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PETITIONER: M/S.  KASTURI AND SONS (PRIVATE) LTD.

       Vs.

RESPONDENT: SHRI N. SALIVATEESWARAN AND ANOTHER

DATE OF JUDGMENT: 19/03/1958

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. BHAGWATI, NATWARLAL H. SINHA, BHUVNESHWAR P. IMAM, SYED JAFFER KAPUR, J.L.

CITATION:  1958 AIR  507            1959 SCR    1

ACT: Working  journalist-Claim against employer for  recovery  of dues-Reference by State Government to specified authority-If authority  also  empowered to determine  amount  due-Working journalists   (Conditions  of  Service)  and   Miscellaneous Provisions Act, 1955 (45 of 1955), S- 17.

HEADNOTE: The respondent No. I was a journalist supplying news to  the petitioner’s  newspaper  on  payment  of  a  fixed   monthly honorarium.   Contrary to the petitioner’s instructions  the respondent  No.  I left India and thereupon  the  petitioner terminated  the arrangement.  Upon his return to  India  the respondent No. I requested the petitioner to reconsider  its decision   but  the  petitioner  declined  to  do  so.   The respondent No. I applied to the State Government under s. 17 Of  tile  Working Journalists (Conditions  of  Service)  and Miscellaneous  Provisions Act, 1955 claiming a large sum  of money  from the petitioner.  The State Government  nominated respondent NO. 2 as the authority under s. 17 of the Act and referred  the  claim to him.  The  petitioner  disputed  the whole  claim and contended that the respondent NO. 2 had  no jurisdiction  to adjudicate upon the merits of the  disputed claim: Held,  that the authority specified under s. 17 of  the  Act had  no  jurisdiction  to determine the amount  due  as  the section merely provided for a procedure to recover an amount from the employer which had previously been determined by  a competent  authority  or  court.   If  the  legislature  had intended  that  the enquiry under s. 17 should  include  the examination  of  the  merits of the  claim  and  a  decision thereon,   it   would  have  made   appropriate   provisions conferring  upon  the  State  Government  or  the  specified authority  the relevant powers essential for the purpose  of effectively holding such an enquiry; but no such powers  had been conferred.

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JUDGMENT: ORIGINAL JURISDICTION: Petition No. 249 of 1956. Under  Article  32  of the Constitution  of  India  for  the enforcement of Fundamental Rights. R.   Ramamurthi   Aiyar  and  B.  K.  B.  Naidu,   for   the petitioners. Purshottam Tricumdas, P. Ramaswamy, Advocate, 2 Bombay High Court, with special permission and 1. N. Shroff, for the respondent No. 1. Y.   Kumar, for the interveners. C.   K. Daphtary, Solicitor-General of India and B. Sen, for the Attorney-General of India (To assist the Court). 1958.   March 19.  The following Judgment of the  Court  was delivered by GAJENDRAGADKAR  J.-This is an application under Art.  32  of the  Constitution.   The  petitioner is  a  private  limited company having its registered office at No. 201, Mount Road, Madras.  The company is the, proprietor of a daily newspaper called " The Hindu " which is published at Madras and has  a large circulation in India and abroad.  The shareholders  of the  company are all citizens of India.  The  first  respon- dent, Shri N. Salivateeswaran, is a journalist of Bombay and he  has  been  supplying  news  to  various  newspapers  and journals one of which was the Hindu.  The supply of news  by the  first  respondent to 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 1,  1956. The  petitioner  thereupon relieved him of  his  duties  and terminated  with effect from March 1, 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. 17  of  the Working    Journalists   (Conditions   of    Service)    and Miscellaneous  Provisions  Act,  1955  (Act  45  of   1955), hereinafter  referred  to  as the act.   On  receiving  this application the State of Bombay nominated Shri M. R.  Meher, 1.  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 3 respondent and, in case he was satisfied that any money  was due, to issue a certificate for that amount to the Collector of  Bombay  for further action as provided under s.  17.   A copy  of  the application was served on  the  petitioner  by order  of  the  second respondent;  and  a  covering  letter addressed  to  the petitioner called upon him  to  file  his written statement in reply to the first respondent’s claim. 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

