M.P. Thakkar, J.
1. Has the Civil Court jurisdiction to entertain an employee's suit claiming a declaration that an order of transfer passed by his employer is illegal and seeking a consequential injunction? Or is it impliedly barred by the Bombay industrial relations Act of 1946 (B.I.R. Act)? That is the pivotal question' in this appeal arising from an order passed by the learned judge of the city civil court, Ahmedabad, holding that the civil court has no jurisdiction in regard to the subject matter of the suit and that the appellant must approach the labour court constituted under the B.I.R. Act. This question was projected in issue No. 6 which was tried as a preliminary issue. The learned trial judge recorded the finding that the civil court had no jurisdiction to hear this suit and dismissed the suit in limine. Hence the unsuccessful plaintiff has approached this Court by way of the present appeal.
2. For the purpose of deciding the preliminary issue, the averments made in the plaint must be accepted at their face value. It is the case of the appellant that he was appointed by the respondent company as engineering supervisor on January 8, 1962 at Ahmedabad. The averments in paragraph 3 of the plaint are to the effect that he was appointed to serve at the Ahmedabad mill or unit belonging to the respondent-company. It is furthermorethe case of the appellant in paragraph 3 of the plaint that as per the contract of employment, the appellant was required to serve at Ahmedabad mill or unit of the respondent company. Now, it appears that the respondent company has also a unit or a mill at Nadiad which is a city situated at a short distance from Ahmedabad. The appellant instituted the present suit on the premise that the respondent company had called upon the appellant by a communication dated January 1, 1975 to serve at nadiad mill or unit of the respondent-company on the pretext that the processing department of the Ahmedabad mill or unit had been closed down. It is his case that he was appointed as an engineering supervisor and that even if the processing department was closed down, there was no need to transfer him to nadiad. According to the appellant, as per the stipulation in the contract of employment, the appellant was bound to work only at Ahmedabad and not at nadiad. He also levelled an accusation of mala fides against the respondent-company. The averments made in paragraph 7 are to the effect that the appellant had been appointed in the engineering department at Ahmedabad and that he could not be transferred to nadiad in view of the stipulations contained in the contract of employment. The appellant has claimed a declaration that the order of transfer is illegal and that he is not liable to be transferred. He has also prayed for a consequential injunction.
3. The respondent-company raised numerous pleas in the course of its written statement. Only such pleas as are relevant for the purpose of the present appeal in regard to the limited point of jurisdiction need to be adverted to. In paragraph 9 of the written statement it has been contended that:. The alleged agreement of 1962 provides for the plaintiff to serve the defendant company i.e. wherever the defendant has its unit the plaintiff has to work and the defendant company has two units, one at nadiad and one at Ahmedabad on the date of the appointment given by the defendant company to the plaintiff.
Thus the case of the defendant-company is that the contract of service, on a true interpretation, obliges the appellant to serve at either of the two units of the respondent-company i.e. either at Ahmedabad unit or at nadiad unit. In the back-ground of these pleadings, the question as regards jurisdiction is required to be decided.
4. The following points emerge from the pleadings:
(1) it is the case of the appellant that as per the stipulation in the con tract, his employment is for service in Ahmedabad unit only and that he is not liable to serve at nadiad unit of the respondent-company.
(2) as per the respondent-company, on a true interpretation of the con tract of service, the contract provides for transfer to nadiad unit of the respondent-company if necessary, and that the appellant is under an obligation to serve at either of the two units of the respondent-company.
5. The main dispute, therefore, is as regards the true interpretation and the real content of the stipulations in the contract for service. We are presently concerned only with the question of jurisdiction at the threshold and must assume that the averments made in the plaint are true and the contract of service provides for services at Ahmedabad Unit only and that the respondent has no right to transfer the appellant to Nadiad unit of the respondent-company. It must be realized (and this circumstance has crucial significance) that in the course of the written statement the respondent-company has not contended that though in reality the contract for service provides for employment at Ahmedabad only, it is entitled to effect a change unilaterally or that it has in fact made a unilateral change in regard to the conditions of service. This aspect will have to be perpetually kept before the mental eye in resolving the pertinent question as regards jurisdiction.
