T. Prem Sagar vs The Standard Vacuum Oil Company

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal Nos. 581 and 582 of 1963

Decision Date: 16 December 1963

Coram: P.B. Gajendragadkar, K.C. Das Gupta

In the matter titled T. Prem Sagar versus The Standard Vacuum Oil Company, the Supreme Court of India delivered its judgment on 16 December 1963. The bench comprised P.B. Gajendragadkar and K.C. Das Gupta. The petitioner, T. Prem Sagar, brought the suit against the respondent, The Standard Vacuum Oil Company, Madras, together with other parties. The case was reported in 1965 AIR 111 and 1964 SCR (5) 1030. The relevant statutory provision was Sections 4(1)(a) and 51 of the Madras Shops and Establishments Act, 1947. The factual background indicated that the petitioner had been appointed by the respondent as a Road Engineer and later promoted to Operations Assistant. In 1957 a dispute arose between the petitioner and the respondent. While receiving a salary of Rs 1000 per month, the petitioner was instructed to take leave. Upon reporting for duty, he was not permitted to resume his position as Operations Assistant; instead he was offered the post of Senior Operations Supervisor with a reduced salary of Rs 900. The petitioner refused the new position and his services were terminated without compliance with the provisions of Section 41(1) of the Act. The petitioner appealed to the Additional Commissioner under Section 41, contending that the termination order was invalid. The respondent argued that the Additional Commissioner lacked jurisdiction because the petitioner occupied a management position, which would place him outside the ambit of the Act. The Commissioner of Labour, invoking Section 51, held that the petitioner was not a manager and therefore fell within the Act’s coverage. The respondent subsequently filed a writ petition in the Madras High Court challenging the Commissioner’s order. When the matter was before the Additional Commissioner, the respondent asserted that the petitioner was an employer as defined in the Act, not an employee, a claim that was rejected and the termination order was set aside. The respondent again approached the Madras High Court by filing a writ petition, and a single judge heard both writ petitions together, dismissing them on the ground that the dispute required factual determination. The Division Bench of the High Court entertained Letters Patent Appeals, and the petitioner obtained a certificate of fitness from the High Court to appeal to this Court. The Supreme Court allowed the appeals and held that the High Court was not correct in concluding that the impugned order contained any apparent error of law, and therefore there was no justification for interfering with that order. The order of the Commissioner was described as elaborate and well‑considered, having examined documentary evidence and applied specific tests to ascertain whether a person occupied a management position.

In this case, the Court noted that the order issued by the Commissioner was elaborate and carefully considered. The Commissioner had examined the documentary evidence, including land records, and had already assessed the probabilities of the case. He formulated specific tests to decide whether an individual occupied a managerial position and then applied those tests to the facts before him. The Court observed that the appellant did not hold a managerial position and therefore did not fall within the exemption provided in section 4(1)(a). To determine whether a person is in a managerial role, the Court listed several factors: the power to operate on the bank account of the employer, the authority to make payments to third parties and to enter into agreements on the employer’s behalf, the right to represent the employer in dealings with outsiders, the authority to supervise clerks employed in the establishment, control over correspondence, the ability to make commitments on behalf of the employer, the power to grant leave to staff members, to conduct disciplinary proceedings against them, and the power to appoint or punish staff. The Court further stated that the amount of salary drawn by an employee is not decisive and may be irrelevant, although it can be considered as a theoretical factor. The Court then turned to the argument that section 51 rendered the Commissioner of Labour’s orders final and unchallengeable in any court, and therefore the High Court lacked jurisdiction to entertain the writ petition against those orders. The Court rejected that contention, explaining that when a writ proceeding reveals an error of law apparent on the face of the record, the appropriate remedy is to correct the error and remit the matter to the Special Tribunal for a decision consistent with law. The Court emphasized that it is improper for the High Court, while exercising its writ jurisdiction, to re‑examine the evidence and reach its own conclusion in matters that the legislature has assigned to specially constituted tribunals. The Court cited several authorities supporting this approach, including 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. v The Additional Commissioner for Workmen’s Compensation, Chepauk, Madras and another [1956] 2 L.L.J. 254. The judgment then proceeded to address the civil appeals numbered 581 and 582 of 1963, which were appeals from the order dated 18 February 1960.

