Case: Ashok K Jha  Vs. Garden Silk Mills

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 Courtit has been held that the applicant has not been able to prove that transfer of workmen has been resulting into strength in crimping department and increase in the strength of twisting department. In such circumstances, application has not been able to prove that opponent has made change in relation to items of Schedule 2 namely item no. 1 and 2. It has been held that opponent has not made any type of illegal change whatsoever and, therefore, it is held that the applicant is not entitled to any of the reliefs as prayed for in OT Application No. 22/96 and OT Application No. 26/96.Further, it is also required to be noted that as regards relief no. 2 and 3 in OT Application No. 26/96 sought by the applicant, prayer made is that by ordering for workload to run more than 25 machines and altering wages of the applicants, there has been illegal change effected by the opponent but no such fact has been established by the applicant which has been discussed in this matter in para 11 earlier.In all the aforesaid circumstances and for the reasons in this matter as discussed as a whole, the applicant has failed in establishing that the opponent has made illegal change and, therefore, it is held that the opponent has not made any type of illegal change.......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. ItIn the present case, no evidence is produced on record to show whether any strength of workmen with crimping department or twisting department is decided or not; or no agreement if any in this respect has been produced. The appellants could have been able to produce corroborative evidence in respect of the number of permanent workmen by getting produced the muster roll maintained by the opponent in respect of Crimping Department and Twisting Department for the situation prevailing before 4.5.1996 and thereafter. However, the appellants have not produced any oral as well as documentary evidence in respect of number of permanent workmen working in the Crimping Department or Twisting Department and, therefore, the submission of the present appellants that there will be decrease in number of workmen in Crimping Department and increase in the number of workmen in Twisting Department, cannot be proved. The aforesaid finding which is given by the Labour Court is contrary and false to the documentary evidence on record. As I have stated hereinabove, the workmen concerned with both the aforesaid applications have been transferred vide written order from Crimping Department to Twisting Department. There is no dispute between the parties in that respect. If 31 workmen of Crimping Department are to be transferred to Twisting Department, then in one department there will be decease in number of workmen and increase in number of workmen in other department. In that respect, there is no need to make counting as to how many total workmen were there in Crimping or Twisting Department. By way of aforesaid transfer, there is permanent decrease in number of Crimping operators in the Crimping Department. It is said permanent because it is not the say of the company that on transfer of these workmen from Crimping Department, the workmen of other departments will be appointed on these posts by way of transfer. If there was a counter exchange of workmen of Crimping Department and Twisting Department, then the basic defence taken by the management that we have done assignment of work and transfer of works within the establishment i.e. to entrust work in the factory to workmen; to transfer them; would have been proper and this would have fallen in item no. 2 of Schedule-III for which no notice under Section 42(1) is necessary. Thus, the finding given by the Labour Court that the act of management falls under Item No. 2 of Schedule-III is false and erroneous. If the management has said that our act is not included in Item Nos. 1 and 2 of Schedule-II then it is the duty of the Management to show before the Court as to the number of total workmen of the Twisting and Crimping Department. Instead of this, it has been held that the burden is on the appellants, is not proper. ......In the case before the Labour Court, the Management has transferred 31 workmen from Crimping Department to twisting Department. In that respect there is no dispute between the parties. Even there is no defence of the respondent that we have transferred 31 workmen from Crimping Department to Twisting Department and from Twisting Department to Crimping Department. If it was the case of only counter exchange, then the case of appellants would not have fallen under Item Nos. 1 and 2 of Schedule - II and the contention raised by the respondent i.e. company, that the matter with respect to entrusting the work to workmen and transferring them, falls under Item No. 2 of Schedule-III, could have been accepted. Thus, the Labour Court has believed the authority cited by Shri Chaudhari as correct one. But the Labour Court has held that the appellant union has not been able to prove that there is decrease in number of workmen Crimping Department. When there is no dispute between the parties at the time of transfer of 31 workmen of one department to another Department, there is no need for the Union to prove the decrease in number of workmen. Thus, the finding recorded by the Labour Court is in fact erroneous....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 holdingIndustrial Court has rightly considered the difference between Schedule II and III item Nos. 1 and 2 of Schedule-II and Item No. 2 of Schedule-III and find out the real intention of the employer and come to the conclusion that it is not merely a transfer of 31 employees but, an intention of the employer to reduce the strength from crimping department and increase the strength in twisting department which fall within Item Nos. 1and 2 of Schedule-II of the act which requires notice of change, which is not given and, therefore, it amounts to illegal change.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,

Reasoning:
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 ofwe 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.