# [1964] 5 S.C.R. 1030

- **Citation:** [1964] 5 S.C.R. 1030
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Case number:** Civil Appeal v. Nos. 581 and 582 of 1963
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1964-5-s-c-r-1030-3199
- **Pages:** 19

## Headnote

}Jl6J
. December 16
1030
THE
SUPREME COVRT REPORTS
T. PREM SAGAR
v •
[1964)
STANDARD VACUUM OIL COMPANY
MADRAS AND OJHERS
(P.B.
GAJENDRAGADKAR
AND
K.C.
DAS
GUPTA
JJ.)
Madras Shops and Establishments Act (36 ofl947), ss.4(1)(a)
and SI-Position of management-What is practice-Writ of
certiorari-Issue of-High
Court-Jurisdictkm
to
decide on
facts.·
The appellant was appointed by respondent as Road Engineer.
After some time, he was promoted as Operations Assistant. I
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
'-
riot 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). He filed an appeal before the Additional Commissioner under s. 41 of the Madras Shops & Establishments Act,
1947. His contenti.on was that the order terminating his services
i:_,
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 appelh1nt 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 Commis-
~foner of Labour.
When the case 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 tern1ination of services of appellant. The respondent
filed a wri.t·.petitioμ challenging the order of the Additional Commissioner.
The two writ petitions were heard together by a Single
Judge of the Madras High Conrt 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
~i_gh Court. Allowing the Appeals,
·-
(
,,
·~
5 S.C.R.
SlJPREME COURT REPORTS
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 oral and 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) (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 salar

## Text

_Characters 0–39,706 of 42,414. This is a partial read: ask again with offset=39706 for what follows._

