CAPARO ENGINEERING INDIA LTD. versus UMMED SINGH LODHI AND ANR. on 26 October 2021

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SUPREME COURT REPORTS

[2021] 8 S.C.R.

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CAPARO ENGINEERING INDIA LTD.

v.

UMMED SINGH LODHI AND ANR.

(Civil Appeal Nos. 5829-5830 of 2021)

BOCTOBER 26, 2021

[M. R. SHAH AND A. S. BOPANNA, JJ.]

Industrial Disputes Act, 1947: s.9A – Transfer order –Amounting to illegal change under s.9A – Respondent-workmenemployed in the Dewas factory of appellant as labourer – Order ofCtransfer to Chopanki, which is 900 Kms away from Dewas – Ontransfer, after training, workmen were to work as supervisor –Industrial dispute – Labour court found that the workmen-nine innumber were transferred from Dewas with intention to reduce thenumber of persons employed at Dewas and such an act was coveredDby Clause 11 of Schedule 4 of the I.D. Act and since no notice ofchange was given, the transfer orders were in violation of s.9A ofthe I.D. Act – Labour Court also specifically found on appreciationof evidence that transfer would change the nature of work sincethe workmen were employed as labourers at Dewas and on transferat Chopanki, they would be working as Supervisor – Employer-Emanagement unsuccessfully challenged order of Labour Courtbefore the High Court – Hence instant appeal – Held: The ordertransferring the respective workmen from Dewas to Chopanki atabout 900 Kms. away was in violation of s.9A read with FourthSchedule of the ID Act and was arbitrary, mala fide and victimizationF– By such transfer, their status as “workman” would change to thatof “supervisor” – Thus, by such a change after their transfer toChopanki and after they work as supervisor they would be deprivedof the beneficial provisions of the ID Act and, therefore, the natureof service conditions/service would be changed – Even from thejudgment and award passed by the Labour Court as well as theGimpugned judgment and order passed by the Single Judge, it canbe seen that the appellant/employer has failed to justify the transferfrom Dewas to Chopanki, which is at a distance of 900 Kms. andthat too at the fag end of their service career – Every aspect wasdealt with and considered in detail by the Labour Court as well asHby the Single Judge of the High Court.

Dismissing the appeals, the Court

Conclusion

Dismissing the appeals, the Court

HELD: 1.1 There are concurrent findings of fact recordedby the Labour Court as well as Single Judge of the High Courtthat the order transferring the respective workmen from Dewasto Chopanki was arbitrary, mala fide, amounted to victimization,unfair labour practice and in violation of Section 9A of theIndustrial Disputes Act. On appreciation of evidence, moreparticularly, while considering the deposition of DW-1, DW-2 anddepositions of PW-1 and PW-2, the Labour Court came to thefindings that the respective respondents-workmen were in thecategory of workman under Section 2(s) of the Industrial DisputesAct and, therefore, they were entitled to protection under theIndustrial Disputes Act; that by transferring them from Dewas toChopanki, there would be change of work and, therefore, therewould be change in the conditions of service and, the same wasin violation of Section 9A read with Clause 11 of the FourthSchedule of the Industrial Disputes Act; that by transferring thenine employees-workmen, there will be reduction of workmen atDewas factory; that at Dewas, the workmen were employed inthe capacity of a workman and the work of manufacturing precisionpipes is done whereas at Chopanki manufacturing of nut and boltsis done. The said findings by the Labour Court are on appreciationof evidence on record, which as such cannot be said to be perverseand/or contrary to the evidence on record. It emerge from theevidence on record that the respective respondents – employeeswere employed at Dewas and working at Dewas for more than 25to 30 years; all of them were transferred suddenly and that too atthe fag end of their service career; that the place where theywere transferred had no educational and medical facilities andthat had no residential area within 40-50 Kms. from the plantwith no means of transport. [Para 7 and 7.1][791-A-H; 792-A]

