JUDGMENT B.L. Yadav, J.
1. Whether a settlement after an award between employer, the petitioner, and the workmen, the contesting respondents, can be held to be valid and binding even though it was arrived at in violation of the principles contemplated under Section 6B of the U.P. Industrial Disputes Act, 1947 (compendiously, the Act) and Rules 26 and 27 of the Rules framed under the Act (compendiously, the Rules), whether for upholding a settlement it must be based on public ground affecting social justice and where an act has been indicated by the legislature to be performed in a particular mode, can that be performed otherwise, are the short but significant questions that fall for determination in these two analogous writ petitions filed by the employer under Article 226 of the Constitution, seeking the relief for issuance of a writ of certiorari quashing the order : dated July 9, 1986 (received on July 16, 1986, Annexure No. 11) passed by the Regional Deputy Labour Commissioner, U.P. in the form of recovery certificate under Section 6-H (1) of the Act read with Rule 33 of the Rules, directing the employer to pay the amount indicated, payable to different workmen including respondent Nos. 2 to 10, as the arrears of the wages payable on the basis of an Award dated April 26, 1983 (Annexure No. 1) in Adjudication Case No. 26 of 1982. In that Award, retrenchment of the workmen was held to be illegal and consequently, the employer (Petitioner) was directed to reinstate the workmen with back wages and other amount payable to them, treating their services in continuation since the date of retrenchment. As these petitions involve similar questions for determination, consequently it is convenient to dispose them of by a common judgment.
2. The facts of the writ petitions lie in narrow compass. The petitioner had employed workmen (Respondents No. 2 to 10) in Writ Petition No. 13476 of 1986 (for short, the first writ petition) and respondent Nos. 2 to 7 Writ Petition No. 13478 of 1987 (for short, the second writ petition). The services of these workmen were retrenched, under Section 4-K of the Act, the matter was referred to the Labour Court, U.P., Meerut and the Labour Court has given Award dated April 26, 1983 (Annexure 1) in the first writ petition. In the second writ petition also the retenchment of the workmen was held to be illegal and the Court directed their reinstatement with back wages and other admissible amount. It was stated by the petitioner that a writ petition was filed against the Award and some stay order was also obtained, but thereafter some settlement was arrived at on behalf of the employer and the workmen, whereby latter agreed to have lumpsum amounts and thereafter they would not press for their continuance in service. A copy of the agreement/settlement dated August 7, 1984 is filed as Annexure 2 to this petition, and in pursuance of that settlement, the workmen joined, but later resigned. This settlement was sent to the Deputy Labour Commissioner, respondent No. 1, who wrote a letter to the employer with a direction to get the settlement verified (Annexure No. 3). That settlement was verified. But the letter dated April 17, 1985, was received by the petitioner in both the petitions, indicating that the amounts mentioned in the recovery application of the workmen were not paid and the employers were directed to explain the same. The petitioner explained it, but again another letter dated June 15, 1985 was received (Annexure No. 9), which was replied by the petitioners, but thereafter an order under Section 6-H (1) of the Act was passed by the respondent No. 1 on 9th of July, 1986 (Annexure 11). By this order, petitioners in both these writ petitions were directed to pay the amount to the workmen in the applications. Against this order, the petitioners have preferred the present petitions seeking relief for issuance of writ of certiorari quashing the order dated July 9, 1986 (Annexure No. 11).
3. Sri S.N. Singh and Sri R.N. Singh, learned counsel for the petitioner, contended that as the matter has been settled between the employer and the workmen and they have joined the service on July 30, 1984 (Annexure Nos. 4 & 5), but on July 31, 1984, the workmen resigned. This settlement was valid and binding irrespective of the procedure contemplated under Section 6-B of the Act and Rules 26 & 27 of the Rules which were directory and not mandatory. The settlement could not have been rejected under law and the Regional Deputy Labour Commissioner committed a manifest error of law in holding otherwise under the impugned order, directing recovery from the employer in both the petitions.
