Caparo Engineering India Ltd. vs Ummed Singh Lodhi on 26 October, 2021


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Supreme Court of India

Caparo Engineering India Ltd. vs Ummed Singh Lodhi on 26 October, 2021

Author: M.R. Shah

Bench: M.R. Shah, A.S. Bopanna

                                                              REPORTABLE


                          IN THE SUPREME COURT OF INDIA
                           CIVIL APPELLATE JURISDICTION

                         CIVIL APPEAL NOS.5829-5830 OF 2021

         Caparo Engineering India Ltd.                  …Appellant(s)

                                         Versus

           Ummed Singh Lodhi And Anr.                   …Respondent(s)

                                         WITH

                         CIVIL APPEAL NOS.5831-5832 OF 2021

         M/s. Caparo Engineering India Ltd.             …Appellant(s)

                                         Versus

         Kanhaiyalal Madaria And Anr.                   …Respondent(s)

                                         WITH

                         CIVIL APPEAL NOS.5845-5846 OF 2021

         M/s. Caparo Engineering India Ltd.             …Appellant(s)

                                         Versus

         Mohanlal And Anr.                              …Respondent(s)

                                         WITH

                         CIVIL APPEAL NOS.5843-5844 OF 2021

         Caparo Engineering India Ltd.
Signature Not Verified
                                                        …Appellant(s)
Digitally signed by R
Natarajan
Date: 2021.10.26
16:59:52 IST
Reason:
                                         Versus

         Dileep Chouhan And Anr.                        …Respondent(s)
                                           1
                                WITH

              CIVIL APPEAL NOS.5841-5842 OF 2021

Caparo Engineering India Ltd.                …Appellant(s)

                                Versus

Jugal Kishore And Anr.                       …Respondent(s)

                                WITH

              CIVIL APPEAL NOS.5839-5840 OF 2021

Caparo Engineering India Ltd.                …Appellant(s)

                                Versus

Parmeshwar And Anr.                          …Respondent(s)

                                WITH

              CIVIL APPEAL NOS.5837-5838 OF 2021

M/s. Caparo Engineering India Ltd.           …Appellant(s)

                                Versus

Makhanlal And Anr.                           …Respondent(s)

                                WITH

              CIVIL APPEAL NOS.5835-5836 OF 2021

Caparo Engineering India Ltd.                …Appellant(s)

                                Versus

Rajendra Prasad And Anr.                     …Respondent(s)




                                  2
                                  AND

                 CIVIL APPEAL NOS.5833-5834 OF 2021


M/s. Caparo Engineering India Ltd.                   …Appellant(s)

                                 Versus

Surendra Singh Tomar And Anr.                        …Respondent(s)


                              JUDGMENT

M.R. SHAH, J.

1. As common question of law and issues have been raised in this

group of appeals, as such arising out of the impugned common

judgment and order passed by the High Court, all these appeals are

being decided and disposed of together by this common judgment and

order.

2. Feeling aggrieved and dissatisfied with the impugned common

judgment and order passed by the High Court of Madhya Pradesh

Bench at Indore in MP No.245 of 2019 and other allied petitions by

which the High Court has dismissed the said petitions preferred by the

appellant herein – employer (hereinafter referred to as “employer”) and

has confirmed the respective judgment and award passed by the Labour

Court, Dewas dated 13.11.2018 by which the Labour Court allowed the

said reference in favour of the respondents – employees by declaring
3
their order of transfer dated 13.01.2015 as illegal and void, the employer

has preferred the present appeals.

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
4
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.

5
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.

6
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.

7

4. Shri Jaideep Gupta, learned Senior Advocate has appeared on

behalf of the appellant- employer and Shri Niraj Sharma, learned

Advocate has appeared on behalf of the respective respondents –

workmen.

4.1 Shri Gupta, learned Senior Advocate appearing on behalf of the

management/employer has vehemently submitted that in the facts and

circumstances of the case, the High Court has committed a grave error

in treating the writ petitions under Article 227 of the Constitution of India.

It is submitted that as such the awards were challenged by the

management by way of writ petitions clearly under Article 226 of the

Constitution.

4.2 It is submitted that even the prayer in the writ petitions was for an

appropriate writ, direction or order to quash and set aside the respective

awards. It is submitted that in fact initially “Article 226” was mentioned

however, due to the objections raised by the Registry, the appellant was

compelled to amend the writ petition and mention “under Article 227 of

the Constitution”. It is submitted that as such even subsequently, the

appellant filed a writ appeal before the Division Bench of the High Court

challenging the judgment and award passed by the learned Single

Judge, however, the Division Bench dismissed the writ appeals as not

maintainable treating the writ petitions before the learned Single Judge

under Article 227 of the Constitution. It is submitted that as such the writ

8
petitions before the High Court were on the face of it petitions under

Article 226 of the Constitution, even as can be seen from the

material/averments made in the writ petitions.

