1. This is an appeal by special leave against the order of the CentralGovernment Industrial Tribunal, Dhanbad. The brief facts necessary for presentpurposes are these. A dispute was referred by the Central Government under s.10 of the Industrial Disputes Act, No. 14 of 1947, (hereinafter referred to asthe Act) with reference to the thirteen workmen involved in this appeal in thefollowing terms :-
'Whether the dismissal of the following thirteenworkmen of Bhatdee Colliery was justified If not, to what relief are theyentitled and from which date ?'
2. It appears that the thirteen workmen had physically obstructed thesurface trammers working in the colliery on different dates, namely, October,20, October 27, and November 3, 1959. Some of them had also incited the otherworkmen to join in this act of obstructing the loyal and willing trammers sothat they may be prevented from working. This happened during a strike whichwas begun on October 20, 1959 by the Colliery Mazdoor Sangh to which thethirteen workmen in question belonged. In consequence the appellant servedcharge sheets on the thirteen workmen on November 9, 1959 charging that'they physically obstructed the surface trammers on duty at No. 1 and 2Inclines from performing their duties and controlling the movement on the tubsby sitting in-between tramline track and inciting' on various dates, thusviolating regulation 38(1)(b) of the Coal Mines Regulations. They were asked toexplain within 48 hours why disciplinary action should not be taken againstthem under r. 27(19) and r. 27(20) of the Coal Mines Standing Order. Theworkmen submitted their explanations and an inquiry was held by the WelfareOfficer of the appellant. The Welfare Officer found all the thirteen workmenguilty of the charges framed against them and recommended their dismissal. As anotherreference was pending before this very tribunal in November 1959, the appellantmade thirteen applications to the tribunal under s. 33(2)(b) of the Act forapproval of the action taken. Though the workmen submitted their replies inthose proceedings they did not contest them thereafter, and the tribunalapproved of the action taken. Thereafter the present reference was made unders. 10 of the Act.
3. The case put forward by the workmen in the present reference was thatthere was no proper enquiry as the workmen were not given a chance to defendthemselves. It was further submitted that the dismissals were nothing butvictimisation pure and simple for trade union activities.
4. The tribunal apparently held that the inquiry was proper, though it hasnot said so in so many words in its award. It may be added that it could hardlydo otherwise, for it had already approved of the action taken on applicationsmade under s. 33(2)(b) of the Act. If the inquiry had not been proper, thetribunal would not have approved of the dismissals. But the tribunal held thatthis was a case of victimisation. It therefore set aside the order of dismissaland ordered the reinstatement of the thirteen workmen within one month of itsorder becoming operative and ordered that they should be treated as on leavewithout pay during the period of forced unemployment. It did not grant backwages as the workmen had also contributed to their forced unemployment to someextent.
5. In the present appeal, the appellant contends that there was no evidenceto justify the conclusion of the tribunal that the dismissals were an act ofunfair labour practice or victimisation. We are of opinion that this contentionof the appellant must prevail. The tribunal was not unaware of the fact thatwhere a domestic inquiry is held properly, the tribunal does not sit in appealon the findings of the domestic tribunal and it can only interfere with thepunishment inflicted as a result of the domestic inquiry where there is want ofgood faith or basic error or violation of the principles of natural justice, orwhere the findings are perverse or baseless or the case is one of victimisationor unfair labour practice. We have already indicated that the tribunal did notfind that there was any basic error or violation of the principles of naturaljustice in the holding of the inquiry; nor did it find that the findings of theinquiry officer were perverse or baseless. It could hardly do so in the face ofits own approval of the action taken on applications made to it under s. 33(2)(b) of the Act, for if it had found that the inquiry was not roper, itwould not have approved of the action taken against the workmen by theappellant when it was approached under s. 33(2)(b). We must therefore proceedon the assumption that the inquiry was held properly and the inquiry officerwho held the inquiry was justify on the evidence before him in coming to theconclusion which he did, namely, that the charges had been proved.
