{"id":51821,"date":"1975-10-10T00:00:00","date_gmt":"1975-10-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bharat-iron-works-vs-bhagubhai-balubhai-patel-ors-on-10-october-1975"},"modified":"2016-09-23T20:17:55","modified_gmt":"2016-09-23T14:47:55","slug":"bharat-iron-works-vs-bhagubhai-balubhai-patel-ors-on-10-october-1975","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bharat-iron-works-vs-bhagubhai-balubhai-patel-ors-on-10-october-1975","title":{"rendered":"Bharat Iron Works vs Bhagubhai Balubhai Patel & Ors on 10 October, 1975"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bharat Iron Works vs Bhagubhai Balubhai Patel & Ors on 10 October, 1975<\/div>\n
Equivalent citations: 1976 AIR 98, \t\t 1976 SCR (2) 280<\/div>\n
Author: P Goswami<\/div>\n
Bench: Goswami, P.K.<\/div>\n
           PETITIONER:\nBHARAT IRON WORKS\n\n\tVs.\n\nRESPONDENT:\nBHAGUBHAI BALUBHAI PATEL & ORS.\n\nDATE OF JUDGMENT10\/10\/1975\n\nBENCH:\nGOSWAMI, P.K.\nBENCH:\nGOSWAMI, P.K.\nALAGIRISWAMI, A.\nUNTWALIA, N.L.\n\nCITATION:\n 1976 AIR   98\t\t  1976 SCR  (2) 280\n 1976 SCC  (1) 518\n CITATOR INFO :\n D\t    1984 SC 505\t (19)\n\n\nACT:\n     Industrial Disputes  Act, 1947-Victimisation-Tests\t for\ndetermining-Labour Tribunal-Jurisdiction u\/s. 33.\n\n\n\nHEADNOTE:\n     Ordinarily a  person is vitimised if he is made a vitim\nor a  scapegoat and  is subjected to persection, prosecution\nor punishment  for no  real fault  or guilt  of his  own. If\nactual fault  or guilt\tmeriting punishment  is established,\nsuch action  will be  rid of  the  taint  of  victimisation.\n[283F]\n     Victimisation may\tpartake of  various  types,  as\t for\nexample, pressurising  an employee  to leave  the  union  or\nunion activities,  treating an\temployee in a discriminatory\nmanner or inflicting a grossly monstrous punishment which no\nrational person\t would impose upon an employee and the like.\nVictimisation is  a serious charge by an employee against an\nemployee and,  therefore, it must be properly and adequately\npleaded. The  charge must  not be  vague or  indefinite. The\nfact that  there is  a union  espousing\t the  cause  of\t the\nemployees in legitimate trade union activity and an employee\nis a  member or\t active office-bearer  thereof, is per se no\ncrucial instance. [283G]\n     The onus  of establishing\ta plea of victimisation will\nbe  upon   the\tperson\t pleading  it.\tSince  a  charge  of\nvictimisation is  a serious  matter reflecting\tto a degree,\nupon the  subjective attitude  of the  employer evidenced by\nacts and  conduct, these  have to be established by safe and\nsure  evidence.\t Mere  allegations,  vague  suggestions\t and\ninsinuations are  not enough.  All particulars of the charge\nbrought out,  if believed,  must be  weighed by the Tribunal\nand a  conclusion should  be  reached  on  totality  of\t the\nevidence produced. [284C-D]\n     Victimisation  must  be  directly\tconnected  with\t the\nactivities of  the concerned  employee inevitably leading to\nthe penal action without the necessary proof of valid charge\nagainst him. [284D]\n     If in  the opinion\t of the Tribunal gross misconduct is\nestablished as required on legal evidence either in a fairly\nconducted  domestice  enquiry  or  before  the\tTribunal  on\nmerits, the plea of victimisation will not carry the case of\nthe employee  any further. A proved misconduct is antithesis\nof victimisation as understood in industrial relations. This\nis not\tto say\tthat the  Tribunal has\tno  jurisdiction  to\ninterfere  with\t  an  order   of  dismissal   on  proof\t  of\nvictimisation. [284G]\n     In\t the   instant\tcase   the  appellant\tcharged\t the\nrespondent workmen  with assaulting three new workers of the\ncompany who  were employed  by it  after a  lay off  of\t the\npermanent workers.  