JUDGMENT K. Sukumaran, J. 1."Is the Secretary of Pallasana Service Cooperative Bank Ltd., an 'employee' as defined in the Kerala Payment of Subsistence Allowance Act, 1972 (Act 27 of 1973)?" -is the question which arises for decision in the two writ petitions-O. P. Nos. 1898 of 1978 and 1454 of 1979. The term is defined in S.2(a) of the Act as follows: " 'employee' means any person employed in or in connection with the work of any establishment to do skilled, semiskilled or unskilled manual, supervisory, technical, clerical or any other kind of work for hire or reward, whether the terms of employment be express or implied, but does not include any such person who is employed mainly in a managerial or an administrative capacity or as an outworker, that is to say, a person to whom any articles or materials are given out by on behalf of the employer to be cleaned, washed, altered, ornamented or repaired by such out-worker in any place not under the control and management of the employer." (emphasis supplied) 2. The contention of the petitioner is that the Secretary is employed mainly in a managerial or administrative capacity and as such excluded from, the category of 'employee' as defined in the Act. The 1st respondent Deputy Labour Commissioner, Kozhikode found under Ext. P-1 order (in both cases) that he was. After adverting to the powers and duties of the Secretary the 1st respondent entered a finding in Ext. P-1 in O. P. No. 1898 of 1978 as follows: "I cannot therefore agree with the respondent Bank that the Secretary is employed purely on an administrative or managerial capacity." (emphasis supplied) This finding was followed in the later order Ext. P-1 in O. P. No. 1454 of 1979. It may at once be pointed out that in so recording a finding the 1st respondent misdirected himself by wrongly proceeding on the assumption that a person must be employed purely in administrative or managerial capacity to be excluded from the definition of employee. Under the definition of the term, however a person who is employed mainly in such capacity will be excluded from the definition. Such a person need not be purely employed in that capacity to be so excluded. On that short ground, the order is liable to be struck down. Under the definition of the term, however a person who is employed mainly in such capacity will be excluded from the definition. Such a person need not be purely employed in that capacity to be so excluded. On that short ground, the order is liable to be struck down. It was, however, felt necessary that the other aspects of the contention may also be decided having regard to the arguments advanced in the case by all the parties and the necessity for a final determination of the question. 3. A consequential direction to the Bank to pay him subsistence allowance as stipulated under the Act and the Rules was made by the authority. 4. The legality of these orders are the subject matter of the writ petitions filed by the Bank. 5. Questions such as the status of a person - as for example whether he is an employee or not under a statute -have always been treated as dependent upon the facts and circumstances of a case and the proper inference to be drawn therefrom. As observed by Branson, J., while considering the question whether a person was engaged in "employment otherwise than by way of manual labour": "One cannot really draw an a priori line enabling anybody to say that A is on this side and B is on that. The matter must always rest, in the last resort, upon the opinion formed based upon the facts of the individual case". See Re Gardner, Re Maschek, Re Tyrrell (1938 (1) All. ER 20 at 23). 6. It is, however, desirable to bear in mind the guiding principles for consideration of the question as discernible from well established judicial decisions. Whether you term it as 'picking plums from a pudding', or 'pulling threads from a pattern', (to borrow the words of Justice Frankfurter) it has always been conventional for courts to cite when they write the judgments, a large volume of decisions, and to cull out passages from those decisions with annotations on the thrust and emphasis in each of those decisions. Such a circular tour along decided cases had not commended itself to some Judges, in regions were principles are fairly well settled. It may, of course, not be a proper use of energy or time to traverse the well trodden lines. Such a circular tour along decided cases had not commended itself to some Judges, in regions were principles are fairly well settled. It may, of course, not be a proper use of energy or time to traverse the well trodden lines. Deference, however, to the long arguments addressed in the case by counsel would require at least a brief reference to those decisions. Smt. Devakikutty, appearing for the