2009 Supreme(SC) 1505

2009(6) Supreme 479
SUPREME COURT OF INDIA
Tarun Chatterjee and R. M. Lodha, JJ.
Ashok K. Jha & Ors. —Appellants
versus
Garden Silk Mills & Anr. — Respondents
Civil Appeal No. 5854 of 2009
Arising out of SLP(C) No. 29303/2008
Decided on : 28-08-2009

IMPORTANT POINT
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.

Headnote:Bombay Industrial Relations Act, 1946 – Section 42(1) – Transfer of 31 employees appellants from Crimping Department to Twisting Department by respondent – employer – Challenge thereagainst-The employees alleged that their transfer by the employer tantamounted to change in respect of matter specified in items nos. 1 and 2 of Schedule II of the BIR Act – Labour Court, held that employees had failed to prove that the employer had made change in relation to item nos. 1 and 2 of Schedule II – Industrial Court, however set aside order of the 1st Labour Court and directed the employer to withdraw the orders of transfer and to entrust to the employees, work of the original post-Special Civil Application there against – Dismissed by Single judge-Letters patent appeal-Allowed by Division Bench – Appeal – Transfer orders made it clear that there was no change in the service conditions of workers as. the workers continued to enjoy same pay scales, rights and benefits flowing from service and the type of work also remained the same – The only thing that had been done by impugned orders of transfer was that these workers had been asked to discharge their duties in the Twisting Department instead of Crimping Department – No evidence adduced by employees to establish that there was difference in work in the Crimping Department and the Twisting Department or that work of operator at the crimping and twisting machines was different-In the absence of any evidence by the workers about any fixed number of workers in the Crimping Department and Twisting Department, there was no foundation laid for consideration of the question of reduction in the Crimping Department and increase in number in the Twisting Department by impugned orders of transfer-No merit in submission of appellants that there was a basic difference in the nature of machines in the Crimping and Twisting Departments – If that were so, the workers ought to have led evidence in that regard which they never did – Appeal dismissed. (Paras 16 to 27)

        Letters Patent Appeal-Maintainability of under Clause 15 of Letters Patent before Division Bench from the judgment and order of the single Judge of the High Court in petition filed under Article 226 and 227 of the Constitution – 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-A statement by 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-Instantly in the cause title of the writ petition (Special Civil Application), Articles 226 and 227 of the Constitution had been mentioned – A careful reading of writ petition showed that writ petition was not confined to supervisory jurisdiction of the High Court – The employer had invoked jurisdiction of the High Court by praying for a writ of certiorari – The judgment of the Single Judge was, thus, traceable to Article 226 – The statement made by the Single Judge in his order that no case for interference was made out under Article 227 of the Constitution was not decisive-Held for all these reasons, Letters Patent Appeal was maintainable from the order passed by Single Judge. (Paras 35 to38)

       Facts of the Case :

        Two questions that arose for consideration in this appeal by special leave were:

       (1) Whether transfer of the 31 employees (appellants) from Crimping Department to Twisting Department by the respondent - employer tantamounts to change in respect of matter specified in item nos. 1 and 2 of Schedule II necessitating notice under Section 42(1) of the Bombay Industrial Relations Act, 1946?

        (2) Whether Letters Patent Appeal under Clause 15 of the Letters Patent was maintainable from the judgment and order dated October 1, 2007 passed by the learned single Judge in Special Civil Application No. 21828/2006?

       Findings of the Court :

        1. Transfer orders made it clear that there was no change in the service conditions of workers as. the workers continued to enjoy same pay scales, rights and benefits flowing from service and the type of work also remained the same. The only thing that had been done by impugned orders of transfer was that these workers had been asked to discharge their duties in the Twisting Department instead of Crimping Department. No evidence was adduced by employees to establish that there was difference in work in the Crimping Department and the Twisting Department or that work of operator at the crimping and twisting machines was different-In the absence of any evidence by the workers about any fixed number of workers in the Crimping Department and Twisting Department, there was no foundation laid for consideration of the question of reduction in the Crimping Department and increase in number in the Twisting Department by impugned orders of transfer. No merit in submission of appellants that there was a basic difference in the nature of machines in the Crimping and Twisting Departments .If that were so, the workers ought to have led evidence in that regard which they never did.

        2. Instantly in the cause title of the writ petition (Special Civil Application), Articles 226 and 227 of the Constitution had been mentioned. A careful reading of writ petition showed that writ petition was not confined to supervisory jurisdiction of the High Court. The employer had invoked jurisdiction of the High Court by praying for a writ of certiorari. The judgment of the Single Judge was, thus, traceable to Article 226.The statement made by the Single Judge in his order that no case for interference was made out under Article 227 of the Constitution was not decisive. Held for all these reasons, Letters Patent Appeal was maintainable from the order passed by Single Judge.

       Result : Appeal dismissed