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Judgment
Rajamannar, C.J.—These three appeals under the Letters Patent are against the judgment of Krishnaswami Naydu J. disposing of three
applications for the issue of writs of ''mandamus'' directing the State of Madras to refer certain industrial disputes between the workers and the
managements of the industrial concerns to an Industrial Tribunal for adjudication. These three petitions were filed by the workers of Messrs.
Spencer and Co., Ltd., Express Newspapers Ltd., & the Swadesamitran Ltd. The facts which led to these applications are fully set out in the
order under appeal and it is sufficient to mention only the material and salient facts which are necessary for the disposal of these appeals. It is
common ground that the workers in these companies, made certain demands on the respective managements and these demands were not
acceded to and the Commissioner of Labour as the Conciliation Officer appointed under the Industrial Disputes Act, XIV of 1947 commenced
conciliation proceedings u/s 12(1) of the Act which runs as follows:
Where any industrial dispute exists or is apprehended the conciliation officer may, or where the dispute relates to a public utility service and a
notice u/s 22 has been given, shall, hold conciliation proceedings in the prescribed manner.
It also appears from the evidence that in respect of these three companies on different dates, namely on 25-1-1951, with respect to Messrs.
Spencer and Co., on 7-2-1951, with reference to Express Newspapers Ltd., and 22-2-1951 with respect to Swadesamitran Ltd., the
Conciliation Officer addressed communications to the Government giving an account of the result of the conciliation proceedings. In spite of
reminders by the workers the Government did not make a reference as requested by the workers. There were also formal applications to the
Government purporting to be u/s 10(2) of the Act praying for a reference of the disputes to a tribunal. These later applications, however, were
rejected by the Government. Thereupon these three applications from which these appeals-arise were filed for the issue of write of ''mandamus''
directing the State of Madras to refer the disputes between the workers and the managements to a tribunal u/s 10(1)(c) or Section 10(2) of the
Industrial Disputes Act and to prohibit u/s 10(3) the lock-out of the employees effected by the managements.
In our opinion, these applications should have been disposed of on a very simple point. As it was common ground that proceedings u/s 12(1) of
the Act had been initiated, obviously the further procedure enjoined by the Act had to be followed. It is not disputed that the Conciliation Officer
did make attempts to investigate the dispute and try to induce the parties to come to an amicable settlement of the disputes. It is also clear that no
settlement was arrived at. In such circumstances, Section 12(4) lays down that the Conciliation Officer shall as soon as practicable after the close
of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and
circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and
the reasons on account of which in his opinion, a settlement could not be arrived at. For the purpose of these appeals, we have to assume that the
Conciliation Officer did send his reports, though it is doubtful if he sent them within the time prescribed by Sub-section (6) of Section 12, namely,
within fourteen days of the commencement of the conciliation proceedings. Now, Section 12(5) lays down what should happen on receipt of such
a report. It says:
If, on a consideration of the report referred to in Sub-section (4), the appropriate Government is satisfied that there is a case for reference to a
Board of Tribunal, it may make such reference. Where the appropriate Government does not make a reference it shall record and communicate to
the parties concerned its reasons therefor.
Admittedly the Government did not make any reference. Nor did the Government record and communicate the reasons for not making a
reference. It is clear therefore that the Government failed to do the duty east on them by this statutory provision. They seem to have addressed
letters to the Commissioner of Labour, but such communications will not amount to a proper compliance with the requirements of the statutory
provision. It is not pretended that there was any communication to the parties concerned of any reasons for refusal to make a reference, so far the
matter does not admit of any doubt or dispute. We entirely agree with the following statement to be found in the Judgment of the learned Judge:
In these cases after the conciliation officer has made his report u/s 12(4) that a settlement could not be arrived at, the Government have not acted
under Clause (5) by making a reference to a Board or Tribunal; nor have they recorded their reasons and communicated the same for not
referring. It is therefore a case where the Government, which are invested with the duty to either refer, or record and give reasons for not referring,
have failed to discharge that duty. It cannot be accepted that the Labour Commissioner''s intimation to the Express Newspapers Ltd. and the
Swadesamitran Ltd. that they may consider the increase of wages would be a compliance with the statutory requirement of Section 12(5). There is
inaction on the part of the Government after the Conciliation Officer has submitted his report when there is a duty cast on them to act.
