http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

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-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

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." 521 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

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 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 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 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  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

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 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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

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. 68 526