Ashok K. Jha v. Garden Silk Mills , (SC) BS204953
SUPREME COURT OF INDIA

Before:- Tarun Chatterjee and R.M. Lodha, JJ.

Civil Appeal No. 5854 of 2009 (Arising out of SLP(C) No. 29303/2008). D/d. 28.8.2009.

Ashok K. Jha & Ors. - Appellants

Versus

Garden Silk Mills & Anr. - Respondents

For the Appellant :- Ms. Meenakshi Arora, Advocate.

For the Respondents :- Mr.Mukul Rohatgi, Sr. Advocate with Mr. Sanjay Kapur, Mr. Rajiv Kapur, Ms. Shubhra Kapur, Ms. Arti Singh and Mr. D.G. Chauhan, Advocates.

A. Bombay Industrial Relations Act, 1946, Sections 42(1), 46(4) and Schedule II Items 1 and 2 - Inter Departmental Transfer - Notice of change in service conditions - Transfer of employees from crimping Department to twisting department - No change in the service conditions of the workers they continue to enjoy same pay scales, rights and benefits flowing from service - Type of work also remains the same - Notice under Section 42(1) not required.

[Paras 23 to 27]

B. Constitution of India, 1950, Articles 226 and 227 - Bombay High Court Letters of Patent Clause 15 - Maintainability of Letters Patent Appeal - If the judgment under appeal falls squarely within four corners of Article 227, then intra Court appeal from such judgment would not be maintainable - However if petitioner has invoked jurisdiction of High Court for issuance of certain writ under Article 226, although Article 227 is also mentioned and principally judgment appealed against falls under Article 226, the appeal would be maintainable - It is the true nature of order passed by the Single judge which is important to be ascertained and not the provision he mentions while exercising such powers. AIR 2009 Supreme Court 713 relied upon.

[Paras 35 and 36]

Cases Referred :-

Umaji Kesho Meshram v. Radhikabai, 1986 (Supp) SCC 401.

State of Gujarat v. Vakhatsinghji Vajesinghji Vaghela, AIR 1968 Supreme Court 1481.

Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand, [(1973)1 SCR 185].

Mahomedalli Allabux v. Ismailji Abdulali, AIR 1926 Bombay 332.

Raghunath Keshav Khadilkar v. Poona Municipality, Ryots of Garabandho v. Zemindar of Parlakimedi, AIR 1942 Privy Council 164.

Moulvi Hamid Hasan Nomani v. Banwarilal Roy, AIR 1947 Privy Council 90.

State of U.P. v. Vijay Anand Maharaj, AIR 1963 Supreme Court 946.

Commissioner Income Tax v. Ishwarlal Bhagwandas, AIR 1965 Supreme Court 1818.

Ramesh v. Seth Gendalal Motilal Patni, AIR 1966 Supreme Court 1445.

Arbind Kumar Singh v. Nand Kishore Prasad, AIR 1968 Supreme Court 1227.

Ramesh Chandra Sankla v. Vikram Cement, AIR 2009 Supreme Court 713.

Hari Vishnu Kamath v. Syed Ahmad Ishaque, AIR 1955 Supreme Court 233.

Aidal Singh v. Karan Singh, AIR 1957 Allahabad 414.

Raj Kishan Jain v. Tulsi Dass, AIR 1959 Punjab 291.

Barham Dutt v. Peoples' Cooperative Transport Society Ltd., New Delhi, AIR 1961 Punjab 24.

Ratnagiri District Central Co-operative Bank Ltd. v. Dinkar Kashinath Wative, 1993 (Suppl.) 1 SCC 9.

Sushilabai Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shah, 1993 Suppl. (1) SCC 11.

Kishori Lal v. Sales Officer, District Land Development Bank, 2006(7) SCC 496.

State of Madhya Pradesh v. Visan Kumar Shiv Charan Lal, 2009(1) SCT 534 : AIR 2009 Supreme Court 1999.

JUDGMENT

R.M. Lodha, J. - Leave granted.

