# PARRY & CO. LTD v. COMMERCIAL EMPLOYEES' ASSOCIATION, MADRAS

- **Citation:** [1952] 1 S.C.R. 519
- **Court:** Supreme Court of India
- **Decided:** 1949-01-29
- **Case number:** CIVIL APPELLATE JuR1smcnoN Civil Appeal No. 154 of 1951
- **Bench:** SAIYAD FAZL Au, MuKHERJEA, DAs
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/parry-co-ltd-v-commercial-employees-association-madras-45
- **Pages:** 7

## Headnote

519
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 Commissioner-Finality of.
The High Court cannot issue a writ of certiorari to quash a
decision passed
with jurisdiction by a
Labour
Commissioner
under the Madras Shops and Establishments Act, 1947, on 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 competent authority to determine 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.
CIVIL
APPELLATE
JuR1smcnoN
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 Commissioner 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 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 Commissiener, Madras
J
in any enquiry under section 51 of the Madras Shop;
and Establishments Act.
1952
April 10~
520
SUPREME COURT REPORTS
[1952]
1952
/Parry & Co. Ltd.
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 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 the
Act sets a statutory limitation upon the working hours
and lays down:
v.
Commercial
Employees'
Association,
Madras.
Mul{heriea /.
"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 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 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 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 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
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 establishment under any other law, contract, custom or usage
<1pplicable to such
establishment
if such rights
and
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
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 Commissioner of Labour and his decision thereon shall be
final and shall not be liable to be que

## Text

)
S.C.R.
SUPREME COURT REPORTS
PARRY & CO. LTD.
v.
COMMERCIAL EMPLOYEES' ASSOCIATION,
MADRAS.
[SAIYAD FAZL Au, MuKHERJEA and DAs JJ.)
519
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 Commissioner-Finality of.
The High Court cannot issue a writ of certiorari to quash a
decision passed
with jurisdiction by a
Labour
Commissioner
under the Madras Shops and Establishments Act, 1947, on 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 competent authority to determine 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.
CIVIL
APPELLATE
JuR1smcnoN
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 Commissioner 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 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 Commissiener, Madras
J
in any enquiry under section 51 of the Madras Shop;
and Establishments Act.
1952
April 10~
520
SUPREME COURT REPORTS
[1952]
1952
/Parry & Co. Ltd.
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 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 the
Act sets a statutory limitation upon the working hours
and lays down:
v.
Commercial
Employees'
Association,
Madras.
Mul{heriea /.
"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 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 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 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 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
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 establishment under any other law, contract, custom or usage
<1pplicable to such
establishment
if such rights
and
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
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 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 i:n Madras, while the respondent is an associ-
'<ltion of clerical
employees including
those working
under the appellant. On November
10,
1948, the
respondent presented an application 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 appellant.
The Commissioner issued a notice calling upon the
appellant to appear and answer the contentions raised
on behalf of the
employee$. 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 question raised by 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:-
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 the
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.
Mu~J1erje11 /.
1952
Parry & Co. Ltd.
v.
Commercial
Employees'
Association,
Madras.
Muk hcrjca ].
522
SUPREME COURT REPORTS
[1952]
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 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.
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 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
provided
,the
·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
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
imposition 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:
1
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."
y'
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
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
1s the propriety of this decision that has been challenged 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 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 Commissioner did decide that if the normal hours of work
were previously
fixed and
rigidly
adhered to,
the
employees would be entitled to seek protection under
Section 50 of the Act against imposition of longer
hours on work without a corresponding mcrease
m
their emoluments.
The increase in such cases, accordmg to the Labour Commissioner, should be on the
scale of compensatory
wages allowed under rule IO of
4-6 S. C. India/71
1952
Parry & Co. Ltd.
v.
Commercial
Employees'
Association,
Madras.
Mukherjea· f.
1952
P•"Y 6' Co. Ltd.
v.
Commercjal
Employees'
Association,
Madras.
Mukheriea ].
524
SUPREME COURT REPORTS
[1952]
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 Commissioner acted without
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
competent
authority to determine the questions referred to it in that section; and there is an express provision in it that the
dec~sion 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 tl1e
Labour Commissioner 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 conclusion,
but the conclusion is in respect of a matter which
lies entirely within
the
jurisdiction of the
Labour
Commissioner to decide and it does not relate to anything
collateral,
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 irregularity 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 justify
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
exercise the powers of an appellate court and correct
what it considered to be an error in the decision
ofi
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 rnight
legitimately issue cornrnanding
the
authority
to
determine
questions
which
it
left
-
-
,.. .
-
)
S.C.R.
SUPREME COURT REPORTS
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 judgment of the High Court,
therefore, in our
opinion, is plainly unsustainable. In the
view which
we have
taken,
it is
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. Isaac 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 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.
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.
1952
Pa"y & Co. Lti.
v.
Comm"cial
Employees'
Association,
Madras.
Mukherjea /.