1.2 The order of transfer dated 13.01.2015 transferring therespective workman from Dewas to Chopanki, which is at about900 Kms. away is in violation of Section 9A read with FourthSchedule of the Industrial Disputes Act and is arbitrary, mala fideand victimization. By such transfer, their status as “workman”would be changed to that of “supervisor”. By such a change after ABC

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Atheir transfer to Chopanki and after they work as supervisor theywill be deprived of the beneficial provisions of the IndustrialDisputes Act and, therefore, the nature of service conditions/service would be changed. Even from the judgment and awardpassed by the Labour Court as well as the impugned judgmentand order passed by the Single Judge, it can be seen that theBappellant/employer has failed to justify the transfer of nineemployees from Dewas to Chopanki, which is at a distance of900 Kms. and that too at the fag end of their service career. Everyaspect has been dealt with and considered in detail by the LabourCourt as well as by the Single Judge of the High Court. [ParasC7.4, 7.5][793-G-H; 794-A-D]

1.3 Now, so far as the submission on behalf of the appellantthat so far as the transfer is concerned, it is part of the serviceconditions and therefore Section 9A shall not be applicable isconcerned, the same has no substance. The question is not aboutDthe transfer only, the question is about the consequences oftransfer. In the present case, the nature of work/serviceconditions would be changed and the consequences of transferwould result in the change of service conditions and the reductionof employees at Dewas factory, for which the Fourth Scheduleand Section 9A shall be attracted. [Para 7.8] [794-G-H; 795-A-B]

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Ashok K. Jha and Ors. v. Garden Silk Mills Limited andAnr., (2009) 10 SCC 584 : [2009] 13 SCR 886;Shaillendra Kumar v. Divisional Forest Officer and Anr.(2017) SCC Online MP 1514; Yogendra SinghChouhan v. Managing Director, Intas PharmaceuticalsFLtd. and Anr., WA No.46 of 2021; State of MadhyaPradesh and Anr. v. Patiram, WA No. 1932 of 2019(2020 SCC Online MP 3660); Murari Lal Chhari andOrs. v. Munishwar Singh Tomar and Anr. in WA No.1191of 2019 (2019 SCC Online MP 4559); President vs.GDirector, Rajasthan Patrika Pvt. Ltd., WP No.12934 of2015 (2015 (4) MPLJ 595); Hindustan Lever Ltd. v.Ram Mohan Ray and Ors., (1973) 4 SCC 141 : [1973]3 SCR 924; Harmohinder Singh v. Kharga Canteen,Ambala Cantt., (2001) 5 SCC 540 : [2001] 3 SCR 796; H

Associated Cement Companies Ltd. v. AssociatedCement Staff Union 2009 SCC Online Bom 2132 –referred to A

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.5829-5830 of 2021

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From the Judgment and Order dated 19.06.2019 of the High Courtof Madhya Pradesh at Indore in MP No.245 of 2019.

With

Civil appeal nos.5831-5832, 5845-5846, 5843-5844, 5841-5842,5839-5840, 5837-5838, 5835-5836 and 5833-5834 of 2021

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Jaideep Gupta, Sr. Adv., Puneet Singh Bindra, Saurabh Prakash,Neeraj Kumar, Ms. Simran Jeet, Utsav Jain, Anant Aditya Patro, AkshayGoel, Advs. for the Appellant.

Niraj Sharma, Ms. Vaishnavi Paliwal, Advs. for the Respondents.

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The Judgment of the Court was delivered by

M. R. SHAH, J.

1. As common question of law and issues have been raised in thisgroup of appeals, as such arising out of the impugned common judgmentand order passed by the High Court, all these appeals are being decidedand disposed of together by this common judgment and order.

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2. Feeling aggrieved and dissatisfied with the impugned commonjudgment and order passed by the High Court of Madhya Pradesh Benchat Indore in MP No.245 of 2019 and other allied petitions by which theHigh Court has dismissed the said petitions preferred by the appellantherein – employer (hereinafter referred to as “employer”) and hasconfirmed the respective judgment and award passed by the LabourCourt, Dewas dated 13.11.2018 by which the Labour Court allowed thesaid reference in favour of the respondents - employees by declaringtheir order of transfer dated 13.01.2015 as illegal and void, the employerhas preferred the present appeals.