In the  domestic inquiry the respondents\npleaded victimisation  on the part of the employer for their\ntrade union  activities. They  were, however, dismissed from\nservice. Since\tan industrial dispute was pending before the\nTribunal the appellant made applications under ss. 33(2) and\n(3) of\tthe Industrial\tDisputes Act,  1947.  Three  of\t the\nrespondents were  protected workmen. Even after finding that\nthe domestic  inquiry was  in order the Tribunal came to the\nconclusion that\t the findings  of the  inquiry officer\twere\nperverse and  not bona\tfide. On the refusal of the Tribunal\nto grant  approval and\tpermission for\tthe dismissal of the\nworkmen the appellant moved the High Court under Art. 226 of\nthe Constitution,  which petition was summarily dismissed by\nthe High Court.\n     Allowing the appeal to this Court,\n281\n^\n     HELD :  The High  Court was  not correct in dismissing,\nwrit application  in limine. The Tribunal committed an error\nof jurisdiction in not allowing the applications made by the\nappellant.\n     (1) On  the principles  of law laid down by this Court,\neven though  there was no defect in the domestic inquiry the\nTribunal  was  entitled\t to  examine  the  evidence  in\t the\ndomestic inquiry  in order to find out whether a prima facie\ncase was  made out  or if  the findings\t were perverse.\t The\nTribunal was  however, not  competent  to  re-appreciate  or\nreappraise the evidence. The Tribunal had no jurisdiction in\nthis case  to act  as a\t court of appeal as if in a criminal\ncase and  to interfere\twith the  findings of  the  domestic\ninquiry. In  view of  the one  way to  evidence against\t the\nrespondents with  regard to  the incident and in the absence\nof any\tdenial by  them by  examining themselves  before the\ninquiry\t officer   and\toffering   themselves\tfor   cross-\nexamination by\tthe management,\t it is\tmanifestly  perverse\nfinding on  the part  of the Tribunal to hold that there was\nnot even  a prima facie case made out against the workmen or\nthat the  findings of the inquiry were not bona fide. [285G;\n287A-B]\n     (2) The  Tribunal's interference  with the\t findings of\nthe domestic  inquiry could  have been\tjustified if  it was\nright in  its conclusion  that a  case of  victimisation had\nbeen made out. [287C]\n     (3) In accepting the plea of victimisation the Tribunal\ntook into  consideration  an  extraneous  factor  about\t the\njustifiability or  otherwise of the lay off. The lay off was\nbeyond the  scope of  inquiry under  s. 33  and the Tribunal\nwent wrong by unnecessarily arriving at a conclusion against\nthe management\tthat  the  lay\toff  was  unjustified.\tThis\nconclusion largely  influenced it  to  hold  the  management\nguilty of victimisation. [287F]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION : Civil Appeal No. 835 of
\n1375.\n<\/p>\n
     Appeal by\tSpecial Leave  from the\t Judgment and  Order
\ndated the  25th November,  1974 of the Gujarat High Court at
\nAhmedabad in Special Civil Application No. 1404 of 1974.\n<\/p>\n
     M. C. Bhandare, G. Bhandare for the Appellant.
\n     B. C.  Shah,  M.  V.  Goswami  and\t Ambrish  Kumar\t for
\nRespondents 4, 5 and 9.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     GOSWAMI, J.-In  a long  line of decisions of this Court
\nthe ambit  of section  33, Industrial  Disputes Act, 1947,is
\nnow  well-established.\t There\tis  also  no  difference  in
\nprinciple of  the law applicable to a case under section 10,
\nIndustrial Disputes Act and that under section 33. To put it
\nclearly, it is this:\n<\/p>\n
     When  an  application  under  section  33\twhether\t for
\napproval or  for permission  is made  to a  Tribunal it\t has
\ninitially a limited jurisdiction only to see whether a prima
\nfacie case is made out in respect of the misconduct charged.
