JUDGMENT 1. THIS Rule is at the Instance of the Employers of the Cinema Exhibitors' industry in West Bengal, represented by Sri nabanidhar Majumdar, Chairman, West bengal Exhibitors' Section, Eastern India motion Pictures Association as well as at the instance of the Chitra Cinema challenging the non-compliance with the provisions of section 12, Sub-section (6) of the industrial Disputes Act, 1947 (Act XIV of 1947) by not submitting his report to the appropriate Government. There is also a prayer for Issuance of a writ of Mandamus commanding the respondents nos. 1 to 4 and also the Conciliation Officer, to act in accordance with law and also to discharge the statutory duties imposed upon the Conciliation Officer by submitting his report to the appropriate government. There is also a prayer for a writ of Certiorari commanding the respondent nos. 1 to 4 to certify and transmit to this Hon'ble Court all records of the case to enable the court to quash the same. 2. THE facts of the case in brief is that the petitioner no. 1 which is the association of the employers of the Cinema Exhibitors' industry in West Bengal and members of the Eastern India Motion Pictures Association represented by its chairman, the petitioner no. 3 of the West Bengal Exhibitors' section of association is a company and the employers of the cinema industry are represented by the said association of which the respondent no. 3 is the Chairman and he is also the proprietor of the petitioner no. 2, Chitra Cinema. There is a long standing industrial dispute between the employers of Cinema Industry in West Bengal and their workmen represented by their union-the Bengal Motion Pictures Employees Union, the respondent no. 5. The dispute related to the grades and scales of pay, Dearness Allowances and its linking with the cost of living Index. The employers of the petitioner's company pleaded their inability to accept such enormous and big charter of demands submitted by their employees Union the respondent no. 5. The dispute related to the grades and scales of pay, Dearness Allowances and its linking with the cost of living Index. The employers of the petitioner's company pleaded their inability to accept such enormous and big charter of demands submitted by their employees Union the respondent no. 5 on the ground of their financial incapacity to accept financial burden, uncertainty in the market condition, unfavourable market condition, acute competition in the market, frequent and erratic load shedding, disproportionate increase of expenses and maintenance cost over the income, gloomy future prospect and lack of standing in business and over increasing financial loss in business, in fact, the employers through their representative Association submitted various representations to the Government and the appropriate authorities for consideration of their problems sympathetically and to provide some relief to enable the employers to remain in business and more particularly for the purpose of having any negotiated settlement for the purpose of revision of their pay-scale, etc. subject to the Government's agreeing for introduction of tax-free service chorges for tendering the day to day services to the Cinema goers for maintaining perfect condition of cinema Houses and for revision of the pay structure of the workmen. The petitioners state that during the pendency of the conciliation proceeding, the Employees Union instead of moving through constitutional way, switched over to all illegal and unjustified acts, instigating the workmen in stop-page of work, refusal to work as per their allotted duties and all illegal and unjustified acts against the smooth running of the business. Consequent upon all such illegal and unjustified acts, there were cases of lock-out, closure and strike and in fact since the year, 1980 none of the Cinema exhibitor's business in West Bengal had any peaceful day in running their administration of business. It has been stated that in the year 1974, there was a settlement in respect of the pay-scales, Dearness Allowance and fixed cost of living index. It has been stated that in the year 1974, there was a settlement in respect of the pay-scales, Dearness Allowance and fixed cost of living index. Apart from these the issue of minimum wages and its linking with the cost of living index is now pending before this Hon'ble Court in f. M. A. No. 496 of 1980 wherein after hearing of the parties including the State of west Bengal, the Union and the petitioner's association the following interim order was made :- "the operation of the impugned notification is stayed pending hearing of the appeal on condition that the petitioners will go on paying to the employees at the rate at which they were paying before the order passed to-day and there would be no deduction or diminution of the payment." In view of the aforesaid order none of the employers of the Exhibitors Section made any diminution of the payment of wages of the workmen. But the Union has been constantly claiming for the implementation of exorbitant wages without moving in a constitutional manner and in violation of the aforesaid order made by this court it has also been stated that the petitioner's association in spite of the said order and also of the settlement effected in 1974 made increase of wages on the basis of negotiations with the representatives of the workmen and thereby conditions of services of the workmen were placed in a comfortable position. On 15th October, 1980, there was an Ad-hoc settlement that the pending disputes will be settled through constitutional process and utmost efforts will be made to resolve the dispute, preferably within November, 1980. A copy of the said ad-hoc settlement has been annexed as annexure 'b to the petition. In the said agreement in the tripartite settlement dated 15th October, 1980 it was agreed that utmost efforts would be made for finalisation of the industrial dispute within november, 1980, failing which the dispute would be referred to the Industrial Tribunal for adjudication. The Joint Labour commissioner, West Bengal, Mr. S. N. Bhattacharjya in fact took up the file of conciliation proceeding from Sri Sudhir kumar Bhattacharjya, Labour Commissioner, West Bengal. The conciliation officer took a stand which was not congenial to the interest