MODELLA WOOLLENS LIMITED Vs. OM PARKASH SHARMA

JUDGEMENT

(1.) This is an appeal by the management of the Modella Wollens Ltd., Chandigarh, against the judgment of the learned Single Judge, by which the writ petition of Shri O.P. Sharma, Workman, was allowed, holding that the Industrial Tribunal for Union Territory of Chandigarh at Chandigarh (hereinafter referred to as the Tribunal) should have gone into the matter of victimisation and unfair labour practice and mala fides, which it has not done. Accordingly, the learned Single Judge set aside the award of the Tribunal to that extent and remanded the case to the Tribunal with a direction to redecide the matter on the basis of the evidence already produced by the parties. The Bench admitting the appeal had stayed further proceedings before the Tribunal. The facts giving rise to the present appeal are :

(2.) Respondent-workman, Shri O.P. Sharma, was appointed by the appellant, as a Senior Accounts Assistant on 6th August, 1964. Accordingly to the respondent-workman, after being duly confirmed, he was issued several letters by the Management appreciating his work. Since, according to him, the service conditions in the factory of the Management were very unsatisfactory, he organised the workman into a Union under the name and style of "Modella Textile Workers' Union" in the year 1967 and he was elected its founder President on 26th January, 1968. On 21st March, 1968, the Management placed before the Union a proposal for introduction of Relay-shift system and it also announced additional increments to certain categories of workmen with effect from 1st February, 1968. This proposal of the Management was considered by the Working Committee of the Union on 25th March, 1968 and later by the General Body. It was decided that the proposal of the Management could be accepted provided the workmen were compensated adequately for the additional work load and also for the inconvenience that would be caused as a result of the introduction of Relay-shift system. It was averred in the writ petition that as the proposal of the Management was not accepted by the Union unconditionally therefore, the Management got annoyed and as a first reaction withdrew the additional increments which had been announced. It was further the case of the writ petitioner that the Union protested against the Management for withdrawing the increments and on 9th April, 1968, the petitioner personally delivered two letters, one protesting against the action of the Management in getting thumb impression of Sardara Singh on a resignation letter and the other against the violation of the agreement dated 22nd September, 1967. It is further alleged that the petitioner was called by Shri H.N. Motwani, Labour Officer of the Management and told him not to aggravate the situation by giving such letters and also threatened him that in case he did not withdraw the letter with regard to Sardara Singh, he would issue charge-sheet to him and to one R.C. Bhaskar, the General Secretary of the Union. Since the petitioner refused to do so, he was issued a charge-sheet, which is Annexure 'D' to the writ petition. The petitioner gave reply to the charge-sheet denying these charges and stated that he had been victimized for his trade union activities. An Enquiry Officer was appointed and after recording detailed evidence, the Enquiry Officer gave enquiry report against the petitioner and the Management acting on the findings of the enquiry report, passed termination order on 3rd June, 1968. It may be stated here that prior to the date of termination of services of the petitioner, the Union had submitted certain other demands to the Management and since these were not met, the workmen went on strike from 22nd April, 1968. Ultimately, an industrial dispute arising out of the dismissal of the petitioner along with other disputes relating to the matters covered by the demand notice were referred to the Tribunal by the Union Territory Administration on 4th July, 1968. Many issues were framed by the Tribunal, but the issue with which we are concerned, is issue No. 6, which reads as under :

(3.) The primary submission of Mr. N.K. Sodhi, learned Senior Advocate, appearing on behalf of the appellant, is that once it is found by the Tribunal that the gross misconduct is established, as required, on legal evidence, in a fairly conducted domestic enquiry, there cannot be any question of victimization arising in those circumstances. According to the learned counsel, the victimisaiton will only arise if without holding any enquiry or only holding a sham enquiry, the Management gets rid of the workman on the grounds of alleged misconduct. If, according to the learned counsel, there are allegations of misconduct which are proved by leading legal evidence in a domestic enquiry which is held fairly and properly, then the question of victimisation does not arise at all. To substantiate this submission, the learned counsel cited judgment of the Apex Court in M/s. Bharat Iron Works v. Bhagubhai Balubhai Patel and others, 1976 AIR(SC) 98. He drew our pointed attention to para 11 of the judgment, which is as under :-