\nThis is,  however,  the\t position  only\t when  the  domestic
\nenquiry preceding  the order  of dismissal  is free from any
\ndefect, that  is to  say, free from the vice of violation of
\nthe principles\tof natural  justice. If\t on the\t other hand,
\nthere is violation of the principles of natural justice, the
\nTribunal will  then give  opportunity  to  the\temployer  to
\nproduce evidence,  if any,  and also to the workman to rebut
\nit if  he so  chooses. In the latter event the Tribunal will
\nbe entitled to arrive at its own conclusion on merits on the
\nevidence produced  before it with regard to the proof of the
\nmisconduct charged, and the Tribunal,
\n282<\/span>
\nthen, will  not be  confined merely  to consider  whether  a
\nprima facie  case is  established against  the employee.  In
\nother words,  in such  an, event, the employer’s findings in
\nthe  domestic\tenquiry\t will\tlapse  and   these  will  be
\nsubstituted by\tthe independent\t conclusions of the Tribunal
\non merits.\n<\/p>\n
     There is a two-fold approach to the problem and if lost
\nsight of,  it may  result in  some confusion.  Firstly, in a
\ncase where  there is no defect in procedure in the course of
\na domestic  enquiry into  the charges for misconduct against
\nan employee,  the Tribunal  can interfere  with an  order of
\ndismissal on one or other of the following conditions :-\n<\/p>\n
\t  (1)  If there is no legal evidence at all recorded
\n\t       in the domestic enquiry against the concerned
\n\t       employee with  reference to  the charge or if
\n\t       no  reasonable\tperson\tcan   arrive  at   a
\n\t       conclusion of  guilt on\tthe charge  levelled
\n\t       against the employee on the evidence recorded
\n\t       against him  in the domestic enquiry. This is
\n\t       what is known as a perverse finding.
\n\t  (2)  Even if\tthere is  some legal evidence in the
\n\t       domestic enquiry\t but there is no prima facie
\n\t       case of\tguilt made  out against\t the  person
\n\t       charged for  the offence\t even on  the  basis
\n\t       that the\t evidence so  recorded is  reliable.
\n\t       Such a  case may\t overlap to some extent with
\n\t       the second part of the condition No. 1 above.
\n\t       A prima\tfacie case  is not, as in a criminal
\n\t       case, a case proved to the hilt.<\/p><\/blockquote>\n
     It\t must\tbe  made   clear  in   following  the  above
\nprinciples, one\t or the\t other, as  may be  applicable in  a
\nparticular case,  the Tribunal\tdoes not  sit as  a court of
\nappeal, weighing  or reappreciating  the evidence for itself
\nbut only  examines the finding of the enquiry officer on the
\nevidence in  the domestic enquiry as it is, in order to find
\nout either  whether there  is a\t prima facie  case or if the
\nfindings are perverse.\n<\/p>\n
     Secondly, in  the same  case i.e.\twhere  there  is  no
\nfailure of  the principles  of natural justice in the course
\nof domestic  enquiry, if  the  Tribunal finds that dismissal
\nof an  employee is  by way of victimisation or unfair labour
\npractice,  it\twill  then  have  complete  jurisdiction  to
\ninterfere with the order of dismissal passed in the domestic
\nenquiry. In  that event\t the fact that there is no violation
\nof the\tprinciples of  natural justice\tin the course of the
\ndomestic enquiry  will absolutely  lose\t its  importance  or
\nefficacy.\n<\/p>\n
     Whether  and  under  what\tfacts  and  circumstances  a
\nTribunal will  accept the  plea of victimisation against the
\nemployer will depend upon its judicial discretion.\n<\/p>\n
     What is  victimisation is\tagain a multi-headed monster
\nto tackle  with. The  word ‘victimisation’ is not defined in