In the two writ appeals numbered 139 and 140 of 1959 that were filed in the Madras High Court, counsel K.K. Venugopal and A.G. Ratnaparkhi appeared for the appellant in both matters, while S. Govind Swaminathan, P. Ram Reddy, A.V.V. Nair and R. Thiagarajan represented the respondent in both matters. The judgment was delivered on 16 December 1963 by Justice Gajendragadkar. The appeals raised a single legal question: whether the writ of certiorari that the Division Bench of the Madras High Court had ordered to be issued in allowing a Letters Patent Appeal filed by the respondent, Standard Vacuum Oil Company, Madras, was valid. The appellant, T. Prem Sagar, had been engaged by the respondent as Road Engineer at Madras on 5 February 1951. In January 1952 he was promoted to Operations Assistant with a salary of Rs. 450 per month and was placed on a six‑month probation. At the end of that period the respondent declared that the probation had been successfully completed. In October 1957, after a series of misunderstandings between the appellant and the respondent, he was again placed on probation in the same post, commencing on 1 October 1957 for another six months. When this second probation ended, the Operations Manager sent a letter confirming that the appellant had performed satisfactorily as a probationer. Nevertheless, the respondent alleged that the appellant had not shown sufficient capacity for further growth within the organisation and therefore offered him a newly created post of Senior Operations Supervisor, with a salary of Rs. 900. At that time the appellant, still serving as Operations Assistant, was drawing Rs. 1,000 per month. The respondent then instructed the appellant to take his accrued leave. Upon his return from leave and his reporting for duty, the management refused to allow him to resume work as Operations Assistant. The appellant declined to accept the Senior Operations Supervisor position, and consequently, on 2 May 1958, the respondent terminated his services with effect from 30 April 1958.

Following his termination, the appellant filed an appeal before the Additional Commissioner for Workmen’s Compensation under section 41 of the Madras Shops and Establishments Act, 1947 (No. 36 of 1947), hereinafter referred to as “the Act”. In that application the appellant contended that the termination order was invalid because the respondent had failed to observe the mandatory provisions of section 41 of the Act. The respondent responded by filing a petition before the Additional Commissioner, asserting that the Commissioner lacked jurisdiction to entertain the appellant’s appeal. The respondent’s ground was that the appellant was employed at the respondent’s head office in Madras in a managerial capacity, and therefore the provisions of the Act were inapplicable to his employment. This jurisdictional dispute formed the basis of the further proceedings before the Additional Commissioner.

In the course of the proceedings, the respondent filed an application before the Commissioner of Labour invoking section 51 of the Act, seeking a determination of the appellant’s status. Section 51 confers on the Commissioner the authority to decide questions of employment status, and that was the basis for the respondent’s recourse. The Commissioner conducted a hearing in which both the respondent and the appellant presented evidence, and on 12 January 1959 rendered a decision holding that the appellant was employed by the respondent but did not occupy a managerial position. Acting on that decision, the respondent instituted Writ Petition No. 521 of 1959 before the Madras High Court, challenging the Commissioner’s order. Simultaneously, the Additional Commissioner for Workmen’s Compensation took up the appellant’s appeal under section 41 of the Act. At the time the High Court petition was filed, the Commissioner’s order under section 51 had already become final and binding on the parties. Relying on that final order, the respondent advanced an alternative argument before the Additional Commissioner, contending that the appellant could not invoke section 41 because, in the respondent’s view, the appellant qualified as an “employer” under the Act rather than as an “employee.” The Additional Commissioner rejected that submission, held that the provisions of the Act were applicable, and on the merits found in favour of the appellant. He dismissed the respondent’s allegations concerning the quality and performance of the appellant’s work and consequently set aside the termination order dated 2 May 1958. The respondent appealed that decision by filing Writ Petition No. 573 of 1959 before the Madras High Court. Thus, two writ petitions arose, each naming as respondents the appellant, the Commissioner of Labour, and the Additional Commissioner for Workmen’s Compensation; the latter two are designated as respondents 2 and 3 in the present appeals, while the employer, Standard Vacuum Oil Company, is respondent 1. Both petitions were heard together by Justice Balakrishna Ayyar. The learned judge was inclined to conclude that the appellant occupied a managerial position, a view that diverged from the Commissioner’s finding. Nevertheless, he held that the issue was a factual question and that the High Court could not issue a writ of certiorari to overturn the Commissioner’s factual determination, even if he personally disagreed with it. Accordingly, he declined to grant the writ sought by the respondent in W.P. No. 521 of 1959, and as a result, both W.P. No. 521 of 1959 and W.P. No. 573 of 1959 were dismissed. It is an agreed point that if the respondent’s claim for a writ of certiorari in W.P. No. 521 of 1959 fails, its claim for quashing the Additional Commissioner’s order cannot succeed.