of the employers as he openly expressed his biased attitude against the employers. The Joint Labour commissioner, West Bengal, Mr. S. N. Bhattacharjya in fact took up the file of conciliation proceeding from Sri Sudhir kumar Bhattacharjya, Labour Commissioner, West Bengal. The conciliation officer took a stand which was not congenial to the interest of the employers as he openly expressed his biased attitude against the employers. As a result, the petitioners' representative found no other alternative but to lodge a complaint against him to his superior Mr. Sudhir Kumar Bhattacharjya, labour Commissioner, West Bengal, vide their letter, dated 24th December, 1980 and requested him to intervene and take up the conciliation file from the said Sri S. K. Bhattacharjya, Joint Labour Commissioner. It has been stated that the objections raised by the petitioners' association were twofold. Firstly, such case of industrial dispute was not within the competence and jurisdiction of the Department of Information and Cultural Affairs, Government of west Bengal and secondly, Mr. S. K. Bhattacharjya being admittedly hot an officer of the said Department and against whom there was a complaint of the employers affected thereby, he ought not to be allowed to be the Chairman of the said purported Committee. On receipt of such objections Sri S. K. Bhattacharjya, the Joint labour Commissioner himself personally called the petitioners' representatives and told them that such purported committee had no connection or relevancy with that of the pending industrial dispute and in fact he issued thereafter letters for holding further conciliation as Additional Labour commissioner, West Bengal as in the mean time he was promoted from the post of the joint Labour Commissioner to Additional labour Commissioner. Even then the said Additional Labour Commissioner, the respondent no. 3 sent a letter on 13th October, 1982 on the subject of charter of demands regarding pay-scale etc. of the workmen in the cinema Industry In West Bengal. In the said letter curiously enough he imposed a big and absolutely impossible grade and scale of pay on the plea of amendment of the West Bengal Taxation Laws. On such circulation by the Union as Grades and scales of pay of the workmen of Cinema exhibitors and Distributors as framed and formulated by the Government of the West bengal thereby caused a total confusion with the workmen and instigated them on the basis thereof for compelling the employers to accept such arbitrary recommendation of the said Additional Labour Commissioner. The executive officers of the Government of West Bengal issued directive upon the individual owners of Cinema houses for acceptance of such recommendation of the Additional Labour Commissioner as if the grade and scale of pay was fixed by the Government of West Bengal. 3. BEING aggrieved in such circumstances petitioners through their association moved before this court in Civil Rule No. 13170 (W) of 1982 and upon hearing His Lordship Hon'ble Mr. Justice T. K Basu was pleased to issue a Rule and pass an interim order of injunction as follows : ad interim order of injunction be passed restraining the respondents nos. 1 to 7 and each one of them from proceeding with or proceeding further in respect of the scales of pay, rates of wages claiming increase in Dearness allowance and leave and the Office memo No. 2630/95/cord/lc dated 13.10.82 issued by Sri S. K. Bhattacharjya, Additional Labour Commissioner." 4. AFTER due service of the order of the hon'ble Court and the copy of the writ petition, the said application again came up for further hearing in the court of the Hon'ble Mr. Justice T. K. Basu on 1312. 82 and His Lordship passed the following further order in modification of the interim order already passed : "it is clarified that the injunction in terms of prayer 'g' of the petition as being granted herein, will not stand in the way of the petitioners' Association or any member thereof and the Respondent no. 8 ultimately agreeing: to the suggestion contained in the impugned notification in the conciliation proceeding, if so advised. There will be an order of injunction restraining the S. D. O. Barasat, who is added as a party respondent on the oral application of Dr. Paul from taking any further steps pursuant to the communication dated 1st December, 1982, which is annexure 'a' to the Supplementary affidavit of Samarash Dasgupta, affirmed on 13th December, 1982 pending disposal of the Rule. The learned advocate appearing on behalf of the respondents waive service of the Rule. All A/os be filed by 15th January, 1983 and the reply thereto by 29th January, 1983 with liberty to mention the matter for fixing an early date of hearing. After the above order was made by this hon'ble Court, further conciliation proceeding was initiated by Sri Ashok Santra, the respondent no. All A/os be filed by 15th January, 1983 and the reply thereto by 29th January, 1983 with liberty to mention the matter for fixing an early date of hearing. After the above order was made by this hon'ble Court, further conciliation proceeding was initiated by Sri Ashok Santra, the respondent no. 4, being the Deputy Labour commissioner, West Bengal, and he issued notice for holding conciliation on 18th' january, 1983, and invited the Chairman, west Bengal Exhibitors Section and the general Secretary, Bengal Motion Pictures employees Union to send their representative at the conference. A copy of the said letter issued by the respondent no. 4 is annexed as annexure 'd' to this writ application. On that dated the representative of the petitioners duly attended the conciliation but the employees Union refused to sit for negotiation and as such on that date the conciliation finally failed. 5. THEREAFTER, neither the conciliation officer nor the Government discharged their mandatory duties as laid down in section 12 (4) of the Industrial Disputes Act. It has been submitted that under section 12 (6) of the said Act the conciliation officer has to submit a report within fourteen days of the commencement of the conciliation proceedings or within such shorten period as may be fixed by the appropriate government. In this case this has not been done and as a result there has been complete stoppage of more than 150 Cinema houses in West Bengal and the workmen in some cinema houses resorted to strike, or in some cases in consequences of the illegal strike, lockout was declared and in some cases the employers having regard to such alarming situation and all illegal acts indulged in by the workmen at the instigation of their Union was compelled to declare lockout. 