Karnataka High Court
M/S Fouress Engineering (India) … vs Sri T K Muniswamy on 27 February, 2026
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO.7053 OF 2020 (L-TER)
BETWEEN:
M/S FOURESS ENGINEERING (INDIA) LIMITED
PLOT NO.2, 2ND PHASE,
PEENYA INDUSTRIAL AREA
BENGALURU-560 058
REP. BY ITS SENIOR MANAGER-HRD
AND ADMINISTRATION
SRI K.B.DEEPAK
...PETITIONER
(BY SRI.S.N.MURTHY., SR.COUNSEL FOR SRI.
SOMASHEKAR.,ADVOCATES)
AND:
SRI T K MUNISWAMY
S/O SRI KRISHNAPPA
MAJOR
C/O VENKATASWAMY REDDY
DOOR NO.152/3 (NEW)
MARATHALLI
BENGALURU-560 032.
Digitally
signed by B ...RESPONDENT
LAVANYA (BY SMT.MAITREYI KRISHNAN., FOR SRI.K.S.SUBRAMANYA.,
ADVOCATES)
Location:
HIGH
COURT OF THIS WP IS FILED UDNER ARTICLES 226 & 227 OF THE
KARNATAKA CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 23.05.2018 IN SERIAL APPLICATION NO.8/2002 (IN
I.D.NO.28/2001) AT ANNEXURE-Q PASSED BY THE HONBLE
INDUSTRIAL TRIBUNAL, BENGALURU AND GRANT PERMISSION
TO DISMISS THE RESPONDENT FROM SERVICE AS PER THE
PROPOSED DISMISSAL ORDER DATED 13.03.2002 AT
ANNEXURE-D.
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THIS PETITION, COMING ON FOR DICTATING ORDERS, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
ORAL JUDGMENT
This petition is filed by the petitioner-Management
seeking to quash the impugned order dated 23.05.2018
passed in Serial Application No.8/2022 (I.D.No.28/2001),
by the Industrial Tribunal, Bengaluru (for short, “the
Tribunal”) vide Annexure-Q, and consequently, to grant
permission to dismiss the respondent from service as per
the proposed dismissal order dated 13.03.2002 vide
Annexure-D.
2. Brief facts of the case are as under:
Petitioner is a public limited company. The
respondent was working as operator whose last drawn
salary was about Rs.5,724/- per month. Petitioner submits
that the settlement was signed on 30.08.1995 under
Section 18(1) of the Industrial Disputes Act, 1947 (for
short, ‘ID Act‘), and nearly 250 workmen have signed the
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settlement. Few of the workmen did not sign the
settlement dated 30.08.1995 however, they were
extended the benefit of settlement. The respondent is one
such workman who has signed the settlement and enjoyed
the benefit of settlement.
3. It is the case of the petitioner that the
respondent along with few other workmen instigated and
brought out an illegal strike from 16.07.1998, contrary to
Clause-16 of the terms of the Settlement Agreement dated
30.08.1995. The illegal strike continued till 03.01.1999.
Petitioner-Management received a complaint on
16.07.1998 from Sri Uma Mahesh Naidu/AW.2 that the
respondent and other workmen had gathered in front of
the factory gate and were obstructing the movement of
men and material of the factory.
4. In view of the same, the petitioner got issued
notices dated 16.07.1998 to 104 workmen including the
respondent. Despite notice, the respondent did not report
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for duty, continued illegal strike. Again, a letter was sent
on 27.07.1998 asking the respondent and others to report
for duty. However, many of the workers reported for duty,
but the respondent did not. On 29.07.1998, the
respondent formed a boisterous group along with others to
prevent the workmen from going to work, further
prevented the workers and other staff who are not
interested in joining strike from continuing their work.
Hence, in this regard, charge sheet-cum-notice of inquiry
dated 29.09.1998 was issued to the respondent. In this
connection, a meeting was conducted in the chambers of
Hon’ble Deputy Chief Minister on 01.01.1999 and after
prolonged discussion, workmen decided to call off the
strike from 04.01.1999, and enquiry was held by the
Enquiry Officer, Sri H.S. Prasad, and the respondent was
represented by one Sri K. Chandrashekaran. After the
enquiry, a report was submitted against the respondent,
finding him guilty of committing various acts of misconduct
enumerated in the charge sheet. A second show cause
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notice was issued and after consideration of the reply, the
petitioner passed dismissal order dated 13.03.2002 vide
Annexure-D.
5. The industrial dispute was pending before the
Tribunal in I.D.No.28/2001 pertaining to strike and some
of the misconduct committed by the respondent connected
to the dispute regarding illegal strike. The respondent filed
statement of objection. The domestic enquiry was tried as
preliminary issue, the enquiry was set aside and the same
being challenged in W.P.No.27355/2005, this Court
dismissed the writ petition upholding the order of the
Labour Court in setting aside the enquiry.
6. Thereafter, the evidence was recorded. The
respondent also adduced his evidence. After hearing the
parties, the Tribunal vide its order dated 23.05.2018,
rejected the application refusing to grant permission to
dismiss the respondent. Aggrieved by this order dated
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23.05.2018, the present writ petition is filed by the
Management.
7. It is the vehement contention of Sri S.N.
Murthy, learned Senior Counsel appearing along with
Sri Somashekhar, learned counsel for the petitioner, that
the Tribunal failed to take note of the fact that there is
limited scope of interference in an application filed under
Section 33(1)(b) of the I.D.Act seeking permission to
dismiss the respondent as per the proposed order of
dismissal. It is due to the serious acts of misconduct by
the respondent in illegally going on strike for six months
from 16.07.1998 to 01.01.1999, the entire industry of the
petitioner was paralyzed, resulting in colossal losses. The
Tribunal has not appreciated the facts and law on the point
which has premised its order in the guise of appreciating a
criminal trial. Therefore, it is vehemently contended that
the points framed by the Tribunal were not correct and it
fell into an error in answering them. The Tribunal ought to
have considered as to whether the Management had
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established a prima facie case to grant permission to
dismiss the respondent as per the proposed dismissal
order and whether the dismissal order amounts to
victimization, which has not been done. Therefore, the
impugned order of the Tribunal is not justified and is liable
to be set aside.
