Fouress Engineering vs Sri T K Muniswamy - Employment Dispute

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M/S Fouress Engineering (India) ... vs Sri T K Muniswamy on 27 February, 2026

Author: Pradeep Singh Yerur

Bench: Pradeep Singh Yerur

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NC: 2026:KHC:12474
WP No. 7053 of 2020

          HC-KAR

           IN THE HIGH COURT OF KARNATAKA AT BENGALURU
              DATED THIS THE 27TH DAY OF FEBRUARY, 2026
                                  BEFORE
            THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
                   WRIT PETITION NO.7053 OF 2020 (L-TER)
         BETWEEN:

             M/S FOURESS ENGINEERING (INDIA) LIMITED
             PLOT NO.2, 2ND PHASE,
             PEENYA INDUSTRIAL AREA
             BENGALURU-560 058
             REP. BY ITS SENIOR MANAGER-HRD
             AND ADMINISTRATION
             SRI K.B.DEEPAK
                                                   ...PETITIONER
         (BY        SRI.S.N.MURTHY.,  SR.COUNSEL     FOR   SRI.
         SOMASHEKAR.,ADVOCATES)
         AND:
             SRI T K MUNISWAMY
             S/O SRI KRISHNAPPA
             MAJOR
             C/O VENKATASWAMY REDDY
             DOOR NO.152/3 (NEW)
             MARATHALLI
             BENGALURU-560 032.

Digitally
signed by B ...RESPONDENT
LAVANYA (BY SMT.MAITREYI KRISHNAN., FOR SRI.K.S.SUBRAMANYA.,
ADVOCATES)
Location:
HIGH
COURT OF THIS WP IS FILED UDNER ARTICLES 226 & 227 OF THE
KARNATAKA CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 23.05.2018 IN SERIAL APPLICATION NO.8/2002 (IN
I.D.NO.28/2001) AT ANNEXURE-Q PASSED BY THE HONBLE
INDUSTRIAL TRIBUNAL, BENGALURU AND GRANT PERMISSION
TO DISMISS THE RESPONDENT FROM SERVICE AS PER THE
PROPOSED DISMISSAL ORDER DATED 13.03.2002 AT
ANNEXURE-D.
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WP No. 7053 of 2020

HC-KAR

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

CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

                   ORAL JUDGMENT This petition is filed by the petitioner-Management

seeking to quash the impugned order dated 23.05.2018

passed in Serial Application No.8/2022 (I.D.No.28/2001),

by the Industrial Tribunal, Bengaluru (for short, "the

Tribunal") vide Annexure-Q, and consequently, to grant

permission to dismiss the respondent from service as per

the proposed dismissal order dated 13.03.2002 vide

Annexure-D.

1. Brief facts of the case are as under:

Petitioner is a public limited company. The

respondent was working as operator whose last drawn

salary was about Rs.5,724/- per month. Petitioner submits

that the settlement was signed on 30.08.1995 under Section 18(1) of the Industrial Disputes Act, 1947 (for

short, ' ID Act '), and nearly 250 workmen have signed the

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settlement. Few of the workmen did not sign the

settlement dated 30.08.1995 however, they were

extended the benefit of settlement. The respondent is one

such workman who has signed the settlement and enjoyed

the benefit of settlement.
3. It is the case of the petitioner that the

respondent along with few other workmen instigated and

brought out an illegal strike from 16.07.1998, contrary to

Clause-16 of the terms of the Settlement Agreement dated

30.08.1995. The illegal strike continued till 03.01.1999.

Petitioner-Management received a complaint on

16.07.1998 from Sri Uma Mahesh Naidu/AW.2 that the

respondent and other workmen had gathered in front of

the factory gate and were obstructing the movement of

men and material of the factory.

1. In view of the same, the petitioner got issued

notices dated 16.07.1998 to 104 workmen including the

respondent. Despite notice, the respondent did not report

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for duty, continued illegal strike. Again, a letter was sent

on 27.07.1998 asking the respondent and others to report

for duty. However, many of the workers reported for duty,

but the respondent did not. On 29.07.1998, the

respondent formed a boisterous group along with others to

prevent the workmen from going to work, further

prevented the workers and other staff who are not

interested in joining strike from continuing their work.

Hence, in this regard, charge sheet-cum-notice of inquiry

dated 29.09.1998 was issued to the respondent. In this

connection, a meeting was conducted in the chambers of

Hon'ble Deputy Chief Minister on 01.01.1999 and after

prolonged discussion, workmen decided to call off the

strike from 04.01.1999, and enquiry was held by the

Enquiry Officer, Sri H.S. Prasad, and the respondent was

represented by one Sri K. Chandrashekaran. After the

enquiry, a report was submitted against the respondent,

finding him guilty of committing various acts of misconduct

enumerated in the charge sheet. A second show cause

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notice was issued and after consideration of the reply, the

petitioner passed dismissal order dated 13.03.2002 vide

Annexure-D.

1. The industrial dispute was pending before the

Tribunal in I.D.No.28/2001 pertaining to strike and some

of the misconduct committed by the respondent connected

to the dispute regarding illegal strike. The respondent filed

statement of objection. The domestic enquiry was tried as

preliminary issue, the enquiry was set aside and the same

being challenged in W.P.No.27355/2005, this Court

dismissed the writ petition upholding the order of the

Labour Court in setting aside the enquiry.

1. Thereafter, the evidence was recorded. The

respondent also adduced his evidence. After hearing the

parties, the Tribunal vide its order dated 23.05.2018,

rejected the application refusing to grant permission to

dismiss the respondent. Aggrieved by this order dated

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23.05.2018, the present writ petition is filed by the

Management.

