Appeal 
No75 of 1956
Appeal by special leave from judgment and order dated March 17 1955 of the Small Causes Court Bombay in Appeal No 1 of 1955
MC Setalvad Attorney General for India section N Andley J B Dadachanji and Rameshwar Nath for the appellant
K B Choudhuri for the respondents
702 1960
January 12
The Judgment of the Court was delivered by GAJENDRAGADKAR J
When does an employer get a right to prefer an appeal against a direction made under sub section
3 of section 15 of the 4 of 1936 hereinafter called the Act That is the short question which arises for our decision in the present group of four appeals
The decision of this question depends on the construction of section 17 1a of the Act
In dealing with the question thus posed by the present group of appeals we will refer to the facts in Civil Appeal No 75 of 1956 and our decision in it would govern the three remaining appeals
Civil Appeal No75 of 1956 which has been brought to this Court by special leave arises from a dispute between the General Manager of the Times of India Press
 Bombay owned by Benett Coleman  Co Ltd hereinafter called the appellant and some of the employees in his service hereinafter called the respondents
In November 1953 1066 applications were made by the Vice President of the Times of India Indian Employees Union on behalf of some of the respondents before Mr C P Fernandes the authority appointed under the Act in which a claim was made for arrears of increments alleged to have been withheld by the appellant from July 1 1951 to September 30 1953 as also for increased dearness allowance from January 1 1953 to August 31 1953
The authority dealt with the whole group of the said applications as a single application under section 163 of the Act and held that the claim made by the respondents for increased dearness allowance was not justified
In regard to the claim of arrears of increments alleged to have been withheld the authority rejected the claim made by 761 employees and allowed the same in respect of 305 employees
In the result the order passed by the authority on 31 12 1954 directed the appellant to deposit Rs 22698 for payment to the said 305 employees
The direction thus issued by the authority gave rise to two appeals before the Small Causes Court at Bombay which is the appellate authority appointed 703 under the Act
Appeal No 11 of 1955 was filed by the appellant while Appeal No 187 of 1954 was filed by the respondents
Meanwhile the question about the extent of the right conferred on the employer to prefer an appeal by section 171a of the Act had been considered by the Bombay High Court in Laxman Pandu  Ors
vs Chief Mechanical Engineer Western Railway BB  CI Railway Lower Parel Bombay 1 and it had been held that under the said section the employer gets a right of appeal only if the order of the authority under the Act awards payment of an amount of Rs 300 or more in respect of a single individual worker the right does not exist if the order awards a sum exceeding Rs 300 collectively to an unpaid group of workers every one of whom gets an amount under Rs 300
Following this decision the appellate authority held that the appeal preferred by the appellant was incompetent and so dismissed it
The appellant then applied for and obtained special leave from this Court to prefer an appeal against the said appellate decision and so the main point raised by the appeal is about the construction of section 171a of the Act
The Act has been passed in 1936 with a view to regulate the payment of wages to certain classes of persons employed in industry
Section 151 of the Act authorises the State Government by notification in the official Gazette to appoint any Commissioner for Workmen s Compensation or other officer with experience as a Judge of a Civil Court or as a stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of deductions from the wages or delay in payment of wages of persons employed or paid in that area
Section 7 has provided for deductions which may be made from wages
Any deductions made not in accordance with the said section and contrary to the provisions of the Act as well as wages the payment of which has been delayed can be brought before the authority under sub s 2 of section 15
Sub section 3 of section 15 empowers the authority to deal with the applications made under sub section
2 and to direct a refund to 1  704 the employed person of the amount deducted or the payment of delayed wages together with the payment of such compensation as the authority may think fit not exceeding ten times the amount deducted in the former case and not exceeding Rs 10 in the latter
Sub section 4 provides that in cases where the authority is satisfied that the application made by the employee was either malicious or vexatious it may direct that a penalty not exceeding Rs 50 be paid to the employer or other persons responsible for the payment of wages by the applicant
It would thus be seen that section 15 provides for the making of applications by the employees and for their decision in accordance with the provisions of the Act
It is necessary to refer to section 16 as well before dealing with the question of the construction of section 171a
Section 16 provides for the making of a single application in respect of claims from unpaid group
Section 161 provides that employed persons are said to belong to the same unpaid group if they are borne on the same establishment and if their wages for the same period or periods have remained unpaid after the day fixed by section 5
