[Cites 6, Cited by 0]
Bombay High Court
Shivaji Narayan Yadav And Ors. vs India Steel Works Ltd. @ Isi Bars Ltd. And ... on 26 March, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:14400
wp14223-2022-J.doc
Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.14223 OF 2022
1. Shivaji Narayan Yadav,
Mauli Gyaneshwar Kripa Society
Kajuwadi, Near Datta Mandir,
Louiswadi Highway, Thane 400 604.
SHABNOOR
AYUB 2. Shri Virendra Kumar Gaud,
PATHAN
Digitally signed by
SHABNOOR AYUB
R 16, First Floor, Vighnaharta Chawl,
PATHAN
Date: 2026.03.26
12:12:46 +0530
Opposite Alana Oil Mills, Ganapatipada,
Post Kalwa (W), Thane, 400 605.
3. Shri Chandradeo Thakur,
Age 55 years, Room No.791, Ganapati Colony
Airoli, Near Shivsena Office,
P. O. Airoli, Sector 16, Thane Belapur Road,
Navi Mumbai 400 708. ... Petitioners
V/s.
1. India Steel Works Ltd. Alias ISI BARS Ltd.,
Khopoli Raigad - 410 203.
Alternate Address - 304, A Wing,
Naman Midtown, Near India Bulls
Finance Centre, Senapati Bapat Marg,
Elphinstone Road, Mumbai - 4000 013. ... Respondent
2.Ashwin Gupta
(Since deceased, through Varun Gupta)
Varun Gupta, The Managing Director,
M/s. India Steel Works Ltd. Alias
ISI BARS Ltd.,
Khopoli, Raigad - 410 203
Alternate Address - 304, A Wing,
Naman Midtown, Near India Bulls
Finance Centre, Senapati Bapat Marg,
Elphinstone Road, Mumbai - 4000 013.
1
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3.Anand S. Panmand,
Assistant General Manager,
M/s. India Steel Works Ltd. Alias
ISI BARS Ltd.,
Khopoli, Raigad - 410 203
Alternate Address - 304, A Wing,
Naman Midtown, Near India Bulls
Finance Centre, Senapati Bapat Marg,
Elphinstone Road, Mumbai - 4000 013.
Ms. Nivedita S. Deshpande i/b S. N Deshpande, for the
Petitioners.
Mr. Suresh Pakale, Senior Advocate a/w Mr. Dhruv
Karnik, Ms. Ragini Singh, and Ms. Priya Rai i/b
ThinkLaw Advocates, for Respondent Nos.1 and 2.
CORAM : AMIT BORKAR, J.
RESERVED ON : MARCH 13, 2026
RESERVED ON : MARCH 26, 2026
JUDGMENT:
1. The present Petition is instituted under Article 227 of the
Constitution of India. The Petitioners are partly aggrieved by the
Judgment and Order dated 5 December 2020 passed by the
Industrial Court, Mumbai in Complaint (ULP) No. 263 of 2010. By
the said Judgment and Order, the Industrial Court partly allowed
the complaint only in respect of Items 5 and 9 of Schedule IV of
the MRTU and PULP Act, and declined to grant reliefs under Items
3 and 10 thereof. The Industrial Court further declined the claim
for full back wages and instead awarded a lump sum
compensation. Being dissatisfied with the findings so recorded and
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the reliefs so granted, the Petitioners have invoked the supervisory
jurisdiction of this Court.
2. The facts giving rise to the present Petition are as follows.
Petitioner No. 1 was appointed with the Respondent Company in
January 1996 as a Die Maker. Petitioner No. 2 was appointed on
17 January 1994 as a Grinding Machine Operator. Petitioner No. 3
was appointed in October 1996 as a Polishing Operator. The
Petitioners have been engaged in protracted litigation against the
Respondent Company concerning their claims for permanency,
wages, and other service benefits. In that context, Writ Petition No.
9760 of 2012 preferred by Petitioner No. 1 and Writ Petition No.
