HIDAYATULLAH, J. - (1.) BY notification No. 9869 (TD)/XXXVI-2-24 (TD)/58, dated 27 January, 1962, the Government of Uttar Pradesh referred the following matter of dispute to the industrial tribunal (No. 1), Uttar Pradesh at Lucknow, and it was registered as a Reference No. 12 of 1962 "(1) Have the services of R. K. Sharma, son of Sri Nathoo Lal, head clerk (general), been wrongfully and/or unjustifibly terminated with effect from 29 March, 1957 ? (2) If the issue (1) is decided in the affirmative, to what relief is Sharma entitled and from which of the employers ?"
(2.) BY its order dated 26 October, 1962 the tribunal decided the matter of dispute partly in favour of the employee, R. K. Sharma. The present appeal is by the Upper Ganges Bijli Karamchari Sangh, Moradabad, and Sharma with the special leave of this Court contending that the issue (2) was wrongly decided and he was entitled to more compensation than was awarded to him. R. K. Sharma joined the service of the Upper Ganges Valley Electricity Supply Company, Ltd., Moradabad, in September, 1940. The company was being managed by Martin Burn, Ltd., Calcutta. On 28 June, 1956, there was a riot at the premises of the company and one B. S. Sexana, a dismissed employee of the company, received injuries in the course of the riot and lost his life. A criminal prosecution was started against many persons including Sharma. On 21 March, 1957 the Sessions Judge, Moradabad, convicted, Sharma and sentenced him to four years' rigorous imprisonment under certain sections of the Indian Penal Code which it is not necessary to mention here. Sharma appealed on 25 March, 1957 to the High Court of Allahabad and obtained bail the same day. On 29 March, 1957 the resident engineer of the company served a notice upon Sharma terminating his services with immediate effect under standing order 18 (82). He was paid one month's salary in lieu of notice. His salary then was basis Rs. 200, cost of living allowance Rs. 38.26 per month and personal pay Rs. 14.50 per month - total Rs. 252.76 per month. Sharma was then working as the head clerk of the company. Sharma then asked for reinstatement pending the disposal of his appeal but this was refused by the company. He applied to the regional conciliation officer asking for reinstatement on the ground that there was no chargesheet and no enquiry as required by the standing orders and no permission was obtained from the regional conciliation officer even though an industrial dispute was then pending. The company resisted this application on the ground that it was an individual dispute and not an industrial dispute and succeeded on this plea in getting the application dismissed. The company also, as a matter of caution, applied under S.6E of the Utter Pradesh Industrial Disputes Act to the State industrial tribunal for the approval of the action taken against Sharma. This application also failed because the Act came into force from April 1957 and could not apply to the order terminating Sharma's service in March 1957. Matters remained thus till the Upper Ganges Bijli Karamchari Sangh took up the cause of Sharma and the present reference was made but more of that later. Meanwhile on 13 May, 1658 the High Court accepted Sharma's appeal and acquitted him. Although Sharma was acquitted, he was not reinstated. On 5 May, 1959, the Uttar Pradesh State Electricity Board, taking advantage of the expiry of the company's licence in May 1959, purchased the electrical undertaking on and from 5 May, 1959 under S.6 read with S. 71, Indian Electricity Act, 1910. The electrical undertaking has thereafter been run and managed by the board and the company went, soon after its business was taken after, into voluntary liquidation. The board took over the staff of the company subject to certain conditions. These conditions are contained in Ex. E. 3/1 which is described as "schedule of procedure for handing over the company's undertaking." Paragraph 4 of this schedule reads :"All staff, except those specified by the company or who wish to resign or who in the opinion of the electricity board are not suitable, will be transferred to the electricity board and will continue to be paid the same scales of salary including dear-food allowance, etc., as hitherto and the same shall not be less favourable than those on which they are at present employed." As Sharma had not been reinstated despite his acquittal, the company did not show him in the list of the staff taken over from the company by the board on 4/5 May, 1959. As a matter of the fact one R. S. Bhatnagar was shown as the head clerk of the company. In other words, the board did not take Sharma on its staff and Sharma remained in the same position as he was before. Subsequently, as already stated, the Upper Ganges Bijli Karamchari Sangh took up the cause. It is not necessary to describe all the steps that the Sangh took. Finally in a writ petition filed in the Allahabad High Court the Uttar Pradesh Government was asked to decide whether a reference should be made or not under the Industrial Disputes Act and the Government then made the present reference.
(3.) A number of questions arose in the reference. The company and the managing agents tried to shift the responsibility on to the board and the board in its turn tried to shift it back to the company and its managing agents. That part of the dispute is no longer alive. It was decided by the tribunal that the responsibility, if any, must fall upon the company in liquidation because Sharma was not an employee of the managing agents and had never been accepted by the board. A faint attempt was made in this appeal by Sri J. P. Goyal who contended on the basis of Para. 4 quoted above that all staff of the company automatically stood transferred to the board except those specified by the company or who resigned or who were not accepted by the board. He submitted that Sharma was not within any of exceptions and therefore, his services must be taken to have been transferred to the board. The language of the paragraph is not very happy. The words "all staff" are out down by the exceptions and really mean that such of the staff as do not fall within the exceptions were transferred from the company to the board. Sharma was not in the list prepared by the company and accepted by the board and, therefore, he could not be said to have been automatically transferred because he would be hit either by the first exception or by the second or both. The tribunal has taken the same view of the matter and in our opinion rightly. The tribunal was therefore right in holding that the company in voluntary liquidation is the party which must answer Sharma's claim.The tribunal held that the dismissal of Sharma was improper not only for the reason that the procedure contemplated by the standing orders was not valid but also for the reason that after his acquittal there was no valid reason for not re-employing him. The tribunal also held that after Sharma appealed and was released on bail he ought to have been allowed to work pending the disposal of his appeal. These findings of the tribunal were not questioned by the respondents in this appeal and we need not therefore traverse the grounds on which the findings were based except to indicate that we agree with those grounds. The first matter in dispute must, therefore, be taken to be rightly decided by the tribunal in favour of Sharma.;