Sub section 2 provides for the making of a single application under section 15 on behalf of or in respect of any number of employed persons belonging to the same unpaid group and prescribes that in such a case the maximum compensation that may be awarded under sub section
3 of section 15 shall be Rs 10 per head
Subsection 3 then provides that the authority may deal with any number of separate pending applications presented under section 15 in respect of persons belonging to the same unpaid group as a single application presented under sub section
2 of the said section and the provisions of that sub section shall apply accordingly
Thus the effect of section 16 is that a single application may be made on behalf of any number of employed persons belonging to the same unpaid group or if separate applications are made by employed persons belonging to the same unpaid group they may be consolidated and tried as a single application
Let us now read section 17 which provides for appeals
Section 171 provides that an appeal against a 705 direction made under sub section
3 or sub section
4 of s 15 may be preferred within thirty days of the date on which the direction was made in a Presidency town before the Court of Small Causes and elsewhere before the District Court a by the employer or other person responsible for the payment of wages under section 3 if the total sum directed to be paid by way of wages and compensation exceeds Rs 300 or b by an employed person if the total amount of wages claimed to have been withheld from him or from the unpaid group to which he belonged exceeds Rs 50 or c by any person directed to pay a penalty under subs
4 of section 15
Sub section 2 of section 17 makes the directions made under sub section
3 and sub section
4 of section 15 final save as provided in sub section 1
On a plain reading of section 171a it seems fairly clear that the only test which has to be satisfied by the appellant before preferring an appeal against a direction issued under section 153 is that the total sum directed to be paid by him should exceed Rs 300
Where a single application has been made on behalf of a number of employed persons belonging to the same unpaid group under section 16 sub section
2 and a direction has been issued for the payment of the specified amount it is the said specified amount that must be considered in deciding whether the test prescribed by section 171a is satisfied or not
The view taken by the Bombay High Court however is that section 171a is applicable only where the amount directed to be paid to each single applicant exceeds Rs 300
In other words on this view the expression  the total sum directed to be paid  used in section 171a is construed to mean the total sum directed to be paid to each individual applicant and that clearly involves the addition of certain words in the section
If the application is made by a single employee an appeal can be preferred by the employer against the direction issued in such an application if the total sum directed to be paid to the applicant exceeds Rs 300 but if a single application is made on behalf of several employees belonging to the same unpaid group the test to be applied is not whether a direction has been issued that the employer 99 706 should pay Rs 300 or more to each one of the applicants the test clearly is whether a direction has been issued on the said single application calling upon the employer to pay to the applicants Rs 300 or more
Reading section 171a by itself we feel no difficulty in reaching this conclusion
It is however urged that in construing section 171a it would be relevant and material to compare and contrast its provisions with those of cl
b of section 17 sub section
Providing for the right of an employee to make an appeal this clause requires that the total amount of wages claimed to have been withheld from him or from the unpaid group to which he belonged should exceed Rs 50
It is emphasised that this clause refers expressly to the case of an individual employee as well as the cases of employees belonging to an unpaid group and the argument is that since cl
a does not use the words  unpaid group  it indicates that the direction about the payment of the amount prescribed by the said clause has reference to each individual employee
We are not impressed by this argument
Since the Act has provided for the making of a single application on behalf of a number of employed persons belonging to the same unpaid group as well as separate applications made by individual workmen it was unnecessary to refer to the persons employed in the unpaid group while providing for appeals against directions made under section 153
On the other hand if the Legislature had intended that the right to prefer an appeal should accrue to the employer only if Rs 300 or more are directed to be paid to each individual employee it would have used appropriate additional words in cl
Therefore the argument based upon the use of the words  unpaid group  in cl
b is not of any assistance in construing cl
We are also inclined to think that it could not have been the intention of the Legislature to confer on the employer the right to prefer an appeal only if Rs 300 or more are ordered to be paid to each one of the applicants
It is true that the policy of the Act is to provide for speedy remedy to the employees in respect of unauthorised deductions made by the employer or 707 in respect of delayed wages and with that object the Act provides for the appointment of the authority and prescribes the summary procedure for the decision of the claimsbutitseemsveryunlikelythatwhereas an appeal by the employee has been permitted by cl
