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PETITIONER: T. PREM SAGAR

       Vs.

RESPONDENT: THE STANDARD VACUUM OIL COMPANYMADRAS AND OTHERS

DATE OF JUDGMENT: 16/12/1963

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. GUPTA, K.C. DAS

CITATION:  1965 AIR  111            1964 SCR  (5)1030  CITATOR INFO :  D          1972 SC1479  (8)

ACT: Madras Shops and Establishments Act (36 of 1947)  ss.4(1)(a) and  51-Position  of  management-What  is  practice-Writ  of certiorari--Issue  of-High Court-Jurisdiction to  decide  on facts.

HEADNOTE: The appellant was appointed by respondent as Road  Engineer. After  some time, he was promoted as  Operations  Assistant. There   was  some  misunderstanding  between  him  and   the respondent in 1957.  While he was drawing Rs. 1000 p.m.,  he was asked to take leave.  When he reported for duty, he  was not  allowed to join duty as Operations Assistant  but  was, asked  to  take  up  the  post  of  the  Senior   Operations Supervisor  carrying a salary of Rs. 900.  As he refused  to take  up the new post, his services were terminated  without complying  with the provisions of Section 41,(1).  Ho  filed an appeal before the Additional Commissioner under s. 41  of the Madras Shops & Establishments Act, 1947.  His contention was  that  the order terminating his services  was  invalid. The  contention  of the respondent was that  the  Additional Commissioner had no jurisdiction to deal with the appeal  as the  appellant  was  a  person employed  in  a  position  of management  and  hence the provisions of the  Act  were  not applicable  to  him.   Under  Section 51  Of  the  Act,  the Commissioner  of Labour decided that the appellant  was  not employed  under the respondent in a position of  management. The  respondent  filed a writ petition in  the  Madras  High Court challenging the order of the Commissioner of Labour.. When  the cast was taken up by the Additional  Commissioner, the respondent contended that the appellant was an  employer as defined in the Act and not an employee.  That  contention was  rejected  by the Additional Commissioner who  also  set aside  the  order of termination of services  of  appellant. The  respondent filed a writ petition challenging the  order of the Additional Commissioner. The two writ petitions were heard together by a Single Judge of  the Madras High Court and were dismissed on  the  ground that  the  question  involved was  one  of  fact.   However, Letters  Patent Appeals were accepted by the Division  Bench

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of  the Madras High Court.  It is against the order  of  the Division  Bench that the appellant came to this Court  after obtaining  a certificate from the High court.  Allowing  the Appeals,  1031 Held  (i)  The High Court was not right in  coming  to  the, conclusion  that the impugned order suffered from any  error of  law  which was apparent on the face of  the  record  and there was no justification for interfering with that  order. The  order  of the Commissioner was an  elaborate  and  well considered  order.  The Commissioner had taken into  account the or a land documentary evidence and had already  examined the  probabilities  of the case.  He had laid  down  certain tests to determine as to whether a person was in a  position of  management  and also applied them to the  facts  of  the case. (ii)The appellant was not employed in a position of  manage- ment  and  as such did not fall within the exemption  of  s. 4(1) (a). In  order to determine whether a person is in a position  of management or not, the factors to be considered are  whether the,  person  had  power to operate  on  the  Bank  account, whether  he could make payments to third parties  and  enter into agreements with them on behalf of the employer, whether he  was entitled to represent the employer to the  world  at large  in  regard  to  the dealings  of  the  employer  with strangers, whether he had authority to supervise the work of the  clerks  employed in the establishment, whether  he  had control  and charge of the correspondence, whether he  could make commitments on behalf of the employer, whether he could grant   leave  to  the  members  of  the  staff   and   hold disciplinary proceedings against them and whether he had the power  to appoint members of the staff or punish them.   The salary drawn by an employee may have no significance and may not be material though it may be treated theoretically as  a relevant factor. (iii)It could not be maintained that because s. 51  provided that  the order of Commissioner of Labour on  the  questions falling  within his jurisdiction was final and could not  be agitated  in any court of law, High Court was not  competent to deal with the writ petition filed against those orders. In writ proceedings if an error of law apparent on the  face of  the record is disclosed and a writ is issued, the  usual course  to adopt is to correct the error and send  the  case back to the Special Tribunal for its decision in  accordance with law.  It is inappropriate for the High Court exercising its  writ jurisdiction to consider the evidence  for  itself and reach its own conclusion in matters which have been left by the legislature to the decision of specially  constituted Tribunals. Rai  Brij Raj Krishna v. S.K. Shaw and Bros., [1951]  S.C.R. 145, The Colonial Bank of Australasia v. Willan, 5 P.C. 417, Parry  &  Co.  Ltd.  v.  Commercial  Employees  Association, Madras, [1952] S.C.R. 519, Nagendra Nath v. Commissioner  of Hills  Division,  [1958] S.C.R. 1240, Syed Yakoob v.  K.  S. Radhakrishnan   [1964]   5  S.C.R.  64,  P.T.   Chandra   v. Commissioner  for Workmen’s Compensation, Madras,  [1958]  1 L.L.J.,  55 and The Salem Sri Ramaswami Bank Ltd., Salem  v. The Additional 1032 Commissioner for Workmen’s Compensation, Chepauk, Madras and an other, [1956] 2 L.L.J. 254, referred to.

