Bharat Iron Works Vs. Bhagubhai
Balubhai Patel & Ors  INSC 259 (10 October 1975)
CITATION: 1976 AIR 98 1976 SCR (2) 280 1976
SCC (1) 518
CITATOR INFO :
D 1984 SC 505 (19)
Industrial Disputes Act,
1947-Victimisation-Tests for determining-Labour Tribunal-Jurisdiction u/s. 33.
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
[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 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 layoff 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
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 layoff
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 layoff
was unjustified. This conclusion largely influenced it to hold the management
guilty of victimisation. [287F]
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
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
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
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
(c) to discharge or otherwise discriminate
against, any officer of a recognised Trade Union because of his being such
(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
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
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 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
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
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 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.