1. It is the vehement contention of Sri S.N.

Murthy, learned Senior Counsel appearing along with

Sri Somashekhar, learned counsel for the petitioner, that

the Tribunal failed to take note of the fact that there is

limited scope of interference in an application filed under Section 33(1)(b) of the I.D.Act seeking permission to

dismiss the respondent as per the proposed order of

dismissal. It is due to the serious acts of misconduct by

the respondent in illegally going on strike for six months

from 16.07.1998 to 01.01.1999, the entire industry of the

petitioner was paralyzed, resulting in colossal losses. The

Tribunal has not appreciated the facts and law on the point

which has premised its order in the guise of appreciating a

criminal trial. Therefore, it is vehemently contended that

the points framed by the Tribunal were not correct and it

fell into an error in answering them. The Tribunal ought to

have considered as to whether the Management had

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established a prima facie case to grant permission to

dismiss the respondent as per the proposed dismissal

order and whether the dismissal order amounts to

victimization, which has not been done. Therefore, the

impugned order of the Tribunal is not justified and is liable

to be set aside.

1. It is further contended by the learned Senior

Counsel that the Tribunal committed an error apparent on

the face of the record, disbelieving the deposition of AWs.4

to 6 on the ground that they are all employees and based

on the partisan witnesses, it is quite natural they depose

on behalf of the Management. The Tribunal has committed

an error in discrediting the evidence of the witnesses in

favour of the Management. He further contends that the

Management cannot examine any other witnesses who are

not parties or eyewitnesses to the incident, as it would

only be the employees within the industry who can be

relied upon as witnesses, none other than the workers.

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1. It is further contended by the learned Senior

Counsel that the observations of the Tribunal that the

settlement dated 30.08.1995 is not a valid settlement and

that the strike cannot be termed as illegal are contrary to

the provisions of Section 18(1) read with Section 2(p) of

the I.D.Act. He further contends that nobody disputed the

settlement and there was no pleading to that effect. He

further contends that once workers have agreed to issue

14 days' notice before going on strike, it is their duty to do

so, and any strike without such notice is contrary to law

and is, therefore, illegal.

1. It is further contended by the learned Senior

Counsel that the observations made by the Tribunal at

paragraph-38 of the impugned order with regard to the

benefit of doubt should go to the workers, are not tenable,

particularly, when the respondent has indulged in serious

acts of misconduct in resorting to illegal strike and

continuing it for more than six months, when all other

workmen reported to duty by giving an undertaking.

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Hence, there is no presumption or benefit of doubt in

favour of the respondent/workman. It is also contended by

the learned Senior Counsel that the issue of victimisation

is totally untenable and baseless, as proof of acts of

misconduct is the antithesis of victimisation, as held by the

Hon'ble Supreme Court in the case of [Bharat Iron Works

vs. Bhagubai Balubai Patel](https://indiankanoon.org/doc/77506/) [1975(32) FLR 72].

1. It is further contended that the Management

examined five witnesses who are eyewitnesses to the

incident in which the respondent was involved and

continued the illegal strike. Therefore, the conclusion of

the Tribunal on victimisation of the respondent by the

petitioner is misleading and is liable to be set aside.

1. Learned Senior Counsel further contends that

the observations of the Tribunal that transfer of employees

was made with a vengenace to Aurangabad and Arunachal

Pradesh and therefore, workmen were justified in resorting

to illegal strike, is not sustainable being unwarranted and

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unjustified. The petitioner-Management has been

transferring and sending its employees on deputation due

to service exigencies. Therefore, the question of transfer

would not amount to victimization. On these grounds,

learned Senior Counsel seeks to quash the order of the

Tribunal dated 23.05.2018 and consequently, to grant

permission to dismiss the respondent from service vide

dismissal order dated 13.03.2002.

1. Learned Senior Counsel appearing for the

petitioner relies upon the following judgments in support

of his case:

i. Delhi Cloth General Mills Co., vs. Ganesh Dutt
[1972(24) FLR 147 (SC);

ii. Bharat Iron Works vs. Bhagubhai Patel and
others [1976(32) FLR 72 (SC)];

iii. Lakshmiratan Cotton Mills Co. Ltd., vs. Its
Workmen [1975(2) SCC 761];

iv. John D' Souza vs. Karnataka State Road
Transport Corporation [2019(18) SCC 47];

v. Karnataka State Road Transport Corporation vs.
Raju M., [(2020)III LLJ 187 (DB-Kar.];

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vi. B.C.Chaturvedi vs. Union of India (UOI) and
Others [1995(6) SCC 749];

vii. Elastrex Ploymers Pvt., Ltd., vs. Janardhana [2012(2) LLJ 813];

viii. Management of Krishnakali Tea Estate vs. Akhil
Bharatiya Chah Mazdoor Sangha and others [2004(8) SCC 200];

ix. Workmen and Others vs. Bharat Fritz Werner (P)
Ltd., and Others, [1990(3) SCC 565];

x. Caltex (India) Ltd., vs. Their Workmen [AIR 1960
SC 1262];

xi. Metropolitan Transport Corporation vs.
V.Venkatesan [2009(9) SCC 601];

xii. The State of Uttar Pradesh and Others vs. Rajit
Singh [AIR 2022 SC 1551];

xiii. State of U.P. vs. Bahadur Singh and Others [1983(3) SCC 73];

xiv. Union of India (UOI) and Others vs. N.Murugesan
and Others [2022(2) SCC 25];

xv. State of Rajasthan vs. Kalki and Others [1981(2)
SCC 752];

xvi. Raju and Others vs. State of Tamil Nadu [2012(12) SCC 701];