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JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 581 and 582 of 1963. Appeals from the judgment and order dated February 18,  1960 of the Madras High Court in Writ Appeals Nos. 139 and 140 of 1959. K.K.  Venugopal and A.G. Ratnaparkhi, for the appellant  (In both the appeals). S.Govind  Swaminathan,  P.  Ram Reddy, A.V.V.  Nair  and  R. Thiagarajan, for respondent (In both the appeals). December 16, 1963.  The Judgment of the Court was  delivered by GAJENDRAGADKAR  J.-These two appeals raise a short  question about the validity of the writ of certiorari which has  been ordered  to  be issued by the Division Bench of  the  Madras High  Court  in allowing a Letters Patent  Appeal  preferred before  it  by  the respondent  M/s.   Standard  Vacuum  Oil Company, Madras.  The appellant T. Prem Sagar was  appointed by the respondent as its Road Engineer at Madras on the  5th February,  1951.   In  January, 1952,  he  was  promoted  as Operations  Assistant  on a salary of Rs. 450 p.m.,  and  as such, he was placed on probation for a period of six months. At  the end of six months, the respondent declared  that  he had  completed his probation satisfactorily.   In  October,, 1957, as a result of some misunderstandings between him  and the  respondent, he was again placed on probation  from  1st October, 1957 for a period of six months in the same post of Operations  Assistant.   At  the end of  this  period,,  the appellant  received a letter from the Operations Manager  of the respondent informing him that he had done his work as  a probationer satisfactorily.  Even so, it was alleged that he did  not show capacity for growth with the organisation  and on  that account, he was offered the lower post’  of  Senior Operations  Supervisor.   It  appears  that  this  post  was specifically created for the appellant  1033 and  it  carried  a salary of Rs. 900.   At  this  time,  as Operations  Assistant  the appellant was drawing  Rs.  1,000 p.m.  The appellant was then asked to take leave  which  was due to him, and when on returning from his leave he reported for  duty, the management refused to allow him to join  duty as an Operations Assistant.  The appellant was not  prepared to  take the post of the Senior Operations Supervisor,  with the result that on the 2nd May, 1958, the management of  the respondent  terminated  the services of the  appellant  with effect from 30th April, 1958. The  appellant  then  filed  an  appeal  before  the   Addl. Commissioner  for Workmen’s Compensation under s. 41 of  the Madras  Shops and Establishments Act, 1947 (No. 36 of  1947) (hereinafter  called  the Act).  By  this  application,  the appellant complained that the order terminating his services was invalid inasmuch as it had been passed without complying with  the mandatory provisions of s. 41 of the Act.   Before the  Addl.   Commissioner for Workmen’s,  Compensation,  the respondent   filed  a  petition  alleging  that  the   Addl. Commissioner   had   no  jurisdiction  to  deal   with   the appellant’s  appeal in view of the fact that  the  appellant was  a  person employed in the respondent’s Head  Office  at Madras  in a position of management, and so, the  provisions of  the said Act were inapplicable to him.   The  respondent thereupon  moved the Commissioner of Labour under s.  51  of the Act to determine this question.  Under the said section, the Commissioner of Labour is competent to decide  questions of  status  and  that  is  why  the  respondent  moved   the Commissioner of Labour.

