Parry & Co. Ltd. Vs. Commercial
Employees' Association, Madras  INSC 21 (10 April 1952)
FAZAL ALI, SAIYID DAS, SUDHI RANJAN
CITATION: 1952 AIR 179 1952 SCR 519
CITATOR INFO :
R 1955 SC 233 (21) R 1958 SC 398 (19) E 1965
SC 111 (14,15)
Certiorari--Writ cannot be issued unless
there is want of, or error in exercise of, jurisdiction--Madras Shops and
Establishments Act, 1947, s. 51--Decision of Labour Commissioner--Finality of.
The High Court cannot issue a writ of
certiorari to quash a decision passed with jurisdiction by a Labour Commissioner
under the Madras Shops and Establishments Act, 1947, an the mere ground that
such decision is erroneous.
Under s. 51 of the Madras Shops and Establishments
Act, 1947, the Labour Commissioner is the only proper and competent authority
to determine the questions referred to him under that section and the decision
of the Labour Commissioner is final and not liable to be challenged in a Court
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 154 of 1951. Appeal from a judgment and order of the 1st April, 1949, of the High Court of Judicature, Madras (Rajamannar C.J. and Balakrishna Aiyar J.) in
Civil Miscellaneous Petition No. 1317 of 1949 arising out of Order dated 29th
January, 1949, of the Commissioner of Labour, Madras.
S.C. Isaacs (S. N. Mukherjee, with him), for
The respondent was not represented.
1952. April 10. The Judgment of the Court was
delivered by MUKHERJEA J.--This appeal is directed against a judgment of a
Division Bench of the Madras High Court dated 1st April, 1949, passed in a
certiorari proceeding, by which the learned Judges directed the issue of a writ
of certiorari for quashing a portion of an order made by the Labour Commissioner,
Madras, in any enquiry under section 51 of the Madras Shops and Establishments
520 The facts material for our present
purpose lie within a narrow compass and to appreciate the point that requires
consideration in this appeal it will be convenient first of all to advert to a
few relevant provisions of the Madras Act referred to above. The Act was passed
in 1947 and its object, as stated in the preamble, is to provide for the
regulation of conditions of work in shops and other establishments. Section
14(1) of the Act sets a statutory limitation upon the working hours and lays
"Subject to the other provisions of the
Act, no person employed in any establishment shall be required or allowed to
work for more than 8 hours in any day and 48 hours in any week." A proviso
attached to the sub-section which by way of exception to the rule enunciated
therein, allows employment of a person in any establishment for any period in
excess of this statutory limit subject to payment of overtime wages, provided
the period of work including overtime work does not exceed 10 hours any day,
and in the aggregate 54 hours in any week. Section 31 provides:
"Where any person employed in any
establishment is required to work overtime, he shall be entitled, in respect of
such overtime work, to wages at twice the rate of ordinary rate of wages."
Section 50 preserves the existing rights and privileges of an employee in any
establishment if these rights and privileges are more favourable to him than
those created by the Act.
The section runs as follows :-"Nothing
contained in this Act shall affect any rights or privileges which any person
employed in any establishment is entitled to on the date on which this Act
comes into operation in respect of such establishment under any other law,
contract, custom. Or Usage applicable to such establishment if such rights and
privileges are more favourable to him than those to which he would be entitled
under this Act." 521 The only other relevant section is section 51 which
says :-"If any question arises whether all or any of the provisions of
this Act apply to an establishment or to a person employed thereto or whether
section 50 applies to any case or not, it shall be decided by the Commissioner
of Labour and his decision thereon shall be final and shall not be liable to be
questioned in a court of law".
The appellant is a limited company carrying
on business in Madras, while the respondent is an association of clerical
employees including those working under the appellant.
On November 10, 1948, the respondent presented an application before the Labour Commissioner, Madras, under section 51 of the
Shops and Establishments Act for decision of certain questions referred to in
the petition which related to the rights and privileges of the employees of the
appellant. The Commissioner issued a notice calling upon the appellant to
appear and answer the contentions raised on behalf of the employees. The
parties appeared before the Commissioner on 26th November, 1948, and again on 16th December following when they were represented by lawyers.
After hearing the parties and on a
consideration of the evidence adduced by them, the Labour Commissioner made his
decision on 29th January, 1949. The questions raised by the employees were
classified by the Commissioner under six separate issues and two of them, which
are material for our present purpose, are worded as follows :Issue No. 5.
Whether there has been an increase in working hours from 6 to 61/2 on week days
from 12th October, 1948, and the increase is permissible ? Issue No. 6. Whether
overtime wages at twice the ordinary rates should not be paid for work done by
the employees after the normal working hours ? On Issue No. 5. the 'decision of
the Commissioner was that the 'business hours of the company were six and half
prior to 1st April, 1948', when the Act came into force and they continue to be
so even now. It is 522 true that a circular' was issued which was to take
effect from 12th October, 1948, under which the lunch interval was reduced by
half an hour, but at the same time it was directed that the office would close
for business with the general public at 5 P.M. instead of 5-30 P.M. On all
working days so far as business hours are concerned.
As regards Issue No. 6 the Labour
Commissioner observes first of all that although it is customary in many establishments
to fix certain hours of business during which business is transacted with the
outside public, yet they are not the 'real hours of employment and as a matter
of fact the employees do work outside these business hours, for which they are
not entitled to any extra remuneration provided. the statutory limit of 8 hours
a day is not exceeded.
