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1961 DIGILAW 204 (KER)

West Coast Motors v. District Magistrate, Ernakulam

1961-07-12

MOHAMMED AHMED ANSARI, T.C.RAGHAVAN

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Judgment :- 1. The writ petition is by the West Coast Motors, Mattancherry, a company engaged in motor transport industry, under Art.226 and 227 of the Constitution seeking to quash, by a writ of certiorari or other appropriate writ, the order, dated 2nd December 1958 of the District Magistrate, Ernakulam acting as the authority under the Minimum Wages Act, Central Act XI of 1948. The 1st respondent is the District Magistrate and the 2nd respondent is the Genera] Secretary of the Cochin Motor Transport Labour Congress, Edacochi. The 2nd respondent, on behalf of fourteen employees in the petitioner-company, filed an application under S.20 (2) of the Minimum Wages Act on 13th March 1956 before the 1st respondent claiming payment of overtime wages. The amount claimed in the petition was Rs. 4,548 on the basis that the workers concerned had worked for 720 hours overtime during the six months preceding the date of application. The petitioner filed a written statement, dated 28th April, 1956, in which, among other things, an objection was raised that the claim petition did not disclose the details of individual claims. In answer to this objection the 2nd respondent filed a clarifying statement on 26th September 1956, wherein the amount of Rs. 4,548 and 720 hours of overtime were re-affirmed. Thereafter, evidence was recorded in the case and on 10th October 1957 the 2nd respondent filed a petition with a prayer to direct the petitioner to produce certain records like the register of wages, the register showing overtime payments and wage slips. The petitioner took time for the production of the aforesaid records and finally on 29th October, 1957 stated that the petitioner-company was not in possession of the records concerned. Thereafter, the examination of witnesses continued and on 21st May 1958 the 1st respondent directed the petitioner-company to file a statement regarding the exact hours during which the employees worked with other necessary details. On 3rd July 1958 the petitioner filed such a statement. Thereafter, on 17th September 1958, the 2nd respondent filed the petition for amending the original claim petition, which was opposed by the petitioner-company. Ultimately the 1st respondent by his order, dated 2nd December 1958, allowed the amendment, whereby the figures regarding the relief claimed and the hours of overtime were allowed to be amended from Rs. 4,548 to Rs. 20,372-8-0 and from 720 hours to 1,080 hours respectively. Ultimately the 1st respondent by his order, dated 2nd December 1958, allowed the amendment, whereby the figures regarding the relief claimed and the hours of overtime were allowed to be amended from Rs. 4,548 to Rs. 20,372-8-0 and from 720 hours to 1,080 hours respectively. The writ petition seek to vacate this order of amendment and the case comes before us as it has been referred to a Division Bench by a learned judge of this Court. 2. We would at the outset dispose of a minor contention raised by the learned advocate of the 2nd respondent. It has been urged by him that the Authority constituted under the Minimum Wages Act is a court and therefore, a writ under Art.226 of the Constitution is incompetent. But it may be noted that the writ petition has been filed under Art.226 and 227 of the Constitution and it cannot be seriously disputed that this court has jurisdiction under Art.227 to interfere with the orders of inferior courts in appropriate cases. Therefore, this contention has no force. 3. Coming to the more important question regarding the merits of the application for amendment, the petitioner's learned advocate contends that the order of the 1st respondent is arbitrary, illegal and erroneous on the face of the record and therefore, liable to be quashed. The first proviso to S.20(2) of the Minimum Wages Act lays down that every application under the said sub-section shall be presented within six months from the date on which the minimum wages or other amount became payable. The second proviso enacts that any application may be admitted after the said period of six months, when applicant satisfies the Authority that he had sufficient cause for not making the application within such period. Power or jurisdiction appears to have been exercised by the 1st respondent under the latter proviso, and we think rightly, to grant the amendment. Therefore, the objection of the learned advocate of the petitioner that the Authority has no power or jurisdiction under the Act to grant the amendment has to be repelled. But that power is to be exercised only when the applicant satisfies the Authority that the applicant had sufficient cause for not making the application within the prescribed period of six months. But that power is to be exercised only when the applicant satisfies the Authority that the applicant had sufficient cause for not making the application within the prescribed period of six months. The question therefore, for decision in this writ petition is whether the 2nd respondent