5233 of 2008 preferred by Petitioner No. 3 are pending for final
hearing before this Court. On 7 August 2010, the Respondent
issued transfer orders to the Petitioners stating that all other
employees at the Turbhe (Vashi) Unit had resigned and left service,
and that the Petitioners were accordingly transferred to India Steel
Works Ltd., Khopoli with effect from 9 August 2010. The
Petitioners, through their Advocate's letter dated 9 August 2010,
objected to the said transfer orders on several grounds. They
contended that the terms of appointment did not stipulate
transferability of service. They further contended that no work
corresponding to their original duties was available at Khopoli. It
was also asserted that the Turbhe Unit had neither been closed nor
had the workmen resigned. The Petitioners further alleged that the
transfer orders were actuated by mala fides and amounted to
victimisation in view of the earlier litigation initiated by them. By a
further Advocate's letter dated 10 August 2010, the Petitioners
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informed the Respondent that they would report for duty at
Khopoli under protest, as they were threatened with termination in
the event of non-compliance with the transfer orders. On 11
August 2010, the Petitioners, through their Advocate, sought
clarification regarding the nature of duties to be assigned at
Khopoli, as they were initially not allotted any work and were
required to remain idle. Subsequently, they were directed to
perform duties such as those of a watchman, housekeeping staff,
grass cutting, and sweeping, which, according to the Petitioners,
bore no nexus to their original posts. The Respondent failed to
respond to the aforesaid communications. In these circumstances,
the Petitioners instituted Complaint (ULP) No. 263 of 2010 on 14
October 2010 under Items 3, 5, 9, and 10 of Schedule IV of the
MRTU and PULP Act, along with an application for interim relief
seeking, inter alia, a stay of the transfer orders and payment of
wages. The Petitioners asserted that they were not provided with
work commensurate with their original duties upon transfer and
that they were subjected to harassment and threats by the
management of the Respondent.
3. In order to establish their bona fides and substantiate their
contentions, the Petitioners preferred several applications before
the Industrial Court, though the reliefs sought therein were largely
declined. By an application dated 6 December 2010, the
Petitioners sought production of documents including VRS
agreements, records of settlement, and an undertaking from the
Respondent to provide the same nature of work as was being
performed prior to the transfer. By order dated 6 January 2011,
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the Industrial Court permitted production only of the VRS
agreement. By order dated 5 April 2011, the Industrial Court
rejected the Petitioners' application for interim relief seeking a stay
of the transfer order on the ground that the Petitioners had already
reported at the transferred place. By an application dated 3 March
2012, the Petitioners sought appointment of an Investigating
Officer to verify that work at the Turbhe Unit was continuing. The
said application was rejected by order dated 18 October 2012 on
the ground that, since the Petitioners had already reported at
Khopoli, the status of the Turbhe Unit was not relevant. On 15
October 2011, the Petitioners addressed a communication through
their Advocate to the Respondent complaining of threats to their
life allegedly issued by one Mr. Panmand, Manager. On 13
February 2018, the Petitioners placed on record documentary
material before the Industrial Court to demonstrate that operations
at the Turbhe Unit were continuing, including renewal of factory
licences, water bills indicating consumption, and electricity bills
reflecting consistent usage. Thereafter, by the impugned Judgment
and Order dated 5 December 2020, the Industrial Court partly
allowed the complaint. The certified copy of the said Judgment
and Order was received by the Petitioners on 21 January 2021. By
Advocate's letter dated 25 January 2021, the Petitioners called
upon the Respondent to implement the said Judgment and Order.
Petitioner No. 1 attained the age of superannuation on 1 May
2015. Petitioner No. 3 attained the age of superannuation on 22
September 2025. Petitioner No. 2 is due to attain the age of
superannuation on 20 November 2026.
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4. Ms. Deshpande, learned Advocate appearing for the
Petitioners, submits that the findings recorded by the Industrial
Court in respect of Item 3 of Schedule IV of the MRTU and PULP
Act are erroneous, perverse, and contrary to the evidence on
record. It is contended that the transfers effected by the
Respondent are vitiated by mala fides and are illegal in law. It is
further submitted that, at the time of appointment, the Petitioners
were never informed that their services were transferable and that
no written appointment letters were issued to them. It is further
contended that the Respondent does not have certified Standing
Orders. Consequently, the Model Standing Orders would govern
the service conditions. It is submitted that the Model Standing
Orders do not contain any provision enabling transfer of
employees. On this ground alone, it is urged that the impugned
transfers stand vitiated by mala fides. The Respondent, in its
Written Statement, has contended that since all other employees
had opted for a Voluntary Retirement Scheme and only the
Petitioners continued at the Turbhe Unit, they were transferred to
the Khopoli Unit for effective utilization of their services. It is
submitted on behalf of the Petitioners that this defence is an
afterthought, inasmuch as the transfer orders merely state that
other employees had resigned and make no reference to any
Voluntary Retirement Scheme.
