ORDER Mulye, J.- 1. The petitioner has filed this petition under Articles 226 and 227 of the Constitution of India against an order dated 1-12-1984 passed by respondent No.3 in Appeal No. 21 of 1981, reversing the order dated 24-3-81 passed by respondent No.2 in Case No. 87 of 1977 in the matter 'of Payment of Gratuity Act, 1972. 2. The petitioner was initially employed on 16-7-1946 on the post of Assistant Accountant by the predecessor-in-interest of respondent No. 1. On 1-4-1950 he was promoted as Assistant Officer, then as Chief Accountant on 30-6-1956, as Divisional Accounts Officer on 1-6-1962, Deputy Chief Accounts Officer on 18-6-1964, which post he held till his retirement on 27-1-1975 on attaining superannuation; that all through this period his salary was below Rs. 1,000/- per month except for the period 18-6-73 to the date of retirement i.e. upto 27-1-1975 and that after his retirement the petitioner filed an application under S. 7(7) of the Payment of Gratuity Act, 1972 on 24-7-1977 before respondent No. 2. 3. The respondent No. 1 on being noticed, challenged the petitioner's claim on various grounds, inter alia about the inapplicability of the Act, the petitioner being an employee who had managerial and administrative functions to discharge and as such was not entitled to be included in the category of 'employee' and that the application was barred by limitation. 4. The respondent No.2 by the final order dated 24-3-1981 AnnexureA-2 directed the respondent No.1 to pay the gratuity. 5. The respondent No.1 preferred appeal before respondent No.3 as per Annexure A-3. However, the respondent No.3 by the impugned order AnnexureA-4 dated 1-12-1984, which is said to have been signed on 3-12-1984 reversed the order of respondent No.2 and held that the petitioner is not entitled to any gratuity since he is not an 'employee' as defined in S. 2 (e) of the said Act. Hence this petition. 6. The learned counsel for the petitioner did not dispute that the petitioner was designated as an Officer. However, he submitted that merely because of that designation he would not be excluded from the definition of 'employee' within the meaning of S. 2 (e) of the said Act. He submitted that this definition embraces every employee of respondent No.1 excepting only those who are part of administrative or managerial machinery. 7. However, he submitted that merely because of that designation he would not be excluded from the definition of 'employee' within the meaning of S. 2 (e) of the said Act. He submitted that this definition embraces every employee of respondent No.1 excepting only those who are part of administrative or managerial machinery. 7. The learned counsel for the petitioner submitted that the respondent No.1 being an establishment as a commercial organisation, has separate administrative and managerial wings; that the Accounts Department, the functions of which are purely supervisory and advisory over the financial part of the policy decision taken by the managerial and the administrative wings of respondent No. 1, the petitioner by no stretch or imagination can be excluded from the category of 'employee' to entitle the relief of gratuity, in support of which he placed reliance on standing instruction No.1, which is reproduced by him in the petition, published in Vol. III, M. P. S. R. T. C. Manual, at page 75, However, the learned counsel for the respondent objected on the ground that the petitioner has for the first time referred to the Standing Order about which be had made no mention in his initial petition filed under S. 7 of the Payment of Gratuity Act. He, therefore, submitted that for the first time the petitioner cannot be allowed to urge on that basis. 8. The further submission of the learned counsel for the petitioner, therefore, was that considering the functions of the accounts department under which the petitioner was working were only supervisory, in character and bad nothing to do with the managerial or administrative functions as the petitioner was never employed in a managerial or administrative capacity. The learned counsel for the petitioner further submitted that as per Annexure-A-5 and as per Annexure-A-6, even though the petitioner was delegated with certain administrative powers, they were only incidental powers in addition to his supervisory powers and even though he was given some administrative powers, he could not be excluded from the definition of 'employee' which is quoted below : "2. Definition : In this Act, unless the context otherwise requires : xxx xxx xxx (a) "employee" means any person (other than an apprentice) employed on wages, not exceeding one thousand rupees (now one thousand six hundred) per mensum, in any establishment factory, mine, oil field, plantation, railway company or shop, to do any skilled, semiskilled or unskilled manual supervisory, technical or clerical work, whether the terms of such employment are express or implied, but does not include any such person who is employed in a managerial or administrative capacity, or who holds a civil post under the Central Government or a State Government or who is subject to the Air Force Act, 1950 (45 of 1950), the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957)." 