Case: Caparo Engineering India Ltd. And Others Vs. Ummed Singh Lodhi And Anr

3. The brief facts in nutshell are as under:-3.1 That the respective workmen were employed and working in the Dewas factory of the appellant. That vide order dated 13.01.2015, all of them came to be transferred to Chopanki, District Alwar, which is 900 Kms. away from Dewas. The respective workmen through their Union raised the industrial dispute before competent authority and on failure of the conciliation proceedings, a reference was made to the Labour Court.The following question was referred to the Labour Court:-Whether the transfer of Shri Kanhaiyalal by the Non- Applicant is valid and proper? If not, then what relief can be granted to him and what directions need to be given to the employer in this respect?Similar dispute was referred with respect to the each workman.3.2 The respective workmen filed their statement of claim before the Labour Court. It was the case on behalf of the workmen that the transfer was done malafidely with the intention to reduce the number of workmen in the Dewas factory; that the employer pressurized the workmen to resign and on refusal, the employer transferred them without any justifiable reason to Chopanki at Rajasthan, which is 900 Kms. away; such a transfer amounts to the illegal change under Section 9A of the Industrial Disputes Act, 1947 (hereinafter referred to as I.D. Act); that all the family members and their relatives are residing at Dewas and the facilities which are available at Dewas are not available at Chopanki and at Chopanki within the radius of 40-50 Kms neither there is any residential area nor any means of transport are available; and that their services is also not required at Chopanki factory. It was also the case on behalf of the respective workmen that at Dewas precision pipes are manufactured whereas at Chopanki, the work of manufacturing of nut and bolt is done and the transfer will change the nature of work, therefore, it was prayed to declare the transfer as illegal and void.3.3 The employer filed the reply to the statement of claim before the Labour Court. It was specifically denied that the transfer was done to reduce the number of workmen at Dewas. It was submitted that no unfair labour practice was adopted and compliance of Section 9A of the I.D. Act was not necessary. It was also denied that the workmen were pressurized to tender resignation. A plea was raised that since there was continuous reduction in production at Dewas and the staff had become surplus which was not required and, therefore, to continue the employment of the concerned workmen, they had been transferred as per their service conditions and no notice in this regard under Section 9A of the I.D. Act was required. It was also stated that at Chopanki factory, all the facilities are available.3.4 Both the parties led the evidences. The workmen examined PW-1, Kanhaiya Lal and PW-2, Vijay Pratap Singh Ranawat in support of their case/plea and the employer examined DW-1 Manoj Thakkar, DW-2 Rajveer Singh and DW-3 Mukesh Kulshreshtha. Both the parties also brought on record the documentary evidences in support of their respective cases.3.5 That on appreciation of evidences, the Labour Court specifically found that employer could not prove that there was continuous reduction of production at Dewas factory and that the staff had proportionately become surplus. The Labour Court also found that the workmen – nine in numbers were transferred from Dewas with the intention to reduce the number of persons employed at Dewas and such an act was covered by Clause 11 of Schedule 4 of the I.D. Act and since no notice of change was given, the transfer orders are in violation of Section 9A of the I.D. Act. The Labour Court also specifically found on appreciation of evidence that transfer will change the nature of work since the workmen were employed as labourers at Dewas and on transfer at Chopanki, they will be working as Supervisor. Consequently, the Labour Court found the order of transfer as null and void and consequently the Labour Court set aside the same.3.6 Feeling aggrieved and dissatisfied with the judgment and award passed by the Labour Court, the employer – management preferred writ petitions under Article 227 of the Constitution of India before the High Court and by the impugned common judgment and order the High Court has dismissed the said writ petitions treating the said writ petitions under Article 227 of the Constitution of India. Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge, the appellant preferred writ appeal/s before the Division Bench of the High Court and the Division Bench has dismissed the said appeal/s as not maintainable observing that the writ petition/s before the learned Single Judge was/were under Article 227 of the Constitution of India.3.7 Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court dismissing the writ petitions and confirming the respective judgments and awards passed by the Labour Court declaring the order of transfer dated 13.01.2015 as illegal, null and void and in breach of the provisions of the I.D. Act, more particularly, Section 9A of the I.D. Act, the management/employer has preferred the present appeals. That the appellant has also challenged the order passed by the Division Bench dismissing the writ appeal/s as not maintainable.

