Dismissed

Shri Marulasiddappa Ap v. Management of M/S Essilor Manufacturing India Pvt. Ltd.

Karnataka HC21 Sept 2024WP/2674/2022

Case brief

AI extract

What is this about?

A dismissed workman challenged the Tribunal's finding that his domestic enquiry was fair and its approval under Section 33(2)(b) ID Act of his dismissal, alleging ex parte proceedings and victimisation due to union activity. The High Court upheld the enquiry as fair, confirmed victimisation was not proved, and dismissed both writ petitions.

What did the court decide?

None granted; Tribunal orders dated 11.09.2018 and 01.10.2021 confirming dismissal were upheld.

Shri Marulasiddappa Ap Vs Management of M/S… — Labour and Industrial Disputes | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE K.S. HEMALEKHA

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WRIT PETITION NO.2674 OF 2022 (L-RES)

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C/W

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WRIT PETITION NO.44464 OF 2018 (L-RES)

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IN W.P. No.2674/2022

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BETWEEN:

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SHRI MARULASIDDAPPA A.P. S/O. PARAMESHWAPPA, AGED ABOUT 46 YEARS, RESIDING AT #34, C BLOCK, ATTUR LAYOUT, THIRUMALANAGAR, YELAHANKA NEW TOWN, BANGALORE – 560 064. ... PETITIONER

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(BY SRI AVANI CHOKSHI, ADVOCATE FOR SRI CLIFTON D. ROZARIO, ADVOCATE)

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Digitally signed by SHYAMALA Location: HIGH COURT OF KARNATAKA

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AND:

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MANAGEMENT OF M/S. ESSILOR MANUFACTURING INDIA PVT. LTD., LOT NO.48, L & M, KIADB INDUSTRIAL AREA, DODDABALLAPURA – 561 203 BY IT MANAGING DIRECTOR & CEO. ... RESPONDENT

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(BY SRI S.N. MURTHY, SENIOR ADVOCATE FOR SRI SOMASHEKAR, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ALLOW THE W.P. AND SET ASIDE THE ORDER DATED 01.10.2021 IN SLA NO.8/2016 PASSED BY THE HON’BLE ADDITIONAL INDUSTRIAL TRIBUNAL

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ALLOWING THE APPLICATION OF THE RESPONDENT MANAGEMENT UNDER 33(2)(b) OF THE ID ACT (PLACED AS ANNEXURE-A).

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IN W.P. NO.44464/2018

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BETWEEN:

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MARULASIDDAPPA A.P. EMP. NO.1085 S/O. SRI PARAMESHWARAPPA, NO.34, ‘C’ BLOCK, ATTUR LAYOUT, THIRUMALANAGAR, YELAHANKA NEW TOWN, BANGALORE – 64. ... PETITIONER

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(BY SRI AVANI CHOKSHI, ADVOCATE)

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AND:

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THE MANAGEMENT OF M/S. ESSILOR MANUFACTURING INDIA PVT. LTD., PLOT NO.48, L & M KIADB INDUSTRIAL AREA, DODDABALLAPUR, BANGALORE – 561 203. ... RESPONDENT (BY SRI S.N. MURTHY, SENIOR ADVOCATE FOR SRI SOMASHEKAR, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 11.09.2018 PASSED BY THE ADDITIONAL INDUSTRIAL TRIBUNAL, BENGALURU IN SERIAL APPLICATION NO.8/2016 AT ANNEXURE-M PASSED BY THE ADDITIONAL INDUSTRIAL TRIBUNAL.

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THESE PETITIONS COMING ON FOR DICTATING ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA

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ORAL ORDER

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Both the writ petitions are preferred by the workman assailing the legality and correctness of the order passed on the domestic enquiry, by order dated 11.09.2018, by which, it was concluded that the enquiry against the petitioner-workman is fair and proper, and the order dated

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01.10.2021 in Sl.Application No.8/2016 in AID. No.36/2014, where under, the application seeking approval under Section 33(2)(b) of Industrial Disputes Act, 1947 (hereinafter referred to as “the ID Act” for short) was allowed, according approval to the respondentmanagement to the dismissal of the workman.

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Petitioner was appointed as a technician in the respondent – management. On certain allegations of misconduct, charge sheet-cum-show cause notice was issued, not being satisfied with the reply submitted, enquiry was conducted and the Enquiry Officer submitted the report holding, the petitioner guilty of charges and second show-cause notice was issued to the workman.

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Since the petitioner-workman was a ‘protected workman’, management filed application before the Industrial Tribunal seeking permission to dismiss the workman from service. The permission application was withdrawn, as ID No.173/2011 was disposed of on the ground that the industrial Tribunal had no jurisdiction to adjudicate the said ID. The petitioner was no longer a ‘protected workman’, the petitioner - workman was dismissed from service, the respondent – management filed application seeking approval under Section 33(2)(b) of the ID Act, as he was the one concerned in the Industrial Dispute AID 36/2014.

