# BHARAT IRON WORKS v. BHAGUBHAI BALUBHAI PATEL & ORS

- **Citation:** [1976] 2 S.C.R. 280
- **Court:** Supreme Court of India
- **Decided:** 1975-10-10
- **Case number:** Civil Appeal No. 835 of 1975
- **Bench:** A. Alagiriswami, P. K. Goswami, N. L. Untwalia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bharat-iron-works-v-bhagubhai-balubhai-patel-ors-6792
- **Pages:** 9

## Headnote

Industrial Disputes Act, 1947-Victimisation-Tests for determining-Labour
Tribunal-Jurisdiction u/ s. 33.
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. If actual fault or guilt meriting punishment is established,
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such action will be rid of the taini of victimisation. [283F]
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Victimisation may partake of various types, as for example, pressurising an
employee to leave the union or union activities, treating an employee
in
a
discriminatqry manne_r 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 employer 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 activiey and an employee is a membor or active officebearer thereof, is per se no crucial instance.
[283G]
The onus of establishing a plea ef victimisation will be upon the i>erson
pleading it. Since a charge of victimisation is a serious matter rellecting to
a degree, upon the subjective attitude of the employer evidenced by acts and
conduct, these have to he established by safe and sure evidence. Mere allegations, vague suggestions and insinuations are not enough. All particulars of the
charge brought out, if helieved. must be weighed by the Tribunal and a conclusion should be reached on a totality of the evidence produced.
[284C-DJ
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.
[284DJ
If in the opinion of the Tribunal 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 furthe·
A nr·V''d mi,conduct 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. f284Gl
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.
Allowing the appeal to this Court,
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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 an

## Text

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280
A
BHARAT IRON WORKS
v.
BHAGUBHAI BALUBHAI PATEL & ORS.
October 10, 1975
B
[A. ALAGIRISWAMI, P. K. GOSWAMI AND N. L. UNTWALIA, JJ.]
Industrial Disputes Act, 1947-Victimisation-Tests for determining-Labour
Tribunal-Jurisdiction u/ s. 33.
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. If actual fault or guilt meriting punishment is established,
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such action will be rid of the taini of victimisation. [283F]
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G
ii
Victimisation may partake of various types, as for example, pressurising an
employee to leave the union or union activities, treating an employee
in
a
discriminatqry manne_r 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 employer 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 activiey and an employee is a membor or active officebearer thereof, is per se no crucial instance.
[283G]
The onus of establishing a plea ef victimisation will be upon the i>erson
pleading it. Since a charge of victimisation is a serious matter rellecting to
a degree, upon the subjective attitude of the employer evidenced by acts and
conduct, these have to he established by safe and sure evidence. Mere allegations, vague suggestions and insinuations are not enough. All particulars of the
charge brought out, if helieved. must be weighed by the Tribunal and a conclusion should be reached on a totality of the evidence produced.
[284C-DJ
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.
[284DJ
If in the opinion of the Tribunal 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 furthe·
A nr·V''d mi,conduct 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. f284Gl
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.
Allowing the appeal to this Court,
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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 the
-inquiry were not bona fide.
[285G; 287A-B]
(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 viciimisation had been made out. f.287CJ
( 3) In accepting the plea of victimisation the Tribunal took into consideration 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 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
-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 :
When an application under section 33 whether for approval or for
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-permission is made to a Tribunal it has initially a limited jurisdiction
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·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
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
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-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,
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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 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 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 evidence 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 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 thcfact that there is no violation of the principles of natural justice in the
course of the domestic enquiry will absolutely lose its importance 01cfficacy.
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Whether and under what facts and circumstances a Tribunal wilt
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accept the plea of victimisation against the employer will depend uporr
its judicial discretion.
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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
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. 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 adjudicating a ticklish issue of this natur·:! :
Section 28K. "Unfair practices by employers.-
A
'The following shall be deemed to be unfair practices on the part
·of an employer, namelyB
(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;
(h) to interfere with the formation or administration of any
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Trade Union or to contribute financial or other support to
(c)
it;
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 referred to in sub-section. ( 1) of section 28-F;
( e) to fail to comply with the provisions of section 28-F;
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Provided that the refusal of an employer to permit his workmen
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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".
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.
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 obviQUsly 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
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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 officci-ibcarer 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
kinM 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 betwe·::n 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 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 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
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 employee, 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 persons, 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
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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 company 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 absolutely 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 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 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 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
Babula! 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
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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 :
"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 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 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, 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 ...... ".
"I also hold that it is proved that these workers have beaten the
workers of the factory".
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·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 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 {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.
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 naturallv 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, 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 victimfaation. 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
victiinisatioll' would entitle it to hrterfere with the order of the management a: wrong decision regardhrg victin1isation resulted in an error of
jurisdiction on the part of the Tribunal in not allowing the applications
under section 33. The High Court was, therefure, not correct in dismissing the writ application in limine.
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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.
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