9. The learned counsel for the petitioner, therefore, submitted that at best the petitioner would not be entitled to the payment of gratuity for the period 18-6-1973 upto 17-1-1975 during which period his salary exceeded Rs. 1,000/-as upto 18-6-1973, his monthly salary was Rs. 940/- per month and in support of his submission he placed reliance on the decision reported in Hindustan Brown Brewari, Ltd. Baroda v. C.A. Panchal 1977 (II) Labour Law Industrial Cases 127, Khanderao P. Rajopadhya v. United Western Bank Ltd. 1984 Labour and Industrial Cases 1910, (Mis) Vasant Industrial and Engineering Works, Bombay, v. Narayan Domodar Desai 1981 Labour and Industrial Cases 40, Sarabhai Chemicals Ltd. Baroda v. Ambaram Amtharam Patel 1978 (I) Labour Law Journal 105, Barma Shell Oil Storage & Distributing Co. of India Ltd. v. The Burma Shell Management Staff Association AIR 1971 SC 922 . The Management of Good Year India Ltd. v. K.G. Devessar AIR 1985 SC 1759 . He also submitted that the Madras decision reported in (M/s) Standard Vacuum Oil Co. Madras v. The Commissioner of Labour, Madras AIR 1960 Madras 288 has been overruled by the Supreme Court in its decision reported in T. Prem Sagar v. (M/s.) Standard Vacuum Oil Company, Madras AIR 1965 SC 111 . 10. On the other hand the learned counsel for the respondent contended that it was the duty of the petitioner to prove what was the nature of his duties i.e. what were his principal duties, but the petitioner has led no evidence about his basic duties. 10. On the other hand the learned counsel for the respondent contended that it was the duty of the petitioner to prove what was the nature of his duties i.e. what were his principal duties, but the petitioner has led no evidence about his basic duties. He further submitted that the petitioner's annexures A-5 and A-6 would clearly indicate that the petitioner was holding the post in an administrative capacity. He also submitted that the petitioner himself did not step into the witness box and all the decisions cited by the learned counsel for the petitioner, firstly are not applicable to the facts of the present case and that secondly they relate only to managerial functions and not to administrative functions, which are admittedly excluded from the definition of the word 'employee'. He, therefore, submitted that this being a writ petition wherein extraordinary powers are to be used sparingly, in absence of any convincing and positive evidence regarding the main duties of the petitioner as also his incidental duties, the petitioner cannot succeed only on the basis of the authorities cited by him. He, therefore, submitted that the petitioner is not entitled to payment of gratuity as claimed by him. 11. The learned counsel for the respondent also tried to contend that the respondent is merely a business undertaking and not an 'establishment' as referred to in the said Act, but I am not persuaded to agree with the submission of the learned counsel for the respondent on this point as this has not been the case of the respondent that it is not an establishment. 12. In the decision reported in 1977 (II) labour Law Journal, 127 (supra) the question was regarding the definition and meaning of the word, 'employee' as defined in S. 2(e) of the Act as in that case the employee started at Rs. 450/- per month and was getting Rs. 1250/- per month at the time of his resignation. The question, therefore, was whether the employee was entitled to get gratuity during the period he was getting less than Rs. 1,000/- per month. It was, therefore, held that the very essence of payment of gratuity is for the past services and not the present. It was further held that the intention of the Legislature was to grant gratuity to those getting more than Rs. 1,000/- per month. It was, therefore, held that the very essence of payment of gratuity is for the past services and not the present. It was further held that the intention of the Legislature was to grant gratuity to those getting more than Rs. 1,000/- per month on the date the Act came into force but were getting less earlier. 13. In the decision reported in Sarabhai Chemicals Ltd. Baroda v. Ambaram Amtharam Patel (supra) it was held that it is the substantial part of the work that will decide whether a person is employed in managerial capacity or not and that an isolated function or an incidental work not to be taken into consideration, as has been discussed in para 19, which is reproduced below as in that case the employee was appointed as the Section Head of the Quality Control Department as a Chemist: "This brings to the next question whether looking to the duties which the respondent was discharging after he was promoted as sectional head, can it be said that he was discharging managerial or administrative functions. We have already quoted above the nature of the work which was entrusted to him as 1st January, 1974 and onwards when he was appointed as the sectional head of the quality control department. First three duties, which are mentioned above, do not show anything which can be termed as managerial In character. The first duty was as regards the distribution of work to different chemists who were four in number in his department. This distribution of work depended upon the nature of the samples to be dealt with and also depended upon the calibre of the chemist concerned. It, therefore, follows that while deciding whether a particular sample should be dealt with by a particular chemist, the respondent was surely called upon to utilise his technical skill and knowledge, Therefore, the duties mentioned in the first item cannot be termed as