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TMI Blog1963 (12) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... tween 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 and it carried a salary of ₹ 900. At this time, as Operations Assistant the appellant was drawing ₹ 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. Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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. 52 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 stablishment. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 salary paid to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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([1958] 1 L.L.J 55). and The Salem Sri Ramaswami Bank Ltd Salem v. The Additional Commissioner for Workmen's Compensation, Chepauk, Madras Anr. [1956] 2 L.L.J 254) At this stage, it is necessary to examine h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 notic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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