JUDGMENT :- The Writ Petition No.3750 of 1998 is filed by the employer while the other writ petition No.4126 of 2000 is filed by the employee, challenging the very same judgment delivered by the Industrial Court, Amaravati in Revision ULP No.134 of 1994. The employee had filed Complaint ULP No.123 of 1992 before the Labour Court at Amaravati and the same has been allowed on 26th April, 1994 by the Labour Court, Amaravati granting reinstatement to the employee on his former post with continuity of service and full back wages. This judgment of Labour Court was challenged by the employer in Revision under section 44 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act (hereinafter referred as "M.R.T.U. and P.U.L.P. Act"), which came to be registered as Revision ULP No.134 of 1994. The said revision has been decided on 31-08-1998 and the Industrial Court has while upholding the application of mind by the Labour Court could not have permitted employee to go scot free in view of misconduct proved against him. But instead of itself pronouncing any punishment, it remanded the matter back to Labour Court for that purpose. The employer has questioned this order of remand contending that the Industrial Court has failed to exercise jurisdiction available to it in not reversing the judgment of Labour Court and not dismissing ULP complaint filed by employee. More than two years after the judgment of the Industrial Court, the employee has filed Writ Petition No.4126 of 2000 contending that the Industrial Court could not have remanded the matter back to the Labour Court and there was no question of imposing any punishment in the matter on him. 2. In Writ Petition No.3750 of 1998 filed by employer, this court has while issuing Rule on 21-02-1998, granted interim relief and stayed the judgment of Industrial Court and further proceedings in ULP Complaint No.123 of 1992 before the Labour Court, Amaravati. The said interim order is operating even today. 3. The facts in the matter are not in dispute. The misconduct alleged by employer against employee is proved in Departmental Enquiry and said Departmental Enquiry is found to be fair and valid by the Labour Court. Not only this, the Labour Court has also found that findings of Enquiry Officer were not perverse. 3. The facts in the matter are not in dispute. The misconduct alleged by employer against employee is proved in Departmental Enquiry and said Departmental Enquiry is found to be fair and valid by the Labour Court. Not only this, the Labour Court has also found that findings of Enquiry Officer were not perverse. It is, therefore, appropriate to point out the misconduct, which is found to be proved against the employee even by the Labour Court and thereafter by the Industrial Court. The misconduct is under clauses 24(k), 24(1) and 24(y) of the Model Standing Orders framed under Bombay Industrial Relations Act, 1946. The employee was working as unskilled workman and on 17-06-1991 at about 6.50 a.m., he entered the shampoo factory and went to Superior Mr. S. V. Deshpande, who at that time had just entered the factory on his scooter and was parking it. The employee asked some clarification about his basic salary and Mr. Deshpande advised him to contact Personnel Department, as Mr. Deshpande was not aware about those details. Mr. Deshpande then started walking towards his office in shampoo factory and when he had climbed first step of the stairs, he felt something sharp being stabbed on back side of thigh. He immediately turned around and saw employee trying to push a long pointed knife (Gupti) into him. Because of his turning around, the weapon did not penetrate his leg, but damaged his trousers. Mr. Deshpande thereafter caught hold of his both hands and shouted for help. He struggled with employee for about 5 minutes, when employee holding knife was trying to push it into Mr. Deshpande. 4. I have heard Advocate Shri. V. R. Thakur for employer and Shri. S. D. Thakur for employee in both the matters, Learned AGP Shri. C. N. Adgaonkar appearing for respondent Nos.2 and 3 in W.P. No.3750 of 1998 and learned AGP Smt. A. R. Taiwade appearing for respondent No.1 in W.P. No.4126 of 2000. 5. Advocate Shri. V. R. Thakur appearing for employer has invited attention to the ULP complaint as filed by employee to state that complaint does not point out any specific sub-head of unfair labour practice, stipulated under Schedule IV, item 1 of the M.R.T.U. and P.U.L.P. Act into which the employer has indulged. 5. Advocate Shri. V. R. Thakur appearing for employer has invited attention to the ULP complaint as filed by employee to state that complaint does not point out any specific sub-head of unfair labour practice, stipulated under Schedule IV, item 1 of the M.R.T.U. and P.U.L.P. Act into which the employer has indulged. He contends that there is assertion in relation to non-production of past service record or its non-consideration and points out that what has been alleged as in the alternative is about the punishment being most disproportionate. According to him, therefore, there was no specific averment that employer has indulged in any particular unfair labour practice and the Labour Court or the Industrial Court have also not recorded any such specific finding. He, therefore, argues that in absence of such averments