8. It is further contended by the learned Senior
Counsel that the Tribunal committed an error apparent on
the face of the record, disbelieving the deposition of AWs.4
to 6 on the ground that they are all employees and based
on the partisan witnesses, it is quite natural they depose
on behalf of the Management. The Tribunal has committed
an error in discrediting the evidence of the witnesses in
favour of the Management. He further contends that the
Management cannot examine any other witnesses who are
not parties or eyewitnesses to the incident, as it would
only be the employees within the industry who can be
relied upon as witnesses, none other than the workers.
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9. It is further contended by the learned Senior
Counsel that the observations of the Tribunal that the
settlement dated 30.08.1995 is not a valid settlement and
that the strike cannot be termed as illegal are contrary to
the provisions of Section 18(1) read with Section 2(p) of
the I.D.Act. He further contends that nobody disputed the
settlement and there was no pleading to that effect. He
further contends that once workers have agreed to issue
14 days’ notice before going on strike, it is their duty to do
so, and any strike without such notice is contrary to law
and is, therefore, illegal.
10. It is further contended by the learned Senior
Counsel that the observations made by the Tribunal at
paragraph-38 of the impugned order with regard to the
benefit of doubt should go to the workers, are not tenable,
particularly, when the respondent has indulged in serious
acts of misconduct in resorting to illegal strike and
continuing it for more than six months, when all other
workmen reported to duty by giving an undertaking.
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Hence, there is no presumption or benefit of doubt in
favour of the respondent/workman. It is also contended by
the learned Senior Counsel that the issue of victimisation
is totally untenable and baseless, as proof of acts of
misconduct is the antithesis of victimisation, as held by the
Hon’ble Supreme Court in the case of Bharat Iron Works
vs. Bhagubai Balubai Patel [1975(32) FLR 72].
11. It is further contended that the Management
examined five witnesses who are eyewitnesses to the
incident in which the respondent was involved and
continued the illegal strike. Therefore, the conclusion of
the Tribunal on victimisation of the respondent by the
petitioner is misleading and is liable to be set aside.
12. Learned Senior Counsel further contends that
the observations of the Tribunal that transfer of employees
was made with a vengenace to Aurangabad and Arunachal
Pradesh and therefore, workmen were justified in resorting
to illegal strike, is not sustainable being unwarranted and
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unjustified. The petitioner-Management has been
transferring and sending its employees on deputation due
to service exigencies. Therefore, the question of transfer
would not amount to victimization. On these grounds,
learned Senior Counsel seeks to quash the order of the
Tribunal dated 23.05.2018 and consequently, to grant
permission to dismiss the respondent from service vide
dismissal order dated 13.03.2002.
13. Learned Senior Counsel appearing for the
petitioner relies upon the following judgments in support
of his case:
i. Delhi Cloth General Mills Co., vs. Ganesh Dutt
[1972(24) FLR 147 (SC);
ii. Bharat Iron Works vs. Bhagubhai Patel and
others [1976(32) FLR 72 (SC)];
iii. Lakshmiratan Cotton Mills Co. Ltd., vs. Its
Workmen [1975(2) SCC 761];
iv. John D’ Souza vs. Karnataka State Road
Transport Corporation [2019(18) SCC 47];
v. Karnataka State Road Transport Corporation vs.
Raju M., [(2020)III LLJ 187 (DB-Kar.];
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vi. B.C.Chaturvedi vs. Union of India (UOI) and
Others [1995(6) SCC 749];
vii. Elastrex Ploymers Pvt., Ltd., vs. Janardhana
[2012(2) LLJ 813];
viii. Management of Krishnakali Tea Estate vs. Akhil
Bharatiya Chah Mazdoor Sangha and others
[2004(8) SCC 200];
ix. Workmen and Others vs. Bharat Fritz Werner (P)
Ltd., and Others, [1990(3) SCC 565];
x. Caltex (India) Ltd., vs. Their Workmen [AIR 1960
SC 1262];
xi. Metropolitan Transport Corporation vs.
V.Venkatesan [2009(9) SCC 601];
xii. The State of Uttar Pradesh and Others vs. Rajit
Singh [AIR 2022 SC 1551];
xiii. State of U.P. vs. Bahadur Singh and Others
[1983(3) SCC 73];
xiv. Union of India (UOI) and Others vs. N.Murugesan
and Others [2022(2) SCC 25];
xv. State of Rajasthan vs. Kalki and Others [1981(2)
SCC 752];
xvi. Raju and Others vs. State of Tamil Nadu
[2012(12) SCC 701];
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xvii. Ganapathi and Others vs. The State of Tamil
Nadu and Others [2018(5) SCC 549].
