Bombay High Court
Asahi India Glass Ltd. And Ors vs Prashant Chandrakant Joshi on 7 August, 2025
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2025:BHC-AS:33725
WP.8441.2025+.doc
HARSHADA H. SAWANT
(P.A.)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8441 OF 2025
Asahi India Glass Ltd. and Ors. .. Petitioners
Versus
Dinesh S. Gajbare and Anr. .. Respondents
WITH
WRIT PETITION NO.8215 OF 2025
Asahi India Glass Ltd. and Ors. .. Petitioners
Versus
Aadesh M. Urankar and Anr. .. Respondents
WITH
WRIT PETITION NO.8217 OF 2025
Asahi India Glass Ltd. and Ors. .. Petitioners
Versus
Laxman Raghunath Kadam and Ors. .. Respondents
WITH
WRIT PETITION NO.8216 OF 2025
Asahi India Glass Ltd. and Ors. .. Petitioners
Versus
Prashant Chandrakant Joshi .. Respondent
WITH
WRIT PETITION NO.7946 OF 2025
Asahi India Glass Ltd. and Ors. .. Petitioners
Versus
Sameer Jog and Ors. .. Respondents
....................
Mr. Avinash Jalisatgi a/w. Mr. T. R. Yadav and Mr. Mulanshu D.
Vora, Advocates i/by Dhruv Karnik for Petitioners.
Mr. Yogendra M. Pendse, Advocate for Respondents.
...................
CORAM : MILIND N. JADHAV, J.
DATE : AUGUST 07, 2025
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P.C.:
1. Heard Mr. Jalisatgi, learned Advocate for Petitioners and Mr.
Pendse, learned Advocate for Respondents.
2. This is a group of five Writ Petitions. For convenience facts
in Writ Petition No.8441 of 2025 are referred. By order and
judgement dated 29.03.2025 is passed by the Industrial Court, Thane
in separate Complaints filed by the Respondents. In Writ Petition
No.8441 of 2025, there are two Respondents. In Writ Petition
No.8215 of 2025, there are two Respondents. In Writ Petition
No.8217 of 2025, there are nine Respondents. In Writ Petition
No.8216 of 2025, there is one Respondent. In Writ Petition No.7946
of 2025 there are nine Respondents.
3. The aforementioned 23 Respondents were employees of
Petitioner No.1 Company called Asahi India Glass Limited. Petitioner
No.1 has factories at several places in the country including Taloja,
MIDC, Navi Mumbai. Respondents of Asahi India Glass Karmachari
Sangh - Union filed complaint of unfair labour practice against
Petitioner before the Industrial Court to challenge the order of transfer
of Respondents dated 16.06.2014 before the Labour Court.
4. In so far as Respondent No.2 in Writ Petition No.8441 of
2025 is concerned, during the pendency of the complaint, he fully and
finally settled all his claims and disputes with the Petitioners and did
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not press for his claim in the complaint. The learned Industrial Court
by order and judgement dated 29.03.2025, allowed the Complaint in
respect of Respondent No.1 only. Similarly, Complaints were allowed
for other Respondents in companion Writ Petitions. Learned Industrial
Court directed Petitioners to give all wages and allowances to
Respondents from 16.06.2014 till the date of their termination.
Petitioners being aggrieved have challenged the said order and
judgement of Industrial Court.
5. Mr. Jalisatgi, learned Advocate for Petitioners would submit
that transfer of Respondents was in view of an incident of accident
which occurred in the factory of Petitioner No.1 at Taloja, Navi
Mumbai and hence Petitioner No.1 had to transfer the Respondents.
He would submit that there was a furnace collapsed in the factory of
Petitioner No.1 which brought its production activities in the Float
Glass Unit at a complete standstill. For that reason, Petitioners
approached the State Government under Section 25-O of the
Industrial Disputes Act, 1947 (for short 'the said Act') and only after
the State Government accorded permission for closure of the said Float
Glass Unit, Petitioners decided to terminate all 91 employees working
in the said Unit. He would submit that Respondents before the Court
were all working in the Float Glass Unit and had the Petitioners not
transferred them they would had been constrained to terminate their
services due to the above reason. He would submit that the transfer of
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Respondents was never going to bring about any change in the nature
of their work or change in their designation and therefore the said
transfer could not have been held as illegal by the learned Industrial
Court.