\nthe Industrial\tDisputes Act. An attempt to describe ‘unfair
\npractices by  employers’ by  a deeming\tdefinition was\tmade
\nunder section  28K in  Chapter III  B of  the  Indian  Trade
\nUnions (Amendment)  Act\t 1947  (Act  XLV  of  1947)  but  we
\nunderstand, it\thas not\t yet been  brought into\t force.\t The
\nconcept of  victiminisation is to a large extent brought out
\nunder section 28K of that
\n283<\/span>
\nunenforced law and it may be worthwhile to quote the same as
\nit throws   sufficient\tlight on  the topic  and will  offer
\nguidance to  Tribunals in  adjudicating a  ticklish issue of
\nthis nature :\n<\/p>\n
     Section 28K. “Unfair practices by employers.-
\n\t  The  following   shall  be  deemed  to  be  unfair
\n\t  practices on the part of employer, namely-\n<\/p><\/blockquote>\n
\t  (a)  to interfere  with, restrain  or\t coerce\t his
\n\t       workmen in  the exercise\t of their  rights to
\n\t       organize, form,\tjoin or assist a Trade Union
\n\t       and to engage in concerted activities for the
\n\t       purpose of mutual aid or protection;\n<\/p><\/blockquote>\n
\t  (b)  to   interfere\t with\tthe   formation\t  or
\n\t       administration  of  any\tTrade  Union  or  to
\n\t       contribute financial or other support to it;\n<\/p><\/blockquote>\n
\t  (c)  to  discharge   or   otherwise\tdiscriminate
\n\t       against, any  officer of\t a recognised  Trade
\n\t       Union because of his being such officer;\n<\/p><\/blockquote>\n
\t  (d)  to  discharge   or   otherwise\tdiscriminate
\n\t       against\tany  workman  because  he  has\tmade
\n\t       allegations or  given evidence  in an enquiry
\n\t       or proceeding  relating to any matter such as
\n\t       is referred  to in sub-section (1) of section
\n\t       28-F;\n<\/p><\/blockquote>\n
\t  (e)  to fail\tto comply  with\t the  provisions  of
\n\t       section 28-F;\n<\/p><\/blockquote>\n
\t  Provided that the refusal of an employer to permit
\n\t  his workmen  to engage  in Trade  Union activities
\n\t  during their\thours of work shall not be deemed to
\n\t  be an unfair practice on his part”.<\/p><\/blockquote>\n
     Section 28-F  provides for\t rights of  recognised Trade
\nUnions.\n<\/p>\n
     Ordinarily a  person is  victimised, if  he is  made  a
\nvictim or  a scapegoat\tand  is\t subjected  to\tpersecution,
\nprosecution or\tpunishment for no real fault or guilt of his
\nown, in\t the manner, as it were, of a sacrificial victim. It
\nis, therefore,\tmanifest  that\tif  actual  fault  or  guilt
\nmeriting the  punishment is established, such action will be
\nrid of the taint of victimisation.\n<\/p>\n
     It\t is  apparent  that  victimisation  may\t partake  of
\nvarious types,\tto  cite  one  or  two\tonly,  for  example,
\npressurising  an  employee  to\tleave  the  union  or  union
\nactivities;  treating\tan  employee   unequally  or  in  an
\nobviously discriminatory  manner for  the sole reason of his
\nconnection with\t union or  his\tparticular  union  activity;
\ninflicting a  grossly monstrous punishment which no rational
\nperson would impose upon an employee and the like.\n<\/p>\n
     A word  of caution\t is necessary.\tVictimisation  is  a
\nserious charge\tby an  employee against\t an  employer,\tand,
\ntherefore, it must be properly and adequately pleaded giving
\nall particulars upon which the charge is based to enable the
\nemployer to fully meet them. The charge must not
\n284<\/span>
\nbe vague or indefinite being as it is an amalgam of facts as
\nwell as\t inferences and\t attitudes. The fact that there is a
\nunion espousing\t the cause  of the  employees in  legitimate
\ntrade union  activity and  an employee is a member or active
\noffice-bearer thereof,\tis, per\t se,  no  crucial  instance.
