Orissa High Court
M/S. Aditya Aluminium vs The Presiding Officer on 11 March, 2025
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-Mar-2025 17:14:09
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 38410 OF 2023
(An Application under Articles 226 and 227 of the
Constitution of India, 1950)
******
M/s. Aditya Aluminium, Lapanga, .... Petitioner
represented through its Chief
Executive, AT/PO -Lapanga-768212,
Dist.: Sambalpur
-versus-
1. The Presiding Officer, Labour .... Opp. Parties
Court, Sambalpur, AT /PO
/PS/Town/Dist- Sambalpur, Pin-768212
2. Shri Bedprakash Hota, S/o-Late Jay
Krishna Hota, AT: Majhi Pali, PO:
Sason, Dist : Sambalpur, Pin-768200
Advocates for the Parties
For Petitioner : Mr. Somanath Mishra, Advocate
For Opp. Parties : Mr. Pradeep Kumar Sahoo,
Additional Standing Counsel
(for Opposite Party No.1)
Mr.Rabindra Nath Debata, Advocate
(For Opposite Party No.2)
CORAM:
JUSTICE K.R. MOHAPATRA
JUSTICE SANJAY KUMAR MISHRA
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Heard and Disposed of on : 11.03.2025
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JUDGMENT
By the Bench:
1. This matter is taken up through hybrid mode.
2. Consent Memo filed by Mr. Mishra, learned counsel
on behalf of the Petitioner is taken on record.
3. Order dated 17th October, 2023 (Annexure-1) passed
by learned Presiding Officer, Labour Court, Sambalpur (for
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-Mar-2025 17:14:09
brevity 'Labour Court') in ID Case No.10 of 2019 is under
challenge in this Writ Petition, whereby an application filed
by the Management-Petitioner challenging maintainability of
the proceeding under Section 2-A (2) of the Industrial
Disputes Act, 1947 filed by the Workman-Opposite Party
No.2, has been rejected.
3.1. For the sake of convenience in discussion, the parties
are described as per their status before the Labour Court,
Sambalpur.
4. Mr. Mishra, learned counsel for the Management
submits that the Workman was terminated from service on
27th June, 2019, on being found guilty in a domestic enquiry.
The Workman without exhausting the remedy under Clause-
26 of the Certified Standing Orders of Aditya Aluminium (for
brevity 'the Standing Orders') moved to the Industrial
Adjudicator under Section 2-A (2) of the Industrial Disputes
Act, 1947 (for brevity 'the Act'). On being noticed, the
Management appeared before learned Labour Court and raised
objection with regard to maintainability of the application
under Section 2-A (2) of the Act. The said application was
rejected vide order dated 17th May, 2022 by learned Labour
Court holding that maintainability of the application is a
mixed question of fact and law and the Management having
not filed the written statement by then, the question of
maintainability of the application could be adjudicated along
with other issues. The Management, being not satisfied, filed
an application to recall/modify the said order dated 17th May,
2022, which was dismissed vide order dated 1st March, 2023.
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-Mar-2025 17:14:09
The Management, being aggrieved, assailed both the orders
before this Court in W.P.(C) No.8254 of 2023. Upon hearing
learned counsel for the parties, this Court, vide judgment
dated 10th August, 2023 (Annexure-4), disposed of the said
Writ Petition with the following observation and directions:-
"5. Having heard the submissions of the learned
counsel for the Parties and the objection taken herein
and in course of hearing, this Court has gone through
the provision at Order 26 of the Certified Standing
Orders of Aditya Aluminium further also reading
together with the provision at Order 25 therein. On
perusal of both the orders, this Court finds, the
Management may be justified in bringing such a serious
question of law. For a justified decision required to be
taken by the Labour Court, this Court is not delving into
answering on such issue at this stage and leaving it open
for a justified decision by Labour Court itself but after
entering into further argument from both sides.
6. For the nature of dispute, there is no requirement
of going or adverting through the facts involving the
dispute. A decision can very well be taken simply going
through the provision referred therein in the Certified
Standing Orders. It is at this stage of the matter, this
Court going through the discussions and observations
finds, there has been mechanical consideration of the
legal aspect involved herein. While declaring the
decision unwarranted and in disapproval of the decision
involved herein, this Court interfering with the impugned
order at Annexure-1 and the consequential order at
Annexure-2 sets aside both. The matter is remitted to the
Labour Court, Sambalpur for readjudication the
question raised in the application of the Petitioner at
Annexure-3 herein after involving fresh argument of the
Counsel appearing for both sides and taking into
consideration the legal provision through the provisions
in the Certified Standing Orders of Aditya Aluminium.