6. PLACED in such predicament another writ application was moved in this Hon'ble court which was dismissed by the learned judge as being premature but it was made clear that the said order is without prejudice to the petitioners' right to move before this hon'ble court after following all the procedures as indicated in the said order. 6. PLACED in such predicament another writ application was moved in this Hon'ble court which was dismissed by the learned judge as being premature but it was made clear that the said order is without prejudice to the petitioners' right to move before this hon'ble court after following all the procedures as indicated in the said order. Accordingly, after the said order was passed by this Hon'ble court the petitioner semi a letter to the conciliation officer and the government dated 8th April, 1983 stating inter alia that the conciliation having failed on 18th January, 1983 and the employers having lost faith in conciliation proceeding any further and the mandatory period of 14 days having expired long ago after the failure of the conciliation, it is incumbent upon him to submit his failure report to the Government to enable the Government to consider the report and refer the dispute to a Tribunal for adjudication. Thereafter the petitioners demanded justice but no reply was received by them. Hence this writ application has been moved before this court with the prayers stated hereinbefore. On 20th April, 1983, the instant Rule was issued but no interim order was made. During the hearing of this Rule on 18th may, 1983 this court directed the conciliation officer to act in accordance with the provision of the Industrial Disputes Act and. to submit his report before this court on the next date. In compliance with the said direction a report was submitted on 2nd June, 1983 by the conciliation officer, it has been stated in the report that the employers' association represented by the Eastern India Motion Pictures Association disregarding the suggestions of the Labour commissioner issued a notice in the Press giving a call for lockout in the Cinema houses throughout West Bengal with effect from 14 April, 1983. Having regard to the seriousness and urgency of the situation and the interest of the State, a separate meeting with the Eastern India Motion Pictures Association was arranged on 13th April, 1983 in the chamber of the Secretary, labour Department Govt., of West Bengal. The employers, however, did not find it convenient to attend the meeting and thereupon the Special Secretary and Labour commissioner, W. Bengal issued a letter under Memo No. 1345/241/cord/lc Dt. The employers, however, did not find it convenient to attend the meeting and thereupon the Special Secretary and Labour commissioner, W. Bengal issued a letter under Memo No. 1345/241/cord/lc Dt. 13th April, 1983 requesting the Chairman of the West Bengal Exhibitors Section of e. I. M. P. A. not to proceed with the proposed lockout which was to have taken effect from 14 April, 1983 and requested the parties to resolve the dispute by exploring various avenues within the frame-work of the industrial Disputes Act, 1947 having regard to the claims and contentions of both the parties. Both the management and the workmen were also requested to' maintain normalcy and to enable the conciliation machinery to have the dispute resolved in a peaceful and healthy atmosphere, it was also proposed in the letter that further discussion was being convened shortly. The employers did not accept the request of the special Secretary and Labour Commissioner, W B. and declared lockout of some of the Cinema Houses in West Bengal. Subsequently, a number of lockouts have been withdrawn. On the contrary, the union reported that so far 128 Cinema Houses and 10 Distribution offices in the State of west Bengal have already settled their disputes amicably with their workmen directly on the basis of the suggestions of the additional Labour Commissioner. It has been mentioned in the report that the con ciliation officer had been informed by a number of employers of cinema houses in west Bengal that they are continuing bipartite and tripartite negotiations with their respective workmen or union. In the earlier part of the report it has also been stated that the conciliation officer arranged conciliation proceedings in his chamber on /8. 1. 1983 and in the said meeting the representatives of both the employers and the employees union appeared before him separately and had separate discussions with him. 7. A supplementary affidavit has been filled on 21st June, 1983. It has been stated in paragraph 3 of the said supplementary affidavit that a suit was filed on 18th May, 1983 being suit No. . . . . . of 1983 in this Hon'ble Court (Ordinary Original civil Jurisdiction) by the petitioner and (some members of Eastern India Motion pictures Association representing the High power Committee of West Bengal Exhibitors Section. An application for injunction was also filed and after hearing. The hon'ble Mrs. . . . . of 1983 in this Hon'ble Court (Ordinary Original civil Jurisdiction) by the petitioner and (some members of Eastern India Motion pictures Association representing the High power Committee of West Bengal Exhibitors Section. An application for injunction was also filed and after hearing. The hon'ble Mrs. Justice Manjula Bose was pleased to pass an order of injunction in terms of prayers (f) and (g) of the petition as follows :- "(f) injunction restraining the defendants and each of them, their servants, agents and/or successors in office from interfering with the functions and duties of the West Bengal exhibitors' Section' of Eastern India motion Pictures Association through any purported Executive Committee or joint Committee or otherwise; (g) Injunction restraining the defendants Nos. 4,5,10,28,30 from claiming to be members of any Joint committee or discharging any functions or duties as such." 8. AN affidavit of competency has been filed on 