b whenever the amount in dispute happens to be Rs 50 or more in respect of an individual applicant or in respect of the unpaid group the Legislature could have intended that the employer should have no right of appeal against a direction made on a single consolidated application even though the total liability flowing from the said direction may exceed the specified amount of Rs 300 by several thousands
In the present case the amount directed to be paid is more than Rs 22000 but it has been held that since each one of the employees is not ordered to be paid Rs 300 or more there is no right of appeal
On general considerations therefore the conclusion which we have reached on a fair and reasonable construction of cl
a appears to be well founded
There is another point to which reference must be made
Section 163 empowers the authority to consolidate several applications made by individual employees and bear them as a single application as though it was presented under section 16 sub section
2 and it is urged that this procedural provision cannot and should not have a decisive effect on the employer s right to prefer an appeal under section 171a
If several applications made by individual employees are not consolidated and heard as a single application under section 163 and separate directions are issued then the employer would have the right to prefer an appeal only where the total amount directed to be paid exceeds Rs 300
On the other hand if the authority consolidates the said applications and makes a direction in respect of the total amount to be paid to the employees belonging to the unpaid group the employer may be entitled to make an appeal even though each one of the employees receives less than Rs 300
It would be anomalous it is said that the right to appeal should depend upon the exercise of discretion vested in the authority under section 163
We are unable to see the force of this argument
We apprehend that 708 ordinarily when several applications are made by the employees belonging to the same unpaid group the authority would prefer to treat the said applications as a single application under section 163 but apart from this practical aspect of the matter if section 163 permits the consolidation of the several applications and in consequence of consolidation they are assimilated to the position of a single application contemplated by section 162 the only question which has to be considered in dealing with the competence of the appeal is to see whether the direction appealed against satisfies the test of section 171a and on that point we feel no hesitation in holding that the test prescribed by section 171a is that the direction should be for the payment of an amount exceeding Rs 300
Besides we think it would not be right to assume that it is anomalous if different consequences follow from the adoption of different procedures in trying employees  claims and an appeal does not lie where several applications are tried separately while it lies where similar applications are heard as a single application under section 163
This difference is clearly intended by the Legislature
A similar different consequence is prescribed in the matter of the award of compensation by section 15 sub section
3 and section 16sub section
2 respectively
Therefore the argument based on the alleged anomaly cannot have any validity inconstruing section 171a
Incidentally if one or more employees in the same unpaid group are paid an amount exceeding Rs 300 and the rest are paid less than Rs 300 on the alternative construction the employer would be entitled to make an appeal only in respect of a workman to whom more than Rs 300 is ordered to be paid and not against the others though the total amount directed to be paid to them may exceed by far the amount of Rs 300
In such a case if the appeal preferred by the employer in respect of the amount ordered to be paid to some of the workmen succeeds that would leave outstanding two conflicting decisions with the result that a large number of employees in the same unpaid group may get the amount under the direction of the authority while those who were awarded more 709 than Rs 300 by the authority would get a smaller amount under the decision of the appellate authority
We are referring to this anomalous aspect of the matter only for the purpose of showing that where the words used in the relevant clause are clear and unambiguous considerations of a possible hypothetical anomaly cannot affect its plain meaning
That is why we prefer to leave anomalies on both sides out of account and confine ourselves to the construction of the words used in section 171a
If the said words had been reasonably capable of two constructions it would have been relevant to consider which of the two constructions would avoid any possible anomalies
We would therefore hold that the appellate authority was in error in dismissing the appeal preferred before it by the appellant on the ground that it was incompetent under section 171a
We would like to add that the question about the construction of section 171a has been considered by the Madras High Court Union of India owning the South Indian Railway by the General Manager vs section P Nataraja Sastrigal  Ors
1 and A C Arumugam  Ors
vs Manager Jawahar Mills Ltd Salem Junction 2 the Calcutta High Court Promod Ranjan Sarkar vs RN Munllick 3 and Assam High Court Cachar Cha Sramik Union vs Manager Martycherra Tea Estate  Anr
4 and they have all differed from the view taken by the Bombay High Court and have construed section 171a in the same manner as we have done
The result is the appeal is allowed the order of dismissal passed by the appellate authority is set aside and the appeal sent back to it for disposal in accordance with law