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On the question of fairness of domestic enquiry while considering the application under Section 33(2)(b) of the ID Act, the industrial Tribunal by its order dated 11.09.2018, held that the proceedings conducted by the management was fair and proper, and on the question, whether the mandate provisions as contemplated under Section 33(2)(b) of the ID Act and whether there was any

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victimization of the workman, the Labour Court arrived at a conclusion that there was no victimization and the mandatory provisions was duly complied and the application filed by the management was allowed according approval.

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Learned counsel for the petitioner-workman would urge the following grounds:

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(i) That the domestic enquiry conducted by the Enquiry Officer was not fair and proper and drawing attention to the proceedings of the Enquiry Officer learned counsel submits that the principles of natural justice have been violated in not providing opportunity as mandated under law and would urge the following contentions regarding the enquiry proceedings:

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(a) That the petitioner-workman was placed ex

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parte and did not ensure service of order sheet on the workman.

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(b) Behind the back of the workman, the evidence

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of the management was conducted and concluded, and the

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workman was not given an opportunity to cross-examine the management witness or lead further evidence.

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(c) That the workman has never intimated about continuation of enquiry and no notice was issued to him on 15.03.2013 or thereafter.

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(d) Failure to grant opportunity to cross-examine the witness has been fatal to the case of the petitioner and denial of right of the workman to put forward his case and defend has led to miscarriage of justice.

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(e) That the petitioner was not even aware that the

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enquiry was taken behind his back on 15.03.2013 and placing him ex parte stating that the workman had shouted in a raised voice, when infact the workman was not present on the said date, which is clear from the recordings on 15.03.2013, that the workman has not signed the proceedings.

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(ii) That the Tribunal failed to appreciate the documentary evidence on victimization put forth by the workman and erroneously allowed the application filed by

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the respondent – management under Section 33(2)(b) of the ID Act.

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(iii) That having withdrawn the permission application by the respondent – management and dismissal of the workman pursuant to the withdrawal of the permission application and then filing application for approval under Section 33(2)(b) of the ID Act is a tactic to evade the provisions contemplated in law to protect workman against victimization.

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(iv) That as the workman was actively involved in fighting for the rights of the workmen, having resulted in number of incidents, the workman was targeted solely due to his union activities and the series of incidents narrated by the workman on victimization by the management and the harassment continued after he was charge sheeted, which aspect was totally overlooked by the Tribunal.

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Per contra, learned senior counsel appearing for the respondent – management vehemently contended as under:

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(i) That the domestic enquiry conducted by the

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management was fair and proper as rightly held by the Tribunal.

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(ii) That the show-cause notice was issued to the workman on the enquiry to be conducted.

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(iii) That an enquiry was held on 15.03.2013, petitioner was aware about this date and he also participated in the enquiry and on 15.03.2013, the petitioner shouted at the Enquiry Officer and the management representative, after which he walked out of the enquiry. The petitioner sought assistance of Mr.Ganganna or to engage an outsider to assist him in the enquiry, the petitioner’s request was rejected, as the petitioner refused to participate in the enquiry and walked out and no alternative was left for the Enquiry Officer to place the petitioner ex parte and adjourned the enquiry to 22.03.2013 and considering all these aspects, the Tribunal has rightly held that the proceedings by the Enquiry Officer on the domestic enquiry was fair and proper.

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(iv) The Deputy Labour Commissioner granted the petitioner status of protection vide order dated 19.08.2013 for a period of one year and hence, the permission application was filed in No.1306/2013 in ID No.173/2011 which was pending before the Tribunal seeking permission of the Tribunal to dismiss the workman. The said application was also withdrawn, as ID No.173/2011 was disposed of on the ground that the Industrial Tribunal had no jurisdiction to adjudicate the industrial dispute and the said ID No.173/2011 was transferred to Additional Tribunal renumbered as AID No.36/2014 and as such, the management withdrew the permission application and in AID No.36/2014 regarding the charter of demands that has been pending before the Industrial Tribunal, the petitioner filed an application seeking approval under Section 33(2)(b) of the ID Act, after the dismissal of the workman from service as the petitioner - workman ceased to be a ‘protected workman’.

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(v) The Labour Court, considering all these aspects,

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has rightly passed the order on domestic enquiry as fair

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and proper and on the question of victimization and compliance of mandatory provisions, held that the victimization of the workman was not proved and allowed the application for approval which does not warrant any interference.

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Having heard learned counsel for the parties,

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the questions that fall for consideration are,

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“(i) Whether the domestic enquiry findings recorded by the Tribunal is just and proper?

