Visakhapatnam Dock Labour Board and Dock Workers Union vs Visakhapatnam Dock Labour Board

Eswara Prasad, J.—This writ Petition was referred to this Bench on a reference made by our learned brother Ramaswamy J., (as he then was) as to whether it is competent for the Visakhapatnam Dock Labour Board to revise the datum without constituting a Committee, as required by CI. 41(2) of the Visakhapatnam Dock Workers (Regulation of Employment) Scheme, 1959. Our learned brother Sardar Ali Khan, J., took the view in W.P. No. 15814/86 dated September 9, 1987 that CI. 41(2) of the Scheme is mandatory and that the action of the Board in revising the datum without constituting a Committee under CI. 41(2) of the Scheme, is illegal, Ramaswamy J., disagreed with the above view and referred the matter to a Division Bench. Thus the matter came up before us.

Visakhapatnam Dock Labour Board and Dock Workers Union (''The Union'' for short) question the resolution dated July 27, 1985 (No. 57 of 1985) of the respondent Board, as being beyond the powers of the Board, inasmuch as the said resolution was passed without constituting and consulting a Committee, as required by CI. 41(2) of the Visakhapatnam Dock Workers (Regulation of Employment) Scheme, 1959 (''the Scheme'', for short).

The respondent-Board was established under S. 5A of the Dock Workers (Regulation of Employment) Act, 1948. The Central Govt. in exercise of its powers under S. 3 of the aforesaid Act, formed a Scheme known as : Visakhapatnam Dock Workers (Regulation of Employment) Scheme, 1959, with regard to the appointment, fixation of wages, work norms and other conditions of service for the workers registered under this scheme. The petitioner Union is a registered Trade Union representing the workmen employed in the respondent Board.

The respondent-Board passed a resolution No. 57 of 1985 dated, July 27, 1985, revising the norms and datum. The complaint of the Union is that the said resolution was passed by the Board without appointing a Committee, as required by CI. 41(2) of the Scheme, which is mandatory, and that the Board has no power to decide or revise the norms without appointing the Committee which is to fix the norms.

Sri V. Jagannadha Rao, learned counsel appearing for the petitioner, contended that fixation of norms and datum are vital matters and CI. 41(2) of the scheme mandates that a Committee should be appointed to go into the matter and that the Board will have to consider the norms set by the Committee and the norms shall be adopted as standard output required of workers and that the regulations shall be submitted by the Board to the Central Government for approval before implementation. He submits that CI. 41(2) is mandatory and has to be followed by the Board.

Sri K. Srinivasa Murthy, learned Counsel appearing for the Board, contends that constitution of the Committee under CI. 41(2) of the scheme is not different from the constitution of the Board under S. 5A of the Act, and the members of the Board will be the members of the Committee, if it were to be constituted, and that the constitution of the Committee under CI. 41(2) of the scheme is only directive and not mandatory. He submits that the word ''shall'' should be read as ''may'' in the present context, and no prejudice is caused to the petitioner-union by the Board not constituting the Committee and taking upon itself in revising the norms without the aid of the Committee.

In order to appreciate the respective contentions of the parties, it is necessary to examine CI. 41(2) of the Scheme which is statutory. It reads thus :

"CI. 41 : Wages, allowances and other conditions of winchmen, tipper, tindal and stevedore mazdoor.

.......

The Board shall appoint a Committee consisting of representatives of registered employers, Shipping companies, workers and the Port Authority and a nominee of the Central Government to determine the norms for output in respect of cargoes of different kinds, and/or Lines and/or Zones.

In fixing the norm the Committee should take into consideration the output during the last 3 years. Should the Committee not be able to prescribe agreed norms within a period of two months of having been asked to do so, the Chairman of the Board may determine such norms and submit them to the Central Government for approval. These norms shall be adopted as standard output required of workers. The same procedure shall be followed if and when a revision of the norms is considered necessary by the Board."

