Sugla, J.:— These petitions are by different petitioners under Arts. 226 and 227 of the Constitution of India, inter, alia, challenging the notices issued by the first respondent — Bombay Metropolitan Transport Corporation, Ltd.— terminating their services with effect from 1 July 1984.

2. The second respondent — City and Industrial Development Corporation of Maharashtra, Ltd.—has been incorporated as corporation under S. 113 of the Maharashtra Regional and Town Planning Act, 1966, with a view to establish and develop a new township by name New Bombay in order to remove congestion in the Bombay City. With the object of facilitating the transport of passengers from Bombay to New Bombay and New Bombay to Bombay, the second respondent (hereafter referred to as C.I.D.C.O) started bus service section in the year 1970. By notification issued on 19 November 1971, the Government of Maharashtra gave an assurance to the persons affected by the acquisition of their land at New Bombay that they would be given employment, etc. By resolution, dated 11 September 1979, C.I.D.C.O, decided to form a separate corporation for taking over and running its transport section. A corporation by name C.I.D.C.O Transport Corporation, Ltd. was incorporated on 15 November 1979, and the new corporation took over the transport business of C.I.D.C.O with effect from 1 April 1980. The name of C.I.D.C.O Transport Corporation, Ltd. was changed to Bombay Metropolitan Transport Corporation, Ltd. (first respondent), hereinafter referred to as B.M.T.C on and from 21 June 1980.

3. The facts in individual cases are not adverted upon as it is not considered necessary. Broadly stated the facts are that all the petitioners herein were employed by C.I.D.C.O as its employees. All of them were confirmed in their respective posts. At the time of taking over of the transport section of C.I.D.C.O by the C.I.D.C.O Transport Corporation, Ltd. all were working in the transport section. In some cases specific orders were passed directing them to work with B.M.T.C In other cases, no specific orders were passed and the concerned employees continued to work with B.M.T.C However, consent of the petitioner-employees was not taken in any case, nor was it made clear to them in writing or otherwise that their lien with C.I.D.C.O was scrapped. In fact some of the employees were taken back by C.I.D.C.O long after their services was made over to the B.M.T.C There is a resolution, dated 10 April 1980, (at page 43 of the Paper Book in Writ Petition No. 3896 of 1984) which provides in Para. 5 as under:

“As the transport activities have been separated from C.I.D.C.O it is proposed that the liabilities arising out of payment of gratuity in respect of employees of transportation for the period of services rendered upto 31 March 1980, will be met by C.I.D.C.O and set off against the loans against C.T.O”

Other pertinent resolutions [being item (10) at page 53 and at page 54 of the same Paper Book being item (9)] are as under:

Item (10), Page 53:

“Resolved that the rules and regulations applicable in C.I.D.C.O be adopted by the corporation in respect of its employees to the extent they are applicable until such rules and regulations are modified by the Board.”

Item (9), Page 54:

“Resolved that the proposal to create posts in different categories as shown in the annexure be and is hereby approved. Resolved further that the persons in service against these posts being created on the same terms and conditions as they held the posts in the parent company.”

The abovesaid resolutions do give some indication that C.I.D.CO perhaps, was labouring under the impression that on its transport business being taken by B.M.T.C, the employees working in that department would become employees of B.M.T.C on the same terms and conditions. However, it appears to us that the importance of transfer of service of so many employees was then not realised as the authorities at that time never contemplated that they might have to close its new undertaking or that in the eye of law, B.M.T.C even though a 100 per cent subsidiary of C.I.D.C.O was an independent and separate undertaking. It is a different thing that for reasons given by us the employees continued to be the employees of C.I.D.C.O

5. B.M.T.C for reasons we are not concerned in these petitions decided to close its establishment and after obtaining permission from the Government of Maharashtra under S. 25-O(2) of the Industrial Disputes Act, 1947, as applicable to the State of Maharashtra terminated the services of the petitioners declaring them to be surplus with effect from 1 July 1984. Some of the employees including the petitioners filed appeals challenging the closure of establishment. The Industrial Tribunal granted order of stay on 21 June, 1984 and finally allowed the appeals vide order, dated 21 November 1984. Writ petition filed by B.M.T.C against the aforesaid order of Tribunal was dismissed by this Court vide order, dated 11 January 1985, in Writ Petition No. 5070 of 1984. Though strange it sounds it is a fact that B.M.T.C filed a review application against the aforesaid order of this Court under S. 25-O(6) before the Government of Maharashtra, which was, of course, rightly rejected. There is, thus, no sanction of the Government of Maharashtra to the B.M.T.C's proposal, dated 1 April 1984, for closure of their establishment in terms of S. 25-O, Sub-sec. (2) of the Industrial Disptues Act in the eye of law. The orders of termination must, therefore, fail on this ground alone.

