B.K.MUKHERJEE J. : - (1.) THIS appeal is directed against a judgment of a division bench of the Madras High court dated 1/04/1949, 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 Commissioner, Madras, in any enquiry under section 51 of the Madras Shops and Establishments Act.
(2.) 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: `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 Ss. 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 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 establishment if such rights and privileges are more favourable to him than those to which he would be entitled under this Act.` The only other relevant section is section 51 which says :- `If any question arises whether all or any of the provisions 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 clerical employees including those working under the appellant. On 10/11/1948, 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 employees. The parties appeared before the Commissioner on 26/11/1948, 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 29/01/1949. The questions raised by the employees were classified by the Commissioner under six separate issues and two of them, which are material for our present purpose, are worded as follows :- JUDGEMENT_179_AIR(SC)_1952Html1.htm 180 On Issue No. 5. the 'decision of the Commissioner was that the 'business hours of the company were six and half prior to 1/04/1948', when the Act came into force and they continue to be so even now. It is true that a circular' was issued which was to take effect from 12/10/1948, 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 far as business hours are concerned.
(3.) 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 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 provided. 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 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: `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 29/01/1949, and on 16th of February following the 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 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. ;