14. Per contra, Smt.Maitreyi Krishnan, learned
counsel appearing on behalf of Sri K.S.Subramanya,
learned counsel for the respondent-workmen vehemently
contends that the entire case of the Management is based
on the Settlement Agreement dated 30.08.1995 arrived at
between the workmen and the Management before the
formation of the Union. She contends that its authenticity
is doubtful and that the settlement was not entered into in
a normal manner, but the workmen were individually
asked to sign without knowing its contents. She also
submitted that a copy of the settlement was not given to
the workmen. Therefore, reliance on the settlement is not
proper and it is rightly held so by the Tribunal. It is also
contended by the learned counsel for the respondent that
14 days’ notice as contemplated in the alleged agreement
is not sustainable, as she contends that the alleged strike
was only for a period of two hours merely to attend the
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inaugural programme of the Union in front of the factory
participating in the Union’s programme of action of
Upavasa Satyagraha (hunger strike) against the
Management’s vindictive transfers of five leaders of the
Union to far-away places and suspension of ten of active
members on false allegations. The Management was bent
upon victimising the workmen as they formed a Union and
did not agree to give up their cause. She further contends
that the action of the Management in this regard is illegal
and not justified. It is further contended that the
workmen have right to resist any illegal actions and
programmes of the Management by forming a trade union,
and any orders contrary passed to resist formation of a
trade union or lawful agitation of protest cannot be termed
as strike and an extreme shocking punishment cannot be
imposed which is disproportionate to the alleged acts of
misconduct. She contends that the Tribunal is justified in
passing the order relying upon various judgments of the
Hon’ble Apex Court, whereby the Management sought
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permission to dismiss the workmen. Hence, she contends
that there is no illegality or perversity in the order passed
by the Tribunal. It is further contended by the learned
counsel that the Settlement Agreement entered into
between the petitioner-Management and the employees is
one-sided, as there was no collective bargaining and there
being no Union of its workmen until its formation in June
1998. The settlement relied upon by the Management was
arrived at in the year 1995 with individual workers before
the formation of the Union in 1998.
15. Learned counsel for the respondent further
contends that the Management has not implemented the
settlement and has resorted to victimisation and unfair
labour practices. They have also not recognised the Union,
which was a party to the Minutes of the understanding
reached between the petitioner-Management and the
Union before the Deputy Chief Minister on 01.01.1999
regarding payment of strike wages and other issues.
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Learned counsel further contends that the domestic
enquiry held came to be set aside and on challenge by the
Management, the Writ Petition came to be rejected.
Therefore, the Tribunal has rightly concluded to reject the
application of the petitioner-Management seeking
permission for dismissal. The petitioner-Management has
paid a mere subsistence allowance since the respondent
was kept under suspension and the same was only for a
short period of 20 months, which is liable to be paid by the
Management. The legitimate claims and dues of the
respondent have been denied by the Management.
Learned counsel further contends that there is no much
material for consideration in favour of the Management, as
all the materials placed have been negatived by the
Tribunal by appreciating the evidence of the witnesses of
the management.
16. It is further contended that the workmen are
not at all responsible for the prolonged strike, as it is the
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Management which is solely responsible for taking
unwarranted decisions to keep the workers out of their
participation in two hours gate meeting during working
hours which was called by the Union for inauguration
programme of Upavasa Satyagraha in protest against five
leading functionaries of the Union and ten active members
of the Union. Therefore, it is the Management itself that is
to be blamed for its actions.
17. It is also contended that the Tribunal is right in
holding that the action of the Management in seeking
undertakings amounts to unfair labour practice based on
Point No.8 of the 5th Schedule, as the strike by the
workmen is held to be a legal strike. It is further
contended that a strike for two hours and absence cannot
be considered a serious act of misconduct by any stretch
of imagination. Therefore, the impugned order passed by
the Tribunal holding that the strike is legal and justified,
and the petitioner-Management making efforts to term it
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as untenable and illegal, is unsustainable and deserves to
be rejected outright.
18. It is also contended that the respondent-
workman has not been paid Rs.1,65,368/- and he has
undergone mental and financial difficulties so also his
family members. On these grounds, she seeks to dismiss
the petition and sustain the impugned order passed by the
Tribunal.
19. Learned counsel for the respondent further
contends that had the undertaking was sought by the
Management from the first-shift workers, the respondent
came in the second shift. Hence, there was no question of
the respondent having participated in the strike, as
according to the Management, the strike commenced on
16.07.1998 between 8:15 a.m., and 10:15 a.m., whereas
the respondent came for duty in the second shift. She
further contends that having dropped enquiry for 14
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workmen, it is only the respondent who is victimised.
Therefore, it is clearly apparent on the face of the record
and from the material placed that the respondent has
been clearly separated and victimised.
20. Learned counsel for the respondent relies upon
the following judgments in support of her case:
i. Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd. Vs.
Ram Gopal Sharma and Others [(2002)2 SCC
244];
ii. Mysore Steel Works Private Limited vs. Jitendra
Chandra Kar and Ors., [(1971)1 LLJ 543 (SC)];
iii. Lalla Ram vs. D.C.M. Chemical Works Ltd., and
Another, [(1978)3 SCC 1];
iv. John D’ Souza vs. Karnataka State Road
Transport Corporation [(2019)18 SCC 47];
v. Pandian Roadways Corporation Ltd.,
(represented by its Managing Director), Madurai
vs. Presiding Officer, Industrial Tribunal, Madras
and others, [2005(1) LLN 889];
vi. M/s. Chandrana Brothers and Others vs.
K.Venkat Rao and Others, [ILR 1976 KAR 513];
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vii. M.R. Achar vs. Syndicate Bank [ILR 2006 KAR
3380];
viii. Vaman Maruty Gharat and Another vs. M.S.Apte
and Others [1998 LLN 2 375];
ix. Aditya Mills Ltd. Madanganj vs. Ram Dayal in
Special Appeal No.478/1971 decided on 27th July,
1972];
x. Workmen vs. M/s Williamson Magor and Co. Ltd.
and another [(1982)1 SCC 117];
xi. Colour-Chem Ltd., vs. A.L.Alaspurkar and Others,
[(1998)3 SCC 192];
xii. Hind Construction and Engineering Co., Ltd., vs.