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(ii) Whether the withdrawal of permission application, since the workman ceased to be a protected workman, in light of disposal of ID No.173/2011, application filed seeking approval under Section 33(2)(b) of the ID Act was justified?

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(iii) Whether the impugned order passed by the Industrial Tribunal on fairness of domestic enquiry and the approval application warrants any interference in the facts and circumstances of the case?”

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Re: Point No.1

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The workman was issued with the charge sheet-cum-show cause notice on the following charge:

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“When you saw the HR officials near the canteen, as mentioned above, you questioned HR officials why the transport vehicles have not yet arrived at the gate. You were told by them that because of the disturbances, the vehicles are delayed by few minutes. Immediately, you raised your voice and shouted at HR officials stating that it is the responsibility of the company to provide the transport in time. Due to the delay of the vehicles you demanded overtime for the workmen. In the meantime, Ms. Chaithra - Officer HR contacted the transport vendor and the gate and informed you that the vehicles have just arrived at the gate. Instead of boarding the vehicle at the gate you along with Mr.Raghu MS shouted at HR officials in singular language and threatened them. You further shouted at high pitch that HR officials are behaving like dictators and they will be taught a lesson. You along with Mr.Raghu MS rushed towards Mr.Nagesh HR Officer when he tried to pacify you. You raised your voice at Mr. Nagesh. You shouted at him with loud noise stating that Mr.Nagesh should not interfere and should keep quite. You further shouted at him stating that Mr. Nagesh, has no authority to interfere in this matter. Because of your shouting at Mr.Nagesh, Mr.Raghu got excited and rushed towards Mr.Nagesh to assault him. The timely

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intervention of other HR officials stopped Mr.Raghu approaching Mr. Nagesh.”

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The act of misconduct under the certified

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standing orders, the clauses read as under:

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(i) 22(9) Riotous or disorderly behavior or any act

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subversive of discipline or efficiency in the company premises.

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(ii) 22(26) Losing temper and shouting at others. (iii) 22(55)(c) Abusing colleagues or superiors.

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(iv) 22(56) Exhibiting indecent behavior within the company premises.

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(v) 22(66) Any act subversive of discipline.

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The enquiry proceedings were conducted, from the proceedings before the Enquiry Officer into the charges leveled against the workman, the following dates and the details of enquiry proceedings what transpired are necessary to be stated, which are culled out as under:

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(i) On 04.01.2013, the enquiry commenced,

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managing representatives (“MR”) as well as the workman

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(“CSE”) were present, the CSE denied the charges, the procedure of enquiry was explained and recorded. Exs.M-

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1 and M-2 and Annexures – 1, 2 and 3 were filed by the MR.

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(ii) On 25.01.2013, MR was present, CSE was

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absent, the MR filed list of witnesses and documents as Annexures – 4 and 5 and in view of CSE’s absence, the enquiry was adjourned.

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(iii) On 01.02.2013, the MR and CSE were present, the CSE requested not to permit MR to commence his evidence, as he would engage a co-employee in the enquiry, accordingly, the enquiry was adjourned.

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(iv) On 16.02.2013, MR was present and produced M-3 submitting that CSE was on leave and hence, he was absent and in view of this, MR was not permitted to commence his evidence and the enquiry was adjourned.

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(v) On 15.03.2013, MR and CSE were present, this date on which the proceeding was conducted is very important, as on that date, it was observed in the proceedings that MR and CSE are present. The CSE

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confirmed that he has received the copy of the enquiry proceedings dated 16.02.2013 (previous date of enquiry).

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Further, it is observed in the proceedings as under:

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“At this stage, the CSE started shouting at EO as to how the MR has made statement at Para No2 of the proceedings dated 16.02.2013 such an attitude of the CSE should not be entertained”.

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It is further observed in the proceedings that the Enquiry Officer advised CSE that it is the objections of MR and if CSE had any counter objection, he can always submit before the Enquiry Officer and it could be noticed in the proceeding that CSE continued to shout in the raised voice at MR as well as Enquiry Officer. In light of the conduct of CSE, who walked away from the meeting hall, CSE was placed ex parte .

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(vi) On 22.03.2013, the MR was present, CSE was placed ex parte . MR prayed time and hence, enquiry was adjourned.

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(vii) On 29.03.2013, MR was present CSE was

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placed ex parte, management witness was not present and hence, enquiry was adjourned.

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(viii) On 08.04.2013, MR was present CSE was placed ex parte , MR produced letter from CSE as per Annexure – 6. MR examined himself as MW.1 and marked Ex.M-4 and Ex.M-5, since CSE was placed ex parte, the cross-examination was treated as Nil and enquiry was adjourned.