In the present case, because the respondent’s claim fails, its request to set aside the order issued by the Additional Commissioner for Workmen’s Compensation could not be sustained. The decision rendered by Balakrishna Ayyar J. was subsequently contested by the respondent, who filed an appeal under the Ultra Vires provision before a Division Bench of the Madras High Court. The Division Bench examined the matter and concluded that Balakrishna Ayyar J. had adopted an unduly narrow interpretation of the High Court’s jurisdiction under Article 226. The Bench further held that the Commissioner’s finding regarding the appellant’s status contained an error of law that was apparent on its face. Consequently, the Division Bench issued a writ of certiorari to correct the Commissioner’s finding and consequently allowed both writ petitions presented by the respondent. The appellant, dissatisfied with those decisions, brought the two present appeals before this Court, having obtained a certificate of appeal from the High Court. Before addressing the principal points of contention between the parties, it is necessary to refer to the relevant provisions of the pertinent Act. The Act received the assent of the Governor‑General on 2 February 1948 and came into force on 10 February 1948. Its purpose was to regulate conditions of work in shops, commercial establishments, restaurants, theatres and other similar establishments, and to serve certain additional purposes. Section 2 of the Act sets out definitions. Section 2(3) defines a “commercial establishment”. It is unnecessary to reproduce this definition because it is undisputed that the respondent’s office in Madras, where the appellant was employed at the relevant time, qualifies as a commercial establishment under the Act. Section 2(5) defines “employer” as a person who owns or has charge of the business of an establishment and includes a manager, agent or any other person who acts in the general management or control of an establishment. Thus, the term “employer” encompasses individuals who own the establishment, those who have charge of its business, as well as persons who act as manager or agent, or otherwise exercise general management or control. The control or management contemplated by this definition refers to overall, general management of the establishment and not to the management of individual sections, departments, subsections or subdivisions within it. Section 2(12) defines a “person employed”. Since the present appeals involve a commercial establishment, it is necessary to read subsection 2(12)(iii), which provides that a person employed, in the case of a commercial establishment other than a clerical department of a factory or industrial undertaking, means a person who is wholly or principally employed in connection with the business of the establishment, and it expressly includes a peon. The test for determining whether a person is employed in a commercial establishment is whether the person is wholly or principally employed in connection with the business of that establishment.

The Court explained that the test for deciding whether a person is employed in a commercial establishment is whether the person is wholly or principally employed in connection with the business of that establishment; once it is shown that the employment is wholly or principally related to the establishment’s business, the person falls within the statutory definition of an employee. The Court then turned to the exemptions set out in section 4 and noted that the case concerned the exemption described in section 4(1)(a), which provides that nothing in the Act applies to persons employed in any establishment in a position of management. A disputed issue between the parties was the precise meaning of “employment in the position of management.” The Court observed that if the appellant qualified as such a manager, section 41 would not apply to him and the Division Bench’s conclusion would be correct. The Court proceeded to examine section 41, which prescribes the procedure for dismissing employees to whom the Act applies. Section 41(1) requires that an employer may not dismiss a person who has been continuously employed for at least six months except for a reasonable cause and only after giving at least one month’s notice or wages in lieu of notice, unless dismissal is for misconduct proved by satisfactory evidence recorded at a proper enquiry. Sub‑section 12 gives the dismissed person the right to appeal, and sub‑section 3 states that the appellate authority’s decision is final and binding on both employer and employee. The Court recognised a common ground that the appellant’s dismissal did not comply with section 41(1). Consequently, if it is established that the appellant is an employee under section 2(12)(iii) and not an employer under section 2(5), and further that he does not occupy a managerial position exempted by section 4(1)(a), his dismissal is invalid and the order of the Additional Commissioner for Workmen’s Compensation stands correct. Only if the respondent can demonstrate that the appellant is either an employer or falls within the exemption of section 4(1)(a) could the writ petitions filed by the respondent succeed. Before addressing the merits, the Court noted the relevance of section 51, which provides that any question as to whether the provisions of the Act apply to an establishment or to a person employed therein shall be decided by the Commissioner of Labour, whose decision on such questions is final and not subject to judicial review.

