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PETITIONER:

PARRY & CO. LTD.

Vs.

RESPONDENT:

COMMERCIAL EMPLOYEES' ASSOCIATION,MADRAS.

DATE OF JUDGMENT:

10/04/1952

BENCH:

MUKHERJEA, B.K.

BENCH:

MUKHERJEA, B.K.

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)

ACT:

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 Commis-

sioner--Finality of.

HEADNOTE:

The High Court cannot issue a writ of certiorari to

quash a decision passed with jurisdiction by a Labour Com-

missioner 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 compe-

tent authority to.determine the questions referred to him

under that section and the decision of the Labour Commis-

sioner is final and not liable to be challenged in a Court

of law.

JUDGMENT:

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 Peti-

tion No. 1317 of 1949 arising out of Order dated 29th Janu-

ary, 1949, of the Commissioner of Labour, Madras.

S.C. Isaacs (S. N. Mukherjee, with him), for the appel-

lant.

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 Com-

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missioner, Madras, in any enquiry under section 51 of the

Madras Shops and Establishments Act.

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 ob-

ject, as stated in the preamble, is to provide for the

regulation of conditions of work in shops and other estab-

lishments. Section 14(1) of the Act sets a statutory limi-

tation upon the working hours and lays down:

"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 re-

quired 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 estab-

lishment if such rights and privileges are more favourable

to him than those to which he would be entitled under this

Act."

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The only other relevant section is section 51 which says :--

"If any question arises whether all or any of the provi-

sions 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 cleri-

cal employees including those working under the appellant.

On November 10, 1948, the respondent presented an applica-

tion 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 appel-

lant. 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

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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 ordi-

nary 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

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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 direct-

ed 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 estab-

lishments 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 pro-

vided. 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 imposi-

tion 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

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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 chal-

lenged before us in this appeal.

It is somewhat unfortunate that the respondent remained

unrepresented before us and the appeal had to be heard ex-

parte. 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

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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 Commission-

er did decide that if the normal hours of work were previ-

ously 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 corre-

sponding 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

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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 Commis-

sioner acted without jurisdiction or in excess of his pow-

ers. Under Section 51 of the Madras Shops and Establish-

ments 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 Commis-

sioner 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 conclu-

sion, but the conclusion is in respect of a matter which

lies entirely within the jurisdiction of the Labour Commis-

sioner to decide and it does not relate to anything collat-

eral, 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 irregu-

larity 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 justi-

fy 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 exer-

cise 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 judg-

ment of the High Court, therefore, in our opinion, is plain-

ly unsustainable. In the view which we have taken, it is

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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, [1911] A.C.

179.

(2) Vide Colonial Bank of Australasia v. Robert Willan,

5P.C. Ap, peals 417.

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