5.1. He would submit that Court has returned ex facie erroneous
finding holding that by virtue of the said transfer, nature of work of
Respondents had changed and due to transfer Respondents were
required to do work of a different nature altogether than their previous
work. He would submit that though it is true that Respondents were
required to do work of meeting distributors and dealers of Petitioners
at the place of their transfer but this cannot be rendered as illegal as
such mere change in work cannot be rendered as change since there
was no change in designation of Respondents, their allowances and
service conditions to which they were entitled to when they were
working in the Float Glass Unit previously. He would submit that
neither there was any reduction in their rank or any demotion since
Respondents had worked with Petitioners' Company since long and
were duly acquainted with the manufacture of the products of
Petitioner No.1 - Company. He would submit that hence Respondents
were transferred and given the above work only because they could
execute it without any difficulty. He would submit that in that view of
the matter, the transfer order could not be held as illegal neither the
work given to Respondents could be said to be different for holding the
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said transfer illegal. He would submit that the impugned judgment
and order passed by Industrial Court, holds that Respondents were
performing supervisory and managerial duties prior to their transfer
and therefore on being transferred they ought to have been given
supervisory and managerial work.
5.2. He would submit that the learned Industrial Court has
incorrectly held that by virtue of transfer Respondents were infact
demoted and reverted from their original designation and posts. He
would submit that work given by Petitioners to Respondents was due
to the relationship between Petitioners and Respondents of master and
servant and was purely governed by their contract of employment and
there were no fixed cadres amongst different employees to specially
transfer them in those cadres and give them the same nature of work.
He would submit that the only reason to transfer Respondents was to
save their employment in view of the accident which occurred in the
factory of Petitioner No.1 to save their jobs and safeguard their wages,
perks and all other service conditions.
5.3. He would submit that some of the employees who were
transferred abided by the transfer orders and reported to work at the
new place of transfer and hence allegations of reversion in designation
or change in nature of duties by Respondents are totally baseless and
are rues to avoid transfer. He would submit that even Respondents did
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not dispute the accident which took place in the factory of Petitioner
No.1 and thereof there was no occasion for the Industrial Court to hold
that the furnace in the factory of Petitioner No.1 was working. He
would submit that witness No.2 of Petitioner No.1 deposed that the
furnace in the said factory was working but that was in the year 2022,
which was eight years after the date of accident. He would submit that
the Furnace had indeed collapsed on or about 29.05.2014 whereas
witness No.2 of Petitioners was examined on 09.08.2022 i.e. after
about 8 years and in the meantime Petitioners had erected a
completely new Furnace Unit and commenced its operations. He
would submit that deposition of Petitioners' witness No.2 was in
reference to the new Furnace installed in the factory of Petitioner and
it had no relevance or nexus to the accident in question.
5.4. He would submit that findings returned by the learned
Industrial Court that transfer of Respondents was effected illegally is
therefore wrong finding and deserves interference by this Court. He
would submit that Respondents failed in their endeavour to prove that
transfer order issued by Petitioners was malafide and in this
background the learned Industrial Court in total ignorance of the law
put the burden upon the Petitioners to prove its bonafides. He would
submit that transferred employees who reported to work at their new
place of transfer did not face any difficulty and performed the work
assigned to them after they were imparted training which was
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sufficient for them to perform their work.
5.5. That apart, he would submit that learned Industrial Court
came to an erroneous conclusion that the transfer order was illegal
because it was signed by illegal Competent Authority since Petitioner
No.1 was not a Government or Public Undertaking amenable to Article
12 of the Constitution of India and Respondents were employed in the
private sector where there were no such hard and fast and strict rules
defining an Authority competent to transfer such employees. He would
submit that decision to transfer the Respondents was taken at the
managerial level of Petitioner No.1 - Company and therefore it was
wholly irrelevant to contend and hold that order of transfer was not
signed by the Competent Authority. He would submit that transfer
orders were signed by Mr. Panigrahi who was the then Executive
Director of Petitioner No.1 but inadvertently the name of Mr. Ganjoo
the Chief Operating Officer was added on the said transfer orders. He
would submit that both Mr. Panigrahi and Mr. Ganjoo held very high
posts in Petitioner No.1 - Company and were competent to issue the
transfer orders.