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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 provides only for  a  mode  of  recovery of any money  due  to  a  working journalist.  It does not empower the State Government or the authority  specified  by the State Government to  act  as  a forum for adjudicating 4 upon  the merits of the disputed claim.  That being so,  the second  respondent  has  no jurisdiction to  deal  with  the merits   of  the  first  respondent’s  claim   against   the petitioner.  In  the alternative,  the  petitioner  contends that,if  s. 17 confers jurisdiction on the State  Government or  the  authority  specified by  the  State  Government  to adjudicate  upon  disputed  claims 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  direction  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 claimed  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 hip, employer under any of the  provisions of this act ? Section 17 provides: "  Where  any money is due to a newspaper employee  from  an employer under any of the provisions 5 of  this  Act, whether by way of compensation,  gratuity  or wages, the newspaper employee may, without prejudice to  any other  mode  of recovery, make an application to  the  State Government for the recovery of the money due to him, and  if

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the  State.   Government  or such  authority  as  the  State Government may specify in this behalf is satisfied that  any money  is  so due, it shall issue a  certificate  for  that’ 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  employer 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 words, if a  claim is  made  by the employee and denied by  the  employer,  the merits of the claim together with the other issues that  may arise  between the parties have to be considered under  this section.   On this argument s. 17 provides a  self-contained procedure for the enforcement of the claims covered by it. On  the other hand, the case for the petitioner is that  the section  provides for a procedure to recover the amount  due from an employer, not for the determination 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 court  of the amount due to the employee from his  employer. It  is only if and after the amount due to the employee  has been  duly determined that the stage is reached  to  recover that  amount  and it is at this stage that the  employee  is given  the  additional advantage provided by s.  17  without prejudice  to any other mode of recovery available  to  him. According  to  this  view,  the  State  Government  or   the authority  specified 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  the  claim  made  by  the employee.   When the section refers to the application  made by the employee 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 consistent 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 tribunal to  hold  a  formal enquiry.   It  is  true that s. 3, 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

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sub-s.  (2); but this provision 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 7 or  tribunals  under  the Industrial Disputes  Act.   It  is obvious  that  the  relevant  provisions of  s.  11  of  the Industrial Disputes Act, 1947, which confer the said  powers on  the conciliation officers, boards, courts and  tribunals cannot  be  made applicable to the State Government  or  the specified authority mentioned, under s. 17 merely by  virtue of s. 3(1) of the act. In this connection, it would be relevant to remember that s. 11  of the act expressly confers the material powers on  the Wage Board established tinder s. 8 of the Act.  Whatever may be the true nature or character of the Wage Board-whether it is  a legislative or an administrative body-the  legislature has taken the precaution to enact the enabling provisions of s.  11  in the matter of the said material  powers.   It  is wellknown  that,  whenever the legislature wants  to  confer upon any specified authority powers of a civil court in  the matter  of holding enquiries, specific provision is made  in that  behalf.  if  the legislature  had  intended  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  State  Government  or   the specified  authority the relevant powers essential  for  the purpose  of effectively holding such an enquiry.   The  fact that the legislature has enacted s. 11 in regard to the Wage Board but has not made any corresponding provision in regard to the State Government or the specified authority under  s. 17  lends strong corroboration to the view that the  enquiry contemplated by s. 17 is a summary enquiry of a very limited nature and its scope is confined to the investigation of the narrow point as to 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 specified 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 specified authority the necessary powers in that behalf.  In this connection, it would be relevant to  Point out that  in many cases some complicated questions of fact may arise when working  journalists  make claims for  wages  against  their employers.   It  is  not unlikely that  the  status  of  the working  journalist, the nature of the office he  holds  and the  class to which he belongs may themselves be matters  of dispute  between  the  parties  and  the  decision  of  such disputed questions of fact may need thorough examination and a  formal enquiry.  If that be so it is not 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-s. (1) of the Industrial  Disputes (Appellate Tribunal) Act, 1950, which has now been repealed.