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(ix) On 29.04.2013, MR was present CSE was placed ex parte, MR marked documents. Since CSE was placed ex parte, the cross-examination of MWs.2, 3 and 4 were treated as Nil. Enquiry was adjourned for submitting arguments.

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(x) On 08.05.2013, MR was present, CSE was placed ex parte . MR submitted his arguments at Ex.M-12 and enquiry was concluded.

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(xi) The Enquiry Officer, after considering and affording sufficient opportunity as could be seen from the enquiry proceedings, considered the material placed

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before it and arrived at a conclusion that the CSE workman is guilty for the acts of misconduct as per the charge sheet.

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(xii) There is no procedure prescribed for the disciplinary authority action, either in the ID Act or in the rules made thereunder, which would be complied with before inflicting disciplinary punishment upon industrial employee. The rule that the case should be ‘heard in judicial spirit and in accordance with the principles of substantial justice’ has been infused as an essential concomitant of disciplinary procedure even though there is

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no obligation to adopt the regular forms of legal procedure. In all the case of detrimental action taken against a worker for misconduct, the employer has to establish whether the action was taken for ‘just and sufficient reasons’ and an industrial worker is always entitled to question the propriety and justice of a punitive or detrimental action taken against him, in spite of any contract between the employer and the worker, or the worker’s consent to suffer the said action. In Sur Enamel,

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and Stamping Works Ltd vs. Workmen¹ at para

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No.(4), the Apex Court has observed as under:

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“4. In support of the appeal against this order Mr. Sen Gupta has urged that it was not open to the Industrial Tribunal to go behind the finding arrived at by the domestic tribunal. He contended that the Tribunal was wrong in thinking that the Rules of natural justice were not followed. It appears that a joint enquiry was held against Manik and one Birinchi. Nobody was examined at this enquiry to prove the charges. Only Manik and Birinchi were examined. They were confronted with the reports of the supervisor and other persons made behind their backs and were simply asked why these persons would be making the reports against them falsely. It is not clear whether what they said was recorded. According to the enquiring authority they were “unable to explain as to why these persons would be making the reports against them falsely”. In our opinion, it would be a misuse of the words to say that this amounted to holding of proper enquiry. It has been laid down by this Court in a series of decisions that if an industrial employee's services are terminated after a proper Domestic enquiry held in accordance with the Rules

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1 AIR 1963 SC 1914

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of natural justice and the conclusions reached at the enquiry are not perverse the Industrial Tribunal is not entitled to consider the propriety or the correctness of the said conclusions. In a number of cases which have come to this Court in recent months, we find that some employers have misunderstood the decisions of this Court to mean that the mere form of an enquiry would satisfy the requirements of industrial law and would protect the disciplinary action taken by them from challenge. This attitude is wholly misconceived.

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An enquiry cannot be said to have been properly held unless, (i) the employee proceeded against has been informed clearly of the charges levelled against him, (ii) the witnesses are examined – ordinarily in the presence of the employee – in respect of the charges, (iii) the employee is given a fair opportunity to crossexamine witnesses, (iv) he is given a fair opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter, and (v) the enquiry officer records his findings with reasons for the same in his report.

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In the present case the persons whose statements made behind the backs of the employees were used by the enquiring authority were not made available for cross-examination but

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it would appear that they were not even present at the enquiry. It doss not even appear that these reports were made available to the employee at any time before the enquiry was held. Even if the persons who made the reports had been present and the employee given an opportunity to crossexamine them, it would have been difficult to say in these circumstances that that was a fair and sufficient opportunity. But in this case it appears that the persons who made the reports did not attend the enquiry at all. From whatever aspect the matter is examined it is clear that there was no enquiry worth the name and the Tribunal was justified in entirely ignoring the conclusion reached by the Domestic Tribunal.”

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The Enquiry Officer has limited powers, unlike a regular court where oath can be administered and attendance of witnesses can be compelled and where counsel can represent the parties, because domestic inquiries are not governed by strict rules of evidence. Therefore, while judging the evidence led before such a domestic inquiry, it is not open to apply strict standards. It is well-settled that the domestic inquiries do not stand on the same pedestal with the trials of

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actions or cases in a Court; they are not governed by technical rules or procedural law. In the absence of any statutory provisions relating to procedure, the domestic inquiries held by employers in dealing with cases of misconduct alleged against their employees, though need not conform to all the requirements of judicial proceedings, they must, however, satisfy the essentials of natural justice. The guiding principle, therefore, is that the inquiry should be conducted with scrupulous regard for the requirements of the rules of natural justice, that is, without bias, and by giving the delinquent employee, an opportunity for adequately representing his case, as the question of action taken by the employer is at issue. Apart from compliance with the requirement of the rules of natural justice, the inquiry must be held honestly and bona fide with a view to determine whether the charge against a particular employee is proved or not and care must be taken to see that these inquiries do not become empty formalities.

