Ashok K Jha & Ors vs Garden Silk Mills & Anr

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 2 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.

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.

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.

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

3. It is clear that so far as the present case was concerned the relief granted by the learned Single Judge clearly indicate that he was exercising jurisdiction under Article 226 and not under Article 227 of the Constitution and in this view of the matter and in the light of what has been laid down by this Hon'ble Court in the judgment referred to above a Letters Patent Appeal under clause 15 would be maintainable before the Division Bench of the High Court. The appeal is, therefore, allowed and the judgment passed by the learned Division Bench is set aside. The matter is sent back to the High Court and it is expected that the Division Bench will hear the appeal on merits and dispose it of in accordance with law expeditiously preferably within four months from today."

2006 (7) SCC 496 21

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. 24

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. 25 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.

........................J (Tarun Chatterjee) ........................J (R. M. Lodha) New Delhi August 28, 2009.