State of Uttar Pradesh Vs. Lakshmi Ice
Factory & Ors  INSC 46 (7 February 1962)
07/02/1962 SARKAR, A.K.
CITATION: 1963 AIR 399 1962 SCR Supl. (3) 59
RF 1992 SC1277 (22)
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).
The Government of Uttar Pradesh under s. 3 of
Industrial Disputes Act, 1947, and the
Statutory orders framed there under 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 subcl. (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
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 court is therefore not in conflict with s. 6 of the Act.
Montreal Street Railway Co. v. Normandin,
 A. C. 170, referred to.
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 Officer 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 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
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. Normand in (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)  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 anyone. 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
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
Since the award has to be submitted to the
Government by the 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 omission
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 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
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
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.