SHELAT, C.J. - (1.) THE petitioner -corporation has filed this petition for a writ of certiorari or other appropriate writ and for quashing the award of the industrial tribunal, Gujarat, dated 10 August, 1961, and published in the Gujarat Government Gazette, dated 14 September, 1961.
(2.) THE petitioner -corporation had employed respondent 3 as an accounts clerk in its office at Gandhidham on 13 December, 1950 in the pay -scale of Rs. 150 -10 -200 on a monthly salary of Rs. 200 and had agreed to pay in addition 20 per cent of the salary as site allowance. The corporation was formed with the object of rustling refugees from Sind. It has developed Gandhidham by constructing houses which were sold to the refugees on easy installment terms and had also established certain industries with a view to provide employment to the refugees. In 1953, the Government of India decided to develop Kandla as a major port and the corporation set up a company by the name of Makenzies Heinrich Butzer (India), Ltd., in which the corporation was one of the principal shareholders. The other principal shareholder was German company which had secured a contract for constructing port work at Kandla. Sometime thereafter, the name Makenzies Heinrich Butzer (India), Ltd., was changed to Sindhu Hotchief (India), Ltd., hereinafter referred to as the subsidiary company. After the subsidiary company was formed, it required trained personnel to carry on its administration. Consequently, the corporation agreed to transfer or loan the services of some of its employees to the subsidiary company. The case of the corporation, however, was that the employees whose services were, as aforesaid, loaned or transferred, were permanently transferred to the subsidiary company and that after such transfer, those employees ceased to be the servants of the corporation. On the other hand, the case of respondent 3 was that his services were merely loaned to the subsidiary company and that he did not cease at any time to be the employee of the corporation It would seem that on 2 September, 1953 the corporation issued an order relieving respondent 3 to enable him to work for the subsidiary company. On 2 September, 1953, respondent 3 reported at the office of the corporation that he was leaving charge there to take up his duties with the subsidiary company in accordance with the directions of the managing director of the corporation. On that very day, he also reported at the office of the subsidiary company that he had taken over charge there. Though orders for relieving him were issued by the corporation, on 2 September, 1953, owing to a difficulty having arisen regarding his application for leave for ten days on account of the death of his father he was not considered as having joined duty at the subsidiary company on 2 September, 1953 and was held to have continued to work for the corporation until 18 September, 1953. On 3 September, 1953 he filed an application for leave for ten days with the corporation which granted him leave up to 17 September, 1953. On returning from leave, he commenced working for the subsidiary company on and from 18 September, 1953 in the capacity of an accounts clerk. It would seem that while he was on leave, the subsidiary company issued an order of appointment, Ex. 8, dated 5 September, 1953. It is an admitted fact that from 18 September, 1953 till 20 February, 1958 when his services were terminated by the subsidiary company, respondent 3 was actually working in the subsidiary company as an accounts clerk. It is also an admitted position that on 21 February, 1958 he reported for duty at the office of the corporation, requesting for a suitable posting, but no such posting was given to him and ultimately the corporation informed him that as he was relieved from the service of the corporation at his own request to join the service of the subsidiary company, no question of absorbing him after his services were terminated by the subsidiary company arose. The case of the corporation thus was that there was a cesser of the relationship of master and servant between the corporation an respondent 3 when he started working for the subsidiary company and that that being so, he was not entitled to be absorbed in the services of the corporation. Respondent 3, therefore, made a complaint to his union, respondent 2 herein, and the union thereupon presented a demand to the corporation, being demand 1, which was in the following terms : 'R. S. Ambwaney should be reinstated in the service of Sindhu Resettlement Corporation, Ltd., and he should be paid his wages from 21 February, 1958.' Conciliation proceeding thereafter followed and on a certificate of failure by the conciliation officer, the Government made a reference under S. 10(1) of the Industrial Disputes Act, 1947, to the tribunal.
(3.) ACCORDING to respondent 3, he was entitled to be reinstated on his original post as his services with the corporation were at no time terminated. He denied that he had at any time resigned from the service of the corporation or that any such resignation was accepted by the corporation. As aforesaid, he prayed for reinstatement and also for his salary for the period of his unemployment. During the course of the hearing before the tribunal, it was conceded that during the period of his unemployment he had joined service of another company and had earned Rs. 1,458. The case, on the other hand, of the corporation was that respondent 3 had of his own accord left service of the corporation in order to join the subsidiary company. In Para. 3 of its written statement, the corporation averred that it had invited the members of its own staff to opt for service in the subsidiary company if they so desired, and the corporation had promised to relieve such of them as were desirous of taking up their service with the subsidiary company. The corporation also averred that respondent 3 as also some other members of its staff had in fact opted for the subsidiary company. The corporation further averred in its written statement that respondent 3 and certain other members of its staff had not actually tendered their resignations but had definitely left the service of the corporation of their own accord in order to be able to join the service of the subsidiary company. The contention, therefore, of the corporation was that respondent 3 had ceased to be the employee of the corporation on and from 18 September, 1953 and had, therefore, no right to be absorbed in its service after his services were terminated by the subsidiary company.;