\nCollective bargaining  being the  order\t of  the  day  in  a
\ndemocratic social  welfare  state,  legitimate\ttrade  union
\nactivity which\tmust shun  all kinds  of  physical  threats,
\ncoercion or violence, must march with a spirit of tolerance,
\nunderstanding and  grace in  dealings on  the  part  of\t the
\nemployer. Such\tactivity can flow in healthy channel only on
\nmutual cooperation  between employer and employee and cannot
\nbe considered  as irksome  by the  management  in  the\tbest
\ninterest of the concern. Dialogues with representatives of a
\nunion help  striking a\tdelicate balance  in adjustment\t and
\nsettlement of various contentious claims and issues.\n<\/p>\n
     The onus  of establishing\ta plea of victimisation will
\nbe  upon   the\tperson\t pleading  it.\tSince  a  charge  of
\nvictimisation is  a serious  matter reflecting, to a degree,
\nupon the  subjective attitude  of the  employer evidenced by
\nacts and  conduct, these  have to be established by safe and
\nsure  evidence.\t Mere  allegations,  vague  suggestions\t and
\ninsinuations are  not enough.  All particulars of the charge
\nbrought out,  if believed,  must be  weighed by the Tribunal
\nand a  conclusion should  be reached  on a  totality of\t the
\nevidence produced.\n<\/p>\n
     Again victimisation must be directly connected with the
\nactivities of  the concerned  employee inevitably leading to
\nthe penal  action without  the necessary  proof of  a  valid
\ncharge against him. The question to be asked : Is the reason
\nfor the\t punishment attributable to a gross misconduct about
\nwhich there  is no  doubt or  to his  particular trade union
\nactivity which\tis frowned upon by the employer ? To take an
\nexample, suppose there is a tense atmosphere prevailing in a
\ncompany because\t of a  strike  consequent  upon\t raising  of
\ncertain demands\t by the\t union, each party calling the other
\nhighly unreasonable  or even  provocative, the Tribunal will
\nnot readily  accept a  plea of\tvictimisation as answer to a
\ngross misconduct  even when  an employee,  be he  an  active
\noffice beal earer of the union, commits assault, let us say,
\nupon the  Manager, and\tthere is  reliable legal evidence to
\nthat effect.  In such  a case  the employee,  found  guilty,
\ncannot be  equated with a victim or a scapegoat and the plea
\nof victimisation  as a\tdefence will  fall flat. This is why
\nonce, in  the opinion  of the Tribunal a gross misconduct is
\nestablished, as\t required, on  legal evidence  either  in  a
\nfairly conducted  domestic enquiry or before the Tribunal on
\nmerits, the plea of victimisation will not carry the case of
\nthe employee  any further. A proved misconduct is antithesis
\nof victimisation as understood in industrial relations. This
\nis not\tto say\tthat the  Tribunal has\tno  jurisdiction  to
\ninterfere  with\t  an  order   of  dismissal   on  proof\t  of
\nvictimisation.\n<\/p>\n
     After clearing the grounds on principles, coming to the
\nfacts of the present case the eight respondents were charged
\nfor misconduct\tin that\t they along with other outsiders, in
\nall numbering  about twenty-five  persons,  assaulted  three
\ntemporary workers  of the company, namely, Ratilal Nathubhai
\nChowdhari, Vasant  Babulal Patil  and Jivanbhai Eddas Patel,
\non October  11, 1972,  as they\twere  coming  out  of  Hotel
\nMenisha, a  public Hotel,  where they  went  to\t take  their
\nmidday meal
\n285<\/span>
\nwith coupons  from the\tcompany. The  Hotel was about one or
\ntwo furlongs  away from the factory. The assault was of some
\nsignificance, as  those who  were assaulted were new workers