Reasoning:
7.1 The aforesaid findings by the learned Labour Court are on appreciation of evidence on record, which as such cannot be said to be perverse and/or contrary to the evidence on record. We have also minutely gone through the findings recorded by the learned Labour Court as well as the evidence on record. It emerge from the evidence on record that the respective respondents – employees were employed at Dewas and working at Dewas for more than 25 to 30 years; all of them came to be transferred suddenly from Dewas to Chopanki, which is at a distance of 900 Kms. from Dewas; they came to be transferred at the fag end of their service career; that the place where they were transferred had no educational and medical facilities and that the place where they were transferred had no residential area within 40-50 Kms. from the plant with no means of transport.7.2 It also emerges that the number of workers at Dewas factory has been reduced by nine by transferring the workmen to Chopanki. It also emerges that even as admitted by DW-1 and DW-2 the transferred workmen would work in the capacity of supervisor at Chopanki and after their transfer to Chopanki, they will be given training and assigned the work of supervisor.7.3 As observed hereinabove and even the findings recorded by the learned Labour Court and even it also emerge from the evidence on record that at Dewas all of them were workmen as defined in Section 2(s) of the Industrial Disputes Act and, therefore, would have a protection under the provisions of the Industrial Disputes Act and after their transfer to Chopanki, they will have to work in the capacity of supervisor and, therefore would be deprived of the beneficial provisions of the Industrial Disputes Act. Therefore, on such transfer from Dewas to Chopanki, the nature of service conditions and the nature of work would be changed, therefore, in such a case Section 9A read with Fourth Schedule would be attracted.7.4 In view of the above and from the findings recorded by the learned Labour Court on the appreciation of evidence on record, it is rightly held that the order of transfer dated 13.01.2015 transferring the respective workman from Dewas to Chopanki, which is at about 900 Kms. away is in violation of Section 9A read with Fourth Schedule of the Industrial Disputes Act and is arbitrary, mala fide and victimization. As observed above, by such transfer, their status as workman would be changed to that of supervisor. By such a change after their transfer to Chopanki and after they work as supervisor they will be deprived of the beneficial provisions of the Industrial Disputes Act and, therefore, the nature of service conditions/service would be changed.7.5 Even from the judgment and award passed by the learned Labour Court as well as the impugned judgment and order passed by the learned Single Judge, it can be seen that the appellant/employer has failed to justify the transfer of nine employees from Dewas to Chopanki, which is at a distance of 900 Kms. and that too at the fag end of their service career. Every aspect has been dealt with and considered in detail by the learned Labour Court as well as by the learned Single Judge of the High Court.7.6 Now, so far as the submission on behalf of the appellant that the respective workmen – employees were not workmen and, therefore, the reference to the learned Labour Court was not maintainable, has no substance at all. There are concurrent findings recorded by the learned Labour Court as well as the learned Single Judge that the concerned employees were workmen within the definition of Section 2(s) of the Industrial Disputes Act. From the depositions of the witnesses, PW-1, PW-2, DW-1 and DW-2, it is established and proved that the concerned employees were workmen and that after their transfer to Chopanki, they will be given training and they will work as a supervisor.7.7 At this stage, it is required to be noted that after the conciliation had failed, the dispute, which was referred to the learned Labour Court was whether the transfer is valid and proper? The dispute that the concerned employee is a workman or not was not even referred to the learned Labour Court. Even no such issue was framed by the learned Labour Court. Be that it may, as observed hereinabove, it has been established and proved that the concerned employees were workmen within the definition of Section 2(s) of the Industrial Disputes Act and, therefore, were entitled to the protection under the provisions of the Industrial Disputes Act.7.8 Now, so far as the submission on behalf of the appellant that so far as the transfer is concerned, it is part of the service conditions and therefore Section 9A shall not be applicable is concerned, the same has no substance. The question is not about the transfer only, the question is about the consequences of transfer. In the present case, the nature of work/service conditions would be changed and the consequences of transfer would result in the change of service conditions and the reduction of employees at Dewas factory, for which the Fourth Schedule and Section 9A shall be attracted.7.9 Now, so far as the submission on behalf of the appellant that the learned Single Judge of the High Court wrongly treated the petition(s) under Article 227 and as such the learned Single Judge ought to have treated the petition(s) under Article 226, therefore, the writ appeal before the learned Single Judge would have been maintainable, is concerned, at the outset, it is required to be noted that before the learned Single Judge in the cause title specifically Article 227 has been mentioned. Even in prayer clause, no writ of certiorari is sought. The prayer is simply to quash and set aside the judgment and award passed by the learned Labour Court and, therefore, in the fact situation, the Division Bench has rightly dismissed the writ appeal as not maintainable. Be that it may, even for the sake of submission, assuming that we accept the submission that the petition before the learned Single Judge ought to have been treated as under Article 226 and writ appeal would have been maintainable, in the facts and circumstances of the case and instead of remanding the matter to the Division Bench to decide the same afresh, we, ourselves, have decided the entire controversy/issues on merits considering the fact that the order of transfer is of 2015 and that most of the employees have by now retired or they are about to retire on attaining the age of superannuation and that it is stated that they are not paid the salaries since 2015. Therefore, we, ourselves, have decided the entire issues on merits.8. In view of the above and for the reasons stated above, we see no reason to interfere with the impugned judgment and award passed by the learned Labour Court confirmed by the learned Single Judge of the High Court. We are in complete agreement with the view taken by the learned Labour Court as well as the learned Single Judge holding the order of transfer dated 13.01.2015 transferring the respective workman from Dewas to Chopanki, which is at about 900 Kms. from the place they were working as illegal, mala fide and in violation of Section 9A read with Fourth Schedule of the Industrial Disputes Act.