Joseph Sam vs Caltex (India), Ltd. and Another

P.V. Rajamannar, C.J.—This is an appeal from the Judgment of Rajagopala Ayyangar, J., dismissing the petition filed by the appellant under

Article 226 of the Constitution of India for the issue of a writ of certiorari, quashing the order passed by the Additional Commissioner for

Workmen''s Compensation, Madras, on 1 November 1955. The appellant was a depot operator in the employment of Caltex (India), Ltd. On 1

December 1954 he was dismissed from the service of the company after an enquiry by an officer of the company deputed for the purpose. Against

this order of dismissal, the appellant filed an appeal u/s 41(2) of the Madras Shops and Establishments Act, which was disposed of by the

Additional Commissioner for Workmen''s Compensation by the order referred to above. Before the Additional Commissioner, a preliminary point

was raised on behalf of the management that the appellant was not a person, to whom the provisions of the Act applied, because he fell within the

category described in Clause (a) of Section 4(1) of the Act, namely, ""persons employed in any establishment in a position of management."" This

plea was accepted by the Additional Commissioner. He found, on an examination of the evidence adduced by the parties, that the appellant was

employed in a position of management. On this finding, the Additional Commissioner had no other alternative but to dismiss the appeal preferred

by the appellant before us. It is to quash this order that the writ petition, out of which this appeal arises, was filed.

Neither before the learned Judge, Rajagopala Ayyangar, J., nor before us, the finding of the Additional Commissioner that the appellant was

employed in a position of management was challenged. The only ground on which the order of the Additional Commissioner was sought to be

quashed was that he had no jurisdiction to determine the issue, because, u/s 51 of the Act the question could be decided only by the Commissioner

of Labour. The learned Judge held that the ground was not sustainable, and that the jurisdiction of the Additional Commissioner to determine the

status of the appellant, that is, whether he fell within Section 4(1)(a) of the Act, was not ousted by Section 51 of the Act. Hence this appeal.

The only question which falls for decision in this case turns on the interpretation of Section 61 of the Act, which runs as follows:

If any question arises whether all or any of the provisions of this Act apply to an estalishment 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 therein shall be final and shall not be liable to be

questioned in any Court of law.

It was contended by learned Counsel for the appellant that if question arises as to whether all or any of the provisions of the Act applied to an

establishment or to a person employed therein, before any tribunal or court, such a question can be decided only by the Commissioner of Labour,

because he was the only person or tribunal who was competent to determine the question. Learned Counsel had perforce to follow this argument

to its logical result that the moment, such a question was raised, there Should be a suspension of further proceedings before any other tribunal or

court, and the question should be referred for decision to the Commissioner of Labour. Apart from the language of the section itself, which we shall

deal with later on, the appellant''s learned Counsel relied on two decisions, namely, Pasmore v. Oswald Twistle Urban Council 1838 A.C. 347

find Parry and Co. Ltd. Vs. Commercial Employees'' Association, Madras, , In the former case, the House of Lords applied the well-established

principle of law, which was thus enunciated by Lord Tenderden in 1831:

Where an Act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be

enforced in any other manner.

The actual decision in the case was that the duty of a local authority under the Public Health Act, 1875, to make such severs as may be necessary

for effectually draining their district for the purpose of that Act, cannot be enforced by an action for mandamus brought by a private person, but the

only remedy for neglect of the duty was that given by Section 299 of the Act, a complaint to the local Government Board. There is no scope for

the application of this principle to the case before us. The question before us is whether the particular tribunal whose order is sought to be quashed

had or had not the jurisdiction to decide whether an employee fell within or outside the provisions of the Shops and Establishments Act.

The other decision relied on is that of the Supreme Court in Parry & Co. v. Commercial Employees'' Union (supra). Learned Counsel for the

appellant conceded that the decision in that case as such has no bearing on the present case ; but he relied on the following observation of

Mukherjee, J., who delivered the judgment of the Court:

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 decision of the Labour Commissioner shall be

final and not liable to be challenged in any Court of law.

