Judgment

B. K. MUKHERJEA, J. - This appeal is directed against a judgment of a Division Bench of the Madras High Court dated 1st April, 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 sub-section 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."

3. 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 privilages 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."

4. 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 therein 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."

5. 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 November 10, 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 26th November, 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 29th January 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:

" Issue No. 5. Whether there has been an increase in working hours from 6 to 61/2 on week days from 12th October 1948 and the increase is permissible?

Issue No. 6 . Whether overtime wages at twice the ordinary rates should not be paid for work done b