P. Jaganmohan Reddy, J. - (1.) These appeals are by special leave in which the question which falls for consideration is whether the appellant is a person employed within the meaning of section 2 (12) (iii) of the Madras Shops and Establishment Act, 1947 (Madras Act No. XXXVI of 1947) (hereinafter called 'the Act'). The first respondent, a private limited company hereinafter termed as 'the holding company' or the 'Madras company'), having been empowered by the Memorandum of Association, promoted another company known as the Gordon Woodroffe Leather Manufacturing Company (hereinafter called 'the subsidiary company' or the 'Pallavaram company') in which it held 80% preference shares and 70% equity shares. The holding company was also the managing agent of the subsidiary company. In 1959 the managing agency of the holding company was terminated but nevertheless in view of its shareholding it continued to control the subsidiary company. The appellant who was a Chartered Accountant qualified in London had applied for and was offered employment as an Assistant in the holding company on the terms and conditions contained in the letter dated 19-10-1963. He accepted the employment and the terms and was accordingly appointed by the holding company. On 28-10-65 the holding company, in order to simplify the accounting procedures informed the appellant of its decision to offer revision of the terms of engagement with effect from 1st July, 1965 relating to the basis salary. D. A. and bonus, all other terms of service remaining unaltered. The Appellant was asked to confirm his acceptance of these terms which it appears he did. He was thereafter permitted to cross the efficiency bar. It may here be mentioned that after his appointment the appellant was given training in the Madras company for two month after which it is alleged that the Director had asked him to go to the Pallavaram company to work there. Even while working there his salary was being paid by the Madras company though it was by an arrangement between the two companies being debited to the Pallavaram company. The appellant continued to work in the Pallavaram company till 15th October 1966 on which date his services were terminated by the holding company. The appellant thereupon filed an appeal before the Additional Commissioner for Workmen's Compensation under under 41 (2) of the Workmen's Compensation Act. The 1st respondent however raised an objection before the Additional Commissioner that the appellant was not a person employed within the meaning of the Act and, therefore, the provisions of the said Act would not be applicable to him. In view of this objection an application was filed by the appellant under section 51 of the Act for declaring that he is a person employed and some time thereafter got his application under section 41 (2) stayed. The lis between the parties on the application under section 51 as well as under section 41 (2) was whether the appellant was an employee of the holding company or of the subsidiary company. The appellant claimed that under the terms of the offer of appointment which was accepted by him he was required to work either in the Madras office or the Pallavaram office or at any other office or place of business of the company and though he was working in the Pallavaram office, his salary was being paid by the holding company, his bonus for the year ending 1964 was also paid by that company which also terminated his services. The 1st respondent averred that though the petitioner might have been appointed or dismissed by the Madras company he was actually a person employed in the Pallavaram company. It was also admitted that while the salary of the appellant was paid initially by the Madras company it was recovered from the Pallavaram company as is evident from the registers of account maintained that such recoveries from the Pallavaram company were effected, and that for purpose of the Act what is relevant is not 'employment by' but 'employment in'. If so as he was employed in the Pallavaram company he was not a person employed within the definition of the Act by the Madras company. The Commissioner of Labour by his order of 9th January, 1968 accepted the 1st respondent's contention and held that the petitioner cannot be declared to be a person employed under section 2 (12) (iii) of the Act and that even under section 2 (12) (ii) of the Act. the petitioner cannot be treated as a person employed vis- is the Pallavaram Company as admittedly the appellant was not a member of the clerical staff employed in the Palavvaram company. The petition was accordingly dismissed.
(2.) After the appeal was dismissed the appeal filed under S. 41 (2) of the Act was disposed of by the Additional Commissioner for Workmen's Compensation who held that in view of the findings given by the competent authority under Section 51 of the Act on the question of applicability of the provisions of that Act of the appellant, he had no jurisdiction to go into the merits of the appeal. He accordingly dismissed that appeal also. 3. It may be stated that the appellant's Special Leave Petition was filed against both the Orders but in view of the objection raised by the office, two S. L. Ps, were filed and this Court gave leave on them. These two appeals were subsequently consolidated.
(3.) On behalf of the appellant the following two questions were urged for determination:(1) whether on the facts and circumstances of the case and on a true construction of cl. (iii) sub-section (12) of section, 2, the appellant being wholly and principally employed in connection with the business of the Madras establishment was a person employed. (2) whether jurisdiction of the authority under section 41 sub-section (2) is circumscribed by the provisions of section 51. In our view the second question is purely academic because if the jurisdiction of the authority under section 41 (2) is circumscribed by the provisions of section 51 of the question whether the decision of the Commissioner of Labour under section 51 that the appellant is a person employed will nevertheless arise for decision and if it is not even then that question would fall for determination. In any view we have to ascertain what under the provisions of the Act is meant by a person employed and whether the appellant is one such. If he is a person employed then the Additional Commissioner of Workmen's Compensation has to go into the allegation of the appellant that his services were not terminated in accordance with the provisions of section 41 (1).;