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The Commissioner recorded the evidence led by the respondent as  well as the appellant, and on the 12th January, 1959  he pronounced  his  decision that the  appellant  was  employed under  the  respondent  and  he was not  in  a  position  of management. The  respondent  then moved the Madras High  Court  by  Writ Petition  No.  521  of 1959 challenging  the  order  of  the Commissioner of Labour.  Mean- 1034 while,    the   Additional   Commissioner   for    Workmen’s Compensation took up the appeal for hearing.  At this  time, the  order passed by the Commissioner of Labour under s.  51 had  been pronounced and the said order was binding  between the  parties and was final.  In view of the said order,  the respondent  took  up an alternative plea  before  the  Addl. Commissioner  and urged that the appellant could not  invoke the  provisions  of  s. 41 of the Act,  because  he  was  an employer as defined under the Act and not an employee.   The Addl.  Commissioner over-ruled this contention and held that the Act applied.  On the merits, he made findings in  favour of  the  appellant, rejected the contentions raised  by  the respondent against the work of the appellant and its quality and in the result, set aside the order of termination passed by  the  respondent on the 2nd May, 1958.   This  order  was challenged  by the respondent by preferring a writ  petition No. 573/1959 before the Madras High Court.  That is how  the two  writ  petitions came to be filed.  In both  these  writ petitions, the respondent impleaded the appellant as well as the  Commissioner of Labour and the Addl.  Commissioner  for Workmen’s  Compensation, Madras.  These two latter  officers are  respondents 2 & 3 in the present appeals,  whereas  the employer, the Standard Vacuum Oil Company is respondent  No. 1. We are describing the employer Company as the  respondent in the course of this judgment. The  two Writ Petitions were heard together  by  Balakrishna Ayyar  J.  The learned Judge was inclined to take  the  view that  the appellant was in a position of management  and  in that  sense,  he did not agree with the  conclusion  of  the Commissioner of Labour.  Even so, he held that the  question involved was one of fact and it was not open to him to issue a  writ  of  certiorari to correct  the  conclusion  of  the Commissioner even if he thought that the said conclusion was not  right.   On that view,. he refused to issue a  writ  in favour  of the respondent in W.P. No. 521 of 1959 and  as  a consequence, the said writ  1035 petition as well as W.P. No. 573 of 1959 were dismissed.  It is  common ground that if the respondent’s claim for a  writ of certiorari made in W.P. No. 521 of 1959 fails, its  claim for quashing the order passed by the Addl.  Commissioner for Workmen’s Compensation cannot be upheld. The  decision of Balakrishna Ayyar J. was challenged by  the respondent  by preferring an appeal under the Utters  Patent before  a  Division  Bench of the Madras  High  Court.   The Division Bench came to the conclusion that Balakrishna Ayyar J.  had taken an unduly narrow view about the scope  of  the High  Court’s jurisdiction under Art. 226 and it  held  that the finding made by the Commissioner about the status of the appellant  suffered from an error of law which was  apparent on the face of it.  That is why the said Bench issued a writ of certiorari correcting the finding of the Commissioner and consequently  allowed both the writ petitions filed  by  the respondent.   It  is against these decisions  that  the  two present  appeals  have  been brought to this  Court  by  the appellant with a certificate issued by the High Court.

