M/S. Kasturi And Sons (Private) Ltd vs Shri N. Salivateeswaran And Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Petition No. 249 of 1956

Decision Date: 19 March 1958

Coram: P.B. Gajendragadkar, Natwarlal H. Bhagwati, Bhuvneshwar P. Sinha, Syed Jaffer Imam, J.L. Kapur

In the matter titled M/S. Kasturi And Sons (Private) Ltd. versus Shri N. Salivateeswaran and Another, the Supreme Court of India delivered its judgment on the nineteenth day of March, 1958. The opinion was authored by Justice P.B. Gajendragadkar, who was joined by a bench comprising Justice Natwarlal H. Bhagwati, Justice Bhuvneshwar P. Sinha, Justice Syed Jaffer Imam, and Justice J.L. Kapur. The petitioner in the case was the corporate entity M/S. Kasturi And Sons (Private) Ltd., while the respondents were identified as Shri N. Salivateeswaran and an additional respondent. The report of the decision appears in the 1958 volume of the All India Reporter at page 507 and is also cited as the first reported case of the 1959 Supreme Court Reports. The dispute concerned the provisions of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955, specifically section seventeen of that statute, which deals with a claim by a working journalist against an employer for the recovery of dues and the reference by a State Government to a designated authority for the determination of the amount claimed.

The facts, as summarized in the headnote, indicate that the first respondent, a journalist, had been supplying news material to the newspaper published by the petitioner in return for a fixed monthly honorarium. Contrary to the petitioner’s instructions, the journalist departed from India, prompting the petitioner to terminate the arrangement. Upon his return to the country, the journalist sought a reconsideration of the termination, but the petitioner refused to revisit its decision. Consequently, the journalist filed an application with the State Government under section seventeen of the Working Journalists Act, asserting a substantial sum of money from the petitioner. The State Government, exercising its statutory power, appointed the second respondent as the authority designated under the same section and referred the claim to that authority. The petitioner contested the entire claim and argued that the second respondent lacked jurisdiction to adjudicate the merits of the disputed claim. The Court held that the authority named in section seventeen did not possess the power to determine the amount due, because the provision merely prescribed a procedural mechanism for recovering an amount that had already been settled by a competent authority or a court. The Court further observed that, had the legislature intended the inquiry under section seventeen to include a substantive examination of the claim and a decision on its merits, it would have expressly conferred upon the State Government or the appointed authority the necessary powers, which it had not done.

The origin of the proceedings lay in petition number 249 of 1956, which was filed under Article 32 of the Constitution of India for the enforcement of fundamental rights. Counsel appearing for the petitioner comprised Messrs. R. Ramamurthi Aiyar and B.K.B. Naidu. The petitioner was also assisted by Advocate Purshottam Tricumdas and P. Ramaswamy, who had obtained special permission to practice before the Supreme Court, along with Advocate N. Shroff who represented the first respondent. Advocate Y. Kumar appeared on behalf of the interveners. The Attorney-General of India, represented by C.K. Daphtary, the Solicitor-General, B. Sen, and other counsel were present to assist the Court. The judgment, delivered on March nineteenth, 1958, began with the observation that the case constituted an application under Article 32 and that the petitioner was a private limited company whose registered office was located at number 201, Mount Road, Madras.

The petitioner is a private limited company that owns and publishes the daily newspaper “The Hindu” in Madras, a paper that enjoys a large circulation both within India and abroad. All of the company’s shareholders are Indian citizens. The first respondent, Shri N. Salivateeswaran, is a journalist based in Bombay who had been furnishing news items to a number of newspapers and journals, including The Hindu, under a written agreement that provided him a fixed monthly honorarium for his services.

Against the advice and instructions of the petitioner, the first respondent departed India for Zurich on 1 May 1956. In view of his departure, the petitioner relieved him of his duties and terminated, with effect from 1 March 1956, the arrangement under which he supplied news to the newspaper. The first respondent returned to India in July 1956 and asked the petitioner to reconsider its decision; the petitioner, however, held that no sufficient ground for reconsideration existed and refused the request.

