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PETITIONER: M/S.  BENGAL BHATDEE COAL CO.

       Vs.

RESPONDENT: SHRI RAM PRABESH SINGH & ORS.

DATE OF JUDGMENT: 23/01/1963

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. HIDAYATULLAH, M. SHAH, J.C.

CITATION:  1964 AIR  486            1964 SCR  (1) 709  CITATOR INFO :  F          1965 SC 917  (5)  R          1978 SC1004  (12)

ACT: Industrial  Dispute-Obstruction by some workmen of the  work of  other workmen-Show cause notice served-Found  guilty  by the management-Powers of the Tribunal-Whether unconscionable punishment would amount to victimisation-Industrial Disputes Act, 1947 (14 of 1947), ss. 10, 33(2) (b).

HEADNOTE: The  respondents  were the employees of  the  appellant  and while a strike was going on in the concern of the  appellant they  physically obstructed the loyal and  willing  trammers from  working in the colliery and insisted on other  workmen to join them in the obstruction.  A charge sheet was  served on  the  respondents and they were asked to show  cause  why disciplinary  action should not be taken against them.   The respondents  submitted their explanation and on  an  inquiry held  by the welfare officer they were found guilty and  the welfare officer recommended their dismissal.  The  appellant filed an application before the Industrial Tribunal under s. 33  (2) (b) of the Industrial Disputes Act and the  tribunal approved  of the dismissal.  Thereafter reference  was  made under  s. 10 of the Act and the present appeal is by way  of special  leave against the order of the Industrial  Tribunal made  in  that reference.  The Tribunal has  held  that  the enquiry  by  the management was proper but it  further  held that the dismissal amounted to victimisation. The  main  question  in the appeal  was  whether  there  was victimisation. Hold, where a domestic inquiry is held properly the tribunal cannot  sit  in  appeal  on the  findings  of  the  domestic tribunal  and  it  can only interfere  with  the  punishment inflicted as a result of the domestic inquiry where there is want  of good faith or basic error or the violation  of  the principles  of  natural justice or where  the  findings  are perverse or baseless or the case is one of victimisation. 710

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Though   in  a  case  of  proved  misconduct  normally   the imposition of a penalty may be within the discretion of  the management  there  may  by cases  where  the  punishment  of dismissal for misconduct proved may be unconscionable or  so grossly out of proportion to the nature of the offence  that the   tribunal  may  be  able  to  draw  an   inference   of victimisation  merely from the punishment  inflicted.   Such was not the case here. National  Tobacco  Co. of India Ltd.  v.  Fourth  Industrial Tribunal, (1960) 2 L.L.J. 175, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 24 of 1962. Appeal  by special leave from the award dated  November  23, 1960,  of.  the  Central  Government  Industrial   Tribunal, Dhanbad in reference No. 31 of 1960. M.   C.   Setalvad,   Nonicoomar  Chakravarty  and   B.   P. Maheshwari, for the appellant. M.   K.   Ramamurthi,   for  Dipat   Datta   Choudhri,   for respondents Nos.  1 to 13. 1963.  January 23.  The judgment of the Court was  delivered by WANCHOO,  J.-This is an appeal by special leave against  the order   of  the  Central  Government  Industrial   Tribunal, Dhanbad.  The brief facts necessary for present purposes are these.   A  dispute was referred by the  Central  Government under s, 10 of the Industrial Disputes Act, No. 14 of  1947, (hereinafter  referred to as the Act) with reference to  the thirteen  workmen involved in this appeal in  the  following terms               "Whether   the  dismissal  of  the   following               thirteen workmen of Bhatdee Colliery, swa                711               justified  ? If not, to what relief  are  they               entitled and from which date ?" It   appears  that  the  thirteen  workmen  had   physically obstructed  the surface trammers working in the colliery  on different dates, namely October 20, October 27, and November 3,1959  .some of them had also incited the other workmen  to join  in  this  act of obstructing  the  loyal  and  willing trammers  so that they may be prevented from working.   This happened during a strike which was begun on October 20, 1959 by the Colliery Mazdoor sangh to which the thirteen  workmen in  question belonged.  In consequence the appellant  served charge-sheets  on the thirteen workmen on November  9,  1959 charging  that  "they  physically  obstructed  the   surface trammers  on  duty at No. 1 and 2 Inclines  from  performing their  duties  and controlling the movement of the  tubs  by sitting  in-between tramline track and inciting" on  various dates,  thus  violating regulation 38 (1) (b)  of  the  Coal Mines  Regulations.  They were asked to  explain  within  48 hours  why disciplinary action should not be  taken  against them  under  r.  27 (19) and r. 27 (20) of  the  Coal  Mines Standing  Order.  The workmen submitted  their  explanations and  an  inquiry  was held by the  Welfare  Officer  of  the appellant.   The  Welfare  Officer found  all  the  thirteen workmen  guilty  of  the charges  framed  against  them  and recommended  their  dismissal.   As  another  reference  was pending  before  this very tribunal in  November  1959,  the appellant  made thirteen applications to the tribunal  under s.  33 (2) (b) of the Act for approval of the action  taken. Though   the  workmen  submitted  their  replies  in   those proceedings  they did not contest them thereafter,  and  the

