BHARAT IRON WORKS v. BHAGUBHAI BALUBHAI PATEL & Ors.

Jn 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 ~he respondents were protected workmen. Even after finding that the domestic inquiry w~s 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 9f the Constitution, which petition was summarily dismissed by the High Court.

G Allowing the appeal to this Court, BHARAT IRON WORKS v. B. B. PATEL (Goswami,!.) 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 ~he Tribunal was entitled to examine the evidence in the domestic inquiry jn 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 ,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 .a 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 [285G; 287A-B] -inquiry were not bona fide.

(2) The Tribunal's interference· wiih the findings of the domestic inquiry -could have been justified if it was right in its conclusion that a ca~e of vicii misation had been made out. f.287CJ ( 3) In accepting the plea of victimisation the Tribunal took into considera tion an extraneous facfor 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] CIVIL APPELLATE JURISDICTION :.Civil Appeal No. 835 of 1975. Appeal by Special Leave from the Judgment and Order dated the .25th November, 1974 of the Gujarat High Court at Ahmedabad :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 -0f 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 : A B c D E F 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 mis -conduct 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 If on the other hand, there is violation of the principles of justice. 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 In the latter event the Tribunal will be entitled to arrive -so chooses. -at its own conclusion on merits on the evidence produced before with regard to the proof of the misconduct charged, and the Tribunal, G H A B c D E F G H .282 SUPREME COURT REPORTS (19;76] 2 5.C.R. then, will not be confined merely to consider whether a. prima f acie 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 con clusion of guilt on the charge levelled against the employee on the evidence recorded against him in the domestic en quiry. 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 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 docs not sit as a court of appeal, weighing or reappreciating the evidence fo1· itself but only examines the finding of the enquiry officer on the evi dence in the domestic enquiry as it is, in order to find out either whether there is a prima jacie case or if the findings arc p::!rvcrsc. Secondly, in the same case i.e. where there is no failure of the prin ciples 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 In that event thc the order of dismissal passed in the domestic enquiry. fact that there is no violation of the principles of natural justice in the course of the domestic enquiry will absolutely lose its importance 01- cfficacy. .... • ' I ' ·~ ( - ., Whether and under what facts and circumstances a Tribunal wilt accept the plea of victimisation against the employer will depend uporr 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 dccm~ng definition was made under section 28K in Chapter III B of the Jndrnn Trade Unions (Amendment) Act 1947 (Act XLV of 1947) but we understand it has not yet been brought into force. The concept of victimisatio;1 is to a large extent brought out under section 28K of that - . BHARAT lR:(])N WORKS v. B. B. PATEL (Goswami, J.) 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 ad judicating a ticklish issue of this natur·:! : A Section 28K. "Unfair practices by employers.- 'The following shall be deemed to be unfair practices on the part ·of an employer, namely- B (a) to interfere with, restrain or coerce his workmen in the exer cise 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; (h) to interfere with the formation or administration of any C Trade Union or to contribute financial or other support to it; (c) to discharge, or otherwise discr, iininate against, any ofllccr of a recognised Trade Union because of his being such officer; { d) to discharge or otherwise discriminate against any workman because he has mad.;: allegations or given evidence in an enquiry or proceeding relating to any matter such as is re ferred to in sub-section.

( 1) of section 28-F; D ( 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 n_ot be deemed to be an unfair l?racticc on his part". E Section 28-F provides for rights of recognised Trade Unions. Ordinarily a person is victimised, if he is made a victim or a scape- goat 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 victi misation. It is apparent that victimisation may partake of various types, to c}_te one or two only, for example, pressurising an employee to leave t1m union or union activities; treating an employee unequally or in an obvi QUsly 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.

F G 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 H 284 SUPREME COURT REPORTS [1976] 2 S.C.R. it is an amalgam of facts as well as in be vague or indefinite being as ferences and attitudes. The fact that there is a union espousing cause of the employees in legitimate trade union activity and an employee is a member or active officci-ibcarer thereof, is, per se, no crucial ins tance. Collective bargaining being the order of the day in a democratic social welfare state, legitimate trade union activity which must shun all kinM of physical threats, coercion or violence, must march with a spirit of tolerance, understanding and grace in dealings on the part of the em ployer.

Such activity can flow in healthy channel only on mutual co operation betwe·::n employer and employee and cannot be considered as irksome by the management in the best interest of the concern. Dialo gues with representatives of a union help striking a ddicate balance in ad justrncnt and settlement of various contentious claims and issues. The onus of establishingi a plea of victimisation will be upon the person pleading it. Since a charge of victimisation is a serious matter refkcting, to a degree, upon the subjective attitude of the employer evi denced 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 mis conduct 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 bearer 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 em ployee, found gunty, 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 twentyfive per sons, assaulted three tcmpmary 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 Mcnisha, a public Hotel, where they went to take their midday meal A B c D E JJ G H ' I Ir' .. >- • ,,. . BHARAT IRON WORKS v. B. B. PATEL (Goswami, J.) 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 com pany after its decisi'on to discharge the temporary ell)ployees and to Jay off the permanent workers.

It was not as if the incident was abso lutely unconnected with work or ~ervice 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 pleaded victimisation on account of trade union activity. A domestic enquiry was held on December 24, 1972. Orders of dismissal were passed oft March 12, 1973 and as certain industrial dispute was apparently pending management made the eight requisite applications under section 33(2) and 33(3), Industrial Disputes Act. Three of the workmen were pro tected workmen. The Tribunal did not find any defect in the domestic enquiry. Since the workmen repeated the plea of victimisation before the Tribu nal, 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 examininR 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 tlrough there was no defect in the domestic enquiry the Tribunal was entitled to examine the evidence in the domestic enquiry in order 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 reap praise 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 Babula! Patil, were the assaulted workmen and 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 A B c D E F G H A B c D F G H 286 SUPREME COURT REPORTS [1976) 2 S.C.R. a lay off of the permanent workers had been' raised: Ratilal Nathubhai Clrowdhari joined the company in October, 1972 i.e. only a few· d&:)'s 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 : '1 "That he does not know these workers ... That when he came out at that time workers from Bharat Iron Works as saulted him and other workers with him and were beaten by fist blows". Vasant Babula! 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 n'Ot 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 ex pected 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 assault ed 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 wit nesses assaulted) have identified them the chargesheeted workmen) that they were among the assailants. , ... "I, therefore, bold that the incident has occurred. The point to be decided is whether any one of the workers facing this inquiry was among the assailants ...... ". (meaning "I also hold that it is proved that these workers have beaten the workers of the factory". . ' • - ' ·BHARAT IRON WORKS v, B. B, PATEL (Goswami,!.) 287 " On the above state of the one way evidence against the respondents with reo-ard to the incident and in the absence of any denial by them by examining themselves before the enquiry officer and offering them- ·selves for cross-examination by the management, it is manifestly a per verse 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 {ule.

The Tribunal had no jurisdiction in this case to act a~ 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 enquhy ·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. trade union activity. Besides, 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 establish ed naturallv fell into an error.

If the Tribunal held, as it should have righly held, that the. offence was established, no question of victimisa tion could arise. Such an incident may be an unholy spark and aber ration out of certain prevailing confrontation but cannot have the pro tective umbrella of legitimate 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 conclu sion against the management that lay off was unjustified. This con clusion of the Tribunal largely influenced it to hold the management guilty of victimisation. We are, therefore, clearl_y of opini'on that in this case there is a manifest error of law on the part of the Tribunal in coming to the conclusion that the manageiment was guilty of victimfaa tion.