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Under this section, any money due from an employer under any award or decision of an industrial tribunal may be recovered as  arrears  of land revenue or as a public  demand  by  the appropriate  Government on an application made to it by  the person  entitled to the money under that award or  decision. It  is  clear that the proceedings under s. 20,  sub-s.  (1) could commence only if and after the workman had obtained an award  or decision in his favour.  We are inclined to  think that the position under s. 17 is substantially similar. In this connection we may also refer to the provisions of s. 33C of the Industrial Disputes Act (14 of 1947). sub-s.  (1) of  s. 33C has been added by Act 36 of 1956 and is  modelled on the provisions of s. 17 of the present Act.  Section 33C, sub-s.  (2),  however,  is more relevant  for  our  purpose. Under  s. 33C, sub-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 benefit may be computed may, subject to any rules made under this  act,  be  determined by such Labour Court  as  may  be specified in this behalf by the appropriate Government,  and the amount so determined should be recovered as provided for in 9 sub-s.  (1).  Then follows sub-s. (3) which provides for  an enquiry  by the Labour Court into the question of  computing the  money  value of the benefit in  question.   The  Labour Court  is  empowered  under this sub-section  to  appoint  a commissioner who shall, after taking such evidence as may be necessary,  submit  a report to the Labour  Court,  and  the Labour  Court shall determine the amount  after  considering the  report of the commissioner and other  circumstances  of the case.. These provisions indicate that, where an employee makes  a  claim for some money by virtue of the  benefit  to which  he  is  entitled,  an  enquiry  into  the  claim   is contemplated  by the Labour Court, and it is only after  the Labour  Court  has  decided the  matter  that  the  decision becomes enforceable under s. 33C(1) by a summary procedure. It  is  true that, in the present case,  the  Government  of Bombay  has specified the authorities under the  Payment  of Wages  Act  and  the Industrial Disputes  Act  as  specified authorities  under  s.  17  to  deal  with  applications  of newspaper  employees whose wages are less than Rs.  200  per month or more respectively; but there can be no doubt  that, when   the   second   respondent   entertained   the   first respondent’s  application,  he was acting as  the  specified authority under s. 17 and not as an industrial 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 section.  The  powers  of the  authority  specified under s. 17 must be found  in  the provisions  of the act itself and -they cannot  be  inferred from   the  accidental  circumstance  that   the   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 which may arise between  the working journalists and their employers were intended to  be dealt  with  in  a summary and an  informal  manner  without conferring adequate powers on the 2 10 specified  authority in that behalf.  The second  respondent himself  was impressed by this argument but he was  inclined to hold that the necessary power could be assumed by him  by

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implication because he thought that, in the absence of  such implied  power,  his jurisdiction under s. 17 could  not  be effectively exercised.  In our opinion, this approach really begs  the question.  If the legislature did not  confer  ad. equate 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  quasi- judicial  character.   We  must accordingly  hold  that  the second respondent had no jurisdiction to entertain the first respondent’s application at this stage. It appears from the order made by 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 direct the first respondent  to  establish his claim in  the  ordinary  civil court.  He, however, thought that he need not exercise  that power in the present case.  We are satisfied that the second respondent  was 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  the  ordinary  civil court.   Such  an order would clearly have amounted  to  the second respondent’s failure to exercise jurisdiction  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 been referred to the ordinary civil court. This, however, is now a matter of purely academic interest. The  question which still remains to be considered is:  What would be the proper order to make on the present petition in view of our conclusion that the 11 second respondent had no jurisdiction to entertain the first respondent’s application.  The present petition purports  to invoke  our jurisdiction under Art. 32 of  the  Constitution and  it was a valid and competent petition in so far  as  it challenged  the  vires of s. 17 itself; but, once s.  17  is held  to  be  valid  and in order,  the  competence  of  the petition  under  Art.  32  is  naturally  open  to   serious jeopardy.   No question about the fundamental rights of  the petitioner  is involved and his grievance against the  order passed  by the second respondent cannot be ventilated  by  a petition under Art. 32.  This position is fairly conceded by the learned counsel for the petitioner.  He, however, argued that,  if we construe s. 17 in his favour and hold that  the second respondent had no jurisdiction to entertain the first respondent’s  application, his purpose would be  effectively served  even though technically his petition may  ultimately be  dismissed on the ground that it is not  competent  under Art.  32  of  the Constitution.  In our  opinion,  there  is considerable force in this contention.  We would accordingly hold  that  the  second respondent has  no  jurisdiction  to entertain the first respondent’s application; but, since the petition  itself  is not competent under Art. 32,  we  would direct that the petition fails on this technical ground  and must be dismissed.  There would be no order as to costs. Petition dismissed. 12