Their Workmen [AIR 1965 SC 917];
xiii. Sangram Singh vs. Election Tribunal, Kotah and
another [AIR 1955 SC 425];
xiv. Syed Yakoob vs. K.S.Radhakrishnan and Others
[AIR 1964 SC 477];
xv. Bosch Limited vs. Labour through Karnataka
Rakshak and General Workers Union in Writ
Appeal No.399/2019 dated 19.12.2024.
21. I have heard learned senior counsel for the
petitioner-Management and learned counsel for the
respondent-Workman.
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22. It is not in dispute that the petitioner-
Management approached the Tribunal under Section
33(1)(b) of the ID Act seeking permission of proposed
order of dismissal of the respondent workman from
service. It is also not in dispute that industrial dispute was
already pending with regard to charter of payment before
the Tribunal in ID No.28/2001 wherein the respondent-
workman was one of the concerned workmen. In view of
the same, an application came to be filed by the
petitioner-Management as Serial Application No.8/2002
under Section 33(1)(b) of the ID Act seeking permission
for dismissal of the workman and accordingly, led evidence
to establish the misconduct on the part of the workman.
Upon evidence being adduced by the Management, the
workman and by producing necessary materials by
marking them as Exs.A1 to A28 and Exs.O1 to O22 and
after hearing the arguments, the learned Tribunal
dismissed the application of the Management filed under
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Section 33(1)(b) of the ID Act, due to which the petitioner
is before this Court.
23. The point that arises for consideration before
this Court is whether the petitioner-Management has made
out any substantial case and good ground to set aside the
impugned order passed by the Tribunal, consequent to
grant of permission for dismissal of the workman vide
order dated 13.03.2002.
24. Apparently, it is seen that the settlement dated
30.08.1995 was accepted by 216 workmen out of 245
workmen. Though few of the workmen did not sign the
settlement, the benefit was extended to the said workmen
as well. It is alleged by the Management that the
respondent workman participated in illegal strike on
16.07.1998 and 29.07.1998 conducted picketing/
demonstrating opposite the Management/factory and
prevented the workmen and officers from work. Therefore,
the allegations are made against the workmen for having
violated the provisions of the standing order. The
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Management has examined 06 witnesses as AW1 to AW6.
The evidence of these witnesses have been taken into
consideration by the Labour Court and the evidence of
some of the witnesses have been culled out in the
impugned judgment of the Tribunal. After analyzing the
evidence on record, the Tribunal has come to the
conclusion that certain witnesses examined on behalf of
the Management had not personally seen the respondent-
workman participating in the strike. The Tribunal has,
therefore, held that the evidence tendered by the
Management witnesses is biased and partisan in nature.
What requires to be seen is whether the respondent-
workman was involved in the strike warranting dismissal
from his services. The Tribunal has come to a conclusion
that to protest the transfer of workmen, who are the office
bearers of the union, had scheduled ‘Relay Hunger Strike’
and its opening ceremony was scheduled on 16.07.1998 at
morning 8:00 a.m. In view of the said ‘Relay Hunger
Strike’, the workman could not attend the work for first
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half of the first shift and general shift. Apparently, there is
workers union namely ‘Fouress Engineering Karmika
Sangha’. Though petitioner contended that there was a
settlement between the workman and the Management,
the same is disputed by the workman.
25. It is also seen that in the said settlement
between the workman and the Management of Fouress
Engineering India Limited, all the workmen had not signed
the settlement agreement. The Tribunal has come to a
conclusion that there was no participation of “Union” on
behalf of the workmen, for the reason that name of the
“Union” is not stated, but only it is stated just “workmen”.
It is also seen that the Management had transferred some
of the workmen to a far off places like Aurangabad and
Arunachal Pradesh. Therefore, when the workmen wanted
to form union, the same was resisted by the Management
which would amount to unfair labour practice, as forming
of a union is a right vested in the Act.
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26. Having considered all these aspects and by
relying upon several judgments of the Hon’ble Apex Court,
including the case of Colour Chem Ltd., (supra), the
Tribunal did not find any good or cogent reason to accept
the argument of the petitioner-Management to consider its
case for dismissal of the workman from duties.
27. The Hon’ble Apex Court in the case of Jaipur
Zilla Sahakar Bhoomi Vikas Bank Ltd., case (supra), at
paragraph No.13 held as under:
“13. The proviso to Section 33(2)(b), as can be seen from
its very unambiguous and clear language, is mandatory.
This apart, from the object of Section 33 and in the context of
the proviso to Section 33(2)(b), it is obvious that the
conditions contained in the said proviso are to be essentially
complied with. Further any employer who contravenes the
provisions of Section 33 invites a punishment under S.31(1)
with imprisonment for a term which may extend to six
months or with fine which may extend to Rs.1000/- or with
both. This penal provision is again a pointer of the
mandatory nature of the proviso to comply with the
conditions stated therein. To put it in other way, the said
conditions being mandatory, are to be satisfied if an order of
discharge or dismissal passed under Section 33(2)(b) is to be
operative. If an employer desires to take benefit of the said
provision for passing an order of discharge or dismissal of an
employee, he has also to take the burden of discharging the
statutory obligation placed on him in the said proviso.