26th April, 1983 wherein paragraph 2 it has been stated that the petitioner no. 3 is the Chairman of West Bengal Exhibitors section of Eastern India Motion Pictures association, which is an Association of the employers of Cinema Industry in the Eastern India Region, including the State of West bengal duly registered under the Companies Act. It has also been stated in paragraph 3 of the said affidavit that he being the Chairman of West Bengal Exhibitors section and having been duly authorised by the General Body Members of the West bengal Exhibitors Section in West Bengal, at their General Body meeting he is fully authorised and is competent to move writ applications, affirm affidavits, appoint Learned Advocates and take all steps for the employers of the cinema exhibitors in West bengal. This has been affirmed as true to his knowledge. An affidavit -in -opposition has been filed on behalf of the respondent nos. 1, 2 and 3 by Shri Ashok Santra, the Joint lobour Commissioner in the Labour Directorate of the Government of West Bengal, the respondent no. 4. It has been stated in paragraph 3 of the said affidavit that he is still associated with the instant case as a conciliation officer. 1, 2 and 3 by Shri Ashok Santra, the Joint lobour Commissioner in the Labour Directorate of the Government of West Bengal, the respondent no. 4. It has been stated in paragraph 3 of the said affidavit that he is still associated with the instant case as a conciliation officer. In paragraph 4 it has been stated that he as a Deputy Labour commissioner in the capacity of the conciliation officer of the concerned industrial dispute involving introduction of grades and scales of pay including dearness allowance of the workmen employed in the cinema Exhibitors Industry called a conciliation meeting on 18th January, 1983 and in the said meeting representatives of both the Employers' Association and of the employees' Union appeared before him separately and had separate discussions with him. It has been stated that till now the Labour directorate has not been contacted by the representatives of the employers with any such alternative proposal with regard to the introduction of grades and scales of pay etc. It has been stated in paragraph 5 that the employers represented by the eastern India Motion Pictures Association disregarding the suggestion of the Labour commissioner issued a notice in the press giving a call for lockout in the Cinema houses throughout the West Bengal with effect from 14th April, 1983. The employers, however, did not find it convenient to attend the meeting and thereupon the special Secretary and Labour Commissioner issued a letter on 13th of April, 1983 requesting the Chairman of the West bengal Exhibitors Section, the petitioner no. 3 in the instant proceedings not to proceed with the proposed lockout which was to have taken effect from 14th April, 1983 and requested the parties to resolve the dispute by exploring various avenues within the framework of the Industrial Disputes Act, 1947 having regard to the claims and contentions of both the sides. It has been stated that the Eastern India Motion pictures Association through its Chairman of the Joint Committee addressed a letter being No. 6742 dated 22nd April, 1983 to the Additional Labour Commissioner being the respondent no. It has been stated that the Eastern India Motion pictures Association through its Chairman of the Joint Committee addressed a letter being No. 6742 dated 22nd April, 1983 to the Additional Labour Commissioner being the respondent no. 3 in the instant proceedings even after the petitioners in the instant proceedings obtained the above Civil rule from this Hon'ble Court on the 20th of April, 1983," thereby requesting him to convene a tripartite meeting with all the concerned parties to have a peaceful negotiation and solution of the problems in question. It was also informed that a Joint committee was constituted by the Executive Committee of the said Association and accordingly the Joint Committee decided to take up the issue with the Government of west Bengal for a peaceful negotiation in order to resolve the matter for creating a congenial atmosphere for the healthy growth of the industry. It. has therefore been submitted in paragraph 7 that there was ample scope of an amicable negotiated settlement of the issues involved in the concerned industrial dispute and. for all intents and purposes the conciliation proceeding has not yet come to an end. It has been further submitted that in view of the fact that the conciliation proceeding has not yet come to an end there is no question of its failure and still there appears to be prospects of an amicable settlement. It has also been stated that the Bengal Motion pictures Employees Union, the respondent no. 5, in the instant proceeding has addressed a letter dated 12th April, 1983 to the deponent herein stating that through their bipartite negotiations with individual employers in the exhibition and distribution section of the cinema industry the question of implementation of the suggestions dated 13.10.82 of the Conciliation Officer has been settled with 128 Cinemas and 10 distribution offices in the State. 9. AN affidavit -in -reply has been affirmed by the petitioner no. 3 on 3rd May, 1983. It has been stated in paragraph 11 that the purported Joint Committee allegedly formed by the Executive Committee of the Eastern India Motion Pictures Association is ex -facie illegal and void. 9. AN affidavit -in -reply has been affirmed by the petitioner no. 3 on 3rd May, 1983. It has been stated in paragraph 11 that the purported Joint Committee allegedly formed by the Executive Committee of the Eastern India Motion Pictures Association is ex -facie illegal and void. It has been also stated that by an order dated 15th December, 1982, this Hon'ble Court in Appeal from suit No. 865 of 1981 (Eastern India Motion picture Association -Versus -Premlal Parasar was pleased to pass an order directing, inter alia, appointment of a Special Officer with a direction upon the Eastern India motion Pictures Association to hold an election for formation of the Executive committee in accordance with the Rules of the Association within March 31, 1983. In spite of the order of the Hon'ble Court, the eastern India Motion Pictures