2. Two questions that arise for consideration in this appeal by special leave are :

3. We may briefly notice the relevant facts first. Garden Silk Mills Ltd. - respondent (hereinafter referred to as, "employer") have their mills at Vareli, Taluka Palsane, District Surat. The mills have many departments including Crimping Department and Twisting Department which are located in the same campus. The appellants (hereinafter referred to as, "employees"), prior to May 3, 1996, were working as Crimping Operators in the Crimping Department. Initially on May 3, 1996, these employees were informed that they have been transferred to Twisting Department and they must henceforth do their duties in that department. The employees did not join their duties in the Twisting Department and, accordingly, the employer issued written order on May 4, 1996 to these employees individually intimating them that their services have been transferred from Crimping Department to Twisting Department. In the transfer order, it was clarified that there is no change in their service conditions; they will continue to receive same pay scale and all other benefits which they have been getting while working in the Crimping Department.

4. The employees sent request letter under Section 42(4) of the Bombay Industrial Relations Act, 1946 (for short, "BIR Act") to the employer requesting them to withdraw the transfer order dated May 4, 1996. The employees also requested the employer to place them at original post in the Crimping Department.

5. On May 9, 1996, the employer sent a reply to the request letter and reiterated that by transfer from Crimping Department to Twisting Department, there has been no change in their service conditions. The employer expressed its inability to withdraw the transfer order. The employer also warned the employees if they did not resume their duty in the Twisting Departing as Twister, an endorsement, "refused to work" would be made in the muster roll.

6. The employees then approached the Labour Court by making an application under Sections 77 and 78 of the BIR Act. According to the employees, they have been working as operators in Crimping Department and they are not conversant to run the twisting machines and by transferring them from Crimping Department to Twisting Department, there is total change in the type of their work. They averred that by transferring them from Crimping Department to Twisting Department, the employer has permanently decreased the strength of the Crimping Department and consequential increase in the Twisting Department. The employees alleged that their transfer by the employer tantamounts to change in respect of matter specified in items nos. 1 and 2 of Schedule II of the BIR Act and, therefore, notice of change under Section 42(1) was required to be given and the prescribed procedure must have been necessarily followed.

7. Yet another application challenging the orders of transfer was made by the Surat Silk Mills Labour Union, representative union, before the Labour Court, Surat.

8. The employer contested both applications on diverse grounds. Inter alia, it was stated that there is no change in respect of service conditions, pay scale, benefits, designation and type of work as well as continuity of service by transfer of these employees from Crimping Department to the Twisting Department. The employer denied that their action of transferring the employees was covered by item nos. 1 and 2 of Schedule II but, according to them, their action is covered under item 2 of Schedule III of the BIR Act.

9. It is not necessary to refer to the first round of litigation as the matter was ultimately remanded to the Labour Court for fresh consideration. Before the Labour Court, the parties led documentary evidence but did not lead any oral evidence.

10. The 1st Labour Court, Surat disposed of both applications by a common order dated September 6, 2001. In its order, 1st Labour Court recorded a finding that the employees had failed to prove that the employer had made change in relation to item nos. 1 and 2 of Schedule II. This is what the 1st Labour Court held :

11. Aggrieved by the order of the 1st Labour Court dated September 6, 2001, the employees and the union preferred a joint appeal under Section 84 of BIR Act before the Industrial Court, Surat.

12. The Industrial Court did not agree with the findings of the 1st Labour Court in its order dated March 9, 2006. It held :

13. The Industrial Court, Surat set aside the order of the 1st Labour Court and directed the employer to withdraw the orders of transfer dated May 4, 1996 and to entrust to the employees, work of the original post.

14. The employer challenged the order of the Industrial Court by filing a petition (Special Civil Application) under Articles 226 and 227 of the Constitution before the High Court of Gujarat. The learned Single Judge dismissed the petition on October 1, 2007 holding thus :

15. Aggrieved by the order of the learned Single Judge, the employer preferred Letters Patent Appeal under Clause 15 of the Letters Patent before the Division Bench. The Division Bench, after hearing the parties found the appeal meritorious and by its order dated May 14, 2008, allowed the appeal and set aside the judgment and order of the learned Single Judge. The Division Bench also set aside the judgment and order passed by the Industrial Court, Surat and restored the judgment and order dated September 6, 2001 passed by the Labour Court, Surat.