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The steps generally for holding domestic

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enquiry are:

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(a) Notice of enquiry

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(b) Pleadings

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(d) Evidence and Rules of natural justice

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(e) Industrial adjudication, normally, discourages the practice of a workman refusing to participate in domestic inquiries or to withdraw from inquiries without any reasonable ground or taking unreasonable and undesirable attitude. In other words, when there is no valid reason for the delinquent employee not to appear before the inquiry officer, no complaint for want of opportunity is tenable. In Northern Rly Co-Operative Credit Society Ltd. Vs. IT² , the workman refused to participate in the inquiry taking a very unreasonable and undesirable attitude in persistently demanding representation by a stranger which was not permissible. The Supreme Court observed that such attitude deserved to be condemned. However, even

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2 (1967) 2 LLJ 46 (SC)

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in a case, where a workman refuses to participate in an inquiry or withdraws from the inquiry in the course of the proceedings, it is incumbent on the inquiry officer to complete the inquiry by taking all evidence ex parte to find out whether or not the charge has been proved. In the event, he finds that the charge is proved he would submit his report to the disciplinary authority. The disciplinary authority, then should communicate a copy of the inquiry report to the delinquent and seek his explanation for the proposed action. If the workman submits any explanation, the same has to be taken into consideration and then an appropriate order should be passed in accordance with law. In Imperial Tobacco Co of India Ltd

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Vs. Workmen³ , at a particular stage of the inquiry proceedings, the workman withdrew from the inquiry, the employer dismissed the workman without even completing the inquiry proceedings in the manner prescribed by the Standing Orders. Holding the order of dismissal to be invalid, the Supreme Court observed that even though the workman had withdrawn from the inquiry-whether rightly or wrongly–‘the inquiry should have been completed and all evidence should

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3 (1961) 2 LLJ 414 (SC)

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have been taken ex parte ’. The fact that the workman withdrew from the inquiry at an early stage ‘did not absolve the inquiry officer from conducting the inquiry by taking evidence ex parte’ . Furthermore, it also did not absolve the punishing authority from following the procedure prescribed in the relevant Standing Order in inflicting the punishment, but once the ex parte inquiry is completed on taking all evidence in compliance with the requirements of the relevant Standing Orders or the principles of natural justice, the action based on such inquiry normally will not be invalidated. In Harinagar

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Sugar Mills Ltd Vs. Siv Saran Sinha⁴ , the delinquent workman refused to participate in the domestic inquiry initiated against him, unless he was permitted to be represented by an office-bearer of the trade union of which he was a member. The inquiry officer, therefore, proceeded with the domestic inquiry ex parte . The further opportunity given to the workman to participate in the inquiry was also not availed of by him. On the basis of the evidence on record of the ex parte domestic inquiry, the workman was found guilty of the charges levelled against him and was dismissed from service. The Patna High

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4 (1961) 2 LLJ 511

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Court held that the inquiry was not contrary to the principles of natural justice merely because the workman was not allowed to be represented by a member of his union. The Court observed that ‘the workman who was given an opportunity to take part in the domestic inquiry refused to avail himself of the same and deliberately absented himself, he could not be allowed to say that the action of the management in proceeding with the inquiry ex parte was not fair or proper. It is, therefore, not open to him to contend that the inquiry was not bona fide on that account. In a somewhat similar situation, in Lakshmi Devi

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Sugar Mills Ltd Vs Ram Sarup⁵ , Bhagwati J, observed:

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If full and free opportunity was given to the respondents to present themselves at the inquiry and defend themselves, it could not be said that the inquiry was anything but fair. No principles of natural justice were violated and the management was at liberty to come to its conclusions in regard to the culpability of the respondents and also to determine what punishment should be meted out to the respondents for the misconduct and insubordination proved against them.”

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5 (1957) 1 LLJ 17, 24 (SC)

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It is no doubt true that, there are instances in the enquiry when the charge sheeted workman would leave the enquiry hall and refrain from participating on such date and if also, there are heated conversation between the Enquiry Officer, management representative and the workman leading to move away or walk away by the charge sheeted workman by boycotting the enquiry.

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In the present case, as could be seen from the order dated 15.03.2013, the workman, for reasons stated therein, has moved out of the enquiry hall and he was placed ex parte. According to the workman, in the proceedings before the Tribunal, it was contended that he was not present on 15.03.2013 and it could be seen that his signature was not obtained on the proceedings of the said date. What was relevant to be noted that the proceedings of the Enquiry Officer clearly indicated that the workman was present and he walked away in anguish. The workman being aware about the Enquiry proceedings ought to have appeared and made his submission.

