PARRY & CO. LTD v. April 10~

Under s. 51 of the Madras Shops and Establishments Act, 1947, the only proper and compe- tent authority 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 of law. to determine JuR1smcnoN CIVIL APPELLATE Civil Appeal No. 154 of 1951. Appeal from a judgment and order of the lst 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 Commis- sioner of Labour, Madras. S. C. Isaacs (S. N. Mukherjee: with him) for the appellant. The respondent was not represented.

1952. April 10. The Judgment of delivered by the Court was MUKHERJEA J.-This appeal is directed against a a Division Bench of the Madras High judgment of in a certiorari Court dated 1st April, 1949, passed 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 Commissiener, Madras in any enquiry under section 51 of the Madras Shop; and Establishments Act. ) J 520 SUPREME COURT REPORTS [1952] 1952 /Parry & Co. Ltd. v. Commercial Employees' Association, Madras. Mul{heriea /. The facts material for our present purpose lie with- in a narrow compass and to appreciate the point that requires consideration in this appeal it will be conve- nient 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 Act sets a statutory limitation upon the working hours and lays down: "Subject to the other provisions of the Act, no person employed in any establishment shall be requir- ed or allowed to work for more than 8 hours in any day and 48 hours in any week. " - A proviso attached to the suh«ction 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 pay- ment 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 privi- in any establishment if these leges of an employee rights and privileges are more favourable to him than those created by the Act.

The section runs as follows:- "Nothing contained this •Act shall affect any tights or privileges whkh any person employed in any .establishment is entitled to on the date on which this Act comes into operation in respect of such establish- ment under any other law, contract, custom or usage if such rights and <1pplicable to such establishment privileges are more favourable to him than those to which he would be entitled under this Act. " ;. S.C.R. SUPREME COURT REPORTS 521 The only other relevant section is section 51 which 1952 says:- "If any question anses whether all or any of the provisions of this Act apply to an establishment or to a person employed therein or whether section 50 applies to any case or not, it shall be decided by the Com- missioner of Labour and his decision thereon shall be final and shall not be liable to be questioned in a -court of law". Parry & Co. Ltd. v. Commercial Employees' Association, Madras.

Mu~J1erje11 /. - The appellant is a employees including the appellant. On November 10, 1948, limited company carrying on business i:n Madras, while the respondent is an associ- '<ltion of clerical those working respondent presented an application before the Labour ·Commissioner, Madras, under section 51 of the Shops and Establishments Act for decision of certain ques- tions 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 the employee$. The parties appeared on behalf of 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 question the employees were classified by the Commissioner under six sepa· rate issues and two of them, which are material for .our present purpose, are worded as follows:- raised by lssue No. 5. Whether there has been an increase m working hours from 6 to 6! on week days from 12th October, 1948, and the increase is permissible? Issue No. 6. Whether overtime wages at twice ordinary rate8 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 ; 1952 Parry & Co. Ltd. v. Commercial Employees' Association, Madras. Muk hcrjca ]. 522 SUPREME COURT REPORTS [1952] issued which was true that a circular was 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 tar as business hours are concerned. to, ,the is transacted with 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 busines• during which business 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 ·statutory .limit of 8 hours a day is not exceeded. In the opinion of the Commis.sioner if the normal hours of work were previously the em- fixed and strictly adhered ployees could have acquired a right or privilege 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 in emoluments. The Commissioner goes on increase to say that in such cases it would be sufficient if com- pensatory wages are paid at the ordinary rate calculat- ed according to rule 10 of the Madras Shops and Esta- blishments 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: 1 - y' 1 "I hold that the c~ 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 ~ S.C.R. SUPREME COURT REPORTS 523 Judges respondent association filed a petition before the High Court at Madras, praying for a writ of certiorari quash the same. This application was heard by a and by the judgment dated Bench of two 1st of April, 1949, learned Judges allowed the 'the Labour petition in part and quashed the order of Commissioner in so far as it decided that the employees to overtime wages of the appellant will be entitled only when It this decision that has been chal- 1s lenged before us in this appeal. the statutory hours were the propriety of exceeded.

1952 Parry & Co. Ltd. v. Commercial Employees' Association, Madras. Mukherjea· f. - • , - It is somewhat unfortunate 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 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 answer the question raised by the association as whether the company was entitled to require the em- ployees to work more than six and half hours a day. the Labour Commis- According to the learned Judge, sioner was not right in holding that even if the work- ing 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. fixed and As has' been pointed out already, the Labour Com- missioner did decide that if the normal hours of work were previously employees would be entitled to seek protection under Section 50 of the Act against longer hours on work without a corresponding mcrease m their emoluments.

The increase in such cases, accord- to the Labour Commissioner, should be on the scale of compensatory wages allowed under rule IO of rigidly adhered to, imposition of 4-6 S. C. India/71 1952 P•"Y 6' Co. Ltd. v. Commercjal Employees' Association, Madras. Mukheriea ]. 524 SUPREME COURT REPORTS [1952] increase is more the Madras Shops and Establishments Rules. If, how- ever, the 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 that the Labour Commissioner acted with- suggested 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 authority to determine the questions refer- competent red to it in that section; and there is an express pro- vision in it that the dec~sion of the Labour Commis- sioner shall be final and not liable to be challenged in any court of law.

It was the respondent who took matter before tl1e Labour Commissioner in the present case and invited his decision upon the questions raised in the petition. The Commissioner was certainly bound the questions and he did decide them. At to decide 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 Labour Commissioner to decide and it does not relate to any- an erroneous decision upon which The records of the case might affect his jurisdiction. do not disclose any error apparent on proceeding or any irregularity in the procedure adopted contrary to by the Labour Commissioner which goes there was the principles of natural justice. Thus absolutely no grounds here which would a justify superior court in issuing a writ of certiorari for remov- al of an order or proceeding of an 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 ofi it cannot the Labour Commissioner. This obviously 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 rnight authority legitimately issue cornrnanding questions which to determine jurisdiction of the face of collateral, inferior - - ,.. . 1952 Pa"y & Co. Lti. v. Comm"cial Employees' Association, Madras. Mukherjea /. - ) S.C.R. SUPREME COURT REPORTS 525 is unnecessary undecided (1) ; but no certiorari is available to quash a decision passed with jurisdiction by an inferior tribunal that such decision is erroneous. on the mere ground The judgment of the High Court, therefore, in our In the view which opinion, is plainly unsustainable. to express any we have taken, to whether certiorari has been taken away opinion as -if it can be taken away at all under our Constitu- tion-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. in spite It was conceded by Mr.

Isaac that superior court of such statutory provisions the is not absolutely deprived of the power to issue a writ, al- though it can do so only on the ground of either a manifest defect of 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 Coqlmissioner affirmed. As the respondent was absent, we do not think it proper, in the circumstances of this case, to make any order for costs. jurisdiction in the Agent for the appellant : P. K. Mukherjee. (1) Vide Boardo/Education:v. Rice andoth6rs, [19il)fA.C.179. (2) Vide Colonial Bank of Australasia:v. Robert Willan, S P. c. AP· peals 417.