Re : Question (1)

16. Clause (18) of Section 3 defines "Industrial matter" to mean "any matter relating to employment, work, wages, hours of work, privileges, rights or duties of employers or employees or the more, terms and conditions of employment."

17. Section 42(1) which is relevant for consideration of this question reads thus :-

18. Section 46(4) provides that no employer shall make any change in any industrial matter mentioned in Schedule II before giving notice of change as required by the provisions of sub-section (1) of Section 42 and any change made in contravention of the provisions of sub-section (1), (2) of (3) shall be illegal.

19. Item 1 of Schedule II reads :

20. Item 2 of Schedule II refers to: "Permanent or semi- permanent increase in the number of persons employed or to be employed in any occupation or process or department or departments."

21. Item 2 of Schedule III reads :

22. A close look at the Item Nos. 1 and 2 of Schedule II and Item 2 of Schedule III would show that insofar as assignment of work and transfer of workers within the establishment is concerned, the subject is precisely and specifically covered by Item 2 of Schedule III. The expression, 'assignment of work and transfer of workers within the establishment' is plain and admits of no ambiguity. If the orders of transfer are of the description mentioned in item 2 of Schedule III, item 2 of Schedule III must come into full play. Item nos. 1 and 2 of Schedule II operate altogether in a different field. Basically, Items 1 and 2 of Schedule II deal with reduction in the number of persons employed or to be employed in any occupation or process or department or departments or in a shift or permanent or semi permanent increase in the number of persons employed or to be employed in any occupation or process or department or departments. A mere transfer of workers within the establishment would not attract Item Nos. 1 and 2 of Schedule II but would be covered by Item 2 of Schedule III as there is a specific item in this regard. A specific item would exclude the items of general character and, in that view of the matter, in the matters of transfer of workers within the establishment and assignment of work by the employer, the specific Item 2 of Schedule III is attracted.

23. The orders of transfer dated May 4, 1996 apparently make it clear that there is no change in the service conditions of the workers viz. the workers continue to enjoy same pay scales, rights and benefits flowing from service and the type of work also remains the same. The only thing that has been done by the impugned orders of transfer is that these workers have been asked to discharge their duties in the Twisting Department instead of Crimping Department.

24. It is pertinent to notice that the employees did not produce any evidence to establish that there was difference in the work in the Crimping Department and the Twisting Department or that work of operator at the crimping and twisting machines is different. No evidence has been led by the employees about the fixed number of employees in the Crimping Department. In the absence of any evidence by the workers about any fixed number of workers in the Crimping Department and Twisting Department, there is no foundation laid for consideration of the question of reduction in the Crimping Department and increase in number in the Twisting Department by impugned orders of transfer. Obviously, the burden lay on the workers to establish that the number of workers in each of these departments i.e. Crimping Department and Twisting Department has been determined and that due to the action of the employer, there has been decrease or increase in the number of workers in these two departments.

25. We are not persuaded by the submission of the learned Counsel for the appellants that there is a basic difference in the nature of machines in the Crimping and Twisting Departments and that workers are not trained to work at Twisting Machines. If that were so, the workers ought to have led evidence in that regard which they never did.

26. The Division Bench of the High Court in this regard considered the matter thus :

27. We agree with the view of the High Court and for the reasons already indicated above, we answer question (1) in the negative.