so satisfied the Authority and if not, whether the error committed by the 1st respondent is an error apparent on the face of the record to call for interference by this Court under Art.226 and 227 of the Constitution. In this connection, it may be relevant to refer to the material portion of the impugned order and we would therefore extract hereinafter Para.5 of the order: "Coming to the question of belatedness and prejudice, it is true that in the main petition the petitioner unequivocally stated that the hours of over-work were 720 and that the value of the relief is only Rs. 4,548 wherein (sic) the objection filed by the respondent clarification of these figures were called for, the applicant on 26th September 1956 filed a detailed statement sticking again to the above figures. On 10th October 1957 the petitioner put in a petition to call upon the respondent to produce (1) Register of wages (2) Register showing overtime payment and (3) Wage slips for the relevant period so as to enable him to give details of the claim. These registers the respondent is statutorily bound to maintain and their non-maintenance is made penal. The respondent states only on 29th October 1957 that these records are not maintained by him. The non-maintenance and non-production of these records have put the workers to a very great disadvantage. In their absence the exact hours of over-work can be arrived at by the workers only with difficulty. The fact that in the beginning they stated the quantum of over-work hours and their claim unequivocally will not disentitle them to amend the same on a subsequent occasion especially when the right for such amendment was expressly reserved in the main petition. Of course there is some delay in filing the petition. But in the circumstances of this case such delay has so be condoned. Of course there is some delay in filing the petition. But in the circumstances of this case such delay has so be condoned. No prejudice will be caused to the respondent by the amendment." The concluding portion of the aforesaid order, wherein reference is made to the express reservation of the right of amendment in the main petition, leads us to the consideration of the effect of a clause in the form of application prescribed by R.31 framed under the Act. The said clause in Form VII reads: "The applicant begs leave to amend or add to or make alterations in the application if and when necessary." This provision, which appears in the form prescribed by a rule framed under the Act, cannot take away or nullify the effect of the second proviso to S.20 (2) of the Act itself, under which the 2nd respondent had to satisfy the 1st respondent that the former had sufficient cause for not making the application within the prescribed period of six months before the latter could grant the prayer for amendment. 4. We would now consider whether there are sufficient grounds for this Court to interfere in the present case under Art.226 and 227 of the Constitution. In that context we would also consider as to when a writ of certiorari can be issued to set right an order of an inferior court or tribunal and as to what is an error apparent on the face of the record. In R. v. Agricultural Land Tribunal for the South Eastern Area, Ex¬parte Bracey 1960 (2) A.E.R. (Q.B.D.) 518, Lord Parker, C.J., observes: "As has been said many times, certiorari is a special remedy. It goes when there has been a want of jurisdiction, and in that expression, 'want of jurisdiction', matters akin thereto are covered, such as a decision obtained by fraud or bias on the part of members of the tribunal or, indeed, a case where there has been a breach of some principle of natural justice, like receiving evidence from one party in the absence of the other. The other main ground on which certiorari may be moved is that, when there is a speaking order, as there is here, there is an error of law on the face of the record. The other main ground on which certiorari may be moved is that, when there is a speaking order, as there is here, there is an error of law on the face of the record. There is, however, this vital distinction between the two main grounds, that where it is said the tribunal have gone wrong in law while acting within their jurisdiction, this court can only interfere if they can see that error on the face of the record, whereas if certiorari is moved for want of jurisdiction the court is entitled to look at affidavit evidence to see whether or not there was jurisdiction." In Halsbury's Laws of England, 3rd Edition, Volume 11, page 61, Para.118 enunciates: "Where upon the face of the proceedings themselves it appears that the determination of the inferior tribunal is wrong in law, certiorari to quash will be granted. The tribunal is not (unless so required by statute) obliged to set out in its adjudication the reasons which led it to its decision, but if it does state them the superior court will consider the question whether they are right in law, and if they are wrong in law, will quash the decision ... Merely formal or accidental errors on the face of the proceedings do not now afford ground for certiorari." We would also with advantage, refer to a recent decision of the