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xvii. Ganapathi and Others vs. The State of Tamil
Nadu and Others [2018(5) SCC 549].
14. Per contra, Smt.Maitreyi Krishnan, learned

counsel appearing on behalf of Sri K.S.Subramanya,

learned counsel for the respondent-workmen vehemently

contends that the entire case of the Management is based

on the Settlement Agreement dated 30.08.1995 arrived at

between the workmen and the Management before the

formation of the Union. She contends that its authenticity

is doubtful and that the settlement was not entered into in

a normal manner, but the workmen were individually

asked to sign without knowing its contents. She also

submitted that a copy of the settlement was not given to

the workmen. Therefore, reliance on the settlement is not

proper and it is rightly held so by the Tribunal. It is also

contended by the learned counsel for the respondent that

14 days' notice as contemplated in the alleged agreement

is not sustainable, as she contends that the alleged strike

was only for a period of two hours merely to attend the

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inaugural programme of the Union in front of the factory

participating in the Union's programme of action of

Upavasa Satyagraha (hunger strike) against the

Management's vindictive transfers of five leaders of the

Union to far-away places and suspension of ten of active

members on false allegations. The Management was bent

upon victimising the workmen as they formed a Union and

did not agree to give up their cause. She further contends

that the action of the Management in this regard is illegal

and not justified. It is further contended that the

workmen have right to resist any illegal actions and

programmes of the Management by forming a trade union,

and any orders contrary passed to resist formation of a

trade union or lawful agitation of protest cannot be termed

as strike and an extreme shocking punishment cannot be

imposed which is disproportionate to the alleged acts of

misconduct. She contends that the Tribunal is justified in

passing the order relying upon various judgments of the

Hon'ble Apex Court, whereby the Management sought

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permission to dismiss the workmen. Hence, she contends

that there is no illegality or perversity in the order passed

by the Tribunal. It is further contended by the learned

counsel that the Settlement Agreement entered into

between the petitioner-Management and the employees is

one-sided, as there was no collective bargaining and there

being no Union of its workmen until its formation in June

1. The settlement relied upon by the Management was

arrived at in the year 1995 with individual workers before

the formation of the Union in 1998.

1. Learned counsel for the respondent further

contends that the Management has not implemented the

settlement and has resorted to victimisation and unfair

labour practices. They have also not recognised the Union,

which was a party to the Minutes of the understanding

reached between the petitioner-Management and the

Union before the Deputy Chief Minister on 01.01.1999

regarding payment of strike wages and other issues.

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Learned counsel further contends that the domestic

enquiry held came to be set aside and on challenge by the

Management, the Writ Petition came to be rejected.

Therefore, the Tribunal has rightly concluded to reject the

application of the petitioner-Management seeking

permission for dismissal. The petitioner-Management has

paid a mere subsistence allowance since the respondent

was kept under suspension and the same was only for a

short period of 20 months, which is liable to be paid by the

Management. The legitimate claims and dues of the

respondent have been denied by the Management.

Learned counsel further contends that there is no much

material for consideration in favour of the Management, as

all the materials placed have been negatived by the

Tribunal by appreciating the evidence of the witnesses of

the management.

1. It is further contended that the workmen are

not at all responsible for the prolonged strike, as it is the

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Management which is solely responsible for taking

unwarranted decisions to keep the workers out of their

participation in two hours gate meeting during working

hours which was called by the Union for inauguration

programme of Upavasa Satyagraha in protest against five

leading functionaries of the Union and ten active members

of the Union. Therefore, it is the Management itself that is

to be blamed for its actions.

1. It is also contended that the Tribunal is right in

holding that the action of the Management in seeking

undertakings amounts to unfair labour practice based on

Point No.8 of the 5th Schedule, as the strike by the

workmen is held to be a legal strike. It is further

contended that a strike for two hours and absence cannot

be considered a serious act of misconduct by any stretch

of imagination. Therefore, the impugned order passed by

the Tribunal holding that the strike is legal and justified,

and the petitioner-Management making efforts to term it

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as untenable and illegal, is unsustainable and deserves to

be rejected outright.

1. It is also contended that the respondent-

workman has not been paid Rs.1,65,368/- and he has

undergone mental and financial difficulties so also his

family members. On these grounds, she seeks to dismiss

the petition and sustain the impugned order passed by the

Tribunal.

1. Learned counsel for the respondent further

contends that had the undertaking was sought by the

Management from the first-shift workers, the respondent

came in the second shift. Hence, there was no question of

the respondent having participated in the strike, as

according to the Management, the strike commenced on

16.07.1998 between 8:15 a.m., and 10:15 a.m., whereas

the respondent came for duty in the second shift. She

further contends that having dropped enquiry for 14

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workmen, it is only the respondent who is victimised.

Therefore, it is clearly apparent on the face of the record

and from the material placed that the respondent has

been clearly separated and victimised.

1. Learned counsel for the respondent relies upon

the following judgments in support of her case:

i. Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd. Vs.
Ram Gopal Sharma and Others [(2002)2 SCC
244];

ii. Mysore Steel Works Private Limited vs. Jitendra
Chandra Kar and Ors., [(1971)1 LLJ 543 (SC)];

iii. Lalla Ram vs. D.C.M. Chemical Works Ltd., and
Another, [(1978)3 SCC 1];

iv. John D' Souza vs. Karnataka State Road
Transport Corporation [(2019)18 SCC 47];

v. Pandian Roadways Corporation Ltd.,
(represented by its Managing Director), Madurai
vs. Presiding Officer, Industrial Tribunal, Madras
and others, [2005(1) LLN 889];

vi. M/s. Chandrana Brothers and Others vs.
K.Venkat Rao and Others, [ILR 1976 KAR 513];

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vii. [M.R. Achar vs. Syndicate Bank ILR 2006 KAR
3380];

viii. Vaman Maruty Gharat and Another vs. M.S.Apte
and Others [1998 LLN 2 375];

ix. Aditya Mills Ltd. Madanganj vs. Ram Dayal in
Special Appeal No.478/1971 decided on 27th July,
1972];

x. Workmen vs. M/s Williamson Magor and Co. Ltd.