petitioner placed before me many decisions which have interpreted the term 'workman' as defined in the Industrial Disputes Act, 1947 so as to indicate the broad guidelines on which, the term 'I employed mainly in a managerial capacity', had been interpreted in the background of that statutory scheme. The Government Pleader too cited some decisions. Counsel for the respondent mainly relied on the decision of this court, rendered by Unnikrishna Kurup, J., and reported in President, Thirurangadi Service Cooperative Bank v. N. K. Venkitachalam and others ( 1971 KLT 813 ), where a Secretary of a Society, was, on the facts and evidence disclosed in that case, held to be a workman under the Industrial Disputes Act. The decisions span a period of over a quarter of century. The latest of the decisions so cited is a Single Bench Decision of Justice Mohan of the Madras High Court in Ashok Leyland Ltd. v. A. Vijayakumar ( 1981 (2) LLJ 9 ). The catena of judicial decisions so cited include: Dharangadhra Chemical Works Ltd. v. State of Saurashtra and others 1957 (1) LLJ 477 . S.V.O.C. v. Commissioner of Labour 1959 (2) LLJ 771. May and Baker (India) Ltd. v. Their Workmen 1961 (2) LLJ 94 . Andhra Scientific Co. Ltd. v. Seshagiri Rao and another 1961 (2) LLJ 117 . Prem Sagar v. S.V.O.C. 1964 (1) LLJ 47 . South Indian Bank Ltd. v. Chacko 1964 (1) LLJ 19 . All India R. B. E. Association v. Reserve Bank of India 1965 (2) LLJ 175 . Ananda Bazar Patrika v. Its Workmen 1969 (2) LLJ 670. Burmah Shell Co. v. Burmah Shell Management Staff Association 1970 (2) LLJ 590 . Delhi Transport Corporation v. Delhi Administration 1973 (2) LLJ 307 . Punjab Cooperative Bank v. R. S. Bhatia 1975 (2) LLJ 373 . Engineering Construction Corporation Ltd. v. Additional LC 1980 (2) LLJ 16 . D. P. Maheshwari v. Delhi Administration 1981 (1) LLJ 267 . Burmah Shell Co. v. Burmah Shell Management Staff Association 1970 (2) LLJ 590 . Delhi Transport Corporation v. Delhi Administration 1973 (2) LLJ 307 . Punjab Cooperative Bank v. R. S. Bhatia 1975 (2) LLJ 373 . Engineering Construction Corporation Ltd. v. Additional LC 1980 (2) LLJ 16 . D. P. Maheshwari v. Delhi Administration 1981 (1) LLJ 267 . Ashok Leyland Ltd. v. A. Vijayakumar 1981 (2) LLJ 9 . 7. It appears to me, however, that one of those clear and cogent decisions on the point of the highest court of the land and a decision which has been cited, discussed and followed in subsequent decisions of the Supreme Court and other High Courts in the decision of the Supreme Court reported in Prem Sagar v. Standard Vacuum Oil Company, Madras and others ( 1964 (1) LLJ 47 ). It may not, therefore, be necessary to refer in detail to all the other decisions, for, the law is encapsulated in the following observations contained in that judgment: 'S.4(1)(a) refers to persons employed in any establishment in a position of management, and so, the question is when can a person be said to have been employed by the respondent in a position of management. It is difficult to lay down exhaustively all the tests which can be reasonably applied in deciding this question as several considerations would naturally be relevant in dealing with this problem. It may be enquired whether the person had a power to operate 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 and another (1958-1 LLJ 55) and Salem Sri Ramaswami Bank Ltd. v. Additional Commissioner for Workmen's Compensation and another (1956-II LLJ 40)". 8. Having regard to the close similarity relating to some of the salient facts and relevant principles applicable, the observations of Balakrishna Ayyar, J., in the decision of the Madras High Court in Standard Vacuum Oil Company v. Commissioner of Labour and another (1959 (2) LLJ 771 at 779), are also apposite: "The reasons given by the Commissioner of Labour for taking the view that the respondent 2 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 respondent 2 was much the same as that of clerks in relation to correspondence. He seems to have thought further that since the supervision of the respondent 2 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 respondent 2 had no power of attorney or authority to enter agreements on behalf of the management made it clear that he was not in a position of management. But such a power is not a 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. 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 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 respondent 2 could not incur a single rupee of expenditure on capital account without prior authority. But then he could spend upto Rs. 1,000 on unbudgeted items. 