Mwrch 19 v. SHRI N. SAL1

C. K. Daphtanf, Solicitor-Gmeml of India and Shri N, Sulivatm- B. Sen, for the Attornev-C:eneral of India (Tu assist waran and Another th C • ) , e ourt .

1958. March 19. The following Judgment of the Court was delivered by Gajendragadkar J, GAJENDRAOADKAR J.--This is an application under Art. 32 of the Constitution. The petitioner is a private limited company having its registered office at Nu. 201, Mount Road, Madras. The company is thr proprietor of a daily newspaper called "The Hindu., which is published at Madras and has a large circu lation in India and abroad. The shareholders of the C'Ompany are all citizens of India. The first respon dent, Shri N. Salivateeswaran, is a journalist of Bom bay and he has been supplying news to various news papers and journals one of which was the Hindu. The supply of news by the first respondent tu 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 l, 1956. The petitioner thereupon relieved him of his duties and terminated with effect from March l, 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. l 7 of the Working Journalists (Conditions of Service) and Misrellaneous Provisions Act, 1955 (Act 45 of 1955), hereinafter referred to as the act. On receiving this the State of Bombay nominated Shri application M. R. Meher, I. 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

8.C.R. SUPREME COURT REPORTS 3 f h C II respondent and, in case he was satisfied that any money was due, to issue a certificate for that amount K - . d asturi an to t e o ector o Bombay for further act10n as sons (Private) Ltd. provided under s. 17. A copy of the application was served on the petitioner by order of the second Shri N. Salivatees reapondent; and a covering letter addressed to the waran and Anoth<r petitioner called upon him to file his written state- ment m rep y to t e rst respon ent s c aim. -- Gajendragadkar J. h fi / M s, J · r958 d J . . v. > 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 appro priate 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 pro vides only for a mode of recovery of any money due to a working journalist. lt does not empower the State Government or the authority specified by the State Government to act as a forum for adjudicating • ' / 4 SUPREME COURT REPORTS [1959] v. . · d z958 · h h t' 1' t e merits o M;s.Kastunand sons (Private) Ltd. wit · the petitioner. upon the merits of the disputed claim. That being so, the second respondent has no jurisdiction to deal t t f.th fi e rs respon. en s c aim a.g~ms In the alternative, the petit10ner Shri N. Salivatees- contends that, if s. 17 confers jurisdiction on the waran and Another State Government or the authority specified by the State Government to adjudicate upon disputed claims Gafrndragadka> J. 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 direc tion 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 JJlaimed 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 petition. 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 his employer under any of the provisions of this act ? Section 17 provides : "Where any money is due to a newspaper em ployee from an employer under any of the provisions ... 4 :• ... S.C.R. SUPREME COURT HEPORTS 5 . . ,,ons z958 . - of this Act, whether by way of compensation, gratuity or wages, the newspaper employee may, . without prejudice to any other mode of recovery, make. M/s.(P[(a.stu r1J •Lndd t riva e 1 an apphcat.10n to the State Government for the reco- • v. very of the money d.ue to him, and if the State Shri N. Salivatees Government or such authority as the State Govern- waran and Another ment may specify in this behalf is satisfied that any money is so due, it shall issue a certificate for (hat GaJelld.-agadkar J. 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 em ployer 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 wordR, if a claim is made by the employee and denied by the employer, the merit:S of the claim together with tlw other issues that may arise between the parties have to/be considered under this section. On this argument s. 17 proviuP~ a self-contained procedure for the enforcement of tlw claims covered by it. On the other hand, the case for the petitioner i~ that the section provides for a procedure to recover the amount due from an employer, not for the deter. mination 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 SUPREME COURT REPORTS (1959] h rwa e v. h d/ d · · I958 - . . 1s reac e court of the amount due to the employee from his It is only if and after the amount due to employer. M/s.