SBCWP NO.6828/2008 Liberty Phosphate Ltd. Vs. Shanker Singh & Ors. 1 SBCWP NO.6828/2008 Liberty Phosphate Ltd. Vs. Shanker Singh & Ors. DATE OF ORDER : - 26.9.2008 HON'BLE MR. PRAKASH TATIA, J. Mr. Harish Purohit, for the petitioner. Mr. MA Saddiqui, for the respondents. <><><> Heard learned counsel for the parties. The petitioner is aggrieved against the order passed by the appellate court, District Court, Udaipur dated 26.8.2008 in Civil Misc. Appeal No.74/2008 by which the appeal of the plaintiff was allowed and injunction order was passed against the petitioner restraining the petitioner from giving effect to the transfer order dated 26th July, 2008 by which the plaintiff-respondent was transferred from Udaipur Unit of the petitioner to a Unit of petitioner at Maharashtra, particularly, at Pali of Maharashtra. The suit was filed by the plaintiff-respondent against the said transfer order on the ground of malafides and specifically because of the reason that one of the labour Manohar Singh attacked upon the plaintiff-respondent on 30th June, 2008 for which the plaintiff lodged an FIR at SBCWP NO.6828/2008 Liberty Phosphate Ltd. Vs. Shanker Singh & Ors. 2 Pratapnagar Police Station, Udaipur. Instead of taking action against the said Manohar Singh, the management harassed the plaintiff and passed the present order. It is also submitted that the plaintiff is low paid employee and he has been transferred to a distant place. It is also submitted that as per the standing order governing the plaintiff, his consent was necessary for his transfer outside the State of Rajasthan and that has not been obtained. The trial court vide order dated 6.8.2008 rejected the petitioner's application for grant of injunction, but appellate court granted injunction vide impugned order order, hence, this writ petition has been preferred by the petitioner. Learned counsel for the petitioner submitted that in view of the judgment of the Hon'ble Apex Court delivered in the case of Chief Engineer, Hydel Project Vs. Ravinder Nath & Ors reported in (2008) 2 SCC 350 the suit of the plaintiff is not maintainable and the first appellate court committed serious error of law by holding that because of word plural used in Section 2(k) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act of 1947) SBCWP NO.6828/2008 Liberty Phosphate Ltd. Vs. Shanker Singh & Ors. 3 “Workmen”, therefore, an individual workman cannot raise industrial industrial dispute ignoring the Section 36 of the Act of 1947. It is submitted that the Hon'ble Apex Court clearly held that when question of interpretation of standing order comes then the civil court cannot have jurisdiction and the dispute can be resolved only through remedy provided under the Act of 1947. It is also submitted that the plaintiff is bound by his appointment letter wherein there is clear mention that his services shall be transferable and same is position as per the standing order. The allegation of malafides are absolutely frivolous and false and in fact, the plaintiff himself compromised the disptue with the said Manohar Singh and further the dispute with Manohar Singh was not occurred in the premises of the petitioner company. Learned counsel for the respondent vehemently submitted that the High Court has limited jurisdiction under Article 227 of the Constitution of India and cannot act as an appellate authority over the courts subordinate. Learned counsel for the respondent relied upon the judgment of SBCWP NO.6828/2008 Liberty Phosphate Ltd. Vs. Shanker Singh & Ors. 4 the Hon'ble Apex Court delivered in the case of Sadhana Lodh Vs. National Insurance Company Ltd. & Anr reported in 2003(2) WLC (SC) Civil 255 wherein it has been held that High Court in exercise of power under Article 227 cannot act as an appellate court nor it can review or reweigh evidence upon which impugned order has been passed nor can it correct an apparent error on face of record or even an error of law. Learned counsel for the respondent further submitted that the first appellate court rightly held that no other remedy is available to the plaintiff-respondent. It is also submitted that it is clear case of malafide on the part of the employer. I considered the submissions of learned counsel for the parties and perused the facts of the case. So far as scope and ambit of jurisdiction of the High Court under Article 227 of the Constitution of India is concerned, it has its own limitation and it is true that in an even error of law, cannot be corrected as laid down by the Hon'ble Supreme Court, but here there is a case, where there is inherent lack of jurisdiction and bar of the law SBCWP NO.6828/2008 Liberty Phosphate Ltd. Vs. Shanker Singh & Ors. 5 against entertaining the suit by the civil court. In a case where the injunction is sought, the plaintiff is required to show his prima facie case and the question of lack of jurisdiction is certainly an important issue and in this case the plaintiff on his own pleadings gave reference of the standing order and as per second schedule appended to the Act of 1947, the matter falls within the jurisdiction of the labour court when challenge is to the proprietary or legality of an order passed by an employer under standing order. In view of the above reason and in view of the contention of the respondent that in the light of the standing order and appointment order of the plaintiff is read then he could not have been transferred then in that situation interpretation of standing order is necessary and that can be done under the Act of 1947 as per the second schedule of the Act of 1947. Whether an individual can raise his grievance and get it decided by the Industrial Court is concerned, learned counsel for the petitioner submitted that mere use of word “workmen” in Section 2(k) cannot be interpreted to mean that there is no remedy available to the SBCWP NO.6828/2008 Liberty Phosphate Ltd. Vs. Shanker Singh & Ors. 6 individual workman. Section 36 of the Act of 1947 clearly provide that a workman who is a party to dispute shall be entitled to be represented in any proceedings under this Act by the Union and its representatives referred in Section 36 of the Act of 1947. Section 10 of the Act of 1947 provides that reference of disputes shall be to Boards, Courts or Tribunals. In view of the above reason, the first appellate court committed error of law in holding that the plaintiff will not have any other remedy. In fact the plaintiff has remedy under the Act of 1947 in view of the judgment delivered in Chief Engineer, Hydel Project (supra). So far as question of malafide is concerned, admittedly neither the said Manohar Singh was impleaded as party- respondent nor any person who committed malafide against the plaintiff is party in the suit. If we examine the allegation of the plaintiff to be malafide in law then plaintiff's contention is that he has been transferred about 900 kms away. For that it is clear that the petitioner- defendant clearly made provision for transfer of employee in the standing order as well as specifically mentioned in the SBCWP NO.6828/2008 Liberty Phosphate Ltd. Vs. Shanker Singh & Ors. 7 plaintiff's appointment order and further the contention of the petitioner-defendant is that because of experience of the plaintiff, he sought to be transferred for an industry of the company, then the case of malafide has not been proved prima facie by the plaintiff. The transfer of the employee has been made in exigency of service. In view of the above reasons, the writ petition of the petitioner is allowed and the impugned order of the court below dated 26.8.2008 is quashed and set aside. The injunction application of the plaintiff is dismissed. (PRAKASH TATIA), J. c.p.goyal/-