5.6. He would submit that Industrial Court has incorrectly held
that despite collapse of furnace in the Float Glass Unit, the logistic
works at Taloja Unit of Petitioner No.1 still continued. He would
submit that this was only because apart from the Float Glass Unit
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where the furnace had collapsed there were two other units of
Petitioner No.1 Company namely Soft Coat Unit and Frosted Glass Unit
which were in operation and these Units were not dependent on the
furnace that collapsed. He would submit that the supply chain of these
two units continued to work even after collapse of the Furnace since
these units pertain to further process of glass which was already
manufactured by in the Float Glass Unit and they were not dependent
solely on the Float Glass Unit. He would submit that the other two
Units which were in operation were bringing in and importing glass
from other countries as well as from other manufacturers from other
countries for the purpose of their operation and as such their Supply
Chain Department continued to function normally despite collapse of
furnace in the Float Glass Unit. He would submit that the impugned
order is therefore not sustainable and deserves to be quashed and set
aside.
6. PER CONTRA, Mr. Pendse, learned Advocate appearing on
behalf of Respondents - employees in all Writ Petitions has made
following submissions in common in all Writ Petitions:-
6.1. He would submit that Respondents were initially appointed
and have been working in the Supply Chain Management Department
of Petitioners' factory since inception and carried on duties, of Logistic,
Billing and placing of Purchase indent as per indent received.
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6.2. He would submit that Respondents stated that Petitioner
No.1 is a Public Limited Company, engaged in the Business of
Manufacturing of varieties of Multipurpose Glasses. He would submit
that Petitioners in its Taloja Establishment employed more than 600
employees and has a Manufacturing Unit and Sales and Marketing,
Logistic and Processing Units also.
6.3. He would submit that Petitioners are having two factory
Units, one at T-7 MIDC and another at T-16 MIDC in the same place.
He would submit that products manufactured by Petitioners at T-7 Unit
are used as raw materials at T-16 Units.
6.4. He would submit that Respondents formed Union i.e. Asahi
India Glass Karmachari Sangh even though there was one other
Recognized Union. He would submit that Respondents were
admittedly served with Appointment Orders at the time of their
joining. He would submit that in the said Appointment Orders, terms
and conditions of Employment and nature of duties are mentioned. He
would submit that Respondents were made permanent employees and
were confirmed in services.
6.5. He would submit that Petitioners vide order dated
16.06.2014 transferred Respondents from its Taloja Unit. He would
submit that in Writ Petition No.8441 of 2025, Respondents are
transferred to Thanjavor, Tamil Nadu and Jamui, Bihar State. He
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would submit that in Writ Petition No.8215 of 2025, both Respondents
are transferred to Jammu and Kashmir. He would submit that in Writ
Petition No.8216 of 2025, sole Respondent is transferred to Tamil
Nadu State. He would submit that in Writ Petition No.8217 of 2025, 9
Respondents are transferred to Jharkhand (1), Rajasthan (3),
Chattisgarh (1), Punjab (1), Aasam (2) and Sikkim (1). He would
submit that in Writ Petition No.7946 of 2025, Respondents are
transferred to West Bengal (2), Uttar Pradesh (1), Punjab (2), Kerala
(1), Jharkhand (1), Haryana (1) and Telangana (1).
6.6. He would submit that Respondents pleaded about their
personal difficulties in respect to the transfer order but to no avail.
6.7. He would submit that case of Petitioners that because of
furnace accident, it effected transfer of Respondents and also effected
termination of 91 workmen and applied to the Government to close
down its Float Glass Unit is false since the said Unit was resurrected
and a new Furnace was installed and is in operation.