}Jl6J
. December 16
1030
THE
SUPREME COVRT REPORTS
T. PREM SAGAR
v •
[1964)
STANDARD VACUUM OIL COMPANY
MADRAS AND OJHERS
(P.B.
GAJENDRAGADKAR
AND
K.C.
DAS
GUPTA
JJ.)
Madras Shops and Establishments Act (36 ofl947), ss.4(1)(a)
and SI-Position of management-What is practice-Writ of
certiorari-Issue of-High
Court-Jurisdictkm
to
decide on
facts.·
The appellant was appointed by respondent as Road Engineer.
After some time, he was promoted as Operations Assistant. I
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
'-
riot 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). He filed an appeal before the Additional Commissioner under s. 41 of the Madras Shops & Establishments Act,
1947. His contenti.on was that the order terminating his services
i:_,
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 appelh1nt 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 Commis-
~foner of Labour.
When the case 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 tern1ination of services of appellant. The respondent
filed a wri.t·.petitioμ challenging the order of the Additional Commissioner.
The two writ petitions were heard together by a Single
Judge of the Madras High Conrt 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
~i_gh Court. Allowing the Appeals,
·-
(
,,
·~
5 S.C.R.
SlJPREME COURT REPORTS
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 oral and 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) (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. SI 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
1963
T. Prem Sagar
v.
The Standard
Vacuum Oil
Ctmpany
Madras and
Others
1963
1032
SUPREME COURT REPORTS
[1964]
Commissioner for Workmen's Compensation, Chepauk, Madras
and an other, (1956] 2 L.L.J. 254, referred to.
· T. Prem Sagar
CIVIL APPELLATE JURISDICTION : Civil Appeal
v.
Nos. 581 and 582 of 1963.
The Standard
Vacuum Oil
Appeals from the judgment and order dated
February 18, 1960 of the Madras High Court in Writ
Company
f
Madrasand Appeals Nos. 139 and 140 o 1959.
Others
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
Ga·endragadkar
GAJENDR_AGADKAR J.-Th~s~ two appe.als raise
~
J.
a short question about the validity of the wnt 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
5 S.C.R.
SUPREME COURT REPORTS
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
Addi. 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 Addi. Commissioner for Workmen's
Compensation, the respondent filed a petition alleging that the Addi. 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 bis 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. Mean1963
T. Prem Sagar
v.
The Standard
Vacuum Oil
Company
Madras and
Others
Gajendragadkar
J.
1034
SUPREME COURT REPORTS
[1964]
1963
while, the Additional Commissioner for Workmen's
Compensation took up the appeal for hearing. At
T. Prem Sagar this time, the order passed by the Commissioner of
v.
Labour under s. 51 had been pronounced and the
The Standard said order was binding between the parties ~and was
Vacuum Oil final.
In view of the said order, the respondent
Company
took up an alternative plea before the Addi. CommisMadras and sioner and urged that the appellant could not invoke
Others
the provisions of s. 41 of the Act, because he was
an employer as defined under the Act and not an
Gajendragadkar employee. The Addi. Commissioner over-ruled this
J.
contention and held that the Act applied. On the
merits, he made findings in favour of the appellant,
rejected the contentions raised bf 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.
ln both these writ petitions, the
respondent impleaded the .appellant as well as the
Commissioner of Labour and the Addi. 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. l. 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 wa~ 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
-
L
5 S.C.R.
SUPREME COURT REPORTS
1035
petition as well as W.P. No. 573 of 1959 were dismissed.
1963
It is common ground that if the respondent's claim
. --
for a writ of certiorari made in W.P. No. 521 of T. Prem Sagar
1959 fails, its claim for quashing the order passed
v.
by the Addi. Commissioner for Workmen's Com- The Standard
pensation cannot be upheld.
Vacuum Oil
The decision of Balakrishna Ayyar J. was challenged by the respondent by preferring an appeal under
the Letters Patent before a Division Bench of the
Company
Madras and
Others
Madras High Court.
The Division Bench came Gajendragadkar
to the conclusion that Balakrishna Ayyar J. had
J.
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, theatres 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 2l 5) defines
an employer as meaning a person owning, or having
charge of, the business of an establishment and in-
1036
SUPREME COURT REPORTS
[1964]
~
1963
eludes the Manager, Agent or other person acting
in the general management or control of an establishT. Prem Sagar ment. It will be seen that the definition of the word
v.
"employer" includes persons who own the establishThe Standard ment or have charge of the business of the establishVacuum Oil ment as well as persons who act as the Manager or
Company
Agent of the said establishment, or are otherwise
Madras and acting in the general management or control of it.
Others
The control or management which is associated with
--
persons falling under the definition of employer is
Gajendragadkar the general management or control of the said establish-
/.
ment; 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 bys. 4(l)(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
~· 5S.C.R.
SUPREME COURT REPORTS
1037
·-,
I
L
..
would not apply to him and the view taken by the
1963
Division Bench would be right.
The next section to consider is s. 41. This T. Prem Sagar
section provides the procedure which has to be followed The s;~ndard
in dismissing employees to whom the Act applies.
Vacuum Oil
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
Company
Madras and
Others
such person at least one month's notice or wages Gajendragadkar
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
(2) confers right of appeal on the person dealt with
under sub-section (! ), 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. 4lll); so that if it is shown that the appellant is
an employee under s. 2(12)liii) 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 Addi. Comissioner 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
SUPREME COURT REPORTS
[1964] ~
1963
shall not be liable to be questioned in any court of
law. The Commissioner is thus constituted into a
T. Prem Sagar Tribunal empowered to deal with questions therein
v.
specified, and the statute provides that the decision
The Standard of the Commissioner shall be final on those points.
Vacuum Oil
Company
Madras and
Others
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
Gajendragadkar the present case? Mr. Venugopal contends that in
J.
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 h1s jurisdic"
tion 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 & BrothersOJ. In that
·case, this Court was dealing with the scheme of the
Bihar Buildings (Lease, Rent and Eviction) Control
Act (No. III of 1947) and the provisions of s. 11 in
particular. Faz! 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) [1951] S.C.R. 145.
r J
,)_ I
5 S.C.R.
SUPREME COURT REPORTS
1039
makes his order final and subject only to the decision
of the Commissioner.
Tt is in the background of
1963
this position that the question which arose for the T. Prem Sagar
decision of the Court was whether in such a case,
v.
the validity of the order could be questioned in a The Standard
regular suit brought before a civil court. In answerVacuum Oil
ing. 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
Company
Madras and
Others
to the jurisdiction of the Tribunal. In regard to the Gajendragadkar
latter category of cases, the Court accepted the view
J.
expressed by Sir James Colville in the Colonial Bank
of Australasia v. WillanO).
Sir James Colville had
observed in that case that "the authorities establish
that au 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 <:annot
be questioned in a civil court. It would be i10ticed