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tribunal  approved  of  the action  taken.   Thereafter  the present reference was made under S.10 of the Act. The case put forward by the workmen in-the present reference was that there was no proper 712 enquiry  as  the workmen were not given a chance  to  defend themselves.   It was further submitted that  the  dismissals were  nothing  but victimisation pure and simple  for  trade union activities. The  tribunal apparently held that the inquiry  was  proper, though it has not said so in so many words in its award.  It may  be added that it could hardly do otherwise, for it  had already approved of the  action  taken on applications  made under s. 33 (2)(b)  of the Act.  If the inquiry had not been proper,the     tribunal  would  not  have  approved  of  the dismissals.   But the tribunal held that this was a case  of victimisation.    It  therefore  set  aside  the  order   of dismissal  and  ordered the reinstatement  of  the  thirteen workmen within one month of its order becoming operative and ordered that they should be treated as on leave without  pay during the period of forced unemployment.  It did not  grant back  wages  as the workmen had also  contributed  to  their forced unemployment to some extent. In the present appeal, the appellant contends that there was no  evidence to justify the conclusion of the tribunal  that the  dismissals  were an act of unfair  labour  practice  or victimisation.   We are of opinion that this  contention  of the  appellant must prevail.  The tribunal was. not  unaware of the fact that where a domestic inquiry is held  properly. the  tribunal does not sit in appeal on the findings of  the domestic  tribunal  and  it  can  only  interfere  with  the punishment  inflicted  as a result of the  domestic  inquiry where  there  is  want  of good  faith  or  basic  error  or violation of the principles of natural justice, or where the findings  are  perverse or baseless or the case  is  one  of victimisation  or unfair labour practice.  We  have  already indicated that the tribunal did not find that there was  any basic  error  or  violation of  the  principles  of  natural justice in the holding of the inquiry; nor did it find  that the findings of the inquiry  713 officer were perverse or baseless.  It could hardly do so in the  face  of  its  own approval  of  the  action  taken  on applications made to it under s. 33 (2) (b) of the Act,  for if  it had found that the inquiry was not proper,  it  would not have approved of the action taken against the workmen by the  appellant when it was approached under s. 33  (2)  (b). We must therefore proceed on the assumption that the inquiry was  held  properly  and the inquiry officer  who  held  the inquiry  was justified on the evidence before him in  coming to the conclusion which he did, namely, that the charges had been proved. The  tribunal  however  posed  a  further  question  as   to victimisation  in this way : "But even if assume that  these men  were guilty of the offence complained of, let me  pause and consider if there is victimisation." .It then  proceeded to point out that the workmen concerned had put in ten years service  or  more and their previous record of  service  was good.   They were important office bearers of the union  and some of them were also protected workmen.  It then  referred to previous disputes between the appellant and the union  of which  these workmen were members and was of the  view  that the union and its leaders were "eye-sore to the  appellant." The  tribunal  was, however, conscious that  merely  because certain workmen were protected workmen they were not thereby