Association and its Executive Committee failed and/or neglected to hold any meeting for formation of the Executive Committee till today and the alleged Executive Committee which ceased to have any power or authority In violation of the order of this Hon'ble Court 'wrongfully and illegally holding and continuing with the said Executive Committee, lit has been further stated that after the order of this Hon'ble Court dated 15th December, 1982, the alleged Executive committee is a void and defunct body and has no right or power or authority to conduct the affairs of the Eastern India Motion pictures Association or interfere with the works of any Group or Committee formed under Article 37b of the Articles of Association and in particular the West Bengal exhibitors Section and/or its High Power committee which is the independent body of employers of Cinema Exhibitors industry in West Bengal. Other portions of the affidavit which has been mentioned already in the petition are not mentioned herein. 10. IT has been submitted by Dr. Paul, learned Advocate appearing on behalf of the petitioner that the conciliation proceeding is pending for an unduly long period before this conciliation officer, respondent no. 4 and in spite of the conciliation proceeding having failed as the employees union, that is. 10. IT has been submitted by Dr. Paul, learned Advocate appearing on behalf of the petitioner that the conciliation proceeding is pending for an unduly long period before this conciliation officer, respondent no. 4 and in spite of the conciliation proceeding having failed as the employees union, that is. the Bengal Motion Pictures association Employees' Union, the respondent no 4, did not attend the conciliation on January 18, 1983 even though the representative of the petitioners duly attended the conciliation proceeding failed and as such the conciliation officer failed and neglected to discharge his statutory duties as enjoined under the provisions of Section 12 of the Industrial Disputes Act in not submitting a report stating about the failure of the conciliation proceeding to the Government in order to enable the Government to refer the Industrial Disputes to the Industrial Tribunal for decision of the dispute arising between the employers and employees. In this connection it has been submitted by. Dr. Paul that the duty that has been imposed by Section 12 Sub-section (2) read with Sub-sections (3), (4) and (6) is a mandatory one inasmuch as it enjoins the conciliation officer to investigate without delay the dispute and all matters, affecting the merits and to take steps and to make all attempts to effect a fair and amicable settlement between the parties, and as soon as such a settlement of the dispute or of any of the matters in the disputes has been arrived at in the course of the conciliation proceedings the conciliation officer shall send a report to the State government or to an officer authorised in this behalf by the Government together with the memorandum of settlement signed by both the parties to the dispute. In case there is no such settlement between the parties to the dispute, the conciliation)officer shall as soon as practicable after the close of investigation send a report to the government setting forth steps taken 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 a settlement could not be arrived at this report shall have to be submitted with in 14 days of the commencement of the conciliation proceeding or within such shorter period as may be fixed by the appropriate Government. It has also been provided that subject to the approval of the conciliation officer the time for the submission of the report may be extended by such period as may be agreed upon in writing by all the parties to the dispute, lit has been submitted by Dr. Paul that if subsections 2, 3,4 and 6 of section 12 are taken together the legislative intent is quite clear that the conciliation officer has to submit a report in a case where there has been a settlement of the dispute between the parties and also in a case where such a settlement has failed within a period of 14 days or as soon as possible or within such shorter period as have been fixed by the appropriate Government. By incorporating this provision the legislature has enjoined that the conciliation proceeding has to be ended and/or terminated within 14 days by submitting a report by the conciliation officer. At most the report has to be submitted as early as possible after the close of the investigation. It has been submitted that in the instant case the respondent no. 5, the employees' Union refused to sit in the conciliation in the Joint Conference convened in the chamber of the conciliation officer, the respondent no. 4, on 18th January, 1983 and as such conciliation has failed, in these circumstances it has been submitted further by Dr. Paul that it is incumbent on the conciliatioc offer to submit his report as required under the provisions of Sub-section (6) read with Sub-section (4) of Section 12 of the Industrial Disputes act. The conciliation officer in spite of the service of due notice in accordance with the order passed by this court where the writ application was rejected on the ground of being premature intimating the respondent no. 4 that the conciliation has failed. Conciliation Officer did not give any reply to it nor took any steps in submitting his report which he is required to do under the provisions of Section 12 of the said Act. It has, therefore, been submitted by Dr. 4 that the conciliation has failed. Conciliation Officer did not give any reply to it nor took any steps in submitting his report which he is required to do under the provisions of Section 12 of the said Act. It has, therefore, been submitted by Dr. Paul that a mandate should be issued by a writ of mandamus commanding the respondent no, 4, the conciliation officer to submit his report regarding the failure of the conciliation proceeding under section 12 (6) of the Industrial Disputes Act in order to enable the Government to refer the dispute to the Industrial Tribunal for decision. Mr. N. N. Guptoo, learned Government pleader appearing on behalf of the State respondents Nos. 1 to 4 submitted In the first place that the conciliation proceeding is pending and the conciliation officer, that