BYAS, J. - (1.) SINCE both these appeals under section 18 of the Rajasthan High Court Ordinance, 1949 are directed against the common judgment of a learned Single Judge of this Court delivered on July 10, i984-by which the two writ petitions (S. B. Civil Writ Petition No. 798/1976 and S. B. Civil Writ Petition No. 988/1976 were decided, they were heard together and are being disposed of by a single judgment. By the judgment aforesaid, the learned Single Judge allowed the writ petitions, set-aside the orders of the Assistant Labour Commissioner (Central), Kota and directed him to give permission to the employer under section 33 (3) (b) of the Industrial Disputes Act, 1947 for the dismissal of the appellants from the service.
(2.) SUCCINCTLY stated, the facts and circumstances giving rise to these appeals are that the Chief Project, Engineer, Rajasthan Atomic Power Project P. O. Anushakti via Kota (hereinafter referred to as the 'management,) filed two writ petitions under Articles 226 and 227 of the Constitution of India against the appellants and the Assistant Labour Commissioner, Kota. The averments made in both the writ petitions are common and identical. As per averments disclosed in them, the appellants S. K. Sharma and R. K. Shukla are employed as Tradesman in the Project. Both of them are projected workmen under section 33 (4) of the Industrial Disputes Act, 1947 (for short, 'the Act' ). The State Government by its notification dated April 21, 1972 declared for a period of ten years "the plant site of the Project" as prohibited place for the purpose of the Indian Officials Secrets Act, 1923 (Central Act No. XIX of 1923 ). On December 11,1974, the appellants staged a demonstration and shouted slogans between Administrative Building No. 1 and 2 of the Project between 12. 15 to 12. 45 Hours, which are situate in the prohibited area. The management took a serious view of the matter as it appeared a case of gross misconduct on the part of the appellants. An inquiry was initiated against them. The charges were framed against the appellants. The appellants participated in the inquiry, refuted the charges and claimed innocence. The Inquiry Officer recorded the evidence of the concerned parties. On the conclusion of the inquiries, the Inquiry Officer found the appellant R. K. Shukla guilty of the charges number 2 and 3 and partly of charge number 1 and found the appellant S. K. Sharma guilty of charge number 2 and partly of charge number 1. He submitted his report before the Disciplinary Authority. The Disciplinary Authority, on a consideration of the inquiry proceedings, took all the charges duly proved against the appellants. He, therefore, proposed the penalty of dismissal of both the appellants from service. The appellants were issued notices to show cause, if any, against the proposed punishment of their dismissal from service. The appellants submitted their written representations before the Disciplinary Authority. The Disciplinary Authority also afforded a personal hearing to them. The Disciplinary Authority thereafter decided that the penalty of dismissal from service should be inflicted upon the appellants. Since an industrial dispute under the Act was pending for conciliation before the Assistant Labour Commissioner (Central), Kota and the appellants were "protected workmen", the management submitted applications under section 33 (3) (b) of the Act for permission. The Assistant Labour Commissioner heard the parties and taking it to be a case of victimisation, declined to grant permission for the appellants' dismissal from service. Dissatisfied, the management submitted writ petitions in this Court. In the reply filed by the appellants in this Court, they reiterated that since they were the active members of the Rajasthan Anushakti Karmchari Union (R. A. K. U.), they were taken as an eye-sore by the management. Actuated by malice the management initiated inquiries against them. It is a case of unfair labour practice and victimisation where the appellants are being penalised with the extreme punishment for trivial matters. The learned Single Judge held that no case of victimisation was visible as the charges of misconduct stood proved against the appellants. He also found no case of discrimination between the workmen. He took the view that once the charges stood proved and the findings of the inquiries were not perverse, the plea of victimisation collapses. The Authority under section 33 of the Act acted beyond his jurisdiction in declining to give the permission under section 33 (3) (b) of the Act for the dismissal of the appellants from service. The writ petitions were consequently allowed, the orders of the Assistant Labour Commissioner (Central), Kota were quashed and he was directed to give the requisite permission for the dismissal of the appellants. Aggrieved against the said judgment of the learned Single Judge, the appellants have come-up in special appeals. In assailing the impugned judgment, Mr. Mridul raised the following two contentions: (1) it is a case of discrimination. Some workmen belonging to the R. A. K. U. (of which the appellants are the office-bearers), who took part in the demonstration and raised slogans alongwith the appellants in the prohibited/ protected area, were left out and the appellants were alone chosen and picked-up for punitive action. Likewise, workmen belonging to the other union e. g. "supervisors Association", who also staged a like demonstration and raised slogans in the prohibited/protected/area were not dealt with and left free with no action. This discrimination of pick and choose between the workmen of the same union and the workmen of one union and the workmen of the other union makes out a clear case of unfair labour practice and (2) the penalty of dismissal from service on a charge of trivial nature was uncalled for. The penalty or punishment of dismissal for service was so shockingly dispropor-tionate to the misconduct that it smacks of victimisation. It was argued that when both these elements are assimilated and taken together, they show that there was complete want of bonafides on the part of the management. The Assistant Labour