M/S. Bengal Bhatdee Coal Co. Vs. Shri
Ram Prabesh Singh & Ors  INSC 9 (23 January 1963)
23/01/1963 WANCHOO, K.N.
SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR,
CITATION: 1964 AIR 486 1964 SCR (1) 709
F 1965 SC 917 (5) R 1978 SC1004 (12)
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,
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 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.
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
Though the workmen submitted their replies in
those proceedings they did not contest them thereafter, and the 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
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 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 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.