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 only 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 in most large departments. When we try to get an overall picture of the position of the respondent 2 in the company's organization, 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''. It may be remembered that though the judgment of the Single Judge had been reversed by a Division Bench of that Court, the Judgment of the Supreme Court in Prem Sagar's case ( 1964 (1) LLJ 47 ), had upheld the conclusion of the learned Single Judge. 9. Bearing in mind the above principles, the facts and evidence in this case may be recapitulated. A Secretary of a Cooperative Society, indubitably occupies a very high position as regards the Society under the scheme of the Cooperative Societies Act. The Society is a body corporate under S.9. Under S.27 of the Act, the final authority vests in the General Body. The committee is to exercise all or any powers of the General Body, except the conduct of the elections. The Society is a body corporate under S.9. Under S.27 of the Act, the final authority vests in the General Body. The committee is to exercise all or any powers of the General Body, except the conduct of the elections. S.28 of the Act visualises the appointment of a committee and the entrustment of the management the affairs of the Society to such a committee. Provisions for appointment of an Administrator have been engrafted in the Act which are generally attracted if the committee conducts itself in a contemptuous manner or in complete disregard of the provisions of the Act or lawful orders. S.34 is important; and thereunder, it is assumed that the Secretary is to be custodian of the records of a Society. This duty of the Secretary to maintain and to be in custody of all the accounts, registers and other records and the seal of the Society under his safe custody, and to be personally responsible for their safety is made explicit under R.47 of the Rules. That Rule also clearly provides that the Secretary shall also be the custodian of cash, securities and all other properties of the Society (Though this latter authority is subject to the overall control of the President, it is in evidence that such control by the President is only nominal in this Society having regard to the evidence in the case). Of the two accounts of the Bank, one in the Post Office Savings Bank was operated exclusively by the Secretary and the other in the Central Bank was operated jointly by the Secretary and the President. The Secretary could make payments to third parties and enter into agreements with such third parties on behalf of the Bank. He could represent the Society to the world at large in regard to the dealings of the Bank. Under the staff pattern of a Society as contemplated under S.80 of the Act and the R.188, the Secretary is at the apex, whatever be the class of the Society among the four classes of the Societies dealt with therein. This is seen from Appendix III referred to is R.188 alluded above. Under R.198, the Secretary in invested with disciplinary powers, of course subject to the limitations and safeguards contained in that rule. (The Secretary, in his evidence, has admitted that he had held several disciplinary proceedings against the employees of the Bank). This is seen from Appendix III referred to is R.188 alluded above. Under R.198, the Secretary in invested with disciplinary powers, of course subject to the limitations and safeguards contained in that rule. (The Secretary, in his evidence, has admitted that he had held several disciplinary proceedings against the employees of the Bank). In addition to the provisions of the Act and the Rules which generally indicate the status of the Secretary and his position, powers and duties, other elaborate provisions could be found in the byelaws framed by the Society for the conduct of its business. Byelaw 49 insists that all documents to be taken in the name of the Bank shall be in the name of the Secretary. Under byelaw 47 (9) it is the Secretary who exercises supervision over other clerks. Sub clause (10) empowers him to issue cheques and documents along with the President. To him is entrusted under byelaw 47(14) the custody of the full stock of manure and other goods. It is the Secretary who is to sue and to be sued on behalf of a society. A loan application has to be sent to the Secretary in the proper form under byelaw 52. The resignation of the members except nominated members has to be submitted to the Secretary of the Society [vide byelaw 37(c)]. Under byelaw 47, the Secretary is responsible to carry on the correspondence on behalf of the Bank and to furnish information to the members. He is to sanction casual leave to the employees of the Bank [vide byelaw 8 (iv)]. It is in evidence that about 86 books and registers are maintained by him as obligated under R.29 and 31 of the Cooperative Societies Rules. 