This observation should be understood in the context and not divorced from it. All that the learned Judges decided in that case is clear from the

following further observations of the learned Judge:

It was the respondent who took the matter before the 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 concluston, 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 noon 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 ground 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.

In the case before the Supreme Court, there was no matter pending enquiry before any judicial or quasi-judicial tribunal or court. There was a

petition directly filed before the Commissioner of Labour to decide certain questions, which related to the rights and privileges of the employees of

the company who filed the petition. This decision is therefore no authority in support of the extreme contention on behalf of the appellant that,

whenever and wherever a question is raised as to the applicability of the Act or any of the provisions to any employee or establishment, such

question should be forthwith referred to the Commissioner of Labour for his decision.

There is, on the other hand, a direct decision on the point by learned Judge of this Court, Ramaswami, J., in In re Sankaranarayana (1952) II

M.L.J. 857. That case arose out of a prosecution under the Madras Shops and Establishments Act for contravention of certain provisions of the

Act and the rules made thereunder. The Additional First Class Magistrate,, Kollegal, found the accused guilty who thereupon filed a criminal

revision case in this Court. One of the points urged was that the Act did not apply to the petitioner who was managing an out-agency of a railway

and that it was only the Commissioner of Labour who could decide the question whether the Act applied or not u/s 51 of the Act and the

magistrate was not competent to decide that question. Rama-swami, J, overruled this contention. He explained the scope of the application of

Section 51 of the Act thus:

Section 51 the Act is a miscellaneous departmental provision which states that when there is a dispute about the application of one or more of the

provisions of the Act. to a particular establishment or particular individual, the authority who will have to decide that mutter will be Labour

Commissioner and that his decision thereon shall be final. It only means that the decision is final in so far as appeals in the department are

concerned and not that it takes away the powers of the Court to decide whether in the particular circumstances of the case the Madras Shops and

Establishments Act applied or not. I am unable to accept the contention that the decision of the Commissioner of Lobour is a prerequisite for a

magistrate to find out whether the offence for which the accused has been charged before him has been committed by him or not. This

miscellaneous provision in Section 51 of the Act is merely for the removal of difficulties in deciding certain questions in so far as the department is

concerned and would not stand in the way of the magistrate at all.

With respect to the learned Judge, we are in entire agreement with his reasoning and conclusion.

Coming to the language of the section itself, it is true that, prima fade, it is very wide. But there are certain singular omissions which are not

without significance. Though the section opens with the words if any question arises,"" these words are not followed by the words like ""before any

court or tribunal."" There is nothing in the section which makes it imperative on a court or a tribunal, before which a question as to the applicability

of the Act is raised, to stay further proceedings before it and to refer the question to the Commissioner of Labour for his decision. In recent

agrarian legislation, there are provisions which make such a course imperative. But, in Section 51, there is no provision for a compulsory reference.

This construction of Section 51 does not make it purposeless. There are several provisions in the Act dealing with different subjects like the hours

of work, holidays, leave, health and safety of the employees, and wages. There may be occasions when a management--or it may be the

employer''s--consider it necessary to obtain an authoritative ruling on the application of such provisions. But then there is no provision for such

questions being decided by any other tribunal. The jurisdiction of the Commissioner of Labour could, in such matters, be invoked. We are clearly

of opinion that Section 51 does not have the effect of interfering with the functions and jurisdiction of the civil courts including this Court and

judicial and quasi-judicial tribunals. We agree with the learned Judge that the order of the Additional Commissioner for Workmen''s Compensation

was not without jurisdiction. The appellant is therefore not entitled to have the order quashed.

There is one other ground on which we think the appellant is not entitled to any relief from this Court under Article 226 of the Constitution.

Admittedly, this objection was not taken before the Additional Commissioner for Workmen''s Compensation. If he had taken it, the Additional

Commissioner might well have referred the matter to the Commissioner of Labour, assuming that this is the proper course. Instead, the appellant

invited the Additional Commissioner to go into the question raised and was prepared to take his decision. Now that the decision has gone against

him, he cannot be heard to say that the Additional Commissioner acted without jurisdiction.

In the result, the appeal fails and is dismissed. There will be no order as to costs.