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PETITIONER: BHARAT IRON WORKS

       Vs.

RESPONDENT: BHAGUBHAI BALUBHAI PATEL & ORS.

DATE OF JUDGMENT10/10/1975

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. ALAGIRISWAMI, A. UNTWALIA, N.L.

CITATION:  1976 AIR   98            1976 SCR  (2) 280  1976 SCC  (1) 518  CITATOR INFO :  D          1984 SC 505  (19)

ACT:      Industrial Disputes  Act, 1947-Victimisation-Tests  for determining-Labour Tribunal-Jurisdiction u/s. 33.

HEADNOTE:      Ordinarily a  person is vitimised if he is made a vitim or a  scapegoat and  is subjected to persection, prosecution or punishment  for no  real fault  or guilt  of his  own. If actual fault  or guilt  meriting punishment  is established, such action  will be  rid of  the  taint  of  victimisation. [283F]      Victimisation may  partake of  various  types,  as  for example, pressurising  an employee  to leave  the  union  or union activities,  treating an  employee in a discriminatory manner or inflicting a grossly monstrous punishment which no rational person  would impose upon an employee and the like. Victimisation is  a serious charge by an employee against an employee and,  therefore, it must be properly and adequately pleaded. The  charge must  not be  vague or  indefinite. The fact that  there is  a union  espousing  the  cause  of  the employees in legitimate trade union activity and an employee is a  member or  active office-bearer  thereof, is per se no crucial instance. [283G]      The onus  of establishing  a plea of victimisation will be  upon   the  person   pleading  it.  Since  a  charge  of victimisation is  a serious  matter reflecting  to a degree, upon the  subjective attitude  of the  employer evidenced by acts and  conduct, these  have to be established by safe and sure  evidence.  Mere  allegations,  vague  suggestions  and insinuations are  not enough.  All particulars of the charge brought out,  if believed,  must be  weighed by the Tribunal and a  conclusion should  be  reached  on  totality  of  the evidence produced. [284C-D]      Victimisation  must  be  directly  connected  with  the activities of  the concerned  employee inevitably leading to the penal action without the necessary proof of valid charge against him. [284D]      If in  the opinion  of the Tribunal gross misconduct is established as required on legal evidence either in a fairly

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conducted  domestice  enquiry  or  before  the  Tribunal  on merits, the plea of victimisation will not carry the case of the employee  any further. A proved misconduct is antithesis of victimisation as understood in industrial relations. This is not  to say  that the  Tribunal has  no  jurisdiction  to interfere  with   an  order   of  dismissal   on  proof   of victimisation. [284G]      In  the   instant  case   the  appellant   charged  the respondent workmen  with assaulting three new workers of the company who  were employed  by it  after a  lay off  of  the permanent workers.  In the  domestic inquiry the respondents pleaded victimisation  on the part of the employer for their trade union  activities. They  were, however, dismissed from service. Since  an industrial dispute was pending before the Tribunal the appellant made applications under ss. 33(2) and (3) of  the Industrial  Disputes Act,  1947.  Three  of  the respondents were  protected workmen. Even after finding that the domestic  inquiry was  in order the Tribunal came to the conclusion that  the findings  of the  inquiry officer  were perverse and  not bona  fide. On the refusal of the Tribunal to grant  approval and  permission for  the dismissal of the workmen the appellant moved the High Court under Art. 226 of the Constitution,  which petition was summarily dismissed by the High Court.      Allowing the appeal to this Court, 281 ^      HELD :  The High  Court was  not correct in dismissing, writ application  in limine. The Tribunal committed an error of jurisdiction in not allowing the applications made by the appellant.      (1) On  the principles  of law laid down by this Court, even though  there was no defect in the domestic inquiry the Tribunal  was  entitled  to  examine  the  evidence  in  the domestic inquiry  in order to find out whether a prima facie case was  made out  or if  the findings  were perverse.  The Tribunal was  however, not  competent  to  re-appreciate  or reappraise the evidence. The Tribunal had no jurisdiction in this case  to act  as a  court of appeal as if in a criminal case and  to interfere  with the  findings of  the  domestic inquiry. In  view of  the one  way to  evidence against  the respondents with  regard to  the incident and in the absence of any  denial by  them by  examining themselves  before the inquiry  officer   and  offering   themselves   for   cross- examination by  the management,  it is  manifestly  perverse finding on  the part  of the Tribunal to hold that there was not even  a prima facie case made out against the workmen or that the  findings of the inquiry were not bona fide. [285G; 287A-B]      (2) The  Tribunal’s interference  with the  findings of the domestic  inquiry could  have been  justified if  it was right in  its conclusion  that a  case of  victimisation had been made out. [287C]      (3) In accepting the plea of victimisation the Tribunal took into  consideration  an  extraneous  factor  about  the justifiability or  otherwise of the lay off. The lay off was beyond the  scope of  inquiry under  s. 33  and the Tribunal went wrong by unnecessarily arriving at a conclusion against the management  that  the  lay  off  was  unjustified.  This conclusion largely  influenced it  to  hold  the  management guilty of victimisation. [287F]

