JUDGMENT - R.J. KOCHAR, J.:---Six petitioners who are workmen are aggrieved by the judgment and Award dated 12th December, 1997 passed by the 7th Labour Court, Mumbai in Reference I.D.A. No. 246 of 1991 rejecting their reference for adjudication of the industrial dispute of propriety and legality of the dismissal orders and for the relief of reinstatement with full backwages and continuity of service with effect from 14th/15th December, 1982. Both the parties appeared before the Labour Court and filed their pleadings and documents in support of their respective contentions. Both the parties adduced oral evidence before the Labour Court. By the impugned Award, the Labour Court was pleased to uphold the legality and propriety of the dismissal orders passed against the petitioners and refused to grant any relief. The petitioners have, therefore, approached this Court under Article 226 of the Constitution of India to question the legality and propriety of the said Award of the Labour Court. 2. Both the parties have poured on record of the Labour Court and this Court, voluminous documents. It appears that the industrial dispute between the petitioners and the respondent company was not of an individual nature, but it appears from the record that it has a long drawn and chequered history arising out of the struggle and tussle between the two unions representing two fractions amongst the workmen employed by the respondent company. It appears that some workmen joined the militant trade union leader Dr. Datta Samant who was having his hay days during that period and was popular leader to be sought after. It appears that the workmen wanted in the company his leadership while the other workmen were opposed to switch over of the loyalty to the union functioning at that time with the recognition granted by the respondent company under the Code of conduct. According to the rival union led by Dr. Samant, the recognised union was not effective as it was favoured by the management. This is the genesis of the entire trade union dispute or agitations which finally resulted in 20 charge-sheets and finally six dismissal orders, with which we are presently concerned. Out of the two charge-sheeted workmen, except the present six petitioners all others appear to have been taken back by the respondent company on the ground that they had tendered apology for their acts of misconducts. Out of the two charge-sheeted workmen, except the present six petitioners all others appear to have been taken back by the respondent company on the ground that they had tendered apology for their acts of misconducts. According to the respondents company, it would have even reinstated the present petitioners if they were also to tender apology as others have given. It is a typical case of struggle within the working class itself as there was a vertical rift amongst the workmen, who were not united against the respondent management. The net final result of the aforesaid class struggle was the six petitioners who became victims in the process as long back as in the year 1981 and since then they are in the precincts of the courts, one or the other. 3. According to the petitioners, they were victimised by the respondents company as they belonged to the union led by Dr. Samant who was looked down upon by the management. The petitioners further contended that in the domestic enquiries held against them, they were not given reasonable and adequate opportunity to defend themselves. It was also their case that out of 20 charge-sheeted workmen, barring the petitioners, others were given reliefs and were taken back, though, they were subjected to far more serious charges than the petitioners were facing. The petitioners made a serious grievance on this count that it was a case of discrimination amongst the equally placed workmen. According to the petitioners, no apologies were sought from them and if the management had conveyed to the petitioners or their representatives, they would have certainly offered their apologies. The petitioners have further pointed out that it was not that they had not given any letter of regret. The petitioners have pointed out that their representative had written a letter to the management requesting it to withdraw the charge-sheets and forget the past and forgive the workmen to avoid future embarrassment and or deal of the enquiries and the litigation. The petitioners contended that there was no response from the respondent company as the petitioners were earmarked to be thrown out of employment. The petitioners also contended that theirs was not only the case of victimisation and discrimination but also a case of shockingly disproportionate punishment of dismissal from employment on account of events which took place during the period of mass trade union agitation. 4. The petitioners also contended that theirs was not only the case of victimisation and discrimination but also a case of shockingly disproportionate punishment of dismissal from employment on account of events which took place during the period of mass trade union agitation. 