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Standard Vacuum Oil Co., Madras Vs. the Commissioner of Labour, Madras and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai High Court
Decided On
Case NumberWrit Petn. Nos. 521 and 573 of 1959
Judge
Reported inAIR1960Mad288; (1959)IILLJ771Mad
ActsMadras Shops and Establishments Act, 1947 - Sections 2(12), 3, 4(1), 7, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 29 to 40, 41, 46, 51, 52, 53, 54, 56, 67, 71 and 73; Factories Act - Sections 3 and 95; Payment of Wages Act - Sections 3, 4, 5, 6, 7, 8, 10, 11, 12, 13 and 14; Employers and Workmen Act, 1875; Workmen's Compensation Act, 1897
AppellantStandard Vacuum Oil Co., Madras
RespondentThe Commissioner of Labour, Madras and anr.
Cases Referred and Joseph Sam v. Caltex
Excerpt:
- - can we conceive of provisions of this kind namely fixing hours of work, weekly holidays, spread over of work, ventilation, deduction from wages and the like ever being made applicable to any category of employees other than wage earners? they have nevertheless been included because the legislature considered that in view of their relatively weak economic position vis-a-vis the employer they need much the same measure of assistant and security as wage earners. it gives them a sort of state insurance, it being assumed that they are either not sufficiently intelligent or not sufficiently in funds to insure themselves. in no sense can such a principle extend to those who are earning good salaries. like the decision in (1956)2mlj254 ,which rajagopalan j. if an individual has officers.....order(1) in february 1951, prem sagar, the second respondent, was holding a gazetted appointment with the government of india as an assistant engineer. on 5-2-1951, he entered the service of the standard vacuum oil co., madras, as a temporary roads engineer on a salary of rs. 350. on 1-6-1952 he was promoted as operating engineer on a salary of rs. 450 per month. in 1956 the designation of the post which he held was changed from operating engineer to operations assistant. but that did not affect him in any way. by the end of february, 1958 he was drawing a salary of rs. 1,000/- per month.(2) in the affidavit filed in support of the petitions it is alleged that for sometime prior to august 1957, the work of the second respondent was unsatisfactory.'he was un-co-operative, malingering and.....
Judgment:
ORDER

(1) In February 1951, Prem Sagar, the second respondent, was holding a gazetted appointment with the Government of India as an Assistant Engineer. On 5-2-1951, he entered the service of the Standard Vacuum Oil Co., Madras, as a temporary Roads Engineer on a salary of Rs. 350. On 1-6-1952 he was promoted as Operating Engineer on a salary of Rs. 450 per month. In 1956 the designation of the post which he held was changed from Operating Engineer to Operations Assistant. But that did not affect him in any way. By the end of February, 1958 he was drawing a salary of Rs. 1,000/- per month.

(2) In the affidavit filed in support of the petitions it is alleged that for sometime prior to August 1957, the work of the second respondent was unsatisfactory.

'He was un-co-operative, malingering and generally his productive capacity was below standard. This was made known to him, in August 1957 and he was advised that improvement was necessary. In September 1957, his work was again reviewed and still found unsatisfactory. In view of this continued unsatisfactory performance he was placed on probation for a period of six months commencing from 1-10-1957. In February 1958 his progress was again reviewed and it was found that he did not have the capacity to exercise the full responsibilities of an operations Assistant. However, the calibre of his work was such as to indicate that he could probably satisfactorily handle the next lower position and he was accordingly offered a position as a Senior Operations Supervisor on a salary of Rs. 900 p.m. This decision was communicated to him on 21-2-1958. The second respondent did not object to the decision and went on leave till 30-4-1958. He however claimed to rejoin duty on 2-5-1958, as 'operative Assistant' and in spite of being told he could not do so, persisted in his attitude. Since the second respondent would not accept the employment offered to him, his services were terminated with effect from 30-4-1958.'

(3) Against the order terminating his services the second respondent filed an appeal before the Commissioner for Workmen's Compensation under S. 41 of the Madras Shops and Establishments Act, 1947. The petitioner company contended that the appeal was not maintainable as the second respondent held a position of management and was for that reason excluded from the categories of persons entitled to the protection conferred by the Act. Under S. 51 of the Act, the question was referred to the Commissioner of Labour, Madras. He held an enquiry and by an order which he made on 12-1-1959 he held that the second respondent did not fall within the category of persons referred to in S. 4(1)(a) of the Act and that therefore he was entitled to the protection conferred by the other provisions of the Act. W. P. No. 521 of 1959 has been filed for the issue of an appropriate writ to quash this decision of the Commissioner of Labour.

(4) After the Commissioner of Labour had given his decision under S. 51 of the Act, the Additional Commissioner for Workmen's Compensation completed his enquiry into the merits of the case and held that the termination of the services of the second respondent was not for a reasonable cause. In the result, the order of the Company terminating the services of the second respondent was set aside. W. P. No. 573 of 1959 has been filed for the issue of an appropriate writ to quash this decision of the Additional Commissioner for Workmen's Compensation, Madras.

(5) The first question that has to be decided is whether the Additional Commissioner for Workmen's Compensation had jurisdiction in respect of the dispute between the petitioner company and the second respondent. In other words, is the second respondent a person entitled to the protection of the Madras Shops and Establishments Act, 1947. This question necessarily calls for an enquiry into what the learned Advocate General called the coverage of the Act. He argued that matter very fully and very elaborately and I shall try to summarise his contentions as briefly as practicable.

(6) In order to ascertain what the coverage of the Act is it is legitimate to examine its provisions in details and seek to find out to what classes or categories of persons those provisions are properly applicable. It would also be proper to go into what the learned Advocate General called the ancestry of the Act. When we do that we get this result. Section 3 of the Factories Act which refers to 'time of day' is practically reproduced in S. 3 of the Madras Shops and Establishments Act. Section 51 of the Factories Act refers to weekly hours of work and S. 52 to weekly holidays. Section 53 provides for compensatory holidays.

Section 54 fixes the maximum number of hours of work during which any one can be allowed to work in a factory. Section 56 refers to spread over of work. Section 67 prohibits the employment of young children. Section 71 fixes the working hours for children. Section 73 requires the maintenance of a register of child workers. Provisions corresponding to all these are incorporated in Ss. 7, 13, 11, 16, 9, 14, 10, 15, 17, 18 and 19 of the Madras Shops and Establishments Act. Section 11 of the Factories Act contains provision relating to cleanliness in factories. Section 13 provides for ventilation and S. 17 relates to lighting. Section 38 specifies the precautions that have to be taken against fire. Provisions corresponding to these are to be found in Ss. 20, 21, 22, and 23 of the Madras Shops and Establishments Act. Chapter VIII of the Factories Act provides for annual leave with wages. Provisions corresponding to these are incorporated in Chapter VI of the Madras Shops and Establishments Act.

When we turn to the Payment of Wages Act, we find that S. 14 provides for the appointment of inspectors to enforce the provisions of the Act. Section 3 fixes the responsibility for the payment of wages on the persons defined as 'employer.' S. 4 fixes wage-periods. Section 5 specifies the time at which or before which wages should be paid. Section 6 requires that wages should be paid in current coin or currency notes. Section 7 specifies what all deductions it is permissible to make from wages. Section 8 specifies under what conditions fines may be imposed and what the maximum amount of fine can be. Section 10 enables deductions to be made from wages for damage or loss occasioned by a workman. Section 11 permits deduction for services that might be rendered. Section 12 provides for recovery of advances that might have been made and S. 13 provides for deductions of moneys payable to co-operative societies. Section 95 of the Factories Act provides penalties for obstructing the Inspector. Provisions corresponding to these are to be found in Ss. 29 to 40 and 46 of the Shops and Establishments Act.

(7) The learned Advocate General asked: can we conceive of provisions of this kind namely fixing hours of work, weekly holidays, spread over of work, ventilation, deduction from wages and the like ever being made applicable to any category of employees other than wage earners? Such provisions are wholly inappropriate in relation to persons who maybe properly described as salaried employees and that too employees in the category to which the second respondent belonged.

(8) The Payment of Wages Act and the Factories Act were both of them intended to apply only to the class of persons who are generally described as wage earners. Though wages and salaries are both remuneration and therefore in individual cases it may be difficult to say whether the earnings of an individual should be properly described as wages or as a salary, still in the abstract there is a recognisable difference between the two concepts. In the absence of clear words to the contrary it would be right to assume that they were intended to apply only to the same class of persons, viz., the class of wage earners employed in establishments to which the Wages Act and the Factories Act apply. To these categories the Madras Shops and Establishments Act added a further category, viz., persons belonging to the clerical establishment.

Their remuneration would not ordinarily be described as wages but as salaries. They have nevertheless been included because the legislature considered that in view of their relatively weak economic position vis-a-vis the employer they need much the same measure of assistant and security as wage earners. The Act, however, was never intended to apply to persons in the higher income brackets. That will become manifest the moment we examine the various sections of the Act. No one would think of applying some of the provisions of the Act relating to the hours of work in a particular day the spread over of work, holidays and sick leave to persons in the position of the second respondent.

(9) Dealing with the argument that the definition of the expression 'person employed' in section 2(12) of the Madras Shops and Establishments Act, is wide enough to include a person in the position of the second respondent, the learned Advocate General referred to certain decisions of the Courts in England where notwithstanding the apparent amplitude of the definition of similar expressions courts have held them to be inapplicable to particular individuals or classes of individuals. And he suggested that a similar approach would be the proper one to make in respect of this Act also. Thus in Jackson v. Hill, (1884) 13 QBD 618, it was held that a person who was employed to assist a firm as a practical working mechanic in developing ideas that the firm might wish to carry out, and to himself originate and carry out ideas and inventions suitable to the business of the firm was not a mechanic or workman within the Employers and Workmen Act, 1875. In Simpson v. Ebbw Vale Steal Iron and Coal Co., 1905 1 K. B. 453, it was held that a certificated manager of a coal mine who was paid a yearly salary and who, although his duties required his presence in the mine, was not required to engage in manual labour, was not a 'workman' within the meaning of the Workmen's Compensation Act, 1897. On page 458, Collins M. R. observed:

'Now, does the Act itself give any indication of where the line is to be drawn? On going through the Act, it is obvious that its whole scheme rests on the fundamental interpretation that an ordinary person would put on the word 'workman'. It presupposes a position of dependence; it treats the class of workmen as being in a sense 'inopesconsilli' and the legislature does for them what they cannot do for themselves; it gives them a sort of State insurance, it being assumed that they are either not sufficiently intelligent or not sufficiently in funds to insure themselves. In no sense can such a principle extend to those who are earning good salaries. It is of course very difficult to draw the exact line, but it is easy in a particular case to say on which side of the line it falls......... Where then is the limit to the drawn? In my opinion it should be so drawn as to embrace the classes whose remuneration can properly be described as wages. The popular meaning must be given to a definition where we are confronted with such an expression as 'wages', and we must interpret the Act as applying to persons whom ex hypothesi the legislature regards as not being in a position to protect themselves.'

(10) Bagnall v. Levingstein Ltd., 1907 1 KB 531, was a case in which a person who had taken a degree in science entered the employment of a dye and chemical manufacturing company, under a written agreement for five years' service and upon various terms regarding salary, commission etc., applicable to a skilled expert in the business of the employers. His employment involved manual labour on his part. In the course of his employment he met with an accident which caused his death. It was held he was not a workman within the meaning of the Workmen's Compensation Act, 1897. See also Hartley v. Mayoh and Co., 1954 1 All ER 375. I recognise that there is very considerable force in this line of reasoning which the learned Advocate General urged, and, if the matter had been re integra I might probably have agreed with him. But then, there are two decisions of this court which are directly applicable.

The first is reported in Ramaswami Bank v. Addl. Commr. for Workmen's Compensation, 1956 2 Mad LJ 254. The facts of that case were these: The second respondent before this court was employed as the Secretary of the Salem Sri Ramaswami Bank Ltd. when The Reserve Bank carried out an inspection of this bank in 1951 certain irregularities were noticed. On 11-2-1953 one of the directors of the bank was placed in charge of the duties of the Secretary and the second respondent was directed to work as a Cashier in a branch of the bank. Subsequently he went on leave. When he returned from leave certain charges were framed against him and he was dismissed. He then appealed to the Additional Commissioner for Workmen's Compensation. The Commissioner held that the appellant before him that is to say the second respondent before this court, was not a person in a position of management within the meaning of S. 4(1)(a) of the Shops and Establishments Act. The correctness of that finding was challenged by a writ petition in this court. That petition was dismissed. But the point to the noticed is that the entire case proceeded on the basis that the second respondent before this court was a 'person employed' within the meaning of S. 2(12) of the Act.

(11) In other words, that decision assumed that the Act would apply not merely to persons who would be popularly called workmen but to others also. The learned Judge observed,

'There was no dispute before the Additional Commissioner or before me that the second respondent was a 'person employed' within the meaning of S. 2(12) of the Act.'

(12) The second case is reported in Chandra v. Commissioner for Workmen's Compensation, : AIR1957Mad668 . There it was held that the manager of a Madras branch of Messrs. Kemp and Co. Ltd., whose head office was in Bombay fell within the scope of S. 4(1)(a) of the Act. Like the decision in : (1956)2MLJ254 , which Rajagopalan J. had given this also proceeds on the basis that but for the fact that the person concerned fell within the scope of S. 4(1)(a) he would be a person within the meaning of S. 2(12) of the Act.

(13) In respect of both these cases, the learned Advocate General argued that the aspect of the matter which he placed before me was not put before the court and so was not considered by the court. That appears to be correct enough. But then the fact remains that both the cases proceed on the basis that the Act will apply to all employees unless they are taken out of the Act by S. 4. The latter of the two cases was decided by a Bench of this court, and I am bound by it. I must therefore proceed on the basis that the petitioner would be a person employed within the meaning of the Act.

(14) The next question therefore is, does he fall under S. 4(1)(a) which runs:

'Nothing contained in this Act shall apply to (a) persons employed in any establishment in a position of management.'

Both the Commissioner of Labour, and the Additional Commissioner for Workmen's Compensation held that the second respondent was not a person in a position of management. The correctness of that finding was challenged before me. I agree that in order to be in a position of management it is not necessary that the individual should be at the top of the heirarchy or that he should have absolute power in any respect; for except in a dictatorship there is always some one over everybody. It is not even necessary that the individual should be in sole control or charge of a territory or branch of an organisation or of a department of that organisation. That control or charge may be vested in a committee or board, or it may be divided among a number of individuals.

Section 4(1)(a) itself contemplates that there can be a distribution of managerial power because it speaks of persons employed in an establishment in a position of management. It will be noticed that the words used are not 'the manager of an establishment' or 'a person employed in an establishment as its manager', but 'of persons employed in any establishment in a position of management.' The words postulate that there can be a plurality of persons in an establishment who are in a position of management.

(15) Though the section speaks of persons in a position of management, it does not say of what they have to be in management; we are left in this respect to our own devices. But, it is not difficult to see that the management which the section envisages and with which a person may be entrusted may be in respect of matters pertaining to a particular area or territory, or it may be in respect of matters falling within a department sector or compartment. It would not be right to say that a person is not in a position of management unless he has jurisdiction over any definite territory; managerial position can be attained also inside a department. Let us take some familiar examples.

I do not suppose that anybody will controvert the position that the Tehsildar of a taluk is a person in a position of management. Inside the limits of his taluk he has to attend to various affairs of Government and get them done. He has a number of subordinates under him. He has power to take certain decision and he has also the responsibility therefor. That would be a simple case of managerial position in relation to a territorial area. An Executive Engineer of the Public Works Department on the other hand would be in a position of management in relation to the affairs of his department. This may be confined to a particular project or extent to the whole of a district or even a number of districts.

That would depend upon the set-up of the department. Another illustration that I recall is that of the officer who was the Director of Land Records. He had only a small department to look after. But then he had to look after that department in every district of the State. Another example of a person in a position of management would be the Captain of a ship. He has a number of men and officers under him. He has to attend to various matters. He has to take decisions in respect of various things and he has the responsibility therefor. It is not necessary that in order to be in a position of management the individual concerned should have absolute power in respect of any matter. An appeal may lie from his decisions or he may have to obtain previous sanction in certain matters.

It is not necessary again that before a person can be in a position of management he should have the power of making appointments. An Assistant or Deputy Superintendent of Police in charge of a sub-division would certainly be in a position of management. But then he does not have the power to appoint any body; even the selection of a Constable is made by the District Superintendent. Nor again is it necessary that before a person can be said to be in a position of management he should have the power to dismiss any employee. In certain Indian States which merged into the Indian Union it was only the High Court concerned which could dismiss even process servers attached to courts. From that it does not follow that none of the authorities subordinate to the High Court, District judges, Sub Judges and Munsifs was in a position of management. If an individual has officers subordinate to him whose work he is required to overlook, if he has to take decisions and also the responsibility for ensuring that the matters entrusted to his charge are efficiently conducted and an ascertainable area or section of work is arranged to him, one would ordinarily be justified in saying that he is in a position of management.

(16) Nor, what exactly was the position of the second respondent? The Operations Manager who was examined by the Commissioner of Labour deposed.

'In regard to the people under him Mr. Sagar's duty was supervision. He also delegated a certain amount of responsibility and authority to the supervisors under him. Under the heading 'construction' he was responsible for carrying out construction of depots, petrol pumps, erection of tanks and also maintenance and repair works for the various company's buildings and other structures. Mr. Prem Sagar had authority to spend a maximum of Rs. 2500 on budgeted jobs without reference to anybody else in our company. He also had the authority to spend to a maximum of Rs. 1000 (unbudgeted) for anyone job without reference to the Operations Manager. He could exercise this authority for each item of work. Mr. Sagar was responsible for all the correspondence work in connection with the construction work.

He was also responsible for correspondence with the Government in connection with his duties. The budget is in two categories, one is capital and the other is expense. He was responsible for preparing the budget which requires planning. He was responsible for drafting plans and designs. He had about six or seven draftsmen under him. Mr. Sagar was the authority to engage casual labour. Mr. Prem Sagar was responsible for taking disciplinary action against all those who were working under him. He could also dismiss them........... For the Madras territory there is a central office in Madras headed by a Manager. Under the Manager there are four departments (1) Operation, (2) Sales, (3) Accounts, and (4) Employees Relations. Each department has a departmental Manager. All the four departments are in the Central Office.

Sri. P. Sagar was working under the Operations Manager. In the Madras Territory there were about 36 depots, about 7 aviation service stations, about 4 sales offices and 3 terminals. The Operations Assistant is in complete charge of the depots. There were four Operation Assistants. Each depot is in charge of a depot superintendent. There were about 16 assistants in the same grade as Prem Sagar in the Central Office. Above him there were 3 Assistant Managers, 4 (departmental managers and 1 manager. I am the departmental head for Operations Department. I issue orders to the operations assistants and terminal superintendents........... The Operations Assistant can select and recommend supervisors. My statement in chief examination that operation assistant appointing supervisors is not correct.

I was not incorrect when I said that operations Assistant could appoint pump fitters. To my knowledge draftsmen have to be appointed by the Operations Manager or the Manager but these powers can be delegated to the Operations Assistant. Standard works description sheets lay down the powers given to Operations Manager and operations Assistants among others. Operations Manager can delegate his powers to Operations Assistants. This delegation can b e given orally or in writing. I have been acting operations Manager only for the last tow weeks and so far I have not delegated my appointing powers to any of my assistants. When I was Operations Assistant these were delegated to me a number of times. I have exercised the powers of appointment, I have appointed clerks and watchmen...... Ex. R. 6 refers only to capital expenditure whereas what I said before referred to expense budget. Mr. Prem Sagar had the authority to spend Rs. 2500 on budgeted items and Rs. 1000 on non-budgeted items.'

(17) Mr. K. S. Rangaraj who was the Operations Manager at Madras between October 1956 and 1958 deposed before the Additional Commissioner for Workmen's compensation that the second respondent and his immediate supervisors held an enquiry into the conduct of a section supervisor in Coimbatore.

(18) The second respondent deposed before the Commissioner of labour as follows:

'As Operations Assistant I was in charge of budget construction phases of operations etc. Budget is a collective responsibility of all the departments. All proposals are channelled through the Operations Manager for submission to the General Manager through the Territory Manager. During my services as Operations Assistant I never appointed any employee. I never took any disciplinary action as I did not have the powers to do so. Whenever there was trouble I recommended disciplinary action to the Operations Manager who is in charge of the department. I never engaged casual labour............... I have never entered into any agreement with any third party on behalf of the Standard Vacuum Oil Co. The two clerks, supervisors and myself can write letters and individually sign them if there is correspondence. I cannot take any decision as to where a petrol bunk is to be situated or the amount to be sanctioned........................ As Roads Engineer I did not know anybody working under me but as Operations Assistant I had several people working under me. When I was Operations Assistant, I was given lunch facilities with the executive staff of the head office.

I was provided with transport as members of the executive staff to and from office. I was also entitled to one month's privilege leave and I could accumulate it upto two months........... I was in charge of three Operations Supervisors. I was in charge of 16 section supervisors. I was in charge also of 35 pump fitters, 4 pump painters, 5 draftsmen, 4 tracers and 2 clerks. All the correspondence was handled by me or by any supervisors. If an employee working under me wants to resign he writes to the Operations Manager or to me but the decision on it can be taken only by the Operations Manager. Ex. P. 3 is initialled by me. Ex. P. 4 was addressed to me by the pump fitter. Normally I receive such letters. I have held enquiries about disciplinary action against employees and made recommendations.

I remember that in one instance my recommendation for disciplinary action was turned down by the Operations; Manager.......... Ex. P. 6 refers to another enquiry that I held, in which I recommended dismissal. The above papers are addressed to the Operations Manager. I had full discretion of granting or withholding leave subject to the approval of the Operations Manager and I cannot grant any leave more than they are entitled for. Ex. P. 7 and P. 8 show in one case granting of leave and in another case withholding leave by myself. On quite a few occasions I acted for the Operations Manager. In consultation with Operations Manager I could transfer workers. I signed such papers. The advice to the pay roll section was signed by the Operations Manager. I have issued Ex. P. 9 to Sri. P. P. Menon, Section Supervisor.

When I went on tour I inspected pump sites and put up recommendations as to whether a site chosen by the sales section was suitable or not from an engineering point of view. I or people under me approve of all site plans for new construction in the Madras area. I discuss and decide the quotations regarding the painting and settle the quotations to be approved by the Operations Manager.

........... I was carrying on correspondence regarding the Vizag lease and finally it was taken over by another Operations Assistant. I did not sign any leave in this connection as I had no power of attorney. At the time of termination of my services I had power to spend up to Rs. 1000 on budgeted items only. Mr. Rengaraj the Operations Manager removed the power of spending which I had originally. I do not know whether I am entitled to overtime wages as operations Assistant. The initials on the endorsements on the last paragraph in Ex. P. 13 was by Mr. E. K. Sarma, another Operations Assistant. I had to obtain the permission of the Operations Manager for effecting transfer in the operations department.'

(19) One point has to be made clear here. From the evidence of some of the witnesses the impression might be gathered that the clerks themselves could carry on correspondence. But, it was explained that such correspondence would relate only to routine matters on the basis of orders already passed. In other cases where the evidence is apt to produce the impression that the clerks were in charge of the correspondence, it was explained that they merely signed fair copies.

(20) The reasons given by the Commissioner of Labour for taking the view that the second respondent was not in a position of management do not appear to me to be correct or adequate. He appears to have been making a mistake in assuming that the position of the second respondent was much the same as that of clerks in relation to correspondence. He seems to have thought further that since the supervision of the second respondent was subject to the overall supervision of the Operations Manager his position would not be that of a person in management. I do not see how this can be. A District Superintendent of Police for example has to inspect the police stations in his district. But the Deputy Inspector General and the Inspector General supervise the work of the District Superintendent. That does not mean that the District Superintendent is not in a position of management. The Commissioner of Labour also appears to have considered that the circumstance that the second respondent had no power of attorney or authority to enter into agreements on behalf of the management made it clear that he was not in a position of management. But such a power is not necessary ingredient of management. In the familiar case of Tahsildars they do not have any of these powers; nor even Sub-Collectors or Deputy Collectors.

(20a) The Commissioner of Labour remarked:

'As regards payment and authority to incur expenditure his powers were limited.'

But then, such is the case in every well-ordered administration. The limits within which a Sub-Divisional Officer or a District Officer can incur expenditure is always laid down by the rules. The Commissioner also appears to have been impressed by the fact that the second respondent could not incur a single rupee of expenditure on capital account without prior authority. But then he could spend up to Rs. 1000 on unbudgeted items.

(21) That he could not grant leave to his staff as he liked does not again militate against his having been in a position of management. The Commissioner of Labour remarked,

'the respondent had no powers of appointment, dismissal or punishment either.'

This again is not decisive. A deputy Superintendent or an Assistant Superintendent of Police cannot even dismiss a Constable; nor can they appoint one. They can hold enquiries and recommend punishments. The Commissioner of Labour remarked,

'the respondent could not lay down any policy but could only execute the orders of the operations manager................'

Such again is the position is most large departments. When we try to get an overall picture of the position of the second respondent in the company's organisation and it seems to me that is how we must look at the matter and compare it with the position of Engineers in Government service I would place him in the category of executive Engineers or even one step above them. That surely is a position of management.

(22) On this conclusion, however, the petitions cannot be disposed of.

(23) All Tribunals acquire jurisdiction to act only when certain facts exist. Initially the responsibility of deciding whether those facts exist would rest on the tribunals themselves. Proceeding from them the enactments setting up the Tribunals may lay down that the decisions of the Tribunals themselves whether on the facts proved they have jurisdiction or not shall be final and conclusive. On the other hand, the statutes may not attach any such finality to the decision of the Tribunals on this point.

(24) In England it has been held that though a writ of certiorari can issue in the latter class of cases such a writ cannot issue in the former class of cases. Mr. Venugopal, the learned advocate for the second respondent argued that Ss. 41 and 51 of the Madras Shops and Establishments Act have the result of placing the decision of the commissioner of Labour in the former category of cases and that therefore a writ cannot issue. I am unable to accept this contention. It is opposed to the decisions in Sankaranarayana In re, : AIR1953Mad376 and Joseph Sam v. Caltex (India) Ltd., Madras : (1957)IILLJ272Mad . proceeding on the basis that the decision of the Commissioner of Labour is liable to be quashed, is the present case one in which, according to established principles, this court will be justified in interfering. If the principle for which the learned Advocate General contended, viz., that a person in the position of the second respondent is wholly outside the ambit of the Shops and Establishments Act were right then the Commissioner of Labour would have made a mistake of law which may be said to be a mistake apparent on the face of the record and which would have justified this court in interfering. But then through as I said before there is a good deal of force in the reasoning of the learned Advocate General on this point and I might have accepted that reason but for the two decisions of this Court which I have already referred to, the legal position as understood now in this court is that a person in the position of the second respondent would be entitled to the protection of the Act unless he falls within the scope of S. 4(1)(a), i. e., unless he was in a position of management.

Whether a person is in a position of management or not is mostly a question of fact. Even if it is a mixed question of law and fact it would be more a question of fact than a question of law. It is true that I have expressed the view that the second respondent was in a position of management. But then on such a question the commissioner of Labour and the Additional Commissioner for Workmen's Compensation were entitled to come to their own findings. Merely because my view happened to differ from theirs I would not be justified in quashing their orders.

(25) It is impossible to say that in the present case the Commissioner of Labour or the Additional Commissioner for Workmen's Compensation acted beyond their jurisdiction. Section 51 specifically provides that if any question arises whether any of the provisions of the Act applies to a person employed in any establishment, it shall be decided by the Commissioner of Labour. That section has thus given him express jurisdiction in that regard. That being so, I can interfere only if there is a manifest error apparent on the face of the record.

(26) The decision of the Commissioner of Labour proceeds on a consideration of the scope of the Act, which is assumed to be correct in both, : (1956)2MLJ254 and : AIR1957Mad668 . I cannot therefore say that there is an error of law in his decision. The most that I can say is that he has taken a view of the facts different from that which I am disposed to take. That will not justify interference.

(27) In the result, both these writ petitions are dismissed with costs. Advocate's fee Rs. 125 in each case.

(28) Petitions dismissed.


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