatory. In the present case he argued that a duty had been cast on the Trade Union towards the Labour Court in sending a copy of the notice of strike to it. The provision is mandatory. In support of this contention he relied on the case "Abdul Latif Khan v. The Province of East Pakistan and others" (P L D 1970 Dacca 350), wherein it was held that in order to ascertain as to whether a particular, statutory provision is mandatory or directory, it is the duty of the Court to apply the recognised rules of interpretation of statutes and to carefully examine the scope and purpose of the statute and thereby to ascertain the real intention of the law‑maker in enacting a particular provi sion. This ruling also helps the appellant instead of the respondent. In the case "James Finlay & Co. Limited v. Aminul‑Islam and others" (P L D 1969 Dacca 571) it was observed: ‑‑ "It is true that difficulties at times have been felt to determine whether a certain provision of a statute is directory or mandatory. In a case where the Legislature itself has expressed its opinion as to the con sequence of non‑compliance with such a direction no difficulty arises. But in a case where the Lagislature does not indicate its mind as to the consequence for violation of provisions the Court has to consider whether the instruction of the Lagislature is merely directory or man datory. This has to be construed by reference to the object intended to be achieved or other surrounding circumstances." In the present case since there is no penalizing clause for not sending al copy of the strike notice to the Labour Court, this provision in my view is directory and not mandatory. I am fortified in this view by the judgment of the Supreme Court in the case "Sutlej Cotton Mills Limited, Okara v. Industrial Court, West Pakistan, Lahore" (P L D 1966 S C 472). At pages 476 and 477 it is observed:‑ "As regards the first point it is pointed out that under subsection (4) of section 5 of the Industrial Disputes Ordinance, 1959, if no settlement is arrived at before a conciliation officer, in the case of a public utility service within 14 days and in any other case within 28 days of the commencement of the conciliation proceedings, the conciliation officer shall at the close of the said period, issue a certificate to the parties to that effect, provided that the period of conciliation proceedings may be extended by the mutual consent of the parties of this dispute. There was no such extension by mutual consent in this case and, as such, it is contended that under the above provisions the Failure Certificate had to b: issued within 14 days of the failure. In the present case the failure admittedly took place on the 27th February 1961, but the certificate was not issued until the 16th of March 1961. It is, therefore, argued that the failure to issue the certificate in time invalidated the entire reference to the Industrial Court. We are un able to find anything in section 5 to indicate that the failure of the conciliation officer to comply with the direction contained in sub section (4) with regard to the issuance of the Failure Certificate necessarily renders the reference incompetent, for all that subsec tion (3) of the said section says is that "any party to whom a certificate has been issued under subsection (4) may make an application to a Court for adjudication and determination of the industrial dispute or any matter constituting such dispute. There was no such extension by mutual consent in this case and, as such, it is contended that under the above provisions the Failure Certificate had to b.: issued within 14 days of the failure. In the present case the failure admittedly took place on the 27th February 1961, but the certificate was not issued until the 16th of March 1961. It is, therefore, argued that the failure to issue the certificate in time invalidated the entire reference to the Industrial Court. We are un able to find anything in section 5 to indicate that the failure of the conciliation officer to comply with the direction contained in sub section (4) with regard to the issuance of the Failure Certificate necessarily renders the reference incompetent, for all that subsec tion (5) of the said section says is that "any party to whom a certificate has been issued under subsection (4) may make an application to a Court for adjudication and determination of the industrial dispute or any matter constituting such dispute. This section does not itself provide the consequence of such failure on the part of the conciliation officer nor have the parties before the con ciliation officer any control over his actions. In the circumstances, the direction in the statute as to the time within which conciliation officer is to perform a public duty cannot be regarded as a mandatory provision." The learned counsel for the respondent lastly contended that even if a provision is directory, it does not mean that it is redundant and there ought to be a substantial compliance of it. In support he relied on the judgment of the High Court in the case "Ghulam Nabi Shah. v. Collector & Controlling Authority, Arija Union Council, Larkana and others" (P L D 1964 Kar. 542), wherein it was observed:‑ "Turning now to the second objection of counsel for the petitioner that copy of the resolution was not forwarded to the petitioner within three days, although sub‑rule (7) of rule 6 of the said rule lays down that it shall be so forwarded, we may observe that the learned Addi tional Advocate-General met it by contending that no harm could come nor has come to the petitioner by virtue of the omission. The counter‑affidavit indicates that this provision was violated "as usual." We do not approve of this latter attitude towards positive provisions of the law even if they be inconvenient. The provision is directory and not mandatory, which does not mean that it is redundant or useless. On the contrary, as pointed out by Maxwell, it is meant to be obeyed substantially. As substantial observance is the main considera tion, it is not correct to say that in no case its breach can create an invalidating effect on the action taken in breach of it. Ballantine's Law Dictionary contains the observations on the basis of American authorities, that the defence between the invalidating effect of the breach of mandatory and directory provisions is that the latter is to be determined by the Courts having regard to the circumstance of each case. To treat a directory provision as entirely unnecessary or simply optional would amount to interference with Legislative power. Even when the breach of a directory provision does not create an invalidat ing effect the wrongdoer may be exposed to a penalty for his negli gence. Black's Law Dictionary has emphasised this aspect as follows:‑ "The general rule is that the prescriptions of a statute relating to the performance of a public duty are so far directory that, though neglect of them may be punishable, yet it does not affect the validity of the acts done under them as in the case of State requiring an officer to prepare and deliver a document to another officer on or before a certain day." The ruling does not help the respondent because the breach of directory provision does not create an invalidating effect.

5. In the result I accept the appeal, set aside the order of the Court below and remand the case back to it for proceeding in accordance with law. Appeal accepted