that though Faz! 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.
1963
T. Prem Sagar
V.
1040
SUPREME COURT REPORTS
[1964]
error committed by the Commissioner in dealmg
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 observaVacuum Oil tions made by this Court in the case of Parry & Co.
Company
Ltd. vs. Commercial Employees' Association, Madras<'>.
Madras and In that case, Mukherjee J. stated that no certioThe Standard
Others
rari is available to quash a decision passed withjurisdicG . --;;- dk
tion by an inferior tribunal on the mere ground that
afen 7ga ar such decision is erroneous, and he 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 suppport 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. OJ,
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 a11
error which is apparent on the face of the record.
As was observed by this Court in Nagendra Nath
v. Commissioner of Hills Division. (2J, "it is clear
from an examination of the authorities of this Court.
(I) [1952] S.C.R. 519 at p. 525. (2) [1958] S.C.R. 1240, 1269, 1270.
-
_,
..
\ '
•
5 S.C.R.
SUPREME COURT REPORTS
1041
as also of the Courts in England, that one of the grounds
1963
. on which the jurisdiction of the High Court on certiorari may be invoked, is an error of law apparent T. Prem Sagar
on the face of the record and not every error either
v.
of law or fact, which can be corrected by a superior The Standard
Court, in exercise of its statutory powers as a Court
Vacuum Oil
of appeal of revision." It is, of course, difficult
Company
and indeed it would be inexpedient to lay down any
Madras and
general test to determine which errors of law can be
Others
described
as
errors of law
apparent on
the
--
face of the record, vide Syed Yakoob v.
K.S. Gajendragadkar
Radhakrishnan & Ors.(1). Therefore, we are not preJ.
pared 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. 2l]2) 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.
l
1/SCI/64--66
--'-
.1042
SUPREME COURT REPORTS
[1964]
19fi3
· salary paid to the appellant cannot be said to be
wages, and so, s. 29 itself was inapplicable to him.
· T. Pnm Sagar It is unnecessary to .consider whether the salary paid
· v.
to the appellant amounts to wages or not, because,
The Standard in our opinion, the argument that the appellant was
. Va~uum Oil in the position of an employer is so clearly unsustainable
.·Company
that it is hardly necessary to examine it in detail.
· Madras and Even so, it may incidentally be observed that the
. Others
definition of wages prescribed by s. 2(18) is wide
· --
enough to take in the case of the appellant's salary.
<.
G(ljendragadkar
I
J.·
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. 4ll)
,_
(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 Addi.
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 J(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
-
•
•
5 S.C.R.
SUPREME COURT REPORTS
1043
been employed by the respondent in a position of
1963
management. It is difficult to lay down exhaustively
all the tests which can be reasonably applied in decid- T. Prem Sagar
ing this question. Several considerations would natuv.
rally be relevant in dealing with this problem. It The Standard
may be enquired whether the person had a power
Vacuum Oil
to operate on the bank account or could he make
Company
payments to third parties and enter into agreements
Madras and
with them on behalf of the employer, was he entitled
Others
to represent the employer to the world at large in
. - -
regard to the dealings of the employer with strangers, Ga1endragadkar
did he have authority to supervise the work of the
J.
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(l).
and The Salem
Sri Ramaswami Bank Ltd Salem v. The Additional
Commissioner for Workmen's Compensation, Chepauk,
Madras & Anr(ll.
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] I L.L.J 55.
(2) [1956] 2 L.L.J 254.
1044
· SUPREME COURT REPORTS
1963
behalf of the Company and was granting leave to
the staff of the Branch." Thus, it would be seen tha
T. Prem Sagar in addressing himself to the question raised for
v.
his decision, the Commissioner applied tests to which
The Standard no exception can be taken.
Having set out the
Vacuum Oil tests which had to be applied, he considered the
Company
evidence led by the parties before him and he recorded
Madras and his conclusions clearly and categorically in his order.
Others
He held that the appellant had no power of appoint-
. --
ment of labour, had no power to take disciplinary
Ga1endragadkar action against them, had no power to grant leave
J.
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 had no a
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
, .
he 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,
-11
he added that one of the questions which had to be
i
considered by him was whether the powers exercised· -4
. 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
'11!1111111111
1044
·, ~ SUPREME COURT REPORTS
.
,,
..
[1964]
'
·1963
behalf of the Company and was granting leave to
.--
the staff of the Branch." ·. Thus; it would be seen that
T. Prem Sagar in addressing himself to the question raised for
":'·
his decision, the Commissioner applied tests to which
·17ze Standard· no exception can be taken.
Having set out the
.Vacuum Oil tests which had to be applied, he considered the
Company
evidence led by the parties before him and he recorded
·_Madras and his conclusions clearly and categorically in his order.
Others .. ·
He held that the appellant had no power of appoint-
. :--. · · ment of labour, had no power to take disciplinary
Ga;endragadkar action against them, had no power to grant leave
J.
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 had 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
he had to obtain the approval of the·· Qperation
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 tllat connection,
t,
he added that one of the questions which bad 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
. ~xtent of the High Court's jurisdiction in entertaining
' ..
5 S.C.R.
SUPREME COURT REPORTS
lo45
petitions for writs of certiorari and held ' thai if
1963
the error in the judgment of the Commissioner
-
of Labour was shewn to be an error ·of law which T. P""!·Sagar
was manifest on the face of the record, it would be
v.
justified in issuing a writ. This view is undoubtedly The Standard
correct. _ The High Court was also right when it
Vaciium Oil
held that the question about the status of the appellant
Company
being a mixed question of fact and law, if it clearly
Madras _and
appeared from_ the impugned order that in dealing
Others
with the status of the appellant a patently erroneous
- '-
.
legal test was applied, that also would justify the Gajendragadkar
interference of the High Court under Art. 226. It
J.·
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 posit10n of management within the
meaning of s. 4(1J(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 .he 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 oflaw 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-cousidered order. He has taken
into account the oral evidence, the documents produced before him - and · has also examined the
I
1046
SUPREME COURT REPORTS
[1964 J
1963
probabilities of the case. In appreciating the effect of
the two statements on which so much reliance has
T. Prem Sagar been placed by Mr. Swaminathan and which, in
v.
substance, was the sole basis of the decision of the
The Standard Division Bench, we have to bear in mind the fact ·
Vacuum Oil that the said two sentences represent only one of the
Company
many reasons given by the Commissioner in support
Madras and of his conclusion, and that reason also was given
Other•
by him and probably had to be given by him, because
-.
it appears that one of the contentions raised by the
Gajendragadkarrespondent before the Commissioner was that the
J. .
appellant was clothed with managerial functions and
duties. In the application made by the respondent
under s. 5 J 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 the 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.