MULTIMETALS LTD Vs. JOGENDRA SINGH

JUDGEMENT

(1.) THIS writ petition has been filed against the order of the Judge, Industrial Tribunal, dated 9. 06. 1981, by which, the respondent Jogendra Singh was allowed to produce evidence regarding victimisation.

(2.) THE submission of Mr. Maloo on behalf of the petitioner is that in the present matter, the services of respondent No. 1 were terminated on 30. 06. 1974 on the charge of proved misconduct in a properly conducted domestic enquiry. THE respondent No. 1 was paid one months' wages. An application was submitted to the Industrial Tribunal and the Industrial Tribunal held that the enquiry was defective and on the application, the petitioner was permitted to adduce evidence before the Tribunal to prove the charge levelled against the respondent. THE management as well as the workman adduced their evidence and on behalf of the petitioner II witnesses were examined. THE respondeat examined himself and produced Sarvashri Jaswant Singh, Raghunath, Ratan Singh and Bakshi Singh and after hearing arguments, the Industrial Tribunal approved the action taken by the management in terminating the service of the respondent. THE submission of Mr. Maloo is the respondent Jogendra Singh actively participated in the go-slow strike, tool down strike and illegal strike and also participated in violent activities of assaulting officers of the management including the Works Manager and it was on this basis that the charge sheets were issued and after recording evidence the approval was given by the Industrial Tribunal. After approval was accorded by the Industrial Tribunal, a dispute was raised by the respondent No. 1 through Union before the Conciliation Officer, Kota, who submitted a failure report to the Government and thereafter, the Government made reference for adjudication to the Industrial Tribunal. THE statement of claim was filed by the respondent and the petitioner filed written statement and both the parties produced number of documents. During course of proceedings, the respondent desired to adduce additional evidence on victimisation, which was contested by the management and the Industrial Tribunal permitted the respondent to adduce evidence, against which this writ petition has been filed.

(3.) I have considered over the arguments of learned counsel for both the parties. In the present matter, it is not a case where on an application under Sec. 33 of the Act, approval/permission was given on the basis of the facts as to whether a prima facie case is made out in respect of the misconduct charged. It is a case where the matter was agitated by the workman before the Tribunal and a specific plea of victimisation was taken before the Tribunal. It appears that no evidence was led in these proceedings and, therefore, there is no decision given by Tribunal on this point. The fact however, remains that the workman was held guilty of misconduct. The plea of misconduct and victimisation are contrary to each other and if there is victimisation by the employer, there cannot be any misconduct. Similarly, if there is a misconduct of the workman, then there cannot be victimisation by the employer. Once a finding has been given by the Tribunal that the misconduct of the workman is proved then it impliedly means that there was no victimisation of the employer. There is also an additional ground that in the proceedings under Sec. 33 the workman has taken the plea but has not led any evidence in respect of victimisation. If a plea is taken and evidence is not led on that point, it would amount to be a waiver.