According to the statute, the Commissioner of Labour is vested with the authority of a tribunal to decide questions that fall within the scope of section 51, and the law expressly declares that the Commissioner’s decision on those points shall be final and shall not be subject to questioning in any court of law. The first issue for determination, therefore, is the extent of the High Courts’ power to issue a writ of certiorari against orders such as the one issued by the Commissioner in the present matter. Counsel for the respondent, Mr Venugopal, argued that in addressing this issue the Court must keep in view the specific language of section 51, which states that the Commissioner’s decision on questions within his jurisdiction is final and not amenable to challenge in any court. While he acknowledged that a provision of this nature cannot oust the jurisdiction conferred on High Courts by article 226 of the Constitution, he maintained that the statutory declaration of finality should be considered when assessing the limits of the High Court’s jurisdiction and the scope of its interference under article 226. To support this position, he cited the Supreme Court’s decision in Rai Brij Raj Krishana and another v. S.K. Shaw & Brothers. In that case, the Court was interpreting the Bihar Buildings (Lease, Rent and Eviction) Control Act, particularly section 11, and Justice Fazl Ali observed that the Act had established a complete machinery for investigating the matters covered by it, and that the Controller’s order was expressly made final and subject only to the Commissioner’s decision. The Court was then called upon to decide whether the validity of such an order could be contested in a regular civil suit. In doing so, it distinguished between collateral facts, the proof of which confers jurisdiction on the special tribunal, and facts whose merits are left to the tribunal’s jurisdiction. Regarding the latter category, the Court endorsed the view expressed by Sir James Colville in the case of Colonial Bank of Australasia v. Willan, noting that an adjudication by a judge competent to hear the matter, if free from apparent defect, is conclusive of the facts asserted, and that a higher court will not set aside such an adjudication on the ground of an erroneous finding of an essential fact.

Sir James Colville, speaking in the earlier case, observed that when a judge who has authority over the subject‑matter makes an adjudication, that adjudication is to be taken as conclusive of the facts it contains if no defect is apparent on its face, and that the Court of Queen’s Bench will not, on a writ of certiorari, overturn such an adjudication merely because a fact, however essential, was incorrectly found. Applying that principle to the dispute before it, this Court held that even assuming the Controller had mistaken the question of non‑payment of rent – a point that was not clear – the Controller’s order could not be challenged in a civil proceeding. The Court noted that although Justice Fazl Ali had examined the scope of the High Court’s jurisdiction under Article 226, the matter arose on appeal from a suit that had been instituted specifically to contest the Controller’s findings and conclusions. The Court reiterated the well‑settled distinction between jurisdictional facts, which are collateral and whose proof confers jurisdiction on the special tribunal, and the facts that the tribunal decides on the merits. In that regard, the counsel for the appellant was correct in contending that the question of the appellant’s status had been left to the Commissioner of Labour under section 51, and that the High Court could correct any error made by the Commissioner in determining status only if the error was a legal mistake apparent on the face of the record. The counsel relied on the observations made by this Court in the case of Parry & Co. Ltd. v. Commercial Employees’ Association, Madras. In that decision, Justice Mukherjee stated that a writ of certiorari is not available merely because an inferior tribunal’s decision is erroneous, and further noted that, despite the relevant statutory provisions, a superior court is not wholly stripped of the power to issue a writ; it may do so only on the ground of a manifest defect of jurisdiction in the tribunal that made the order or a manifest fraud by the party procuring it. The argument advanced was that these observations imply that only jurisdictional errors or fraud can be corrected by a writ of certiorari. While it is true that Justice Mukherjee’s remark offers some support to that line of argument, the Court did not consider it to lay down an absolute rule that, in the absence of a proven jurisdictional defect or fraud, no writ of certiorari can be issued.

In this case the Court observed that after the decision rendered by this Court in the matter of Parry and Co. Ltd.(1) the question concerning the power of High Courts to issue writs of certiorari under Article 226 of the Constitution has been the subject of frequent discussion. The Court noted that the subsequent judgments of this Court have consistently held that a writ of certiorari may be granted when the order of a lower tribunal is shown to contain an error that is apparent on the face of the record. Referring to the earlier decision in Nagendra Nath v. Commissioner of Hills Division(2), the Court quoted the passage that an examination of the authorities of this Court, as well as the courts of England, makes clear that one of the grounds for invoking the jurisdiction of the High Court in a certiorari proceeding is an error of law that is evident on the face of the record, and that not every error of law or fact, which a superior Court could correct in its appellate or revisional capacity, gives rise to a writ of certiorari.

