M/S. Kasturi and Sons (Private) Ltd. Vs.
Shri N. Salivateeswaran & ANR  INSC 21 (19 March 1958)
BHAGWATI, NATWARLAL H.
SINHA, BHUVNESHWAR P.
IMAM, SYED JAFFER KAPUR, J.L.
CITATION: 1958 AIR 507 1959 SCR 1
Working journalist-Claim against employer for
recovery of dues-Reference by State Government to specified authority-If
authority also empowered to determine amount due-Working journalists
(Conditions of Service) and Miscellaneous Provisions Act, 1955 (45 of 1955), S17.
The respondent No. I was a journalist
supplying news to the petitioner's newspaper on payment of a fixed monthly
honorarium. Contrary to the petitioner's instructions the respondent No. I left
India and thereupon the petitioner terminated the arrangement. Upon his return
to India the respondent No. I requested the petitioner to reconsider its
decision but the petitioner declined to do so. The respondent No. I applied to
the State Government under s. 17 Of tile Working Journalists (Conditions of
Service) and Miscellaneous Provisions Act, 1955 claiming a large sum of money
from the petitioner. The State Government nominated respondent NO. 2 as the
authority under s. 17 of the Act and referred the claim to him. The petitioner
disputed the whole claim and contended that the respondent NO. 2 had no
jurisdiction to adjudicate upon the merits of the disputed claim:
Held, that the authority specified under s.
17 of the Act had no jurisdiction to determine the amount due as the section
merely provided for a procedure to recover an amount from the employer which
had previously been determined by a competent authority or court. If the
legislature had intended that the enquiry under s. 17 should include the
examination of the merits of the claim and a decision thereon, it would have
made appropriate provisions conferring upon the State Government or the
specified authority the relevant powers essential for the purpose of
effectively holding such an enquiry; but no such powers had been conferred.
ORIGINAL JURISDICTION: Petition No. 249 of
Under Article 32 of the Constitution of India
for the enforcement of Fundamental Rights.
R. Ramamurthi Aiyar and B. K. B. Naidu, for
Purshottam Tricumdas, P. Ramaswamy, Advocate,
2 Bombay High Court, with special permission and 1. N. Shroff, for the
respondent No. 1.
Y. Kumar, for the interveners.
C. K. Daphtary, Solicitor-General of India
and B. Sen, for the Attorney-General of India (To assist the Court).
1958. March 19. The following Judgment of the
Court was delivered by GAJENDRAGADKAR J.-This is an application under Art. 32
of the Constitution. The petitioner is a private limited company having its
registered office at No. 201, Mount Road, Madras. The company is the,
proprietor of a daily newspaper called " The Hindu " which is
published at Madras and has a large circulation in India and abroad. The
shareholders of the company are all citizens of India. The first respondent,
Shri N. Salivateeswaran, is a journalist of Bombay and he has been supplying
news to various newspapers and journals one of which was the Hindu. The supply
of news by the first respondent to the Hindu was under an agreement under which
he was being paid a fixed monthly honorarium.
Contrary to the advice and instructions of
the petitioner, the first respondent left India for Zurich on May 1, 1956.
The petitioner thereupon relieved him of his
duties and terminated with effect from March 1, 1956, the arrangement under
which he was supplying news to the Hindu. He returned to India in July 1956,
and requested the petitioner to reconsider its decision; but the petitioner did
not think that any case for reconsideration had been made out.
Thereupon the first respondent made an
application to the Labour Minister of the State of Bombay under s. 17 of the
Working Journalists (Conditions of Service) and Miscellaneous Provisions Act,
1955 (Act 45 of 1955), hereinafter referred to as the act. On receiving this
application the State of Bombay nominated Shri M. R. Meher,
1. C. S. (Retired), second respondent, as the
authority under s. 17 of the act for the purpose of enquiry into the first
respondent's application and requested him to examine the claim made by the
first 3 respondent and, in case he was satisfied that any money was due, to
issue a certificate for that amount to the Collector of Bombay for further
action as provided under s. 17. A copy of the application was served on the
petitioner by order of the second respondent; and a covering letter addressed
to the petitioner called upon him to file his written statement in reply to the
first respondent's claim.
By his application the first respondent had
claimed a sum of Rs. 1,57,172-8-0 from the petitioner. In his written
statement, the petitioner disputed the whole of the claim made by the first
respondent and traversed all the material allegations made by him in support of
his claim. The petitioner also contended that the second respondent had no
jurisdiction to go into the matters arising from the first respondent's
application. It was also urged by the petitioner alternatively that, even if
the second respondent had jurisdiction to deal with the matter, he had the
discretion to decline to consider the matter and leave it to be tried in the
ordinary courts. The petitioner requested the second respondent to exercise his
discretion and direct the first respondent to establish his claim in the appropriate
civil court. The petitioner's written statement was filed on October 18, 1956.