is, the respondent no. 4, the Deputy Labour commissioner, Shri Asok Santra is investigating into the dispute and he has been trying to Induce the parties to come to a fair settlement of the dispute. It has been further stated that already the dispute in question has been settled in the 180 cinema houses in West Bengal and in 10 cinema houses day to day bipartite negotiations are going on for a fair settlement and settlement is expected to be arrived at very soon. In his connection a letter by the Secretary of the Bengal motion Picture Employees Union dated 12th April, 1983 is annexed as annexure 'b' to the affidavit in opposition, has been referred to. It has therefore been submitted by Mr. Guptoo that the conciliation proceeding is pending and the respondent no. 4 as a conciliation officer is proceeding with the discussions between the parties in order to have a fair and amicable settlement of the dispute. It has been next submitted by Mr. Guptoo that the word 'shall' as used in sub-section (4) of Section 12 of the Industrial Disputes Act, 1947 which provides that if no such settlement is arrived at the conciliation officer has to send a full report to the State Government setting forth the steps taken by him to ascertain the facts and circumstances of the case relating to the disputes and the reasons on account of which in his opinion the settlement could not be arrived at. Is not mandatory but rectory. Is not mandatory but rectory. It has been further submitted that the time mentioned in Sub-section (6) of the said Section 12 for submission of the report to the Government is also not mandatory but directory inasmuch as in case of failure to submit such report no penal consequences has been provided there. In support of this submissions several decisions of the Supreme Court has been cited at the Bar. It has also been submitted by referring to the decision reported in 1962 (1) LLJ 715 that the failure to submit the report to the State Government within the time specified in Sub-section (6)of Section 12 does not invalidate the act of the conciliation officer in setting the dispute nor the proceeding becomes invalid or inoperative. 11. THE first question that falls for consideration in this case is whether the word 'shall' as used in Sub-section (6) of Section 12 of the said Act is mandatory or directory. Maxwell on Interpretation of statutes, 12th Edn. pages 314-15 has observed as follows : when a statute requires that something shall be done or done in a particular manner or form, without expressly declaring what shall be the consequences of non-compliance, the question often arises what intention is to be attributed to the legislature ? Where indeed the whole aim and object of the legislature would be plainly defeated if the command to do a thing in a particular manner did not imply a prohibition to do it in any other, no doubt can be entertained as to the intention. It is impossible to lay down any general rule for determining whether a provision is Imperative or directory, "no universal rule" said Lord Campbell LC "can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered Directory only or obligatory with an implied nullification for disobedience. It is the duty of the court 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 construed. " 12. "IT is stated" said Denman, J. in caldow v. Pixell [(18771 2 C. 0. It is the duty of the court 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 construed. " 12. "IT is stated" said Denman, J. in caldow v. Pixell [(18771 2 C. 0. D. 562 at 566] "that in general the provisions of statutes creating duties are directory." By this is meant not that it is optional on the part of a public functionary whether he will perform duties imposed upon him by statutes but that if a public' functionary neglects to perform a statutory duty of this kind that neglect on his pan will not necessarily invalidate the whole operation with regard to which the statutory duty was to be performed. At the same time it must be borne in mind that it is not a universal rule that statutes which create public duties are merely directory. In the absence of express provision, the intention of the legislature is to be ascertained by weighing the consequences of holding a statute to-be directory or imperative; Craies on Statute of Law, 7th Edn. P. 250. In the case of State of u. P. vs. Jogendra Singh MR 1963 S. C. 1618 at page 1620, Gajendra Gadkar J. has observed that there is ho doubt that the word/shall' generally does not mean 'must' or 'shall'. But it is well settled that the word 'may' is capable of 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 costrued 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. In the present case it is the context which is decisive. The whole purpose of sub-rule (2) of Rule 4 of the u. P. Disciplinary Proceedings (Administrative) Rules, 1974 would be frustrated if the, word 'may' in the said sub-rule receives the: same construction as in sub-rule (1). It is mandatory. Similarly in AIR 1955 S. C, 233 at page 245 Hari Vishnu Kamath vs. Ahmed Ishaque and Ors. The whole purpose of sub-rule (2) of Rule 4 of the u. P. Disciplinary Proceedings (Administrative) Rules, 1974 would be frustrated if the, word 'may' in the said sub-rule receives the: same construction as in sub-rule (1). It is mandatory. Similarly in AIR 1955 S. C, 233 at page 245 Hari Vishnu Kamath vs. Ahmed Ishaque and Ors. Venkataraman, J. has observed that it is well established that an enactment in form mandatory might in substance be directory, and that the use of the word 'shall' does not conclude the matter. The question was examined at length in 'julius V. Bishop of Oxford' (1880) 5 A. C. 214 (S) and various rules, were laid down for determining when a statute must be construed as mandatory and when as directory. They are well known and there is no need to repeat them. But they are all of them only aid for ascertaining the true intention of the legislature which is the determining factor, and that must ultimately depend on the context, similar observation has been made in AIR 1962 SC 1694 (1701) paragraphs 2 (Collector of Monghy vs. Keshav Proshad) and air 1983 S. C 303 para 1 (Dalchand vs. Municipal Corporation Ft ho pal and another). In AIR 1961 SC 849 at 851 para 6, banwari Lal vs. State of Bihar, Das Gupta, j. who spoke for the Supreme Court observed as follows :- "no general rule can be laid down for deciding whether any particular provision in a statute is mandatory, meaning thereby that non-observance thereof involves the consequence of invalidity, on only directory, i.e. a direction that non-observance of which does not entail the consequences of invalidity, whatever other consequences may occur. But in each case the Court has to decide the legislative intent. To decide this the Court has to consider not only the actual words used but the scheme of the statute, the intended benefit to the public of what is enjoined by the provisions and the material danger to the public by the contravention of the same". Similar view has been expressed in the case of Ajit Singh vs. State of Punjab, AIR 1983 SC p. 494 at p. 49899 para 8. 