JUDGMENT:

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    CIVIL APPELLATE  JURISDICTION : Civil Appeal No. 835 of 1375.      Appeal by  Special Leave  from the  Judgment and  Order dated the  25th November,  1974 of the Gujarat High Court at Ahmedabad in Special Civil Application No. 1404 of 1974.      M. C. Bhandare, G. Bhandare for the Appellant.      B. C.  Shah,  M.  V.  Goswami  and  Ambrish  Kumar  for Respondents 4, 5 and 9.      The Judgment of the Court was delivered by      GOSWAMI, J.-In  a long  line of decisions of this Court the ambit  of section  33, Industrial  Disputes Act, 1947,is now  well-established.   There  is  also  no  difference  in principle of  the law applicable to a case under section 10, Industrial Disputes Act and that under section 33. To put it clearly, it is this:      When  an  application  under  section  33  whether  for approval or  for permission  is made  to a  Tribunal it  has initially a limited jurisdiction only to see whether a prima facie case is made out in respect of the misconduct charged. This is,  however,  the  position  only  when  the  domestic enquiry preceding  the order  of dismissal  is free from any defect, that  is to  say, free from the vice of violation of the principles  of natural  justice. If  on the  other hand, there is violation of the principles of natural justice, the Tribunal will  then give  opportunity  to  the  employer  to produce evidence,  if any,  and also to the workman to rebut it if  he so  chooses. In the latter event the Tribunal will be entitled to arrive at its own conclusion on merits on the evidence produced  before it with regard to the proof of the misconduct charged, and the Tribunal, 282 then, will  not be  confined merely  to consider  whether  a prima facie  case is  established against  the employee.  In other words,  in such  an, event, the employer’s findings in the  domestic   enquiry  will   lapse  and   these  will  be substituted by  the independent  conclusions of the Tribunal on merits.      There is a two-fold approach to the problem and if lost sight of,  it may  result in  some confusion.  Firstly, in a case where  there is no defect in procedure in the course of a domestic  enquiry into  the charges for misconduct against an employee,  the Tribunal  can interfere  with an  order of dismissal on one or other of the following conditions :-           (1)  If there is no legal evidence at all recorded                in the domestic enquiry against the concerned                employee with  reference to  the charge or if                no  reasonable   person  can   arrive  at   a                conclusion of  guilt on  the charge  levelled                against the employee on the evidence recorded                against him  in the domestic enquiry. This is                what is known as a perverse finding.           (2)  Even if  there is  some legal evidence in the                domestic enquiry  but there is no prima facie                case of  guilt made  out against  the  person                charged for  the offence  even on  the  basis                that the  evidence so  recorded is  reliable.                Such a  case may  overlap to some extent with                the second part of the condition No. 1 above.                A prima  facie case  is not, as in a criminal                case, a case proved to the hilt.      It  must   be  made   clear  in   following  the  above principles, one  or the  other, as  may be  applicable in  a particular case,  the Tribunal  does not  sit as  a court of appeal, weighing  or reappreciating  the evidence for itself but only  examines the finding of the enquiry officer on the

