Bombay High Court
Vijay Yadavrao Kuhikar And Others vs Indorama Synthetics (I). Ltd., Thr. Its ... on 6 December, 2023
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2023:BHC-NAG:16868
1 58.WP.6085-2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 6085 OF 2023
( Vijay Yadavrao Kuhikar & Ors.
Vs.
Indorama Synthetics (I) Ltd., Thr. Its Assistant General Manager,
Butibori, Nagpur )
Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's
orders or directions and
Registrar's orders
Mr. R.B. Khan, Advocate for the Petitioners.
Mr. R.B. Puranik, Advocate for the Respondent.
CORAM: AVINASH G. GHAROTE, J.
DATED : 6th DECEMBER, 2023
Heard Mr. Khan, learned counsel for the
petitioners and Mr. Puranik, learned counsel for the
respondent.
2. On 30.11.2023, the following position was
recorded:
"2. Mr.Khan, learned counsel for the petitioner,
submits that on account of the transfer effected,
there is a change in the working conditions as it is
not a routine transfer but the transfer effected on
account of the work of the POY Department having
been outsourced to the sister concern i.e. Indorama
Ventrues Yarn Pvt.Ltd. as a result of which the
petitioners who were working in the POY
Department have been rendered surplus and
therefore, the change has been effected in the nature
of the services and this would be a case covered by
Item I of Schedule II of the Maharashtra Industrial
Relations Act (hereinafter referred to as "BIR Act")
2 58.WP.6085-2023.odt
thereby requiring a notice under section 42(1) in
absence of which the order of transfer would become
illegal and therefore, would be required to be
injuncted by grant of an interim relief. It is also
contended that on account of the transfer the service
conditions of the petitioners being changed on which
ground also the transfer would be bad-in-law.
Reliance in support is placed upon the learned Full
Bench of this Court in Cooperative Bank Employees
v. Yeshwant Sahakari Bank Ltd. reported in 1992 (2)
Mh.L.J. 1696 (para-24) which holds that section
42(1) of the BIR Act casts three obligations upon the
employer if he intends to effect any change in any
industrial matter enumerated in Schedule II; (1) to
issue a notice of the change in the prescribed form
on the representatives of the employees; (2) to
forward a copy of such notice of change to the
statutory authorities specified therein; and (3) to
affix a copy of such notice at a conspicuous place,
where the employees affected by the intended
change are at work, conditions 1 and 2 being
mandatory. Reliance is also placed upon Caparo
Engineering India Ltd. v. Umed Singh Lodhi and
another with connected matters Civil Appeal
No.5829 of 2021 decided on 26/10/2021 to contend
that on account of transfer from one factory to the
other, there would be change in the service
conditions therefore, section 9A of Industrial
Disputes Act, which is in para materia to section
42(1) of the BIR Act would be attracted. In order to
substantiate that the change is not a routine change
but on account of the petitioners being rendered
surplus, reliance is placed by him upon the written
statement of the respondent (para-5 pg.56) wherein
this statement has been made by the respondent. It
is thus contended that the change is within the
parameters of Item I Schedule II of the BIR Act and
therefore, the requirement of section 42(1) becomes
mandatory, non-compliance thereof would prohibit
the transfer.
3. Mr.Puranik, learned counsel for the respondent,
submits that Item I of Schedule II of the BIR Act is
not attracted at all as in this case there is no
reduction in the strength of the department as the
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department itself has been made redundant on
account of the arrangement between the respondent
and its sister concern namely Indorama Ventures
Yarns Pvt. Ltd., who has agreed to buy the POY
material manufactured by the respondent on account
of which the requirement of rechecking of the POY
material which was essential for selling it to external
customers has been done away with. It is not
disputed that the petitioners were working in the
POY Department and doing the job of rechecking of
the POY material before the sale to external
customers. It is also contended that though it has
been stated in the written statement that the
petitioners have become surplus however that is on
account of the redundancy of the job of rechecking
in the POY Department. He further submits that on
account of the transfer, there would be no change in
the service conditions of the petitioners which is also
stated in the transfer order dated 10/08/2023
(pg.67). It is further contended that this is a routine
transfer and therefore, is one covered under Item II
of Schedule III of the BIR Act and therefore, the
provisions of section 42(1) would have no
applicability at all. Reliance is placed upon Ashok K.
Jha v. Garden Silk Mills Ltd. reported in (2009) 10
SCC 584 (paras 3, 21 and 22) and so also on
Indorama Synthetics India Ltd. v. Vijay Durgadas
Telang, reported in 2013 (5) Mh.L.J. 139 to contend
that since this is a transfer covered by Item II of
Schedule III, the requirement of section 42(1) of the
BIR Act would not come in the picture at all."
3. Mr. Puranik, learned counsel for the respondent,
has placed on record an affidavit dated 02.12.2023 vide
Stamp No. 5/2023, in which the following position has been
stated:
"1. That I am working as Chief Human
Resource Officer with the Respondent Company.
That, I am conversant with the facts of the present
petition.