13. Similar view has been expressed in the case of Ajit Singh vs. State of Punjab, AIR 1983 SC p. 494 at p. 49899 para 8. 13. THE whole purpose of the legislature in enacting section 12 of the Industrial disputes Act is to enjoin a duty on the conciliation officer to investigate the dispute arising between the employer and the workmen for the purpose of bringing about a settlement between the parties as early as possible and to submit a report within 14 days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the Government. It has also been provided that the time for submission of report may be extended by such period as may be agreed upon by the parties by writing to settle the dispute subject to the approval of the Conciliation Officer. Considering the provisions of Sub-sections (2) (3)and (4) along with sub-section (6) of section 12 the intention of the legislature in enacting this provision is quite clear in that the conciliation officer has to investigate without delay. The dispute between the parties and to take all steps in the conciliation proceedings for the purpose of inducing the parties to come to an amicable settlement of the dispute. As soon as a settlement is arrived at in course of the conciliation proceedings the conciliation officer shall send a report within the time specified in sub-section (6) of Section 12 to the government together with a memorandum of settlement signed by the parties to the dispute. Sub-section (6) read with other provisions of Section 12 vests the conciliation officer with the duty to hold the conciliation proceeding for the purpose of effecting settlement between the parties with regard to the dispute that has arisen between them and both in cases where the parties have come to an amicable settlement of the dispute as well as in a case where no settlement has been arrived at the conciliation officer is saddled with a duty to submit a report before the appropriate government and in case of failure to arrive at a settlement in a conciliation proceeding the reasons and circumstances on account of which the settlement could not be arrived at have to be so stated in the report. On consideration of such report, the appropriate government, if satisfied that there is a case for reference, the dispute will be referred to this Industrial Tribunal or to labour court etc. for reference under Section 10 of the said Act for decision of the dispute. 14. IT has been clearly observed in air 1961 S. C. 304 at page 306-07 State of Bihar vs. Kripa Shankar Jaiswall that a failure to send a report under section 12 (6) of I. D. Act to the Government as required may be a breach of duty on the part of the conciliation officer but it does not affect the legality of the conciliation proceedings which terminated in a settlement as provided by section 20 (2) of the Act. It is pertinent, in this connection to refer to the provisions of section 20 (2) (b) of the said act which specifies that where no settlement is arrived at, when the report of the conciliation officer is received by the appropriate government the concila-liation proceeding shall be deemed to have concluded. In this case it has been stated in paragraph 14 of the writ application that the respondent no. 4, the conciliation officer issued a notice on, 18th January, 1983 for holding a conciliation and inviting the representatives of the employers and the employees union to attend a joint conference on that day in the chamber of the respondent no. 4. The representatives of the petitioners duly attended the conciliation but the employees Union refused to sit for negotiation and as such on the said date, i.e. on 18th January, 1983, the conciliation finally failed. It has been stated further in paragraph 18 of the writ application that the petitioner wrote a letter to the conciliation officer, the respondent no. 4, on 8th April, 1983 stating that the conciliation having failed on 18th January, 1983 and the employees having lost faith in the conciliation proceeding it is incumbent upon the conciliation officer to submit his report to the government to enable the government to refer the dispute to a Tribunal for adjudication. This letter has been annexed as annexure "e" to the petition. This averments in paragraphs 14 and 18 were denied and it was simply stated in paragraph 4 of the affidavit -in- opposition sworn by respondent no. This letter has been annexed as annexure "e" to the petition. This averments in paragraphs 14 and 18 were denied and it was simply stated in paragraph 4 of the affidavit -in- opposition sworn by respondent no. 4 that in the conciliation meeting convened on 18th January, 1983 representatives of both the employers association and the employees Union appeared before the respondent no. 4 separately and had separate discussions with him. This has been affirmed as' based on information derived from the records of the case. It has been further averred in paragraph 5 of the said affidavit -in- opposition that the employers represented by the Eastern India Motion Pictures Association disregarding the suggestion of the Labour Commissioner issued a notice in the press giving a call for lockout in the Cinema Houses throughout West bengal with effect from 14th April, 1983. This clearly goes to show that the concilation failed. As such it is incumbent on the respondent no. 4 to submit a report of failure of conciliation proceeding as required under Sub-section 4 of Section 12. This has not "been done by