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A3. The brief facts in nutshell are as under:- 3.1 That the respective workmen were employed and working inthe Dewas factory of the appellant. That vide order dated 13.01.2015,all of them came to be transferred to Chopanki, District Alwar, which is900 Kms. away from Dewas. The respective workmen through theirBUnion raised the industrial dispute before competent authority and onfailure of the conciliation proceedings, a reference was made to theLabour Court. The following question was referred to the Labour Court:- “Whether the transfer of Shri Kanhaiyalal by the Non-Applicantis valid and proper? If not, then what relief can be granted to himCand what directions need to be given to the employer in thisrespect?”

Similar dispute was referredwith respect to the each workman.

3.2 The respective workmen filed their statement of claim beforethe Labour Court. It was the case on behalf of the workmen that theDtransfer was done malafidely with the intention to reduce the number ofworkmen in the Dewas factory; that the employer pressurized theworkmen to resign and on refusal, the employer transferred them withoutany justifiable reason to Chopanki at Rajasthan, which is 900 Kms. away;such a transfer amounts to the illegal change under Section 9A of theEIndustrial Disputes Act, 1947 (hereinafter referred to as “I.D. Act”);that all the family members and their relatives are residing at Dewasand the facilities which are available at Dewas are not available atChopanki and at Chopanki within the radius of 40-50 Kms neither thereis any residential area nor any means of transport are available; and thattheir services is also not required at Chopanki factory. It was also theFcase on behalf of the respective workmen that at Dewas precision pipesare manufactured whereas at Chopanki, the work of manufacturing ofnut 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 beforeGthe Labour Court. It was specifically denied that the transfer was doneto reduce the number of workmen at Dewas. It was submitted that nounfair labour practice was adopted and compliance of Section 9A of theI.D. Act was not necessary. It was also denied that the workmen werepressurized to tender resignation. A plea was raised that since there wascontinuous reduction in production at Dewas and the staff had becomeH

surplus which was not required and, therefore, to continue the employmentof the concerned workmen, they had been transferred as per their serviceconditions and no notice in this regard under Section 9A of the I.D. Actwas required. It was also stated that at Chopanki factory, all the facilitiesare available.

3.4 Both the parties led the evidences. The workmen examinedPW-1, Kanhaiya Lal and PW-2, Vijay Pratap Singh Ranawat in supportof their case/plea and the employer examined DW-1 Manoj Thakkar,DW-2 Rajveer Singh and DW-3 Mukesh Kulshreshtha. Both the partiesalso brought on record the documentary evidences in support of theirrespective cases.

3.5 That on appreciation of evidences, the Labour Court specificallyfound that employer could not prove that there was continuous reductionof production at Dewas factory and that the staff had proportionatelybecome surplus. The Labour Court also found that the workmen – ninein numbers were transferred from Dewas with the intention to reducethe number of persons employed at Dewas and such an act was coveredby Clause 11 of Schedule 4 of the I.D. Act and since no notice of changewas given, the transfer orders are in violation of Section 9A of the I.D.Act. The Labour Court also specifically found on appreciation of evidencethat transfer will change the nature of work since the workmen wereemployed as labourers at Dewas and on transfer at Chopanki, they willbe working as Supervisor. Consequently, the Labour Court found theorder of transfer as null and void and consequently the Labour Court setaside the same.

3.6 Feeling aggrieved and dissatisfied with the judgment and awardpassed by the Labour Court, the employer – management preferredwrit petitions under Article 227 of the Constitution of India before theHigh Court and by the impugned common judgment and order the HighCourt has dismissed the said writ petitions treating the said writ petitionsunder Article 227 of the Constitution of India. Feeling aggrieved anddissatisfied with the judgment and order passed by the learned SingleJudge, the appellant preferred writ appeal/s before the Division Benchof the High Court and the Division Bench has dismissed the said appeal/s as not maintainable observing that the writ petition/s before the learnedSingle Judge was/were under Article 227 of the Constitution of India.

