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2022 DIGILAW 731 (KAR)

B. M. Veena v. Divisional Controller

2022-06-10

ASHOK S.KINAGI, RITU RAJ AWASTHI

body2022
JUDGMENT : 1. Heard. 2. In view of the order passed by the Apex Court dtd. 10/1/2022 in Misc.No.21/2022 filed in Suo Motu Writ Petition (c) No.3/2020, the delay in filing the appeal stands condoned. 3. This writ appeal has been filed challenging the final order dtd. 6/12/2021 passed in W.P.No.3398/2018 whereby, the writ petition preferred by the appellant under Articles 226 and 227 of the Constitution of India challenging the award dtd. 28/1/2014 in I.D.No.22/2012 passed by the III Additional Labour Court, Bengaluru was dismissed. 4. This Court, under similar facts and circumstances, has dismissed W.A.No.74 of 2022 (L-SE) vide judgment and order dtd. 7/6/2022 relying on the judgment of the Hon'ble Apex Court in the case of Caparo Engineering India Ltd. vs. Ummed Singh Lodhi and another (Civil Appeal Nos .5829-5830 of 2021) along with connected matters, whereby the Apex Court in its judgment dtd. 26/10/2021 has categorically held that the writ appeal in such matters would not be maintainable. Paragraph 7 of the judgment is relevant which, on reproduction, reads as under: "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 dtd. 13/1/2015 transferring the respective workman from Dewas to Chopanki was arbitrary, mala fide, amounted to victimization, unfair labour practice and in violation of Sec. 9A of the Industrial Disputes Act. 13/1/2015 transferring the respective workman from Dewas to Chopanki was arbitrary, mala fide, amounted to victimization, unfair labour practice and in violation of Sec. 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 Sec. 2(s) of the Industrial Disputes Act 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 Sec. 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 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. 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 Sec. 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 Sec. 9A read with Fourth Schedule would be attracted. Sec. 9A and the Fourth Schedule reads as under:- "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 Sec. 9A) Conditions of Service for change of which Notice is to be given 1. THE FOURTH SCHEDULE (SEE Sec. 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; 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 dtd. 13/1/2015 transferring the respective workman from Dewas to Chopanki, which is at about 900 Kms. away is in violation of Sec. 9A read with Fourth Schedule of the Industrial Disputes Act and is arbitrary, mala fide and victimization. As observed above, by such transfer, their status as "workman" would be changed to that of "supervisor". By such a change after their transfer to Chopanki and after they work as supervisor they will be deprived of the beneficial provisions of the Industrial Disputes Act and, therefore, the nature of service conditions/service would be changed. 7.5 Even from the judgment and award passed by the learned Labour Court as well as the impugned judgment and order passed by the learned Single Judge, it can be seen that the appellant/employer has failed to justify the transfer of nine employees from Dewas to Chopanki, which is at a distance of 900 Kms. and that too at the fag end of their service career. 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 Sec. 2(s) of the Industrial Disputes Act. From the depositions of the witnesses, PW-1, PW-2, DW-1 and DW-2, it is established and proved that the concerned employees were 'workmen' and that after their transfer to Chopanki, they will be given training and they will work as a supervisor. 7.7 At this stage, it is required to be noted that after the conciliation had failed, the dispute, which was referred to the learned Labour Court was "whether the transfer is valid and proper?" The dispute that the concerned employee is a 'workman' or not was not even referred to the learned Labour Court. Even no such issue was framed by the learned Labour Court. Be that it may, as observed hereinabove, it has been established and proved that the concerned employees were 'workmen' within the definition of Sec. 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 Sec. 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 Sec. 9A shall be attracted. 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 Sec. 9A shall be attracted. 7.9 Now, so far as the submission on behalf of the appellant that the learned Single Judge of the High Court wrongly treated the petition(s) under Article 227 and as such the learned Single Judge ought to have treated the petition(s) under Article 226 , therefore, the writ appeal before the learned Single Judge would have been maintainable, is concerned, at the outset, it is required to be noted that before the learned Single Judge in the cause title specifically Article 227 has been mentioned. Even in prayer clause, no writ of certiorari is sought. The prayer is simply to quash and set aside the judgment and award passed by the learned Labour Court and, therefore, in the fact situation, the Division Bench has rightly dismissed the writ appeal as not maintainable. Be that it may, even for the sake of submission, assuming that we accept the submission that the petition before the learned Single Judge ought to have been treated as under Article 226 and writ appeal would have been maintainable, in the facts and circumstances of the case and instead of remanding the matter to the Division Bench to decide the same afresh, we, ourselves, have decided the entire controversy/issues on merits considering the fact that the order of transfer is of 2015 and that most of the employees have by now retired or they are about to retire on attaining the age of superannuation and that it is stated that they are not paid the salaries since 2015. Therefore, we, ourselves, have decided the entire issues on merits." 5. In view of the above, we are of the considered view that in the given facts and circumstances of the case, the writ appeal is not maintainable. It is accordingly dismissed.