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evidence in  the domestic enquiry as it is, in order to find out either  whether there  is a  prima facie  case or if the findings are perverse.      Secondly, in  the same  case i.e.  where  there  is  no failure of  the principles  of natural justice in the course of domestic  enquiry, if  the  Tribunal finds that dismissal of an  employee is  by way of victimisation or unfair labour practice,  it   will  then  have  complete  jurisdiction  to interfere with the order of dismissal passed in the domestic enquiry. In  that event  the fact that there is no violation of the  principles of  natural justice  in the course of the domestic enquiry  will absolutely  lose  its  importance  or efficacy.      Whether  and  under  what  facts  and  circumstances  a Tribunal will  accept the  plea of victimisation against the employer will depend upon its judicial discretion.      What is  victimisation is  again a multi-headed monster to tackle  with. The  word ’victimisation’ is not defined in the Industrial  Disputes Act. An attempt to describe ’unfair practices by  employers’ by  a deeming  definition was  made under section  28K in  Chapter III  B of  the  Indian  Trade Unions (Amendment)  Act  1947  (Act  XLV  of  1947)  but  we understand, it  has not  yet been  brought into  force.  The concept of  victiminisation is to a large extent brought out under section 28K of that 283 unenforced law and it may be worthwhile to quote the same as it throws   sufficient  light on  the topic  and will  offer guidance to  Tribunals in  adjudicating a  ticklish issue of this nature :      Section 28K. "Unfair practices by employers.-           The  following   shall  be  deemed  to  be  unfair           practices on the part of employer, namely-           (a)  to interfere  with, restrain  or  coerce  his                workmen in  the exercise  of their  rights to                organize, form,  join or assist a Trade Union                and to engage in concerted activities for the                purpose of mutual aid or protection;           (b)  to   interfere    with   the   formation   or                administration  of  any  Trade  Union  or  to                contribute financial or other support to it;           (c)  to  discharge   or   otherwise   discriminate                against, any  officer of  a recognised  Trade                Union because of his being such officer;           (d)  to  discharge   or   otherwise   discriminate                against  any  workman  because  he  has  made                allegations or  given evidence  in an enquiry                or proceeding  relating to any matter such as                is referred  to in sub-section (1) of section                28-F;           (e)  to fail  to comply  with  the  provisions  of                section 28-F;           Provided that the refusal of an employer to permit           his workmen  to engage  in Trade  Union activities           during their  hours of work shall not be deemed to           be an unfair practice on his part".      Section 28-F  provides for  rights of  recognised Trade Unions.      Ordinarily a  person is  victimised, if  he is  made  a victim or  a scapegoat  and  is  subjected  to  persecution, prosecution or  punishment for no real fault or guilt of his own, in  the manner, as it were, of a sacrificial victim. It is, therefore,  manifest  that  if  actual  fault  or  guilt meriting the  punishment is established, such action will be rid of the taint of victimisation.