3.7 Feeling aggrieved and dissatisfied with the impugned commonjudgment and order passed by the High Court dismissing the writ petitions A

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Aand confirming the respective judgments and awards passed by the LabourCourt declaring the order of transfer dated 13.01.2015 as illegal, null andvoid 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 thepresent appeals. That the appellant has also challenged the order passedby the Division Bench dismissing the writ appeal/s as not maintainable.B

4. Shri Jaideep Gupta, learned Senior Advocate has appeared onbehalf of the appellant- employer and Shri Niraj Sharma, learned Advocatehas appeared on behalf of the respective respondents – workmen.

4.1 Shri Gupta, learned Senior Advocate appearing on behalf ofCthe management/employer has vehemently submitted that in the factsand circumstances of the case, the High Court has committed a graveerror in treating the writ petitions under Article 227 of the Constitution ofIndia. It is submitted that as such the awards were challenged by themanagement by way of writ petitions clearly under Article 226 of theConstitution.D

4.2 It is submitted that even the prayer in the writ petitions wasfor an appropriate writ, direction or order to quash and set aside therespective awards. It is submitted that in fact initially “Article 226” wasmentioned however, due to the objections raised by the Registry, theappellant was compelled to amend the writ petition and mention “underEArticle 227 of the Constitution”. It is submitted that as such evensubsequently, the appellant filed a writ appeal before the Division Benchof the High Court challenging the judgment and award passed by thelearned Single Judge, however, the Division Bench dismissed the writappeals as not maintainable treating the writ petitions before the learnedFSingle Judge under Article 227 of the Constitution. It is submitted that assuch the writ petitions before the High Court were on the face of itpetitions under Article 226 of the Constitution, even as can be seen fromthe material/averments made in the writ petitions.

4.3 Shri Gupta, learned Senior Advocate appearing on behalf ofGthe employer has further submitted that in order to determine whether apetition 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 reliefsought therein. It is submitted that neither the provision cited in the causetitle nor the provision mentioned by the learned Single Judge whileexercising his power were determinative of the true nature of theHapplication and order thereon. Heavy reliance is placed on the decision of this Court in the case of Ashok K. Jha and Ors. Vs. Garden SilkMills Limited and Anr., (2009) 10 SCC 584 (paragraphs 27 to 37).

4.4 It is submitted that as such in several subsequent judgmentswith reference to awards of Labour Courts, the petitions were held tobe primarily under Article 226 and not under Article 227 and, therefore,amenable to the appellate jurisdiction of the Division Bench of HighCourt. In support of his above submission, he has relied upon the followingdecisions of the Madhya Pradesh High Court as well as of the BombayHigh Court:-

Shaillendra Kumar Vs. Divisional Forest Officer and Anr.(2017) SCC Online MP 1514; Yogendra Singh Chouhan Vs.Managing Director, Intas Pharmaceuticals Ltd. and Anr., WA No.46of 2021; State of Madhya Pradesh and Anr. Vs. Patiram, WA No.1932 of 2019 (2020 SCC Online MP 3660) and Murari Lal Chhariand Ors. Vs. Munishwar Singh Tomar and Anr. in WA No.1191 of2019 (2019 SCC Online MP 4559).

4.5 It is submitted that as such by not treating/considering the writpetitions by the learned Single Judge under Article 226 of the Constitution,the valuable right available to the employer of appeal before the DivisionBench has been taken away. Therefore, it is requested to remit thematter back to the Division Bench of the High Court to decide the writappeals in accordance with law and on its own merits. It is furthersubmitted that even on merits also both, the Labour Court as well as theHigh Court have erred in declaring the order of transfer as illegal andvoid and in violation of Section 9A of the I.D. Act.