purely supervisory duty. It was the supervisory duty wherein the technical skill and knowledge of the respondent was also required to be utilised. Thus the duties mentioned in item No. 1 were supervisory and technical, but even if it is believed that they were predominantly, supervisory duties, it cannot be said that they were either managerial or administrative functions. It was the supervisory duty wherein the technical skill and knowledge of the respondent was also required to be utilised. Thus the duties mentioned in item No. 1 were supervisory and technical, but even if it is believed that they were predominantly, supervisory duties, it cannot be said that they were either managerial or administrative functions. As a matter of fact, it is not the case of petitioner that the initial selection of the sample which were required to be tested was to be made by the respondent. This initial selection depended merely upon the manufacturing policy which the concern wanted to adopt. The respondent had absolutely no choice in this policy and, therefore, he was expected to carry out only the work of distribution of these samples to different chemists working under him keeping in mind the nature of these samples and the calibre of the chemists concerned. Therefore, these duties can be treated only as supervisory-cum-technical in nature." 14. In the decision reported in 1981 Labour & Industrial cases 40 (supra) it has been held that employee drawing wages exceeding Rs. 1000/- at the time of resignation, but employed on less than Rs. 1000/- for more than five years his claim for gratuity cannot be rejected in respect of the period when salary did not exceed Rs. 1000/- as in that case the employee who was initially appointed as an Assistant Foreman was promoted to the post of Assistant Production Manager. In that case both the Courts found that even though the employee was designated as Assistant Production Manager he did not perform any managerial or administrative duties and continued to do the duties of a Foreman which were supervisory and not managerial or administrative. 15. Similarly in the case reported in Khanderao P. Rajopadhya v. United Western Bank Ltd.(supra) the petitioner was working in the Inspection Cell under the administrative control of the Head Office and as a Chief Inspector he was to supervise the inspection work and draw inspection programmes at the instance and under the directions of the Chief Executive (Chairman). He was expected to go on inspection of important branches as may be directed by the Chairman. The work of follow-up action on the inspection reports of all the branches was to be taken by him and he was expected to advise the management periodically the progress thereof. He was expected to go on inspection of important branches as may be directed by the Chairman. The work of follow-up action on the inspection reports of all the branches was to be taken by him and he was expected to advise the management periodically the progress thereof. He was also to advise the management regarding procedures and practices and general conditions for better-result of the bank as a whole. Periodical meetings between him and the Chairman were held so as to provide opportunities to project their views regarding policy discussions, existing system and procedures. Final decision on inspection notes or reports was taken by the Chairman himself. The petitioner was not expected to take any independent policy decision on any matter whatsoever. For few days he was working as officiating Chairman. He had also to sign for the General Manager in his absence, but he did not exercise any power as it was not delegated to him. It is, in these circumstances, it was held in that case that the nature of the duties performed by the petitioner was supervisory and not administrative and/or managerial and, therefore, he was an employee within the meaning of S. 2 (e) of the said Act. 16. The decision reported in AIR 1971 SC 922 (supra) mainly concentrated on the definition of 'workman' as defined in the Industrial Act and while considering that provision has made the following observations in para 6 of the judgment, which is as follows: "6. The next aspect that has to be taken notice of is that, in practice, quite a large number of employees are employed in industries to do work of more than one of the kinds mentioned in the definition. In case where an employee is employed to do purely skilled or unskilled manual work or supervisory or technical work or clerical work, there would be no difficulty in holding him to be a workman under the appropriate classification. Frequently, however, an employee is required to do more than one kind of work He may be doing manual work as well as supervisory work, or he may be doing clerical work as well as supervisory work. He may be doing technical work as well as clerical work. Frequently, however, an employee is required to do more than one kind of work He may be doing manual work as well as supervisory work, or he may be doing clerical work as well as supervisory work. He may be doing technical work as well as clerical work. He may be doing technical work as well as supervisory work In such cases it would be necessary to determine under which classification he will fall for the purpose of finding out whether be does or does not go out ...,.......... of the definition of 'workman' under the exceptions. The principle is now well settled that, for this purpose, a workman must be held to be employed to do that work which is the main work be is required to do, even though he may incidentally doing other type of work,. In the case of May and Baker (India) (1961) 2 Lab LJ 94 [ AIR 1967 SC 678 (supra), the Court in the quotation cited above, noticed the fact that Mukerjee's duties were mainly neither clerical nor manual. The significance attaches to the word 'mainly' because Mukerjee's duties did not involve some clerical and manual work; yet, he was held not to be a workman." 