6. In the back-ground of these pleadings and the aforesaid circumstances the question arises whether it is open to the appellant to approach the labour court constituted under the B.I.R. Act to seek the relief claimed by him. The Learned Counsel for the appellant contends that it is not open to him to approach the labour court under any of the provisions of the Act. The Learned Counsel for the respondent-company on the other hand has canvassed that it would be open to the appellant to do so in view of Section 42(2) read with Section 78(1)A(a)(iii) of Schedule III of the B.I.R. Act.
7. Now the said Section provides as under:
78 (1) a labour court shall have power to-a. Decide.
(a) dispute regarding-
(i) xxx xxx xxx(ii) xxx xxx xxx(iii) any change made by an employer or desired by an employee in respect of an industrial matter specified in schedule iii and matters arising out of such change;
The anatomy of the provision when analyzed reveals that a labour court will have jurisdiction to decide a dispute between an employer and an employee in one of the following two situations, namely:
(1) when any change is already effected by an employer in, respect of an industrial matter specified in schedule III, or
(2) when such a change in regard to such a matter is 'desired' by an employee.
In other words when an employer has already brought about a change in the specified matter and the employee feels aggrieved or when an employee himself wants a change in such a matter to be effected and employer is not amenable to it.
8. Now the question of the employee desiring such a change does not arise as the appellant does not desire any change in any industrial matter specified in schedule III. It is his case that the contract of service provides for employment at Ahmedabad unit of the respondent-company only and he seeks declaration in this behalf and a consequential relief flowing therefrom. The appellant himself does not desire any change. There can be no question of his seeking any change in the condition of service if the condition of service in the contract provides for employment at Ahmedabad only as contended by him. One thing is clear, namely, that it is not the appellant who seeks a change. Therefore, from his point of view Section 78(1)A(a)(iii) will not be attracted.
9. Approaching the question from the other end can it be contended that the appellant can approach the labour court because it can be said that a change is made by the employer within the meaning of Section 78(1)A(a)(iii) of the Act? I have re-produced the contention of the respondent-company from the written statement. It is the case of the company that the contract of service provides for employment at either of two places i.e. Either at Ahmedabad or at nadiad. It is not the case of the company that though the contract provides for service only at Ahmedabad, the respondent-company has unilaterally changed the contract (assuming that it can be so changed) and that it has thereby effected a change in regard to the conditions of service. Far from it, the case of the respondent-company that is it has not effected any change. Under the circumstances, it is neither the case of the appellant nor of the respondent-company that a change has been effected by the respondent-company. That being the position, Section 78 (i)A(a)(iii) will not be attracted in any view of the matter. All that the appellant seeks is a declaration as regards the true interpretation and the real content of the stipulation in the contract of service. This cannot be achieved by approaching the labour court. Under the circumstances, it is futile to contend that the jurisdiction of the civil court is ousted or barred. The appeal must, there fore, succeed. The finding recorded by the learned trial judge that the civil court has no jurisdiction is reversed and set aside.
10. In the result if the court concludes that the plaintiff's contention that the contract provides for service at the Ahmedabad unit only and nowhere else, is unsound the suit will fail on merits. The suit is however, notliable to fail on the ground of want of jurisdiction. As the plaintiff is entitled to succeed on the aforesaid reasoning it is unnecesrary to examine the importance of the circumstance that during the pendency of the appeal the plaintiff has ceased to be an employee within the meaning of Section 2(13)(ii) of the B.I.R. Act and in any view of the matter the labour court would not have jurisdiction to decide a dispute raised by him. The matter will now go back to the trial Court for proceeding further in accordanc with law. The appellant shall pay the costs of the respondent through out.
11. The interim orders granted by the court will continue for a period of one month immediately following the reopening of the court after summer vacation on 16th June 1975 to enable the appellant to approach the trial court and to obtain suitable interim orders during the pendency of the suit in the trial court The trial court is directed to accord priority to this matter and to dispose it of in accordance with law with expedition.