4.6 It is submitted that the Labour Court as well as the learnedSingle Judge has materially erred in holding that order of transferamounted to change of terms and conditions of service requiring a noticeunder Section 9A and in the absence thereof, the said order is liable tobe set aside. It is submitted that as such an order of transfer does notbring about a change in the terms and conditions of service within themeaning of Section 9A read with Schedule 4 thereof. Heavy reliance isplaced on the decision of the Madhya Pradesh High Court in the case ofPresident Vs. Director, Rajasthan Patrika Pvt. Ltd., WP No.12934of 2015 (2015 (4) MPLJ 595).

4.7 It is further submitted that Clause 11 of Schedule 4 is not at allrelevant when considering transfer orders. It is submitted that the purpose A

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Aof the transfer order was not to bring about a reduction in theestablishment in question. It is submitted that to bring a case within thechange of terms and conditions of service within the meaning of Section9A, it is necessary for the workmen to demonstrate that they have beenadversely affected by the reduction. Reliance is placed on the decisionof this Court in the case of Hindustan Lever Ltd. Vs. Ram MohanBRay and Ors., (1973) 4 SCC 141; Harmohinder Singh Vs. KhargaCanteen, Ambala Cantt., (2001) 5 SCC 540 and the decision of theBombay High Court in the case of Associated Cement CompaniesLtd. Vs. Associated Cement Staff Union, 2009 SCC Online Bom2132.C4.8 It is further submitted on behalf of the employer that evenotherwise the learned Single Judge has failed to take into account thecontention that the employees are not workmen.

4.9 Making above submissions and relying upon the abovedecisions, it is prayed to allow the present appeals and quash and setDaside the impugned judgments and orders passed by the Division Benchof the High Court, learned Single Judge of the High Court and therespective 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.E

5.1 It is submitted by Shri Sharma, learned Advocate appearingon behalf of the respective workman that in the facts and circumstancesof the case, no error has been committed by the learned Labour Courtas well as the High Court in holding the order of transfer dated 13.01.2015as illegal, invalid and in violation of the provisions of Section 9A of theFIndustrial Disputes Act read with Fourth Schedule.

5.2 It is submitted that the findings recorded by the learned LabourCourt 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 IndustrialDisputes Act are on appreciation of evidence, which, the High CourtGhas rightly not interfered with in exercise of the powers under Article227 of the Constitution of India.

5.3 It is vehemently submitted by the learned Advocate appearingon behalf of the workmen that as such except 2-3 workmen, rest of theworkmen were at the fag end of their service career and were transferredHto 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 serviceat the time of their transfer and were at the fag end of their service. It issubmitted that even one of them has retired having attained the age of60 years. It is submitted that the order of transfer dated 13.01.2015transferring the respective workman form Dewas to Chopanki and thattoo at the fag end of their service career amounted to an arbitrary andunfair labour practice by creating a situation in which the workmen wereleft with no other option except to leave their employment. It is submittedthat it was in fact a way to retrench the workmen without following themandatory provisions of law. It is further submitted that even suddentransfer of the workmen to a different State and that too at a distance ofabout 900 Kms. from their place would cause great hardship as theplace where they were transferred had no educational and medicalfacilities, their school going children and old aged parents were to bedisturbed and uprooted and the place where they were transferred hadno residential area within 40-50 Kms. form the plant with no means oftransport.

5.4 It is submitted by Shri Sharma, learned Advocate on behalf ofthe workmen that in view of the above situation, the transfer amountedto victimization of the employees by forcing them to quit their jobs. It isfurther submitted that on appreciation of evidence on record, the learnedLabour Court had rightly come to the conclusion that by transferring therespective workman to Chopanki would be in violation of Section 9Aread with Fourth Schedule in as much as by transferring them to Chopankiwould change the nature of work without issuing any notice under Section9A of the Industrial Disputes Act.