and another [(1982)1 SCC 117];

xi. Colour-Chem Ltd., vs. A.L.Alaspurkar and Others,
[(1998)3 SCC 192];

xii. Hind Construction and Engineering Co., Ltd., vs.
Their Workmen [AIR 1965 SC 917];

xiii. Sangram Singh vs. Election Tribunal, Kotah and
another [AIR 1955 SC 425];

xiv. Syed Yakoob vs. K.S.Radhakrishnan and Others [AIR 1964 SC 477];

xv. Bosch Limited vs. Labour through Karnataka
Rakshak and General Workers Union in Writ
Appeal No.399/2019 dated 19.12.2024.
21. I have heard learned senior counsel for the

petitioner-Management and learned counsel for the

respondent-Workman.

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1. It is not in dispute that the petitioner-

Management approached the Tribunal under [Section

33(1)(b)](https://indiankanoon.org/doc/462483/) of the ID Act seeking permission of proposed

order of dismissal of the respondent workman from

service. It is also not in dispute that industrial dispute was

already pending with regard to charter of payment before

the Tribunal in ID No.28/2001 wherein the respondent-

workman was one of the concerned workmen. In view of

the same, an application came to be filed by the

petitioner-Management as Serial Application No.8/2002

under Section 33(1)(b) of the ID Act seeking permission

for dismissal of the workman and accordingly, led evidence

to establish the misconduct on the part of the workman.

Upon evidence being adduced by the Management, the

workman and by producing necessary materials by

marking them as Exs.A1 to A28 and Exs.O1 to O22 and

after hearing the arguments, the learned Tribunal

dismissed the application of the Management filed under

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HC-KAR Section 33(1)(b) of the ID Act, due to which the petitioner

is before this Court.

1. The point that arises for consideration before

this Court is whether the petitioner-Management has made

out any substantial case and good ground to set aside the

impugned order passed by the Tribunal, consequent to

grant of permission for dismissal of the workman vide

order dated 13.03.2002.

1. Apparently, it is seen that the settlement dated

30.08.1995 was accepted by 216 workmen out of 245

workmen. Though few of the workmen did not sign the

settlement, the benefit was extended to the said workmen

as well. It is alleged by the Management that the

respondent workman participated in illegal strike on

16.07.1998 and 29.07.1998 conducted picketing/

demonstrating opposite the Management/factory and

prevented the workmen and officers from work. Therefore,

the allegations are made against the workmen for having

violated the provisions of the standing order. The

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Management has examined 06 witnesses as AW1 to AW6.

The evidence of these witnesses have been taken into

consideration by the Labour Court and the evidence of

some of the witnesses have been culled out in the

impugned judgment of the Tribunal. After analyzing the

evidence on record, the Tribunal has come to the

conclusion that certain witnesses examined on behalf of

the Management had not personally seen the respondent-

workman participating in the strike. The Tribunal has,

therefore, held that the evidence tendered by the

Management witnesses is biased and partisan in nature.

What requires to be seen is whether the respondent-

workman was involved in the strike warranting dismissal

from his services. The Tribunal has come to a conclusion

that to protest the transfer of workmen, who are the office

bearers of the union, had scheduled 'Relay Hunger Strike'

and its opening ceremony was scheduled on 16.07.1998 at

morning 8:00 a.m. In view of the said 'Relay Hunger

Strike', the workman could not attend the work for first

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half of the first shift and general shift. Apparently, there is

workers union namely 'Fouress Engineering Karmika

Sangha'. Though petitioner contended that there was a

settlement between the workman and the Management,

the same is disputed by the workman.

1. It is also seen that in the said settlement

between the workman and the Management of Fouress

Engineering India Limited, all the workmen had not signed

the settlement agreement. The Tribunal has come to a

conclusion that there was no participation of "Union" on

behalf of the workmen, for the reason that name of the

"Union" is not stated, but only it is stated just "workmen".

It is also seen that the Management had transferred some

of the workmen to a far off places like Aurangabad and

Arunachal Pradesh. Therefore, when the workmen wanted

to form union, the same was resisted by the Management

which would amount to unfair labour practice, as forming

of a union is a right vested in the Act.

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1. Having considered all these aspects and by

relying upon several judgments of the Hon'ble Apex Court,

including the case of Colour Chem Ltd., (supra), the

Tribunal did not find any good or cogent reason to accept

the argument of the petitioner-Management to consider its

case for dismissal of the workman from duties.

1. The Hon'ble Apex Court in the case of [Jaipur

Zilla Sahakar Bhoomi Vikas Bank Ltd.](https://indiankanoon.org/doc/34445/), case (supra), at

paragraph No.13 held as under:

"13. The proviso to Section 33(2)(b), as can be seen from
its very unambiguous and clear language, is mandatory.
This apart, from the object of Section 33 and in the context of
the proviso to Section 33(2)(b), it is obvious that the
conditions contained in the said proviso are to be essentially
complied with. Further any employer who contravenes the
provisions of Section 33 invites a punishment under S.31(1) with imprisonment for a term which may extend to six
months or with fine which may extend to Rs.1000/- or with
both. This penal provision is again a pointer of the
mandatory nature of the proviso to comply with the
conditions stated therein. To put it in other way, the said
conditions being mandatory, are to be satisfied if an order of
discharge or dismissal passed under Section 33(2)(b) is to be
operative. If an employer desires to take benefit of the said
provision for passing an order of discharge or dismissal of an
employee, he has also to take the burden of discharging the
statutory obligation placed on him in the said proviso.
Taking a contrary view that an order of discharge or
dismissal passed by an employer in contravention of the

