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The tribunal was, however, conscious that merely because certain workmen were protected workmen they were not thereby given complete immunity for anything that they might do even, though it might be misconduct meriting dismissal. But it, pointed out that the misconduct complained in this case entailed fine, suspension or dismissal of the workmen, and the appellant chose dismissal, which was the extreme penalty. It referred to a decision of the Calcutta High Court in National Tobacco Company of India Ltd. v. Fourth Industrial Tribunal (1), where it was held that in a case where the punishment meted out was unconscionable or grossly out of proportion to the nature of the offence that may itself be a ground for holding that the dismissal was an act of victimisation. It seems to have held that the punishment of dismissal in this case was unconscionable or at any rate grossly out of proportion to the nature of the offence and therefore came to the conclusion that this was a case of victimisation. Now there is no doubt that though in a case of proved misconduct, normally the imposition of a penalty may be within the discretion of the management there may be cases where the punishment of dismissal for the misconduct proved may be so unconscionable or so grossly out of proportion to the nature of the offence that the tribunal may be able to draw an inference of victimisation merely from the punishment inflicted. But we are of opinion that the present is not such a case and no inference of victimisation can be made merely from the fact that punishment of dismissal was imposed in this case and not either fine or suspension. It is not in dispute that a strike was going on during those days when the misconduct was committed. It was the case of the appellant that the strike was unsatisfied and illegal La it appears that the Regional Labour Commissioner, Central, Dhanbad, agreed with this view of the appellant. It was during such a strike that the misconduct in question took place and the misconduct was that these' thirteen workmen physically obstructed other workmen who were willing to work from doing their work by sitting down between the tramlines. This was in our opinion serious misconduct on the part of the' thirteen workmen and if it is found-as it has been found-proved punishment of dismissal would be perfectly justified. It cannot therefore be said looking at the nature of the offence that the punishment inflicted in this case was grossly out of, proportion or was unconscionable, and the tribunal was not justified in coming to the conclusion that this was a case of victimisation because the appellant decided to dismiss these workmen and was not prepared to let them off with fine or suspension.

There is practically no other evidence in support of the finding of the tribunal. It is true that the relations between the appellant and the union to which these workmen belonged were not happy. It is also proved that there was another union in existence in this concern. Perhaps the fact that there were two unions would in itself explain why the relations of the appellant with one of the unions to which these workmen belonged were not happy. But the fact that the relations between an employer and the union were not happy and the workmen concerned. were office-bearers or active workers of the union would by itself be no evidence to prove victimisation, for if that were so, it would mean that the office-bearers and active workers of a union with which the employer is not on good terms would have a carte blanche to commit any misconduct and get away with it on the ground that relations between the employer and the union were not happy. We are therefore of opinion that the finding of victimisation in this case is based, merely on conjectures and surmises. We have already considered the main reason given by the tribunal, namely, the nature of the punishment, and have held that that cannot be said to be unconscionable or grossly out of proportion to the nature of the offence.

Another reason given by the tribunal in support of the finding of victimisation is also patently wrong. The tribunal says that in reports made to the police certain persons were mentioned as having taken part in the misconduct of October 27, 1959; but in the written-statement filed by the appellant two other persons, namely Ratan Gope and Sohan Gope who were not mentioned in the police report, were also mentioned as having taken part in the incident of October 27. The tribunal thereby concluded that Sohan Gope and Ratan Gope were falsely implicated in the incident of October 27. Curiously, however, it went on to say that this might be a mistake but added that it meant dismissal of these people and the finding in this respect was not only wrong but perverse. It does appear 'that by mistake in para. 5 of the appellant's written statement before the tribunal names of Ratan Gope and Sohan Gope are mentioned as having taken part in the incident of October 27. But the charge-sheets which were given to them were only about the incident of October 20. The finding of the domestic inquiry also was with respect to the incident of October 20. So it seems that there was no justification for the tribunal to hold that the finding was perverse, because there was no finding that these two persons had taken part in the incident of October 27. There can be little doubt that there was a mistake in the written statement of the appellant for there was no charge against these two people about the incident of October 27 and no finding about it by the Welfare Officer. The tribunal therefore was patently wrong in using this mistake as evidence of victimisation. We are therefore of opinion that there is no evidence worth the name in the present case to support the tribunal's finding as to victimisation and consequent want of good faith. In the circumstances the tribunal's award must be set aside.