10. Under byelaw 36 the resignation has to be submitted to the Secretary and if it is so submitted it becomes efficacious. The actual situation obtaining in the Society is spoken to by the petitioner himself when he was examined in the case. Even under the amended special byelaw 13(b) it is the Secretary who is competent to censure or fine other employees of the society other than the Secretary. 11. The 1st respondent Deputy Labour Commissioner observed that the petitioner was mainly appointed to do the clerical activities of the bank. Even under the amended special byelaw 13(b) it is the Secretary who is competent to censure or fine other employees of the society other than the Secretary. 11. The 1st respondent Deputy Labour Commissioner observed that the petitioner was mainly appointed to do the clerical activities of the bank. He further found that byelaw 47(10) indicated that the petitioner was not an independent man employed mainly in a managerial or administrative capacity. One important consideration which apparently weighed much with the 1st respondent was his feeling that the secretary acts under the directions of the President and the Board of the Bank. 12. On a consideration of the relevant principles and the application of them to the facts of the case, I am of the view that the approach of the Deputy Labour Commissioner was fundamentally erroneous and that it had resulted in an order vitiated by patent errors of law. In that view of the matter the impugned orders are liable to be set aside. 13. A contention urged seriously at the time of arguments was that the supreme authority in respect of the society vests not in the Secretary but in the General Body or in the committee. He is therefore a person employed under the various authorities and subject to their supervision and control. This contention does not have any force in the light of the principles laid down by the Supreme Court and referred to above. Even a Managing Director or General Manager of a company will be persons appointed by and under the supervision and control of the Board of Directors and General Body. That will not detract from the fact that such persons are employed mainly in managerial or administrative capacity, if the powers and duties so indicate. The fact that the Secretary discharges duties also of a clerical or of manual character will not alter the position nor does the fact that the Secretary does not enjoy the absolute authority in fiscal matters, policy matters or even in disciplinary matters. The position occupied by him, the authority wielded by him, the powers enjoyed by him and the duties performed by him, in truth and substance, show that the Secretary is mainly employed in a managerial or administrative character. As stated earlier, the fact that the committee can control him does not mean that he is not discharging the managerial or administrative duties. As stated earlier, the fact that the committee can control him does not mean that he is not discharging the managerial or administrative duties. It is on this question that the observations of the Single Bench of the Madras High Court becomes very apposite. Even a person in an establishment discharging the duties of a managerial or supervisory character can be controlled by the Board of Directors of an employer company. The possibility of such control does not mean that such a person employed in an essentially managerial and administrative capacity is denuded of his managerial and administrative functions. 14. The powers and the duties of the Secretary as referred to in the byelaws pertain to mainly managerial and administrative character. It is difficult to conceive of a minor official being entrusted with the entire stock of the goods of the society or bank. Again, an ordinary workman will not have the authority to sign cheques on behalf of the establishment. The fact that the junction of one other person is necessary for issuing certain types of cheques does not belittle the nature and status of the Secretary. I am, therefore, of the view that the finding of the Deputy Labour Commissioner on this jurisdictional question is clearly erroneous. It must accordingly be held that the 2nd respondent is not an employee as defined under the Act. 15. As has been repeated from early times, it is the substantive character of the duties that have to be given due emphasis. The tugmaster in Jaques v. Steam Tug Alexandra (90 LJ KB 1325; 1921 (2) AC 339), was held to be employed otherwise than by way of manual labour, notwithstanding the fact that he had been employed in a variety of different ways, when at one time he was in command of his tug but at another time he was scrubbing the decks and painting and scraping the ship and helping to coal. Form X65, October 1936 which had been extracted in the decision, Re Gardiner's