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mandatory conditions contained in the proviso does not
render such an order inoperative or void, defeats the very
purpose of the proviso and it becomes meaningless. It is
well-settled rule of interpretation that no part of statute
shall be construed as unnecessary or superfluous. The
proviso cannot be diluted or disobeyed by an employer. He
cannot disobey the mandatory provision and then say that
the order of discharge or dismissal made in contravention of Section 33(2)(b) is not void or inoperative. He cannot be
permitted to take advantage of his own wrong. The
interpretation of statute must be such that it should advance
the legislative intent and serve the purpose for which it is
made rather than to frustrate it. The proviso to Section
33(2)(b) affords protection to a workman to safeguard his
interest and it is a shield against victimization and unfair
labour practice by the employer during the pendency of
industrial dispute when the relationship between them are
already strained. An employer cannot be permitted to use
the provision of Section 33(2)(b) to ease out a workman
without complying with the conditions contained in the said
proviso for any alleged misconduct said to be unconnected
with the already pending industrial dispute. The protection
afforded to a workman under the said provision cannot be
taken away. If it is to be held that an order of discharge or
dismissal passed by the employer without complying with
the requirements of the said proviso is not void or
inoperative, the employer may with impunity discharge or
dismiss a workman.
28. The Hon'ble Apex Court in the case of [Mysore

Steel Works](https://indiankanoon.org/doc/100622895/) (supra), at paragraph No.10 held as under:

"10. The question as to the scope of the power of an
Industrial Tribunal in an enquiry under Section 33(2) of the
Industrial Disputes Act has by now been considered by this
Court in a number of decisions and is no longer in dispute. If
the Tribunal comes to the conclusion that the domestic
enquiry was not defective, that is, it was not in violation of
the principles of natural justice, It has only to see if there
was a prima facie case for dismissal, and whether the

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employer had come to a bona fide conclusion that the
employee was guilty of misconduct. In other words, there
was no unfair labour practice and no victimisation. It will
then grant Its approval. If the Tribunal, on the other hand,
finds that the enquiry is defective for any reason, it would
have to consider for itself on the evidence adduced before it
whether the dismissal was justified. If it comes to the
conclusion on its own appraisal of evidence adduced before
it that the dismissal was justified it would give its approval
to the order of dismissal made by the employer in a
domestic enquiry. (See P.H. Kalyani v. Air France) where,
therefore the domestic enquiry is conducted in violation of
the principles of natural justice evidence must be adduced
before the Tribunal by the employer to obtain its approval.
Such evidence must be adduced in the manner evidence is
normally adduced before the Tribunal, that is, witnesses
must be examined and not by merely tendering the
evidence laid before the domestic enquiry, unless the parties
agree and the tribunal given its assent to such a procedure. (See K.N. Barmab v. Management of Badla Beta Tea
Estate). It is clear, therefore, that the jurisdiction of a
tribunal under Section 33(2) is of a limited character. Where
the domestic enquiry is not defective by reason of violation
of principles of natural justice or its findings being perverse
or by reason of any unfair labour practice, the tribunal has
only to be satisfied that there is a prima facie case for
dismissal. The tribunal in such cases does not sit as an
appellate Court and come to its own finding of fact."
29. The Hon'ble Apex Court in the case of [Lalla

Ram](https://indiankanoon.org/doc/1814310/) (supra) at paragraph No.12 held as under:

1. The position that emerges from the above quoted decisions of this Court may be stated thus : In proceedings under Section 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

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 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, Titaghur Paper Mills Co. Ltd.
v. Ram Naresh Kumar, Hind Construction & Engineering
Co. Ltd. v. Their Workmen, Workmen of Messrs Firestone Tyre
& Rubber Company of India (P) Ltd. v. Management & Ors,
and Eastern Electric and Trading Co. v. Baldev Lal 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
inference of mala fides 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 game 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. If however, the
domestic enquiry suffers from any defect or
infirmity, the labour authority will have to find out
on its own assessment of the evidence adduced
before it whether there was justification for
dismissal and if it so finds it will grant approval of

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 the order of dismissal which would also relate
 back to the date when the order was passed
 provided the employer had paid or offered to pay
 wages for one month to the employee and the
 employer had within the time indicated above
 applied to the authority before which the main
 industrial dispute is pending for approval of the
 action taken by him."

1. The Hon'ble Apex Court in the case of [John

D'Souza](https://indiankanoon.org/doc/97158736/) (supra), at paragraph Nos.32 and 33 held as

under:

"32. The Three-Judge bench decisions of this
Court in Punjab National Bank and Mysore Steel Works (P)
Ltd., as well as the Division Bench judgment in
Lalla Ram were unfortunately not cited before this
Court in Cholan Roadways Ltd. There is yet no
conflict of opinion as in Cholan Roadways Ltd. also
this Court reiterated the past consistent view that
while exercising jurisdiction under Section 33(2)(b) of
the Act, the Industrial Tribunal is required to see
only whether a prima facie case has been made
out as regard to the requirement of domestic
enquiry. Cholan Roadways nonetheless deals with
only 1st phase of the jurisdiction exercisable
under Section 33(2)(b) and it falls short to elucidate
as to whether, in the event of a defective
domestic enquiry, the Labour Court/Tribunal can
also the parties to adduce evidence. The second
phase of Jurisdiction exercisable under Section
33(2)(b) was not debated in Cholan Roadways
apparently for the reason that on facts this Court
was satisfied that the delinquent workman was
guilty of the misconduct attributed and proved
against him in the domestic enquiry. On the other
hand, Mysore Steel Works (P) Ltd. and Lalla Ram

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have gone a step ahead to hold that the Tribunal
can permit the parties to adduce evidence if it
finds that the domestic enquiry suffers from any
defect or was violative of the principles of natural
justice or was marred by unfair labour practice, it
may then independently examine the evidence led
before it to embark upon the question whether or
not the punitive action deserves to be accorded
approval.

