JUDGMENT - Chagla, C.J.

[1] The petitioner is employed as an omnibus Driver by the Bombay State Road Transport Corporation. He is also the Vice-President of the State Road Transport Kamgar Sabha, and his application is that the State of Bombay should be compelled by a writ of mandamus to refer an existing industrial dispute to a tribunal for adjudication under Section 10, Industrial Disputes Act, XIV [14] of 1947. It would appear that a strike notice was given by some of the workers of the Bombay State Road Transport Corporation and consequent upon the notice conciliation proceedings started under Section 12. A report was made by the Conciliation Officer under s. 12 (4) and Government communicated to the parties concerned their reasons for not making a reference to a Board or a Tribunal under Sub-section (5). The allegation now in the petition is that there is as obligation upon the State to refer this dispute to a Tribunal for adjudication and it is also contended that Government were actuated by mala, fides in not making the reference as they were bound to do in law.

[2] The Bombay State Road Transport Corporation has been declared to be a public utility service and the scheme of the Act must be looked at from the point of view of the dispute relating to a public utility service. Turning to Section 10 (1) it provides that if any industrial dispute exists or is apprehended, the appropriate Government may, by order in writing, refer the dispute to any of the three authorities under the Act. It may refer the dispute to a Board for promoting a settlement thereof, it may refer it to a Court for inquiry or it may refer it to a Tribunal for adjudication. Then there is a proviso to this sub-section and that lays down that, where the dispute relates to a public utility service and a notice under Section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceeding under his Act in respect of the dispute may have commenced. Now, it would be immediately noticed that in the case of industrial disputes relating to non-public utility services a discretion is given to Government to make a reference that discretion is indicated by the use of the word "may" by the Legislature. Now, it is well settled that the mere use of the word "may" is not conclusive of the question as to whether power was given coupled with a duty or whether the expression "may" indicated an absolute discretion vested in the authority. . But in this case there can be no doubt as to what" the Legislature intended by the use of the expression "may", because in the proviso the Legislature has used the expression "shall". The Legislature wanted to draw a distinction between "may " and "shall". Therefore, in one case an absolute discretion was given to Government whether to refer or not to refer a dispute to one of the authorities mentioned in the section; in the other case no such discretion was given to the State. Therefore, when we are dealing with disputes relating to public utility services, Mr. Phadke, who has advanced before us a very able argument on the construction of this section, is quite right when he says that there is an obligation upon Government to refer a dispute relating to a public utility service. But that obligation is qualified in the proviso itself, and the qualification is that if Government considers that the notice has been frivolously or vexatiously given or that it would be inexpedient to make a reference, then a reference need not be made although the dispute relates to a public utility service. Now, it is left to the consideration of the Government as to whether a notice has been frivolously or vexatiously given. It is equally left to the consideration of Government whether it is expedient or inexpedient to make a reference. These are not objective facts whi

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