\nemployed by  the company after its decision to discharge the
\ntemporary employees and to lay off the permanent workers. It
\nwas not\t as if\tthe incident was absolutely unconnected with
\nwork or\t service in  the company.  It is stated in course of
\nthe evidence  in  the  domestic\t enquiry  that\ttwo  persons
\nthreatened the\tassaulted workers  saying “why we were going
\non work,  go away  from here immediately leaving the work or
\nelse you would be beaten”. Assault followed this threat.\n<\/p>\n
     The respondents  were  charged  by\t the  management  on
\nOctober 28,  1972, and\tthey denied the charges as false and
\npleded victimisation  on account  of trade union activity. A
\ndomestic enquiry  was held  on December\t 24, 1972. Orders of
\ndismissal were\tpassed on  March 12,  1973  and\t as  certain
\nindustrial dispute  was apparently  pending  the  management
\nmade the  eight requisite  applications under  section 33(2)
\nand 33(3),  Industrial Disputes\t Act. Three  of the  workmen
\nwere protected workmen.\n<\/p>\n
     The Tribunal  did not  find any  defect in the domestic
\nenquiry.  Since\t  the\tworkmen\t  repeated   the   plea\t  of
\nvictimisation before  the Tribunal, evidence of both parties
\nwas recorded only with regard to that plea. Evidence was not
\ngiven  before\tthe  Tribunal  with  regard  to\t the  actual
\nincident. A  large number  of documents\t were filed  by\t the
\nunion. The  management filed the proceedings of the domestic
\nenquiry and also certain other documents. The Tribunal after
\nexamining the  evidence of the domestic enquiry held that no
\nprima facie  case was made out against the workmen concerned
\nand that  the findings\tof the enquiry officer were perverse
\nand not bona fide. The Tribunal further held on the evidence
\nproduced before\t it that  it was a case of victimisation for
\ntrade union  activity. The  Tribunal, therefore,  refused to
\ngrant approval\tand permission prayed for by the management.
\nThe management filed an application under article 226 of the
\nConstitution  in   the\tHigh  Court  of\t Gujarat  which\t was
\nsummarily dismissed.  Leave to\tappeal\tto  this  Court\t was
\nrefused by  the High  Court and hence this appeal by special
\nleave.\n<\/p>\n
     On the  principles of  law laid down by this Court even
\nthough there  was no  defect in\t the  domestic\tenquiry\t the
\nTribunal  was  entitled\t to  examine  the  evidence  in\t the
\ndomestic enquiry  in order to find out whether a prima facie
\ncase was  made out  or if  the findings\t are  perverse.\t The
\nTribunal was  not, however,  competent\tto  reappreciate  or
\nreappraise  the\t evidence.  The\t Tribunal  referred  to\t the
\nevidence of the three witnesses recorded in the enquiry with
\nregard to  the incident.  Two of  the three  persons,  viz.,
\nRatilal Nathubhai  Chowdhari and  Vasant Babulal Patil, were
\nthe assaulted  workmen and  the\t third\twitness,  Gokulkumar
\nDevidas, was a permanent worker of the company. The Tribunal
\nextracted  the\tmaterial  part\tof  the\t evidence  from\t the
\ndomestic enquiry  and we may now refer to the same. The case
\nappears\t to  be\t that  two  unnamed  persons,  who  are\t not
\nchargesheeted, first  threatened the assaulted workers and a
\nlittle later about 25 persons came and gave them fist blows.
\nThe assaulted workers were newly employed after
\n286<\/span>
\na lay  off of the permanent workers had been raised. Ratilal
\nNathubhai Chowdhari  joined the company in October, 1972 i.e
\nonly  a\t few  days  before  the\t assault  when\tthe  workmen
\nconcerned  were\t admittedly  not  working  in  the  company.