4.3 Shri Gupta, learned Senior Advocate appearing on behalf of the

employer has further submitted that in order to determine whether a

petition is under Article 226 or under Article 227 of the Constitution, what

is to be looked at is the nature of jurisdiction invoked and the relief

sought therein. It is submitted that neither the provision cited in the

cause title nor the provision mentioned by the learned Single Judge

while exercising his power were determinative of the true nature of the

application and order thereon. Heavy reliance is placed on the decision

of this Court in the case of Ashok K. Jha and Ors. Vs. Garden Silk

Mills Limited and Anr., (2009) 10 SCC 584 (paragraphs 27 to 37).

4.4 It is submitted that as such in several subsequent judgments with

reference to awards of Labour Courts, the petitions were held to be

primarily under Article 226 and not under Article 227 and, therefore,

amenable to the appellate jurisdiction of the Division Bench of High

Court. In support of his above submission, he has relied upon the

following decisions of the Madhya Pradesh High Court as well as of the

Bombay High Court:-

Shaillendra Kumar Vs. Divisional Forest Officer and Anr.

(2017) SCC Online MP 1514; Yogendra Singh Chouhan Vs.
9
Managing Director, Intas Pharmaceuticals Ltd. and Anr., WA No.46

of 2021; State of Madhya Pradesh and Anr. Vs. Patiram, WA No.

1932 of 2019 (2020 SCC Online MP 3660) and Murari Lal Chhari and

Ors. Vs. Munishwar Singh Tomar and Anr. in WA No.1191 of 2019

(2019 SCC Online MP 4559).

4.5 It is submitted that as such by not treating/considering the writ

petitions by the learned Single Judge under Article 226 of the

Constitution, the valuable right available to the employer of appeal

before the Division Bench has been taken away. Therefore, it is

requested to remit the matter back to the Division Bench of the High

Court to decide the writ appeals in accordance with law and on its own

merits. It is further submitted that even on merits also both, the Labour

Court as well as the High Court have erred in declaring the order of

transfer as illegal and void and in violation of Section 9A of the I.D. Act.

4.6 It is submitted that the Labour Court as well as the learned Single

Judge has materially erred in holding that order of transfer amounted to

change of terms and conditions of service requiring a notice under

Section 9A and in the absence thereof, the said order is liable to be set

aside. It is submitted that as such an order of transfer does not bring

about a change in the terms and conditions of service within the

meaning of Section 9A read with Schedule 4 thereof. Heavy reliance is

placed on the decision of the Madhya Pradesh High Court in the case of
10
President Vs. Director, Rajasthan Patrika Pvt. Ltd., WP No.12934 of

2015 (2015 (4) MPLJ 595).

4.7 It is further submitted that Clause 11 of Schedule 4 is not at all

relevant when considering transfer orders. It is submitted that the

purpose of the transfer order was not to bring about a reduction in the

establishment in question. It is submitted that to bring a case within the

change of terms and conditions of service within the meaning of Section

9A, it is necessary for the workmen to demonstrate that they have been

adversely affected by the reduction. Reliance is placed on the decision

of this Court in the case of Hindustan Lever Ltd. Vs. Ram Mohan Ray

and Ors., (1973) 4 SCC 141; Harmohinder Singh Vs. Kharga

Canteen, Ambala Cantt., (2001) 5 SCC 540 and the decision of the

Bombay High Court in the case of Associated Cement Companies

Ltd. Vs. Associated Cement Staff Union, 2009 SCC Online Bom

2132.

4.8 It is further submitted on behalf of the employer that even

otherwise the learned Single Judge has failed to take into account the

contention that the employees are not workmen.

4.9 Making above submissions and relying upon the above decisions,

it is prayed to allow the present appeals and quash and set aside the

impugned judgments and orders passed by the Division Bench of the

11
High Court, learned Single Judge of the High Court and the respective

judgments and awards passed by the Labour Court.

5. All these appeals are vehemently opposed by Shri Niraj Sharma,

learned Advocate appearing on behalf of the respective workmen.

5.1 It is submitted by Shri Sharma, learned Advocate appearing on

behalf of the respective workman that in the facts and circumstances of

the case, no error has been committed by the learned Labour Court as

well as the High Court in holding the order of transfer dated 13.01.2015

as illegal, invalid and in violation of the provisions of Section 9A of the

Industrial Disputes Act read with Fourth Schedule.