4. Sri G. C. Geherana, the learned counsel representing the workmen in both these petitions, refused the submissions of the learned counsel of the petitioner and urged that the settlement was otherwise in the course of conciliation proceedings, hence unless it was registered under Section 6-B (2) of the Act, after following the; procedure under the Rules 26 & 27 of the Rules, it could not be binding under Section 6-B (1) of the Act, as the registration was obviously refused. These provisions were mandatory and not directory. The registration could be made only when settlement was expedient on public ground effecting social justice. It appears that the registration was inexpedient. Consequently, it was refused and the said settlement has no binding effect on the workmen. As the provisions under the Act are a piece of social beneficent legislation with a view to render social justice to the workmen and the social justice is the cherished goal under the preamble of our Constitution, which is a vehicle of the aspirations of the Indian people, hence the provisions pertinent to render social justice have to be scrutinised and the procedure contemplated under Rules 26 & 27 of the Rules, to ensure justice to the workmen by getting it registered, have to be strictly followed. The legislature has laid down a particular mode for arriving at the settlement i.e. affixing Memo of Settlement to a Notice Board near the entrance of the establishment concerned and it was to remain fixed for a period of 15 days before making application for registration and thereafter an enquiry has to be made by the authority concerned, and if the registration was deemed necessary, the application for registration shall be made under Form IX, and the form of registration was to be under Form X and under Form XI, the certificate of registration was to be issued. As provided under Form No. 11, certificate of registration was not issued, the workmen will not be bound by any such settlement and the award becomes enforceable and binding on the parties including petitioner under Rule 20 and the amount of arrear and back wage and another amount admissible to the workmen became payable. The impugned order in the form of recovery of the amount in pursuance of the Award under Section 6-H(1) was correct and substantial justice has been done, and no ground for interference under Article 226 of the Constitution has been made out.
5. Having scrutinised submissions of the respective counsel for both the sides the points that fall for determination are, whether an agreement could be arrived at between employer and the workmen otherwise than in accordance with the procedure under Section 6B(2) and (3) of the Act and Rules 26 & 27 of the Rules and whether the settlement could not be deemed to be legal unless it was based on the public ground affecting social justice, and whether in a case where legislature has indicated the mode performance of a particular thing in a particular way, can that be performed otherwise in the mode indicated.
6. Before proceeding further to answer the points certain cardinal rules of interpretation with reference to certain relevant Latim Maxims may be noticed. I am conscious that the Maxims need not be referred in a mechanical way, however, these appear to be imperative and material.
7. The first Maxim, "ex praecedendicbuset consequenti optina fit interperation" connotes that best interpretation is from the context, in other words, whole context must be considered to ascertain the intention of the parties or the legislature. In the present case Section 6-B of the Act may be conjointly read with Rules 26 & 27 of the Rules and Forms IX, X and XI. The next Maxim is "actus legitimi non recipiunt modum" which connotes that when the doing of any thing in a particular manner is sanctioned by the law, that thing cannot be done in different way.
8. In Trans America Mortgage Advisors v. Herry Lewis, 444 U.S. 11,62 Law Ed. 2nd 146, it was held that "a Court must be chary of reading of other remedies into a statute which expressly provides a particular remedy or remedies; when a statute limits a thing to be done in a particular mode it includes the negative of any other mode."
9. In Tylor v. Tylor (1876 I Ch. D 426) it was observed as follows:
"When a statutory power is conferred for the first time upon a Court and the mode of exercising it is pointed, it means that no other mode is to be adopted."
10. In Nazir Ahmad v. King Emperor, 1936, Indian Appeal page 72 P.C., it was ruled as follows:
"The rule which applies is different and not less well recognised rule, viz., 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."
11. In The State of U.P. v. Singhere Singh, AIR 1964, SC 358, it was held as follows:
"If a statute has conferred a power to do an act and has laid down method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted."