The Court further explained that it is difficult and, in fact, unwise to formulate a universal test for determining which errors of law qualify as “apparent on the face of the record.” The Court cited Syed Yakoob v. K.S. Radhakrishnan and  Ors.(1) to illustrate this point. Consequently, the Court rejected the submission of counsel for the petitioner, who argued that because no error of jurisdiction existed in the present matter and no allegation of fraud was made, the High Court could not have been justified in issuing the writ. The Court held that if the order of the Commissioner is shown to suffer from an infirmity in the form of an error of law apparent on the face of the record, the High Court would be empowered to issue a writ of certiorari even though Section 51 of the Act purports to render the Commissioner’s order final.

The discussion then turned to whether the High Court was correct in finding that the Commissioner’s order was affected by such an infirmity. In the writ proceedings the respondent raised two principal contentions challenging the validity of the Commissioner’s order. The first contention was that the appellant could not be regarded as an employee of the respondent and therefore did not fall within the definition provided in Section 2(12) of the Act, which defines a “person employed” for the simple reason that the individual belongs to the class of persons included in the definition of “employer.” The respondent argued that the appellant, being in a managerial position, effectively held the status of a manager in a limited sense and thus qualified as an employer. To support this argument, the respondent pointed out that several provisions of the Act did not apply to the appellant, and therefore it would be futile to describe him as a person employed by the respondent. The respondent further contended that the salary paid to the appellant could not be characterized as wages, and consequently Section 29 of the Act was inapplicable to him. The Court noted that it was unnecessary to examine in detail whether the salary constituted wages because the argument that the appellant was an employer was, in the Court’s view, plainly unsustainable. Moreover, the Court observed that the definition of wages in Section 2(18) is sufficiently broad to encompass the appellant’s salary. The respondent also argued that Sections 31, 32 and 33, which deal with overtime wages and related matters, would not be applicable to the appellant. Assuming that certain provisions of the Act might not apply to the appellant, the Court questioned how that would lead to the conclusion that the appellant becomes an employer under Section 2(5). The Court concluded that if the appellant is not an employer under Section 2(5), then he is plainly a person employed under Section 2(12), subject, of course, to a determination of the factual question.

The Court observed that the appellant’s remuneration could not be characterised as wages, and consequently section 29 of the Act did not apply to him. The Court considered it unnecessary to decide whether the appellant’s salary constituted wages, because the contention that he occupied the position of an employer was plainly untenable and did not merit detailed examination. Nevertheless, the Court noted incidentally that the definition of “wages” in section 2(18) is sufficiently wide to encompass the appellant’s salary. The respondent also argued that sections 31, which deals with overtime wages, and sections 32 and 33 would not be relevant to the appellant. Even if certain provisions of the Act were inapplicable to him, the Court saw no logical basis for concluding that the appellant thereby became an employer under section 2(5). If he is not an employer under that provision, he would nonetheless be a “person employed” under section 2(12), subject to the determination of whether his situation falls within the exemption specified in section 4(1)(a). The definition of “employer” in section 2(5) requires that the person exercise general management or control over the establishment. The appellant was employed at the respondent’s head office in Madras, and there is no dispute that he exercised no such control or general management of that establishment. The Court therefore regarded the respondent’s claim, raised for the first time in the writ proceedings before the High Court, that the appellant was an employer, as a frivolous plea that had not been presented before either the Additional Commissioner for Workmen’s Compensation or the Commissioner for Labour. The issue then turned to whether the appellant was an employee whose case fell within the exempted category described in section 4(1)(a). Section 4(1)(a) relates to persons employed in any establishment in a position of management, and the question became when a person can be said to be employed in such a managerial position. The Court acknowledged that it is difficult to formulate an exhaustive list of tests for this determination, but identified several relevant considerations. These include whether the individual possessed authority to operate the bank account, to make payments to third parties, to enter into agreements on the employer’s behalf, to represent the employer in dealings with outsiders, to supervise clerical staff, to control correspondence, and to make commitments on behalf of the employer.