Consequently, the first respondent filed an application before the Labour Minister of the State of Bombay invoking section 17 of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955 (the Act). Upon receipt of this application, the State of Bombay appointed Shri M. R. Meher, a retired C.S. officer, as the authority prescribed by section 17 to conduct an enquiry into the first respondent’s claim. The authority was instructed to examine the claim and, if satisfied that any money was due, to issue a certificate specifying the amount to the Collector of Bombay for further action as contemplated by section 17.

A copy of the first respondent’s application was served on the petitioner by order of the second respondent, together with a covering letter that called upon the petitioner to file a written statement in response to the claim. The first respondent’s application sought a sum of Rs 1,57,172-8-0 from the petitioner. In its written statement, filed on 18 October 1956, the petitioner denied the entire claim, contested every material allegation advanced in support of the claim, and asserted that the second respondent lacked jurisdiction to consider matters arising from the first respondent’s application.

Alternatively, the petitioner argued that, even assuming jurisdiction existed, the second respondent possessed a discretionary power to decline consideration of the claim and instead refer the dispute to the ordinary civil courts. Accordingly, the petitioner urged the second respondent to exercise that discretion and direct the first respondent to pursue his claim in the appropriate civil court.

The second respondent treated the question of jurisdiction as a preliminary issue. He held hearings on that preliminary question involving both parties before proceeding further.

The order dated 12 November 1956 recorded that the second respondent had concluded it possessed jurisdiction to deal with the matter and that it was unnecessary to direct the first respondent to establish his claim in an ordinary civil court; consequently the case was adjourned to 1 December 1956 for hearing on the merits. This order is the subject of the petitioner’s challenge filed before this Court under Article 32 of the Constitution. The petitioner contends that section 17 of the Act merely provides a method for recovering any money due to a working journalist and does not empower the State Government or any authority designated by the State Government to act as a forum for adjudicating the merits of a disputed claim. Accordingly, the petitioner argues, the second respondent lacks jurisdiction to consider the merits of the first respondent’s claim against the petitioner. In the alternative, the petitioner submits that if section 17 does confer such jurisdiction on the State Government or its designated authority, then the provision is ultra vires and void. On these alternative submissions, the petitioner seeks two distinct reliefs. The first relief prayed for is a writ in the nature of a prohibition, or any other suitable writ or direction, restraining the second respondent from exercising any powers under section 17 of the Act, from proceeding with the enquiry into the application filed by the first respondent and forwarded by the State Government, and from issuing a certificate. The second relief requested is an order directing that section 17 of the Act be declared ultra vires and void on the grounds set out in the petition. The petitioner submits that it is necessary and convenient to first construe section 17 of the Act to determine its true scope and effect. The larger question concerning the validity of the Act and of the decision of the Wage Board established by the Central Government under section 8 of the Act has already been considered by this Court in several petitions filed by various employers. In those proceedings the Court held, with the exception of section 5(1)(a)(iii) relating to gratuity payable to employees who voluntarily resign, that the remainder of the Act is valid. Hence, the question regarding the vires of section 17 need not be re-examined in the present petition. The remaining issue for consideration is whether section 17 constitutes the State Government or its specified authority as a forum for adjudicating the merits of a claim made by a newspaper employee against his employer under any provision of the Act. Section 17 provides: “Where any money is due to a newspaper employee from an employer under”.

In this case, the Court examined the language of section 17 of the Act, which reads: “Where any money is due to a newspaper employee from an employer under any of the provisions 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 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.” The Court observed that the employee’s claim which may be investigated under section 17 must relate exclusively to compensation under section 4, gratuity under section 5, or a wages claim arising from a Wage Board decision. Any other type of claim would lie outside the scope of section 17. The marginal note to the section was noted, indicating that the provision deals with the recovery of money due from an employer. The employee argued that the recovery process began with filing an application that set out the claim and ended with the actual collection of the amount found due, thereby requiring the merits of the dispute to be decided as part of the same procedure. According to that construction, the dispute between employee and employer, including any issues concerning the amount claimed, would be determined from the outset through the issuance of the certificate, making section 17 a self-contained mechanism for enforcement of the covered claims. Conversely, the petitioner contended that the provision merely prescribed a procedure for recovering an amount that had already been determined by a competent authority or a court, and that the prerequisite for invoking section 17 was a prior determination of the amount due. Under this view, the State Government or the authority it designates would conduct only a summary enquiry limited to the question of whether any amount remained unpaid when the employee applied, or whether a part of the amount had already been paid, without examining the merits of the claim itself. The Court noted that this narrower interpretation confined the enquiry to a limited point—whether the amount was still due—rather than a full adjudication of the claim.