and finding, the courts below could not have granted any such relief to the employee. He states that the preliminary objection in this respect was raised at the threshold, but that has not been properly decided. He further states that it was pointed to the Labour Court and also to the Industrial Court that the past service record of the employee was looked into and there was no exonerating or extenuating circumstance. He further argues that looking to the nature of misconduct past service record was not that relevant in the present case. 6. Advocate Shri. V. R. Thakur has also stated that when misconduct proved against respondent was not of minor or technical nature, Schedule IV, item 1(g) of the Act was not attracted and hence, the only item, which was available to Labour Court or the Industrial Court was item No.1 sub-item (a) of Schedule IV of the Act. He argues that for that purpose it was essential for employee to specifically plead that he was victimized by the employer. He contends that there was no factual victimization pointed out and even if I the case of legal malice or legal victimization is to be considered, the pleadings nowhere whisper about it. He argues that the employer is entitled to an opportunity in this respect and a finding about legal malice or victimization cannot be reached in absence of pleadings and in absence of notice of such case to the employer. 7. He argues that the employer is entitled to an opportunity in this respect and a finding about legal malice or victimization cannot be reached in absence of pleadings and in absence of notice of such case to the employer. 7. Advocate Shri. V. R. Thakur has also contended that considering the gravity of misconduct proved, the punishment of dismissal inflicted by employer cannot be said to be shockingly disproportionate and the Labour Court or Industrial Court could not have accordingly upset said punishment. It is his argument that the Labour Court has encroached upon the domain of employer in the matter and the Industrial Court has refused to exercise the jurisdiction under Section 44 of the M.R.T.U. and P.U.L.P. Act by refusing to correct it. He further states that this has been done even without recording finding that punishment so inflicted is shockingly disproportionate. He contends that in such circumstances, order of remand made by the Industrial Court to decide about quantum of punishment is itself unsustainable. The Labour Court has by interfering with the quantum of punishment exercised jurisdiction not otherwise available to it. The Industrial Court ought to have interfered with the said exercise of jurisdiction and ought to have allowed the Revision filed by the employer. He has placed reliance upon various reported rulings to substantiate his contentions and reference to the same will be made by me little later. 8. Advocate Shri. S. D. Thakur appearing for employee in both the matters has contended that Section 30 of the M.R.T.U. & P.U.L.P. Act gives discretion to the Labour Court to grant reliefs in the matter of infliction of punishment and the Labour Court has been allowed to pass such orders as it may deem necessary to effectuate policy of the Act. He argues that in exercise of this discretion, the Labour Court has considered the entire controversy and the Labour Court has also given reasons as to why it has interfered with the quantum of punishment. He contends that those reasons are neither perverse nor erroneous and hence, this Court should not interfere with said application of mind by the Labour Court in exercise of writ jurisdiction. He further argues that this application of mind by the Labour Court has been maintained by the Industrial Court, Amaravati even in its revisional jurisdiction. He contends that those reasons are neither perverse nor erroneous and hence, this Court should not interfere with said application of mind by the Labour Court in exercise of writ jurisdiction. He further argues that this application of mind by the Labour Court has been maintained by the Industrial Court, Amaravati even in its revisional jurisdiction. He further states that the issue about quantum of punishment or about victimization is required to be considered in the background of facts and circumstances of each case and there cannot be any strait jacket formula about the same. He, therefore, states that the case law on which the employer has placed reliance is not applicable because of proved facts and its appreciation by Labour Court. He contends that it is not necessary to specify particular sub-item of Item 1 of Schedule IV of the Act while filing ULP complaint or while making grievance about unfair labour practice. He states that general reference to the same is more than sufficient and he also points out the judgment of this Court in support of his contention. 9. He further argues that the Labour Court has found that no case was made out for imposing punishment upon employee and said finding has been upset by the Industrial court in revision. He contends that the finding of Labour Court is consequential to its application of mind and appreciation of evidence and said finding could not have been interfered by the Industrial Court in revisional jurisdiction. He contends that therefore, the order of Industrial Court has been challenged by the employee by filing Writ Petition No.4126 of 2000 which needs to be allowed. 10. Advocate Shri. V. R. Thakur appearing for employer while replying the arguments, contends that the Industrial Court has rightly found that the misconduct has been proved. He contends that once the misconduct has been found to be proved, the further course of action open to Labour Court in original complaint or the Industrial Court while exercising revisional jurisdiction has not been rightly considered. He further argues that the Industrial Court has rightly found the misconduct proved and the Labour Court's incorrect appreciation in this respect, as is apparent from para 8 of the Judgment of Industrial Court, has been corrected by it. He therefore, seeks dismissal of employee's writ petition. 11. He further argues that the Industrial Court has rightly found the misconduct proved and the Labour Court's incorrect appreciation in this respect, as is apparent from para 8 of the Judgment of Industrial Court, has been corrected by it. He therefore, seeks dismissal of employee's writ petition. 11. Perusal of complaint filed by the employee before the Labour Court reveals that the employee has in his entire complaint not specified any sub-item of item 1 of Schedule IV and has not made any specific grievance in relation to any particular unfair labour practice except in para 13. In para 13, he has mentioned that his past service record has not been produced nor considered while passing order of dismissal, though he has been in service since long. In the alternative, he has stated that the punishment is most disproportionate and amounts to unfair labour practice. In the light of these pleadings when provisions of Schedule IV, Item 1 of the M.R.T.U. & P.U.L.P. Act are looked into, the Item which makes reference to past record or to disproportionate punishment is Schedule IV, Item 1 (g) of the Act. However, it is in relation to the misconduct of minor or technical character. The said sub-clause (g) of Item 1, Schedule IV of the Act reads as under:- (1) To discharge or dismiss employees - (g) "for misconduct of minor or technical character, without having any regard to the nature of the particular misconduct or the past record of service of the employee, so as to amount to a shockingly disproportionate punishment". The Hon'ble Apex Court has considered said clause in its judgment reported at (1998)3 S.C.C. page 192 : [1998(2) ALL MR 73 (S.C.)] (Colour-Chem Ltd. Vs. A. L. Alaspurkar and others). By placing reliance upon this judgment, Advocate Shri. V. R. Thakur has tried to contend that there has to be specific clarification about victimization, either factual or legal. He has further contended that as misconduct proved is of grave and. serious nature, unfair labour practice under sub-clause (g) of Item 1 of Schedule IV of the Act is not at all made out. Perusal of this judgment reveals that the Hon'ble Apex Court has in paragraph 11 expressly found that one and only subject matter of sub-clause (g) is the misconduct of minor or technical character. serious nature, unfair labour practice under sub-clause (g) of Item 1 of Schedule IV of the Act is not at all made out. Perusal of this judgment reveals that the Hon'ble Apex Court has in paragraph 11 expressly found that one and only subject matter of sub-clause (g) is the misconduct of minor or technical character. The employee has nowhere stated that the misconduct indulged or proved against him is misconduct of minor or technical character. There is no such finding either by the Labour-Court or by the Industrial Court. It is, therefore, apparent that the item required to be considered by this Court is not Item 1(g) of Schedule IV of the M.R.T.U. and P.U.L.P. Act. 12. It is apparent that the issue of victimization and its implications are also considered by Hon'ble Apex Court in M/s. Colour-Chem case mentioned above. Perusal of this judgment, particularly paragraphs 12 and 13 show that the Hon'ble Apex Court has found that if employer imposes a most unreasonable punishment, though clause (g) of Item 1 of Schedule IV of the Act may not be attracted, clause (a) of Item 1 of said Schedule gets squarely attracted. In paragraph 13, the Hon'ble Apex Court has stated that the term 'victimization' which appears in sub-clause (a) of Item 1 of Schedule IV of the Act is of comprehensive import. It may be victimization in fact or in law. It has been observed that the factual victimization may consist of diverse acts of employers who are out to drive out and punish an employee for no real reason and for extraneous reasons. The Hon'ble Apex Court has also given an illustration thereof. It is, therefore, apparent that if such victimization is to be proved, the employee will have to specifically point out that he has been punished for no real reasons or extraneous reasons and his complaint thus must disclose necessary factual material to enable Labour Court to conclude about it. 13. In the facts of present case, the complaint does not contain any such material. 