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CiviL APPELLATE JURISDICTION : Civil Appeal No. 252 of 1960.

Appeal by special leave from the Award dated March 6, 1958, of the Industrial Tribunal, Bihar, Patna in Misc. Case No. 1 of 1959.

A. B. N. Sinha, K. K. Sinha and G. N. Dikshit, for the appellants.

T. R. Bhasin, for the respondents.

1961. September 20. The Judgment of the Court was delivered by DAS GUPTA J.-The appellant, a Sugar Mill Company, made on December 31, 1956 an application under s. 33 of the Industrial Disputes Act before the Industrial Tribunal, Bihar, Patina for the dismissal of 21 workmen for misconduct in connection with "go slow" alleged to have been resorted to by the workmen of the factory from the midnight of February 12, to the February 18, 1955. The Tribunal held that actual participation in a "go slow" had been established only against one of the workmen at the Donga end and that the "go slow" at the later stages in which the other 20 workmen had been engaged occurred as a necessary consequence of this go slow by one workman at the Donga end and was not a deliberate ,go slow" by them, The Tribunal was of opinion also that the management was not acting bona fide and really was seeking to victimise, active members of the Union which the employer had refused to recognise. Accordingly, it refused permission in respect of 20 of the workmen and gave permission to dismiss only Nihora Dubey a workman at the Donga The correctness of this refusal is challenged before is in this appeal by special. leave-. The appellant's contention is two-fold. First it is said that the finding of the Tribunal that these workmen in respect of whom permission to dismiss was refused were not guilty of any deliberate go slow is perverse; secondly it is contended that the Tribunal's view that the employer was guilty of mala fide conduct and victimisation of these workmen for Union activities is arbitrary and erroneous.

In view of these serious defects in the enquiry by the domestic tribunal it was not possible for the Industrial Tribunal to place any reliance an the findings of that domestic tribunal in order to decide whether permission to dismiss should be given Under s. 33 of the Industrial Disputes Act. (Vide Phulbari Tea Estate v. Its Workmen) Evidence was however adduced by the appellant before the Industrial Tribunal to make out its case that the workmen concerned were in fact guilty of the alleged misconduct. On behalf of the respondents it has been urged before us that once it is found that the enquiry by the domestic tribunal has been defective it was not open to the Industrial Tribunal before which the application under section 33 is made to allow any evidence to be adduced before it. We see no force in this contention. /When an application for permission for dismissal is made on the allegation that the workman has been guilty of some misconduct for which the management considers dismissal the appropriate punishment the Tribunal has to satisfy itself that there is a prima facie case for such dismissal. Where there has been a proper enquiry by the management itself the Tribunal, it has been settled by a number of decisions of this Court, has to accept the findings arrived at in that enquiry unless it is perverse and should give the permission asked for unless it has reason to believe that the management is guilty of victimisation or has been guilty of unfair labour practice or is acting mala fide. But the mere fact that no enquiry has been held or that the enquiry has not been properly conducted cannot absolve the Tribunal of its duty to decide whether the case that the workman has been guilty of the alleged misconduct has been made out.' The proper way for performing this duty where there has not been a proper enquiry by the management is, for the Tribunal to take evidence, of both sides in respect of the alleged misconduct. When such evidence is adduced before the Tribunal the management is deprived of the benefit of having the findings of the domestic tribunal being accepted as prima facie proof of the (1) [1960] (1) S. C. R. 32.

Before however permission can be granted to dismiss them for this misconduct we have to see whether the charge of mala fide and victimisation brought against the management is true. The workmen's suggestion which found favor with the Tribunal was that it was because of the Union activities of these 21 workmen that the management decided to take action against them and that the allegation that they had taken part in the go slow was merely a sham excuse. As regards the above workmen who it is established by the evidence were in fact guilty of go slow, can it be said that though the management takes action against them for this misconduct the real reason for the managements proposal is these people's Union activities ? We are unable to see any.

justification .for this view. If the misconduct had not been serious and still the management sought to dismiss them, taking advantage of the fact that under the Standing Orders a punishment of dismissal could be given, there might have been some scope for an argument that the apparent reason for the management's action was not the real reason. It is not possible however to consider actual participation in go slow as anything but very serious misconduct and no management can be accused reasonably of mala fide or of revengefulness if, it proposes punishment of dismissal for such conduct. The Industrial Tribunal appears to have been impressed by the fact that 13 other workmen who were suspended were pardoned and taken back while 21 ,were not allowed to join duty. It appears clear that several at least of the 13 who had been taken back were also active members of the Union. There is no ground for saying therefore that the management discriminated against these 21 workmen because of the fact that they were active members of the Union. It may very well be that they have been taken back as their active participation in the go slow was not established. Without knowing fully the circumstances under which those other 13 were taken back to work it is not proper to hold that there has been any discrimination against these 2 1. Learned Counsel for the respondents next contended that mala fide and victimisation were 'writ large on the conduct of the management 'in preventing the holding of a meeting for conciliation which was attempted by the Assistant Labour Commissioner. It is also urged that by this conduct the company provoked the workmen to resort to go slow. Even if it were' found that the company had deliberately avoided the proposed meeting there would be no ground for saying that the workmen had been "provoked" to go slow. Inspite of the recommendation of the go slow committee and the resolution of Bihar Government ,go slow" continued to be a misconduct under the Standing Orders "-and a mere refusal of the company to attend the conciliation meeting cannot be considered such provocation as would compel or justify the commission of misconduct. Nor can we find-even assuming for the present that the company did deliberately prevent the conciliation meeting before the 12th February-that this showed an intention to victimise. Before an industrial adjudication can find an employer guilty of an intention to victimise there must be reason to think that the employer was intending to punish workmen for their Union activities while purporting to take action ostensibly for some other activity. It would-be unreasonable to think, that the appellant, expected that if the meeting was not held on the date as proposed the workmen were surer to start go slow and that would give the management an opportunity of proceeding against the Union workers. It was not unreasonable for the management to expect better sense from workmen and to hope that they would not commit misconduct too readily. While we do not wish to say that no unfair conduct on the part of the management in negotiations over the workers' threat to go slow would ever justify a finding of mala fides on the employer's part, we must clearly say that the mere asking for adjournment of a conciliation meeting is not such conduct on which mala fides or an intention to victimise can be reasonably based. Apart from this, we are not satisfied that in the present case the management was guilty of any deliberate attempt to delay the conciliation meeting. The reasons for asking an adjournment of the meeting were clearly mentioned in the several telegrams sent by the management to the Labour Commissioner and there is nothing on the record to justify a conclusion that these reasons were not true or honestly given.