6.8. He would submit that transfer order is issued and signed by
an incompetent and unauthorised person. He would submit that
transfer order violates the service conditions and in absence of notice
contemplated under Section 9A of the said Act, transfer amounts to
illegal change in service conditions. He would submit that the findings
recorded by the Industrial Court will have to be viewed from the
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following basic principles for adjudication of the present Petition:-
(i) Whether the findings are based on 'no evidence'?
(ii) Whether the findings are without considering any
evidence, if would have considered the same, the
findings would affect the result extensively and / or
totally become perverse?
(iii) The ground of second view is possible is not available to
the Petitioners.
7. I have heard Mr. Jalisatgi, learned Advocate for Petitioners
and Mr. Pendse, learned Advocate for Respondents and with their able
assistance perused the record of the case. The submissions made by
them have received due consideration of the Court.
8. Challenge to the impugned order and judgement passed by
learned Labour Court can be decided on four fundamental issues
namely whether Respondents are Workmen; reasons for transfer;
authority who passed transfer order and change in nature of duties.
9. In the present case it is seen that Respondents were
admittedly working as workmen since inception. They were members
of recognized Union under MRTU & PULP Act, 1971. The Respondents
- employees have pleaded their nature of duty in the Complaint.
Petitioner - Company has not denied the work carried out by
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Respondents, albeit it has challenged the status of the Respondents as
'Workman'. Respondents have specifically stated in their pleadings that
the work they have been doing since beginning till they were
transferred was never changed. Admittedly, the Petitioner - Company
was treating Respondents as 'Workman' till their purported
promotions. There is no denial to the specific pleading of Respondents
- employees in respect of duties carried out by them. Hence in view of
non-denial of nature of work being carried out by Respondents, if
Petitioners claimed that Respondents were having status of either
supervisory or administrative nature, it was imperative upon
Petitioners to bring on record the actual work done by Respondents as
to how such criteria could be satisfied. Respondents have stated that
when there was no dispute about the nature of duties hence the
burden is upon Petitioners to prove the same as held by this Court in
the case of Seth Jeejeebhoy Dadabhoy Charity Funds And Ors. Vs.
Farokh Noshir Dadachnji1. The Industrial Court has found an
admission given by the witness No. 2 of the Petitioner - Company in
paragraph No.41 of his evidence in cross-examination that no evidence
is brought in the form of documents to show that Respondents -
employees were in fact discharging the work which can be claimed as
supervisory or administrative work. Industrial Court has recorded the
finding that Respondents - employees are required to work on
1 2005 III CLR 110
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computers and to maintain inventories. Therefore the Industrial Court
has rightly concluded that the Respondents are 'Workman' under
Section 2(s) of the said Act; consequently they are 'employees' under
section 3(5) of the MRTU & PULP Act and the Complaint is
maintainable. Industrial Court has held that the purported promotion
letters do not show any change in the nature of work. Respondents
have not produced an iota of evidence on record to show that in fact
duties of Respondents - employees underwent any change post the
incident of collapse of the furnace. The Petitioners have claimed that
Respondents are working in capacity of supervisory and / or
administrative duties, and yet the Respondents failed to produce any
evidence about the work done by the Respondents while in
employment of the Petitioner - Company. The best evidence about the
same was in possession of the Petitioners and it has decidedly failed to
produce the same on record. The witness No.2 of the Petitioner -
Company has admitted the duties which are pleaded by the
Respondents - employees in paragraph No.3a of the Complaint,
therefore the Industrial Court has rightly returned the finding that
Respondents - employees are 'workman' on the basis of pleadings and
materials placed on record before it.
10. The Respondents filed complaint before Industrial Court by
invoking item Nos.3, 9 and 10 of Schedule IV to the MRTU & PULP
Act. As far as unfair labour practices are concerned, this Court in the
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case of Deluxe Theatre v. Bombay Labour Union 2 has ruled in
paragraph No.13 that:-
"It is trite knowledge that the evidence as to unfair labour practice or
victimisation is in most of the cases inferential or circumstantial. An
Industrial Court trying a complaint of unfair labour practice, can
hardly hope to get direct evidence on the issue. It is the duty of the
Industrial Court to look at the totality of the circumstances brought on
record by the evidence and raise probable inferences from the
cumulative effect of the evidence placed on record ".