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Before  dealing with the main points in controversy  between the  parties. it would be relevant to refer to the  material provisions  of the Act.  The Act received the assent of  the Governor-General  on  the 2nd February, 1948 and  came  into force  on the 10th February, 1948.  It has been passed  with the object of providing for the regulation of conditions  of work  in  shops,  commercial  establishments,   restaurants, theaters  and  other establishments, and for  certain  other purposes.   Section  2 of the  Act  prescribes  definitions. Section  2(3)  defines a commercial  establishment.   It  is unnecessary to refer to this definition because it is common ground  that  the respondent’s office at  Madras  where  the appellant was employed at the material time is a  commercial establishment  under  the  Act.   Section  2(5)  defines  an employer  as meaning a person owning, or having  charge  of, the business of an establishment and in- 1036 cludes  the  Manager, Agent or other person  acting  in  the general management or control of an establishment.  It  will be seen that the definition of the word " employer" includes persons  who  own the establishment or have  charge  of  the business of the establishment as well as persons who act  as the  Manager  or  Agent of the said  establishment,  or  are otherwise acting in the general management or control of it. The  control or management which is associated with  persons falling  under  the definition of employer  is  the  general management  or  control of the said establishment; it  is  a kind of overall management or control and not management  or control  of sections or departments or sub-sections or  sub- divisions that function under the establishment. Section  2(12)  defines  a person employed.   Since  in  the present   appeals  we  are  concerned  with   a   commercial establishment,  it is necessary to read s. 2(12) (iii).   It provides  that  a  person employed means in the  case  of  a commercial establishment other than a clerical department of a  factory or an industrial undertaking, a person wholly  or principally employed in connection with the business of  the establishment,  and includes a peon.  The test which has  to be  applied  in  determining the question as  to  whether  a person is employed in a commercial establishment is  whether he is wholly or principally employed in connection with  the business of the said establishment.  As soon as it is  shown that  the  employment  of the person  is  either  wholly  or principally    connected   with   the   business   of    the establishment, he falls within the definition. That  takes us to the exemptions prescribed by s. 4. We  are concerned in the present case with the exemption  prescribed by  s. 4(1)(a).  The said provision lays down  that  nothing contained in this Act shall apply to persons employed in any establishment  in  a  position of management.   One  of  the points  in dispute between the parties is when a person  can be  said to be employed in the position of  management?   If the appellant is such a person, then, of course, s. 41 1037 would  not apply to him and the view taken by  the  Division Bench would be right. The  next  section  to  consider is  s.  41.   This  section provides   the  procedure  which  has  to  be  followed   in dismissing employees to whom the Act applies.  Section 41(1) lays down that no employer shall dispense with the  services of  a person employed continuously for a period of not  less than  six months, except for a reasonable cause and  without giving  such person at least one month’s notice or wages  in lieu  of  such notice, provided, however, that  such  notice shall not be necessary where the services of such person are

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dispensed  with  on  a charge  of  misconduct  supported  by satisfactory  evidence recorded at an enquiry held  for  the purpose.   Sub-section (12) confers right of appeal  on  the person dealt with under sub-section (1), and sub-section (3) provides that the decision of the appellate authority  shall be  final  and binding on both the employer and  the  person employed.  It is common ground that the termination of the services of the appellant which has given rise to the present proceedings has not complied with s. 41(1); so  that if it is shown that the appellant is an employee  under   s. 2(12)(iii)  and not an employer under s. 2(5) and if  it  is further  proved  that  he is not a person  employed  in  the respondent’s establishment in a position of management, then the  termination  of his services is invalid and  the  order passed by the addl.  Commissioner for Workmen’s Compensation is correct.  It is only if the respondent can show that  the appellant  is  either  an  employer  or  falls  within   the exemption  prescribed by s. 4(1)(a) that the writ  petitions filed by it can succeed. There  is one more section to which reference must  be  made before  we  proceed to deal with the merits of  the  present appeals.  That is section 51.  This section provides,  inter alia, that if any  question arises whether all or any of the provisions  of  the Act apply to an establishment  or  to  a person  employed  therein  ,  it shall  be  decided  by  the Commissioner  of  Labour and his decision thereon  shall  be final and 1038 shall  not be liable to be questioned in any court  of  law. The  Commissioner  is  thus  constituted  into  a   Tribunal empowered to deal with questions therein specified, and  the statute provides that the decision of the Commissioner shall be final on those points. The first question which falls to be considered is:    what are the limits of the High Courts’ jurisdiction   in issuing a  writ  of  certiorari in respect of orders  like  the  one pronounced  by  the Commissioner in the present  case?   Mr. Venugopal contends that in dealing with this question in the present appeals, we must bear in mind the specific provision of   s.  51  which  provides  that  the  decision   of   the Commissioner  of Labour on the questions falling within  his jurisdiction under the said section shall be final and shall not  be  liable  to be questioned in any court  of  law’  He concedes  that  a provision like this cannot take  away  the jurisdiction conferred on the High Courts under Art. 226  of the  Constitution,  and so, it would not be open to  him  to contend that because s. 51 provides that the said  questions will not be agitated in any court of law the High Court  was incompetent  to  deal with the writ petitions filed  by  the respondent against the Commissioner’s orders.  He,  however, urges  that  in determining the limits of the  High  Court’s jurisdiction  and the scope of its interference  under  Art. 226,  it would be material to remember that the statute  has provided  that  the decision of the  Commissioner  shall  be final. In  support  of  this argument, he has referred  us  to  the decision of this Court in Rai Brij Raj Krishana and  another v.  S.K. Shaw & Brothers(1).  In that case, this  Court  was dealing with the scheme of the Bihar Buildings (Lease,  Rent and  Eviction)  Control  Act  (No.  111  of  1947)  and  the provisions  of S. 11 in particular.  Fazl Ali J.  who  spoke for  the Court observed that the Act has set up  a  complete machinery for the investigation of the matters mentioned  in it  upon which the jurisdiction of the Controller  to  order eviction of a tenant depends, and it expressly

