B.P. Beri, J.
1. This is a special appeal directed against the judgment of a learned single Judge of this Court dated the 11th October, 1971 whereby he dismissed the appellant's writ petition in limine.
2. The facts leading to this controversy briefly stated are these: M/s. Aditya Mills Ltd., Madanganj had served a charge-sheet on 4 workmen (respondents Nos. 1 to 4) that in the 'B' shift (2 P. M. to 10 P. M) on the 26th May, 1970 they refused to work on the winding machine and they instigated other workmen to go on strike. By their reply dated 27ih May, 1970 the workmen admitted that they went on strike but disputed the allegation that they were guilty of instigating the strike. On the 9th and 10th June, 1970 a departmental enquiry was held in which the mill examined 3 witnesses, namely, Ram Kishore Pareek (M. W. 1), Roop Singh Bhandari (M. W. 2) and Girdhar Singh (M. W. 3). On behalf of the workmen -Sabudeen (D. W. 1), Girdhari (D. W. 2), Misrilal (D. W. 3), Prithvi Singh (D. W. 4) and Badru (D. W. 5) were examined. The evidence of the parties was closed on the 10th June, 1970 and the enquiry officer posted the case to the 14th June, 1970 for his report, On that day the report was not announced and the matter was postponed to the 19th June, 1970 for that purpose On the 15th June, 1970 an application was made by the mill's management to the effect that the case be reopened and one J. N. Patel should be examined on its behalf as he was a necessary witness. On the 16th June, 1970 the enquiry officer at the back of the workman passed an order for the examination of Patel. On the 19th June, 1970 when the workmen appeared they protested against the examination of a new witness after the closure of the parties is but the protest was overruled by the enquiry officer and the case listed for the 30th June, 1970 and then to the 1st July, 1970. The workmen repeated their protest against Pavel's examination but without success and Patel was examined. On the 2nd July, 1970 the enquiry officer submitted his report saying that the charge of inciting the strike was proved against the 4 workmen and on the 3rd July, 1970 Mr. P.D. Podar dismissed all the 4 workmen. As some proceedings were pending in a Labour Court, its approval became necessary under Section 33(2)(b) and proviso thereto before dismissal could become effective and the matter was placed before the Court. The Labour Court by its order dated the 30th June, 1971 declined to approve the management's action of dismissing the 4 workmen. In September, 1971 a writ petition was presented to this Court but the learned single Judge observed that although the learned Judge of the Labour Court did not bear in his mind the precise scope of his jurisdiction, the ultimate decision of the Court in rejecting the application of the management was correct and called for no interference. He dismissed the petition in limine. Aggrieved by that order the management appeals.
3. Relying on a decision of the Supreme Court in Delhi Cloth and General Mills Co. Ltd. v. Ganesh Dutt and Ors. 1972-1 L.L.J. 172, the learned Counsel for the appellant urged that the nature of the jurisdiction exercised by an Industrial Tribunal in such circumstances is a very limited one. The legal position is that where a proper enquiry has been held by the management, the Tribunal has to accept the finding arrived at in that enquiry unless it is perverse or unreasonable and should give the permission asked for unless it has reason to believe that the management is guilty of victimisation or has been guilty of unfair labour practice or is acting mala fide. To illustrate the scope of the Labour Court under Section 33(2)(b) of the Industrial Disputes Act, the learned Counsel relied on a number of decisions, namely, (1) New Victoria Mills Company Ltd. Kanpur v. Rohini Kumar and Ors. 1965-11 L.L.J. 346; (2) The Lord Krishna Textile Mills v. Its Workmen : (1961)ILLJ211SC , and (3) Martin Burn Ltd. v. R.N. Banerjee : (1958)ILLJ247SC . learned Counsel urged that the Labour Court in the case before us virtually reappraised the evidence before the enquiry officer and the Labour Court disposed of the matter as if it was exercising an appellate jurisdiction. The learned Counsel's further submission was that where a gross misconduct was proved even the allegation of victimisation had no relevance. He placed reliance on National Tobacco Co. of India Ltd. and Ors. v. Fourth Industrial Tribunal and Ors. : (1960)IILLJ175Cal . The learned Counsel also contended that an employer should have a free hand in its internal management of its own affairs and no outside agency should impose its will unless the action of the employer is lacking in bona fides or is manifestly perverse or unfair. He placed reliance on Dunlop Rubber Company (India) Ltd. v. Their Workmen 1965-I L.L.J 426. The enquiry officer's report, submitted the counsel, was not perverse and what was necessary for the Labour Court to examine was whether it made out a prima facie case. Beyond that the Court would not travel. learned Counsel invited our attention to India General Navigation and Railway Company Ltd. and Anr. v. Their Workmen 196Q-I L.L.J. 13, in which their Lordships of the Supreme Court observed that even assuming without deciding that it is open to the management to dismiss a workman who had taken part in an illegal strike, so far as the question of punishment to be meted out to such strikers was concerned, a clear distinction was to be made between those workmen who not only joined in such strike but also took part in obstructing the loyal workmen from carrying on their work. On this basis it was urged by the counsel before us that the punishment meted out to the workmen was appropriate because they were guilty of inciting the strike.
