STATE OF UTTAR PRADESH v. LAKSHMI ICE FACTORY & Ors.

the award immedhtely. Factories to implement Thereupon the Ice Factories moved the High Court at Alh.h1,b<t'1 on J'1nu'try 3, 1957 uuder Art. 226 of the C'.lnstitution for writs qu!l.shing tll8 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. B:v a judgment passed on September 23, 1959, the High Court allowed the petitions of the Ice Factories and issued writR quashing the Notifica tion 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 for appointing special order (1) by general, or IndustriP 1 courts, (2) for referring any industrial dispute for adjudication in the manner provided in the order and (~)for matters incidental or supple mentary to the other provisions of the order. Under this power issued an the Government had Order dated July 14, 1954 and this Order is here after called the "Statutory Order." It was under powers conferred by the Act read with the Statutory Order that the Government had issued tho N otifica tion of February 10, 1956. In exercise of powers confrrred by cl. 8 of the Statutory Order the GoYernment had set up the · Tribunal. ClauRe 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 :md dated and ·signed by the member or members of the Tribunal, as the case may be, at the time of pronouncing it." Clause I 1 of the Statutory Order gives power to Government to refer any industrial dispute to the Tribunal. Sub-clause (9) of cl. 9 of the Statutory Order State of Uttar P1adejh v. La~shmi lee Factory Sarkar J. • J9G2 8f11!t of Uttar f',Qdtsh v. L'l~lhmi let F.Jctory Sarkar .J. • 62 SUPRE~IE COURT REPORTS (1962] SUPP. gives power to the Tribunal to make Standing Orders relat.ing to its practice and procedure. Under this sub-clause the Tribunal framed certain Standing Orclcrs. 8tanding Orrlcr N'o. 36 provided. ",Judg ment shall be pronounced in open court either immediately aft1•r the close of the arguments or on a subsequent date of which previous notice shall be given to thn parties. It shall then bn signe<l and dated by the Tribunal." Acting presumably un<ler Standing Order No. 36, the Tribunal in tho preRent ca~e had fix!>rl a date on which it would pronounce its judgment in open court.. This date d&R not. appear on the recorrl hut on September 2;;, 190ll. the Tribunal informed the parties that the date for pronouncing the award had been changed to October· !l, l!l5fl. On that date, however, the award \\"U~ not pronoun in open court, nor was any intim>ttion of any other <late for its pronouncement gh·en to the part.iPs. Th<• Ire Factories first came to know of the making of the award from th<• IPtter of the Jll'gistrar of the Tribunal date1l ~ovPmher 8, 1!)56 ea~lier referred to. The award harl in fact, ne,·er heen prnnounced in opPn court.. The first question is whether the provisions in suh cl. (i) of d. !l nrc imperat.i"<"c. The High Court. held that. they wi:-re and thereupon ciuashe<l the ~otific'ltion publi~l1ing the awn.rd. The appcl !Ants contend that the High Court was in error arid that the proYisions arc only directory and that tho failure of· th<' TrilJ11nal to pronounce thf' award in open Cnurt. did n·it result in thr a\rnrd l1ceoming \•oid. The Jee Fantories conl("nd for the rontrnry view. Mr. Aggarwala for tho nppellnnts rP.ferred us to the rulP of cnn~truction •tat.er] in llfa:rn ell rn Interpretation of Statutes, 10th ed. at: p. 381, which iR as followA: "Whcne the prf'~<·ript.ionA of a statutc the performance of a public. duty ond r!'late to 1962 State of Uttar Pradesh v. Lakshmi Ice Facfory S-.irkar J. 3 S.C.R. SUPREME COURT REPORTS 63 where the invalidation of acts done fo neglect of them would work B()rious general inconvenience or injustice to persons who have no control over those thP, duty without promoting the entrusted with essential aims of the Legishture, such prescriptions seem to be generally understood as mere instrur~ tions for the guidance and government of those on whom the duty is imposed, or, in other words as directory only''. Ho said that sub cl. (7) of cl. 9 of the Statutory Order imposed a public duty on the Tribunal and as none of the contesting partiP.S to the proceedings before the Tribune,] had any con trol 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 disre.