5.2 It is submitted that the findings recorded by the learned Labour

Court holding the order of transfer dated 13.01.2015 as illegal, arbitrary,

mala fide and in violation of the provisions of Section 9A of the Industrial

Disputes Act are on appreciation of evidence, which, the High Court has

rightly not interfered with in exercise of the powers under Article 227 of

the Constitution of India.

5.3 It is vehemently submitted by the learned Advocate appearing on

behalf of the workmen that as such except 2-3 workmen, rest of the

workmen were at the fag end of their service career and were

transferred to Chopanki, which is at a distance of about 900 Kms. It is

submitted that all the respective workman had put about 25 to 30 years

of service at the time of their transfer and were at the fag end of their

12
service. It is submitted that even one of them has retired having attained

the age of 60 years. It is submitted that the order of transfer dated

13.01.2015 transferring the respective workman form Dewas to

Chopanki and that too at the fag end of their service career amounted to

an arbitrary and unfair labour practice by creating a situation in which the

workmen were left with no other option except to leave their

employment. It is submitted that it was in fact a way to retrench the

workmen without following the mandatory provisions of law. It is further

submitted that even sudden transfer of the workmen to a different State

and that too at a distance of about 900 Kms. from their place would

cause great hardship as the place where they were transferred had no

educational and medical facilities, their school going children and old

aged parents were to be disturbed and uprooted and the place where

they were transferred had no residential area within 40-50 Kms. form the

plant with no means of transport.

5.4 It is submitted by Shri Sharma, learned Advocate on behalf of the

workmen that in view of the above situation, the transfer amounted to

victimization of the employees by forcing them to quit their jobs. It is

further submitted that on appreciation of evidence on record, the learned

Labour Court had rightly come to the conclusion that by transferring the

respective workman to Chopanki would be in violation of Section 9A read

with Fourth Schedule in as much as by transferring them to Chopanki

13
would change the nature of work without issuing any notice under

Section 9A of the Industrial Disputes Act.

5.5 It is submitted that even DW-1, Manoj Thakkar had admitted in

cross-examination that by transferring the respective workman from

Dewas to Chopanki, number of workers at Dewas factory would be

reduced. It is submitted that he has also admitted that a transferred

workmen would work in the capacity of Supervisor at Chopanki. It is

submitted that the respective workman was a workman at Dewas and as

admitted by the employer’s witness at Chopanki, after giving training

they will have to work as supervisor. It is submitted that therefore

transfer of the workmen would amount to depriving them of the beneficial

provisions of the Industrial Disputes Act. It is submitted that once at the

transferred place, they will work as a Supervisor, thereafter they will be

out of the clutches of the Industrial Disputes Act and they will be

deprived of the protection of the benevolent provisions under the

Industrial Disputes Act. It is submitted that even the DW-2, Rajbir Singh

has also stated in his evidence that the respondents are employed in the

capacity of workmen while after transfer to Chopanki, they will be given

training and shall be assigned the work of supervisor. The aforesaid

would change the nature of work as stated hereinabove.

5.6 It is submitted that after analyzing the evidence on record, the

relevant labour law and the judgments of the Supreme Court as well as

14
of the High Courts, the learned Labour Court has specifically held that

since the service conditions of the workmen had been changed without

issuing any notice under Section 9A of the Industrial Disputes Act, the

order of transfer is illegal, arbitrary, mala fide and victimization, therefore,

the same has been rightly set aside by the learned Labour Court and the

same has been rightly confirmed by the High Court.

5.7 It is submitted that there are concurrent findings by the learned

Labour Court as well as the High Court that the respondents were

workmen for the purposes of the Industrial Disputes Act and, therefore,

covered by the Industrial Disputes Act.

5.8 Now, so far as the submission on behalf of the appellant that the

writ petition(s) before the learned Single Judge of the High Court in fact

was under Article 226 of the Constitution of India and not under Article

227 and, therefore, the writ appeal would be maintainable, is concerned,

it is submitted that in fact in the cause title, the appellants have stated

that the writ petition is under Article 227 of the Constitution of India and

all throughout their writ petition was under Article 227. It is submitted,

therefore, that now, thereafter, it was not open for the appellant to

contend that the petition(s) was/were under Article 226 and, therefore,

the writ appeal would be maintainable. It is submitted that therefore

both, the learned Single Judge as well as the Division Bench have rightly

15
held that the petition(s) was/were in fact under Article 227 and, therefore

the writ appeal(s) was/were not maintainable.