5. It is further submitted that the Industrial Court, in paragraph
21 of the impugned order, has erroneously held that the Petitioners
were aware of the Voluntary Retirement Scheme but did not opt
for the same and that the Respondent, out of necessity, effected the
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transfer without any mala fide intention. However, in paragraph
22 of the impugned order, the Industrial Court has recorded a
finding in favour of the Petitioners that the Respondent failed to
extend the benefit of the Voluntary Retirement Scheme to the
Petitioners, though the same was extended to other employees,
thereby constituting an unfair labour practice under Item 5 of
Schedule IV. It is submitted that the aforesaid findings are self-
contradictory and mutually destructive. The finding recorded in
paragraph 22 has attained finality, as the same has not been
challenged by the Respondent. In such circumstances, it is urged
that the rejection of relief under Item 3 is unsustainable in law. It
is further contended that there was a complete alteration in the
nature of duties assigned to the Petitioners before and after the
transfer. The Petitioners have placed on record documentary
evidence, including earlier orders of the Industrial Court,
demonstrating that Petitioner No. 1 was employed as a Die Maker
and Petitioner No. 2 as a Grinding Machine Operator. These
positions have been reiterated in their affidavits of evidence and
have also been borne out in cross-examination. It is submitted that
the Petitioners, through several communications, sought
clarification regarding the nature of duties to be assigned at the
transferred location. However, the Respondent failed to provide
any such clarification and merely stated that "unskilled work"
would be assigned. Initially, no work was assigned. Thereafter,
Petitioner No. 1 was required to perform duties of a watchman,
Petitioner No. 2 was directed to cut grass, and Petitioner No. 3 was
assigned duties of operating water pumps, which duties are wholly
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unrelated to their original posts. It is further submitted that the
Industrial Court, in paragraph 23 of the impugned order, failed to
consider these material aspects and erroneously held that since the
Petitioners had not undergone any specialised training, their work
could not be treated as skilled and that there was no change in
service conditions. It is contended that the said finding is ex facie
perverse. It is further submitted that the Turbhe Unit had not
ceased operations and continued to function, and therefore, the
very basis of the transfer is illegal. It is submitted that the
Petitioners produced documentary evidence, including factory
licence renewals, water bills, and electricity bills, demonstrating
continued operations at the Turbhe Unit. The Petitioners had also
filed an application seeking appointment of an Investigating
Officer to inspect the Turbhe Unit, which application was opposed
by the Respondent and rejected by the Industrial Court. It is
further submitted that the settlement dated 26 March 2010 relied
upon by the Respondent does not record that the Turbhe Unit was
closed or that employees were to be transferred to Khopoli. On the
contrary, clauses 8 and 9 of the said settlement provide for re-
employment of employees opting for the Voluntary Retirement
Scheme and stipulate production requirements.
6. It is submitted that the transfer was a device adopted to
circumvent the provisions of Chapter V-B of the Industrial Disputes
Act. It is further contended that the evidence on record establishes
that the Petitioners were subjected to victimisation on account of
prior litigation initiated by them against the Respondent. It is
urged that the Industrial Court has failed to consider these
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material facts and documents, thereby rendering its findings under
Item 3 perverse and unsustainable. Insofar as the issue of back
wages is concerned, it is submitted that the Industrial Court has
recorded a categorical finding in paragraph 22 of the impugned
order that the Petitioners were compelled to remain away from
duties. On the basis of this finding, it is contended that the
Petitioners are entitled to full back wages. It is further submitted
that the contention of the Respondent that the Petitioners failed to
report for duty has been specifically considered and rejected by the
Industrial Court in paragraph 22, and the said finding has attained
finality. It is also contended that the observation in paragraph 23,
to the effect that it was open to the Petitioners to resume duties
even after filing of the complaint, is contradictory and perverse. It
is further submitted that the Respondent failed to pay wages even
for the period during which the Petitioners reported for work,
despite interim orders passed by the Industrial Court. It is
submitted that the contention of the Respondent that the
Petitioners did not promptly report for duty is untenable. The
correspondence on record, including the letter dated 15 October
2011, demonstrates that despite interim orders directing payment
of wages, the Respondent failed to comply with the same, thereby
preventing the Petitioners from reporting to work.