4. The factual details of the charge-sheeted/dismissed and reinstated workmen are as under:--- Out of 17 charge-sheeted workmen, the enquiries of 3 workmen were prematurely terminated. After completion of the enquiry eight were dismissed, one left the employment voluntarily. Eight dismissed workmen were reinstated on apology leaving behind the present petitioners. It has come on record that during the period of lock out declared by the company an undertaking was insisted from the workmen to be able to get back on work. Those who gave such undertakings were allowed to enter the establishment. At that time, it appears that none from the rival union gave any undertaking. The fact, however, remains that the company was prepared to take all those who were ready and willing to give an undertaking. Similarly the fact also remains that out of 17 charge-sheeted employees eight were dismissed for the similar serious charges but all the 8 employees were taken back when they had given apology. According to the petitioners, their representatives had given apology during the course of employment. It is also in evidence that if the company had asked for an apology, the petitioners also would have tendered such an apology. 6. The respondent company had held separate domestic enquiries against all the charge-sheeted workmen, who had participated in the enquiry and who were represented by a common representative. It appears that the respondent company did not rely upon the domestic enquiries and the findings of the Enquiry Officer before the Labour Court and, therefore, had preferred to adduce fresh evidence before the Labour Court. It examined two witnesses before the Labour Court. The witnesses who were examined before the Criminal Court in criminal cases filed against the petitioners and other charge-sheeted workmen were not examined before the Enquiry Officer. It is significant to note that the charges levelled against the petitioners by the respondent company in the charge-sheets were more or less of the same nature as before the Criminal Court. The basis of the charges before the Criminal Court and the Enquiry Officer were the one and the same i.e. mass agitation going on in the company. It is significant to note that the charges levelled against the petitioners by the respondent company in the charge-sheets were more or less of the same nature as before the Criminal Court. The basis of the charges before the Criminal Court and the Enquiry Officer were the one and the same i.e. mass agitation going on in the company. The criminal Court has acquitted all the accused including the petitioners on merits. It was held by the Criminal Court that the prosecution had failed to prove the charges against them. 7. As far as the evidence before the Labour Court is concerned, barring two workmen no one else was examined to prove the charges of assault etc. levelled against the petitioners. The company ought to have examined all such complainants who were allegedly assaulted. There is hardly any evidence in that respect. There was no complaint to the police by those who were allegedly assaulted. While the charge-sheeted workmen had gone to the police with a specific complaint against those who had assaulted the petitioners. There was no medical evidence produced by the company to prove that the petitioners had assaulted the workmen. There was also no complaint filed by them with the company that they were assaulted by the petitioners. There was no complaint with the union either in that respect. Before the Labour Court, the whole evidence adduced by the company was of fragile nature. None from the management was examined before the Labour Court to prove the charges levelled against the petitioners. It is very significant to note that one Shri P.K. Gupte, who had admitted that he had brandished knife at the railway station was reinstated when he tendered his apology. This was the most serious charge levelled against Shri Gupte but he was also reinstated by the company. 8. Shri Cama, the learned Counsel for the respondent management, on the other hand submits that the company had reinstated Shri Gupte though he was facing a serious charge as he had tendered apology. According to Shri Cama, there was no difficulty for the company even to take back the petitioners if they were to tender apology. Shri Cama submitted that it was not for the company to have asked for the apology but it was for the petitioners to have tendered apology voluntarily. The learned Counsel submits that there was no discrimination on that ground. Shri Cama submitted that it was not for the company to have asked for the apology but it was for the petitioners to have tendered apology voluntarily. The learned Counsel submits that there was no discrimination on that ground. It is not the case of the petitioners that inspite of their tendering apology, the respondent company had not taken them back. Shri Cama pointed out from record that the petitioners knew that many of the workmen had tendered apologies and, therefore, they were taken back and even then the petitioners did not opt to tender apologies. Shri Cama pointed out that the dismissal of the petitioners was not based on the charges in the criminal proceedings alone. According to the learned Counsel, there was sufficient material before the management to have held the petitioners guilty of the charges levelled against them. 9. Since the number of workmen involved was large, the respondent company organised the enquiries on the basis of groups. As the situation every where appeared to be riotous and collective fracas was taking place, the allegations against the charge-sheeted workmen were of multiple nature. Some workman were found involved in number of incidents. Some were not. On the basis of the alleged involvement of the workmen, the respondent company had