Commissioner was perfectly within his jurisdiction in declining the permission. It was urged that the learned Single Judge did not correctly appreciate these defences of the workmen. We are here primarily concerned with the jurisdiction of an Authority in an application under section 33 of the Act. The ambit and scope of section 33 of the Act and the powers of the Authority while deciding an application for approval/permission thereunder have been considered by the Supreme Court from time to time beginning in 1953 with Atherton West & Colta V. Suti Mill Mazdoor Union (l) and ending with Lalaram V. Management of D. C. M. Chemical Works Ltd. (2) Mr. Mridul has taken us through all these decisions. But we need not make a reference to all of them as almost all of them have been noticed in M/s. Bharat Iron Works V. Bhagu Bhai Balu Bhai Patel (3 ). In the case of Bharat Iron Works, it was observed by their lordships :- "when an application under section 33 whether for approval or for permission is made to a Tribunal it has initially a limited jurisdiction only to see whether a prima facie case is made out in respect of the misconduct charged. 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. "
(3.) DEALING with unfair labour practice and victimisation it was further observed :- "where there is no failure of the principles of natural justice in the course of domestic enquiry, if the tribunal finds that dismissal of an employee is by way of victimisation or unfair labour practice, it will then have complete jurisdiction to interfere with the order of dismissal passed in the domestic enquiry. In that event the fact that there is no violation of the principles of natural justice in the course of the domestic enquiry. In that event the fact that there is no violation of the principles of natural justice in the course of the domestic enquiry will absolutely lose its importance or efficacy. (Para 4 ). "ordinarily a person is victimised, if he is made a victim or a scape-goat 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. Types or victimisation indicated (Paras 7, 8 ). "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 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 officebearer thereof, is per se, no crucial instance. (Para 9) "the onus of establishing a plea of victimisation will be upon the person pleading it. 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. A proved misconduct is antithesis of victimisation as understood in industrial relations. This is not to say that the Tribunal has no jurisdiction to interfere with an order of dismissal on proof of victimisation". A view was also expressed that there is no difference in principle of law applicable to a case under section 10 of the Industrial Disputes Act and that under section 33. In Lalaram's case (supra), after noticing the various decisions of the Supreme Court, the legal position under section 33 of the Act was summed up as under:- "the position that emerges, from the above quoted decisions of this Court may be stated thus: In proceedings under S. 33 (2) (b) of the Act, the jurisdiction of the Industrial Tribunal is confined to the enquiry as to (i) whether a proper domestic enquiry in accordance with the relevant rules/standing Orders and Principles of natural justice has been held: (ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out; (iii) whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee regard being had to the position settled by the decisions of this Court in Bengal Bhatdee Coal Co. V. Ram Probesh Singh, (1964) 1 SCR 709: (AIR 1964 S C. 486); Titaghur Paper Mills Co. Ltd. V Ram Naresh Kumar (1961) 1 Lab L J. 511) (SC); Hind Construction & Engineering Co. Ltd. V Their Workmen, (1965) 2 SCR 83: AIR 1965 SC 917; Workmen of Messrs Firestone Tyre & Rubber Company of India (P) Ltd. V. Management, (1973) 3 SCR 587: AIR 1973 S. C. 1227, and Eastern Electric and Trading Co. V. Baldev Lal, 1975 Lab IC 1435: (AIR 1975 S. C. 1892) that though generally speaking the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe yet an interference of malafides may in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment; (iv) whether the employer has paid or offered to pay wages for one month to the employee and (v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him. If these conditions are satisfied, the Industrial Tribunal would grant the approval which would relate back to the date from which the employer had ordered the dismissal. " In the case of G. Mackenzie & Co. V. its Workmen (4), the following principles laid down in India Iron and Steel Company Ltd. V. Their Workmen (5) were quoted with approval: "undoubtedly, the management of a concerned has power to direct its own internal administration and discipline; but the power is not unlimited and when a dispute arises, industrial tribunals have been given the power to see whether the termination of service of a workmen is justified and to give appropriate relief. In cases of dismissal on misconduct, the tribunal does not, however, act as a Court of appeal and substitute its own judgment for that of the management. It will interfere: (i) when there is want of good faith, (ii) when (here is victimization or unfair labour practice, (iii) when the management has been guilty of a basic error or violation of a principle of natural justice, and (iv) when en the materials the finding is completely baseless or perverse. " "it is for the management to determine what constitutes major misconduct within its standing orders sufficient to merit dismissal of a workman but in determining such misconduct it must have facts upon which to base its conclusions and it must act in good faith without caprice or discrimination and without motives of vindictiveness, intimidation or resorting to unfair labour practice and there must be no infraction of the accepted rules of natural justice. When the management does have facts from which it can conclude misconduct, its judgment cannot be questioned provided the above mentioned principles are not violated. But in the absence of these facts or in case of violation of the principles set out above, its position is untenable. " ;