\nRatilal\t Nathubhai  Chowdhari’s\t evidence  recorded  in\t the
\ndomestic enquiry is as follows:\n<\/p>\n
\t  “That he  does not know these workers….That when
\n     he came out at that time workers from Bharat Iron Works
\n     assaulted him  and other  workers\twith  him  and\twere
\n     beaten by fist blows”.\n<\/p><\/blockquote>\n
Vasant Babulal\tPatil, who  was working\t in the company from
\nOctober 6, 1972-\n<\/p>\n
\t  “deposed that\t he does  not know  if\tthe  workers
\n     present at\t the enquiry  are company’s  workers that on
\n     11-10-1972 at  noon in the recess the five persons were
\n     going to  Manisha\tHotel  for  lunch,  that  they\twere
\n     sitting in\t the hotel.  That persons  of the Union were
\n     present there. These chargesheeted workers were present
\n     there  in\t the  crowd.   That  two  persons  came\t and
\n     threatened us as to ‘why we were going on work, go away
\n     from here\timmediately leaving  the work  or  else\t you
\n     would be beaten’. That when he came out after lunch the
\n     persons of\t the Union  beat him  and other persons with
\n     him were  also beaten, that the persons who were beaten
\n     with  him\twere  Ratilal  Nathu,  Jivan  Iddas,  Eknath
\n     Ramesh. They  were also  beaten by\t the workers who are
\n     here at present, that then they came to the company and
\n     informed the clerk”.\n<\/p><\/blockquote>\n
He also\t stated “that  20 to 25 persons had come to beat him
\nbut he\tdid not\t know all”.  He\t further  “deposed  that  he
\ncomplained against  the persons\t of the\t Union, who  are not
\npresent here  (at the  enquiry) but from those 25 persons of
\ncrowd these persons present at enquiry were there……”\n<\/p>\n
     Gokulkumar Devidas\t Pandey is a permanent worker who is
\nexpected to  recognise the  workers charged. His evidence in
\nthe enquiry as recorded in the report is as follows :-\n<\/p>\n
\t  “That after  while when we came out the workers of
\n     LMP and  Bharat Iron  Works were  beaten. That  at that
\n     time he  (sic) was\t at a  little distance.\t That  these
\n     persons who  are  present\tnow  were  there  among\t the
\n     persons who  had assaulted\t workers. That other persons
\n     were also there whom he did not know”.
\n\t  The third  assaulted person  was not\texamined. On
\n     the above\tstate of  the evidence\tthe enquiry  officer
\n     held “both\t of them  (meaning the\twitnesses assaulted)
\n     have  identified\tthem  (meaning\t the   chargesheeted
\n     workmen) that  they were  among the assailants……”I,
\n     therefore, hold  that the\tincident has  occurred.\t The
\n     point to  be decided  is whether any one of the workers
\n     facing this  inquiry was  among the assailants………
\n     “.<\/p><\/blockquote>\n
     “I also  hold that it is proved that these workers have
\nbeaten the workers of the factory”.\n<\/p>\n
287<\/span><\/p>\n
     On the  above state of the one way evidence against the
\nrespondents with  regard to  the incident and in the absence
\nof any\tdenial by  them by  examining themselves  before the
\nenquiry\t officer   and\toffering   themselves\tfor   cross-
\nexamination by\tthe management,\t it is manifestly a perverse
\nfinding on  the part  of the  Tribunal to hold that there is
\nnot even a prima facie case made out against the workmen or,
\nworse than  it, that the findings of the enquiry officer are
\nnot bona fide. The Tribunal had no jurisdiction in this case
\nto act\tas a court of appeal as if in a criminal case and to
\ninterfere with the findings of the domestic enquiry. Lastly,
\nthe  Tribunal’s\t  interference\twith  the  findings  of\t the
\ndomestic enquiry  could have  been justified if it was right
\nin its conclusion that a case of victimisation has been made
\nout.\n<\/p>\n
     We may, therefore, refer to that part of the Tribunal’s
\norder where  it is  found that the plea of victimisation was
\njustified. Ordinarily  we would\t not go into such a question
\nof fact\t in an\tapplication under article 136 and that again
\nwhen there  is no  direct  appeal  from\t the  order  of\t the
\nTribunal.\n<\/p>\n
     If the  finding of\t the Tribunal  that it was a case of
\nvictimisation is  correct, the Tribunal could interfere with
\nthe orders  of dismissal.  On the  test laid down above with
\nregard to  victimisation, it  is found\tthat the Tribunal by
\nwrongly holding\t that no  prima facie  case was\t established
\nnaturally fell\tinto an\t error. If  the Tribunal held, as it
\nshould have  righly held,  that the offence was established,
\nno question  of victimisation  could arise. Such an incident
\nmay be\tan  unholy  spark  and\taberration  out\t of  certain
\nprevailing confrontation  but  cannot  have  the  protective
\numbrella of  legitimate trade  union activity.\tBesides, the
\nTribunal in  accepting the  plea of  victimisation took into
\nconsideration  an   extraneous\tfactor,\t namely,  about\t the
\njustifiability or  otherwise of\t the lay  off. Lay  off\t was
\nbeyond the  scope of  the enquiry  under section  33 and the
\nTribunal  went\t wrong\tby   unnecessarily  arriving   at  a
\nconclusion  against   the  management\tthat  lay   off\t was
\nunjustified.  This   conclusion\t of   the  Tribunal  largely
\ninfluenced   it\t  to   hold   the   management\t guilty\t  of
\nvictimisation. We are, therefore, clearly of opinion that in
\nthis case  there is  a manifest\t error of law on the part of
\nthe Tribunal in coming to the conclusion that the management
\nwas guilty  of victimisation.  The Tribunal made two serious
\nerrors,\t firstly   by  holding\tthat  the  offence  was\t not
\nestablished, prima  facie and secondly, by allowing it to be
\ninfluenced by  an extraneous  finding with regard to the lay
\noff. Since  it is  a jurisdictional  fact and the Tribunal’s
\ncorrect finding\t about victimisation  would  entitle  it  to
\ninterfere with\tthe order of the management a wrong decision
\nregarding victimisation resulted in an error of jurisdiction
\non the part or the Tribunal in not allowing the applications
\nunder section 33. The High Court was, therefore, not correct
\nin dismissing the writ application in limine.\n<\/p>\n
288<\/span><\/p>\n
     In the  result the\t appeal is  allowed and the order of
\nthe High Court as well as the orders of the Tribunal are set
\naside. The  Tribunal committed\tan error  of jurisdiction in
\nnot allowing  the applications.\t The Tribunal is, therefore,
\ndirected  to   record  appropriate   orders   allowing\t the
\napplications under  section 33.\t The appellant will however,
\npay the costs of the Respondent as already ordered.\n<\/p>\n
     CMP No.  5579 of  1975 of\tthe  appellant\tpraying\t for
\ncondonation of\tdelay  in  filing  additional  documents  is
\nrejected.\n<\/p>\n
P.B.R.\t\t\t\t\t     Appeal allowed.\n289<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bharat Iron Works vs Bhagubhai Balubhai Patel & Ors on 10 October, 1975 Equivalent citations: 1976 AIR 98, 1976 SCR (2) 280 Author: P Goswami Bench: Goswami, P.K. PETITIONER: BHARAT IRON WORKS Vs. RESPONDENT: BHAGUBHAI BALUBHAI PATEL & ORS. DATE OF JUDGMENT10\/10\/1975 BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. ALAGIRISWAMI, A. UNTWALIA, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-51821","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBharat Iron Works vs Bhagubhai Balubhai Patel & Ors on 10 October, 1975 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bharat-iron-works-vs-bhagubhai-balubhai-patel-ors-on-10-october-1975\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bharat Iron Works vs Bhagubhai Balubhai Patel & Ors on 10 October, 1975 - 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