From a reading of the aforesaid clause, it is seen that the procedure in revising the datum is prescribed by CI. 41(2) of the scheme. The language of this provision is couched in mandatory terms. The normal rule of interpretation of statues is to read the word ''shall'' as ''mandatory'', unless the context otherwise requires that the said word ''shall'' shall be read as ''may''. Dealing with imperative and directory enactments, Maxwell on ''The interpretation of Status'' Twelth Edition, at page 314 says :

"The first question is : When a statue requires that something shall be done, or done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance, is the requirement to be regarded as imperative (or mandatory) or merely as directory (or permissive) ? In some cases, the conditions or forms prescribed by the statue have been regarded as essential to the act or thing regulated by it, and their omission has been held fatal to its validity."

Craies ''On Statute Law'', Seventh Edition at page 263 observed :

"If the requirements of a statute which prescribes the manner in which something is to be done are expressed in negative language, that is to say, if the statue enacts that it shall be done in such a manner and in no other manner, it has been laid down that those requirements are in all cases absolute and that neglect to attend to them will invalidate the whole proceeding."

State of Karnataka and Another Vs. H. Ganesh Kamath and Others, the requirement of the deposit of the amount along with election petition was held by the Supreme Court to be mandatory. CI. 41(2) of the Scheme lays down the procedure to be followed by the Board before submitting the norms to the Central Government for approval. The function to determine the norms is entrusted to a Committee to be appointed by the Board and the function of the Committee is to fix the norms. Based on the said norms, the Board prepares the regulations and submits the same to the Central Government for approval before implementation.

The contention of Sri Srinivasamurthy that the Committee even if constituted, will comprise only the representatives of the registered employers, shipping companies, workers and the Port authority and a nominee of the Central Government, which is the same composition as the Board and that no prejudice is caused by not constituting a Committee, cannot be accepted. The Committee as required by CI. 41(2) is not a sub-committee of the Board. It is always open to the Board to choose individuals from various bodies, such as, registered employers, shipping companies, workers etc., who are not the members of the Board. Further, the Scheme requires the something shall be done in a particular manner and the language used is mandatory. The second part of sub-clause 41(2) lays down that should the Committee be not able to prescribe the agreed norms within a period of two months of having been asked to do so, the Chairman of the Board may determine such norms and submit them to the Central Government for approval. Where the Committee is unable to prescribe the agreed norms within the prescribed period, the Chairman of the Board is authorised to determine the norms. The Committee not being able to prescribe the agreed norms, the negative language employed in sub-clause (2) of CI. 41 of the Scheme indicates that it is not for the Board to determine the norms without the aid of a Committee, and it is for the Chairman of the Board to determine the norms before submitting to the Central Government for approval.

We are therefore of the view that CI. 41(2) of the Scheme is mandatory and it is not open for the Board to ignore the mandatory provision by not appointing a Committee for revising the norms. It is equally not open for the Board to take upon itself the functions of a Committee in fixing the norms. The Board has to function within the provisions of the scheme, and has to scrupulously comply with CI. 41(2) thereof. The manner in which it shall act in the matter of fixation or revision of datum having been specifically ordained, no other manner is permissible. Departure from or defiance of the procedure prescribed by law by the authority - in this case, the Board cannot be condoned by asserting that departure or defiance did not cause any prejudice to the petitioner. The very fact that law has been defied by the authority which is but a creature of the statute is good enough justification for the petitioner to approach this Court. As the Board has no power to fix the norms without the aid of a Committee it is not necessary for the petitioner to prove the prejudice caused to it. We do not, therefore, agree with Sri Srinivasa Murthy that in the absence of any prejudice being caused to the petitioner, the writ petition should be dismissed. When the statutory provisions of the scheme are violated and the norms are fixed by the Board, without constituting the Committee or consulting the Committee, the resolution of the respondent-Board dated July 27, 1985, cannot be allowed to stand. We are entire agreement with the view expressed by Sardar Ali Khan., in Writ Petition No. 15815/86 dated September 9, 1987.

In the view we have taken as above, the writ petition is allowed and the resolution of the respondent-Board dated July 27, 1985 is held to be not in accordance with law and the respondent is directed not to implement or enforce the said resolution. No order as to costs.