The second respondent decided to deal with
the question of jurisdiction as a preliminary issue. He heard both the parties
on this preliminary issue and, by his order dated November 12, 1956, he
recorded his conclusion that he had jurisdiction to deal with the matter and that
it was unnecessary to direct the first respondent to establish his claim in the
ordinary civil court. Accordingly the matter was adjourned to December 1, 1956,
for hearing on the merits. It is this order which is challenged by the
petitioner before us by his present petition under Art. 32 of the Constitution.
The petitioner's case is that s. 17 of the
act provides only for a mode of recovery of any money due to a working
journalist. It does not empower the State Government or the authority specified
by the State Government to act as a forum for adjudicating 4 upon the merits of
the disputed claim. That being so, the second respondent has no jurisdiction to
deal with the merits of the first respondent's claim against the petitioner. In
the alternative, the petitioner contends that, if s. 17 confers jurisdiction on
the State Government or the authority specified by the State Government to
adjudicate upon disputed claims mentioned in the said.
section, the said section would be ultra
vires and void. On these alternative pleas, two alternative reliefs are claimed
by the petitioner. The first relief claimed is that a writ in the nature of the
writ of prohibition or other suitable writ or direction be issued restraining
the second respondent from exercising any powers under s. 17 of the act and
proceeding with the enquiry into the application filed by the first respondent
and forwarded to him by the State Government and issue him a certificate. The
other relief claimed is that this court should be pleased to order and direct
that s. 17 of the act is ultra vires and void on the grounds set out in the
It would be necessary and convenient to
construe s. 17 of the act first and determine its true scope and effect. The
larger question about the vires of this act and the validity of the decision of
the Wage Board set up by the Central Government under s. 8 of the act have been
considered by us in the several petitions filed by several employers in that
behalf before this Court. We have held in those petitions that, with the
exception of s. 5 (1) (a) (iii) which deals with the payment of gratuity to
employees who voluntarily resign from service, the rest of the act is valid.
That is why the question about the vires of s. 17 need not be considered in the
present petition over again. The main point which remains to be considered,
however, is: Does s. 17 constitute the State Government or the authority
specified by the State Government into a forum for adjudicating upon the merits
of the claim made by newspaper employee against hip, employer under any of the
provisions of this act ? Section 17 provides:
" Where any money is due to a newspaper
employee from an employer under any of the provisions 5 of this Act, whether by
way of compensation, gratuity or wages, the newspaper employee may, without
prejudice to any other mode of recovery, make an application to the State
Government for the recovery of the money due to him, and if the State.
Government or such authority as the State Government may specify in this behalf
is satisfied that any money is so due, it shall issue a certificate for that'
amount to the collector and the collector shall proceed to recover that amount
in the same manner as an arrear of land revenue." It is clear that the
employee's claim against his employer which can form the subject matter of an
enquiry under s.. 17 must relate to compensation awardable under s. 4 of the
act, gratuity awardable under s. 5 of the act, or wages claimable under the
decision of the Wage Board. If the employee wishes to make any other claim
against his employer, that would not be covered by s. 17. As the marginal note
shows, the section deals with the recovery of money due from an employer.
The employee contends that the process of
recovery begins with the making of an application setting out the claim and
ends with the actual recovery of the amount found due. On this construction,
the dispute between the employee and his employer in regard to any claim which
the employee may make against his employer would fall to be determined on the
merits right up from the start to the issue of the certificate under this
section. In other words, if a claim is made by the employee and denied by the
employer, the merits of the claim together with the other issues that may arise
between the parties have to be considered under this section. On this argument
s. 17 provides a self-contained procedure for the enforcement of the claims
covered by it.
On the other hand, the case for the
petitioner is that the section provides for a procedure to recover the amount
due from an employer, not for the determination of the question as to what
amount is due. The condition precedent for the application of s. 17 is a prior
determination by a competent authority or the 6 court of the amount due to the employee
from his employer.
It is only if and after the amount due to the
employee has been duly determined that the stage is reached to recover that
amount and it is at this stage that the employee is given the additional
advantage provided by s. 17 without prejudice to any other mode of recovery
available to him.