> gard 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 ]lold the prescriptions in a statute as to the perfor mance 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 in the statute now before us. The mle may be illustrated by reference to the case of JJfontreal Street Railway Go. v. Normandin(') 'which is cited in MaxwPl!'s book. That was a case in ;vhich certain st11t11tury provi: sions as to how the jnry list was to b" revised had not been followed and the question arose whether the verdict of a jury empannellcd out of a list revised in _ disregard of the provision was a nullity. It was held that the verdict was not a nu!lit.y as the provision tbe revision of the jury list was merely regarding 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 jurorn likely to attend a.nd lastly to prevent packing of the jury. It Wits said that "It docs far less harm to allow cases tried hy a jury former! as this one was (ll [1917] A. C. 170. • ·• 1!162 Stal,. of l...:ttn, Prad;~h Y. Laksl, mi la FarfOI)' Sarkar .J, 64 SUPREME COURT REPORTS [I!H12J SUPP. with the opportunities there would ho ohject to any unq1mlified man called into tho hox, t~ stnnd irood, than to hold the proceedings nnll and voi<l. So to bold would not, of course, prevent the court.s Q'ritnt.in!! now trials in casoR where there was rP.a•on trial had not bePn had": (P. l 7!l). think that a The case in bantl is whollv difforont. Th" prooeodinQ'B that were had hef'orP the Trihunnl .wonlrl not becomA null and void if we hold cl. 917) of tho Statut.-0rv Or<ler to he imperativP. A view that. the nrovi•ion was imperative woul<l can~" no sPrions hardRhip to anv one. The Government. can alwavs require the Tribunal t.o prononncp it.s drrision in open court, Pxtending, if nec<>ssarv for I.he pnrpORf' .. tho time fixed for gh·ing its ilPcision. Eithrr part.v to t.hc proMP<l ing can also ask the Gnvernment. to call upon the Tribunal to nronmmce it.s awnrd in open conrt. There is no doubt that tho Gm·Prn· ment will so ca.ll npon the Tribunal when t.he <l"f1wt. is brought to its notice for tho Govornmrnt itsl']f referred the matter to the Tribunal for its <lecision. As soon as the Trihnnn 1 pronounces its award in open court, the proceedings ,dll °beMrne ·fully effcc· ti\•p, It is also an accepted rule of construction that 1ma.otmentR regulating the nroce<lure in courtf! ar1> usnallv imperative : Maxwell on Interpretation of Statutes, I 0th ed. p. 379. It further appears to us 1hat tho object of th" legislaturf'\ won Id bo defeated hy rl':.iling cl. 9(7\ of the Statut.orv Order as Mnt.riin ing a provision which is merelv directory. W" now procecrl to ascertain that ohject. from tho other provisions in the Statutory Oriler, the Act anrl connected legislation. SMtion fl of tho U. P. Act proviiles as follows:- (I) When an authority to which An industrial disput-0 has been referred for 3 S.C.R. SUPREME COURT . REPORTS 65 adjudication has completed its enquiry, it shall, within such time as may be specified, submit its award to the State Government. (2) The State Governlll!:nt may ..... . enforce for such period as it:"fuay specify all or any of the decisions in the award. 196:! State of Uttor Ptaliesh v. Laksluni Ice Factory Sarkar J. It was under this section th&t the Tribunal submitted its award to the Government and the Government issued the Notification in the Gazette dated Decem ber 15, 1956 earlier mentioned and directed that the award be enforced for 3! period of one year from the date of the publication. 