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(1)  [1951] S.C.R. 145. 1039 makes  his order final and subject only to the  decision  of the Commissioner.  It is in the background of this  position that the question which arose for the decision of the  Court was whether in such a case, the validity of the order  could be  questioned  in  a regular suit brought  before  a  civil court.  In answering this question, a distinction was  drawn between  facts which are collateral and the proof  of  which confers jurisdiction on the special tribunal, and facts  the decision  of  which  on  the merits has  been  left  to  the jurisdiction  of  the  Tribunal.  In regard  to  the  latter category of cases, the Court accepted the view expressed  by Sir  James Colville in the Colonial Bank of Australasia’  v. Willan(1).   Sir  James Colville had observed in  that  case that  "the authorities establish that an adjudication  by  a Judge having jurisdiction over the subject-matter is, if  no defect appears on the face of it, to be taken as  conclusive of  the facts stated therein; and that the Court of  Queen’s Bench will not on certiorari ’quash such an adjudication  on the  ground that any such fact, however essential, has  been erroneously  found."  Proceeding to deal  with  the  dispute before  it on this basis, this Court held that even  if  the Controller  may  be  assumed to  have  wrongly  decided  the question  of  non-payment  of rent, which by  no  means  was clear, his order cannot be questioned in a civil court.   It would  be noticed that though Fazl Ali J. has discussed  the position  in  regard to the jurisdiction of the  High  Court under Art. 226, the issue arose in an appeal brought from  a suit   instituted  for  the  purpose  of   challenging   the Controller’s findings and conclusions.  The distinction made between.  jurisdictional facts which are Collateral and  the proof of which confers jurisdiction on the special  tribunal and facts which are left to the decision of the tribunal  on the  merits  is, however, well-settled and is  not  open  to doubt or dispute.  In that sense, Mr. Venugopal may be right in  contending  that the question about the  status  of  the appellant has been left to the decision of the  Commissioner of  Labour under s. 51, and so, the High Court  can  correct the (1)  5 P.C. 417 at p. 443. 1040 error  committed  by the Commissioner in  dealing  with  the question of status only if the said error-is an error of law apparent on the face of the record. Mr. Venugopal has then relied upon the observations made  by this  Court in the case of Parry & Co. Ltd. vs.   Commercial Employees’ Association, Madras(1).  In that case,  Mukherjee J.  stated  that  no  certiorari is  available  to  quash  a decision passed with jurisdiction by an inferior tribunal on the mere ground that such decision is erroneous, and be  has further  added  that it was conceded by Mr. Isaacs  that  in spite  of  the relevant statutory  provisions  the  superior Court  is  not absolutely deprived of the power to  issue  a writ,  although it can do so only on the ground of either  a manifest  defect of jurisdiction in the tribunal  that  made the order or of a manifest fraud in the party procuring  it. The  argument is that these observations suggest that it  is only  errors in respect of jurisdiction or errors in  orders produced  by  fraud  that  can be corrected  by  a  writ  of certiorari.  It may be conceded that the observation made by Mukherjee J. on which Mr. Venugopal relies does, prima facie lend some support to his argument; but we do not think  that this  observation can be read as laying down  a  categorical and   unqualified  proposition  that  unless  an  error   of

