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Whether and under what facts and circumstances a Tribunal will accept the plea of victimisation against the employer will depend upon its judicial discretion.

What is victimisation is again a multi-headed monster to tackle with. The word 'victimisation' is not defined in the Industrial Disputes Act. An attempt to describe 'unfair practices by employers' by a deeming definition was made under section 28K in Chapter III B of the Indian Trade Unions (Amendment) Act 1947 (Act XLV of 1947) but we understand, it has not yet been brought into force. The concept of victiminisation is to a large extent brought out under section 28K of that unenforced law and it may be worthwhile to quote the same as it throws sufficient light on the topic and will offer guidance to Tribunals in adjudicating a ticklish issue of this nature :

Provided that the refusal of an employer to permit his workmen to engage in Trade Union activities during their hours of work shall not be deemed to be an unfair practice on his part".

Section 28-F provides for rights of recognised Trade Unions.

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, in the manner, as it were, of a sacrificial victim. It is, therefore, manifest that if actual fault or guilt meriting the punishment is established, such action will be rid of the taint of victimisation.

Again victimisation must be directly connected with the activities of the concerned employee inevitably leading to the penal action without the necessary proof of a valid charge against him. The question to be asked : Is the reason for the punishment attributable to a gross misconduct about which there is no doubt or to his particular trade union activity which is frowned upon by the employer ? To take an example, suppose there is a tense atmosphere prevailing in a company because of a strike consequent upon raising of certain demands by the union, each party calling the other highly unreasonable or even provocative, the Tribunal will not readily accept a plea of victimisation as answer to a gross misconduct even when an employee, be he an active office beal earer of the union, commits assault, let us say, upon the Manager, and there is reliable legal evidence to that effect. In such a case the employee, found guilty, cannot be equated with a victim or a scapegoat and the plea of victimisation as a defence will fall flat. This is why once, in the opinion of the Tribunal a gross misconduct is established, as required, on legal evidence either in a fairly conducted domestic enquiry or before the Tribunal on merits, the plea of victimisation will not carry the case of the employee any further. 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.

We may, therefore, refer to that part of the Tribunal's order where it is found that the plea of victimisation was justified. Ordinarily we would not go into such a question of fact in an application under article 136 and that again when there is no direct appeal from the order of the Tribunal.

If the finding of the Tribunal that it was a case of victimisation is correct, the Tribunal could interfere with the orders of dismissal. On the test laid down above with regard to victimisation, it is found that the Tribunal by wrongly holding that no prima facie case was established naturally fell into an error. If the Tribunal held, as it should have righly held, that the offence was established, no question of victimisation could arise. Such an incident may be an unholy spark and aberration out of certain prevailing confrontation but cannot have the protective umbrella of legitimate trade union activity. Besides, the Tribunal in accepting the plea of victimisation took into consideration an extraneous factor, namely, about the justifiability or otherwise of the lay off. Lay off was beyond the scope of the enquiry under section 33 and the Tribunal went wrong by unnecessarily arriving at a conclusion against the management that lay off was unjustified. This conclusion of the Tribunal largely influenced it to hold the management guilty of victimisation. We are, therefore, clearly of opinion that in this case there is a manifest error of law on the part of the Tribunal in coming to the conclusion that the management was guilty of victimisation. The Tribunal made two serious errors, firstly by holding that the offence was not established, prima facie and secondly, by allowing it to be influenced by an extraneous finding with regard to the lay off. Since it is a jurisdictional fact and the Tribunal's correct finding about victimisation would entitle it to interfere with the order of the management a wrong decision regarding victimisation resulted in an error of jurisdiction on the part or the Tribunal in not allowing the applications under section 33. The High Court was, therefore, not correct in dismissing the writ application in limine.