13. In the facts of present case, the complaint does not contain any such material. However, in paragraph 13 of the above mentioned judgment Hon'ble Apex Court has also stated that there can be also legal victimization and said victimization can be found out if punishment of dismissal or discharge is found to shockingly disproportionate by the Court, having regard to particular major misconduct and the past service record of the employee and if the punishment is such as no reasonable employer could ever impose in like circumstances. Again, therefore, it will have to be at least shown that the punishment imposed was grossly disproportionate in the light of misconduct proved or the past service of the record of the employee and no other employer imposed it. This will necessitate some factual consideration and pleadings. As already observed above, the complaint filed by employee here does not contain any such pleading. 14. This aspect is also considered by other judgment of the Hon'ble Apex Court on which Advocate Shri. V. R. Thakur has placed reliance. The said judgment is reported at (1976)1 S.C.C. page 518 in the case of M/s. Bharat Iron Works Vs. Bhagubhai Balubhai Patel and others. There in paragraph 10, the Hon'ble Apex Court has observed that in relation to victimization the employee must properly and adequately plead his case giving all particulars upon which the charge is based, because the victimization is a serious charge by him against employer and all these details are necessary to enable the employer to fully meet them. It has been observed that the charge of victimization must not be vague or indefinite being as it is an amalgam of facts as well as inferences and attitudes. In paragraph 11, the Hon'ble Apex Court has observed that the onus of establishing a plea of victimization is upon the person pleading it, and mere allegations, vague suggestions and insinuations are not enough. All particulars of the charge brought out, if believed, must be weighed by the tribunal and a conclusion should be reached on a totality of the evidence produced. In paragraph 12, the Hon'ble Apex Court has further stated that such victimization 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. In paragraph 12, the Hon'ble Apex Court has further stated that such victimization 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. It has been clarified that a proved misconduct is antithesis of victimization as understood in industrial relations. 15. It is, therefore, clear that the onus of establishing victimization by pointing out proper facts was upon employee and perusal of complaint filed by him clearly shows that he has not given any such details or history to enable either Labour Court or Industrial Court to come to the conclusion that there was any factual or legal victimization. 16. The judgment of Hon'ble Apex Court reported at A.I.R. 1965 S.C. page 917 in the case of M/s. Hind Construction and Engineering Co. Ltd. Vs. Their Workmen considers when the employer can be said to have victimized the employee. It appears that there was a practice prevailing in appellant company before the Hon'ble Apex Court of giving a subsequent day as a holiday, if the holiday occurred on any weekly off day. It appears that 1st January, 1961 came on Sunday and the workers were therefore, expecting holiday on 2nd January, 1961. The employer, however, contended that because of larger work load available, the workers were directed to report for duty on 2nd January, 1961 and 11 workmen did not attend on that day treating it as holiday. In view of their absence, they were given charge-sheet and after enquiry they were dismissed from the service. While considering this situation, the Hon'ble Apex Court in paragraph 5 has found that the tribunal is not required to examine finding or quantum of punishment because whole of the dispute is not really open before the Tribunal as it is ordinarily before a court of appeal. The Tribunal may in a strong case interfere with a basic error on a point of fact or a perverse finding, but it cannot substitute its own appraisal of the evidence for that of the officer conducting the domestic enquiry. The Tribunal is not required to consider propriety or adequacy of the punishment or whether it is excessive or too severe. The Tribunal is not required to consider propriety or adequacy of the punishment or whether it is excessive or too severe. However, the Hon,ble Apex Court has further stated that the punishment may be shockingly disproportionate, regard being had to the particular conduct and the past record or is such, as no reasonable employer would ever impose in like circumstance, the Tribunal may treat the imposition of such punishment as itself showing victimization or unfair labour practice. In paragraph 7, the Hon'ble Apex Court has noticed that there was anything in the case before it very special requiring attention of all employees on 2nd January, 1961. It has further, in the facts of the case observed that it was impossible to think that any other reasonable employer would have imposed the extreme punishment of dismissal on its entire permanent staff in this manner. 