Re. : Question (2)

28. In the Case of Umaji Kesho Meshram v. Radhikabai, 1986 (Supp) SCC 401, this Court had an occasion to consider the question whether any appeal lies under Clause 15 of the Letters Patent of the Bombay High Court before the Division Bench of two Judges of the High Court from the judgment and order of the learned single Judge of the High Court in petition filed under Article 226 and 227 of the Constitution. The Court held :

29. In the case of Ratnagiri District Central Co-operative Bank Ltd. v. Dinkar Kashinath Wative, 1993 (Suppl.) 1 SCC 9 this Court held that for determining the question of maintainability of an appeal against the Judgment of the single Judge in a writ petition where both Articles 226 and 227 of the Constitution have been mentioned, the Division Bench has to find out whether in substance the judgment has been passed by the learned single Judge in exercise of the jurisdiction under Article 226 of the Constitution. The Court held thus :

30. In Sushilabai Laxminarayan Mudliyar and others v. Nihalchand Waghajibhai Shah and Others, 1993 Suppl. (1) SCC 11 the Court held :

31. The issue concerning maintainability of Letters Patent Appeal from an order of single Judge in the writ petition filed under Articles 226 and 227 of the Constitution of India, again came up for consideration before this Court in the case of Kishori Lal v. Sales Officer, District Land Development Bank and Ors., 2006(7) SCC 496. This Court held :

32. The discussion on the subject would be incomplete without reference to two recent decisions of this Court viz., (i) State of Madhya Pradesh and Ors. v. Visan Kumar Shiv Charan Lal, 2009(1) SCT 534 : AIR 2009 Supreme Court 1999 and (ii) Ramesh Chandra Sankla v. Vikram Cement, AIR 2009 Supreme Court 713. In the case of Visan Kumar Shiv Charan Lal, this Court referred to earlier decisions in the case of Umaji, Sushilabai Laxminarayan and Ratnagiri District Co-operative Bank Ltd.2, and held :

33. In Visan Kumar Shiv Charan Lal, this Court further held that the determining factor is the real nature of principal order passed by the Single Judge which is appealed against and neither mentioning in the cause title of the application of both the Articles nor granting of ancillary order thereupon by the Single Judge would be relevant and in each case the Division Bench must consider the substance of the Judgment under appeal to ascertain whether the Single Judge has mainly or principally exercised his jurisdiction under Article 226 or Article 227 of the Constitution.

34. In Ramesh Chandra Sankla, this Court held :

35. If the judgment under appeal falls squarely within four corners of Article 227, it goes without saying that intra court appeal from such judgment would not be maintainable . On the other hand, if the petitioner has invoked the jurisdiction of the High Court for issuance of certain writ under Article 226, although Article 227 is also mentioned, and principally the judgment appealed against falls under Article 226, the appeal would be maintainable. What is important to be ascertained is the true nature of order passed by the Single Judge and not what provision he mentions while exercising such powers. We agree with the view of this Court in Ramesh Chandra Sankla that a statement by learned Single Judge that he has exercised power under Article 227, cannot take away right of appeal against such judgment if power is otherwise found to have been exercised under Article 226. The vital factor for determination of maintainability of intra court appeal is the nature of jurisdiction invoked by the party and the true nature of principal order passed by the Single Judge.

36. Insofar as the present case is concerned, in the cause title of the writ petition (Special Civil Application), Articles 226 and 227 of the Constitution have been mentioned. A careful reading of the writ petition shows that writ petition is not confined to supervisory jurisdiction of the High Court. The employer has invoked jurisdiction of the High Court by praying for a writ of certiorari. The prayer clause in the writ petition reads, "In view of the aforesaid premises your Lordships may be pleased to issue a writ of certiorari or any other appropriate order......" . The judgment of the Single Judge is, thus, traceable to Article 226. The statement made by the Single Judge in his order that no case for interference is made out under Article 227 of the Constitution is not decisive. Moreover, the Division Bench in its order observed, "though long drawn arguments were advanced on the question of maintainability of this Appeal, there rally was not a serious contest on the question of maintainability of the Appeal." For all these reasons, we hold that Letters Patent Appeal was maintainable from the order dated October 1, 2007 passed by the learned Single Judge. We answer question (2) in affirmative.

37. By way of foot-note, we may observe that during the course of hearing of the appeal, we were informed by the Senior Counsel for the employer that dispute has been resolved amicably with twelve employees. We gave an opportunity to the remaining employees to settle the dispute with the employer as has been done by twelve employees, and although employer expressed their willingness, but the remaining employees found the offer of the employer unacceptable.

38. In the result, appeal fails and is dismissed with no order as to costs.

Appeal dismissed.