7. Since the matter is remitted for re-consideration of
the Labour Court, both the Management and the
Workman are directed to appear before the Labour
Court, Sambalpur either in person or through their
representatives on 25th August, 2023 along with copy of
this judgment. Decision on the question of
maintainability should also be taken at least within a
period of two months from the date of appearance of the
Parties.
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-Mar-2025 17:14:09
8. The Writ Petition succeeds to the extent indicated
herein above. There is no order as to cost."
Pursuant to the aforesaid direction of this Court, learned
Labour Court took up the objection with regard to
maintainability of the application filed under Section 2-A (2)
of the Act as preliminary issue. It is submitted that while
adjudicating the matter, learned Labour Court overstepped the
observation and direction of this Court and by misinterpreting
Clause-26 of the Standing Orders, held that the application
under Section 2-A (2) of the Act filed by the Workman is
maintainable. The said order under Annexure-1 is assailed in
the present Writ Petition.
5. Mr. Mishra, learned Counsel for the Petitioner further
submits that the Standing Orders of the Management has been
certified by the competent authority in terms of the provisions
under Section 5 of the Industrial Employment (Standing
Orders) Act, 1946 and the same is binding on both the
employer and the employee(s). Since the Workman has a
remedy of appeal under Clause-26 of the Standing Orders
against the order of dismissal by way of punishment, which
was not exhausted by the workman, learned Labour Court
should not have entertained the application filed by the
Workman under Section 2-A (2) of the Act. Learned Labour
Court appears to have confused with the word 'may' used in
Clause-26 of the Standing Orders. The word 'may' used in
Clause 26 (a) of the Standing Orders should have been
construed as 'shall' keeping in mind the object and intent
behind it. Thus, the Workman, if wished to challenge the
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-Mar-2025 17:14:09
order of punishment, should have preferred an appeal under
Clause-26 against the order of dismissal before availing any
other remedy, including remedy under Section 2-A (2) of the
Act. These material aspects were not taken into consideration
by the learned Labour Court while adjudicating the matter and
passing the impugned order under Annexure-1. Hence, the
impugned order is not sustainable and is liable to be set aside.
6. Mr. Debata, learned Counsel for Opposite Party No.2,
refuting such submission, contended that Clause-26 of the
Standing Orders has three Sub-clauses. Sub-Clause (a),
stipulates that "A workman aggrieved by an order imposing
punishment 'may' within twenty-one days from the date of
receipt of the order appeal to the appellate authority", but
Sub-clause (c) stipulates that "The appellate authority after
giving an opportunity to the workman of being heard 'shall'
pass such order .....", which leaves no ambiguity that a
workman at his option may file an appeal before the appellate
authority, But, Sub-clause(c) mandates the appellate authority
to adjudicate the appeal within a period of fifteen days of its
filing after providing an opportunity of hearing to the
workman. Since the words 'may' and 'shall' have been used
in different Sub-Clauses of the same provision, i.e., Clause-26
of the Standing Orders, the same has distinct purpose and
connotation. Thus, in no circumstance, the word 'may' used in
Clause-26 (a) can be construed to be mandatory; rather it is
directory in nature. It is at the option of the Workman to
prefer an appeal against the order of punishment of dismissal
imposed upon him. In the instant case, the Workman was
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-Mar-2025 17:14:09
dismissed from service on 27th June, 2019 and he filed the
petition in ID Case No.10 of 2019 under Section 2-A (2) of
the Act within the period of limitation, as the Conciliation
Officer failed to do the needful within the stipulated period.
The Management, without filing the written statement, is
protracting the litigation to harass the Workman who is out of
employment since 2019. Learned Labour Court, in the
impugned order under Annexure-1, has vividly discussed the
purpose and object of use of word 'may' in Clause-26(a) of
the Standing Orders. That apart, drawing attention to Para 12
of the impugned order, Mr. Debata, learned Counsel for the
workman further contended that it is the case of the workman
that after dismissal from service, he approached the HR-
Eastern Cluster. Because of inaction of the Management,
finding no other way out, the workman had to approach the
forum under the I.D. Act. There being no perversity in the
impugned order and the same being as reasoned one, warrants
no interference by this Court. Hence, he prays for dismissal of
the Writ Petition.
7. Heard learned Counsel for the Parties. Perused the
records.
8. In order to appreciate the rival contentions of learned
Counsel for the parties, this Court reproduces Clause-26 of the
Standing Orders for ready reference.