According to this view, the State Government
or the authority specified by the State Government has to hold a summary
enquiry on a very narrow and limited point: Is the amount which is found due to
the employee still due when the employee makes an application under s. 17, or,
has any amount been paid, and, if yes, how much still remains to be paid? It is
only a limited enquiry of this type which is contemplated by s. 17. Within the
scope of the enquiry permitted by this section are not included the examination
and decision of the merits of the claim made by the employee. When the section
refers to the application made by the employee for the recovery of the money
due to him, it really contemplates the stage of execution which follows the
passing of the decree or the making of an award or order by an appropriate
court or authority. In our opinion, the construction suggested by the
petitioner should be accepted because we feel that this construction is more
reasonable and more consistent with the scheme of the act.
It is significant that the State Government
or the specific authority mentioned in s. 17 has not been clothed with the
normal powers of a court or a tribunal to hold a formal enquiry. It is true
that s. 3, sub-s. (1) of the Act provides for the application of the Industrial
Disputes Act, 1947, to or in relation to working journalists subject to sub-s.
(2); but this provision is in substance intended to make working journalists
workmen within the meaning of the main Industrial Disputes Act. This section
cannot be read as conferring on the State Government or the specified authority
mentioned under s. 17 power to enforce attendance of witnesses, examine them on
oath, issue commission or pass orders in respect of discovery and inspection such
as can be passed by the boards, courts 7 or tribunals under the Industrial
Disputes Act. It is obvious that the relevant provisions of s. 11 of the Industrial
Disputes Act, 1947, which confer the said powers on the conciliation officers,
boards, courts and tribunals cannot be made applicable to the State Government
or the specified authority mentioned, under s. 17 merely by virtue of s. 3(1)
of the act.
In this connection, it would be relevant to
remember that s. 11 of the act expressly confers the material powers on the
Wage Board established tinder s. 8 of the Act. Whatever may be the true nature
or character of the Wage Board-whether it is a legislative or an administrative
body-the legislature has taken the precaution to enact the enabling provisions
of s. 11 in the matter of the said material powers. It is well-known that,
whenever the legislature wants to confer upon any specified authority powers of
a civil court in the matter of holding enquiries, specific provision is made in
that behalf. if the legislature had intended that the enquiry authorised under
s. 17 should include within its compass the examination of the merits of the
employee's claim against his employer and a decision on it, the legislature
would undoubtedly have made an appropriate provision conferring on the State
Government or the specified authority the relevant powers essential for the purpose
of effectively holding such an enquiry. The fact that the legislature has
enacted s. 11 in regard to the Wage Board but has not made any corresponding
provision in regard to the State Government or the specified authority under s.
17 lends strong corroboration to the view that the enquiry contemplated by s.
17 is a summary enquiry of a very limited nature and its scope is confined to
the investigation of the narrow point as to what amount is actually due to be
paid to the employee under the decree, award, or other valid order obtained by
the employee after establishing his claim in that behalf. We are reluctant to
accept the view that the legislature intended that the specified authority or
the State Government should hold a larger enquiry into the merits of the
employee's claim without conferring on the State Government or the 8 specified
authority the necessary powers in that behalf. In this connection, it would be
relevant to Point out that in many cases some complicated questions of fact may
arise when working journalists make claims for wages against their employers.
It is not unlikely that the status of the working journalist, the nature of the
office he holds and the class to which he belongs may themselves be matters of
dispute between the parties and the decision of such disputed questions of fact
may need thorough examination and a formal enquiry. If that be so it is not
likely that the legislature could have intended that such complicated questions
of fact should be dealt with in a summary enquiry indicated by s. 17.
Section 17 seems to correspond in substance
to the provisions of s. 20, sub-s. (1) of the Industrial Disputes (Appellate
Tribunal) Act, 1950, which has now been repealed.
Under this section, any money due from an
employer under any award or decision of an industrial tribunal may be recovered
as arrears of land revenue or as a public demand by the appropriate Government
on an application made to it by the person entitled to the money under that
award or decision.
It is clear that the proceedings under s. 20,
sub-s. (1) could commence only if and after the workman had obtained an award
or decision in his favour. We are inclined to think that the position under s.
17 is substantially similar.
In this connection we may also refer to the
provisions of s. 33C of the Industrial Disputes Act (14 of 1947). sub-s. (1) of
s. 33C has been added by Act 36 of 1956 and is modelled on the provisions of s.
