MANAGER ST. RAPHEAL TILE WORKS Vs. GENERAL SECRETARY OLLUR MEGHELA OTTU CO. THOZHILALI UNION AND ANOTHER

JUDGEMENT

(1.) The appeal is by the Manager of St. Raoheal Tile Works, Ollur, against the judgment of a learned Judge of this Court who sustained the Award of the Industrial Tribunal, Kozhikode and dismissed the appellants' writ petition to quash Ext. P-l Award. The award was given in respect of a dispute relating to the termination of two workmen, Vasu and Kochappan belonging to the Union represented by the 1st respondent. The charge against the two workmen was that the stacking of tiles during the month of May, 1971 in Kiln Nos. 2 and 5 had not been done by them properly, and that when the rooms were opened after firing, it was' found that the Kilns were not fully stacked and that a space for stacking nearly 358 to 370 tiles had been left blank. The appellant's case was that this had been done purposely by the two workmen concerned to cause loss to the appellant and that in fact tiles were available for stacking. The explanation of the two workmen was called for in respect of the charges and a senior Advocate of Trichur was appointed Enquiry Officer. The Enquiry Officer found the charges against the workmen proved. The appellant-company accepted the finding and dismissed the workers with effect from 31-7-1971. The 1st respondent Union complained that the dismissal was unfair. Thereupon the dispute was referred to the Industrial Tribunal for adjudication. The appellant filed Ext. P-2 petition requesting the Tribunal to decide the legality and propriety of the domestic enquiry as a preliminary issue. The Tribunal passed Ext. P-l Award dated 21-5-1976 published in the Gazette dated 22-6-1976, directing reinstatement of the workers and payment by the appellant of one year's back wages for the period of non-employment. It recorded a finding that the domestic enquiry had been properly conducted (vide para 11). But in para 12 it recorded the finding that the mystery was the person to supervise the loading of tiles in the kiln and that the two workers cannot be said to be solely in charge of the kiln. The Tribunal remarked that the finding of the domestic enquiry cannot be said to be proper since the enquiry officer had omitted to take note of the important fact that the mastery had to supervise the loading. Therefore, the Tribunal found that the finding cannot be justified. It accordingly vacated the order of dismissal and directed reinstatement with one year's back wages towards the period of non-employment.

(2.) The learned Judge in para 4 of this judgment acted (sic) the unsatisfactory discussion and the conclusion of the Tribunal which had tempted him at the outset to send the matter bark for re-consideration to the Tribunal. But Counsel for the Union persuaded, and the learned Judge found, that such a course was not necessary and that the order of the Tribunal could be sustained on grounds other than those given by it. Tho learned Judge, after a fairly long discussion recorded his conclusion that the punishment of dismissal inflicted on the workers for the charge amounted to unfair labour practice and victimisation since even if the charge is proved, the workers could be corrected by means other than dismissal. The learned Judge seems to have been of the view that the punishment awarded was shockingly disproportionate to the charge. In the course of the discussion, the learned Judge noticed that under S. 11A of the Industrial Disputes Act newly introduced, the Industrial Tribunal had a wider jurisdiction to re-assess the evidence and to sit in judgment over the findings of the domestic enquiry. There can be no quarrel with this proposition. But even with the wider powers granted to the Tribunal under Sec. 11-A the question that arises for consideration is whether the Tribunal was justified in setting aside the order of dismissal and in directing re-instatement of the workers. As stated, the only ground given by the Tribunal for the course followed by it was that the mastery who was to supervise the loading and the stacking of the tiles inside the kiln was the person who should be held responsible for the short-loading or the defective loading of the bricks in the kiln on the occasion in question. This finding of the Tribunal is recorded in paragraph 12 of Ext. P-l which we have scanned carefully. In our view, it suffers from two infirmities: (1) that there is no express finding nor even an implied one that the two workmen are not responsible for the charge laid against them, either solely or jointly. Such finding as there can be. said to be, is only to the effect that the mastry is the person responsible for supervision of the loading and who is the one who is expected to be present at the spot; and (2) This finding against the mastry (who was a witness at the enquiry) suffers from the infirmity that it was entered without affording him any opportunity of being heard, as to why he should not be held responsible. The unfairness of such a finding can be visualised if he were to be charged on the said finding, and dismissed. The result is, we cannot endorse either aspect of the finding of the Tribunal, viz. the positive one that the mastry was really responsible, and the negative, that the two workers were not responsible at all - (in fact there is no definite finding by the Tribunal that the workers are not responsible at all). In these circumstances, the learned Judge was wrong in having sustained the finding of the Tribunal as justified by the record or by the evidence. We have also shown that on the reasoning of the Tribunal contained in para 12, its actual conclusion that the dismissal was not justified, cannot be supported.

(3.) The other reason in the judgment of the learned Judge is that the punishment of dismissal meted out by the management was shockingly disproportionate to the charge laid against the two workmen. For this reason, the learned Judge took the view that the Tribunal was justified in quashing the penalty of dismissal imposed on the workmen, and sustained the Award of the Tribunal. We cannot sustain this part of the judgment of the learned Judge also. It is true, as ported out by the Supreme Court in the Workmen of M/s. Firestone Tyre & Rubber Co. of India (Pvt. Ltd. Vs. The Management, ((1973) 1 Lab LJ 278) that after the introduction of Sec. 11-A in the Industrial Disputes Act, the Industrial Tribunal is given wider powers in the matter of re-assessing the evidence and the record of proceedings Of the domestic enquiry (vide para 33). But, to hold that the punishment inflicted is an instance of victimisation, is, as has beer pointed out by the Supreme Court itself, a matter which involves serious consequences to the management and such a finding should not be lightly entered by the Tribunal. Much the less, we should think, should such a finding be entered in proceedings under Art. 226 for the first time by this Court. In M/s. Bharat Iron Works Vs. Bhagubhai Patel (1976) 1 SCC. 518) the Supreme Court had to consider the plea of victimisation in relation to proceedings under Sec. 33 of the Industrial Disputes Act. The judgment was premised by the observation that there is no difference in principle to the law applicable to a case under Sec. 10 and to one under Sec. 33 of the Industrial Disputes Act. The Supreme Court observed: