JUDGMENT
P.V. Rajamannar, J.
1. This is an appeal against the judgment of Rajagopalan, J., in Writ Petition No. 561 of 1956. The respondent 2, M.A. Santani, was employed as the manager of the Coimbatore branch of the appellant firm, Jeyams Engineering Company, Coimbatore, which bad its head office at Bombay. There were also branches of the firm at Madras, Nagpur, Delhi and other places. On 16 January 1955, the respondent 2 received a communication from the regional manager of the appellant firm, Southern India branches, the material portion of which was as follows:
Under instructions from head office, Bombay, I am issuing the following transfer orders in connexion with transfer of charge of Coimbatore office.
Mr. M.A. Santani is transferred from Coimbatore office to either Delhi office or Nagpur office. Definite orders with regard to which office he la transferred will be issued on receiving1 necessary confirmation from the head office very soon.
Mr. J.N. Radhakrlshnani, manager of Kanpar office, who has already arrived here and reported for duty and present in the office, is to take charge of Coimbatore with immediate effect.
Mr. M.A. Santanl is requested to hand over the complete charge of Coimbatore office, accounts, cash, stocks, furniture, motor-cycle, etc.. to Mr. J.N. Radhakrishnani today.
On receipt of this order, the respondent 2 handed over charge to Radhakrlshnani. On 25 January 1955, he received a further communication, in which he was informed that he was transferred to the Delhi office to assist the “present” manager in the sales and the other office routine. Apparently the respondent 2 was not willing to go to Delhi. On 10 February 1955, the appellant intimated to the respondent 2 that he should arrange to leave for Delhi, within a week from the date of that letter, and that, if he did not do so, he might consider himself as dismissed from service. The respondent 2 then wrote to the appellant, requesting that he might be retained at Coimbatore, and that, if that was not possible, he might be paid his salary and Ms travelling expenses to Delhi. Neither request was complied with; and, on 28 February 1955, the appellant definitely informed the respondent 2 that he should consider Himself dismissed from service with effect from 17 February 1955. On 9 March 1955, the respondent 2 addressed a letter to the Labour Commissioner, Workmen’s Compensation, Madras, claiming several items of relief against the employer, i.e., the appellant. In terms, this letter did not purport to be an appeal against the order of dismissal preferred under Section 41(2) of the Madras Shops and Establishments Act, 1947. Objections were filed by the appellant to the demands made by the respondent 2. The respondent 2, then realizing his mistake, applied to the Commissioner on 12 July 1955 that he might be reinstated, because his dismissal was illegal. He gave up the other reliefs claimed by him in his earlier letter. Apparently, this letter was treated as an appeal preferred under Section 41(2) of the Act. The appellant raised two preliminary objections to the maintainability of the petitions:
(1) that the appeal was barred by limitation ; and
(2) that the respondent 2 could not avail himself of the provisions of the above Act, as he was employed in a position of management.
Both the objections were overruled by the Additional Commissioner for Workmen’s Compensation, Madras, who dealt with the matter. He held that the appeal was not time-barred, and that, even if it was time-barred, there was sufficient cause to excuse the delay. He also held that the respondent 2 was not employed in a position of management. Subsequently, on 1 March J956, the Commissioner found that the dismissal of the respondent 2 was not for a reasonable cause, and ha therefore set aside the order, discharging the respondent 2 from service. Thereupon, the appellant filed a writ petition, out of which this appeal arises, for the issue of a writ of certiorari to quash the order of the Additional Commissioner for Workmen’s Compensation, Madras, dated 1 March 1956.
2. Two contentions were raised on behalf of the appellant before Rajagopalan, J., who heard and disposed of the writ petition:
(1) that the appeal to the Commissioner for Workmen’s Compensation was barred by time and the delay should not have been excused, and
(2) that the respondent 2 was a person employed in a position of management and therefore fell under Section 4 (1)(a) of the Act.
Neither contention was accepted by the learned Judge, and the petition was dismissed. Hence this appeal.
3. Before us, the contention regarding limitation was not pressed; and the argument on behalf of the appellant was confined to the second contention. The Additional Commissioner for Workmen’s Compensation held that the respondent 2 did not fall within Section 4(1)(a) of the Act, because, at the time of his discharge, he was not the manager of the Coimbatore branch of the appellant firm but only an ordinary employee. The learned Judge agreed with the Additional Commissioner. His reasoning was that, though the respondent 2 was admittedly the manager of the Coimbatore branch upto 15 January 1955, and, therefore, occupied a position of management, he was relieved of his office of manager on that date, and, though he still continued in the employment of the appellant, he was not holding a position of management. According to the learned Judge, the relevant period for deciding whether a given person was in a position of management within the meaning of Section 4(1)(a) of the Act is the period antecedent to the dismissal or termination of his service. With respect to the learned Judge, we are unable to agree with him in what we consider to be a very narrow construction of Section 4(1)(a) of the Act. The respondent 2 was admittedly holding a position of management till 15 January 1955. On that date, the appellant firm directed his transfer to either Delhi or Nagpur. There is nothing on record to indicate that, either as a punishment or otherwise, the respondent 2 was demoted to a grade lower than that of a manager. His pay was not reduced. If an employee who is the manager of a branch is transferred to another branch, and, in pursuance of the order of transfer, he hands over charge of the office of manager which he was holding, he does not eo instanti cease to be a person employed in a position of management. If a District and Sessions Judge is on leave or under transfer, he does not cease to be District and Sessions Judge. Though he may not actually be exercising the functions of that office, while on leave so far as his status in concerned, it is certainly that of a District and Sessions Judge. Section 4(1)(a) is in the following terms:
Nothing contained in this Act shall apply to(a) persons employed in any establishment in a position of management:
Obviously, the respondent 2 was a person employed in a position of management upto 15 January 1955. So, till that date, nothing in the Act applied to him. What has now been held is that, from 16 January 1955, the Act has become applicable to him. The only reason for this sudden change is that he was asked to hand over charge of his office as manager to another employee, since it was intended to transfer him to another office. In the judgment recently delivered in Writ Appeal Nos. 139 and 140 of 1959 [1960 11 L.L.J. 108], we have held that the category of person who would come within Section 4(1)(a) of the-Act is not confined to a very few employees like the general manager or assistant manager of an establishment, but will comprise all employees who are not merely workmen and are in the position of wage-earners or members of a clerical department, but who have a certain amount of control of the affairs of the establishment. We hold that the order of the Additional Commissioner for Workmen’s Compensation was vitiated by a manifest error of law, namely, that the person who admittedly was employed in a position of management till a particular date ceased to be such during the period when he was under orders of transfer.
4. The appeal is allowed, and a writ will issue, quashing the order of the Additional Commissioner for Workmen’s Compensation, Madras, dated 1 March 1956. There will be no order as to costs.
