M/S Fouress Engineering (India) … vs Sri T K Muniswamy on 27 February, 2026

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    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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                  HC-KAR
    
    
    
                   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

    SPONSORED

    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 Act

    Bombay 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)
    JUDGE

    NB/VNR
    List No.: 19 Sl No.: 2



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