case (1938 (1) All. ER 20 at P. 23) explains the general pattern. Para.3 and 4 of that form quoted in that decision are worth repeating here: "The question whether a particular worker is employed by way of manual labour is a question of fact. Form X65, October 1936 which had been extracted in the decision, Re Gardiner's case (1938 (1) All. ER 20 at P. 23) explains the general pattern. Para.3 and 4 of that form quoted in that decision are worth repeating here: "The question whether a particular worker is employed by way of manual labour is a question of fact. It does not follow that he is so employed merely because his duties involve a certain amount of actual physical labour. The real and substantial character of the employment is what must be considered, to the exclusion of matters which are merely incidental or accessory, and where the employment is substantially for manual duties, whether or not involving heavy physical exertion, it is employment by way of manual labour, and not excluded from compulsory insurance. If, however, although a worker is called upon to perform manual work to a certain extent in the course of his work, his principal duties are of a different nature - if, for example, he is mainly occupied in clerical or accounting work, or in supervising the work of others or in managing business or a department of a business, or in salesmanship, or if the successful execution of his work depends mainly upon the display of taste or imagination or the exercise of some special mental or artistic faculty, or the application of scientific knowledge as distinguished from manual dexterity - he is not employed by way of manual labour." (emphasis supplied) 16. It only remains to consider the decision of this court in President, Thirurangadi Service Cooperative Bank v. N. K. Venkitachalam and others ( 1971 KLT 813 ). That decision, however, is distinguishable on the facts and evidence which have emerged in the present case. The following is the categoric finding in 1971 KLT 813 at p. 817: "I think it unnecessary to refer to those decisions as in this case it is quite clear that the 1st respondent has neither managerial nor administrative capacity while he functions as the secretary of the bank ............ The duties which have been assigned to the 1st respondent are mostly of a routine nature and his work is mainly clerical". The factual situation in the present case is entirely different, as is revealed from the discussions above. 17. The duties which have been assigned to the 1st respondent are mostly of a routine nature and his work is mainly clerical". The factual situation in the present case is entirely different, as is revealed from the discussions above. 17. It will be necessary in this connection to bear in mind the vast changes that have taken place in the industrial and commercial establishments. The magnitude of the change is to some extent reflected in the speech of Lord Colonsay in Wilson v. Merry ((1968) LR 1 SC and Div 326 at 343). "The constantly increasing scale on which mining and manufacturing establishments are conducted, by reason of new combinations and applications of capital and industry, has necessarily called into existence extended organisations for management - more gradations of servants, more separation and distribution of duties, more delegation of authority, and less of personal presence or interference of the master. The same personal superintendence by owners or masters, common and beneficial in some minor establishments, is in many cases unattainable, and, even if attained, would not be beneficial. The principles of the law, however, have sufficient elasticity to enable them to be applied, notwithstanding such progressive changes in the manner of conducting business". If a proper perspective of such progressive change in the manner of conducting business is had, it will be clear enough that judged by the gradation of the staff pattern, the distribution of powers and the delegation of authority as also the substantive character of the duties performed by the Secretary, he is a person employed mainly in a managerial or administrative capacity. 18. The result would be that the Payment of Subsistence Allowance Act and the Rules are not applicable to the Secretary. He will not, therefore, be entitled to invoke the provisions of that Act or claim the benefits thereunder. The decision on the jurisdictional question by the Deputy Labour Commissioner is amenable to judicial review in proceedings under Art.226 of the Constitution. As I have already found that the Secretary is not a person coming within the definition of 'employee', under the Act the impugned orders of the Deputy Labour Commissioner in both the writ petitions are liable to be quashed. I do so but without any order as to costs.