1. It, thus, stands out that though the Labour Court or the Tribunal while exercising their jurisdiction under Section 33(2)(b) are empowered to permit the parties to lead evidence in respect of the legality and propriety of the domestic enquiry held into the misconduct of a workman, such evidence would be taken into consideration by the Labour Court or the Tribunal only if it is found that the domestic enquiry conducted by the Management on the scale that the standard of proof required therein can be "preponderance of probability" and not a "proof beyond all reasonable doubts" suffers from inherent defects or is violative of principles of natural justice. In other words, the Labour Court or the Tribunal cannot without first examining the material led in the domestic enquiry jump to a conclusion and mechanically permit the parties to lead evidence as if it is an essential procedural part of the enquiry to be held under Section 33(2)(b) of the Act."
2. The Hon'ble Apex Court in the case of M/s Williamson Magor and Co.Ltd, (supra) at Paragraph

No.12 held as under:

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"12. "Mr Pai, learned counsel appearing for the management,
made two submissions before us. Firstly, he submitted that
unlike in public sector undertakings, promotion is not a
condition of service in a private company. We are unable to
accept the submission of Mr Pai in toto. If there is no scope of
any promotion or upgradation or increase in salary in a private
undertaking, the submission of the learned counsel may be
justified but if there are grades and scopes of
upgradation/promotion and there are different scales of pay for
different grades in a private undertaking, and, in fact,
promotion is given or upgradation is made, there should be no
arbitrary or unjust and unreasonable upgradation or promotion
of persons superseding the claims of persons who may be
equally or even more, suitable. The second submission of Mr Pai
is that although there were no norms, the promotions of the
persons in question were not arbitrary and that the findings of
the Tribunal in this regard were incorrect. He led us through the
material evidence of the witnesses examined. We are unable to
agree with learned counsel and do not find any reason to differ
from the findings of the learned Tribunal that the promotions of
the 15 persons were arbitrary and unjusti-fied. Mr Pai also
submitted that unless victimisation was proved by the Union,
the management's action should not be disturbed. The word
'victimisation' has not been defined in the statute. The term was
considered by this Court in the case of Bharat Bank Ltd. v.
Employees. This Court observed, "It (victimisation) is an
ordinary English word which means that a certain person has
become a victim, in other words, that he has been unjustly
dealt with". A submission was made on behalf of the
management in that case that 'victimisation' had acquired a
special meaning in industrial disputes and connoted a person
who became the victim of the employer's wrath by reason of his
trade union activities and that the word could not relate to a
person who was merely unjustly dismissed. This submission,
however, was not considered by the Court. When, however, the
word 'victimisation' can be interpreted in two different ways, the
interpretation which is in favour of the labour should be
accepted as they are the poorer section of the people compared
to the management."

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1. The Hon'ble Apex Court in the case of [Colour

Chem Limited](https://indiankanoon.org/doc/173844/) (supra), at paragraph No.13 held as

under:

"13. The term "victimisation" is not defined by the present
Act. Sub- 9 section (18) of Section 3 of the Act which is the
definition section lays down that:

"Words and expressions used in this Act and
not defined therein, but defined in the Bombay Act, shall, in relation to any industry
to which the provisions of the Bombay Act apply, have the meanings assigned to them
by the Bombay Act; and in any other case,
shall have the meanings assigned to h them
by the Central Act

Bombay Act is the Bombay Industrial Relations Act,
1946 and the Central Act is the Industrial Disputes
Act, 1947 as laid down by definition Sections 3(1) and 3(2) of the Act. The term "victimisation" is
defined neither by the Central Act nor by the Bombay
Act. Therefore, the term "victimisation" has to be
given general dictionary meaning. In Concise Oxford
Dictionary, 7th Edn., the term "victimisation" is
defined at p. 1197 as follows:

"make a victim; cheat; make suffer by
dismissal or other exceptional treatments."
Thus if a person is made to suffer by some
exceptional treatment it would amount to
victimisation. The term "victimisation" is of
comprehensive import. It may be victimisation in fact
or in law. Factual victimisation may consist of diverse
acts of employers who are out to drive out and
punish an employee for no real reason and for
extraneous reasons. As for example a militant trade
union leader who is a thorn in the side of the
management may cbe discharged or dismissed for
that very reason camouflaged by another ostensibly
different reason. Such instances amount to unfair

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     labour practices on account of factual victimisation.
     Once that happens clause (a) of Item 1 of [Schedule
     IV of the Act](https://indiankanoon.org/doc/500379/) would get attracted, even apart from
     the very same act being covered by unfair labour
     practices envisaged by clauses (b), (c), (d) and (e) of
     the very same Item 1 of Schedule IV. But it cannot
     be said that d clause (a) of Item I which deals with
     victimisation covers only factual victimisation. There
     can be in addition legal victimisation and it is this
     type of victimisation which is contemplated by the
     decision of this Court in Hind Construction. It must,
     therefore, be held that if the punishment of dismissal
     or discharge is found shockingly disproportionate by
     the Court regard being had to the particular major
     misconduct and the past service record of the
     delinquent or is such as no reasonable employer
     could ever impose in like circumstances, it would be
     unfair labour practice by itself being an instance of
     victimisation in law or legal victimisation independent
     of factual victimisation, if any. Such an unfair labour
     practice is covered by the present Act by enactment
     of clause (a) of Item 1 of [Schedule IV of the Act](https://indiankanoon.org/doc/500379/) as it
     would be an act of victimisation in law as clearly
     ruled by this Court in the aforesaid decision. On the
     same lines is a latter decision of this Court in the
     case of [Bharat Iron Works v. Bhagubhai Balubhai
     Patel](https://indiankanoon.org/doc/77506/) wherein a Bench of three learned Judges
     speaking through Goswami, J. laid down the
     parameters of the term "victimisation" as understood
     in labour laws and as contemplated by industrial
     jurisprudence. It has been observed that 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. If actual fault or guilt meriting punishment is
     established, such action will be rid of the taint of
     victimisation. The aforesaid observations obviously
     refer to factual victimisation. But then follows further
     elucidation of the term "victimisation" to the following
     effect: (SCR Headnote
     "Victimisation may partake of various types, as for
     example, pressurising an employee to leave the
     union or union activities, treating an employee in a

