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"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 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 definitions 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, 7thEdn.. the term “victimisation” is defined at p. 1197 as follows:

"make a victim; cheat; make suffer by dismissal or other exceptional treatments."

https://www.mhc.tn.gov.in/judis Thus if a person is made the suffer by some exceptional treatment it would amount to victimisation. The term “victimisation” is of comprehensive import. It may be victimization 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 be discharged or dismissed for that very reason camouflaged by another ostensibly different reason. Such instances amount to unfair labour practices on account of factual victimisation. Once that happens clause (a) of Item 1 of Schedule IV of the Act 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 thatclause (a) of Item 1 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 https://www.mhc.tn.gov.in/judis 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 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 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) https://www.mhc.tn.gov.in/judis “Victimisation may partake of various types, as for example, pressurising an employee to leave the union or union activities, treating an employee in a discriminatory manner or inflicting a grossly monstrous punishment which no rational person would impose upon an employee and the like."

The aforesaid observations in this decision fall in line with the observations in the earlier decision of this Court in Hind Construction¹. 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 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 in the light of their past service record as would merit imposition of punishment of https://www.mhc.tn.gov.in/judis 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 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 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 https://www.mhc.tn.gov.in/judis 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 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 unfair labour practice. Such an act was squarely covered by clause (a) of Item 1 of Schedule IV of the Act 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."