7. It is submitted that, in these circumstances, the Respondent
is estopped from contending that the Petitioners were unwilling to
work. Without prejudice, it is further contended that the
compensation awarded by the Industrial Court is grossly
inadequate and perverse. It is submitted that the Industrial Court
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erred in refusing to grant benefits under the Voluntary Retirement
Scheme on the ground that the same were not specifically prayed
for. It is urged that, having held that the Respondent committed an
unfair labour practice under Item 5 of Schedule IV, the Industrial
Court failed to exercise its powers under Section 30(b) of the
MRTU and PULP Act to grant appropriate affirmative relief,
including adequate compensation. It is further submitted that the
compensation awarded is without interest, which is contrary to
settled principles. It is also contended that the question of gainful
employment does not arise, as the services of the Petitioners were
never terminated and the contract of employment continued.
8. In support of the aforesaid submissions, reliance is placed on
the judgment in Arvind Gharat v. National Textile Corporation,
reported in 2008 III CLR 627. It is submitted that the finding
regarding alleged gainful employment of Petitioner No. 1 is
perverse, as he had already superannuated on 1 May 2015 and his
evidence was recorded in 2019, i.e., after retirement. It is further
submitted that there is no finding regarding gainful employment in
respect of Petitioner Nos. 2 and 3, and therefore, at least they are
entitled to full back wages. In view of the aforesaid, learned
counsel for the Petitioners has prayed for grant of appropriate
interim relief in addition to the compensation awarded by the
Industrial Court and for quashing and setting aside the transfer
order dated 7 August 2010. Learned counsel for the Petitioners has
also placed reliance on the judgment of this Court in Crest
Communication Ltd. and others v. Ms. Sheetal Shenoy, 2001 II CLR
1036.
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9. Per contra, Mr. Suresh Pakale, learned Senior Advocate
appearing for Respondent Nos. 1 and 2, has opposed the present
Petition. He submits that ISI Bars Ltd. is an engineering concern
engaged in the manufacture of bright bars at its factory situated at
Turbhe. He submits that, owing to various adverse factors around
the year 2008, the manufacturing activities at the Turbhe Unit
were severely affected, resulting in substantial financial losses. It is
further submitted that, in view of the said financial distress and
the non-viability of continuing production, the Engineering
Workers Union, representing the workmen at the Turbhe Unit,
demanded introduction of a Voluntary Retirement Scheme for the
benefit of its members. It is submitted that, pursuant to discussions
with the said Union, the Respondents introduced a Voluntary
Retirement Scheme applicable to all employees, including the
Petitioners, and displayed the same on the notice board by notice
dated 25 February 2010. It is submitted that, by the said notice, all
employees were invited to avail the benefits of the Voluntary
Retirement Scheme by submitting applications in the prescribed
format within the stipulated time. A proforma application was
annexed to the said notice. It is further submitted that, after
publication of the notice, all employees except the present
Petitioners and one Shri Damodar Baditya opted for and accepted
the benefits under the scheme. Upon acceptance of the scheme,
such employees were relieved from service, and consequently,
manufacturing operations at the Turbhe Unit were discontinued
with effect from 15 July 2010. It is submitted that, upon
discontinuation of manufacturing activities, the Respondents were
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required to dispose of their movable and immovable assets.
Prospective purchasers required inspection, maintenance, and
dismantling of machinery prior to removal. For such limited
purposes, the Respondents approached the Union and certain
workers who had accepted the Voluntary Retirement Scheme and
who agreed to assist on a daily wage basis for a short duration.