12. The other aspect pertinent to the interpretation is that the Act contains provisions of social amelioration legislation, which is intended to improve the conditions of the services of the workmen or the employees keeping in view the cherished goal of social justice as envisaged under the Constitution. The interpretation has to be consistent with the object of social amelioration sought to be achieved. In other words, in case two interpretations are possible, the one which is in favour of the workmen, who are supposed to be vulnerable section of the society, and the other against them, as far as possible, keeping in view the object sought to be achieved and evils to be eradicated, it must be in favour of the workmen provided it is not against the language employed, when the Act is beneficial enactment enacted to secure the justice to the workmen, in such a matter, the Court would be justified to follow the policy of benevolence and liberal construction (See Si Appukuttan v. Thundiyil, Janki Amma and Anr., AIR 1988 SC page 587 at p. 593).
13. As regards the first point about the validity of the alleged settlement arrived at between the employer, the petitioner, and the workmen, the contesting respondents, it is to be pointed out that special procedure has been provided by the legislature for the settlement to be arrived at, subsequent to the conciliation proceedings, for that purpose, a provision has been made under Section 6-B of the Act and Rules 26 and 27 of the Rules. Section 6-B enacts that except as provided under sub-section 4 of Section 6-B, the settlement shall be binding, sub-section 4 enacts, in case the registration of the settlement has been refused or, in other words, registration has not been made, in that event, the settlement would not be binding. It was for the petitioner, the employer, to see that the registration of the settlement was made simply, because the settlement has been arrived at, it could not have been registered in view of Sub-section 3 of Section 6-B, unless the registration appeared expedient on public ground effecting social justice. Further, the authority has also to consider that there was no collusion, fraud, or misrepresentation. In the present case, the settlement could not be held to be valid for more than one reason; the first reason is as to why not the application was made for registration of such settlement to ensure that there was no collusion, fraud or misrepresentation. The Conciliation Officer was to make certain enquiries and to ensure that there was no collusion, fraud, or misrepresentation. Certain proposition has been taken by the legislature in Rules 26 and 27. Under Rule 26 of the Rules, parties were required to send the settlement for registration in Form IX, to the Conciliation Officer and after receipt of the memo of settlement, the same was to be pasted on the Notice Board at or near the entrance of the establishment concerned and was to remain there affixed for a period of 15 days before making the actual application for registration. The legislature has provided this step to ensure that there was no fraud or coercion nor the concept of social justice was affected. As this particular mode for arriving at conciliation was provided, which was different than ordinary mode, hence it was imperative to follow the same. But, in the present case, the procedure was not followed nor the special mode provided was adopted. The Conciliation Officer was to make an enquiry before registering it and the registration was to be made in Form No. X, and the certificate of registration was to be issued in Form No. XI, but this was not done, as the application for registration was made in view of Rule 26 of the Rules, hence the Conciliation Officer was justified in not having accepted it. Consequently, such settlement, in my opinion, disregarding with the learned consul for the petitioner, cannot be accepted.
14. The justice social, economical and political was an object to be attained by the Constitution, Further ours was a sovereign, socialistic, secular, democratic republic. Consequently the concept of Socialism was the main pillar of our Constitution. The Socialism aims at co-operate action and equal distribution of product of labour. In the words of Bryce. "We may call our democracy embedded with the equality estimation, i.e. equal treatment and equal respect for every man". In other words, social welfare was one of the main objects of the Constitution.
15. According to Rawls' Theory of Social Justice (page 304) "the basic structure is to be arranged to maximize the worth to the least advantage of the complete scheme of equal liberty shared by all. This defines the end of social justice".
16. According to A.M. Honore's Social Justice in Essavo in legal philosophy (page 62) "the principle of social justice consists in two pro-positions. The first is that all men are considered merely as men and apart from their conduct or choice have a claim to an equal share in all those things, or advantages which are generally desired and are in fact conducive to their well being. By this he meant such thing as life, health, food, shelter, clothing, places to move in, opportunities for acquiring knowledge and skill, for sharing in the process of making decisions, for recreation, travel, etc".
17. In other words, in my humble opinion, social justice consists simply in the claims of all men to all advantages and to an equal share in all advantages which are commonly regarded as desirable and which are in fact conducive to human being. The idea that all men shall have equal claims to all advantages, all this would lead to human perfection and human happiness and this involves equal claim to the necessities of life.
