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
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 31959 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 section 33 2 b of the Act for approval of the action taken
Though the workmen submitted their replies in those proceedings they did not contest them thereafter and the tribunal approved of the action taken
Thereafter the present reference was made under S10 of the Act
The case put forward by the workmen in the present reference was that there was no proper 712 enquiry as the workmen were not given a chance to defend themselves
It was further submitted that the dismissals were nothing but victimisation pure and simple for trade union activities
The tribunal apparently held that the inquiry was proper though it has not said so in so many words in its award
It may be added that it could hardly do otherwise for it had already approved of the action taken on applications made under section 33 2b of the Act
If the inquiry had not been properthe 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 section 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 section 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 vs 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
Appeal allowed


Summary:
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 section 33 2 b of the Industrial Disputes Act and the tribunal approved of the dismissal
Thereafter reference was made under section 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 vs Fourth Industrial Tribunal  referred to