classified and grouped the charge-sheeted workmen and charges levelled against them. It is not possible for me to look into each and every charge levelled against each and every workman and evidence against each and every workman in the enquiry. We must remember that in the mas agitation it is not possible to pin point one workman or one incident. It is a kind of collective action on the part of the workmen, and, therefore, there cannot be individualised charges. All the charge-sheeted workmen, were charge-sheeted for the charges summarised by the company in a statement furnished to the Court on 28th August, 2002. Following is the relevant portion of charges levelled against the charge-sheeted workmen. Group No. 1 Charge-sheet dated 8-4-1982 :- Owing to several acts of grave and serious indiscipline such as enmass wilful and deliberate go slow tactics, lightning stay in strike etc. the company applied to the Government of Maharashtra for closure of its Establishment at Mumbai. In this connection, a meeting was called by the then Minister of State, Mr. Group No. 1 Charge-sheet dated 8-4-1982 :- Owing to several acts of grave and serious indiscipline such as enmass wilful and deliberate go slow tactics, lightning stay in strike etc. the company applied to the Government of Maharashtra for closure of its Establishment at Mumbai. In this connection, a meeting was called by the then Minister of State, Mr. Haribhau Naik, for labour on 24-12-81 at 3.00 p.m. at Mantralaya of all concerned parties. On the said date at about 1.45 p.m. While Mr. Vasant Pradhan, General Secretary of IENBE Union, Umesh Pujari, R.P. Verma while proceeding from Churchgate railway station towards Mantralaya to attend the said meeting, they were assaulted by Mr. Francis Luis, Mr. A.L. Gawde, K.M. Sawant, Wilson Joseph, near Royal Insurance Co. Building. Group No. II-Charge-sheet dated 15-4-1982 On 25-2-1982 at about 5.20 p.m. while Mr. Vijaykumar Pande, Michael Almeida, R.R. Pande, Ashok Upadhyay and K.B. Dabre after performing duty were going home, when they crossed foot bridge near Churchgate railway station and were about to enter the station, Mr. Gawde shouted at Mr. Vijaykumar Pande and held him by his hand. Mr. Gupte rushed at him and opened a knife pointing towards Mr. Pande dangerously. Immediately, Mr. Almeida intervened and disarmed Mr. Gupte and saved Mr. Pande by holding Gupte. Thereafter while Mr. Pande and others were entering the railway station they were chased by Gawde. Dubey, Gupte and 7/8 persons, due to which Mr. Pande and others had to take help of GRP and RPF and had to go to the office of Assistant Station Master for protection. At that time Mr. Gupte, Dubey attempted to drag Mr. R.R. Pande out of that office. Group No. III-Charge-sheet dated 16-4-1982 : On 25-2-1982 at about 12.00 noon while Shri V. Ranganathan, Business Manager, B.S. Mahajan, Labour Officer, after attending the hearing in Industrial Court Tardeo, in Comp. ULP No. 140/82 were going out of Arun Chambers they were gheraoed and were addressed filthy abuses. Group No. V-Charge-sheet dated 19-4-1982 : On 13-1-1982 at about 4.00 p.m. when Mr. Nicholas Fernandes Francis Fernandes were coming out of the High Court Mr. A.L. Gawde, K.N. Sawant, Wilson Joseph, A.R. Sawant followed them and gave fist blows near Karmaveer Bhaurao Patil Marg. Thereafter when they escaped themselves from attack and were running towards Scahivalaya, the CSW started throwing stones at them resulting in bleeding injury. Nicholas Fernandes Francis Fernandes were coming out of the High Court Mr. A.L. Gawde, K.N. Sawant, Wilson Joseph, A.R. Sawant followed them and gave fist blows near Karmaveer Bhaurao Patil Marg. Thereafter when they escaped themselves from attack and were running towards Scahivalaya, the CSW started throwing stones at them resulting in bleeding injury. Group No. VI-Charge sheet dated 30-4-1982 : On 25-1-1982 at about 2.45 p.m. Mr. R.N. Wani, Proof Reader, was going on duty near Express Towers, Mr. B.S. Adav pulled him towards him (Adav) by holding his left hand and Mr. Francis Luis and Mr. A.L. Gawde assaulted him. Mr. A.L. Gawde took out money and some papers from his bushshirt pocket, also some articles from his shoulder bag. Mr. Wani's wrist mental strap was broken and he received injury on left elbow and left part of upper lip. Group No. VII-Charge-sheet dated 30-4-1982 : On 23-1-1982 at about 2.00 p.m. Mr. Ramadhin Rai, Dark Room Assistant was going to attend a meeting at Garden between Mantrayala LJC. He was assaulted by Mr. S.S. Jadhav Chandrakant Bhalekar, Sheikh Ibrahim and others with fist blows causing bleeding injury to his right cheek. When he protested about the same all of them threatened him of dire consequences if he reports the matter. Group No. VIII-Charge-sheet dated 15-3-1982 : On 13-4-1982 cyclostyled handout dated 11-4-1982 were issued to the employees informing about gate meetings to be held on 13-4-1982 at 5.30 p.m. and 7.30 p.m. Accordingly, the meeting was held on ramp of express towers, which was in breach of injunction order dated 27-11-1981 of Industrial Court in terms of which demonstrating and shouting of slogans upto 25 yards away from the date of the company's premises Express Towers and its godown were prohibited and also in breach of written undertaking given by the workmen. From the nature of the charges it would be crystal clear that the workmen involved in different incidents some times were common sometimes were