Taking a contrary view that an order of discharge or
dismissal passed by an employer in contravention of the
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mandatory conditions contained in the proviso does not
render such an order inoperative or void, defeats the very
purpose of the proviso and it becomes meaningless. It is
well-settled rule of interpretation that no part of statute
shall be construed as unnecessary or superfluous. The
proviso cannot be diluted or disobeyed by an employer. He
cannot disobey the mandatory provision and then say that
the order of discharge or dismissal made in contravention of
Section 33(2)(b) is not void or inoperative. He cannot be
permitted to take advantage of his own wrong. The
interpretation of statute must be such that it should advance
the legislative intent and serve the purpose for which it is
made rather than to frustrate it. The proviso to Section
33(2)(b) affords protection to a workman to safeguard his
interest and it is a shield against victimization and unfair
labour practice by the employer during the pendency of
industrial dispute when the relationship between them are
already strained. An employer cannot be permitted to use
the provision of Section 33(2)(b) to ease out a workman
without complying with the conditions contained in the said
proviso for any alleged misconduct said to be unconnected
with the already pending industrial dispute. The protection
afforded to a workman under the said provision cannot be
taken away. If it is to be held that an order of discharge or
dismissal passed by the employer without complying with
the requirements of the said proviso is not void or
inoperative, the employer may with impunity discharge or
dismiss a workman.
28. The Hon’ble Apex Court in the case of Mysore
Steel Works (supra), at paragraph No.10 held as under:
“10. The question as to the scope of the power of an
Industrial Tribunal in an enquiry under Section 33(2) of the
Industrial Disputes Act has by now been considered by this
Court in a number of decisions and is no longer in dispute. If
the Tribunal comes to the conclusion that the domestic
enquiry was not defective, that is, it was not in violation of
the principles of natural justice, It has only to see if there
was a prima facie case for dismissal, and whether the
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employer had come to a bona fide conclusion that the
employee was guilty of misconduct. In other words, there
was no unfair labour practice and no victimisation. It will
then grant Its approval. If the Tribunal, on the other hand,
finds that the enquiry is defective for any reason, it would
have to consider for itself on the evidence adduced before it
whether the dismissal was justified. If it comes to the
conclusion on its own appraisal of evidence adduced before
it that the dismissal was justified it would give its approval
to the order of dismissal made by the employer in a
domestic enquiry. (See P.H. Kalyani v. Air France) where,
therefore the domestic enquiry is conducted in violation of
the principles of natural justice evidence must be adduced
before the Tribunal by the employer to obtain its approval.
Such evidence must be adduced in the manner evidence is
normally adduced before the Tribunal, that is, witnesses
must be examined and not by merely tendering the
evidence laid before the domestic enquiry, unless the parties
agree and the tribunal given its assent to such a procedure.
(See K.N. Barmab v. Management of Badla Beta Tea
Estate). It is clear, therefore, that the jurisdiction of a
tribunal under Section 33(2) is of a limited character. Where
the domestic enquiry is not defective by reason of violation
of principles of natural justice or its findings being perverse
or by reason of any unfair labour practice, the tribunal has
only to be satisfied that there is a prima facie case for
dismissal. The tribunal in such cases does not sit as an
appellate Court and come to its own finding of fact.”
29. The Hon’ble Apex Court in the case of Lalla
Ram (supra) at paragraph No.12 held as under:
12. The position that emerges from the above
quoted decisions of this Court may be stated thus
: In proceedings under Section 33(2)(B) of the Act,
the jurisdiction of the industrial Tribunal is
confined to the enquiry as to (i) whether a proper
domestic enquiry in accordance with the relevant
rules/Standing Orders and principles of natural
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justice has been held; (ii) whether a prima facie
case for dismissal based on legal evidence
adduced before the domestic tribunal is made out;
(iii) whether the employer had come to a bona
fide conclusion that the employee was guilty and
the dismissal did not amount to unfair labour
practice and was not intended to victimise the
employee regard being had to the position settled
by the decisions of this Court in Bengal Bhatdee Coal
Co, v. Ram Probesh Singh, Titaghur Paper Mills Co. Ltd.
v. Ram Naresh Kumar, Hind Construction & Engineering
Co. Ltd. v. Their Workmen, Workmen of Messrs Firestone Tyre
& Rubber Company of India (P) Ltd. v. Management & Ors,
and Eastern Electric and Trading Co. v. Baldev Lal that
though generally speaking the award of
punishment for misconduct under the Standing
Orders is a matter for the management to decide
and the Tribunal is not required to consider the
propriety or adequacy of the punishment or
whether it is excessive or too severe yet an
inference of mala fides may in certain cases be
drawn from the imposition of unduly harsh,
severe, unconscionable or shockingly
disproportionate punishment;
(iv) whether the employer has paid or offered to
pay wages for one month to the employee and (v)
whether the employer has simultaneously or
within such reasonably short time as to form part
of the game transaction applied to the authority
before which the main industrial dispute is
pending for approval of the action taken by him. If
these conditions are satisfied, the Industrial
Tribunal would grant the approval which would
relate back to the date from which the employer
had ordered the dismissal. If however, the
domestic enquiry suffers from any defect or
infirmity, the labour authority will have to find out
on its own assessment of the evidence adduced
before it whether there was justification for
dismissal and if it so finds it will grant approval of
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the order of dismissal which would also relate
back to the date when the order was passed
provided the employer had paid or offered to pay
wages for one month to the employee and the
employer had within the time indicated above
applied to the authority before which the main
industrial dispute is pending for approval of the
action taken by him.”
30. The Hon’ble Apex Court in the case of John
D’Souza (supra), at paragraph Nos.32 and 33 held as
under:
“32. The Three-Judge bench decisions of this
Court in Punjab National Bank and Mysore Steel Works (P)
Ltd., as well as the Division Bench judgment in
Lalla Ram were unfortunately not cited before this
Court in Cholan Roadways Ltd. There is yet no
conflict of opinion as in Cholan Roadways Ltd. also
this Court reiterated the past consistent view that
while exercising jurisdiction under Section 33(2)(b) of
the Act, the Industrial Tribunal is required to see
only whether a prima facie case has been made
out as regard to the requirement of domestic
enquiry. Cholan Roadways nonetheless deals with
only 1st phase of the jurisdiction exercisable
under Section 33(2)(b) and it falls short to elucidate
as to whether, in the event of a defective
domestic enquiry, the Labour Court/Tribunal can
also the parties to adduce evidence. The second
phase of Jurisdiction exercisable under Section
33(2)(b) was not debated in Cholan Roadways
apparently for the reason that on facts this Court
was satisfied that the delinquent workman was
guilty of the misconduct attributed and proved
against him in the domestic enquiry. On the other
hand, Mysore Steel Works (P) Ltd. and Lalla Ram
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have gone a step ahead to hold that the Tribunal
can permit the parties to adduce evidence if it
finds that the domestic enquiry suffers from any
defect or was violative of the principles of natural
justice or was marred by unfair labour practice, it
may then independently examine the evidence led
before it to embark upon the question whether or
not the punitive action deserves to be accorded
approval.