In determining whether the employee fell within the category described in section 4(1)(a), the Court noted that a series of tests could be applied. These tests included whether the employee could, on behalf of the employer, grant leave to staff members, conduct disciplinary proceedings, appoint or punish members of the staff, operate on the bank account, make payments to third parties, and enter into agreements with those third parties. The Court observed that similar inquiries might also be relevant to ascertain the employee’s status under the statutory provision. The Court further observed that the amount of salary drawn by the employee might not be decisive, although it could be considered in a theoretical sense as a relevant factor, as discussed in 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 the next stage, the Court examined the approach adopted by the Commissioner of Labour. The Commissioner began his analysis by referring to the two Madras decisions previously cited and stating that, as decided by the Madras High Court, it was necessary to determine whether the appellant occupied a managerial position 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 behalf of the Company and was granting leave to the staff of the branch” (1) [1958] 1 L.L.J 55. (2) [1956] 2 L.L.J 254. Consequently, the Commissioner applied these tests without exception. After setting out the relevant criteria, the Commissioner examined the evidence presented by both parties and recorded his conclusions in a clear and categorical manner. He held that the appellant possessed none of the following powers: the authority to appoint labour, the authority to take disciplinary action, the authority to grant leave to subordinates, discretion to incur expenditure without sanction from the General Manager, a power of attorney to enter into agreements with third parties on behalf of the Company, the power to bind the Company by his acts, the authority to operate upon the Company’s bank account, or the power to formulate policy for the Company. Moreover, the appellant’s work was subject to the overall supervision of the Operations Manager, and he was required to obtain the Operations Manager’s approval for almost all matters. Having discussed the entire evidential record and stated definite findings, the Commissioner observed in 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 he added that one of the questions to be considered was whether the powers exercised by the appellant were managerial with reference to the Head Office of the Company.

In this case, the Court considered whether the appellant exercised managerial powers with reference to the Head Office of the Company. The Division Bench based its decision on two statements made by the Commissioner in his order and concluded that the Commissioner of Labour’s order was patently and manifestly erroneous on its face. The Division Bench examined the relevant judicial decisions concerning the scope of the High Court’s jurisdiction to entertain petitions for writs of certiorari. It held that when the judgment of the Commissioner of Labour contains an error of law that is evident on the face of the record, the High Court may rightly issue a writ. The Court affirmed that this view is correct. The High Court also held that the question of the appellant’s status is a mixed question of fact and law, and that if the impugned order shows that a clearly erroneous legal test was applied to determine the appellant’s status, such error would justify interference by the High Court under Article 226. In that context, the High Court observed that the manifest error in the impugned order was the Commissioner’s reasoning that “only when an employee is exercising managerial powers in relation to the head office of the Company where he was employed can he be said to be employed in a position of management within the meaning of section 4(1)(a) of the Act.” This conclusion rested on the two statements noted earlier in the impugned order. Counsel for the respondent, Mr. Swaminathan, conceded that the Commissioner correctly listed the tests to be applied to determine the appellant’s status and did not commit an error of law in that enumeration. However, counsel argued strongly that the Commissioner erred in applying those tests because he focused mainly on whether the appellant was vested with managerial powers concerning the affairs of the Head Office at Madras, and that this focus amounted to a manifest and patent error in the Commissioner’s conclusion. The Court is not persuaded by that argument. The Commissioner’s order was elaborate and carefully considered; it took into account oral testimony, documentary evidence, and also evaluated the probabilities of the case. In assessing the impact of the two statements that have been heavily relied upon by counsel and that formed, in substance, the sole basis of the Division Bench’s decision, the Court must remember that those two sentences constitute only one of many reasons provided by the Commissioner to support his conclusion.

In reaching its conclusion, the Court observed that the reason given by the Commissioner was necessary because one of the contentions raised by the respondent before the Commissioner was that the appellant possessed managerial functions and duties. The respondent, in the application filed under section 51 before the Commissioner, specifically stated in paragraph three that the appellant occupied a management position and that “his duties and functions were managerial.” Since this allegation was expressly made, the Commissioner was obliged to consider the managerial aspect of the case. Accordingly, the Commissioner noted that the appellant did not have managerial functions, duties or authorities. The Court considered it would be unfair to declare that the Commissioner’s entire approach was vitiated merely because he focused on the question of managerial functions and authority and did not apply the other tests that he himself had set out in the earlier part of his order. Consequently, the Court held that the Division Bench was not correct in concluding that the impugned order suffered from any error of law apparent on the face of the record.

The Court further pointed out that even if the Division Bench had been right in holding that the order should be corrected by issuing a writ of certiorari, it would have been preferable for that Court not to make its own findings on the evidence or to pass its own substantive order. In writ proceedings, when an error of law obvious on the face of the record is discovered and a writ is issued, the usual procedure is to correct the error and remit the matter back to the special Tribunal for a decision in accordance with law. The Court therefore considered it inappropriate for the High Court, while exercising its writ jurisdiction, to examine the evidence independently and to reach its own conclusions in matters that the legislature has assigned to specially constituted tribunals. As a result, the appeals were allowed, the orders passed by the High Court in the two writ petitions filed by the respondent were set aside, and those writ petitions were ordered to be dismissed with costs. The appeals were consequently allowed.