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 cl. (7) of cl. 9 of the Statutory Order that the deci sion of the Tribunal shall be in writing is imperative, ~his would be an indication that the other provi sions in the same sub-clause connected with it were intended to be equally imperative. Then we find that cl. 18 of the Statutory Order is in these terms : "The Tribunal or the adjudica tor shall hear the dispute and give its or his decision within 180 days (excluding holidays but not annual vacations observed by courts subordinate to the High Courtj 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 provi sion in this clause in clearlymandatory. The Tribunal : has no power to make an award after the time men , tioned in it; if it had, the proviso to cl. 18 would be wholly unnecessary. The result therefore is that it is 1962 State of Uttor Pradesh v. La/t;J/imi Jc, Factory Sarkar J. 66 SUPREME cou1iT REP01i'rs [1962) stJ.t>t>. its decision obligatory on the Tribunal to give within 180 days from the date of the reference. A decision given, that is an award made, boyoud this period would Le . a nullity. Now when cl. 18 talks of giving a decision, it can only mean· giving it iri the manner indicated in sub-cl. (7) of cl. !J uf the Statutory Order, that is, by pronouncing it in open court, for that" is the only manner of giving It a decision which that order contemplates. would follow that the terms of cl. 9(7) were impe rative, for otherwise no one would know whether the terms of cl. 18 of the Statutory Order had bc<'n complied with, that is to say, no one would know whether the award was void or not. The provisio1:s of cl. 18 m&y thus be rendered nugatory by hc,l<l ing cl. 9(7) to ho only directory. It would follow that unless the provision as to the pronouncement of the award in open court was mcndatory, the int-0ntion of the framers of the Statutory Ordc; would be defeated. Sub-clause (2) of cl. 24 of the Statutory Or<ler also leads to the same conclusion. That sub-clause is in thPse terms : "Clerical or arith· metical 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 ita or his mm motion or on the application of any of the partie5.'' Under this rule therefore clerical or arithmetical errors or slip~ may be correct~d within one month of the giving of the decision and the part.ies have right to apply for such corrections within that t.ime. The Tribunal has no right to correct an error be yond that time. Nor has a party a right to move tho 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

196.I State ~J Uttar Pradesh v. Lokshrr.i le~ Factory ~ tfrkor J. , 3 S.C.R. SUPRiJiME CODRT REPoR'tS ~I,. 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 pro nounce 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 pronoun cing 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 els. 18 a.nd 24 (2) have been complieg 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 con clusive and shall not be questioned by any party in any proceedings." The Industrial Dis thereto putes (Appellate Tribunal) Act, 1950 provides for appeals from decisions of certain Industrial Tribu nals to the Appellate Tribunal established under it. Clause 31 therefore makes a decision of the Tribu nal on a reference to it final subject to an appeal if any allowed under the Industrial Disputes (A ppe llate Tribunal) Act, 1950. Under s. 7 of the Act of 1950, an appeal shall lie to the Appellate Tribu nal 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 s. 2(c)(iii) of the Act of 1!150. 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 1961 Btall of Uflar Pradt:1h v, Lak.shmi Jee Fatf01y Sarkar J. 68 SUPREME COURT REPORTR [1962] SUPJ'. It would there the provisions of the Act of 1!)50. fore appear that an appeal would lie under the Act of 1950 tu the Appcllat~ Tribunal constittlted unclcr it from a docision of a Tribunal set up under the Statutory Order. No"' u11dcr s. I 0 of the Act of l!JiiO, an ~p1wal is <·oinpetcnt if preferred within thirty days from th<· date of the publication of the award where such pub Ii cat ion is provided for by the law under which the award is made, or from the date of the maki11g of the award where thf:'re is no provi sion for such publication. Now the C'.P. Act or