(PKastutr)i •Lntdd the employee has been duly determined that the stage h. to recover t a·t amount an 1t 1s at t 1s Shri N. Salivatees-stage that the employee is given the additional advan w•ran and Another tage provided by s. 17 without prejudice to any other mode of recovery available to him. According to G . - - a;endragadkar .f. this view, the State Government or the authority spe cified 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 tl\e claim made by the employee. When the section refers to the application made by the em ployee 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 consis tent 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 tribu It is true that s. 3, nal to hold a formal enquiry. 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 pro vision 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 S.C.lt. RVPRE.ME COUHT ltEPORTi-l 7 . I J)' 18pUtes ct, 1 058 d f' h · l ' ,s. 'astun an . , \\' IC l eon1er t e 81LIC sons (Private) Ltd. or trilrnnals under the Ind1rntrial Disputes Act. Lt is obvious that t,he relevant provisions of s. 11 of the 11 1947 I d n US(rm powers on the conciliation officers, boards, eourts and tribunals <'amwt he made i1pplicable to the State Sh11 .v. salivat"s (iovcrnnwnt or the specified authority mentioned wara 11 • 11d A11other urnler s. 17 m!'l'elY bv virtue of s. 3(1) of the act. h' I G . d A ,. v. c . tJ)Cn ragaW"ar J. . •. • . In tins eo11ncd1011, 1t would he relevant to renwm- ber t hitt H. 11 of the act expressly eonforn the nrntcrial powers on the Wage Board estahlish!'d under s. 8 of the Act. Whatever may he the truP nature' or drnracter of the Wage Board-whether it is a IPgio;lative or an administrative body-thl' legislature has taken the pl'ccaution to enact thr Pnabling 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 l'ivil court in the matter of holding enquiries, spccitil' provision lf the legislature had intend is made in that ochalf. ed 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 St<ttl' Government or the specified authority the rele vant powers l'sscntial for the purpose of effectively holding sueh an enquiry. The fact that the legisla ture has enacted s. 11 in regard to the Wage Board but has not made any corresponding provision in the specified regard to thl' State Government or authority under s. 17 lends strong eorrobora.tion to the view that the enquiry contemplated by s. 17 is ii summary enquiry of a very limited 1mture and its scope is confined t-0 the investigation of thl' narrow point as t-0 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 speciticd 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 SUPREME COURT REPORTS [1959] 58 '9 H]Jecifiml authority the necessary ]JOWers in that .UJs. Kasturi a11d behalf. In this connection,· it would be relevant to sons (Private) Ltd. point out that in many cases some complicated questions of fact may arise when working journalists Shri N. Salwatees- make claims for wages against their employers. It is " ·~4nother not unlikely that the status of the working journalist, Gajendragadkar J. the nature of the office he holds and the class to ' " ' v. . 0 which he belongs may themselves be matters of dis pute between the parties and the decision of such disputed questions of fact may need thorough exami If that be so it is not nation and a formal enquiry. 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-a. (1) of the Industrial Disputes (Appellate Tribunal) Act, 1950, which has now been repealer!. U •Hier this section, any money due from an employer under any award or decision of an indus triu,l tribunal may be recovered as arrears of land revenue or as a public demand by the appropriate U<Jvernment on an application made to it by the person entitled to the money under that award or It is clear that the proceedings under s. 20, decision. suh-s. (1) could comm~nce only if and after the work man had ohtainrd an award or decision in his favour. We arc inelined to think that the position under s. 17 is substantially Himilnr. ln this l'Onm'dion we may also refer to the provi sions of s. :l3l' of the Industrial Disputes Act (14 of 1947). Hub-s. (1) of s. 33C has heen added by Act 36 of 1956 u.nd is modelled on the provisions of s. 17 of the present Act. :Section 33C, sub-s. (2), how ever, is more relevant for ou1· purpose. Under s. 33C, snh-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 bcnclit ma.y be computed may, subject to any rules made under this al'!, he determined by sud1 Lithour Court as may be 8Jll'l'itied in this behalf by the appropriate Uovcrnment, and the amount so determined should be recovered as provided for in S.C.R. i-IUPREME COURT REPORT1' !l ...

