CAPARO ENGINEERING INDIA LTD.versusUMMED SINGH LODHI AND ANR.

780                      [2021]REPORTS
               SUPREME COURT    8 S.C.R. 780               [2021] 8 S.C.R.


A                   CAPARO ENGINEERING INDIA LTD.
                                        v.
                     UMMED SINGH LODHI AND ANR.
                     (Civil Appeal Nos. 5829-5830 of 2021)
B                             OCTOBER 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-workmen
      employed in the Dewas factory of appellant as labourer – Order of
C
      transfer to Chopanki, which is 900 Kms away from Dewas – On
      transfer, after training, workmen were to work as supervisor –
      Industrial dispute – Labour court found that the workmen-nine in
      number were transferred from Dewas with intention to reduce the
      number of persons employed at Dewas and such an act was covered
D     by Clause 11 of Schedule 4 of the I.D. Act and since no notice of
      change was given, the transfer orders were in violation of s.9A of
      the I.D. Act – Labour Court also specifically found on appreciation
      of evidence that transfer would change the nature of work since
      the workmen were employed as labourers at Dewas and on transfer
      at Chopanki, they would be working as Supervisor – Employer-
E
      management unsuccessfully challenged order of Labour Court
      before the High Court – Hence instant appeal – Held: The order
      transferring the respective workmen from Dewas to Chopanki at
      about 900 Kms. away was in violation of s.9A read with Fourth
      Schedule of the ID Act and was arbitrary, mala fide and victimization
F     – By such transfer, their status as “workman” would change to that
      of “supervisor” – Thus, by such a change after their transfer to
      Chopanki and after they work as supervisor they would be deprived
      of the beneficial provisions of the ID Act and, therefore, the nature
      of service conditions/service would be changed – Even from the
      judgment and award passed by the Labour Court as well as the
G
      impugned judgment and order passed by the Single Judge, it can
      be seen that the appellant/employer has failed to justify the transfer
      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 was
      dealt with and considered in detail by the Labour Court as well as
H     by the Single Judge of the High Court.
                                        780
  CAPARO ENGINEERING INDIA LTD. v. UMMED SINGH LODHI                  781


      Dismissing the appeals, the Court                               A
      HELD: 1.1 There are concurrent findings of fact recorded
by the Labour Court as well as Single Judge of the High Court
that the order transferring the respective workmen from Dewas
to Chopanki was arbitrary, mala fide, amounted to victimization,
unfair labour practice and in violation of Section 9A of the          B
Industrial Disputes Act. On appreciation of evidence, more
particularly, while considering the deposition of DW-1, DW-2 and
depositions of PW-1 and PW-2, the Labour Court came to the
findings that the respective respondents-workmen were in the
category of workman under Section 2(s) of the Industrial Disputes
Act and, therefore, they were entitled to protection under the        C
Industrial Disputes Act; 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, the same was
in violation of Section 9A read with Clause 11 of the Fourth
Schedule of the Industrial Disputes Act; that by transferring the     D
nine employees-workmen, there will be reduction of workmen at
Dewas factory; that at Dewas, the workmen were employed in
the capacity of a workman and the work of manufacturing precision
pipes is done whereas at Chopanki manufacturing of nut and bolts
is done. The said findings by the Labour Court are on appreciation
of evidence on record, which as such cannot be said to be perverse    E
and/or contrary to 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 were transferred suddenly and that too at
the fag end of their service career; that the place where they        F
were transferred had no educational and medical facilities and
that had no residential area within 40-50 Kms. from the plant
with 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 the
respective workman from Dewas to Chopanki, which is at about          G
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. By such transfer, their status as “workman”
would be changed to that of “supervisor”. By such a change after

                                                                      H
782           SUPREME COURT REPORTS                      [2021] 8 S.C.R.


A     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. Even from the judgment and award
      passed by the Labour Court as well as the impugned judgment
      and order passed by the Single Judge, it can be seen that the
B
      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 Labour
      Court as well as by the Single Judge of the High Court. [Paras
C     7.4, 7.5][793-G-H; 794-A-D]
            1.3 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
D     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. [Para 7.8] [794-G-H; 795-A-B]
E
            Ashok K. Jha and Ors. v. Garden Silk Mills Limited and
            Anr., (2009) 10 SCC 584 : [2009] 13 SCR 886;
            Shaillendra Kumar v. Divisional Forest Officer and Anr.
            (2017) SCC Online MP 1514; Yogendra Singh
            Chouhan v. Managing Director, Intas Pharmaceuticals
F           Ltd. and Anr., WA No.46 of 2021; State of Madhya
            Pradesh and Anr. v. Patiram, WA No. 1932 of 2019
            (2020 SCC Online MP 3660); Murari Lal Chhari and
            Ors. v. Munishwar Singh Tomar and Anr. in WA No.1191
            of 2019 (2019 SCC Online MP 4559); President vs.
G           Director, Rajasthan Patrika Pvt. Ltd., WP No.12934 of
            2015 (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
  CAPARO ENGINEERING INDIA LTD. v. UMMED SINGH LODHI                         783


