SINGHAL, J. - (1.) THIS writ petition has been filed against the order of the Judge, Industrial Tribunal, dated 9. 06. 1981, by which, the respondent Jogendra Singh was allowed to produce evidence regarding victimisation.
(2.) THE submission of Mr. Maloo on behalf of the petitioner is that in the present matter, the services of respondent No. 1 were terminated on 30. 06. 1974 on the charge of proved misconduct in a properly conducted domestic enquiry. THE respondent No. 1 was paid one months' wages. An application was submitted to the Industrial Tribunal and the Industrial Tribunal held that the enquiry was defective and on the application, the petitioner was permitted to adduce evidence before the Tribunal to prove the charge levelled against the respondent. THE management as well as the workman adduced their evidence and on behalf of the petitioner II witnesses were examined. THE respondeat examined himself and produced Sarvashri Jaswant Singh, Raghunath, Ratan Singh and Bakshi Singh and after hearing arguments, the Industrial Tribunal approved the action taken by the management in terminating the service of the respondent. THE submission of Mr. Maloo is the respondent Jogendra Singh actively participated in the go-slow strike, tool down strike and illegal strike and also participated in violent activities of assaulting officers of the management including the Works Manager and it was on this basis that the charge sheets were issued and after recording evidence the approval was given by the Industrial Tribunal. After approval was accorded by the Industrial Tribunal, a dispute was raised by the respondent No. 1 through Union before the Conciliation Officer, Kota, who submitted a failure report to the Government and thereafter, the Government made reference for adjudication to the Industrial Tribunal. THE statement of claim was filed by the respondent and the petitioner filed written statement and both the parties produced number of documents. During course of proceedings, the respondent desired to adduce additional evidence on victimisation, which was contested by the management and the Industrial Tribunal permitted the respondent to adduce evidence, against which this writ petition has been filed. The submission of Mr. Maloo is that the action of the management in terminating the service of Shri Jogendra Singh was duly approved by the Industrial Tribunal under Section 33 (2) (b) of the Industrial Disputes Act, 1947 after holding enquiry into the allegations of charges against Shri Jogendra Singh, which were held proved and approval was accorded accordingly. After grant of approval for the termination, the respondent has challenged the order of termination on the allegation of victimisation. The matter was referred under Sec. 33 (2) (b) since the dispute of some other workman was pending before the Tribunal. The submission of Mr. Maloo is that the Tribunal after appreciating the entire evidence produced before it, came to the conclusion that the charge of misconduct stands proved against Jogendra Singh and on that basis the charge of victimisation could not be levelled against the management. It is further submitted that if the respondent is allowed to adduce evidence, it would amount to re-opening of the entire case and would prejudicially affect the rights of the petitioner. Reliance was placed on the decision of their Lordships of the Supreme Court is case of Bharat Iron Works V/s Bhagu Bai (1) wherein it has been observed that when an application under Section 33 of the Act is submitted for approval/permission, the Tribunal has limited jurisdiction to see whether prima facie case is made out in respect of misconduct charged. It was observed : - "this is, however, the position only when the domestic enquiry preceding the order of dismissal is free from any defect, that is to say, free from the vice of violation of the principles of natural justice. If on the other hand, 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 later 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 finding in the domestic enquiry will lapse and these will be substituted by the independent conclusions of the Tribunal on merits. " It was further observed that proved misconduct is antithesis of victimisation as understood in industrial relations. Learned counsel for the petitioner has also relied upon the decision in the case of Tata Engineering and Locomotive Co. vs. Prasad (2) wherein, their Lordships have observed that once it is held that the finding of misconduct alleged against the employee was properly arrived at, the domestic enquiry is not vitiated. On the basis of these judgments of the Apex Court, the learned counsel for the petitioner has submitted that the Industrial Tribunal in its order dated 25. 01. 1978 for approval of the action of the management in terminating the service of Shri Jogendra Singh has taken into consideration all the arguments and evidence and came to the conclusion that the workman actively participated in go-slow strike, tool down strike and illegal strike and also participated in violent activities of assaulting officers of the management. The punishment of termination of service was considered not to be excessive and once this approval by way of judgment is given then the Industrial Tribunal was not justified in re-opening the earlier proceedings and allowing the respondent to adduce further evidence, which under law could not have been adduced. The submission of the learned counsel for the petitioner is that the scope of approval under Sec. 33 (2) (b) of the Act is very limited and in the approval granted by the Industrial Tribunal, no finding on the victimisation has been given.
(3.) I have considered over the arguments of learned counsel for both the parties. In the present matter, it is not a case where on an application under Sec. 33 of the Act, approval/permission was given on the basis of the facts as to whether a prima facie case is made out in respect of the misconduct charged. It is a case where the matter was agitated by the workman before the Tribunal and a specific plea of victimisation was taken before the Tribunal. It appears that no evidence was led in these proceedings and, therefore, there is no decision given by Tribunal on this point. The fact however, remains that the workman was held guilty of misconduct. The plea of misconduct and victimisation are contrary to each other and if there is victimisation by the employer, there cannot be any misconduct. Similarly, if there is a misconduct of the workman, then there cannot be victimisation by the employer. Once a finding has been given by the Tribunal that the misconduct of the workman is proved then it impliedly means that there was no victimisation of the employer. There is also an additional ground that in the proceedings under Sec. 33 the workman has taken the plea but has not led any evidence in respect of victimisation. If a plea is taken and evidence is not led on that point, it would amount to be a waiver. In the aforesaid circumstances, I am of the view that the Tribunal was not justified in permitting the workman any evidence with regard to victimisation, which may affect even the earlier order, in which misconduct was proved against the respondent. The proceedings cannot be allowed to be re-opened in this manner. The reference, which has been made under Sec. 10 of the Act shall be limited with regard to the quantum of punishment and the Tribunal cannot go on the point of misconduct vis-a-vis victimisation and would, therefore, now proceed only on the quantum of punishment, for which reference has been made under Sec. 10 of the Act. The writ petition is accordingly allowed. No order as to costs. .;