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    It  is  apparent  that  victimisation  may  partake  of various types,  to  cite  one  or  two  only,  for  example, pressurising  an  employee  to  leave  the  union  or  union activities;  treating   an  employee   unequally  or  in  an obviously discriminatory  manner for  the sole reason of his connection with  union or  his  particular  union  activity; inflicting a  grossly monstrous punishment which no rational person would impose upon an employee and the like.      A word  of caution  is necessary.  Victimisation  is  a serious charge  by an  employee against  an  employer,  and, therefore, it must be properly and adequately pleaded giving all particulars upon which the charge is based to enable the employer to fully meet them. The charge must not 284 be vague or indefinite being as it is an amalgam of facts as well as  inferences and  attitudes. The fact that there is a union espousing  the cause  of the  employees in  legitimate trade union  activity and  an employee is a member or active office-bearer thereof,  is, per  se,  no  crucial  instance. Collective bargaining  being the  order  of  the  day  in  a democratic social  welfare  state,  legitimate  trade  union activity which  must shun  all kinds  of  physical  threats, coercion or violence, must march with a spirit of tolerance, understanding and  grace in  dealings on  the  part  of  the employer. Such  activity can flow in healthy channel only on mutual cooperation  between employer and employee and cannot be considered  as irksome  by the  management  in  the  best interest of the concern. Dialogues with representatives of a union help  striking a  delicate balance  in adjustment  and settlement of various contentious claims and issues.      The onus  of establishing  a plea of victimisation will be  upon   the  person   pleading  it.  Since  a  charge  of victimisation is  a serious  matter reflecting, to a degree, upon the  subjective attitude  of the  employer evidenced by acts and  conduct, these  have to be established by safe and sure  evidence.  Mere  allegations,  vague  suggestions  and insinuations are  not enough.  All particulars of the charge brought out,  if believed,  must be  weighed by the Tribunal and a  conclusion should  be reached  on a  totality of  the evidence produced.      Again victimisation must be directly connected with the activities of  the concerned  employee inevitably leading to the penal  action without  the necessary  proof of  a  valid charge against him. The question to be asked : Is the reason for the  punishment attributable to a gross misconduct about which there  is no  doubt or  to his  particular trade union activity which  is frowned upon by the employer ? To take an example, suppose there is a tense atmosphere prevailing in a company because  of a  strike  consequent  upon  raising  of certain demands  by the  union, each party calling the other highly unreasonable  or even  provocative, the Tribunal will not readily  accept a  plea of  victimisation as answer to a gross misconduct  even when  an employee,  be he  an  active office beal earer of the union, commits assault, let us say, upon the  Manager, and  there is  reliable legal evidence to that effect.  In such  a case  the employee,  found  guilty, cannot be  equated with a victim or a scapegoat and the plea of victimisation  as a  defence will  fall flat. This is why once, in  the opinion  of the Tribunal a gross misconduct is established, as  required, on  legal evidence  either  in  a fairly conducted  domestic enquiry or before the Tribunal on merits, the plea of victimisation will not carry the case of the employee  any further. A proved misconduct is antithesis of victimisation as understood in industrial relations. This is not  to say  that the  Tribunal has  no  jurisdiction  to

