LexASHOK K. JHA & ORS. versus GARDEN SILK MILLS & ANR.
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(2009) 13 (ADDL.) S.C.R. 886 A ASHOK K. JHA & ORS. + v. GARDEN SILK MILLS & ANR. (Civil Appeal No. 5854 of 2009) B AUGUST 28, 2009 [TARUN CHATTERJEE AND R.M. LODHA, JJ.] Bombay Industrial Relations Act, 1946: s.42(1 ), Schedule II, Item 1 and 2, Schedule Ill, Item 2 - Notice of c change - Transfer of workers within establishment - From Crimping Department to Twisting Department - Held: Would not attract Item Nos. 1 and 2 of Schedule II but would be covered by Item 2 of Schedule Ill for which no notice under s.42(1) was necessary - Orders of transfer clearly stated that +-- D there was no change in service conditions of workers and the type of work also remained the same - Burden to establish that number of workers in the two departments was determined f and that due to action of employer, there was decrease or increase in number of workers in the two departments not E discharged by workers - Workers also did not lead evidence in support of their contention that there was difference in nature of machines in the Crimping and Twisting Departments and that they were not trained to work on Twisting Machines - Labour Laws. F Letters Patent: Clause 15 - Letters Patent Appeal - Maintainability of, against judgment of Single Judge of High Court in writ petition filed under Articles 226 and 227 - Held: If judgment under appeal falls squarely within four corners of G Article 227, intra court appeal from such judgment would not be maintainable - But if the petitioner invoked jurisdiction of 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, appeal would be maintainable - Statement by Single Judge that he H 886 ASHOK K. JHA & ORS. v. GARDEN SILK MILLS & 887 ANR. + exercised power under Article 227, cannot take away right of A appeal against such judgment if power is otherwise found to have been exercised under Article 226 - Constitution of India, 1950 - Arts. 226 and 227. Respondent-employer has many departments B including Crimping Department and Twisting Department. The appellants-employees, who were working as Crimping Operators in the Crimping Department, were transferred to the Twisting Department. They requested the employer to withdraw the transfer order, but the C employer expressed its inability to do the same. The employees then approached the Labour Court contending that they were not conversant to run the twisting machines and by transferring them from Crimping Department to Twisting Department, there is 0 total change in the type of their work and that their transfer by the employer tantamounts to change in respect of matter specified in items nos.1 and 2 of Schedule II of the the Bombay Industrial Relations Act, 1946 and, therefore, notice of change under Section 42(1) was required to be given and the prescribed procedure E must have been necessarily followed. The employer contested on diverse grounds, inter alia, that there was . no change in respect of service conditions, pay scale, benefits, designation and type of work as well as continuity of service by transfer of these employees from F Crimping Department to the Twisting Department. The employer denied that their action of transferring the employees was covered by item nos.1 and 2 of Schedule II but, according to them, their action was covered under item 2 of Schedule Ill of the BIR Act. G + The Labour Court recorded a finding that the employees had failed to prove that the employer had made change in relation to item nos. 1 and 2 of Schedule H 888 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R. A II. On appeal by, employees and the union, the Industrial + Court set aside the order of the Labour Court and directed the employer to withdraw. the orders of transfer and to entrust to the employees, work of the original post: The employer challenged the order of the Industrial Court B by filing petition under Articles 226 and 227 of the 'I .Constitution. The Single Judge of High Court dismissed the petition. Aggrieved, the employer preferred Letters t Patent Appeal under Clause 15 of the Letters Patent ~ before the Division Bench which set aside the judgment c of the Single Judge and restored the judgment passed by the Labour Court. The questions which arose for consideration in the present appeal were whether the transfer of the ~ employee
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