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     discriminatory manner or inflicting a grossly
     monstrous punishment which no rational person
     would impose upon an employee arid the like."

     The aforesaid observations in this decision fall in line
     with the observations in the earlier decision of this
     Court in Hind Construction. Consequently it must be
     held that when looking to the nature of the charge of
     even major misconduct which is found proved if the
     punishment of dismissal or discharge as imposed is
     found to be grossly disproportionate in the light of
     the nature of the misconduct or the past record of
     the employee concerned b involved in the misconduct
     or is such which no reasonable employer would ever
     impose in like circumstances, inflicting of such
     punishment itself could be treated as legal
     victimisation. On the facts of the present case there
     is a clear finding reached by the Labour Court and as
     confirmed by the Industrial Court that the charges
     levelled against the respondent-delinquents which
     were held proved even though reflecting major
     misconducts, were not such c in the light of their past
     service record as would merit imposition of
     punishment of dismissal. This factual finding would
     obviously attract the conclusion that by imposing
     such punishment the appellant-management had
     victimised the respondent-delinquents. Imposition of
     such a shockingly disproportionate punishment by
     itself, therefore, has to be treated as legal
     victimisation    apart    from    not    being    factual
     victimisation as on the latter d aspect the Labour
     Court has held against the respondent-workmen and
     that finding has also remained well sustained on
     record. Thus it must be held that the management
     even though not guilty of factual victimisation was
     guilty of legal victimisation in the light of the proved
     facts which squarely attracted the ratio of the
     decisions of this Court in Hind Construction and
     Bharat Iron Works. It is easy to visualise that no
     reasonable management could have punished a
     delinquent workman who in the late hours of the
     night shift by about 3.30 a.m. had gone to sleep
     keeping the machine in a working condition especially
     in the absence of any gross misconduct reflected by

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       the past service record, with the extreme penalty of
       dismissal. It is also interesting to note that this was a
       peculiar case in which the Plant-in-Charge found
       during his surprise visit at 3.30 a.m. in the early
       hours of the dawn the entire work force of 10
       mazdoors and 2 operators like the respondents and
       the supervisor all asleep. It is also pertinent to note
       that so far as the 10 mazdoors were concerned they
       were let off for this very misconduct by a mere
       warning while the respondents were dismissed from
       service. It is, of course, true that the respondents
       were assigned more responsible duty as compared to
       the mazdoors, but in the background of the
       surrounding circumstances and especially in the light
       of their past service record there is 9 no escape from
       the conclusion that the punishment of dismissal
       imposed on them for such misconduct was grossly
       and shockingly disproportionate, as rightly held by
       the Labour Court and as confirmed by the revisional
       court and the High Court. By imposing such grossly
       disproportionate punishment on the respondents the
       appellant-management had tried to kill a fly with a
       sledgehammer. Consequently it must be held that the
       appellant was guilty of h unfair labour practice. Such
       an act was squarely covered by clause (a) of Item 1
       of [Schedule IV of the Act](https://indiankanoon.org/doc/500379/) being legal victimisation, if
       not factual victimisation. The ultimate finding of the
       Labour Court about maintainability of the complaint
       can be supported on this ground. The second point is
       answered in the affirmative against the appellant and
       in favour of the respondent-workmen."

1. The Hon'ble Apex Court in the case of [Hind

Construction and Engineering Co.Ltd.](https://indiankanoon.org/doc/1523242/), (supra), at

paragraph No.5 held as under:

"5. The next question is whether the Tribunal
was justified in interfering with the punishment of
dismissal after it had come to the conclusion that

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the workmen had gone on a strike even though
the strike was not illegal. Reference is made to a
number of cases in which the principles for the
guidance of the Tribunals in such matters have
been laid down by this Court. It is now settled law
that the Tribunal is not to examine the finding or
the quantum of punishment because the whole of
the dispute is not really open before the Tribunal
as it is ordinarily before a court of appeal. The
Tribunal's powers have been stated by this Court
in a large number of cases and it has been ruled
that the Tribunal can only interfere if the conduct
of the employer shows lack of bona fides or
victimization of employee or employees or unfair
labour practice. The Tribunal may in a strong case
interfere with a basic error on a point of fact or a
perverse finding, but it cannot substitute its own
appraisal of the evidence for that of the officer
conducting the domestic enquiry though it may
interfere where the principles of natural justice or
fair play have not been followed or where the
enquiry is so perverted in its procedure as to
amount to no enquiry at all. In respect of
punishment it has been ruled that the award of
punishment for misconduct under the Standing
Orders, if any, is a matter for the management to
decide and if there is any justification for the
punishment imposed the Tribunal should' not
interfere. The Tribunal is not required to consider
the propriety or adequacy of the punishment or
whether it is excessive or too severe. But where
the punishment is shockingly disproportionate,
regard being had to the particular conduct and the
past record or is such, as no reasonable employer
would ever impose in like circumstances, the
Tribunal may treat the imposition of such
punishment as itself showing victimization or
unfair labour practice. These principles can be
gathered from the following cases :-

