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TMI Blog1975 (10) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... there is violation of the principles of natural justice, the Tribunal will then give opportunity to the employer to produce evidence, if any, and also to the workman to rebut it if he so chooses. In the latter event the Tribunal will be entitled to arrive at its own conclusion on merits on the evidence produced before it with regard to the proof of the misconduct charged, and the Tribunal, then, will not be confined merely to consider whether a prima facie case is established against the employee. In other words, in such an, event, the employer's findings in the domestic enquiry will lapse and these will be substituted by the independent conclusions of the Tribunal on merits. There is a two-fold approach to the problem and if lost sight of, it may result in some confusion. Firstly, in a case where there is no defect in procedure in the course of a domestic enquiry into the charges for misconduct against an employee, the Tribunal can interfere with an order of dismissal on one or other of the following conditions :- (1) If there is no legal evidence at all recorded in the domestic enquiry against the concerned employee with reference to the charge or if no reasonable per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctices by employers.- The following shall be deemed to be unfair practices on the part of employer, namely- (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; (b) to interfere with the formation or administration of any Trade Union or to contribute financial or other support to it; (c) to discharge or otherwise discriminate against, any officer of a recognised Trade Union because of his being such officer; (d) to discharge or otherwise discriminate against any workman because he has made allegations or given evidence in an enquiry or proceeding relating to any matter such as is referred to in sub-section (1) of section 28-F; (e) to fail to comply with the provisions of section 28-F; 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 an unfair practice on his part . Section 28-F provides for rights of recognised Trade Unions. Ordinarily a person is victimised, if he is made a victim or a scapegoat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion should be reached on a totality of the evidence produced. Again victimisation must be directly connected with the activities of the concerned employee inevitably leading to the penal action without the necessary proof of a valid charge against him. The question to be asked : Is the reason for the punishment attributable to a gross misconduct about which there is no doubt or to his particular trade union activity which is frowned upon by the employer ? To take an example, suppose there is a tense atmosphere prevailing in a company because of a strike consequent upon raising of certain demands by the union, each party calling the other highly unreasonable or even provocative, the Tribunal will not readily accept a plea of victimisation as answer to a gross misconduct even when an employee, be he an active office beal earer of the union, commits assault, let us say, upon the Manager, and there is reliable legal evidence to that effect. In such a case the employee, found guilty, cannot be equated with a victim or a scapegoat and the plea of victimisation as a defence will fall flat. This is why once, in the opinion of the Tribunal a gross misconduct is established, as re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also certain other documents. The Tribunal after examining the evidence of the domestic enquiry held that no prima facie case was made out against the workmen concerned and that the findings of the enquiry officer were perverse and not bona fide. The Tribunal further held on the evidence produced before it that it was a case of victimisation for trade union activity. The Tribunal, therefore, refused to grant approval and permission prayed for by the management. The management filed an application under article 226 of the Constitution in the High Court of Gujarat which was summarily dismissed. Leave to appeal to this Court was refused by the High Court and hence this appeal by special leave. On the principles of law laid down by this Court even though there was no defect in the domestic enquiry the Tribunal was entitled to examine the evidence in the domestic enquiry in order to find out whether a prima facie case was made out or if the findings are perverse. The Tribunal was not, however, competent to reappreciate or reappraise the evidence. The Tribunal referred to the evidence of the three witnesses recorded in the enquiry with regard to the incident. Two of the three pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when we came out the workers of LMP and Bharat Iron Works were beaten. That at that time he (sic) was at a little distance. That these persons who are present now were there among the persons who had assaulted workers. That other persons were also there whom he did not know . The third assaulted person was not examined. On the above state of the evidence the enquiry officer held both of them (meaning the witnesses assaulted) have identified them (meaning the chargesheeted workmen) that they were among the assailants...... I, therefore, hold that the incident has occurred. The point to be decided is whether any one of the workers facing this inquiry was among the assailants......... . I also hold that it is proved that these workers have beaten the workers of the factory . On the above state of the one way evidence against the respondents with regard to the incident and in the absence of any denial by them by examining themselves before the enquiry officer and offering themselves for cross- examination by the management, it is manifestly a perverse finding on the part of the Tribunal to hold that there is not even a prima facie case made out against the workmen or, worse th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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