Judgment :- All these original petitions were filed by the Kerala State Handloom Weavers’ Co-operative Society Ltd. (HANTEX). Trivandram. Challenging the order passed by the 2nd respondent, the Dy. Labour commissioner, allowing subsistence allowance to the 1st respondent Abdul Kalam as per sec.4 of the Kerala payment of subsistence Allowance Act, 1972 (for short to be referred hereinafter as the Act). All the orders under challenge in these original petitions relate to the grant of subsistence allowance to the same person. Viz. the 1st respondent for different periods. 2. Abdul Kalam, the 1st respondent, was the Dy.Marketing Manager (Technical) and he was suspended from service as per order DT. 13.12.1997. He filed petition before the 2nd respondent claiming subsistence allowance under the payment of Subsistence allowance under the payment of subsistence Allowance Act claiming to be an employee entitled to subsistence allowance as per the above Act. The main contention put forward by the HANTEX was that the 1st respondent was not an employee coming within the definition under sec.2 (a) of the Act, but he was working in the managerial post and as such the provisions of the Act were not applicable to the present case. The learned counsel for the HANTEX submitted that though documents had been produced before the 2nd respondent showing that the 1st respondent was functioning in the managerial cadre and not an employee coming within the definition of under Sec.2 (a) of the Act, without considering those documents, gratuity was allowed. Sec. 2(a) of the above Act reads: “2. The learned counsel for the HANTEX submitted that though documents had been produced before the 2nd respondent showing that the 1st respondent was functioning in the managerial cadre and not an employee coming within the definition of under Sec.2 (a) of the Act, without considering those documents, gratuity was allowed. Sec. 2(a) of the above Act reads: “2. Definitions: In this Act, unless the context otherwise requires: - (a) “employee” means any person employed in or in connection with the work of any establishment to do skilled, semi-skilled 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 out-worker, that is to say, a person to whom any articles or materials are given out by or 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:” The above definition would make it clear that any person employed in the managerial or administrative capacity would be out of the definition of an employee under sec.2 (a) and would not be entitled to subsistence allowance under the Act. Though it was alleged in these petitions that documents showing the duties and functions of the Dy. Marketing Manager (Technical) were placed before the 2nd respondent, a copy of the same was not made available before this court. Along with the counter filed by the 1st respondent in OP 24846/99 the respondent produced Ext.R1 (a) showing the allocation of work in the various wings of the Society. The functions of the marketing wing (technical) as disclosed from Ext.R1 (a) are as follows: B.Technical. a) Government supply maintenance of its accounts and collection. b) Procurement of power loom fabrics for garments unit and process house. c) Process House, Pattern Weaving Factory and Head Office Weavery. d) Barter system of sale etc. e) Printing and processing of Grey Fabrics. f) Training programmes. g) Stock liquidation scheme. h) Loom modernization scheme. a) Government supply maintenance of its accounts and collection. b) Procurement of power loom fabrics for garments unit and process house. c) Process House, Pattern Weaving Factory and Head Office Weavery. d) Barter system of sale etc. e) Printing and processing of Grey Fabrics. f) Training programmes. g) Stock liquidation scheme. h) Loom modernization scheme. i) N.C.D.C. Scheme.” The learned counsel for the petitioner submitted that there were several employees working in the technical wing and the 1st respondent was the Deputy Marketing Manager of the above wing and was holding a senior managerial post and he would not be an employee within the defenition of sec.2(a) of the Act. He placed reliance on the decision of the Supreme Court in T.Prem Sagar v. M/s. Standard Vacum Oil Company, Madras (AIR 1965 SC 111). Paragraph 18 of the above judgment would refer to some of the tests for deciding the above question whether a post was a managerial or administrative one. It would read. “That takes us to the question as to whether the appellant is an employee whose case falls under the category of exempted cases provided for by Sec.4 (1)(a). Sec.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. Several considerations would naturally be relevant in dealing with this problem. It is difficult to lay down exhaustively all the tests, which can be reasonably applied in deciding this question. 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, 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 authoriyt 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 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 above judgment was relied on by the Division Bench of this Court in subsequent decisions in in Chittur Service Co-Op Bank Ltd. V. State of Kerala (1992 (1) KLT 168) and in K.M.Ulahannan v. Labour Court & Anr. (1996 (1) KLJ 825). The question whether the 1st respondent was discharging the managerial functions would be explicit from his designation as the Dy. Marketing Manager itself. That being so, the 2nd respondent should have first decided whether the Dy. Marketing Manager would be an employee within the definition of Sec.2 (a) of the Act. Ext.R1 (a) would reveal the functions of the marketing wing (technical). The nature of the above functions would reveal that there would be a large number of employees working in that wing and the 1st respondent, being the Dy. Marketing Manager, discharging managerial functions. In fact the learned counsel for the 1st respondent could not convince as to how he was not discharging managerial functions when he was designated as Dy. Manager. The 2nd respondent had decided the case in a mechanical way on the basis of the report filed by the District Labour Office and without going into the merits. The order would show that the District Labour Officer had reported that the 1st respondent was entitled to subsistence allowance under the Act and hence it was allowed. Manager. The 2nd respondent had decided the case in a mechanical way on the basis of the report filed by the District Labour Office and without going into the merits. The order would show that the District Labour Officer had reported that the 1st respondent was entitled to subsistence allowance under the Act and hence it was allowed. The 2nd respondent had not applied his mind in ascertaining whether the 1st respondent was an employee coming within the definition of sec.2 (1) of the Act. As that question was not considered by the 2nd respondent, the matter has to go back before the 2nd respondent for fresh consideration in accordance with law. In the result all these original petitions are allowed and the impugned order passed by the 2nd respondent direction the society to pay subsistence allowance in accordance with sec.4 of the Act are set aside and all these matters are remanded to the 2nd respondent for dispose in accordance with law and in the light of the decisions cited above. An order shall be passed within one month from the date of production of a copy of this judgment. The parties shall be given an opportunity to let in evident. If necessary, relating to the duties and functions of the1st respondent.