6. The tribunal however posed a further question as to victimisation in thisway : 'But even if I assume that these men were guilty of the offencecomplained of, let me pause and consider if there is victimisation.' Ifthen proceeded to point out that the workmen concerned had put in ten years serviceor more and their previous record of service was good. They were importantoffice bearers of the union and some of them were also protected workmen. Itthen referred to previous disputes between the appellant and the union of whichthese workmen were members and was of the view that the union and its leaderswere 'eye-sore to the appellant.' The tribunal was, however,conscious that merely because certain workmen were protected workmen they werenot thereby given complete immunity for anything that they might do even,though it might be misconduct meriting dismissal. But it, pointed out that themisconduct complained in this case entailed fine, suspension or dismissal ofthe workmen, and the appellant chose dismissal, which was the extreme penalty.It referred to a decision of the Calcutta High Court in National TobaccoCompany of India Ltd. v. Fourth Industrial Tribunal, where it was held that ina case where the punishment meted out was unconscionable or grossly out ofproportion to the nature of the offence that may itself be a ground for holdingthat the dismissal was an act of victimisation. It seems to have held that thepunishment of dismissal in this case was unconscionable or at any rate grosslyout of proportion to the nature of the offence and therefore came to theconclusion that this was a case of victimisation.
7. Now there is no doubt that though in case of proved misconduct, normallythe imposition of a penalty may be within the discretion of the managementthere may be cases where the punishment of dismissal for the misconduct provedmay be so unconscionable or so grossly out of proportion to the nature of theoffence that the tribunal may be able to draw an inference of victimisationmerely from the punishment inflicted. But we are of opinion that the present isnot such a case and no inference of victimisation can be made merely from thefact that punishment of dismissal was imposed in this case and not either fineor suspension. It is not in dispute that a strike was going on during thosedays when the misconduct was committed. It was the case of the appellant thatthe strike was unsatisfied and illegal and it appears that the Regional LabourCommissioner, Central, Dhanbad, agreed with this view of the appellant. It wasduring such a strike that the misconduct in question took place and themisconduct was that these thirteen workmen physically obstructed other workmenwho were willing to work from doing their work by sitting down between thetramlines. This was in our opinion serious misconduct on the part of thethirteen workmen and if it is found - as it has been found - proved punishmentof dismissal would be perfectly justified. It cannot therefore be said lookingat the nature of the offence that the punishment inflicted in this case wasgrossly out of proportion or was unconscionable, and the tribunal was notjustified in coming to the conclusion that this was a case of victimisationbecause the appellant decided to dismiss these workmen and was not prepared tolet them off with fine or suspension.
8. There is practically no other evidence in support of the finding of thetribunal. It is true that the relations between the appellant and the union towhich these workmen belonged were not happy. It is also proved that there wasanother union in existence in this concern. Perhaps the fact that there weretwo unions would in itself explain why the relations of the appellant with oneof the unions to which these workmen belonged were not happy. But the fact thatthe relations between an employer and the union were not happy and the workmenconcerned were office-bearers or active workers of the union would by itself beno evidence to prove victimisation, for if that were so, it would mean that theoffice-bearers and active workers of a union with which the employer is not ongood terms would have a carte blanche to commit any misconduct and get awaywith it on the ground that relations between the employer and the union werenot happy. We are therefore of opinion that the finding of victimisation in thiscase is based merely on conjectures and surmises. We have already consideredthe main reason given by the tribunal, namely, the nature of the punishment,and have held at cannot be said to be unconscionable or grossly out ofproportion to the nature of the offence.
9. Another reason given by the tribunal in support of the finding ofvictimisation is also patently wrong. The tribunal says that in reports made tothe police certain persons were mentioned as having taken part in themisconduct of October 27, 1959; but in the written statement filed by theappellant two other persons, namely Ratan Gope and Sohan Gope who were notmentioned in the police report, were also mentioned as having taken part in theincident of October 27. The tribunal thereby concluded that Sohan Gope andRatan Gope were falsely implicated in the incident of October 27. Curiously,however, it went on to say that this might be a mistake but added that it meantdismissal of these people and the finding in this respect was not only wrong butperverse. It does appear that by mistake in para. 5 of the appellant's writtenstatement before the tribunal names of Ratan Gope and Sohan Gope are mentionedas having taken part in the incident of October 27. But the charge-sheets whichwere given to them were only about the incident of October 20. The finding ofthe domestic inquiry also was with respect to the incident of October 20. So itseems that there was no justification for the tribunal to hold that the findingwas perverse, because there was no finding that these two persons had takenpart in the incident of October 27. There can be little doubt that there was amistake in the written statement of the appellant for there was no chargeagainst these two people about the incident of October 27 and no finding aboutit by the Welfare Officer. The tribunal therefore was patently wrong in usingthis mistake as evidence of victimisation. We are therefore of opinion thatthere is no evidence worth the name in the present case to support thetribunal's finding as to victimisation and consequent want of good faith. Inthe circumstances the tribunal's award must be set aside.
10. We therefore allow the appeal, set aside the award of the tribunal anduphold the dismissal of the thirteen workmen concerned. In the circumstancesthere will be no order as to costs.
11. Appeal allowed.