10. It is further submitted that, during the said period,
manufacturing activities had ceased and no work was available at
the Turbhe Unit. The Petitioners were, in effect, being paid idle
wages. Despite this, they did not opt for the Voluntary Retirement
Scheme. Since no other employees remained at the Turbhe Unit, it
was not possible to provide work to the Petitioners at that location.
It is submitted that the Respondents had no intention to terminate
the services of the Petitioners. On the contrary, in view of their
decision not to opt for the scheme, the Respondents were obliged
to provide them with work. Accordingly, by notice dated 7 August
2010, the Petitioners were informed that their services would be
utilised at the Khopoli Unit with effect from 9 August 2010. It is
submitted that the transfer was bona fide and not actuated by
mala fides or victimisation. It is submitted that the transfer orders
clearly specified the working hours at Khopoli and assured the
Petitioners that they would continue to receive the same wages,
service conditions, and benefits as applicable at the Turbhe Unit. It
is further submitted that, though not obliged, the Respondents
agreed to reimburse actual railway season ticket expenses. It is
contended that the transfer orders were lawful, reasonable, and
issued in good faith to safeguard the employment of the
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Petitioners. It is submitted that the Petitioners reported for duty at
Khopoli on 10 and 11 August 2010 and were issued attendance
cards similar to other employees. However, they deliberately failed
to punch the attendance cards on both days. Despite this, the
Respondents did not deduct wages. It is further contended that the
Petitioners, being unskilled employees, were assigned work
commensurate with their skill level. It is submitted that the
Petitioners did not report for duty from 12 August 2010 onwards,
except on 20 August 2010, which was a weekly off. As no work
could be assigned on a weekly off, they were asked to report on 21
August 2010. It is submitted that, except for 10 and 11 August
2010, the Petitioners never reported for duty or performed any
work at the Khopoli Unit. Reference is made to a letter dated 12
August 2010 addressed to Petitioner No. 2, which the Respondents
seek to produce. It is submitted that, despite repeated reminders,
the Petitioners failed to resume duty. Accordingly, the Respondents
issued a letter dated 15 September 2010 calling upon them to
report for duty, failing which disciplinary action would be initiated.
Instead of complying, the Petitioners filed Complaint (ULP) No.
263 of 2010. It is submitted that the complaint is an afterthought
and was filed as a counterblast to the disciplinary action
threatened.
11. It is submitted that, by letter dated 12 November 2010
addressed to the Petitioners' Advocate, the Respondents pointed
out that the Petitioners had availed conveyance allowance but had
failed to report for duty. It is contended that this demonstrates lack
of intention on the part of the Petitioners to resume work and that
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the complaint was filed to justify their conduct and to claim
monetary benefits. It is further submitted that, following closure of
the Turbhe Unit, a resolution dated 31 December 2010 was passed
authorising disposal of the property. The Respondents thereafter
obtained a No Objection Certificate from the Industries, Energy
and Labour Department, Government of Maharashtra, by letter
dated 5 September 2012 addressed to the Labour Commissioner,
permitting sale of the Turbhe property. It is submitted that,
thereafter, the Respondents sold the Turbhe property to M/s. Club
Opulence Ltd. under a Deed of Assignment dated 17 June 2013. It
is further submitted that operations continued at the Khopoli Unit
until 11 July 2019, when a major accident involving an induction
furnace caused extensive damage to plant and machinery, resulting
in stoppage of production. The Respondents suffered substantial
financial losses, which were further aggravated by the COVID-19
pandemic in 2020 and the Nisarg Cyclone, leading to prolonged
closure of operations. It is submitted that the Respondents were
indebted to Kotak Mahindra Bank Limited, which initiated
proceedings before the Debt Recovery Tribunal, Mumbai. By order
dated 5 October 2023, the Tribunal permitted the said Bank to
take possession of the Khopoli factory premises. Consequently,
manufacturing activities have ceased since October 2023. It is
submitted that the Petitioners were fully aware of these
developments and made no effort to resume duties. It is contended
that the Petitioners failed to make any bona fide attempt to resume
work and have, in fact, taken up alternative employment, thereby
abandoning service. It is further submitted that the Respondents
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never prevented the Petitioners from resuming duty. Reliance is
placed on the admission of Petitioner No. 2 in his cross-
examination in Complaint (ULP) No. 29 of 2017 that the
Petitioners were not denied work at Khopoli. It is thus submitted
that the present Petition is devoid of merit and has been filed with
an intention to unjustly claim monetary benefits. The Respondents,
therefore, pray for dismissal of the Petition.