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One relevant fact that needs to be stated is that, on 08.04.2013, after the proceedings, where the workman is placed ex parte subsequently, a letter was addressed to the Enquiry Officer at Annexure – 6, wherein, he requested to permit him to engage K.A. Ganganna as his co-employee and record the proceedings in Kannada.

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The Enquiry Officer held that the issue has already been settled and the said employee who the worker wanted to engage is not the employee of the company and cannot be a co-employee under the provisions of the company certified orders and the request of CSE was not justified, this letter addressed to Enquiry Officer makes it clear that the proceedings after 15.03.2023, when the workman was placed ex parte, he was aware of the proceedings which was taking place before the Enquiry Officer and he willfully remained absent in the proceedings that was conducted. The principles of natural justice cannot be stretched to such an extent that a person can take undue advantage and abuse the process of law. The enquiry proceedings being within the knowledge of the workman cannot be said

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that he was not afforded an opportunity of proving his contention before the Enquiry Officer. The Tribunal, by considering the details and the enquiry report that was before the Tribunal, has arrived at a conclusion that the domestic enquiry has held to be fair and proper and to prove the misconduct attributed to the workman.

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Point Nos.2 and 3:

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Having held, the domestic enquiry to be fair and proper, what remained before the Tribunal was, whether there was any motive to punish the workman and victimization as contended by the workman. The victimization as held in Bharat Iron Works vs.

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Bhagubhai Balubhai Patel and others⁶ at para Nos.6, 7, 8, 9 and 10 as under:

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“6. What is victimisation is again a multiheaded monster to tackle with. The word ‘victimisation’ is not defined in the Industrial Disputes Act. An attempt to describe ‘unfair practices by employers’ by a deeming definition was made under Section 28K in Chapter III B of the

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6 (1976) 1 SCC 518

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Indian Trade Unions (Amendment) Act 1947 (Act XLV of 1947) but we understand, it has not yet been brought into force. The concept of victimisation is to a large extent brought out under Section 28K of that unenforced law, and it may be worthwhile to quote the same as it throws sufficient light on the topic and will offer guidance to tribunals in adjudicating a ticklish issue of this nature:

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Section 28K. “Unfair practices by employers-

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The following shall be deemed to be unfair practices on the part of an employer, namely-

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(a) to interfere with, restrain or coerce his workmen in the exercise of their rights to organize, form, join or assist a Trade Union and to engage in concerted activities for the purpose of mutual aid or protection;

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(b) to interfere with the formation or administration of any Trade Union or to contribute financial or other support to it;

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(c) to discharge, or otherwise discriminate against, any officer of a recognized Trade Union because of his being such officer;

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(d) to discharge or otherwise discriminate against any workman because he has made allegations or given evidence in an enquiry or

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proceeding relating to any matter such as is referred to in Sub-section (1) of Section 28F;

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(e) to fail to comply with the provisions of Section 28F:

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Provided that the refusal of an employer to permit his workmen to engage in Trade Union activities during their hours of work shall not be deemed to be unfair practice on his part.

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Section 28F provides for rights of recognized trade unions.

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7. 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, in the manner, as it were, of a sacrificial victim. It is, therefore, manifest that if actual fault or guilt meriting the punishment is established, such action will be rid of the taint of victimisation.

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8. It is apparent that victimisation may partake of various types, to cite one or two only, for example pressurising an employee to leave the union or union activities; treating an employee unequally or in an obviously discriminatory manner for the sole reason of his connection with union or his particular union activity; inflicting a grossly

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monstrous punishment which no rational person would impose upon an employee and the like.

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9. A word of caution is necessary. Victimisation is a serious charge by an employee against an employer, and therefore, it must be properly and adequately pleaded giving all particulars upon which the charge is based to enable the employer to fully meet them. The charge must not be vague or indefinite being as it is an amalgam of facts as well as inferences and attitudes. The fact that there is a union espousing the cause of the employees in legitimate trade union activity and an employee is a member or active office-bearer thereof is per se, no crucial instance Collective bargaining being the order of the day in a democratic social welfare State, legitimate trade union activity which must shun all kinds of physical threats, coercion or violence, must march with a spirit of tolerance, understanding and grace in dealings on the part of the employer. Such activity can flow in healthy channel only on mutual cooperation between employer and employee and cannot be considered as irksome by the management in the best interest of the concern. Dialogues with representatives of a union help striking a delicate balance in adjustment and settlement of various contentious claims and issues.