1. '-' · · · f' · SOHS h 1958 f' h . . - M·s.Kasluriand · (P . , ) Ltd Ttva e . v. sub-s. (1). Then follows suh-s. (3) which provides for an enquiry by thr Labour Court into the question of 1 ie monpy va tw o t c uene it m quest10n. com11utmg The Labour Comt is empowered under th~-' sub-sec- t-ion to appoint a c·ommissioner who shall, aftertakingshri N. Saliv•tees such evidence 11.s 11111.y he necessary, submit a reportwara n and A11oll1tr 1 to the L11.hour Court, and the Labour Cov.rt shall d etermme t e amount a ter cons1 ermg t e report o tlw commissioner and othrr l'ircumstances of the case. These provisions indiC'atc that, where an employee makes 11 daim for some money hy virtue of the bene- fit to which he iH ent it.led, an enquiry into the claim is contemplated hy the L11.hour Court, and it is only af"tl·r the Lahonr Court h11.s decided the matter that the deeision becomes enforc·eahiP under s. 33('(1) by a summary procpdure. - fGajendragadkar ]. 'd h f . It is trtw that, in the present case, the Government of Bomlmy has spl'rified the n,uthorities under the P11.yrnent of W,tges Act and the lndtrntrial Disputes Act n,s s1weitied authoritil'S undPr s. 17 to cleal with applic·Mions of JlPwsp;tper employees whose wages are less than Hs. :WO per month or more respectively; but there ean be no doubt that, when thP second respondent entertained the first respondent's applica tion, he w11.s acting as the specified authority under s. 17 and not ;ts an industrin,l 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 st'ction. The powers of the authority specified undPr s. 17 must be found in the provisions of the act itself and they cannot he inferred from the a.cl"idental circumstance that th!.' 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 whi~h may arise between the working journn,lists and their employers were intend ed to be dealt with in a summary and 11.n informal manner without uonferring adequate powers on the a 10 ~UPREME COURT REPORTS [1959) \, v . · \ h l' t' i958 d b l · b e assume exercised. Ca)mdra;adkar .f. the question. specified authority in that behalf. The second respon- dent himself was impressed by this argument but he M,s. Kast"" "''d was inclined to hold that the necessary power could sons (Private) I.Id. b h y nm y nnp wa 10n }ecause e oug t Skri N. Salivatees- that, in the absence of such implied power, his waran and Another jurisdiction under s. 17 could not he effectively In our opinion, this approach really begs If the legislature did not confer ad -equat«{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 <1uasi-judicial character. We must accordingly hoi<I that tn<' second respondent had no jurisdiction to entPrtain the first respondent's application at this stage. It appears from the order made hy 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 direet the first respondent establish his claim in the ordinary civil court. He, however, thought that he need not l'.Xcrc:isc that power in the present case. We are satisfied that the second respondent wa~ 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/th<· ordinary civil court. Such an order would clearly have amount ed to the second respondent's failure to exercise juris diction 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 heen referred t-0 the ordinary civil court. This, however, is now a matter of purely academic intl>rest. The question which still remains to be considered is: Wh~t would be the proper order to make on the present petition in view of our conclusion that the S.C.R. 8UPREME COURT REPORTS 11 - . . . d l' ! d . r95B - sc<,011d n•sponclcnt had no jurisdiction to ent()rtai!I the first respondent's application. The present petition purports to invoke our jurisdiction under Art. 32 of ,\Ifs. Kast•,, ""d so"s (Private) lid· h C t c .onstitutmn an 1t was a va H an competent v. petition in so far <18 it challenged the vires of s. 17 Sliri N. salivatrcs· itself; but, onces. 17 is held to be valid and in order, ... , ... • ,.d A•other the l'Ompetence of the petition under Art. 32 is naturally open to srrimrn jeopardy. No <1uestion aboutG•J• 11dr•g•dkar .1· the fundamental rights of the petitioner is involved and his griPv11nce against. the order passed by the second rt>spondent cannot be ventilated by a petition/ under Art. 32. This position is fairly conceded by the h1rned counsel for the petitioner. He, however, itrgucd thiit, if we construe s. 17 in his favour and hold that the second respondent had no jurisdiction to cnt.ertain the first wspondent's application, his purpose would be pffcrtively served even though teehnically his petition may ultimately be dismissed on the ground that it is not. compl'tent undC'r Art. 32 of the Constitu- tion. In our opinion, there is considerable force in this contention. We would accordingly hold that t·he second respondent has no jurisdi<'tion to entertain the first respondent's application; but, since the petition itself is not competent und<'r Art. 32, we would direct that the petition fails on this technical ground and must bt> dismissed. There would be no order as to costs. Petition di.tmissed.