REASONS AND ANALYSIS:
12. I have carefully gone through the pleadings, the
documentary material, and the rival submissions of both sides. The
matter is not one of a simple transfer alone. It goes to the root of
the service relationship between the parties, the true nature of the
work assigned to the Petitioners, and the fairness of the conduct
shown by the Respondent while dealing with employees who had
already been in dispute with it for a long time. The Court must
therefore look beyond the form of the transfer orders and examine
the substance of the action taken by the Respondent.
13. The Petitioners contend that the transfer orders were not
issued for any genuine administrative requirement. According to
them, this was not a case where work needed to be shifted or
services were required at another place in the normal course of
business. Their case proceeds on the footing that no written
appointment letters were ever issued to them, and therefore there
was no express term making their services transferable. They
further submit that the Respondent did not have certified Standing
Orders governing service conditions. In such a situation, the Model
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Standing Orders would apply by default. It is their submission that
the Model Standing Orders do not contain any provision
permitting transfer from one unit to another. This argument has
some force. When an employer seeks to transfer a workman, such
power must come from some known and accepted source. It
cannot be assumed or exercised in an uncertain manner. It must be
traceable either to the contract of employment, or to Standing
Orders, or to some recognised service condition. In the present
case, despite opportunity, the Respondent has not been able to
point out any such clear provision. It goes to the root of the
authority to transfer. Once that foundation itself appears weak, the
justification for the transfer becomes doubtful from the very
beginning.
14. The Petitioners have also stated that the transfer was not a
routine business decision. They say it came at a time when they
had already raised disputes regarding permanency, wages, and
other service benefits. This timing cannot be ignored. When a
workman is already in conflict with the employer and has taken
steps to assert his rights, any sudden change in his service
conditions requires careful scrutiny. It is in such situations that the
possibility of victimisation becomes real and not merely
theoretical. The Petitioners immediately raised objections by
addressing letters after receiving the transfer orders. They clearly
stated that their posts were not transferable, that there was no
corresponding work available at Khopoli, that the Turbhe unit had
not been closed, and that the transfer was meant to penalise them
for earlier litigation. These were were specific and repeated. They
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were made at the earliest point of time. The sequence of events
also supports their version.
15. The Respondent, however, has taken a different stand. It is
stated that the Turbhe unit had almost stopped production and had
become non-functional in practical terms. It is further stated that
most of the employees had opted for Voluntary Retirement Scheme
and only the Petitioners remained. On that basis, the Respondent
says that there was no work available at Turbhe and therefore the
Petitioners were transferred to Khopoli so that their services could
still be utilised. According to the Respondent, this was a step taken
in good faith to continue their employment and not to harm them.
If this version was supported by clear and consistent record, it
would have been a valid defence. But when the Court looks at the
material, it appears that the transfer orders themselves mention
that other employees had resigned. They do not clearly state that
there was a VRS scheme which was accepted by all. They also do
not set out that the unit was formally closed. There is no detailed
explanation as to why transfer was the only option and why no
other course was possible. The later explanation that all employees
opted for VRS does not fully match with what is stated in the
transfer orders. This gives an impression that the explanation has
been developed later to support the action already taken, rather
than being the original reason for the transfer.
16. A significant aspect arises from the findings of the Industrial
Court itself, particularly in paragraphs 21 and 22 of the impugned
order. In paragraph 21, the Industrial Court appears to proceed on
the basis that the Petitioners were aware of the VRS scheme and
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chose not to opt for it. On that reasoning, the Court concluded that
the Respondent acted out of necessity and not with any mala fide
intention. However, in paragraph 22, the same Court has recorded
a finding that the Respondent failed to extend the benefit of the
VRS to the Petitioners while granting it to other employees, and
that such conduct amounted to unfair labour practice. These two
findings do not fit together properly. If the Petitioners had
knowledge of the scheme and voluntarily declined it, one kind of
conclusion may follow. But if the Respondent itself did not offer
them the same benefit which was given to others, then the position
is entirely different. In that case, the Petitioners cannot be blamed
for not opting for something which was not made equally available
to them. The second finding therefore assumes greater importance.