11. The action of transfer with malafide covers malafide in law
and malafide in fact.
12. The Industrial Court has referred to the order of transfer
dated 16.06.2014 as one that was based on false reasons, the reasons
for which are reflected at paragraph No.30 of the impugned judgment.
Reasons given were that 'the float glass furnace collapsed and it was
not possible to revive/restart the operations and work was not
available'. In the present case transfer order denotes this as the only
reason for transfer. In this context it is important to consider the
material admissions given by the Petitioners' witnesses that work in
logistic department was available even after collapse of furnace and in
fact the furnace is now in operation has been stated in his
examination-in-chief after it being restored. In this context the
primary reason of impossibility to restart work is a false reason. Thus it
is seen that, in spite of collapse of the furnace, work was available in
the logistic department which is admitted in the evidence by
2 (1992) 1 CLR 256 (Bombay).
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Petitioners. Therefore, the second reason of inability to provide work
to Respondents on the part of Petitioners is once again a false reason
and thus malafide. Hence, malafides are proved and once the reasons
are false, transfer based on such false reasons is not in good faith. It is
also seen that in the application made to the Government for closure of
the Float Glass Unit under Section 25-O of the said Act, the Petitioners
did not show the Respondents - employees as affected persons. Hence
it could not be said that no work is available for the Respondents as
claimed by Petitioners. From the material placed on record it prima
facie indicated that the reasons given for transfer are false and
malafide on the face of it.
13. The Industrial Court has further found that the Authority
who issued the transfer orders to be incompetent. A
'competent/appropriate authority' is the person/entity having the best
knowledge of the daily functioning and running of the units, which in
the present case happens to be the employer. It is a matter of fact that
the letter of appointment is under the signature of 'Executive Director'
while the transfer order of Respondents are not signed by the Director,
but by the Chief Operating Officer. It is seen that Respondents have
categorically denied the Authority of the said officer. Petitioners in its
written statement has denied the contention raised by Respondents in
pleadings as stated in paragraph No.14 of the written statement. In
this context, it is trite law that the fact in negative cannot be proved.
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Petitioners have denied the pleading of the Respondents qua Authority
of the person i.e. signatory of the transfer order and hence it was
incumbent upon the Petitioners to produce his Authority.
14. In this context mere assertion is insufficient to prove the
Authority in case of Petitioners as Petitoner No.1 is an artificial person
and it speaks only through its resolutions or any other like document.
The Petitioner - Company failed to produce any such written document
to show the powers conferred upon the said officer (COO) to transfer
the Respondents from one zone to another zone. Hence it is rightly
concluded by Industrial Court that the transfer order was not signed by
the Competent Authority. In absence of any such authority being
brought on record the finding of the Industrial Court therefore cannot
be faulted with.
15. As far as change in nature of duties is concerned, the
pleadings submitted in the written statement of Petitioners is of
paramount importance. The Petitioners in its written statement has
categorically pleaded that conditions of service and marketing
personnel are distinct and different from employees working in other
division/departments, branches and factories. Respondents -
employees were admittedly working at factory unit and in a
department other than sales and marketing. In the teeth of this
admission, much less specific pleading of the Petitioners, it leaves no
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room for doubt that upon transfer Respondents are required to work in
the employment of Petitioner - Company but with completely different
service conditions. It is admitted in the pleadings that the duties which
were discharged by Respondents - employees are not being
controverted and hence, in view of the above admission in pleadings in
the respect of service conditions of sales and marketing personnel, the
service conditions of Respondents are bound to change. In such a case
it does contemplate as a precondition of proper notice of change in
service conditions. It is an admitted fact by Petitioners' witness No.1 in
evidence that he was imparted with training and the same is taken into
consideration by the Industrial Court while returning its findings in
paragraph No.36 of the judgment. It is an admitted fact on record that
notice of change in service conditions was not given to Respondents'.