5.5 It is submitted that even DW-1, Manoj Thakkar had admittedin cross-examination that by transferring the respective workman fromDewas to Chopanki, number of workers at Dewas factory would bereduced. It is submitted that he has also admitted that a transferredworkmen would work in the capacity of Supervisor at Chopanki. It issubmitted that the respective workman was a workman at Dewas andas admitted by the employer’s witness at Chopanki, after giving trainingthey will have to work as supervisor. It is submitted that therefore transferof the workmen would amount to depriving them of the beneficialprovisions of the Industrial Disputes Act. It is submitted that once at thetransferred place, they will work as a Supervisor, thereafter they will beout of the clutches of the Industrial Disputes Act and they will be deprived AB

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Aof the protection of the benevolent provisions under the IndustrialDisputes Act. It is submitted that even the DW-2, Rajbir Singh has alsostated in his evidence that the respondents are employed in the capacityof workmen while after transfer to Chopanki, they will be given trainingand shall be assigned the work of supervisor. The aforesaid would changethe nature of work as stated hereinabove.B

5.6 It is submitted that after analyzing the evidence on record, therelevant labour law and the judgments of the Supreme Court as well asof the High Courts, the learned Labour Court has specifically held thatsince the service conditions of the workmen had been changed withoutissuing any notice under Section 9A of the Industrial Disputes Act, theCorder of transfer is illegal, arbitrary, mala fide and victimization, therefore,the same has been rightly set aside by the learned Labour Court and thesame has been rightly confirmed by the High Court.

5.7 It is submitted that there are concurrent findings by the learnedLabour Court as well as the High Court that the respondents wereDworkmen 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 thatthe writ petition(s) before the learned Single Judge of the High Court infact was under Article 226 of the Constitution of India and not underEArticle 227 and, therefore, the writ appeal would be maintainable, isconcerned, it is submitted that in fact in the cause title, the appellantshave stated that the writ petition is under Article 227 of the Constitutionof India and all throughout their writ petition was under Article 227. It issubmitted, therefore, that now, thereafter, it was not open for the appellantFto contend that the petition(s) was/were under Article 226 and, therefore,the writ appeal would be maintainable. It is submitted that thereforeboth, the learned Single Judge as well as the Division Bench have rightlyheld that the petition(s) was/were in fact under Article 227 and, thereforethe writ appeal(s) was/were not maintainable.

G5.9 It is further submitted by learned Advocate appearing on behalfof the workmen that as such the respondents-employees have not beenpaid salaries after the transfer order dated 13.01.2015 till date and it isvery difficult for them to maintain themselves as well as their familymembers. Making above submissions it is prayed to dismiss the presentappeals.H

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 areconcurrent findings of fact recorded by the learned Labour Court aswell as learned Single Judge of the High Court that the order of transferdated 13.01.2015 transferring the respective workman from Dewas toChopanki was arbitrary, mala fide, amounted to victimization, unfair labourpractice and in violation of Section 9A of the Industrial Disputes Act. Onappreciation of evidence, more particularly, while considering thedeposition of DW-1 Manoj Thakkar, the deposition of DW-2 RajveerSingh and depositions of PW-1, Kanhaiya Lal and PW-2, Vijay PratapSingh Ranawat, the learned Labour Court came to the following findings:-

(i) that the respective respondents-workmen were in thecategory of workman under Section 2(s) of the IndustrialDisputes Act and, therefore, they were entitled to theprotection under the Industrial Disputes Act;

(ii) that by transferring them from Dewas to Chopanki, therewould be change of work and, therefore, there would bechange in the conditions of service and, therefore, the sameis in violation of Section 9A read with Clause 11 of theFourth Schedule of the Industrial Disputes Act ;

(iii) that by transferring the nine employees-workmen, there willbe reduction of workmen at Dewas factory;

(iv) that at Dewas, the workmen were employed in the capacityof a workman and at Dewas the work of manufacturingprecision pipes is done whereas at Chopanki manufacturingof nut and bolts is done.