The Court observed that the question to be addressed under section 17 was limited to determining how much of the amount awarded to the employee remained unpaid. It emphasized that the enquiry contemplated by section 17 was only of this narrow type. The Court explained that the scope of the enquiry authorized by the provision did not extend to examining or deciding the merits of the employee’s claim. When the provision spoke of an application by the employee for recovery of money due, the Court interpreted this as referring to the execution stage that followed the issuance of a decree, award, or order by a competent court or authority. The Court found the construction proposed by the petitioner to be more reasonable and more in keeping with the overall scheme of the Act, and therefore accepted it.

The judgment noted that the State Government or the specific authority mentioned in section 17 had not been endowed with the ordinary powers of a court or tribunal to conduct a formal enquiry. While section 3(1) of the Act extended the application of the Industrial Disputes Act, 1947 to working journalists, the Court clarified that this extension merely classified such journalists as “workmen” within the meaning of the principal Act and did not confer on the State Government or the authority any powers to compel witness attendance, administer oaths, issue commissions, or pass orders for discovery and inspection as courts and tribunals could under the Industrial Disputes Act. The Court further observed that the powers granted by section 11 of the Industrial Disputes Act to conciliation officers, boards, courts and tribunals could not automatically apply to the State Government or the authority under section 17 simply because of section 3(1). It reminded that section 11 expressly vested material powers in the Wage Board created under section 8 of the Act, and the legislature had deliberately included enabling provisions for those powers. The Court stressed the general principle that whenever the legislature intends to give a specified authority civil-court-like powers for holding enquiries, it does so by explicit provision. Consequently, if the legislature had wished the enquiry under section 17 to include a full examination of the employee’s claim and a decision on its merits, it would have expressly conferred the necessary powers on the State Government or the authority. The absence of such provision supported the view that the enquiry contemplated by section 17 was intended to be a summary, limited investigation confined to the amount still payable under the operative decree or award.

In this case the Court observed that the legislature had expressly enacted section 11 with respect to the Wage Board, yet it had made no parallel provision for the State Government or for the authority named in section 17. This omission, the Court held, provides strong support for the view that the enquiry contemplated by section 17 is meant to be a summary enquiry of a very limited nature. The Court explained that the scope of such an enquiry is confined to investigating the narrow question of the exact amount that is actually due to be paid to the employee under a decree, award, or any other valid order that the employee has obtained after establishing his claim. The Court expressed reluctance to accept the proposition that the legislature intended the specified authority or the State Government to conduct a larger enquiry into the merits of the employee’s claim without first conferring on them the necessary powers to do so. The Court further pointed out that, in many cases, complicated questions of fact may arise when working journalists claim wages against their employers. It is not unlikely that the status of a 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 that resolution of such disputed factual questions would require a thorough examination and a formal enquiry. Accordingly, the Court found it improbable that the legislature could have intended such complex factual issues to be dealt with within the summary enquiry indicated by section 17.

The Court noted that section 17 appears to correspond in substance to the provisions of section 20, sub-section (1) of the Industrial Disputes (Appellate Tribunal) Act, 1950, a provision that has now been repealed. Under that former provision, any money due from an employer under any award or decision of an industrial tribunal could be recovered as arrears of land revenue or as a public demand by the appropriate Government, upon an application made by the person entitled to the money under that award or decision. The Court stressed that proceedings under section 20, sub-section (1) could commence only after the workman had obtained an award or decision in his favour. On this basis, the Court was inclined to think that the position created by section 17 is substantially similar to the earlier scheme. The Court also referred to section 33C of the Industrial Disputes Act, 1947. Sub-section (1) of section 33C, added by Act 36 of 1956, is modelled on the provisions of section 17 of the present Act. However, the Court found subsection (2) of section 33C more relevant to the present discussion. Under subsection (2), where a workman is entitled to receive from his employer any benefit that can be computed in monetary terms, the amount of such benefit may, subject to any rules made under the Act, be determined by the Labour Court that may be specified by the appropriate Government, and the amount so determined is to be recovered as provided for in subsection (1).