6. The counsel for the petitioners, however, urged that mere quashing of an order of termination by this Court might not meet the ends of justice as B.M.T.C has, in the meantime, gone into liquidation. It was likely that the orders directing their continuance in the employment by B.M.T.C would be of not much consequence. Placing reliance on the authority of the Supreme Court decision in the case of Manager, Pyarchand Kesariinal Porwal Bidi Factory v. Onkar Laxman Thenge [A.I.R 1970 S.C 823], Para. 8, it was contended that their services cannot be treated as transferred and absorbed in the B.M.T.C in the absence of their consent. They continued to be the employees of C.I.D.C.O and therefore, B.M.T.C could not dismiss their services. At best B.M.T.C could send them back to C.I.D.C.O if it decided for reasons best known to it to close its establishment as they were and are the employees of the C.I.D.C.O As against this Sri Sawant, the learned counsel for the C.I.D.C.O relied on the provisions of S. 25-FF of the Industrial Disputes Act, 1947, to show that it was a case where the ownership or management of an undertaking was transferred by agreement or by operation of law, and the services of the employees of the former undertaking were absorbed in the new undertaking and yet the provisions of S. 25-FF were not applicable inasmuch as proviso thereto is applicable and excludes the operation of S. 25-FF. In support of his submission, Sri Sawant took us at length through the decision of the Supreme Court in the case of Anakapalle Co-operative Agricultural and Industrial Society, Ltd. v. Workmen [A.I.R 1963 S.C 1489], particularly Paras. 11, 17 and 18 and the decision in the case of R.S Madho Ram & Sons (Agencies) (Private), Ltd. v. Its workmen [1964—I L.L.J 366].

7. We have carefully considered the rival contentions. In our opinion, the submission made on behalf of the petitioners is well founded, inasmuch as, it is supported by the Supreme Court decision in Manager, Pyarchand Kesarimal Porwal Bidi Factory v. Onkar Laxman Thenge [A.I.R 1970 S.C 823] (vide supra). The Supreme Court has in terms stated that a contract of service being incapable of transfer unilaterally, it can be done if at all with the consent of the employee. There being no dispute that the consent of the employees was not taken in this case and not even statute intervening, we have no hesitation in holding that the services of the petitioners-employees were not transferred to C.I.D.C.O Transport Corporation, Ltd. and thereafter, to B.M.T.C and they continued to be the employees of C.I.D.C.O As regards S. 25-FF of the Industrial Disputes Act on which great emphasis was laid by Sri Sawant, we do not think that the said section helps the case of C.I.D.C.O at all. This is because firstly such a plea has not been specifically taken by C.I.D.C.O in their return. Secondly, a decision on an issue like this as observed by their Lordships of the Supreme Court in R.S Madho Ram & Sons (Agencies) (Private), Ltd. v. Its workmen [1964—I L.L.J 366] (vide supra), will depend on the facts of each case. Moreover, S. 25-FF provides for retrenchment benefits in a situation covered by that section. If as Sri Sawant has argued, C.I.D.C.O's case is covered by the proviso, it would only mean that S. 25-FF does not apply in this case. We fail to understand how it helps the case of C.I.D.C.O, viz., that the petitioner-employees are not their employees.

8. Having regards to the above discussion, we hold that the petitioner-employees continued to be the employees of C.I.D.C.O and C.I.D.C.O is bound to take them in their employment with continuity of service. However, we would like to observe that by way of concession, the learned counsel for the petitioners appreciating the difficulties of C.I.D.C.O made an offer that their clients would not insist for the same posts and are willing to be posted at any place in the State of Maharashtra. This would mean that they will be entitled to the same pay-scale which they would have been entitled to had they continued in the service of C.I.D.C.O But they can be given-equivalent posts, not necessarily the same posts. This means all the petitioners will be entitled to back-wages from the alleged date of termination till the date of their reinstatement in the employment, from the C.I.D.C.O However, C.I.D.C.O will be entitled to adjust the payment already made by virtue of the order passed by this Court, or otherwise.

9. In the result, rule is made absolute. There will be no order as to costs.