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 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 section 171 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 section 17 of the Act was mandatory
Our attention was also drawn to 165 sub section
2 of section 17 according to which it is only the award published under sub section
1 of section 17 that is final and cannot be called in question by any court in any manner
We were also referred to section 17 A and section 19
Under sub section
1 of section 17 A an award becomes enforceable on the expiry of thirty days from the date of its publication under section 17 and under sub section
3 of section 19 an award is to remain in operation for a period of one year from the date on which the award becomes enforceable under section 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 section 171 it could not be given effect to
To fortify his argument learned counsel relied on certain observations of this Court in The Sirsilk Ltd vs Government of Andhra Pradesh1 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 section 17 of the Act was mandatory
The appellants filed writ petitions before the High Court of Andhra Pradesh under article 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 section 17 was mandatory and it was not open to Government to withhold publication
The contention on behalf of the appellants was that section 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 section 17 and section 17 A together that the intention behind section 171 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 sections 17 17 A 18 and 19 it was observed that though section 171 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 section 181 and section 183 and in such a situation the only way to reconcile the two provisions is to withhold the publication of the award as a binding settlement has
already come into force   1   452 166 Reference was also made to the case of Erumeli Estate vs Industrial Tribunal 1
There the question directly arose as to whether non publication of the period mentioned in section 17 1invalidated 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 section 171 results in postponing its finality under section 17 2 or its becoming enforceable under section 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 vs Babu Ram Upadhya2 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 section 171 is merely directory and not mandatory
Section 171 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 LLJ 144
2  19612 SCR 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 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 vs Government of Andhra Pradesh1 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 DA 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  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 only for five days in a week from 9 a m to 1 p m and 1 45 p m to 5 30 pm
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 930 am for clerks and 9 am 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 930 am to 1 pm and from 2 pm to 530 pm on working days and from 930 am to 1 pm 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 ie 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


Summary:
Section 171 of the  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 vs Government of Andhra Pradesh   452 explained
The State of Uttar Pradesh  Others vs Babu Ram Upadhya   710 followed
Erumeli Estate V Industrial Tribunal 1962 II LLJ 144 referred to