17. The judgment of Hon'ble Apex Court in the case of M/s. Bharat Iron Works (supra) on which Advocate Shri. V. R. Thakur for employer has placed reliance, also considers the aspect of victimization in paragraphs 7 & 8 and in paragraph 8, the Hon'ble Apex Court has stated that ordinarily the person is victimized, 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 paragraph 9, it has been observed by the Hon'ble Apex Court that the victimization may partake of various types and it has also cited two types thereof and infliction of a grossly monstrous punishment which no rational person would impose upon employee, has been held to be one such type. 18. M/s. Colour-Chem Ltd. [1998(2) ALL MR 73 (S.C.)] (supra) is judgment of the Hon'ble Apex Court on which Advocate Shri. V. R. Thakur for employer has placed reliance also considers this aspect and in paragraph 30, reliance has been placed by the Hon'ble Apex Court on its earlier judgment in the case of M/s. Hind Construction & Engineering Co. (cited supra). 19. Advocate Shri. V. R. Thakur appearing for employer has also pointed out Division Benchjudgment of this court reported at (2000)2 Mh.L.J. page 395: [2002(2) ALL MR 329] in the case of Uttarn Manohar Nakate Vs. (cited supra). 19. Advocate Shri. V. R. Thakur appearing for employer has also pointed out Division Benchjudgment of this court reported at (2000)2 Mh.L.J. page 395: [2002(2) ALL MR 329] in the case of Uttarn Manohar Nakate Vs. Bharat Forge Company Ltd., Pune and others, to show how ratio in case of M/s. Colour-Chem Ltd. [1998(2) ALL MR 73 (S.C.)] (supra) has been applied by the Division Bench. The relevant paragraphs are paragraphs 9, 10, 12, 13 and 14. In the facts of said case, the Division Bench has found that the punishment inflicted constituted legal victimization and it was shockingly disproportionate. It has therefore, concluded that it constituted unfair labour practice under clause (a) of Item I, schedule IV of the M.R.T.U. and P.U.L.P. Act. It is to be noticed that the learned counsel for employee argued before the Division Bench that the view taken by employer in dismissing employee for proved misconduct was affirmed by the Industrial Court as also by learned Single Judge of that Court and therefore, the punishment could not be said to be so disproportionate that no reasonable employer could have imposed it upon employee in similar circumstances. The Division Bench, however, could not find favour with this argument. Advocate Shri. V. R. Thakur appearing for employer has also pointed out that the employer thereafter approached Hon'ble Apex Court and Hon'ble Apex Court has in its judgment 2005(1) C.L.R. page 533 : [2005(5) ALL MR (S.C.) 243] (Bharat Forge Co. Ltd. Vs. Uttarn Manohar Nakate) reversed the judgment of the Division Bench of this Court. 20. The Judgment in the case of M/s. Bharat Forge Co. Ltd. Vs. Uttarn, [2005(5) ALL MR (S.C.) 243] (supra) of Hon'ble Apex Court considers the earlier two judgments in case of M/s. Colour-Chern Ltd. Vs. A. L. Alaspurkar, [1998(2) ALL MR 73 (S.C.)] (supra) and M/s. Bharat Iron Works Vs. Bhagubhai (supra). The Hon'ble Apex Court has noticed that the concerned workman prevaricated his stand from Court to Court and before the Industrial Court he invoked clause (g) of Item I, Schedule IV of the Act whereas before learned Single Judge of this High Court he invoked clause (b) thereof. The Division Bench of this Court proceeded to pass judgment I impugned before the Hon'ble Apex Court by invoking clause (a) although there was no foundation fact pleaded in support thereof. The Division Bench of this Court proceeded to pass judgment I impugned before the Hon'ble Apex Court by invoking clause (a) although there was no foundation fact pleaded in support thereof. The Hon'ble Apex Court has further found that the jurisdiction of Labour Court was confined to making of an enquiry and passing of an order as to whether the employer had committed an act of Unfair labour practice within the meaning of Section 26 read with the relevant provisions of Item (1) of Schedule IV of the Act. The Labour Court there held that the enquiry was proper and fair and finding of Enquiry Officer was not perverse. However, the Labour Court also thought it proper that it would be better to give one more chance to employee to serve appellant company by imposing lesser punishment and it took lenient view. 21. The Hon'ble Apex Court in paragraph 14 has found that this was done without assigning sufficient or cogent reasons by the Labour Court. The Hon'ble Apex Court has also found that the Industrial Court in Revision found that the misconduct has been proved and therefore, there was no question of victimization. The Industrial Court also found that the Labour Court nowhere held that the punishment was shockingly disproportionate. This order of Industrial Court was upheld by the judgment of learned Single Judge of this court and in paragraph 16, the Hon'ble Apex Court notices that the Division Bench of the High Court has also found commission of major misconduct on the part of the employee but proceeded to examine the question as to whether despite such proved misconduct the punishment awarded by the employer on him was grossly disproportionate and would be an unfair labour practice being an instance of legal victimization. In paragraphs 19,20 and 21 the Hon'ble Apex Court has made reference to its earlier judgment of M/s. Colour-Chem Ltd., [1998(2) ALL MR 73 (S.C.)] (supra) and has found that in that case, the respondents therein were punished although ten other mazdoors who were also found to be sleeping were let off without any punishment. In paragraphs 19,20 and 21 the Hon'ble Apex Court has made reference to its earlier judgment of M/s. Colour-Chem