Supreme Court in Shri Ambica Mills, Co., Ltd. v. Shri S. B. Bhatt AIR. 1961 SC. 970. Gajendragadkar, J., delivering the judgment of the Court, observes at page 973: "It is now well-settled that the said writ (certiorari) can be issued not only in cases of illegal exercise of jurisdiction but also to correct errors of law apparent on the face of the record." And the learned judge cited in support of this the following observation of Denning, L.J., in Rex v. Northumberland Compensation Appeal Tribunal 1952 (1) K.B. 338: "The writ has been supposed to be confined to the correction of excess of jurisdiction, and not to extend to the correction of errors of law; and several judges have said as much. But the Lord Chief justice has, in the present case, restored certiorari to its rightful position and shown that it can be used to correct errors of law which appear on the face of the record even though they do not go to jurisdiction." Gajendragadkar, J., thereafter, continues: "There is no doubt that it is only errors of law which are apparent on the face of the record that can be corrected, and errors of fact, though they may be apparent on the face of the record, cannot be corrected... Difficulty however, arises when it is attempted to lay down tests for determining when an error of law can be said to be an error apparent on the face of the record. Sometimes it is said that it is only errors which are self-evident, that is to say, which are evident without any elaborate examination of the merits that can be corrected and not those which can be discovered only after an elaborate argument. In a sense it would be correct to say that an error of law which can be corrected by a writ of certiorari must be self-evident; that is what is meant by saying it is an error apparent on the face of the record, and from that point of view, the test that the error should be self-evident and should not need an elaborate examination of the record may be satisfactory as a working test in a large majority of cases...." 5. The effect of the foregoing citations may be thus summed up: Certiorari can be issued not only in cases of want of jurisdiction or illegal exercise of jurisdiction but also to correct errors of law apparent on the face of the record. The expression "want of jurisdiction" includes questions of fraud, bias of the members of the tribunal, breach of any principle of natural justice and matters akin thereto. Errors of fact, though apparent on the face of the record, cannot be corrected. The expression "want of jurisdiction" includes questions of fraud, bias of the members of the tribunal, breach of any principle of natural justice and matters akin thereto. Errors of fact, though apparent on the face of the record, cannot be corrected. The vital distinction between the two main grounds, namely, want of jurisdiction & error of law apparent on the face of the record, is that where it is said that the tribunal or inferior court has gone wrong in law while acting within its jurisdiction, the jurisdiction of this Court is only to interfere if it is seen that the error is apparent on the face of the record, that is, the error is self-evident and it does not require any elaborate examination of the record to discover the error, whereas if certiorari is moved for, for want of jurisdiction this Court is entitled to look at affidavit evidence to see whether or not there was jurisdiction. When there is a speaking order by the tribunal or the inferior court and reasons which led to its decision are given, this Court will consider the question whether the reasons given are right in law, and if they are wrong in law, will quash the decision. 6. Applying the aforesaid principles to the impugned order, we are satisfied that there are errors of law apparent on the face of the record. Though the 1st respondent acted within his jurisdiction in allowing the amendment, he had to be satisfied regarding the sufficiency of the cause for the 2nd respondent not making the application within the time allowed by the law. In the case before us the original application was filed as early as 15th March 1956 and the application for amendment was filed only on 17th September 1958, that is, about 21/2 years after the filing of the original claim petition. The reasons given by the 1st respondent in paragraphs of his order do not disclose any sufficient cause for the 2nd respondent not making the application within time and therefore those reasons are wrong in law. Hence, this Court can interfere and quash the order. We, therefore, allow the writ petition and quash the order of the 1st respondent dated 2nd December 1958, allowing the amendment. The 2nd respondent will pay the costs of the petitioner with advocate's fee of Rs. 100. 7. Hence, this Court can interfere and quash the order. We, therefore, allow the writ petition and quash the order of the 1st respondent dated 2nd December 1958, allowing the amendment. The 2nd respondent will pay the costs of the petitioner with advocate's fee of Rs. 100. 7. We would make it clear that if the 2nd respondent is entitled to any relief on the basis of any admission made by the petitioner, which is on record, that will not be affected by this order.