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Bengal Bhatdee Coal Co. Ltd. v. Ram Probesh Singh](https://indiankanoon.org/doc/1093312/), Buckingham & Carnatic Co. Ltd. v. Workers; Titaghar Paper
Mills Co. Ltd. v. Ram Naresh Kumar, Doom Dooma Tea Co.
Ltd. v. Assam Chah Karamchari Sangh, Punjab National
Bank Ltd. v. Workmen; Chartered Bank Bombay v.
Chartered Bank Employees Union. In the present case the
dispute was whether the punishment amounted to
victimization or unfair labour practice. Mr. Sen Gupta
referred to various parts of the record of the enquiry to
show that the conduct of the workmen was regarded as
collective, that it was described as a strike, that it was
considered to be the result of a conspiracy and that there
was a demand for over time. Mr. Sen Gupta contended that,
in the circumstances, this must be regarded as a case of
victimization because only the permanent workers were
subjected to this treatment. Mr. Sen Gupta hinted that there
was an ulterior motive in dismissing the permanent workers
and getting the work done by temporary hands so that the
Union may break down and even the re-employment of
three workmen, who were probably indispensable to the
employer, was with the same motive. On the other hand,
Mr. Setalvad argued that there was nothing on the record to
show that this was a case of victimization. These persons
were found guilty at the enquiry and also by the Tribunal
and it was merely a question of what Punishment should be
imposed and that was a matter entirely within the,
competence of the employer.
34. The Hon'ble Apex Court in the case of [Sangram

Singh](https://indiankanoon.org/doc/1224706/) (supra), at paragraph No.14 held as under:

1. That, however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, and should not, act as Courts of appeal under Article 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognised lines and not arbitrarily; and one of the limitations imposed by

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 the Courts on, themselves is that they will not
 exercise jurisdiction in this class of case unless
 substantial injustice has ensued, or is likely to
 ensue. They will not allow themselves to be
 turned into Courts of appeal or revision to set
 right mere errors of law which do not occasion
 injustice in a broad and general sense, for, though
 no legislature can impose limitations on these
 constitutional powers it is a sound exercise of
 discretion to bear in mind the policy of the
 legislature to have disputes about these special
 rights decided as special as may be. Therefore,
 writ petitions should not be lightly entertained in
 this class of case."

1. The Hon'ble Apex Court in the case of [Bosch

Limited](https://indiankanoon.org/doc/74297670/) (supra), at paragraph Nos.30 and 31 held as

under:

1. Though the learned senior counsel appearing for the appellant attempted to draw our attention to the details of the evidence led before the Labour Court, we are of the opinion that re-appreciation of the evidence led before the Labour Court would be impermissible by the learned Single Judge exercising jurisdiction under Articles 226 and 227 of the Constitution of India and indeed by us in an intra-Court appeal in these proceedings. The contention that the Union which espoused the cause of the workmen was not the recognised Union of the establishment would also be of no avail in a case, where the specific contention is that the contract relied on by the Management is sham. In such circumstances, it is clear that the workmen can themselves raise the dispute. The contentions, if any, taken by the workmen in an earlier suit would also not make any difference to the situation since the Labour Court which is the adjudicating authority empowered to decide an industrial dispute considers and decides the dispute raised before it on the basis of the evidence led by both sides.
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1. It is trite law that an award of the Labour Court,
   

   which is rendered after considering the evidence placed on
   record is not liable to be lightly interfered with by the
   Constitutional Court exercising the power of judicial review.
   The Apex Court in the case of State of Andhra Pradesh and
   Others v. S. Sree Rama Rao reported in
   MANU/SC/0222/1963: 1963: INSC: 97, has held that, "It is
   not the function of the High Court in a petition for a writ
   under Article 226 to review the evidence and to arrive at an
   independent finding on the evidence." It is only when the
   findings arrived at by the Labour Court are patently illegal,
   totally unreasonable or perverse that the Constitutional
   Court would be justified in interfering with such findings. It
   is also clear that what is being exercised is not any power of
   appeal since no such appeal is contemplated under the
   provisions of the statute.

2. Having considered the arguments of learned

counsels for both the parties and having gone through the

impugned award, I do not find any good ground or cogent

reason calling for interference in the impugned order

passed by the learned Tribunal at the hands of this Court,

as this Court is not sitting in appeal jurisdiction. What is to

be seen is only whether the Tribunal has committed any

illegality or perversity and has ignored any of the

materials placed on record, both oral and documentary.

1. In the present case on hand, it appears that

there is victimization of the respondent, which amounts to

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unfair labour practice, so also, the Tribunal has come to a

conclusion that the respondent came for duty in the

second shift and the strike commenced in the first shift

between 08.15 a.m. to 10.15 a.m. Therefore, the question

of respondent participating in illegal strike would not be

sustainable as he came for the second shift. It is also to be

seen that the scope and powers of this Court under Articles - 226 and 227 of the Constitution of India is

limited and narrow as this Court cannot step into the arm

chair of an appellate court jurisdiction, to review the

evidence once again to arrive at a independent finding on

the basis of evidence. What is required to be seen is

whether the Tribunal has committed any patent illegality

and the order passed is unreasonable or perverse,

warranting interference of this Court. Having adverted to

all these issues, the Tribunal has rightly come to a

conclusion dismissing the application filed by the

Management, which in my opinion does not call for

interference.

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1. In view of the above discussions, I do not find

any such illegality or perversity in the order passed by the

Tribunal.

1. Accordingly, I pass the following:

ORDER

i. Writ petition is dismissed.

Sd/-

(PRADEEP SINGH YERUR)
JUDGE

NB/VNR
List No.: 19 Sl No.: 2