33. It, thus, stands out that though the Labour
Court or the Tribunal while exercising their
jurisdiction under Section 33(2)(b) are
empowered to permit the parties to lead evidence
in respect of the legality and propriety of the
domestic enquiry held into the misconduct of a
workman, such evidence would be taken into
consideration by the Labour Court or the Tribunal
only if it is found that the domestic enquiry
conducted by the Management on the scale that
the standard of proof required therein can be
“preponderance of probability” and not a “proof
beyond all reasonable doubts” suffers from
inherent defects or is violative of principles of
natural justice. In other words, the Labour Court
or the Tribunal cannot without first examining the
material led in the domestic enquiry jump to a
conclusion and mechanically permit the parties to
lead evidence as if it is an essential procedural
part of the enquiry to be held under Section
33(2)(b) of the Act.”
31. The Hon’ble Apex Court in the case of M/s
Williamson Magor and Co.Ltd, (supra) at Paragraph
No.12 held as under:
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“12. “Mr Pai, learned counsel appearing for the management,
made two submissions before us. Firstly, he submitted that
unlike in public sector undertakings, promotion is not a
condition of service in a private company. We are unable to
accept the submission of Mr Pai in toto. If there is no scope of
any promotion or upgradation or increase in salary in a private
undertaking, the submission of the learned counsel may be
justified but if there are grades and scopes of
upgradation/promotion and there are different scales of pay for
different grades in a private undertaking, and, in fact,
promotion is given or upgradation is made, there should be no
arbitrary or unjust and unreasonable upgradation or promotion
of persons superseding the claims of persons who may be
equally or even more, suitable. The second submission of Mr Pai
is that although there were no norms, the promotions of the
persons in question were not arbitrary and that the findings of
the Tribunal in this regard were incorrect. He led us through the
material evidence of the witnesses examined. We are unable to
agree with learned counsel and do not find any reason to differ
from the findings of the learned Tribunal that the promotions of
the 15 persons were arbitrary and unjusti-fied. Mr Pai also
submitted that unless victimisation was proved by the Union,
the management’s action should not be disturbed. The word
‘victimisation’ has not been defined in the statute. The term was
considered by this Court in the case of Bharat Bank Ltd. v.
Employees. This Court observed, “It (victimisation) is an
ordinary English word which means that a certain person has
become a victim, in other words, that he has been unjustly
dealt with”. A submission was made on behalf of the
management in that case that ‘victimisation’ had acquired a
special meaning in industrial disputes and connoted a person
who became the victim of the employer’s wrath by reason of his
trade union activities and that the word could not relate to a
person who was merely unjustly dismissed. This submission,
however, was not considered by the Court. When, however, the
word ‘victimisation’ can be interpreted in two different ways, the
interpretation which is in favour of the labour should be
accepted as they are the poorer section of the people compared
to the management.”
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32. The Hon’ble Apex Court in the case of Colour
Chem Limited (supra), at paragraph No.13 held as
under:
“13. The term “victimisation” is not defined by the present
Act. Sub- 9 section (18) of Section 3 of the Act which is the
definition section lays down that:
“Words and expressions used in this Act and
not defined therein, but defined in the
Bombay Act, shall, in relation to any industry
to which the provisions of the Bombay Act
apply, have the meanings assigned to them
by the Bombay Act; and in any other case,
shall have the meanings assigned to h them
by the Central ActBombay Act is the Bombay Industrial Relations Act,
1946 and the Central Act is the Industrial Disputes
Act, 1947 as laid down by definition Sections 3(1)
and 3(2) of the Act. The term “victimisation” is
defined neither by the Central Act nor by the Bombay
Act. Therefore, the term “victimisation” has to be
given general dictionary meaning. In Concise Oxford
Dictionary, 7th Edn., the term “victimisation” is
defined at p. 1197 as follows:
“make a victim; cheat; make suffer by
dismissal or other exceptional treatments.”
Thus if a person is made to suffer by some
exceptional treatment it would amount to
victimisation. The term “victimisation” is of
comprehensive import. It may be victimisation in fact
or in law. Factual victimisation may consist of diverse
acts of employers who are out to drive out and
punish an employee for no real reason and for
extraneous reasons. As for example a militant trade
union leader who is a thorn in the side of the
management may cbe discharged or dismissed for
that very reason camouflaged by another ostensibly
different reason. Such instances amount to unfair
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labour practices on account of factual victimisation.