It indicates unequal treatment. It also weakens the reasoning
adopted in paragraph 21. Once such inconsistency is seen, the
overall conclusion of the Industrial Court becomes difficult to
sustain.
17. The Petitioners have also shown that, after the transfer, the
nature of work given to them was entirely different from what they
were earlier doing. Before the transfer, they were working in
specific technical roles such as Die Maker, Grinding Machine
Operator, and Polishing Operator. The material on record,
including earlier proceedings and their own evidence, supports this
position. After the transfer, the situation changed. Initially, they
were not given any work and were made to sit idle. Thereafter,
they were assigned duties like watchman work, sweeping, cutting
grass, housekeeping, and operating water pumps. These duties are
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not of the same nature. They do not require the same skill or
experience. This shows a clear shift in the kind of work expected
from them. The Respondent has tried to explain this by saying that
the Petitioners were unskilled workers and had not undergone
specialised training. This explanation does not fully answer the
issue. The question is about the actual work which the Petitioners
were doing for years. If they were consistently performing certain
functions, the employer cannot suddenly treat them as general
unskilled labour and assign entirely different tasks. The material
before the Court shows that the Petitioners were not continued in
their earlier line of work. This supports the case that the transfer
resulted in a substantial change in service conditions.
18. The Petitioners have further relied upon material to show
that the Turbhe unit had not completely stopped functioning. They
have produced documents such as renewal of factory licence,
water bills showing consumption, and electricity bills indicating
continued usage. These documents do suggest that some activity
was still continuing at the Turbhe unit. The Petitioners also applied
for appointment of an Investigating Officer to verify the position
on the spot. Though that application was rejected, the fact remains
that the existing documents were already before the Court. They
create some doubt about the Respondent's claim of complete
closure. The settlement dated 26 March 2010 also does not clearly
record that the Turbhe unit was shut down or that all remaining
employees were to be transferred. The clauses referred to deal
with re-employment of VRS optees and certain production aspects.
They do not strongly support the Respondent's case of total
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discontinuation. Therefore, the stand of the Respondent on closure
does not appear fully established.
19. The argument of the Petitioners that the transfer was used as
a method to avoid the provisions of Chapter V-B of the Industrial
Disputes Act also requires consideration. The law places certain
conditions when an employer seeks to close down an undertaking
or retrench workmen. If, instead of following the proper legal
route, an employer shifts employees in such a way that they are
effectively removed from their original place and type of work, the
Court has to see the real effect of such action. The law does not
permit doing indirectly what cannot be done directly. In the
present case, when all circumstances are taken together, a pattern
emerges. There is no clear service rule permitting transfer. There is
inconsistency in the stand regarding VRS. There is change in the
nature of duties after transfer. There is also prior litigation
between the parties. When these factors are seen as a whole, the
transfer does not appear to be a administrative act. It appears
more like a measure taken to deal with specific employees in a
manner not fully supported by law. In such a situation, the action
of the Respondent cannot be readily accepted as bona fide.
20. The question of back wages must be examined in the same
background. Once the Industrial Court itself has recorded a clear
finding that the Petitioners were compelled to remain away from
duties, the matter does not remain open for much doubt. If a
workman is kept away not by his own free choice, but because of
the employer's conduct, then it is not correct to deny him wages
for that period. Wages are connected with the employer's
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obligation to provide work in a fair manner. In the present case,
the Petitioners have shown that they were willing, but the situation
created by the Respondent made it difficult for them to continue in
a normal way. The defence of the Respondent that the Petitioners
did not report for duty cannot be looked at in isolation, as if the
surrounding facts do not matter. The letters written by the
Petitioners show that they were objecting to the transfer, asking
what work would be given, and stating that they were reporting
under protest. They were also consistently saying that they were
not being given duties matching their posts. These are not actions
of persons who simply refused to work. Rather, it shows that they
were trying to understand their position and at the same time
protecting their rights. The Respondent, on its part, did not give
any clear reply to these communications. There was no proper
clarification, no assurance, and no effort to remove their doubts. In
such a situation, it cannot be said that the Petitioners deliberately
stayed away. The observation that they could have joined duties
even after filing the complaint appears to be too technical. It does
not take into account the real condition in which the Petitioners
were placed. Filing of a complaint does not automatically solve the
difficulty at the workplace. The practical reality was that they were
already facing uncertainty about their role and treatment.