5.9 It is further submitted by learned Advocate appearing on behalf of

the workmen that as such the respondents-employees have not been

paid salaries after the transfer order dated 13.01.2015 till date and it is

very difficult for them to maintain themselves as well as their family

members. Making above submissions it is prayed to dismiss the present

appeals.

6. Heard the learned Advocates for the respective parties at length.

7. At the outset, it is required to be noted that as such there are

concurrent findings of fact recorded by the learned Labour Court as well

as learned Single Judge of the High Court that the order of transfer

dated 13.01.2015 transferring the respective workman from Dewas to

Chopanki was arbitrary, mala fide, amounted to victimization, unfair

labour practice and in violation of Section 9A of the Industrial Disputes

Act. On appreciation of evidence, more particularly, while considering

the deposition of DW-1 Manoj Thakkar, the deposition of DW-2 Rajveer

Singh and depositions of PW-1, Kanhaiya Lal and PW-2, Vijay Pratap

Singh Ranawat, the learned Labour Court came to the following

findings:-

(i) that the respective respondents-workmen were in the category

of workman under Section 2(s) of the Industrial Disputes Act

16
and, therefore, they were entitled to the protection under the

Industrial Disputes Act;

(ii) that by transferring them from Dewas to Chopanki, there would

be change of work and, therefore, there would be change in the

conditions of service and, therefore, the same is in violation of

Section 9A read with Clause 11 of the Fourth Schedule of the

Industrial Disputes Act ;

(iii) that by transferring the nine employees-workmen, there will be

reduction of workmen at Dewas factory;

(iv) that at Dewas, the workmen were employed in the capacity of a

workman and at Dewas the work of manufacturing precision

pipes is done whereas at Chopanki manufacturing of nut and

bolts is done.

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

17
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. Section 9A and the Fourth Schedule

reads as under:-

18
“9A. Notice of change.- No employer, who proposes to
effect any change in the conditions of service applicable
to any workman in respect of any matter specified in the
Fourth Schedule, shall effect such change,-

(a) without giving to the workman likely to be
affected by such change a notice in the
prescribed manner of the nature of the
change proposed to be effected; or

(b) within twenty-one days of giving such notice:

Provided that no notice shall be required for
effecting any such change—

(a) where the change is effected in pursuance of
any settlement or award; or

(b) where the workmen likely to be affected by
the change are persons to whom the
Fundamental and Supplementary Rules, Civil
Services (Classification, Control and Appeal)
Rules, Civil Services (Temporary Service)
Rules, Revised Leave Rules, Civil Service
Regulations, Civilians in Defence Services
(Classification, Control and Appeal) Rules or
the Indian Railway Establishment Code or
any other rules or regulations that may be
notified in this behalf by the appropriate
Government in the Official Gazette, apply.

THE FOURTH SCHEDULE
(SEE SECTION 9A)

Conditions of Service for change of which Notice is
to be given

1. Wages, including the period and mode of payment;

2. Contribution paid, or payable, by the employer to any
provident fund or pension fund or for the benefit of the
workmen under any law for the time being in force;

3. Compensatory and other allowances;

19

4. Hours of work and rest intervals;

5. Leave with wages and holidays;

6. Starting alteration or discontinuance of shift working
otherwise than in accordance with standing orders;

7. Classification by grades;

8 Withdrawal of any customary concession or privilege or
change in usage;

9. Introduction of new rules of discipline, or alteration of
existing rules, except in so far as they are provided in
standing orders;

10. Rationalisation, standardisation or improvement of
plant or technique which is likely to lead to retrenchment
of workmen;

11. Any increases or reduction (other than casual) in the
number of persons employed or to be employed in any
occupation or process or department or shift, not
occasioned by circumstances over which the employer
has no control.”

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
20
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

21
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,

22
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

23
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.

8.1 Consequently, all these appeals deserve to be dismissed and are

accordingly dismissed. The appellant is directed to comply with the

judgment and award passed by the learned Labour Court confirmed by

the learned Single Judge of the High Court. All the concerned workmen

shall be entitled to the consequential benefits including the arrears of

salary etc., as if they were not transferred from Dewas and continued to

work at Dewas and whatever benefits, which may be available to the

respective workmen including the arrears of salary/wages, retirement

benefits etc. shall be paid to the concerned workman within a period of

four weeks from today.

All these appeals are accordingly dismissed with costs, which is

quantified at Rs.25,000/- qua each workman also to be paid to the

concerned workman within a period of four weeks from today.

………………………………….J.

                                            [M.R. SHAH]



NEW DELHI;                               ………………………………….J.
OCTOBER 26, 2021.                           [A.S. BOPANNA]

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