17. The decision reported in AIR 7963 SC 111 (supra) arose out of proceedings under the Madras Shops and Establishments Act wherein it has been held that the test which has to be applied in determining the question as to whether a 'persons is employed' in a commercial establishment is whether be is wholly or principally employed in connection with the business of the said establishment. As soon as it is shown that the employment of the person is either wholly or principally connected with the business of the establishment, he falls within the definition and when a question arises person employed is in position of management, tests to determine cannot be laid down exhaustively, but has indicated certain tests which are reproduced : "(18). That takes us to the question as to whether the appellant is employed whose case falls under the category of exempted cases provided for by S. 4 (1) (a). Section 4 (1) (a) referes 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. Section 4 (1) (a) referes 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 be applied in deciding this question. Several considerations would naturally be relevant in dealing with this problem. It may be enquired whether the person had power to operate on the bank account or could he made payments to third parties and enter into agreements with them on behalf of the employee, when he was 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 be 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 determinating the question about the status of an employee in relation to the requirements of S 4 (l) (a) The salary drawn by the employees may have no significance and may not be material though it may be treated theoretically as a relevant factor, vide T. P. Chandra v. Commissioner for workman's Cor-Compensation Madras. 1958-1 Lab LJ 55 AIR 1957 Mad 638; and Shri Ramaswami Bank Ltd Salem v. Additional Commissioner for workman's Compensation, Chepauk Madras 1956-2 Lab LJ 40 (Mad) (19) At this stage it is necessary to examine how the Commissioner of Labour approached the question. He began the discussion of this problem by referring to the two Madras decisions just cited by us and said that as decided by the Madras High Court. it would be necessary to find out whether the appellant was in a position of management 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. "Thus, it would be seen that in addressing himself to the question raised for his decision, the Commissioner applied tests to which no exception can be taken. Having set out the tests which had to be applied, he considered the evidence led by the parties before him and he recorded his conclusions clearly and categorically in his order. He held that the appellant had no power of appointment of labour, had no power to take disciplinary action against them, had no power to grant leave to persons subordinate to him, had no discretion in the matter of incurring expenditure on his own accord as the expenditure had to be sanctioned by the General Manager, had no power of attorney to enter into agreements with third parties on behalf of the Company, his work was subject to the overall supervision of the Operations Manager, he had no power to bind the Company by his acts; he could not operate upon the Company's bank account; he could not lay down policy for the Company and that he had to obtain the approval of the Operations Manager on almost all matters. Having discussed the whole of the evidence and recorded definite findings. the Commissioner no doubt observed in the course of his order that it cannot, therefore, be said that respondent was exercising managerial powers in relation to the Head Office of the Company where he was employed", and in that connection, be added that one of the questions which had to be considered by him was whether the powers exercised by the appellant were managerial with reference to the Head Office of the Company. It is on these two statements which the Commissioner made in the course of his order that the Division Bench has rested its decision and had recorded its finding that the order passed by the Commissioner of Labour is on its face patently and manifestly erroneous. (20) The Division Bench considered the relevant judicial decision, bearing on the question about extent of the High Court's Jurisdiction in entertaining petitions for writs of certiorari and held that if the error in the judgment of the Commissioner of labour was shown to be an error of law which was manifest on the face of the record, it would be justified in issuing a writ. This view is undoubtedly correct. This view is undoubtedly correct. The High Court was also right when it held the question about the status of the appellant being a mixed question of fact and law, it clearly appeared from the impugned order that in deling with the status of the appellant a patently erroneous legal test was applied, that also would justify the interference of the High Court under Art. 226. It is in that connection that the High Court has observed that the manifest error in the impugned order lay in the fact that the Commissioner thought that it is only when an employee is exercising managerial, powers in relation to the head office of the company where he was employed that he can be said to be employed in position of management within the meaning of S. 4 (1) (a) of the Act. "It would be noticed that this conclusion is based on the two statements in the impugned order to which we have already adverted". 