In the statute, the appropriate Government may designate a person to act in the specified role, and the amount determined by that person must be recovered in accordance with sub-section (1). Sub-section (3) then provides that the Labour Court shall conduct an enquiry to determine the monetary value of the benefit claimed. Under this sub-section the Labour Court has authority to appoint a commissioner. The commissioner is required to take any evidence that may be necessary and to submit a report to the Labour Court. After considering the commissioner’s report and any other relevant circumstances, the Labour Court shall fix the amount payable. These provisions therefore show that when an employee asserts a claim for money based on a benefit to which he is entitled, the Labour Court is expected to investigate the claim, and only after the Labour Court reaches a decision does the award become enforceable under section 33C(1) through a summary procedure.

In the present matter, the Government of Bombay has named the authorities under the Payment of Wages Act and the Industrial Disputes Act as the specified authorities under section 17 for handling applications filed by newspaper employees whose wages are respectively less than Rs 200 per month or more than Rs 200 per month. Nevertheless, when the second respondent considered the first respondent’s application, he was acting in the capacity of the authority designated by section 17 and not as an industrial tribunal. It is evident that section 17 permits the State Government to designate any person it considers suitable to conduct an enquiry under that section. The powers conferred on the authority designated under section 17 must be derived solely from the provisions of the Act itself; they cannot be inferred merely because the designated authority also happens to be a member of an industrial tribunal. Since the Act contains no provision granting the designated authority the specific and adequate powers required to hold a formal enquiry, it is hard to accept the view that disputes between working journalists and their employers were meant to be resolved through a summary and informal process without conferring sufficient powers on the designated authority.

The second respondent was persuaded by this line of argument, yet he inclined to hold that the necessary powers could be impliedly assumed, reasoning that without such implication his jurisdiction under section 17 could not be effectively exercised. In the Court’s view, this reasoning is circular. If the legislature did not bestow appropriate powers on the authority designated under section 17, a more reasonable inference is that the scope of powers granted by that section is deliberately narrow, and the legislature intended that for such a limited enquiry it was unnecessary to provide the extensive powers normally associated with formal and complex enquiries.

The Court determined that the second respondent lacked the authority to consider the first respondent’s application at the stage in question. The order issued by the second respondent indicated that he believed he possessed jurisdiction over the application, yet he also considered that he could decline to exercise that jurisdiction and instead direct the first respondent to bring his claim before an ordinary civil court. In the particular case, the second respondent decided that he would not invoke that power. The Court concluded that both of those conclusions were erroneous. Assuming that the second respondent did have jurisdiction under section 17, the Court found it difficult to understand how, without any statutory provision granting such a power, he could order the first respondent to pursue his claim in a regular civil proceeding. Such an instruction would amount to a failure on the part of the second respondent to exercise the jurisdiction that had been vested in him. Moreover, even if section 17 were interpreted as providing the second respondent with discretionary authority, the merits of the present dispute clearly indicated that the matter should have been referred to the ordinary civil court. That line of analysis, however, became purely theoretical after the Court’s finding that the second respondent possessed no jurisdiction to entertain the application. Consequently, the Court turned to consider the appropriate relief with respect to the present petition, given this conclusion on jurisdiction.

The petition was filed under Article 32 of the Constitution, challenging the validity of section 17. While the petition was initially valid and competent insofar as it questioned the constitutional force of section 17, the Court held that if section 17 were affirmed as valid, the petition’s competence under Article 32 would be seriously jeopardised. No fundamental-rights issue was raised, and the petitioner’s grievance concerning the order of the second respondent could not be addressed through an Article 32 petition. The petitioner’s counsel accepted this position but argued that, even if section 17 were interpreted in the petitioner’s favour and the second respondent’s lack of jurisdiction were confirmed, the petitioner’s objective would be achieved, although the petition might ultimately be dismissed for lacking competence under Article 32. The Court found merit in that argument. Accordingly, the Court affirmed that the second respondent had no jurisdiction to entertain the first respondent’s application, but, because the petition itself was not competent under Article 32, the petition must fail on that technical ground and be dismissed. No costs were awarded, and the petition was dismissed.