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jurisdiction  is  established, or fraud proved, no  writ  of certiorari can be issued. In fact, after the judgment of this Court was pronounced  in the  case  of Parry & Co. Ltd.(1), the  question  about  the jurisdiction  of High Courts in issuing writs of  certiorari under  Art. 226 has been frequently considered and there  is consensus  of  opinion in the judgments  delivered  by  this Court  eversince  that a writ of certiorari  can  be  issued where the order of the inferior tribunal is shown to  suffer from an error which is at)-parent on the face of the record. As   was  observed  by  this  Court  in  Nagendra  Nath   v. Commissioner  of  Hills Division.(2), "it is clear  from  an examination of the authorities of this Court. (1)  [1952]  S.C.R.  519  at  P.  525.  (2)  [1958]   S.C.R. 1240,1269,1270.  1041 as also of the Courts in England, that one of the grounds on which  the jurisdiction of the High Court on certiorari  may be  invoked, is an error of law apparent on the face of  the record and not every error either of law or fact, which  can be  corrected  by  a  superior Court,  in  exercise  of  its statutory  powers as a Court of appeal of revision." It  is, of  course, difficult and indeed it would be inexpedient  to lay  down any general test to determine which errors of  law can  be described as errors of law apparent on the  face  of the  record,  vide  Syed  Yakoob  v.  K.S.  Radhakrishnan  & Ors.(1).  Therefore,  we  are not  prepared  to  accept  Mr. Venugopal’s  contention  that  since there is  no  error  of jurisdiction in the present case and no allegation of fraud, the High Court was not justified in issuing a writ.  In  our opinion, if the Commissioner’s order is shown to suffer from the  infirmity  of an error of law apparent on face  of  the record, the High Court would be justified in issuing a  writ notwithstanding  the fact that s. 51 of the Act purports  to make the Commissioner’s order final. That  takes us to the question as to whether the High  Court was right in holding that the Commissioner’s order  suffered from  such an infirmity.  Two points were urged in the  writ proceedings  by  the  respondent  when  it  challenged   the validity of the Commissioner’s order.  The first  contention was that the appellant is not an employee of the  respondent and  does  not fall under s. 2(12) which  defines  a  person employed for the simple reason that he comes under the class of   persons  included  in  the  definition  of   the   word "employer".  The argument was that the appellant being in  a position  of management, was really holding the status of  a manager  in  a limited sense and was thus an  employer.   In support  of this argument, it was pointed out  that  several provisions of the Act were not applicable to the  appellant, and  so,  it  would be futile to describe him  as  a  person employed by the respondent.  In fact, the argument was  that the (1)[1964] 5 S.C.R. 64. I/SCI/64-66 1042 salary paid to the appellant cannot be said to be wages, and so, s. 29 itself was inapplicable to him.  It is unnecessary to consider whether the salary paid to the appellant amounts to wages or not, because, in our opinion, the argument  that the  appellant  was  in the position of an  employer  is  so clearly unsustainable that it is hardly necessary to examine it in detail.  Even so, it may incidentally be observed that the  definition  of  wages prescribed by s.  2(18)  is  wide enough to take in the case of the appellant’s salary. Similarly,  it was urged that s. 31 which provides  for  the