not common. The respondent company has held an enquiry in all the charge- sheets against all the workmen. From the record which the learned Counsel on both the sides had taken me through, broadly I find that the Enquiry Officer has complied with the principles of natural justice and there is hardly any infraction or violation of the principles of natural justice. The respondent company has held an enquiry in all the charge- sheets against all the workmen. From the record which the learned Counsel on both the sides had taken me through, broadly I find that the Enquiry Officer has complied with the principles of natural justice and there is hardly any infraction or violation of the principles of natural justice. The charge-sheeted workmen were represented by common representatives who were from the Journalist category, well educated and well behaved. They had cross-examined the company's witnesses and statements of the charge-sheeted workmen were also recorded. It appears that at the fag end of the enquiry, the charge-sheeted workmen abandoned the enquiry and did not participate and, therefore, the Enquiry Officer had no other alternative but to proceed ex parte. I have also gone through the findings recorded by the Enquiry Officer who has discussed the entire evidence on record threadbare. I do not find any difficulty in the findings or the report of the Enquiry Officer to assail the same as perverse, baseless or not flowing through the evidence. The learned Labour Court has also carefully gone through the entire proceedings and has come to a positive and definite conclusion that the enquiry held was in compliance with the principles of natural justice and that the enquiry was fair and proper and the findings were not perverse. The learned Labour Court has taken pains to consider extensively the entire material on record. I, therefore, do not find any illegality or infirmity in the findings recorded by the Labour Court in respect of the enquiry held against the charge-sheeted workmen. It appears that by and large the charges levelled against the workmen were held to be proved. 10. Before the Labour Court, it appears that the respondent company examined its Enquiry Officer to prove the enquiries and also two witnesses. The respondent company dismissed the petitioners and other workmen who were found guilty of the charges levelled against them. Out of 17 workmen some workmen have been reinstated and some have left the employment and six have been dismissed, who are the petitioners herein. 11. Except the ground of discrimination, I do not find any substance in the submissions of Shri Gonsalves, the learned Counsel for the petitioners. Out of 17 workmen some workmen have been reinstated and some have left the employment and six have been dismissed, who are the petitioners herein. 11. Except the ground of discrimination, I do not find any substance in the submissions of Shri Gonsalves, the learned Counsel for the petitioners. We must remember that all the 117 charge-sheeted workmen were subjected to more or less the same or similar charges which were, as serious as would be considered. All were involved in common intention to dislodge the present recognised union through the method of mas-agitation and to compel the management to recognise the union of Dr. Datta Samant, on the allegation that the recognised union had lost the majority and that a large majority was after Dr. Samant. Those who were dropped from the enquiries were also facing equality serious charges as the petitioners had faced. The reinstated workmen had tendered their apologies to the management and, therefore, they were dropped from the enquiries, according to the management. One of the reinstated workmen Shri Gupte was carrying a knife with him and had also brandished it against some workmen to terroriso them. It appears that but for intervention by some other workmen violence could has taken place. It can be safely said that Shri Gupte was facing a very serious charge of carrying a lethal weapon and terrorising the workmen with the same. Shri Gupte tendered his apology by saying that it was "an emotional outburst" and regretted for the same. The respondent company accepted the said apology and reinstated him along with others. Any reasonable and prudent employer would make a similar offer to all the charge- sheeted workmen that if they were to tender apologies, the enquiries would be closed and that they would be allowed to join their duties. It appears that the apologies affair was not an open affair for the reasons best known to the management. If such an open offer had been made to all the workmen and if the petitioners were not to tender their apologies inspite of such an opportunity it would have been altogether a different matter. No doubt it is a fact that apology need not be demanded and has to be tendered if one is remorseful of his misdeeds. If such an open offer had been made to all the workmen and if the petitioners were not to tender their apologies inspite of such an opportunity it would have been altogether a different matter. No doubt it is a fact that apology need not be demanded and has to be tendered if one is remorseful of his misdeeds. Very often, the culpitrator of the misdeeds misses the consequences and, therefore, it requires that he should be made aware of the consequences and he should be given an opportunity to retract from his misdeeds and offer an apology or should regret to avoid the serious