The Industrial Court has returned a specific finding in paragraph No.36
of the judgment that the witness of the Petitioner - Company has
admitted in paragraph No.35 of his cross-examination that
Respondents - employees are required to assist the sales representative
in their new job.
16. It is seen from the record that the real reason for transfer of
the Respondents was due to victimisation and involvement in Union
Activities. The Respondents were initially members of the recognized
union. Later on, Respondents formed another Union, i.e., 'Asahi India
Glass Karmachari Sangh'. It has come in evidence that transfers were
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specifically of those persons who were members of the new Union and
no other person was transferred. This specific statement is not at all
controverted in the cross-examination of the Respondents' witness.
17. If the aforesaid four observations and findings emanating
from the record are considered then it is seen that transfer of
Respondents - employees has been effected to 14 States in all. It is
seen that Respondents pleaded about their personal difficulties with
respect to the said transfer order but to no avail. That apart, on all the
four counts namely whether there was change in the nature of duties
or the reasons for transfer or the status of the Respondents being
'Workman' and their status after their transfer and the Authority who
executed the transfer orders the case of Petitioners cannot be accepted.
The reasons returned by the learned Industrial Court in its judgement
and order passed on the issue framed in paragraph Nos.30 onwards
upto para 39 are cogent and do not call for any interference. The said
reasons are solely based on the deposition and evidence of Petitioners'
and Respondents' witnesses.
18. Learned Industrial Court has held that if at all Respondents
have to be transferred they have to be transferred in the same cadre
itself at the transferred place where they would be required to perform
the same nature of duties and responsibilities, but even on the basis of
evidence of Petitioners itself it is proven that the nature of work and
duty assigned to Respondents - employees was entirely different.
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19. It is seen that they were working in the Float Glass Unit in
Taloja MIDC as workmen but on transfer all of them were required to
perform duties of sales and promotion of Company's products for
which they were to be assigned training by Petitioners. Hence in that
view of the matter, once the aforesaid dichotomy is noticed and is
evident on the basis of the evidence of Petitioners itself, the said
transfer is vitiated. It is Petitioners' own case that work of transferred
employees at transferred places was in the sales and marketing
Department and confined to approach the dealers of the Glass
Company and apprise them about the manufactured products of the
Company and to intimate them about the quality and utility of
Company's products with intention to enhance sales and improve
revenue of the Company.
20. That apart, it is also proved on record on the basis of
deposition of Respondents' witnesses that Respondents were imparted
training for 12 days in this regard to undertake the new job of sales
and marketing personnel in Petitioners' Company at Vashi in Navi
Mumbai before the transferred orders were issued. Such
overwhelming evidence prima facie revolts against the action of
Petitioners of transferring the Respondents on the pretext of the
accident / collapse of the furnace selectively. The case of Petitioners
that transfer of Respondents did not change their nature of duty
therefore has been rightly rejected by the learned Industrial Court on
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the basis of cogent and proven incriminating material against
Petitioners.
21. In that view of the matter, the transfer orders are held to be
malafide and I am not inclined to interfere with the judgments and
order passed by the learned Industrial Court while deciding the 5 ULP
Complaints in the present set of Writ Petitions. Therefore the
impugned orders and judgement all dated 29.03.2025 passed
separately by the learned Industrial Court in Complaint (ULP) No.187
of 2014; Complaint (ULP) No.189 of 2014; Complaint (ULP) No.190 of
2014; Complaint (ULP) No.245 of 2014 and Complaint (ULP) No.246
of 2014 are upheld and confirmed. Resultantly all five Writ Petitions
fail.
22. All Writ Petitions are dismissed and disposed.
[ MILIND N. JADHAV, J. ]
23. After the order is pronounced in open Court, Mr. Jalisatgi,
learned Advocate for Petitioners has requested the Court to stay the
order to enable the Petitioners to test validity of the order in the
Superior Court. His request for stay is granted. Present order is stayed
for a period of four weeks from the date of uploading of this order.
H. H. SAWANT [ MILIND N. JADHAV, J. ]
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