7.1 The aforesaid findings by the learned Labour Court are onappreciation of evidence on record, which as such cannot be said to beperverse and/or contrary to the evidence on record. We have also minutelygone through the findings recorded by the learned Labour Court as wellas the evidence on record. It emerge from the evidence on record thatthe respective respondents – employees were employed at Dewas andworking at Dewas for more than 25 to 30 years; all of them came to betransferred suddenly from Dewas to Chopanki, which is at a distance of900 Kms. from Dewas; they came to be transferred at the fag end oftheir service career; that the place where they were transferred had noeducational and medical facilities and that the place where they were A

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Atransferred had no residential area within 40-50 Kms. from the plantwith no means of transport.

7.2 It also emerges that the number of workers at Dewas factoryhas been reduced by nine by transferring the workmen to Chopanki. Italso emerges that even as admitted by DW-1 and DW-2 the transferredBworkmen would work in the capacity of supervisor at Chopanki andafter their transfer to Chopanki, they will be given training and assignedthe work of supervisor.

7.3 As observed hereinabove and even the findings recorded bythe learned Labour Court and even it also emerge from the evidence onCrecord that at Dewas all of them were ‘workmen’ as defined in Section2(s) of the Industrial Disputes Act and, therefore, would have a protectionunder the provisions of the Industrial Disputes Act and after their transferto Chopanki, they will have to work in the capacity of supervisor and,therefore would be deprived of the beneficial provisions of the IndustrialDisputes Act. Therefore, on such transfer from Dewas to Chopanki, theDnature of service conditions and the nature of work would be changed,therefore, in such a case Section 9A read with Fourth Schedule wouldbe attracted. Section 9A and the Fourth Schedule reads as under:- “9A. Notice of change.- No employer, who proposes to effectany change in the conditions of service applicable to any workmanEin respect of any matter specified in the Fourth Schedule, shalleffect such change,- (a)without giving to the workman likely to be affected by suchchange a notice in the prescribed manner of the nature ofthe change proposed to be effected; or F

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

Provided that no notice shall be required for effecting anysuch change—

(a) where the change is effected in pursuance of any settlementGor award; or (b)where the workmen likely to be affected by the change arepersons to whom the Fundamental and SupplementaryRules, Civil Services (Classification, Control and Appeal)Rules, Civil Services (Temporary Service) Rules, RevisedHLeave Rules, Civil Service Regulations, Civilians in Defence Services (Classification, Control and Appeal) Rules or theIndian Railway Establishment Code or any other rules orregulations that may be notified in this behalf by theappropriate Government in the Official Gazette, apply.

THE FOURTH SCHEDULE

(SEE SECTION 9A)

Conditions of Service for change of which Notice is to begiven

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

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

3. Compensatory and other allowances;

4. Hours of work and rest intervals;

5. Leave with wages and holidays;

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

7. Classification by grades;

8 Withdrawal of any customary concession or privilege or changein usage;

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

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

11. Any increases or reduction (other than casual) in the numberof persons employed or to be employed in any occupation orprocess or department or shift, not occasioned by circumstancesover which the employer has no control.”

7.4 In view of the above and from the findings recorded by thelearned Labour Court on the appreciation of evidence on record, it isrightly held that the order of transfer dated 13.01.2015 transferring therespective workman from Dewas to Chopanki, which is at about 900Kms. away is in violation of Section 9A read with Fourth Schedule of A

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Athe Industrial Disputes Act and is arbitrary, mala fide and victimization.As observed above, by such transfer, their status as “workman” wouldbe changed to that of “supervisor”. By such a change after their transferto Chopanki and after they work as supervisor they will be deprived ofthe beneficial provisions of the Industrial Disputes Act and, therefore,the nature of service conditions/service would be changed.B

7.5 Even from the judgment and award passed by the learnedLabour Court as well as the impugned judgment and order passed by thelearned Single Judge, it can be seen that the appellant/employer hasfailed 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 theirCservice career. Every aspect has been dealt with and considered in detailby the learned Labour Court as well as by the learned Single Judge ofthe High Court.