      Associated Cement Companies Ltd. v. Associated                         A
      Cement Staff Union 2009 SCC Online Bom 2132 –
      referred to
                        Case Law Reference
[2009] 13 SCR 886                referred to             para 4.3
                                                                             B
[1973] 3 SCR 924                 referred to             para 4.7
[2001] 3 SCR 796                 referred to             para 4.7
      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.5829-
5830 of 2021
                                                                             C
     From the Judgment and Order dated 19.06.2019 of the High Court
of 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                        D
      Jaideep Gupta, Sr. Adv., Puneet Singh Bindra, Saurabh Prakash,
Neeraj Kumar, Ms. Simran Jeet, Utsav Jain, Anant Aditya Patro, Akshay
Goel, Advs. for the Appellant.
      Niraj Sharma, Ms. Vaishnavi Paliwal, Advs. for the Respondents.
      The Judgment of the Court was delivered by                             E

      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      F
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       G
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
their order of transfer dated 13.01.2015 as illegal and void, the employer
has preferred the present appeals.                                           H
784            SUPREME COURT REPORTS                          [2021] 8 S.C.R.


A           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
B     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
C           and what directions need to be given to the employer in this
            respect?”
            Similar dispute was referredwith 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
D     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
E     Industrial Disputes Act, 1947 (hereinafter referred to as “I.D. Act”);
      that 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
F     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
G     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
H
  CAPARO ENGINEERING INDIA LTD. v. UMMED SINGH LODHI                            785
                   [M. R. SHAH, J.]

surplus which was not required and, therefore, to continue the employment       A
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.
       3.4 Both the parties led the evidences. The workmen examined             B
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.
                                                                                C
       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             D
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           E
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.
       3.6 Feeling aggrieved and dissatisfied with the judgment and award
passed by the Labour Court, the employer – management preferred                 F
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          G
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       H
786             SUPREME COURT REPORTS                            [2021] 8 S.C.R.


A     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.
B
             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
C     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.
D
             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
E     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
F     Single Judge under Article 227 of the Constitution. It is submitted that as
      such the writ 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
G     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
H     application and order thereon. Heavy reliance is placed on the decision
  CAPARO ENGINEERING INDIA LTD. v. UMMED SINGH LODHI                           787
                   [M. R. SHAH, J.]

of this Court in the case of Ashok K. Jha and Ors. Vs. Garden Silk             A
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           B
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.                          C
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).
                                                                               D
       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            E
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            F
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          G
placed on the decision of the Madhya Pradesh High Court in the case of
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
                                                                               H
788             SUPREME COURT REPORTS                           [2021] 8 S.C.R.


A     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
B
      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.
C           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
D     aside the impugned judgments and orders passed by the Division Bench
      of the 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.
E
             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
F     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
G     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
H     to Chopanki, which is at a distance of about 900 Kms. It is submitted
  CAPARO ENGINEERING INDIA LTD. v. UMMED SINGH LODHI                            789
                   [M. R. SHAH, J.]

that all the respective workman had put about 25 to 30 years of service         A
at the time of their transfer and were at the fag end of their 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
                                                                                B
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               C
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.
                                                                                D
       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              E
read with Fourth Schedule in as much as by transferring them to Chopanki
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           F
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        G
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
                                                                                H
790             SUPREME COURT REPORTS                              [2021] 8 S.C.R.


A     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.
B
             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
      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
C     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
D     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
E     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
F     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
      held that the petition(s) was/were in fact under Article 227 and, therefore
      the writ appeal(s) was/were not maintainable.

G            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.
H
  CAPARO ENGINEERING INDIA LTD. v. UMMED SINGH LODHI                          791
                   [M. R. SHAH, J.]

      6. Heard the learned Advocates for the respective parties at length.    A
       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   B
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:-
                                                                              C
      (i)     that the respective respondents-workmen were in the
              category of workman under Section 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         D
              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     E
              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.                                       F
       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
                                                                              G
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         H
792               SUPREME COURT REPORTS                         [2021] 8 S.C.R.


A     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
B     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
C     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
D     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:-
            “9A. Notice of change.- No employer, who proposes to effect
            any change in the conditions of service applicable to any workman
E           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
F
            (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
G                   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
H                   Leave Rules, Civil Service Regulations, Civilians in Defence
  CAPARO ENGINEERING INDIA LTD. v. UMMED SINGH LODHI                          793
                   [M. R. SHAH, J.]

             Services (Classification, Control and Appeal) Rules or the       A
             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)                                  B

      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      C
      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;
                                                                              D
      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;
                                                                              E
      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         F
      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.”                                G
       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          H
794             SUPREME COURT REPORTS                              [2021] 8 S.C.R.


A     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.
B
             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
C     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,
D     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,
E     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
F     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,
G     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
H     no substance. The question is not about the transfer only, the question is
  CAPARO ENGINEERING INDIA LTD. v. UMMED SINGH LODHI                           795
                   [M. R. SHAH, J.]

about the consequences of transfer. In the present case, the nature of         A
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       B
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        C
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        D
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        E
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        F
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
order of transfer dated 13.01.2015 transferring the respective workman         G
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        H
796              SUPREME COURT REPORTS                       [2021] 8 S.C.R.


A     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
B
      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.
C
      Devika Gujral                                            Appeals dismissed.




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F




G




H