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given  complete  immunity for anything that  they  might  do even, though it might be misconduct meriting dismissal.  But it, pointed out that the misconduct complained in this  case entailed  fine, suspension or dismissal of the workmen,  and the  appellant  chose  dismissal,  which  was  the   extreme penalty.   It  referred to a decision of the  Calcutta  High Court  in National Tobacco Company of India Ltd.  v.  Fourth Industrial  Tribunal (1), where it was held that in  a  case where the punishment meted out was unconscionable or grossly out  of  proportion to the nature of the  offence  that  may itself be a ground for holding that the 714 dismissal  was  an act of victimisation.  It seems  to  have held  that  the  punishment of dismissal in  this  case  was unconscionable  or at any rate grossly out of proportion  to the  nature  of  the  offence  and  therefore  came  to  the conclusion that this was a case of victimisation. Now  there  is  no doubt that though in  a  case  of  proved misconduct,  normally  the imposition of a  penalty  may  be within  the discretion of the management there may be  cases where the punishment of dismissal for the misconduct  proved may be so unconscionable or so grossly out of proportion  to the  nature of the offence that the tribunal may be able  to draw   an  inference  of  victimisation  merely   from   the punishment  inflicted.   But  we are  of  opinion  that  the present is not such a case and no inference of victimisation can  be  made  merely  from  the  fact  that  punishment  of dismissal  was imposed in this case and not either  fine  or suspension.  It is not in dispute that a strike was going on during those days when the misconduct was committed.  It was the  case of the appellant that the strike  was  unsatisfied and   illegal  La  it  appears  that  the  Regional   Labour Commissioner, Central, Dhanbad, agreed with this view of the appellant.  It was during such a strike that the  misconduct in  question took place and the misconduct was  that  these’ thirteen  workmen  physically obstructed other  workmen  who were  willing to work from doing their work by sitting  down between  the  tramlines.  This was in  our  opinion  serious misconduct on the part of the’ thirteen workmen and if it is found-as  it has been found-proved punishment  of  dismissal would  be perfectly justified.  It cannot therefore be  said looking  at  the nature of the offence that  the  punishment inflicted in this case was grossly out of, proportion or was unconscionable, and the tribunal was not justified in coming to  the  conclusion that this was a  case  of  victimisation because  the appellant decided to dismiss these workmen  and was not prepared to let them off with fine or suspension.  715 There  is  practically no other evidence in support  of  the finding  of  the tribunal.  It is true  that  the  relations between  the appellant and the union to which these  workmen belonged  were not happy.  It is also proved that there  was another  union  in existence in this concern.   Perhaps  the fact that there were two unions would in itself explain  why the  relations  of the appellant with one of the  unions  to which  these workmen belonged were not happy.  But the  fact that  the relations between an employer and the  union  were not happy and the workmen concerned. were office-bearers  or active  workers of the union would by itself be no  evidence to  prove victimisation, for if that were so, it would  mean that  the office-bearers and active workers of a union  with which  the employer is not on good terms would have a  carte blanche to commit any misconduct and get away with it on the ground  that  relations between the employer and  the  union were  not  happy.   We are therefore  of  opinion  that  the

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finding  of victimisation in this case is based,  merely  on conjectures  and surmises.  We have already  considered  the main reason given by the tribunal, namely, the nature of the punishment,  and  have held that that cannot be said  to  be unconscionable or grossly out of proportion to the nature of the offence. Another  reason  given  by the tribunal in  support  of  the finding  of  victimisation  is  also  patently  wrong.   The tribunal  says  that in reports made to the  police  certain persons   were  mentioned  as  having  taken  part  in   the misconduct of October 27, 1959; but in the written-statement filed by the appellant two other persons, namely Ratan  Gope and Sohan Gope who were not mentioned in the police  report, were also mentioned as having taken part in the incident  of October 27.  The tribunal thereby concluded that Sohan  Gope and  Ratan Gope were falsely implicated in the  incident  of October 27.  Curiously, however, it went on to say that this might be a mistake 716 but  added that it meant dismissal of these people  and  the finding in this respect was not only wrong but perverse.  It does  appear ’that by mistake in para. 5 of the  appellant’s written  statement before the tribunal names of  Ratan  Gope and  Sohan  Gope are mentioned as having taken part  in  the incident  of October 27.  But the charge-sheets  which  were given  to them were only about the incident of  October  20. The finding of the domestic inquiry also was with respect to the  incident of October 20.  So it seems that there was  no justification for the tribunal to hold that the finding  was perverse,  because  there  was no  finding  that  these  two persons had taken part in the incident of October 27.  There can be little doubt that there was a mistake in the  written statement  of the appellant for there was no charge  against these  two  people about the incident of October 27  and  no finding  about  it  by the Welfare  Officer.   The  tribunal therefore  was  patently  wrong in  using  this  mistake  as evidence of victimisation.  We are therefore of opinion that there  is no evidence worth the name in the present case  to support  the  tribunal’s  finding as  to  victimisation  and consequent  want  of good faith.  In the  circumstances  the tribunal’s award must be set aside. We  therefore allow the appeal.- set aside the award of  the tribunal  and uphold the dismissal of the  thirteen  workmen concerned.   In the circumstances there will be no order  as to costs.                             Appeal allowed.  717