18. Reverting to the question as to whether provisions of Section 6-B of the Act, conjointly read with Rules 26 and 27 of the Rules, are mandatory or directory, no doubt, there can be no universal rule to decide as to whether a particular provision is mandatory or directory. Normally, whenever the word 'shall' is used by the legislature it means mandatory. Whereas 'may' signifies directory intention of the legislature, but this alone is not decisive. Even the word 'may' was used for the word 'shall' and similarly often, the word 'shall' is used for word 'may'. But in substance, keeping in view the subject-matter and the object of the statutory provision and the context of the legislative intent, it may signify a directory character. It appears pertinent to quote an oft-quoted passage of Lord Campbell as follows:
"No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of the Courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered". (See Liverpool Bough Bank v. Turner, (1861) 30 L.J. Ch.379, Vita Food Products Inc. v. Venus Shipping Co., (1939) All E.R. 513, State of U.P. v Babu Ram Upadhya, 1910-I-LLJ-670, B.P. Khemka Private Limited v. Birendra Kumar, A.LR. 1987 S.C.1010.
19. Applying the principles for determination as to whether the provisions of Section 6-B read with Rules 26 and 27 are mandatory or directory, it is obvious and keeping in view the context and the intention of the legislature, that these provisions are mandatory and the word 'shall' has correctly been used to signify that intention of the legislature.
20. These provisions contain special mode contemplated by the legislature with a view to eliminate injustice to the workmen, the contesting respondents in both the writ petitions. This procedure contemplates subsequent stage than the initial conciliation, consequently, special safeguards have been provided under Rules 26 and 27. These were particular modes provided by the legislature for arriving at the settlement and its registration, these Rules contain different procedure than an ordinary contract under general civil law. The provisions of Section 6-B of the Act and Rules 26 and 27 are also based on the principles of collective bargaining. Even if the settlement appears prima facie valid and consistent with the general principles and notions of civil law, but it can be disregarded in case the Conciliation Officer or the Regional Deputy Labour Commissioner could reject it and refuse its registration, i f it considers it to be inexpedient on public grounds affecting social justice or in case settlement was arrived at as a result of collusion, fraud or misrepresentation. In the present case how the workmen chose to arrive at settlement at a more disadvantageous position, immediately after award in their favour and having resigned just after reinstatement with all back wages and agreed for a meagre lump sum amount and the settlement was sought to be brought about ignoring the mandatory provisions of Section 6-B and Rules 26 and 27 is a mystery and tells a lot how the employers want to take advantage of vulnerable section of the society. The Regional Deputy Labour Commissioner appears to be conscious about the statutory principles and mandatory provisions of Section 6-B and Rules 26 and 27 and therefore he rejected the conciliation and refused its registration.
21. If the facts are scrutinised even at the cost of repetition the idea of settlement as mooted by the petitioner the employers appears to be startling, and does not appeal to the human cognizance, much less to judicial conscience to balance the equities in social beneficient legislation is not just approach but it is an approach consistent with the principle of law.
22. Here procedure for registration of the settlement was contemplated in sub-section 3 of Section 6-B read with Rules 26 and 27 of the Rules. The procedure, the record of settlement was provided under Sections 26 and 27. In this way, the power to record satisfaction of the registration in respect of the settlement was pointed out by the legislature but it was to be done in the way provided under the law and in no other way. It appears that even though when specifying the principle of interpretation the concept of social justice Regional Deputy Labour Commissioner, was conscious and substantially he has passed correct order. It cannot be ignored that what was the necessity to the workmen to tender resignation once award was made in their favour and their reinstatement was accepted with back wages. For workmen there was no necessity to resign after accepting just negligible amount immediately after they were reinstated, after the award dated October 26, 1983 (Annexure I). This is nothing else than fraud and coercion perpetuated in both the petitions. The Regional Deputy Labour Commissioner was justified in rejecting the settlement and in refusing to register the same.
23. In view of the premises aforesaid and applying priori and posteriori reasonings I am of considered opinion that both these petitions fail and consequently they are dismissed without making, however, any order as to costs.