4. Mr. Singhvi, learned Counsel for the workmen, submitted that the root cause of the trouble was that the management was providing inferior material to its workers and as they were being paid on piece-rate basis the inferior material reduced their out-put and workmen suffered in wages That was the reason why they went in for a stay-in-strike on 25th May, 1970 in shift 'B' and this was continued on the 26th May, 1970, The additional cause for the continuance of strike on the 26th May, 1970 was that some workmen had been suspended due to the stay-in-strike of the 25th May, 1970. There was no occasion for any incitement of a strike on the 26th May, 1970. It is in this background, urged the learned Counsel, that the entire case should be appreciated. He urged that the principles laid down in Indian Iron and Steel Co., Lid. and Anr. v. Their Workmen 1958- I L.LJ. 260 : A.I R. 1958 S.C. 130, apply to all cases covered by Section 33(2)(b) of the Industrial Disputes Act. He argued that in the case before us there was want of good faith and victimisation and unfair labour practice and it was on these three grounds that he endeavoured to challenge the enquiry officer's report and support the order of the Labour Court. He cited a number of decisions illustrating cases of victimization, Sridharan Motor Service, Attur v. Industrial Tribunal, Madras and Ors. 1939-T L.LJ. 380 Hind Construction and Engineering Co. Ltd. v. Their Workmen : (1965)ILLJ462SC , Assam Oil Company, Ltd. v. Its Workmen 1960-1 L.L.J. 587; Pure Kustore Colliery v. Bhajan Dusadh and Ors. 1969-1 L.L.J. 129; and Messrs. Cox and King's (Agents), Limited v. Their Employees 1949- L.L.J. 756. Inviting our attention to the evidence that was adduced in the Court he submitted that J. N. Patel's evidence was a clear afterthought and could not be recorded in view of the observations of their Lordships of the Supreme Court in Khardah and Co. Ltd. v. The Workmen 1964- II L.L.J. 452 : A.I.R. 1969 S.C. 719, and lastly he argued that shouting by itself was no incitement as defined in State of Bihar v. Ranen Nath and Ors. : AIR1958Pat259 .
5. The limits of the jurisdiction of a Labour Court under Section 33(2)(b) have been time and again enunciated by various judgments of the Supreme Court and other High Courts. We might refer to a decision of our own Court in The Jaipur Udyog Ltd., Sawai Madhopur v. Shri A. N. Kaul, Judge, Industrial Tribunal, Jaipur and Ors. I.L.R. (1960) 10 Raj. 874, where Sarjoo Prosad, C.J. observed as follows:
The question of internal discipline and sound administration of the industry is primarily and entirely the responsibility of the officers who are in charge of the management, and any undue interference with their decision on such matters would be subversive of discipline and result in the detriment of the industry. The law has of course provided safeguards against victimisation of the workmen or any act of high-handedness on the part of the employer not justified by the standing orders of the company; but when it is found that there was no such case of victimisation or mala fides or violation of principles of natural justice, and the findings of the Inquiry Committee, which were accepted by the Works Manager, were prima fade correct and justified on the evidence, the Tribunal had no reason to interfere under Section 33 of the Act... ... ....All that the Tribunal has to see is whether the findings arrived at are prima facie reasonable or baseless and perverse. If they appear to be obviously baseless and perverse or indicate mala fides on the part of the management, then of course the Tribunal may withhold its approval or permission, as the case may be.
6. To the same effect are other decisions but they need not be referred to for their Lordships of the Supreme Court in a very recent judgment in Delhi Cloth and General Mills Co, Ltd. case (supra) have observed that all that the Labour Court had to see was whether a prima facie case was made out against the employee or not. The prima facie did not mean, observed their Lordships, proving the case to the hilt. In the background of the above propositions let us examine the arguments that have been urged before us.
7. The word 'victimisation' has come to acquire great significance in the sphere of employer and employee relationship. According to the second edition of the Webster's New Twentieth Century Dictionary the word 'victim' means (1) a person or animal killed, a sacrifice to some God in a religious rite; (2) some one or something killed or destroyed or injured or otherwise harmed by or suffering from some act, condition, agency or circumstance, as victims of war; (3) a person who suffers some loss especially by being dwindled ; a dupe. In National Tobacco Co. of India's case (supra) the Calcutta High Court has observed :
Victimisation means one of two things: The first is where the workman concerned is innocent and yet he is being punished because he has in some way displeased the employer, for example, by being an active member of a union of workmen who were acting prejudicially to the employer's interest. The second case is where an employee has committed an offence but he is given a punishment quite out of proportion to the gravity of the offence, simply because he has incurred the displeasure of the employer in a similar manner as mentioned above. But where it is found that the employee is guilty of gross misconduct then there cannot be any question of victimization because it merits dismissal by itself.