17 of the present Act. Section 33C, sub-s. (2), however, is more relevant for
Under s. 33C, sub-s. (2), where any workman
is entitled to receive from his employer any benefit which is capable of being
computed in terms of money, the amount at which such benefit may be computed
may, subject to any rules made under this act, be determined by such Labour
Court as may be specified in this behalf by the appropriate Government, and the
amount so determined should be recovered as provided for in 9 sub-s. (1). Then
follows sub-s. (3) which provides for an enquiry by the Labour Court into the question
of computing the money value of the benefit in question. The Labour Court is
empowered under this sub-section to appoint a commissioner who shall, after
taking such evidence as may be necessary, submit a report to the Labour Court,
and the Labour Court shall determine the amount after considering the report of
the commissioner and other circumstances of the case.. These provisions
indicate that, where an employee makes a claim for some money by virtue of the
benefit to which he is entitled, an enquiry into the claim is contemplated by
the Labour Court, and it is only after the Labour Court has decided the matter
that the decision becomes enforceable under s. 33C(1) by a summary procedure.
It is true that, in the present case, the
Government of Bombay has specified the authorities under the Payment of Wages
Act and the Industrial Disputes Act as specified authorities under s. 17 to
deal with applications of newspaper employees whose wages are less than Rs. 200
per month or more respectively; but there can be no doubt that, when the second
respondent entertained the first respondent's application, he was acting as the
specified authority under s. 17 and not as an industrial tribunal. It is clear
that, under s. 17, the State Government would be entitled to specify any person
it likes for the purpose of holding an enquiry under the said section. The
powers of the authority specified under s. 17 must be found in the provisions
of the act itself and -they cannot be inferred from the accidental circumstance
that the specified authority otherwise is a member of the industrial tribunal;
since there is no provision in the act which
confers on the specified authority the relevant and adequate powers to hold a.
formal enquiry, it would be difficult to accept the position that various
questions which may arise between the working journalists and their employers
were intended to be dealt with in a summary and an informal manner without
conferring adequate powers on the 2 10 specified authority in that behalf. The
second respondent himself was impressed by this argument but he was inclined to
hold that the necessary power could be assumed by him by implication because he
thought that, in the absence of such implied power, his jurisdiction under s.
17 could not be effectively exercised. In our opinion, this approach really
begs the question. If the legislature did not confer adequate powers on the
specified authority under s. 17, a more reasonable inference would be that the
nature and scope of the powers under s. 17 is very limited and the legislature
knew that, for holding such a limited and narrow enquiry, it was unnecessary to
confer powers invariably associated with formal and complicated enquiries of a
judicial or quasijudicial character. We must accordingly hold that the second
respondent had no jurisdiction to entertain the first respondent's application
at this stage.
It appears from the order made by the second
respondent that he took the view that, though he had jurisdiction to deal with
the application, it would have been open to him to refuse to exercise that
jurisdiction and to direct the first respondent to establish his claim in the
ordinary civil court. He, however, thought that he need not exercise that power
in the present case. We are satisfied that the second respondent was in error
in both these conclusions. If he had jurisdiction to deal with this matter
under s. 17, it is difficult to appreciate how, in the absence of any provision
in that -behalf, he could have directed the first respondent-to establish his
claim in the ordinary civil court. Such an order would clearly have amounted to
the second respondent's failure to exercise jurisdiction vested in him.
Besides, if s. 17 had really given him discretion in this matter as assumed by
the second respondent, on the merits of this case it would obviously have been
a case which should have been referred to the ordinary civil court.
This, however, is now a matter of purely
The question which still remains to be
considered is: What would be the proper order to make on the present petition
in view of our conclusion that the 11 second respondent had no jurisdiction to
entertain the first respondent's application. The present petition purports to
invoke our jurisdiction under Art. 32 of the Constitution and it was a valid
and competent petition in so far as it challenged the vires of s. 17 itself;
but, once s. 17 is held to be valid and in order, the competence of the
petition under Art. 32 is naturally open to serious jeopardy. No question about
the fundamental rights of the petitioner is involved and his grievance against
the order passed by the second respondent cannot be ventilated by a petition
under Art. 32. This position is fairly conceded by the learned counsel for the
petitioner. He, however, argued that, if we construe s. 17 in his favour and
hold that the second respondent had no jurisdiction to entertain the first
respondent's application, his purpose would be effectively served even though
technically his petition may ultimately be dismissed on the ground that it is
not competent under Art. 32 of the Constitution. In our opinion, there is
considerable force in this contention. We would accordingly hold that the
second respondent has no jurisdiction to entertain the first respondent's
application; but, since the petition itself is not competent under Art. 32, we
would direct that the petition fails on this technical ground and must be
dismissed. There would be no order as to costs.