consequences. The respondent management, no doubt accepted the apologies of the eight workmen and condoned their misconducts. A similar offer ought to have been specifically made to the petitioners also. In the absence of such specific offer made to the petitioners, it cannot be said that the petitioners did not want to tender their apologies. This fact can be read with the letter written by the representatives of the petitioners and other charge-sheeted workmen that the management should forget and forgive the affair and withdraw the charge-sheets. The management ought to have taken that opportunity to have told the petitioners to tender apology on par with the others. At the time of lifting of the lock out it was the management which sought specific undertakings or good conduct bonds from the workmen. At this point of time the management did not insist that the workmen should come out with such undertakings on their own and the management need not demand such undertaking. In the same logic, it can be said that atleast after the representatives of the petitioners and the charge-sheeted workmen had extended the hand of compromise, the management could have put certain terms of apology etc., to put an end to the entire affair. It appears that the management kept a calculated silence. From the charges levelled against the petitioners, it can be said that no one faced any more serious charges than Shri Gupte. In my opinion, therefore, the management ought to have come forward by two steps as the union representatives also offered the olive branch of peace. It appears that the management kept a calculated silence. From the charges levelled against the petitioners, it can be said that no one faced any more serious charges than Shri Gupte. In my opinion, therefore, the management ought to have come forward by two steps as the union representatives also offered the olive branch of peace. I do not find any good ground or reason for the management not to have discussed the matter with the union representatives to put an end to the affair on par with the apologies tendered by the other charge-sheeted workmen. I find that there was total absence of constructive response or approach on the part of the management in that respect qua the petitioners. I have, therefore, every good reason to believe that the management had strong reservations against the petitioners which certainly leads me to infer that the petitioners were unreasonably discriminated against. It appears that by that time, the agitations were coming to an end and the leadership appears to have mellowed down as no war or agitations can be continued indefinitely. Every trade union agitations were brought to an end after some time as the workers also lose their patience and strength to continue the struggle or the agitations for a long period. I would have certainly appreciated the stand of the management that there was no discrimination qua the petitioners and that it was for them to have come forward to tender the apologies, if there was response from the management to the letters written by the union representatives for compromise. The management could have put counter conditions and if the petitioners were not to relent back in that case, the management would have been certainly justified in saying that the petitioners were also given the similar opportunity of tendering apology but the petitioners were adamant. Secondly, very often the apologies or regret letters without any assurances from other side get misused to punish the workmen by citing those letters that the charges levelled against them were admitted by the workmen. In the absence of any background or preparatory talks the petitioners also could not take a risk of tendering willing apologies as they were not assured or they were not certain that their apologies would be accepted and that they would be allowed to join the duties and that they would also be dropped from the enquiries. In the absence of any background or preparatory talks the petitioners also could not take a risk of tendering willing apologies as they were not assured or they were not certain that their apologies would be accepted and that they would be allowed to join the duties and that they would also be dropped from the enquiries. There is no other reason which is given by the management to treat the petitioners differently from those other charge-sheeted workmen, who were dropped from the enquiries. It is not the case of the management that the petitioners were the instigators of inciters or were guilty of very serious charges of violence etc. It was not the case of the management that the petitioners were handful hardcore followed of Dr. Samant. No, that is certainly not the case of the management against the petitioners. Even during the course of the proceedings before the Labour Court and before me it was vehemently argued that even the petitioners would have given apologies. This offer surely indicates that the petitioners were not adamant, hardcore of the union. In my opinion, they also ought to have been given opportunity of tendering apologies as a condition to drop the enquiries against them. I, therefore, find much substance in the submissions of Shri Gonsalves that there was a strong element of discrimination against the petitioners on the part of the management. 