Decided cases cited by the learned Counsel for the respondent indicate instances where an employee has been punished even though he was innocent, Sridharan Motor Service, Attur. Industrial Tribunal, Madras and Ors. 1959- I L.L.J. 380, or the punishment was shockingly disproportionate to the misconduct, Hind Construction and Engineering Co., Ltd. v. Its Workmen : (1965)ILLJ462SC , or where it was due to the displeasure against the workman on account of his union activities, Assam Oil Company, Ltd. v. Its Workmen 1960-1 L.L J. 587, or disadvantageous transfer due to union activities, Pure Kustore Colliery v. Bhajan Dusadh and Ors. 1969- 1 L.L.J. 129, or arbitrary action against a secretary of union, Cox and King's (Agents), Ltd. v. Their Employees 1949-1 L.L.J. 796. In our opinion victimisation consists in punishing an employee for any object other than the one of inflicting just and appropriate punishment for a proven lapse,
8. The question which falls for our determination in this case is whether the enquiry officer's report, as a result of which the 4 workmen were dismissed, is vitiated by the vice of victimisation. It is not disputed that there was a stay-in-strike in the shift 'B' of the mills between 2 P. M. and 10 P. M. on the 25th May, 1970 and due to that some workmen were suspended. That the strike continued on the 'B' shift of the ?6th May, 1970 is also not in controversy. That the whole department was on strike is also admitted. The only allegation made by the management against the 4 workmen before A us is that they were the trouble-shooters who excited the rest of them to go on strike. The answer of the workmen is that because they had joined a union which the management did not like, they were singled out and punished. To divine the processes of human mind and to locate a motive for an action is not always easy. However, in the case before it, it is easy to conclude that the 4 workmen have been singled out for punishment for motives other than of justly punishing a workman for a lapse. We shall presently set out the reasons. We have already noticed that the parties had concluded their evidence and the enquiry officer had posted the case for report on 14th June, 1970. We do not know the reason why he did not pronounce his report but quietly on 15th June at the back of the workmen an application was moved by the management for taking additional evidence of J. N. Patel. learned Counsel for the appellant argued that he was no stranger and he was a necessary witness, because he was in charge of various departments including the department in which the 4 workmen were employed. But if he was such an important witness we should have found somewhere his name indicated and that it was he who watched these 4 workmen inciting others. But that indication is completely wanting. Assuming for the sake of argument that he was an important witness, his evidence ordinarily should not have been recorded after the closure of the case of the parties. Their Lordships of the Supreme Court in M/s. Khardah & Co.'s case (supra) have observed in para 14 :.It is perfectly true that in dealing with industrial matters, the Tribunal cannot allow evidence to be led by one party in the absence of the other, and should not accept the request of either party to admit evidence after the case has been fully argued unless both the parties agree.
What we find in this case are repeated protests on the part of the workmen against the admission of this evidence. But the enquiry officer overruled the objections and proceeded to record the evidence of J. N. Patel. The Labour Court refused to look into this evidence presumably because it was recorded after the closure of the case by the parties. But even if we were to consider this evidence what J.N. Patel said was that 4 to 6 persons incited others to go on strike. Four workmen who are respondents before us have been dismissed but what happened to the other two who were also guilty of similar behaviour Was their incitement less stimulating than of the respondents or is it a case of discriminating against these 4 at least qua the other two The answer is plain. Patel is unable to give us any reason why these 4 persons were chosen and the enquiry -officer is equally silent. Discrimination, therefore, is inferable from this circumstance, apart from the fact that this additional evidence has a semblance of an afterthought. The workmen have been saying that because they joined another union which was not to the liking of the management they were singled out. There may be some truth in this assertion but we spell discrimination from J. N. Patel's evidence itself which evidently was recorded after some deliberation by the management.
9. The ingredients of the word 'instigates' or 'incites' apparently are something more than mere asking a person to do a particular act. For stimulating action words must come from a person who exercises some kind of influence over his audience. No such status is attributed to these workmen. If all of them were shouting for a strike then it is difficult to say who was inciting in that chorus. We are, therefore, inclined to think that even incitement has not been proved by reading the evidence of J. N. Patel and Roop Singh Bhandari. If incitement is not proved on the part of the 4 workmen and their only conduct was to go on strike then there were many who went on strike and only these 4 workmen could not have been dismissed on that account.
10. The language of the order of the learned Judge of the Labour Court may have travelled beyond his jurisdiction at places but we agree with the learned single Judge that its conclusions are correct and we find no reason to interfere with the order when he declined to set his seal of approval on the decision of the management.
11. The result is that this appeal fails and is dismissed with costs.