18. The learned counsel for the petitioner placed reliance on the decision reported in The Management of Goodyear India Ltd. v. K. G. Devessar (supra) wherein while considering the scope of the definition 'employee' it has been held that all persons whose employment came to end after coming into force of the Act are entitled to payment of gratuity for period during which he satisfied definition of employee. So far as this decision is concerned, the learned counsel for the respondent did not have to say anything. But he submitted that this decision also does not help the case of the petitioner as he has failed to prove that he is covered by the definition 'employee' as defined in the said Act. 19. On going through the authorities it is clear that in many cases sometimes it is not quite easy to distinguish between the supervisory capacity and the managerial or administrative capacity of an employee who at times has to do incidental and additional work in addition to his principal or main duties for which he is employed. 19. On going through the authorities it is clear that in many cases sometimes it is not quite easy to distinguish between the supervisory capacity and the managerial or administrative capacity of an employee who at times has to do incidental and additional work in addition to his principal or main duties for which he is employed. There can be no quarrel with the proposition that if the main duties of an employee are only supervisory in nature, then certainly cannot be excluded from the category of 'employee' nor can be deprived of the benefits of the payment of Gratuity Act, even though for a short period he is required to discharge additional or incidental functions nor can be excluded from getting the gratuity even though at the time of his retirement or resignation he might be drawing salary more than Rs. 1000/- (now by amendment it is Rs 1600/-) if it is found proved that for a continuous period of more than five years during his employment the employee was drawing salary less than Rs. 1000/-. 20. But in the present case there is nothing on record to indicate what was the principal or main functions of the petitioner on the basis of which it can be inferred that the nature of his duties was only supervisory and not administrative or managerial. Even if the Standing Instruction No. 1 as also the Circular for 1962-63 about which the petitioner has made a reference in the petition, are taken into consideration, no inference can be drawn on that basis alone that the petitioner's functions and duties were only of a supervisory nature because from the Annexure-A-5 and A-6. which have been filed by the petitioner himself, it is clear that the petitioner exercised the power of granting of casual leave, earned leave, permission to cross the efficiency bar, to issue free pass and PTOS and to counter-sign T.A. Bills in respect of employees working under him, to incur revenue expenditure upto Rs. 5000/-capital expenditure upto Rs. 25,000/-and purchase of stores up to Rs. 50,000/-subject to specific budgetary provisions, vetting the cases requiring financial concurrence, etc. 5000/-capital expenditure upto Rs. 25,000/-and purchase of stores up to Rs. 50,000/-subject to specific budgetary provisions, vetting the cases requiring financial concurrence, etc. Therefore, even if some of the nature of duties of the petitioner, as was urged by him were supervisory even though there is no satisfactory evidence to that effect, the administrative powers which the petitioner enjoyed clearly indicate that he was discharging functions in the administrative capacity and, therefore, the contention of the petitioner that he continued to be an employee upto the time of his retirement or at least upto 18-6-1973 on the basis of which he is entitled to the payment of gratuity under the said Act cannot be accepted. It is not the case of the petitioner that only at the time of retirement certain administrative powers and functions were assigned to him so that on that basis he could be deprived of getting the benefit of the provisions of the said Act, even though for a substantial period of service he continued to be employed as an employee as defined under the said Act. On the contrary, according to the petitioner himself though he was initially appointed as Assistant Accountant, from time to time he as promoted as Assistant Accounts Officer, then Chief Accountant, then Divisional Accounts Officer and lastly as Deputy Chief Accounts Officer and there is nothing on record to indicate what was the main function or nature of duties of the petitioner of these various posts held by him from time to time. 21. In the result I see no valid ground to allow this petition or to quash the impugned order, Annexure-A-4 dated 1-12-1984. The petition is, therefore, dismissed with costs. Counsel's fee Rs. 350/-.