Since the hearing of the appeal has been thus delayed we would direct that the appellate authority should dispose of the appeal as expeditiously as possible
Under the circumstances of this case we would direct that the parties should bear their own costs
Appeal allowed
1 AIR 1952 Mad 808
3 AIR 1959 Cal
318 SC 2 AIR 1956 Mad 79
4 AIR 1959 Assam 13


Summary:
When an enactment is challenged on the ground of violation of fundamental rights it is necessary to ascertain its true nature and character ie its subject matter the area in which it is intended to operate its purport and intent
In order to do so it is legitimate to take into consideration all the factors such as the history of the legislation the purpose thereof the surrounding circumstances and conditions the mischief intended to be suppressed the remedy proposed by the legislature and the true reason for the remedy
Initially there is a presumption in favour of the constitutionality of an enactment
Bengal Immunity Company Ltd vs The State of Bihar  R M D Chamarbaughwala vs The Union of India   Mahant Moti Das  Others vs section P Saki AIR 1959 SC 942 Charanjit Lal Chowdhuri vs The Union of India  Others  and The State of Bombay vs F N Bulsara   referred to
On examining the history of the legislation the surrounding circumstances and the scheme of the Act it was clear that the object of the Drugs and Magic Remedies Objectionable Advertisement Act 1954 was the prevention of self medication and self treatment by prohibiting instruments which may be used to advocate the same or which tended to spread the evil
Its object was not merely the stopping of advertisements offending against morality and decency
Advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed
It is only when an advertisement is concerned with the expression or propagation of ideas that it can be said to relate to freedom of speech
But it cannot be said that the right 672 to publish and distribute commercial advertisements advertising an individual s personal business is a part of the freedom of speech guaranteed by the Constitution
The provisions of the Act which prohibited advertisements commending the efficacy value and importance in the treatment of particular diseases of certain drugs and medicines did not fall under article 191a of the Constitution
The scope and object of the Act its true nature and character was not interference with the right of freedom of speech but it dealt with trade and business
Lewis J Valentine vs F J Chrestensen   R M D Chamarbaughwala vs The Union of India   State of Bombay vs R M D Chamarbaughwala   John W Rast vs Van Deman  Lewis Company   Alice Lee Grosjean vs The American Press Co   Express Newspapers P Ltd vs The Union of India and J M Near vs State of Minnesota   referred to
The definition of  advertisement  which included labels on cartons and bottles and instructions inside cartons was not too wide in view of the object of the Act
If the definition was not so broad and inclusive it would defeat the very purpose for which the Act was brought into  existence
The use of the word  suggest  in section 3 did not support the contention that the restraint placed by that section was disproportionate
The provisions Of section 14c and r 6 which allowed the prohibited advertisements to be sent confidentially by post to a registered medical practi tioner to a wholesale or retail chemist to a hospital or a laboratory only when the words  for the use only of registered medical practitioners or a hospital or a laboratory  had been inscribed on the outside of every packet containing the advertisement did not impose excessive restraint
The provisions of the Act were in the interests of the general public and placed reasonable restrictions on the trade and business of the petitioners and were saved by article 196
Chintaman Rao vs The State of Madhya Pradesh 1950 SCR 759 and Dwarka Das Srinivas of Bombay vs The Sholapur Spinning  Weaving Company Limited   referred to
The words  or any other disease or condition which may be specified in the rules made under this Act  in cl
d Of section 3 which empowered the Central Government to add to the diseases falling within the mischief Of section 3 conferred uncanalised and uncontrolled power on the executive and were ultra vires
The legislature had established no criteria or standards and had not prescribed any principle on which a particular disease or condition was to be specified
As a consequence the Schedule to the rules also become ultra vires
But the striking down of the impugned words did not affect the validity of the rest of cl
d or of the other clauses of section 3 as these words were severable
673 The first part of section 8 which empowered any person authorised by the State Government in this behalf to seize and detain any document article or thing which such person had reason to believe contained any advertisement contravening the provisions of the Act imposed an unreasonable restriction on the fundamental rights of the petitioners and was unconstitutional
This portion of section 8 went far beyond the purpose for which the Act was enacted and failed to provide proper safeguards in regard to the exercise of the power of seizure and detention as had been provided by the legislature in other statutes
If this portion was excised from the section the remaining portion would be unintel ligible and could not be upheld
By a portion of cl
d of section 3 and the whole of section 8 being declared unconstitutional the operation of the remaining portion of the Act remained unimpaired as these were severable
R M D Chamarbaughwala vs Union of India 1957 SCR 930 referred to