the Statutory Order does not provide for any publica tion of an award. Therefnrn an appPal from the Tribunal ort. up under the St1itutory Order has to be filed within thirty clays 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 !'Bable them tu avail themselves of the right of appeal. This cannot be known unless tho judgment i~ pronouncer! in open court for the date of award is the date of its pronouncement. Henco again pronouncement of the judgment in open court is ess<"ntial. [fit were not so, the provisions for appeal might be n·n<lcrcd i11efl'ective. For all these reasons it seems to us that the clear intention uf the legislature iH to make it imperative that judgmPnts should be pronounC<~d in open court by the Tribmial and judgments not so pronounced woulcl therefore be a nullity. In the view that we have taken it is unneces· Hary tu deal separately with Standing Order No. 36. The provisions of that Sttl.nding Order and cl. 9( 7) of the Statutory Order are substantially the same. They should therefore be interpreted in the same In any case since we have held the cl. 9(7) way. to be imperative, it would of the Statutory Order not matter whatever view iH taken of the Standing Order for the latter cannot affect the former. 1962 State of U tear Pradesh v. Lakshmi lee F tJClory Sarkar J. 3 S.C.R. SUPREME COURT REPORTS 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 St.'ltutory Order and the Standing Order both of which were made under powers contained in the in conflic1; with s. 6 and of Act, were therefore 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 impe rative 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 under s. 3. The provision as to the pronouncement of the decision in open court in cl. 9(7) of the Statutory Order clearly is within the powers contemplated ins. 3(gl. Section 6 does not prohibit the making of such a Its main purpose is to direct that the provision. Tribunal shall submit the award to the Government so that it may be enforced. It has nothing to do with the mam1er i~ which tho Trib111111! js to ma~e • I 70 SUPREME COURT REPORTS [1962] SUPP. 1962 Shtenf Utlar l'radtth v. La~sf.mi !cl F•clory 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. H. The result is that these appeals fail and are Sark•r J, dismissed with costs. Appeals di.smis.~ed. I9Ct Feirlmr;• i'. RA:IIA KRISHNA RAMANA'J'H v. THE .JANPAD SABHA, GONDIA (B. P. 81'.l'HA, C .. T., K. Sr:BBA R..i.o, ~. RA.JAGOPAT.A An'ANGAP., .J. R. Mr:DHOLKAR and T. L. VENKATARAMA AYYAR, J.J.) !Jegi~lative /)nu·er-'1 1errninal Tax-[n1pru1ition by Dist.rirt Counr.il under Proi:i11cirzl Strif?t!r:-Con.'ltitution .4ct Placing ta:r }'etl".ral Legis{afit'e List-i'Jciring 7)rrn:ision-Po1l'er of l)ro1·;ncin.l legislatur~ to continue ta:r-C.l'. and lferar local Self Uot'unw:nt Act, 1920 (C. P. 4 of 1920)-C.P. aud llerar J.oco! IJ01,ernm.ent Act, 1948 (C.P . .18 of l.?48). s. /!12-C.l'. and Bmn· f,oca.l G'o;·mzment (Amendmwr) Act, 1.?49 (':.P. 32 nf /!149)--G'overnment of India Act, 104J (.1G <Im. 5 CJ" 2. ), 8. J.13 (2). Cnder the C. P. and Berar Local Self Government Act 1920, the District Council of Bhandara. in 1925, imposed a te<minal tax on the export of bidis and birli lea\-cs by rail out of Rhandara district. By the Govrrnrnent of India Act, 1q35, ter1ninal tax '"'as included in the Federal Legislati\•e List but s. 143 (2) of the Act prO\·idecl that such a tax which was being la\vfully levied under a la\\' in force on January I, 1935, n1ay continue to he levied until provision to the c0ntrary was macic hy the Federal l.c~gi~lature.. 1~he District Council continued to leavy and collect thr: tax. In 1948 the C P. an<l Berar Local Government Act, 1948, can1e into force which repealed the 1920 Act. the District Council, Bhandara, with three Janapada Sabhas. Clause (c} of the proviso ti> the saving section s. 192 provided that aH rates, taxes an<l cessr.s due to the District Council sh~II be de~u1ed lo be due to the Sabha to whose ar<a they pert'ltl\Cq. It replaced