"26. Appeal Against Punishment:
a. A workman aggrieved by an order imposing
punishment may within twenty-one days from the
date of receipt of the order appeal to the
appellate authority;
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-Mar-2025 17:14:09
b. For the purpose of Clause (a) the appellate
authority is President - HR of Eastern Cluster;
c. The appellate authority after giving an
opportunity to the workman of being heard shall
pass such order as he thinks (sic) proper on
appeal within fifteen days of the receipt and
communicate the same to the workman in
writing."
(Emphasis supplied)
Clause-26 (a) of the Standing Orders stipulates that if a
Workman is aggrieved by the order imposing punishment,
'may' within twenty-one days from the date of receipt of the
order, appeal to the Appellate Authority. A plain reading of
the Clause-26 (a) of the Standing Orders makes it clear that it
is at the option of the aggrieved Workman to prefer an appeal
against the order of punishment within twenty-one days or
not. However, Sub-clause (c) of Clasue-26 stipulates that the
appellate authority, after giving an opportunity of being heard,
'shall' make such order as thinks proper within fifteen days of
receipt of the appeal, if any, preferred by the workman. Thus,
the Appellate Authority, if receives an appeal, as stipulated in
Sub-clause (a), is bound to dispose of the appeal within a
period of fifteen days of receipt of the appeal memo and
communicate the order to the Workman.
9. The question thus arises for consideration in the instant
case is that 'whether the word 'may' in Clasue-26 (a) be
construed to be mandatory or directory?' In the case of State
of Uttar Pradesh -v- Jogendra Singh; AIR 1963 SC 1618, it
is held that:
"8. ......There is no doubt that the word "may"
generally does not mean "must" or "shall". But it is
well settled that the word "may" is capable of
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-Mar-2025 17:14:09
meaning "must" or "shall" in the light of the context.
It is also clear that where a discretion is conferred
upon a public authority coupled with an obligation, the
word "may" which denotes discretion should be
construed to mean a command. Sometimes, the
legislature uses the word "may" out of deference to
the high status of the authority on whom the power and
the obligation are intended to be conferred and
imposed........"
Further, in the case of Sarla Goel v. Kishan Chand; (2009) 7
SCC 658, a similar view has been taken. Further, in the case
of Mohan Singh v. International Airport Authority of
India; (1997) 9 SCC 132, it is held as under:-
"17. The distinction of mandatory compliance or
directory effect of the language depends upon the
language couched in the statute under consideration and
its object, purpose and effect. The distinction reflected in
the use of the word 'shall' or 'may' depends on
conferment of power. In the present context, 'may' does
not always mean may. May is a must for enabling
compliance of provision but there are cases in which, for
various reasons, as soon as a person who is within the
statute is entrusted with the power, it becomes duty to
exercise. Where the language of statute creates a duty,
the special remedy is prescribed for non-performance of
the duty. In Craies on Statute Law (7th Edn.), it is stated
that the court will, as a general rule, presume that the
appropriate remedy by common law or mandamus for
action was intended to apply. General rule of law is that
where a general obligation is created by statute and
statutory remedy is provided for violation, statutory
remedy is mandatory. The scope and language of the
statute and consideration of policy at times may,
however, create exception showing that the legislature
did not intend a remedy (generality) to be exclusive.
Words are the skin of the language. The language is the
medium of expressing the intention and the object that
particular provision or the Act seeks to achieve.
Therefore, it is necessary to ascertain the intention. The
word 'shall' is not always decisive. Regard must be had
to the context, subject-matter and object of the statutory
provision in question in determining whether the same is
mandatory or directory. No universal principle of law
could be laid in that behalf as to whether a particular
provision or enactment shall be considered mandatory or
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-Mar-2025 17:14:09
directory. It is the duty of the court to try to get at the
real intention of the legislature by carefully analysing
the whole scope of the statute or section or a phrase
under consideration. As stated earlier, the question as to
whether the statute is mandatory or directory depends
upon the intent of the legislature and not always upon
the language in which the intent is couched. The
meaning and intention of the legislature would govern
design and purpose the Act seeks to achieve.
In Sutherland's Statutory Construction, (3rd Edn.) Vol. 1
at p. 81 in para 316, it is stated that although the
problem of mandatory and directory legislation is a
hazard to all governmental activity, it is peculiarly
hazardous to administrative agencies because the
validity of their action depends upon exercise of
authority in accordance with their charter of existence --
the statute. If the directions of the statute are mandatory,
then strict compliance with the statutory terms is
essential to the validity of administrative action. But if
the language of the statute is directory only, then
variation from its direction does not invalidate the
administrative action. Conversely, if the statutory
direction is discretionary only, it may not provide an
adequate standard for legislative action and the
delegation. In Crawford on the Construction of Statutes,
at p. 516, it is stated that:
"The question as to whether a statute is
mandatory or directory depends upon the intent
of the legislature and not upon the language in
which the intent is clothed. The meaning and
intention of the legislature must govern, and these
are to be ascertained, not only from the
phraseology of the provision, but also by
considering its nature, its design, and the
consequences which would follow from
construing it the one way or the other...."