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10. The onus of establishing a plea of victimisation will be upon the person pleading it. Since a charge of victimisation is a serious matter reflecting, to a degree, upon the subjective attitude of the employer evidenced by acts and conduct, these have to be established by safe and sure evidence. Mere allegations, vague suggestions and insinuations are not enough. All particulars of the charge brought out, if believed, must be weighed by the Tribunal and a conclusion should be reached on a totality of the evidence produced. ”

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The onus of establishing a plea of ‘victimisation’

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is on the person pleading it. As the ‘victimistion’ is a serious charge against the employer and mere allegation of vague suggestions and insinuations are not enough that the particulars of the charge brought out is not proper. The Apex Court held that the ‘victimisation’ is a serious charge by an employee against an employer and that it must be properly and adequately pleaded giving all particulars upon which the charge is based to enable the employer to fully meet them.

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The management had filed application

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No.1306/2013 in ID 173/2011 seeking permission of the Tribunal to dismiss the workman from service, since he was declared as ‘protected workman’ vide order dated 19.08.2013. The permission application No.1306/2013 was withdrawn as ID No.173/2011 was disposed of on the ground that the Industrial Tribunal had no territorial jurisdiction to adjudicate the said ID No.173/2011 and was transferred to the Additional Industrial Tribunal renumbered as AID No.36/2014. As the workman was not a ‘protected workman’ as on that date, the management was required to file an application under Section 33(2)(b) of the ID Act in AID No.36/2014, as he was one of the concerned workman in the said Industrial Tribunal. The management filed an application seeking approval under Section 33(2)(b) of the ID Act of the dismissal order and on the said date the management sent a cheque for a sum of Rs.19,026/vide cheque dated 11.04.2016 in compliance of section 33(2)(b) of the ID Act. Section 33 of the ID Act prevents the victimization of the employees

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by employers at the time of pending proceedings. When a workman initiates or continues any proceeding against the employer, or the company, the probability of the workman being victimized is high. Section 33 of the ID Act aims to protect the workman from ‘victimization’. Additionally, the Section ensures to terminate the pending proceedings peacefully and restores harmony. The ban on the employers is not absolute, there are certain exceptions which has been added by way of 1956 Amendment. Section 33(1) of the ID Act prohibits employers to undertake certain actions during the continuation of a dispute. The Section is bifurcated into two sub-clauses (a) and (b). Section 33(1)(a) of the ID Act completely prohibits the employer right to terminate the services of his employees and for the workman to seek protection under the section, the following conditions must be satisfied:

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(i) There should be an industrial dispute pending before the appropriate authority, the period between the commencement and conclusion of conciliation,

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adjudication or arbitration proceedings is the period of pending proceedings.

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(ii) The authorities with jurisdiction under the industrial disputes are conciliation officer or board, arbitrator, Labour Court, Tribunal or National Tribunal. The workman should be concerned in the pending proceedings.

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(iii) The alteration of the services made by the employer shall be regarding the matter of pending proceedings and it shall also be prejudicial to the interest of the workman.

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(iv) Additionally, the alteration should affect the changing conditions of service, these services apply to the workman before commencement of such proceedings.

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(v) Section 33(1)(b) prohibits the employer from taking disciplinary action against the workman for misconduct connected with the dispute. The workman shall be concerned in such dispute and requires that the action proposed to be taken should be connected with the discharge of punishment by dismissal or otherwise.

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Section 33(2)(b) deals with alteration in

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conditions of service and discharge or dismissal of the workman who is connected to the pending dispute, but such action is taken in regard to the matter not connected to the pending dispute. Sub-section (2) contains two subclauses as well (a) and (b). In the present case, it is subclause (b), which states that the employer can, for the misconduct of the workman, discharge or punish by way of dismissal or otherwise, the matter certainly shall not be connected to the pending dispute. In the instant case, the dispute was not connected to the pending dispute. The matter regarding punishment by way of dismissal was not connected to the pending dispute and the application earlier filed for permission was withdrawn in light of the disposal and the workman not being ‘protected workman’ where thereafter the workman was dismissed from service and the application was filed by the management seeking approval under Section 33(2)(b) of the ID Act. In order to exercise the power of discharge or dismissal, the proviso to Section 33(2)(b) requires two conditions to be fulfilled.

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The conditions are, (1) the concerned workman should be paid wages for one month, these one month wages include all prior wages plus wages for next month (2) the employer must make an application before the appropriate authority for approval of the action taken by the employer.

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The Apex Court, in the case of Caltex (India) Ltd., Vs. E. Fernandes and Ors.⁷ has held that while entertaining an application under Section 33 of the ID Act, that the Tribunal had no jurisdiction to consider whether the punishment sought to be meted out by the employer to the workman is harsh or excessive. The measure of punishment to be meted out is within the sole discretion of the employer who is to judge for himself, what is the punishment commensurate with the offence which has been proved against the workman and the only jurisdiction with the Industrial Tribunal under Section 33 is to determine whether a prima facie case is meted out of such punishment has been made out by the employer and

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7 AIR 1957 SC 326

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the employer is not actuated by any mala fides or unfair labour practice or victimization.