21. On the issue of compensation, it is necessary to see how the
power of the Industrial Court is meant to operate. Once the Court
comes to a conclusion that an unfair labour practice has been
committed, it is not enough to merely say so and close the matter.
The Act gives power to grant proper and effective relief so that the
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wrong is corrected in a meaningful way. This power is intended to
do complete justice between the parties. If the employee has
suffered for a long period due to the conduct of the employer, the
relief must reflect that suffering in real sense. In the present case,
the Industrial Court has granted only a lump sum amount without
interest. When the dispute has continued for several years, and
when the Petitioners have been deprived of normal service
conditions during that time, such a limited relief appears
insufficient. It does not fully balance the loss caused. The
submission of the Respondent that VRS benefits could not be
granted because they were not specifically asked for is also not
very convincing. Courts dealing with labour matters are expected
to take a practical view. If the facts clearly show that the employee
was treated unfairly and was denied benefits which others
received, then the Court should not refuse relief only because of
technical wording in the prayer. The focus should remain on
whether justice has been done in substance. In the present case,
the manner in which compensation has been granted does not
appear to fully address the consequences of the unfair conduct
found.
22. The defence of abandonment of service raised by the
Respondent also does not appear acceptable when the entire
record is considered. Abandonment requires a clear intention on
the part of the employee to leave service permanently. Such
intention cannot be lightly inferred. In the present case, the
Petitioners were continuously writing letters, raising objections,
asking for clarification, and even approaching legal forums. This
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conduct is not consistent with an intention to abandon service. It
shows that they wanted to continue, but on fair terms. The
Respondent has pointed out later developments such as sale of the
Turbhe property, accident at Khopoli, pandemic conditions, and
financial difficulties including bank proceedings. These events may
explain the Respondent's overall situation at a later stage.
However, they do not answer the core issue as to whether the
original action taken against the Petitioners was lawful and fair.
The legality of the transfer and the treatment of the Petitioners
must be judged on the basis of facts existing at that time. Later
hardships faced by the Respondent cannot correct an earlier
wrong, if one is found. The material placed before the Court does
not show that the Petitioners took up alternative employment in a
manner which would defeat their claim, nor does it show that they
voluntarily gave up their jobs. Therefore, the plea of abandonment
cannot be accepted on the facts of this case.
23. In view of the foregoing discussion and findings, the
following order is passed:
(i) The Writ Petition is partly allowed;
(ii) The Judgment and Order dated 5 December 2020
passed by the Industrial Court, Mumbai in Complaint (ULP)
No. 263 of 2010 is quashed and set aside to the extent it
rejects the complaint under Item 3 of Schedule IV of the
MRTU and PULP Act and limits the relief of back wages by
awarding only lump sum compensation;
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(iii) It is declared that the transfer orders dated 7 August
2010 issued by the Respondent are illegal and constitute
unfair labour practice under Item 3 of Schedule IV of the
MRTU and PULP Act;
(iv) The Respondent is directed to pay full back wages to
all the Petitioners from the date they were compelled to
remain away from duties till the date of their respective
superannuation, with continuity of service for all
consequential benefits;
(v) The amount of back wages shall carry interest at the
rate of 6 percent per annum from the date it became due till
realisation;
(vi) Insofar as Petitioner No. 2 is concerned, who is yet to
attain the age of superannuation, the Respondent shall treat
him in continuous service till the date of superannuation and
extend all service benefits accordingly;
(vii) The Respondent shall compute and pay the amounts
payable under this order within a period of twelve weeks
from the date of this order;
(viii) In the facts of the case, there shall be no order as to
costs.
(ix) Rule is made partly absolute in the aforesaid terms.
(AMIT BORKAR, J.)