In the opinion of the Commissioner if the
normal hours of work were previously fixed and strictly adhered to, the
employees could have acquired a right or privilege to work only for such hours
and they would be entitled to seek protection under section 50 of the Act
against the imposition of longer hours without a corresponding increase in
emoluments. The Commissioner goes on to say that in such cases it would be
sufficient if compensatory wages are paid at the ordinary rate calculated
according to rule 10 of the Madras Shops and Establishments Rules for work in
excess of the normal hours but less than the statutory hours. But for work of
more than 8 hours a day or 48 hours a week, wages at twice the ordinary rates
should be paid as required by the proviso to section 14 (1) and section 31 of
the Act. The conclusion reached by the Commissioner with regard to this issue
is expressed by him in the following words:
"I hold that the case of Messrs. Parry
and Company's employees falls under the former category and that the employees
in this company will be entitled to overtime wages only when the statutory
hours are exceeded." This order, as said above, was made on 29th January, 1949, and on 16th of February following the 523 respondent association filed
a petition before the High Court at Madras, praying for a writ of certiorari to
quash the same. This application was heard by a Bench of two Judges and by the
judgment dated 1st of April, 1949, the learned Judges allowed the petition in
part and quashed the order of the Labour Commissioner in so far as it decided
that the employees of the appellant will be entitled to overtime wages only
when the statutory hours were exceeded.
It is the/propriety of this decision that has
been challenged before us in this appeal.
It is somewhat unfortunate that the
respondent remained unrepresented before us and the appeal had to be heard exparte.
Mr. Isaacs, who appeared on behalf of the appellant, has, however, rendered
every assistance that he possibly could and has placed before us all the
material facts and relevant provisions of law. Having given the matter our best
consideration, we are of the opinion that the order of the High Court cannot be
supported and that this appeal should be allowed.
The High Court seems to have based its
decision on the ground that the Commissioner of Labour' failed to answer the
question raised by the association as to whether the company was entitled to
require the employees to work more than six and half hours a day. According to
the learned Judge, the Labour Commissioner was not right in holding that even
if the working hours were fixed at six and half hours a day, the employees
would be entitled to overtime wages only when the statutory hours are exceeded.
As has been pointed out already, the Labour
Commissioner did decide that if the normal hours of work were previously fixed
and rigidly adhered to, the employees would be entitled to seek protection
under Section 50 of the Act against imposition of longer hours of ,work without
a corresponding increase in their emoluments. The increase in such cases,
according to the Labour Commissioner, should be on the scale of compensatory
wages allowed under rule 10 of 524 the Madras Shops and Establishments Rules.
If, however, the increase is more than the statutory period, "the
employees will be entitled to wages at double rate under Section 31 of,the Act.
This decision may or may not be right, but it has not been and cannot be
suggested that the Labour Commissioner acted without jurisdiction or in excess
of his powers. Under Section 51 of the Madras Shops and Establishments Act, the
Labour Commissioner is the only proper and competent authority to determine the
questions referred to it in that section; and there is an express provision in
it that the decision of the Labour Commissioner shall be final and not liable
to be challenged in any court of/law. It was the respondent who took the matter
before the Labour Commissioner in the present case and invited his decision
upon the questions raised in the petition. The Commissioner was certainly bound
to decide the questions and he did decide them. At the worst, he may have come
to an erroneous conclusion, but the conclusion is in respect of a matter which
lies entirely within the jurisdiction of the Labour Commissioner to decide and
it does not relate to anything collateral, an erroneous decision upon which
might affect his jurisdiction. The records of the case do not disclose any
error apparent on the face of the proceeding or any irregularity in the
procedure adopted by the Labour Commissioner which goes contrary to the
principles of natural justice.
Thus there was absolutely no grounds here
which would justify a superior court in issuing a writ of certiorari for
removal of an order or proceeding of an inferior tribunal vested with powers to
exercise judicial or quasi-judicial functions. What the High Court has done
really is to exercise the powers of an appellate court and correct what it
considered to be an error in the decision of the Labour Commissioner. This obviously
it cannot do. The position might have been different if the Labour Commissioner
had omitted to decide a matter which he was bound to decide and in such cases a
mandamus might legitimately issue commanding the authority to determine
questions which it left 525 undecided(1); but no certiorari is available to
quash a decision passed with jurisdiction by an inferior tribunal on the mere
ground that such decision is erroneous. The judgment of the High Court,
therefore, in our opinion, is plainly unsustainable. In the view which we have
taken, it is unnecessary to express any opinion as to whether certiorari has
been taken away --if it can be taken away at all under our Constitution-by the
provision of section 51 of the Madras Shops and Establishments Act which lays
down that the decision of the Labour Commissioner would be final and incapable
of being challenged in any court of law. It was conceded by Mr. Isaacs that in
spite of such statutory provisions the superior court is not absolutely
deprived of the power to issue a writ, although it can do so only on the ground
of either a manifest defect of jurisdiction in the tribunal that made the order
or of a manifest fraud in the party procuring it(2). The result is, that in our
opinion the appeal succeeds and the judgment of the High Court is set aside and
the order of the Labour Commissioner affirmed.
As the respondent was absent, we do not think
it proper, in the circumstances of this case, to make any order for costs.
Agent for the appellant: P..K. Mukherjee.
(1) Vide Board of Education v. Rice and
others,  A.C.
(2) Vide Colonial Bank of Australasia v.
Robert Willan, 5P.C. Ap, peals 417.