7.6 Now, so far as the submission on behalf of the appellant thatthe respective workmen – employees were not ‘workmen’ and, therefore,Dthe reference to the learned Labour Court was not maintainable, has nosubstance at all. There are concurrent findings recorded by the learnedLabour Court as well as the learned Single Judge that the concernedemployees were ‘workmen’ within the definition of Section 2(s) of theIndustrial Disputes Act. From the depositions of the witnesses, PW-1,EPW-2, DW-1 and DW-2, it is established and proved that the concernedemployees 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 conciliationhad failed, the dispute, which was referred to the learned Labour CourtFwas “whether the transfer is valid and proper?” The dispute that theconcerned employee is a ‘workman’ or not was not even referred to thelearned Labour Court. Even no such issue was framed by the learnedLabour Court. Be that it may, as observed hereinabove, it has beenestablished and proved that the concerned employees were ‘workmen’within the definition of Section 2(s) of the Industrial Disputes Act and,Gtherefore, were entitled to the protection under the provisions of theIndustrial Disputes Act.

7.8 Now, so far as the submission on behalf of the appellant thatso far as the transfer is concerned, it is part of the service conditions andtherefore Section 9A shall not be applicable is concerned, the same hasHno substance. The question is not about the transfer only, the question is

about the consequences of transfer. In the present case, the nature ofwork/service conditions would be changed and the consequences oftransfer would result in the change of service conditions and the reductionof employees at Dewas factory, for which the Fourth Schedule andSection 9A shall be attracted.

7.9 Now, so far as the submission on behalf of the appellant thatthe learned Single Judge of the High Court wrongly treated the petition(s)under Article 227 and as such the learned Single Judge ought to havetreated the petition(s) under Article 226, therefore, the writ appeal beforethe learned Single Judge would have been maintainable, is concerned, atthe outset, it is required to be noted that before the learned Single Judgein the cause title specifically Article 227 has been mentioned. Even inprayer clause, no writ of certiorari is sought. The prayer is simply toquash and set aside the judgment and award passed by the learned LabourCourt and, therefore, in the fact situation, the Division Bench has rightlydismissed the writ appeal as not maintainable. Be that it may, even forthe sake of submission, assuming that we accept the submission that thepetition before the learned Single Judge ought to have been treated asunder Article 226 and writ appeal would have been maintainable, in thefacts and circumstances of the case and instead of remanding the matterto the Division Bench to decide the same afresh, we, ourselves, havedecided the entire controversy/issues on merits considering the fact thatthe order of transfer is of 2015 and that most of the employees have bynow retired or they are about to retire on attaining the age ofsuperannuation and that it is stated that they are not paid the salariessince 2015. Therefore, we, ourselves, have decided the entire issues onmerits.

8. In view of the above and for the reasons stated above, we seeno reason to interfere with the impugned judgment and award passed bythe learned Labour Court confirmed by the learned Single Judge of theHigh Court. We are in complete agreement with the view taken by thelearned Labour Court as well as the learned Single Judge holding theorder of transfer dated 13.01.2015 transferring the respective workmanfrom Dewas to Chopanki, which is at about 900 Kms. from the placethey were working as illegal, mala fide and in violation of Section 9Aread with Fourth Schedule of the Industrial Disputes Act.

8.1 Consequently, all these appeals deserve to be dismissed andare accordingly dismissed. The appellant is directed to comply with the A

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Ajudgment and award passed by the learned Labour Court confirmed bythe learned Single Judge of the High Court. All the concerned workmenshall be entitled to the consequential benefits including the arrears ofsalary etc., as if they were not transferred from Dewas and continuedto work at Dewas and whatever benefits, which may be available to therespective workmen including the arrears of salary/wages, retirementBbenefits etc. shall be paid to the concerned workman within a period offour weeks from today. All these appeals are accordingly dismissed withcosts, which is quantified at Rs.25,000/- qua each workman also to bepaid to the concerned workman within a period of four weeks fromtoday.

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Devika Gujral

Appeals dismissed.

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