T. Prem Sagar Vs. The Standard Vacuum
Oil Companymadras & Ors  INSC 255 (16 December 1963)
16/12/1963 GAJENDRAGADKAR, P.B.
GUPTA, K.C. DAS
CITATION: 1965 AIR 111 1964 SCR (5)1030
D 1972 SC1479 (8)
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.
The appellant was appointed by respondent as
After some time, he was promoted as
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
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 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 management and as such did not fall within the exemption of s. 4(1)
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.,
145, The Colonial Bank of Australasia v.
Willan, 5 P.C. 417, Parry & Co. Ltd. v. Commercial Employees Association,
Madras,  S.C.R. 519, Nagendra Nath v. Commissioner of Hills Division,
 S.C.R. 1240, Syed Yakoob v. K. S. Radhakrishnan  5 S.C.R. 64, P.T.
Chandra v. Commissioner for Workmen's Compensation, Madras,  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 another,  2
L.L.J. 254, referred to.
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
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
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.
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
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.
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
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 includes 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 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 (1)  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 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)  S.C.R. 519 at P. 525. (2) 
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) 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 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
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
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)  1 L.L.J 55.
(2)  2 L.L.J 254.
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 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.