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wages for over-time work, as well as ss. 32 and 33 would not be   applicable  to  the  appellant.   Assuming  that   some provisions of the Act will not apply to the appellant, we do not  see  how  it  follows that  the  appellant  becomes  an employer  under s. 2(5).  If he is not an employer under  s. 2(5  ),  he is obviously a person employed under  s.  2(12), subject,  of course, to the decision of the question  as  to whether  his case falls under the exemption provided for  by s.  4(1)  (a).  Now, the definition of the  word  "employer" contained  in s. 2(5 ) clearly requires that the person  who can be called an employer should have the general management or control of the establishment.  The appellant was employed at  the  Head Office of the respondent at Madras and  it  is nobody’s  case  that he was having any  control  or  general management  of  the  said  establishment.   Indeed,  we  are inclined to think that the plea raised by the respondent  in this form for the first time in the writ proceedings  before the  High  Court that the appellant was an  employer,  is  a frivolous plea.  This plea had not been raised in this  form either   before  the  Addl.   Commissioner   for   Workmen’s Compensation or the Commissioner for Labour..  That  takes us to the question as to whether the  appellant is  an  employee  whose case falls  under  the  category  of exempted cases provided for by s. 4(1)(a).  Section  4(1)(a) refers  to  persons employed in any  ,’.establishment  in  a position  of management, and so, the question is when can  a person be said to have 1043 been employed by the respondent in a position of management. It is difficult to lay down exhaustively all the tests which can  be  reasonably  applied  in  deciding  this   question. Several  considerations  would  naturally  be  relevant   in dealing  with this problem.  It may be inquired whether  the person  had a power to operate on the bank account or  could he make payments to third parties and enter into  agreements with  them  on behalf of the employer, was  he  entitled  to represent  the employer to the world at large in  regard  to the  dealings  of the employer with strangers, did  he  have authority  to supervise the work of the clerks  employed  in the  establishment,  did he have control and charge  of  the correspondence,  could he make commitments on behalf of  the employer,  could he grant leave to the members of the  staff and hold disciplinary proceedings against them, has he power to  appoint members of the staff or punish them-, these  and similar  other tests may be usefully applied in  determining the question about the status of   an  employee in  relation to the requirements of s.     4(1)(a).  The salary drawn  by the employee may have no significance   and   may   not   be material  though  it  may  be  treated  theoretically  as  a relevant  factor,  vide Chandra (T.P.) v.  Commissioner  for Workmen’s  Compensation, Madras & Anr(1). and The Salem  Sri Ramaswami Bank Ltd Salem v. The Additional Commissioner  for Workmen’s Compensation, Chepauk, Madras & Anr(1). At   this  stage,  it  is  necessary  to  examine  how   the Commissioner  of Labour approached this question.  He  began the  discussion  of  this problem by referring  to  the  two -Madras decisions just cited by us and said that as  decided by the Madras High Court, it would be necessary to find  out whether  the  appellant  was in  a  position  of  management "because  he was in charge of correspondence of the  branch, was  supervising  the  work of the clerks  employed  in  the Branch,  was  operating  on the  bank  account,  was  making payments, was entering into agreements with third parties on (1) [1958] 1 L.L.J 55. (2) [1956] 2 L.L.J 254.