Once that happens clause (a) of Item 1 of Schedule
IV of the Act would get attracted, even apart from
the very same act being covered by unfair labour
practices envisaged by clauses (b), (c), (d) and (e) of
the very same Item 1 of Schedule IV. But it cannot
be said that d clause (a) of Item I which deals with
victimisation covers only factual victimisation. There
can be in addition legal victimisation and it is this
type of victimisation which is contemplated by the
decision of this Court in Hind Construction. It must,
therefore, be held that if the punishment of dismissal
or discharge is found shockingly disproportionate by
the Court regard being had to the particular major
misconduct and the past service record of the
delinquent or is such as no reasonable employer
could ever impose in like circumstances, it would be
unfair labour practice by itself being an instance of
victimisation in law or legal victimisation independent
of factual victimisation, if any. Such an unfair labour
practice is covered by the present Act by enactment
of clause (a) of Item 1 of Schedule IV of the Act as it
would be an act of victimisation in law as clearly
ruled by this Court in the aforesaid decision. On the
same lines is a latter decision of this Court in the
case of Bharat Iron Works v. Bhagubhai Balubhai
Patel wherein a Bench of three learned Judges
speaking through Goswami, J. laid down the
parameters of the term “victimisation” as understood
in labour laws and as contemplated by industrial
jurisprudence. It has been observed that 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, such action will be rid of the taint of
victimisation. The aforesaid observations obviously
refer to factual victimisation. But then follows further
elucidation of the term “victimisation” to the following
effect: (SCR Headnote
“Victimisation may partake of various types, as for
example, pressurising an employee to leave the
union or union activities, treating an employee in a
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discriminatory manner or inflicting a grossly
monstrous punishment which no rational person
would impose upon an employee arid the like.”
The aforesaid observations in this decision fall in line
with the observations in the earlier decision of this
Court in Hind Construction. Consequently it must be
held that when looking to the nature of the charge of
even major misconduct which is found proved if the
punishment of dismissal or discharge as imposed is
found to be grossly disproportionate in the light of
the nature of the misconduct or the past record of
the employee concerned b involved in the misconduct
or is such which no reasonable employer would ever
impose in like circumstances, inflicting of such
punishment itself could be treated as legal
victimisation. On the facts of the present case there
is a clear finding reached by the Labour Court and as
confirmed by the Industrial Court that the charges
levelled against the respondent-delinquents which
were held proved even though reflecting major
misconducts, were not such c in the light of their past
service record as would merit imposition of
punishment of dismissal. This factual finding would
obviously attract the conclusion that by imposing
such punishment the appellant-management had
victimised the respondent-delinquents. Imposition of
such a shockingly disproportionate punishment by
itself, therefore, has to be treated as legal
victimisation apart from not being factual
victimisation as on the latter d aspect the Labour
Court has held against the respondent-workmen and
that finding has also remained well sustained on
record. Thus it must be held that the management
even though not guilty of factual victimisation was
guilty of legal victimisation in the light of the proved
facts which squarely attracted the ratio of the
decisions of this Court in Hind Construction and
Bharat Iron Works. It is easy to visualise that no
reasonable management could have punished a
delinquent workman who in the late hours of the
night shift by about 3.30 a.m. had gone to sleep
keeping the machine in a working condition especially
in the absence of any gross misconduct reflected by
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the past service record, with the extreme penalty of
dismissal. It is also interesting to note that this was a
peculiar case in which the Plant-in-Charge found
during his surprise visit at 3.30 a.m. in the early
hours of the dawn the entire work force of 10
mazdoors and 2 operators like the respondents and
the supervisor all asleep. It is also pertinent to note
that so far as the 10 mazdoors were concerned they
were let off for this very misconduct by a mere
warning while the respondents were dismissed from
service. It is, of course, true that the respondents
were assigned more responsible duty as compared to
the mazdoors, but in the background of the
surrounding circumstances and especially in the light
of their past service record there is 9 no escape from
the conclusion that the punishment of dismissal
imposed on them for such misconduct was grossly
and shockingly disproportionate, as rightly held by
the Labour Court and as confirmed by the revisional
court and the High Court. By imposing such grossly
disproportionate punishment on the respondents the
appellant-management had tried to kill a fly with a
sledgehammer. Consequently it must be held that the
appellant was guilty of h unfair labour practice. Such
an act was squarely covered by clause (a) of Item 1
of Schedule IV of the Act being legal victimisation, if
not factual victimisation. The ultimate finding of the
Labour Court about maintainability of the complaint
can be supported on this ground. The second point is
answered in the affirmative against the appellant and
in favour of the respondent-workmen.”
33. The Hon’ble Apex Court in the case of Hind
Construction and Engineering Co.Ltd., (supra), at
paragraph No.5 held as under:
“5. The next question is whether the Tribunal
was justified in interfering with the punishment of
dismissal after it had come to the conclusion that
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the workmen had gone on a strike even though
the strike was not illegal. Reference is made to a
number of cases in which the principles for the
guidance of the Tribunals in such matters have
been laid down by this Court. It is now settled law
that the Tribunal is not to examine the finding or
the quantum of punishment because the whole of
the dispute is not really open before the Tribunal
as it is ordinarily before a court of appeal. The
Tribunal’s powers have been stated by this Court
in a large number of cases and it has been ruled
that the Tribunal can only interfere if the conduct
of the employer shows lack of bona fides or
victimization of employee or employees or unfair
labour practice. The Tribunal may in a strong case
interfere with a basic error on a point of fact or a
perverse finding, but it cannot substitute its own
appraisal of the evidence for that of the officer
conducting the domestic enquiry though it may
interfere where the principles of natural justice or
fair play have not been followed or where the
enquiry is so perverted in its procedure as to
amount to no enquiry at all. In respect of
punishment it has been ruled that the award of
punishment for misconduct under the Standing
Orders, if any, is a matter for the management to
decide and if there is any justification for the
punishment imposed the Tribunal should’ not
interfere. The Tribunal is not required to consider
the propriety or adequacy of the punishment or
whether it is excessive or too severe. But where
the punishment is shockingly disproportionate,
regard being had to the particular conduct and the
past record or is such, as no reasonable employer
would ever impose in like circumstances, the
Tribunal may treat the imposition of such
punishment as itself showing victimization or
unfair labour practice. These principles can be
gathered from the following cases :-
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Bengal Bhatdee Coal Co. Ltd. v. Ram Probesh Singh,
Buckingham & Carnatic Co. Ltd. v. Workers; Titaghar Paper
Mills Co. Ltd. v. Ram Naresh Kumar, Doom Dooma Tea Co.