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interfere  with   an  order   of  dismissal   on  proof   of victimisation.      After clearing the grounds on principles, coming to the facts of the present case the eight respondents were charged for misconduct  in that  they along with other outsiders, in all numbering  about twenty-five  persons,  assaulted  three temporary workers  of the company, namely, Ratilal Nathubhai Chowdhari, Vasant  Babulal Patil  and Jivanbhai Eddas Patel, on October  11, 1972,  as they  were  coming  out  of  Hotel Menisha, a  public Hotel,  where they  went  to  take  their midday meal 285 with coupons  from the  company. The  Hotel was about one or two furlongs  away from the factory. The assault was of some significance, as  those who  were assaulted were new workers employed by  the company after its decision to discharge the temporary employees and to lay off the permanent workers. It was not  as if  the incident was absolutely unconnected with work or  service in  the company.  It is stated in course of the evidence  in  the  domestic  enquiry  that  two  persons threatened the  assaulted workers  saying "why we were going on work,  go away  from here immediately leaving the work or else you would be beaten". Assault followed this threat.      The respondents  were  charged  by  the  management  on October 28,  1972, and  they denied the charges as false and pleded victimisation  on account  of trade union activity. A domestic enquiry  was held  on December  24, 1972. Orders of dismissal were  passed on  March 12,  1973  and  as  certain industrial dispute  was apparently  pending  the  management made the  eight requisite  applications under  section 33(2) and 33(3),  Industrial Disputes  Act. Three  of the  workmen were protected workmen.      The Tribunal  did not  find any  defect in the domestic enquiry.  Since   the   workmen   repeated   the   plea   of victimisation before  the Tribunal, evidence of both parties was recorded only with regard to that plea. Evidence was not given  before   the  Tribunal  with  regard  to  the  actual incident. A  large number  of documents  were filed  by  the union. The  management filed the proceedings of the domestic enquiry and also certain other documents. The Tribunal after examining the  evidence of the domestic enquiry held that no prima facie  case was made out against the workmen concerned and that  the findings  of the enquiry officer were perverse and not bona fide. The Tribunal further held on the evidence produced before  it that  it was a case of victimisation for trade union  activity. The  Tribunal, therefore,  refused to grant approval  and permission prayed for by the management. The management filed an application under article 226 of the Constitution  in   the  High  Court  of  Gujarat  which  was summarily dismissed.  Leave to  appeal  to  this  Court  was refused by  the High  Court and hence this appeal by special leave.      On the  principles of  law laid down by this Court even though there  was no  defect in  the  domestic  enquiry  the Tribunal  was  entitled  to  examine  the  evidence  in  the domestic enquiry  in order to find out whether a prima facie case was  made out  or if  the findings  are  perverse.  The Tribunal was  not, however,  competent  to  reappreciate  or reappraise  the  evidence.  The  Tribunal  referred  to  the evidence of the three witnesses recorded in the enquiry with regard to  the incident.  Two of  the three  persons,  viz., Ratilal Nathubhai  Chowdhari and  Vasant Babulal Patil, were the assaulted  workmen and  the  third  witness,  Gokulkumar Devidas, was a permanent worker of the company. The Tribunal extracted  the  material  part  of  the  evidence  from  the

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domestic enquiry  and we may now refer to the same. The case appears  to  be  that  two  unnamed  persons,  who  are  not chargesheeted, first  threatened the assaulted workers and a little later about 25 persons came and gave them fist blows. The assaulted workers were newly employed after 286 a lay  off of the permanent workers had been raised. Ratilal Nathubhai Chowdhari  joined the company in October, 1972 i.e only  a  few  days  before  the  assault  when  the  workmen concerned  were  admittedly  not  working  in  the  company. Ratilal  Nathubhai  Chowdhari’s  evidence  recorded  in  the domestic enquiry is as follows:           "That he  does not know these workers....That when      he came out at that time workers from Bharat Iron Works      assaulted him  and other  workers  with  him  and  were      beaten by fist blows". Vasant Babulal  Patil, who  was working  in the company from October 6, 1972-           "deposed that  he does  not know  if  the  workers      present at  the enquiry  are company’s  workers that on      11-10-1972 at  noon in the recess the five persons were      going to  Manisha  Hotel  for  lunch,  that  they  were      sitting in  the hotel.  That persons  of the Union were      present there. These chargesheeted workers were present      there  in   the  crowd.   That  two  persons  came  and      threatened us as to ’why we were going on work, go away      from here  immediately leaving  the work  or  else  you      would be beaten’. That when he came out after lunch the      persons of  the Union  beat him  and other persons with      him were  also beaten, that the persons who were beaten      with  him  were  Ratilal  Nathu,  Jivan  Iddas,  Eknath      Ramesh. They  were also  beaten by  the workers who are      here at present, that then they came to the company and      informed the clerk". He also  stated "that  20 to 25 persons had come to beat him but he  did not  know all".  He  further  "deposed  that  he complained against  the persons  of the  Union, who  are not present here  (at the  enquiry) but from those 25 persons of crowd these persons present at enquiry were there......"      Gokulkumar Devidas  Pandey is a permanent worker who is expected to  recognise the  workers charged. His evidence in the enquiry as recorded in the report is as follows :-           "That after  while when we came out the workers of      LMP and  Bharat Iron  Works were  beaten. That  at that      time he  (sic) was  at a  little distance.  That  these      persons who  are  present  now  were  there  among  the      persons who  had assaulted  workers. That other persons      were also there whom he did not know".           The third  assaulted person  was not  examined. On      the above  state of  the evidence  the enquiry  officer      held "both  of them  (meaning the  witnesses assaulted)      have  identified   them  (meaning   the   chargesheeted      workmen) that  they were  among the assailants......"I,      therefore, hold  that the  incident has  occurred.  The      point to  be decided  is whether any one of the workers      facing this  inquiry was  among the assailants.........      ".      "I also  hold that it is proved that these workers have beaten the workers of the factory". 287      On the  above state of the one way evidence against the respondents with  regard to  the incident and in the absence of any  denial by  them by  examining themselves  before the enquiry  officer   and  offering   themselves   for   cross- examination by  the management,  it is manifestly a perverse