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1044 behalf of the Company and was granting leave to the staff of the  Branch."  Thus,  it would be seen  that  in  addressing himself  to  the  question  raised  for  his  decision,  the Commissioner  applied  tests to which no  exception  can  be taken.  Having set out the tests which had to be applied, he considered the evidence led by the parties before him and be recorded  his conclusions clearly and categorically  in  his order.  He held that the appellant had no power of  appoint- ment  of  labour, had no power to take  disciplinary  action against  them,  had  no  power to  grant  leave  to  persons subordinate  to  him,  had no discretion in  the  matter  of incurring  expenditure of his own accord as the  expenditure had to be sanctioned by the General Manager; had no power of attorney  to  enter into agreements with  third  parties  on behalf  of the Company; his work was subject to the  overall supervision  of the Operations Manager; he bad no  power  to bind the Company by his acts; he could not operate upon  the Co.’s bank account; he could not lay down policy for the Co. and  that  be had to obtain the approval  of  the  Operation Manager  on almost all matters.  Having discussed the  whole of   the  evidence  and  recorded  definite  findings,   the Commissioner  no doubt observed in the course of  his  order that "it cannot, therefore, be said that the respondent  was exercising managerial powers in relation to the Head  Office of  the  Company  where  he  was  employed,"  and  in   that connection, he added that one of the questions which had  to be considered by him was whether the powers exercised by the appellant were managerial with reference to the Head  Office of  the  Company.  It is on these two statements  which  the Commissioner  made  in  the course of  his  order  that  the Division Bench has rested its decision and has recorded  its finding that the order passed by the Commissioner of  Labour is on its face patently and manifestly erroneous. The   Division  Bench  considered  the   relevant   judicial decisions  bearing on the question about the extent  of  the High Court’s jurisdiction in entertaining  1045 petitions for writs of certiorari and held that if the error in  the judgment of the Commissioner of Labour was shown  to be  an  error of law which was manifest on the face  of  the record, it would be justified in issuing a writ.  This  view is undoubtedly correct.  The High Court was also right  when it held that the question about the status of the  appellant being  a  mixed  question of fact and  law,  if  it  clearly appeared  from the impugned order that in dealing  with  the status of the appellant a patently erroneous legal test  was applied,  that also would-justify the( interference  of  the High  Court under Art. 226.  It is in that  connection  that the  High Court has observed that the manifest error in  the impugned  order  lay  in  the  fact  that  the  Commissioner "thought  that  it is only when an  employee  is  exercising managerial  powers  in relation to the head  office  of  the Company  where  he was employed that he can be  said  to  be employed  in a position of management within the meaning  of s.  4(1)(a)  of  the Act".  It would be  noticed  that  this conclusion  is based on the two statements in  the  impugned order to which we have already adverted. Mr. Swaminathan for the respondent has fairly conceded  that when  the Commissioner enumerated the tests which had to  be applied  in  dealing with the status of  the  appellant,  he committed no error of law; but be strongly urged that having laid  down the proper tests, the Commissioner went wrong  in applying   the   said  tests  because  he  seems   to   have concentrated  on  the  main  question  as  to  whether   the

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appellant  was clothed with managerial powers in  regard  to the  affairs  of the Head Office of the  Company  at  Madras where he was employed, and that he contends  constitutes   a manifest and patent error flaw in the conclusion recorded by the Commissioner. We are not impressed by this argument. The order  pronounced  by the Commissioner is an  elaborate  and well-considered  order.  He has taken into account the  oral evidence,  the  documents produced before him and  has  also examined the 1046 probabilities  of the case.  In appreciating the  effect  of the two statements on which so much reliance has been placed by  Mr.  Swaminathan and which, in substance, was  the  sole basis of the decision of the Division Bench, we have to bear in mind the fact ’.bat the said two sentences represent only one of the many reasons given by the Commissioner in support of his conclusion, and that reason also was given by him and probably had to be given by him, because it appears that one of  the  contentions  raised by the  respondent  before  the Commissioner  was  that  the  appellant  was  clothed   with managerial functions and duties.  In the application made by the  respondent  under s. 51 before  the  Commissioner,  the respondent had specifically averred in paragraph 3 that  the appellant was an employee in the position of management  and "his duties and functions were managerial".  That being  so, the  Commissioner naturally had to consider this  aspect  of the  matter  and so, he observed that he appellant  did  not have managerial functions, duties or authorities.  It  would we  think, be unfair to hold that the whole approach of  the Commissioner was vitiated by the fact that he  ’concentrated on the question about managerial functions and authority and did not apply the other tests which have been expressly  set out by him in the earlier part of his order.  Therefore,  we do not think that the Division Bench was right in coming  to the  conclusion  that the impugned order  suffers  from  any error of law which is apparent on the face of the record. Incidentally,  we  ought  to  point out  that  even  if  the Division Bench was right in holding that the impugned  order should be corrected by the issue of a writ of certiorari, it would  have been better if it had not made its own  findings on the evidence and passed its own order in that behalf.  In writ proceedings if an error of law apparent on the face  of the  record  is disclosed and a writ is  issued,  the  usual course  to adopt is to correct the error and send  the  case back to the special Tribunal for its decision in  accordance with 1047 law.   It  would, we think, be inappropriate  for  the  High Court  exercising  its  writ jurisdiction  to  consider  the evidence for itself and reach its own conclusions in matters which have been left by the legislature to the decisions  of specially constituted Tribunals. In the result, the appeals are allowed, the orders passed by the  High  Court  in the two writ  petitions  filed  by  the respondent  are  set aside and the said writ  petitions  are ordered to be dismissed with costs. Appeals allowed.