the respondent no. 4. It is pertinent to refer in this connection that this court by order dated 18th May, 1983 directed the respondent no. 4 to submit a report and a report was submitted by the respondent no. 4 on 2nd June, 1983. In the said report it has been stated that the respondent no. 4 as conciliation Officer arranged the conciliation proceedings in his chamber on 18th January, 1983 and in the said meeting the representatives of both the employers and the union appeared before him separately and had separate discussions with him. It "has also been stated that the employers did not accept the conciliation and disregarding the suggestions of the conciliation officer issued a notice in the Press giving a call for lockout in the cinema house throughout West Bengal. In these circumstances it is incumbent on the conciliation officer to submit a report of failure of the conciliation proceedings in accordance with the provisions of sub-section (4) of section 12 of the Industrial Disputes Act. This has not been done by the respondent no. 4 and as such 'there is a clear breach of the mandatory duty imposed upon the conciliation officer, respondent no. This has not been done by the respondent no. 4 and as such 'there is a clear breach of the mandatory duty imposed upon the conciliation officer, respondent no. 4, to submit the report to the government as provided in sub-section (4) read with sub-section (6) of section 12 of the said Act. It has been tried to be submitted that such failure to submit the report within the time mentioned in sub-section (6) of Section 12 does not invalidate or render void the conciliation proceedings. It is pertinent to refer in this connection the decision of the Supreme Court in the case of Bhowra Colliery v. Its workmen, 1955 (1) LLJ 378. In this case the conciliation "proceedings commenced on 31st December, 1951 and concluded on 12th June, 1952 when the conciliation officer submitted the failure report. During the pendency of the conciliation proceedings after the expiry of 14 days of the holding of the conciliation proceedings as provided in sub-section (6) of Section 12 the employer terminated the services of one of the workmen. Question arose whether the provisions of sub-section (6) of Section 12 would invalidate the conciliation proceedings and the conciliation officer would become functus officio in the proceeding pending before him after the expiry of 14 days as mentioned in sub-section (6) of Section 12 of the Industrial Disputes act. It was held that "though the legislature wanted to emphasise he desirability of bringing about the conciliation as quickly as possible and so by using the strong words in section 12 (6), they have worned the conciliation officer and told the parties to the dispute that fourteen days is the limit within which the disputes are expected to be settled. therefore, we are not impressed by the argument that the failure of the legislature to provide for the extension of this period necessarily means that non-compliance by the conciliation officer within the provisions of Section 12 (6) renders all further proceedings before him invalid". It has been further held that subsection 2 of Section 20 applies to all conciliation proceedings and such proceedings will terminate only when the conciliation officers submit his report to the Government and the date when it is received by the Government. Another decision reported in 1962 (1) LLJ 715 has been cited at the bar by the learned Government Pleader appearing on behalf of the respondents nos. 1 to 4. Another decision reported in 1962 (1) LLJ 715 has been cited at the bar by the learned Government Pleader appearing on behalf of the respondents nos. 1 to 4. It has been held by B. N. Banerjee, J. that the time limit imposed in sub-section (6) of Section 12 is directory and not mandatory. These two cases, in my opinion, do not help the respondents nos. 1 to 4 at all inasmuch as after the refusal of the employees union to attend the conciliation pursuant to the notice issued by the Condilation Officer convening the joint conference on 18th January, 1983 and the subsequent declaration of the lockout by the employers' Association that, is the petitioner no, 1, the conciliation failed and it was incumbent on the conciliation officer to submit a failure report as required under the provisions of Sub-section (6) of section 12 of the Industrial Disputes Act. Instead of doing that the conciliation officer kept the conciliation proceeding pending dehors the provisions of the Act. Considering these facts and circumstances I am constrained to hold that the respondent no. 4 has failed and neglected to discharge his statutory duties enjoined in him under Sub-section (6) of section 12 of the said Act. 15. THE submission that has been made on behalf of the respondents 1 to 4 as well as by Mr. Roy Chowdhury on behalf of the respondent no. 5 that there has been a settlement of the dispute amicably with a number of cinema houses cannot be sustained in view of the fact that there has been no settlement within the meaning of Section 2 (p) read with Section 20 (2) (a) of the said Act inasmuch as it requires a settlement arrived at in course of conciliation proceedings and the memorandum of settlements signed by the parties to the dispute. There has been no such settlement arrived at amicably between the parties to the dispute by entering into a memorandum of settlement signed by the parties. The submission on this score is, therefore, not sustainable. 16. FOR the reasons aforesaid the contentions advanced on behalf of the petitioner succeeds and this application is allowed and the Rule is made absolute. Let a writ of mandamus issue commanding the respondent no. The submission on this score is, therefore, not sustainable. 16. FOR the reasons aforesaid the contentions advanced on behalf of the petitioner succeeds and this application is allowed and the Rule is made absolute. Let a writ of mandamus issue commanding the respondent no. 4 to discharge his mandatory duties enjoined under Section 12 (4) read with Section 12 (6) of the Industrial Disputes Act and to submit his report to the government, that is, respondent no. 1 within a period of two weeks from the date of this order. There will, however, be no order as to costs. Rule made absolute.