2. I say and submit that S/Shri Ramayan
4 58.WP.6085-2023.odt
Chaturvedi, Rajendra Deulkar, Ganesh Bhende,
Yogendra Jivtode, Diwakar Fuse, Arun Jena and
Raju Panvar, who are employees of the respondent
were transferred from POY Department to PSF
Department by order dated 10.8.2023. That, in the
order of transfer itself it has been specifically
mentioned that on account of transfer there would
be no change in their wages and other conditions of
service. I further say and submit that there will be
no change in the service conditions of
above-mentioned seven employees with respect to
wages including the allowances paid to them.
Similarly, there will be no change in their seniority
or prospects of promotion. That, all the service
conditions, which were applicable to them prior to
their transfer, would remain unchanged even after
the transfer."
4. In Indorama Synthetics India Ltd., Butibori
(supra), the learned Division Bench of this Court was
considering a position where the employees of the appellant
therein who were working in the Quality Control Department
were transferred to the other departments, which came to be
challenged before the learned Industrial Court on the ground
that the change was an illegal change, as notice of change
under Section 42 (1) of the Bombay Industrial Relations Act,
1946 (for short, "the BIR Act"), was not given and the same
also amounted to an unfair labour practice under Item No. 9
of Schedule IV of the Maharashtra Recognition of Trade
Unions & Prevention of Unfair Labour Practices Act, 1971 (for
short, "the MRTU & PULP Act). The learned Industrial Court
vide judgment and order dated 10.10.2005 held that the
transfer of 5 employees does not amount to unfair labour
practice, however the order of transfer of 20 employees
amounted to an unfair labour practice. Two Writ Petitions
were filed before this Court in which the petition filed by the
5 58.WP.6085-2023.odt
employees was allowed and that by the employer was
dismissed, which were challenged before the learned Division
Bench in Letters Patent Appeals. The learned Division Bench
after considering Ashok K. Jha (supra), has held as under:
"7. It can thus clearly be seen that in the case of
Ashok K. Jha & others the Apex Court has clearly
held that insofar as assignment of work or transfer
of workers within the establishment is concerned,
the subject is precisely and specifically covered in
Item No.2 of Schedule III. The Apex Court has
further held that expression 'assignment of work
and transfer of workers within establishment' is
plain and admits of no ambiguity. The Apex Court
has held that assignment of work and transfer of all
workers within the establishment would not attract
Item Nos.1 and 2 of Schedule II but would be
covered by Item No.2 of Schedule III, as there is a
specific item in this regard. The Apex Court has held
that the specific item would exclude the items of
general character and, in that view of the matter, in
the matters of transfer of workers within the
establishment and assignment of work by the
employer the same is governed by Schedule III.
8. The facts, in the case of Ashok K. Jha & others
cited supra which is considered by the Apex Court
so also in the present case, there is no change in the
service conditions of the workers i.e. the workers
are not only continued to enjoy same pay scales,
rights and benefits flowing from service but, as a
matter of fact, as has been stated on affidavit by the
employer, they are also given better benefits than
one which they were getting earlier. As a matter of
fact, out of 25 employees now the question remains
only of about 3 employees, inasmuch as rest of the
employees have already accepted higher
promotional benefits and grades. The Apex Court in
the case of Ashok K. Jha and others has upheld the
findings of the Gujarat High Court that the
reasoning of the learned Industrial Court have
accepted Item No.2 of Schedule III of the BIR Act
would become nugatory."
6 58.WP.6085-2023.odt
5. It was thus held, that the action of transfer of the
employees from the Quality Control Department to the other
departments, could only be considered as a routine transfer
on account of assignment of work within the establishment
and would be covered by Item 2 of Schedule III of the BIR
Act, as a result of which, the requirement of Section 42 (1) of
the BIR Act, would not be attracted, and having so observed
have allowed the appeals. The position in the instant matter,
is also akin to what has been held in Indorama Synthetics
India Ltd., Butibori (supra), inasmuch as in the instant case
also the transfer of the employees by the respondent is from
the POY department to the other departments, as a result of
which, this can only be said to be related to Item No.2 of
Schedule III of the BIR Act.
6. It is also material to note, that the transfer has
occasioned on account of redundancy of the work of the POY
department on account of the arrangement between the
respondent and its sister concern indicated above who had
agreed to buy the POY material manufactured by the
respondent as a result of which the requirement of
rechecking of the POY material which was essential for selling
it to external customers did not survive.
7. In an industrial establishment, a certain bit of
leeway has to be permitted to the employer in the matter of
assignment of work to its employees, otherwise the very
working of the entire industry would be in danger of being
jeopardized.
8. Considering what has been held above, the
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impugned order below Exh.U-2 dated 07.09.2023, which
succinctly considers this position, in my considered opinion,
does not need any interference.
9. The Petition is therefore dismissed. No costs.
(AVINASH G. GHAROTE, J.)
SD. Bhimte
Signed by: Mr.S.D.Bhimte
Designation: PA To Honourable Judge
Date: 07/12/2023 18:53:02