The petitioners therefore were undoubtedly entitled to writs of ''mandamus'' directing the Government to do their duty. But we do not agree with
the learned Judge that it follows that the petitioners are entitled to writs of ''mandamus'' directing the State to refer the disputes for adjudication to
an Industrial Tribunal. Having held that the Government had failed to discharge the duty enjoined on them by Section 12(5) of the Act, what the
learned Judge should have done, was to have directed the Government by writs of ''mandamus'' to discharge their duty, namely, to consider the
respective reports made by the Conciliation Officer and if satisfied that there was a case for reference to make a reference, and if they thought that
there was no case for reference, then to record the reasons for coming to that conclusion and to communicate the reasons to the parties. To
straightaway direct the Government to make a reference would, in our opinion, be tantamount to usurping a power or Jurisdiction conferred on and
vested in the Government by the Statute.
In this view, it is really not necessary to embark on an enquiry as to the interpretation of Section 10(1) of the Act. Before the learned Judge it
was contended on behalf of the petitioners and their contention found favour with him, that under that provision if an industrial dispute existed or
was apprehended, the Government was under a duty to refer the dispute to one or other of the bodies mentioned in Cls. (a), (b) and (c) of Section
19(1). It was successfully urged before him that the word ""may"" in the provision meant ""shall"". We may, however, indicate our ''prima facie''
opinion that it appears that whatever may be the position in other statutes, having regard to the language used, therein, on the plain reading of
Section 10(1) along with the proviso thereto and Sub-section (2), there can be no doubt that the word ""may"" in Sub-section (1) cannot be read as
shall''. In marked contradistinction to the use of the word ""may"" in the main Sub-section (1) in the proviso we have the use of the word ""shall"". In
the case of public utility services, when a notice u/s 22 has been given, the Government ""shall"" make a reference unless it considers that the notice
u/s 22 has been frivolously or vexatiously given or that it would be inexpedient so to do. Equally under Sub-s. (2) when the parties to an industrial
dispute apply in the prescribed form and the Government is satisfied that the persons applying represent the majority, the Government ''shall'' make
a reference accordingly. It follows that in other cases they are not bound to. Our attention was drawn to cases in which in spite of the expression
may"" it has been held that the person or body on whom a power is conferred to do something which is in the interests of the general public, that
person of body has no absolute arbitrary discretion to exercise or refrain from exercising that power. On the use of the word ""may"" we think we
cannot do better than to quote the following trenchant observations of Cotton L. J, in ''In re Baker Nichols v. Baker'', (1890) 44 Ch D 262 :
I think that great misconception is caused by saying that in some cases ""may"" means ""must"". It never can mean ""must"" so long as the English
language retains its meaning; but it gives a power, and then it may be a question in what cases, where a Judge has a power given him by the word
may"" it becomes his duty to exercise it.
It is true that as Lopes L. J. in the same case points out the word ""may"" is potential, and when it is employed, there is another question to be
decided, namely, whether there is anything that makes it the duty of the person on whom the power is conferred to exercise that power. In this
case we are unable to see any such duty. There may be a duty on the Government to exercise their discretion, but there is no duty cast on them to
exercise that discretion in any particular way. However, as we have pointed earlier in the judgment the statutory provision which directly applies to
this case is Section 12, as it is common ground that conciliation proceedings were initiated under Sub-section (1) of that section. Section 12(5)
gives no room for argument. It says in express and unambiguous language that on a consideration of the report of the conciliation officer, the
Government may make a reference or may refuse to make a reference. The only requirement is that if it refuses to make a reference it shall record
its reasons and communicate the same to the parties concerned. Now the opening words of Section 12(1), namely, ""where any Industrial dispute
exists or is apprehended"" clearly show that merely because there Is an industrial dispute or there is apprehension of an Industrial dispute, it does
not necessarily follow that the Government should make a reference. If so, Section 12(5) would be meaningless because that sub-section confers a
power on the Government to choose one of the two alternatives either to make or not make a reference.
In the result, the appeals must be allowed to this extent namely, that the writs issued by the learned Judge against the State directing the State to
refer the disputes for adjudication to an industrial tribunal should be set aside and In their stead writs of ''mandamus'' should issue against the State
of Madras directing them to discharge the duty cast on them u/s 12(5) of the Industrial Disputes Act, namely, either to make a reference or to
decide that there should be no reference in which ease reasons should be recorded and communicated to the parties concerned. There will be no
order as to costs. We trust that the Government will act expeditiously in the matter having regard to the long lapse of time from the receipt of the
reports from the Conciliation Officer. Order accordingly.