11. Though, I have agreed with the findings recorded by the Labour Court that the enquiries were fair and proper and that the findings were not perverse, I do not agree with the findings that there was no discrimination practised by the respondent company qua the petitioners. From the above discussion, it is crystal clear to me that there was certainly a discriminatory attitude adopted by the management against the petitioners. At the cost of repetition I may say that if the respondent company had condoned the most serious misdeed of Shri Gupte of carrying a lethal weapon and brandishing the same against the workers to terrorise, I fail to understand why the lesser serious charges against the petitioners cannot be condoned. I do not condone their misconducts or misdeeds in the agitations. They were certainly guilty of some of the charges levelled against them. There is another important factor which has to be borne in mind that many of the criminal cases were compounded against the petitioners. I do not condone their misconducts or misdeeds in the agitations. They were certainly guilty of some of the charges levelled against them. There is another important factor which has to be borne in mind that many of the criminal cases were compounded against the petitioners. The petitioners were finally acquitted by the Criminal Court of the charges which were more or less the same in the domestic enquiries. I am fully conscious of standard of proof required in the criminal cases and I do not compare the domestic enquiries with the criminal trials. I have referred to that aspect only to point out that those who were allegedly assaulted by the petitioners, had finally compounded in the Criminal Court. The Criminal Court also recorded that such workmen did not come forward to give evidence. That also indicates that the workmen had forgiven or forgotten and they did not want to carry the matter further. 12. To treat differently, similarly placed workmen, certainly smacks of mala fides and invites the charge of discrimination. If the similarly placed eight charge-sheeted workmen could be reinstated and could be absolved from the charges on their apologies, I fail to understand why the petitioners have to suffer and have to be denied the relief of reinstatement. Though the dismissal orders of the petitioners are based on fair and proper domestic enquiries, to treat them differently from those who were similarly placed certainly would amount to improper orders. In my opinion, even the petitioners are entitled to be reinstated and they should also be given an opportunity to work till they retire. They have already been punished by 20 years litigation. They have suffered hardships and miseries of unemployment for more than two decades. I do not know what the union leaders achieved by inflicting such untold miseries on the workmen. If the union wanted to replace the recognised union it was open to the union to take recourse to the law for recognition as provided under the M.R.T.U. P.U.L.P. Act, 1971. Instead, it had started agitations which could not be said to be peaceful or legitimate. The agitations have taken toll of atleast six petitioners. Others certainly also have suffered. I do not know who will compensate their sufferings. 13. Instead, it had started agitations which could not be said to be peaceful or legitimate. The agitations have taken toll of atleast six petitioners. Others certainly also have suffered. I do not know who will compensate their sufferings. 13. In the aforesaid circumstances, I quash and set aside the impugned Award of the Labour Court to the extent of denial of reinstatement to the petitioners, I hold that the order of dismissal of the petitioners was discriminatory and was not proper and was not justified. It smacks of legal victimisation and mala fides. The petitioners are, therefore, entitled to be reinstated in the employment. As I have already observed that even the petitioners were found guilty of charges levelled against them in a domestic enquiry, which has been held to be fair and proper, it cannot be said that they did not know that the other charges-sheeted workmen had given apologies. The whisper must have been in the air and the petitioners also ought to have made some conscious efforts to offer their apologies, if they were assured of the same treatment. They did not do so for the reasons known to them. The fact, however, remains that their representatives had offered a peaceful compromise of forget and forgive. It is not that the petitioners belonged to a class of elites or highly educated persons. They were also workmen who took part in trade union agitations inspired by the then militancy in the trade union. I am, therefore, not inclined to grant them full backwages. They also have to share the blame. They also must suffer for their misdeeds. The petitioners, therefore, will not be entitled to get full backwages. Denial of 50% backwages, in my opinion, would be more than sufficient punishment. 14. The petition is partly allowed. The petitioners are entitled to be reinstated with 50% backwages with continuity of service with all consequential benefits. Those who might have reached the age of superannuation, during the pendency of the petition would be entitled to get the benefit of reinstatement and continuity of service as above till the date of their age of superannuation along with their retirement benefits. Rule is partly made absolute with no orders as to costs. Respondents shall implement the order within a period of four weeks from today. 15. Stay is refused. Petition partly allowed.