Ltd. v. Assam Chah Karamchari Sangh, Punjab National
Bank Ltd. v. Workmen; Chartered Bank Bombay v.
Chartered Bank Employees Union. In the present case the
dispute was whether the punishment amounted to
victimization or unfair labour practice. Mr. Sen Gupta
referred to various parts of the record of the enquiry to
show that the conduct of the workmen was regarded as
collective, that it was described as a strike, that it was
considered to be the result of a conspiracy and that there
was a demand for over time. Mr. Sen Gupta contended that,
in the circumstances, this must be regarded as a case of
victimization because only the permanent workers were
subjected to this treatment. Mr. Sen Gupta hinted that there
was an ulterior motive in dismissing the permanent workers
and getting the work done by temporary hands so that the
Union may break down and even the re-employment of
three workmen, who were probably indispensable to the
employer, was with the same motive. On the other hand,
Mr. Setalvad argued that there was nothing on the record to
show that this was a case of victimization. These persons
were found guilty at the enquiry and also by the Tribunal
and it was merely a question of what Punishment should be
imposed and that was a matter entirely within the,
competence of the employer.
34. The Hon’ble Apex Court in the case of Sangram
Singh (supra), at paragraph No.14 held as under:
14. That, however, is not to say that the
jurisdiction will be exercised whenever there is an
error of law. The High Courts do not, and should
not, act as Courts of appeal under Article 226.
Their powers are purely discretionary and though
no limits can be placed upon that discretion it
must be exercised along recognised lines and not
arbitrarily; and one of the limitations imposed by
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the Courts on, themselves is that they will not
exercise jurisdiction in this class of case unless
substantial injustice has ensued, or is likely to
ensue. They will not allow themselves to be
turned into Courts of appeal or revision to set
right mere errors of law which do not occasion
injustice in a broad and general sense, for, though
no legislature can impose limitations on these
constitutional powers it is a sound exercise of
discretion to bear in mind the policy of the
legislature to have disputes about these special
rights decided as special as may be. Therefore,
writ petitions should not be lightly entertained in
this class of case.”
35. The Hon’ble Apex Court in the case of Bosch
Limited (supra), at paragraph Nos.30 and 31 held as
under:
30. Though the learned senior counsel appearing for the
appellant attempted to draw our attention to the details of
the evidence led before the Labour Court, we are of the
opinion that re-appreciation of the evidence led before the
Labour Court would be impermissible by the learned Single
Judge exercising jurisdiction under Articles 226 and 227 of
the Constitution of India and indeed by us in an intra-Court
appeal in these proceedings. The contention that the Union
which espoused the cause of the workmen was not the
recognised Union of the establishment would also be of no
avail in a case, where the specific contention is that the
contract relied on by the Management is sham. In such
circumstances, it is clear that the workmen can themselves
raise the dispute. The contentions, if any, taken by the
workmen in an earlier suit would also not make any
difference to the situation since the Labour Court which is
the adjudicating authority empowered to decide an industrial
dispute considers and decides the dispute raised before it on
the basis of the evidence led by both sides.
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31. It is trite law that an award of the Labour Court,
which is rendered after considering the evidence placed on
record is not liable to be lightly interfered with by the
Constitutional Court exercising the power of judicial review.
The Apex Court in the case of State of Andhra Pradesh and
Others v. S. Sree Rama Rao reported in
MANU/SC/0222/1963: 1963: INSC: 97, has held that, “It is
not the function of the High Court in a petition for a writ
under Article 226 to review the evidence and to arrive at an
independent finding on the evidence.” It is only when the
findings arrived at by the Labour Court are patently illegal,
totally unreasonable or perverse that the Constitutional
Court would be justified in interfering with such findings. It
is also clear that what is being exercised is not any power of
appeal since no such appeal is contemplated under the
provisions of the statute.
36. Having considered the arguments of learned
counsels for both the parties and having gone through the
impugned award, I do not find any good ground or cogent
reason calling for interference in the impugned order
passed by the learned Tribunal at the hands of this Court,
as this Court is not sitting in appeal jurisdiction. What is to
be seen is only whether the Tribunal has committed any
illegality or perversity and has ignored any of the
materials placed on record, both oral and documentary.
37. In the present case on hand, it appears that
there is victimization of the respondent, which amounts to
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unfair labour practice, so also, the Tribunal has come to a
conclusion that the respondent came for duty in the
second shift and the strike commenced in the first shift
between 08.15 a.m. to 10.15 a.m. Therefore, the question
of respondent participating in illegal strike would not be
sustainable as he came for the second shift. It is also to be
seen that the scope and powers of this Court under
Articles – 226 and 227 of the Constitution of India is
limited and narrow as this Court cannot step into the arm
chair of an appellate court jurisdiction, to review the
evidence once again to arrive at a independent finding on
the basis of evidence. What is required to be seen is
whether the Tribunal has committed any patent illegality
and the order passed is unreasonable or perverse,
warranting interference of this Court. Having adverted to
all these issues, the Tribunal has rightly come to a
conclusion dismissing the application filed by the
Management, which in my opinion does not call for
interference.
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38. In view of the above discussions, I do not find
any such illegality or perversity in the order passed by the
Tribunal.
39. Accordingly, I pass the following:
ORDER
i. Writ petition is dismissed.
Sd/-
(PRADEEP SINGH YERUR)
JUDGENB/VNR
List No.: 19 Sl No.: 2