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finding on  the part  of the  Tribunal to hold that there is not even a prima facie case made out against the workmen or, worse than  it, that the findings of the enquiry officer are not bona fide. The Tribunal had no jurisdiction in this case to act  as a court of appeal as if in a criminal case and to interfere with the findings of the domestic enquiry. Lastly, the  Tribunal’s   interference  with  the  findings  of  the domestic enquiry  could have  been justified if it was right in its conclusion that a case of victimisation has been made out.      We may, therefore, refer to that part of the Tribunal’s order where  it is  found that the plea of victimisation was justified. Ordinarily  we would  not go into such a question of fact  in an  application under article 136 and that again when there  is no  direct  appeal  from  the  order  of  the Tribunal.      If the  finding of  the Tribunal  that it was a case of victimisation is  correct, the Tribunal could interfere with the orders  of dismissal.  On the  test laid down above with regard to  victimisation, it  is found  that the Tribunal by wrongly holding  that no  prima facie  case was  established naturally fell  into an  error. If  the Tribunal held, as it should have  righly held,  that the offence was established, no question  of victimisation  could arise. Such an incident may be  an  unholy  spark  and  aberration  out  of  certain prevailing confrontation  but  cannot  have  the  protective umbrella of  legitimate trade  union activity.  Besides, the Tribunal in  accepting the  plea of  victimisation took into consideration  an   extraneous  factor,  namely,  about  the justifiability or  otherwise of  the lay  off. Lay  off  was beyond the  scope of  the enquiry  under section  33 and the Tribunal  went   wrong  by   unnecessarily  arriving   at  a conclusion  against   the  management   that  lay   off  was unjustified.  This   conclusion  of   the  Tribunal  largely influenced   it   to   hold   the   management   guilty   of victimisation. We are, therefore, clearly of opinion that in this case  there is  a manifest  error of law on the part of the Tribunal in coming to the conclusion that the management was guilty  of victimisation.  The Tribunal made two serious errors,  firstly   by  holding  that  the  offence  was  not established, prima  facie and secondly, by allowing it to be influenced by  an extraneous  finding with regard to the lay off. Since  it is  a jurisdictional  fact and the Tribunal’s correct finding  about victimisation  would  entitle  it  to interfere with  the order of the management a wrong decision regarding victimisation resulted in an error of jurisdiction on the part or the Tribunal in not allowing the applications under section 33. The High Court was, therefore, not correct in dismissing the writ application in limine. 288      In the  result the  appeal is  allowed and the order of the High Court as well as the orders of the Tribunal are set aside. The  Tribunal committed  an error  of jurisdiction in not allowing  the applications.  The Tribunal is, therefore, directed  to   record  appropriate   orders   allowing   the applications under  section 33.  The appellant will however, pay the costs of the Respondent as already ordered.      CMP No.  5579 of  1975 of  the  appellant  praying  for condonation of  delay  in  filing  additional  documents  is rejected. P.B.R.                                       Appeal allowed. 289