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The Apex Court in Caltex has held that once the Tribunal comes to the conclusion that the enquiry which was conducted by the management was fair and proper and no principles of natural justice has been violated in conducting the enquiry and the management as rightly bona fidely comes to the conclusion that the dismissal was the only punishment which could be meted out to the workman that the Industrial Tribunal had no power to substitute another punishment or to impose any condition on the management before the requisite permission could be granted to them.

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The Apex Court, in the case of I.T.C. Limited

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vs. Government of Karnataka and others⁸ has held

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that grant of approval under Section 33(2)(b) of the ID Act does not conclude the dispute and the parties would be free to seek reference under Section 10 of the ID Act and

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81985 (51) FLR 1

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Section 33(2)(b) of the ID Act are different and cannot be

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equated and has held at para Nos.22 and 23 as under:

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“22. Grant of approval under S. 33(2)(b) of the Act does not conclude the dispute and the parties would be free to seek reference under S. 10 of the Act. Proceedings under S. 10 of the Act, settle the dispute finally. Resolving the dispute finally and expeditiously is very desirable. Therefore an interpretation which advances this object should be preferred. On the dates when the Government made the two references much progress was not made in the proceedings under S. 33(2)(b) of the Act. Therefore, even if the pendency of the proceedings under S. 33(2)(b) of the Act was brought to the notice of the Government it could not have the effect of persuading the Government not to make the reference. Hence, we are of the opinion that these are not fit cases for interference with the impugned orders of the Government.

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23. The scope and object of proceedings under S. 10 of the Act and S. 33(2)(b) of the Act are different. Whether the proceedings before the authorities are under Ss. 10 or 33(2)(b) of the Act, if the enquiry is defective or if no enquiry is held, the entire case would be open before the authority concerned and the employer would have to justify

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or satisfy the Tribunal by producing evidence that the order of discharge or dismissal was proper. In proceedings under S. 33(2)(b) of the Act the ban imposed on the employer can only be removed or maintained. No other order can be made or relief given by the authorities in these proceedings. Even if the ban is lifted, the dispute is not finally settled and the employee can request for reference under S. 10 of the Act. The power of the authorities in proceedings under S. 10 of the Act are wide and more so after S. 11-A of the Act was introduced and the other is enforceable. The pendency of the proceedings under S. 33(2)(b) of the Act is no bat for the exercise of the power under S. 10 of the Act. In these circumstances it is desirable and proper that both the proceedings under Ss. 33(2)(b) and 10 of the Act should not continue simultaneously. Necessarily the proceedings under S. 33(2)(b) of the Act should stand concluded immediately on a reference being made under S. 10 of the Act. We may point out that Legislature has already provided in S. 10(6) of the Act that proceedings before the Labour Court or the Tribunal stands quashed on the Central Government making a reference of the same dispute under S. 10A of the Act and S. 20(2)(a) of the Act provides that the conciliation proceedings stand concluded as the State Government referring the Same dispute for

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adjudication under S. 10(1) of the Act. It is better if a similar provision is made for automatic termination of proceedings under S. 33(2)(b) of the Act on a reference of the same dispute being made under S. 10 of the Act.”

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The proceedings under Section 33(2)(b) of the ID Act is a summary proceedings and whether the proceedings before the authorities are under Section 10 or under Section 33(2)(b) of the ID Act, if the enquiry is defective or if no enquiry is held, the entire case would be open before the authority concerned and the employer would have to justify or satisfy the Tribunal by producing evidence that the order of discharge or dismissal was proper.

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In proceedings under Section 33(2)(b) of the ID Act, the ban imposed on the employer can only be removed or maintained. No other order can be made or be given in these proceedings, the Tribunal, while exercising its jurisdiction, has rightly held that the domestic enquiry conducted is fair and proper, while

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exercising his jurisdiction under Section 33(2)(b) of the ID Act, has borne in mind the legal principles and has rightly arrived at a conclusion that the prima facie case has been made out as regards the validity of the domestic enquiry and keeping in view the fact that the permission or approval is granted, the order of discharge or dismissal, which may be passed against the delinquent employee would always be liable to be challenged in the appropriate proceedings. The point Nos.2 and 3 are answered accordingly, holding that the enquiry as contemplated under Section 33(2)(b) of the ID Act has been followed by the Tribunal and there is no error committed by the Tribunal and no interference is called for and for the foregoing reasons, this Court pass the following:

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ORDER

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(i) Writ petitions are hereby dismissed.

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(ii) The impugned order passed on the domestic enquiry dated 11.09.2018 and the

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according of approval under Section 33(2)(b) of

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