The interpretation of the words 'may' and 'shall' also came
up for consideration in the case of Official Liquidator v.
Dharti Dhan (P) Ltd.; (1977) 2 SCC 166, Rakesh Ranjan
Shrivastava v. State of Jharkhand, (2024) 4 SCC 419,
Sharif-ud-Din v. Abdul Gani Lone, (1980) 1 SCC 403 and
State of Haryana v. Raghubir Dayal; (1995) 1 SCC 133.
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-Mar-2025 17:14:09
9.1 In common parlance, the word 'may' denotes
discretionary or directory, but in certain circumstances, the
word 'may' used in a particular provision of a statute is
construed as mandatory. It depends upon the context it is
used. In the instant case, the remedy of appeal is provided to a
Workman against an order of punishment under Clause- 26 (a)
of the Standing Orders. If Clause of the Standing Orders, as
quoted above, is read as a whole, it can never be perceived
that the word 'may' used in said Sub-Clause (a) of Clause 26,
to be mandatory. It is more so because of the word 'shall'
used in Sub-Clause (c) of the said Clause. In Sub-clause (a), it
is at the option of the Workman to prefer an appeal or not
against an order of punishment. A Workman cannot be
compelled to file an appeal against an order of punishment.
The Workman may choose not to file an appeal against the
order of punishment and go with it. But once an appeal is
filed, the appellate authority is bound to provide an
opportunity of being heard to the Workman and pass the order
within fifteen days of filing of the appeal. The word 'shall'
used in such context in Sub-clause (c) of Clause-26, makes it
mandatory keeping in mind the object behind the provision
itself. Words 'may' and 'shall' used in different Sub-clauses
of the same Clause-26 make the context and purpose of their
use more significant.
10. An argument is advanced by Mr. Mishra, learned
counsel for the Petitioner/Management that unless the
provision under Clause-26 of the Standing Orders is
exhausted by an aggrieved Workman, industrial discipline
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-Mar-2025 17:14:09
will be affected and it would encourage other similarly
situated Workmen to bypass the remedy available under the
Standing Orders and directly approach the Industrial
Adjudicator for redressal of their grievances, which is not the
intent and object of the statute.
10.1 We are unable to accept the submission made by
Mr. Mishra, learned counsel for the Petitioner for the reason
that the provision of appeal provided under Clause-26 of the
Standing Orders, no doubt creates a forum for the aggrieved
Workman to redress his grievance, but at the same time, the
statutory remedy under Section 2-A (2) of the Act does not
contain any such pre-condition of exhausting remedy of appeal
before approaching the authority. The only pre-condition to be
satisfied to file an application under Section 2-A (2) of the Act
is that if in a case of termination of a Workman the
Conciliating Officer fails to conciliate and conclude the
proceeding within a period of forty-five days then the
Workman has the remedy to approach the Industrial
Adjudicator within three years from the date when the cause of
action arose to initiate the industrial dispute. Section 2-A (2) of
the Act does not mandate any pre-condition of exhausting
appellate remedy provided under the Standing Orders. Thus,
the application under Section 2-A (2) of the Act is
maintainable, as rightly held by the learned Labour Court in the
impugned order. No doubt, the Industrial Adjudicator may be
burdened with adjudicating an application under Section 2-A
(2) of the Act, but that itself does not preclude a Workman to
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-Mar-2025 17:14:09
avail the remedy without exhausting the provision of appeal
under the Standing Orders.
11. In view of the above, we find no reason to interfere
with the impugned order under Annexure-1. While parting
with the order, we feel it proper to observe that the Workman
was dismissed from service with effect from 27th June, 2019.
In the meantime, almost six years have already elapsed.
Hence, learned Labour Court, Sambalpur shall do well to
consider and adjudicate the dispute, as expeditiously as
possible, in accordance with law, without granting any
unnecessary and/or long adjournment(s) to any of the parties
and make an endeavour to conclude the same within three
months from the date of communication of this order.
12. The Writ Petition is accordingly dismissed. In the facts
and circumstances, there shall be no order as to costs.
(K.R. Mohapatra)
Judge
(S.K. Mishra)
s.s.satapathy Judge