Ltd., [1998(2) ALL MR 73 (S.C.)] (supra) and has found that in that case, the respondents therein were punished although ten other mazdoors who were also found to be sleeping were let off without any punishment. The Hon'ble Apex Court has stated that though respondents herein were although assigned more responsible duties as compared to the Mazdoors let off, but in the background of the surrounding circumstances and especially in the light of their past service record, there was no escape from the conclusion that the punishment of dismissal imposed on them for such misconduct was grossly and shockingly disproportionate. In paragraph 21, it has been specified by the Hon'ble Supreme Court that its judgment in the case of M/s. Colour-Chem Ltd. [1998(2) ALL MR 73 (S.C.)] (supra) was rendered in the fact situation obtaining therein and it is not an authority for the proposition that in a case where an employee is found to be sleeping during working hours, imposition of punishment of dismissal despite his past bad service records, must be held to be disproportionate to the act of misconduct. However, in the case before it, the Hon'ble Apex Court noticed that though victimization was taken as ground of the complaint, no factual foundation therefor was laid and it was confined to quoting only certain legal provisions. The Hon'ble Apex Court has held that no plea of legal victimization was also taken in the complaint. 22. In the facts and circumstances of present case, I find that these observations made by the Hon'ble Apex Court in paragraph 22, also hold good in the case of employee before me. In paragraph 26, the Hon'ble Apex Court has concluded that in absence of any plea of factual victimization and furthermore in absence of any foundational fact having been laid down for arriving at a conclusion of legal victimization, the Division Bench of High Court committed a manifest error in invoking clause (a) of Item 1 of Schedule IV of the Act. In paragraph 29, the Hon'ble Apex Court has held that it was obligatory for employee to plead and prove the acts of victimization, but he failed to do so. 23. In paragraph 29, the Hon'ble Apex Court has held that it was obligatory for employee to plead and prove the acts of victimization, but he failed to do so. 23. Advocate Shri. V. R. Thakur appearing for employer has also invited attention to the unreported judgment of this Court dated 16-02-2000 delivered in Writ Petition No.4688 of 1999 in the case of Sunderlal Shivhare Vs. The Manager, Baidyanath Ayurved Bhavan Ltd., Nagpur. In said case, the complaint was filed invoking Schedule IV, Item 1, clauses (b), (c), (d) and (f) only of the Act. In paragraph 4, the learned Single Judge of this Court has observed that as clause (g) of Item 1, Schedule IV of the Act was not invoked by the petitioner, the Labour Court, therefore, could not have considered it. The said view has been upheld by the Division Bench while dismissing L.P.A. No.36 of 2000 in motion hearing on 22-11-2000. 24. In this background the judgment on which Advocate Shri. S. D. Thakur appearing for employee has placed reliance, needs to be looked into. It is reported at 1995 L.L.J. (Supp). page 257, in the case of Delux Theatres Pvt. Ltd. Vs. Bombay Labour Union. In the said judgment, the learned Single Judge of this Court has in paragraph 6 observed that whether unfair labour practice could be subsumed under one or other Item of Schedule is a matter of legal categorization and legal label attached by the trial court to the facts found, is not determinative. The Industrial Court in this judgment after recording evidence came to conclusion that no unfair labour practice falling under Item 4(a) and 4(f) of Schedule II of the Act was made out. Before the High Court, it was argued in the alternative that there was more than enough material on record for Industrial Court to have returned the finding of unfair labour practice even under Item 1(a) of Schedule II of the Act. The observations mentioned above are made in this background. This judgment nowhere states that the details need not be pleaded. It only deals with categorization of details, which are required to be pleaded. This judgment, therefore, is not an authority to propose that the facts constituting victimization need not be pleaded at all. Here the employee has only pleaded that his past service record has not been considered and was not produced and punishment is disproportionate. It only deals with categorization of details, which are required to be pleaded. This judgment, therefore, is not an authority to propose that the facts constituting victimization need not be pleaded at all. Here the employee has only pleaded that his past service record has not been considered and was not produced and punishment is disproportionate. I, therefore, find that this Ruling has no application. 25. The Labour Court has framed total five issues for its consideration. The first issue was regarding fairness and propriety of Departmental Enquiry conducted by the employer against employee. By filing Pursis, the employee admitted the fairness and propriety of Departmental Enquiry. The Labour Court has answered issue No.2 and has held that finding of Enquiry Officer were not perverse. It has thereafter considered issue No.3, which was whether the order of dismissal of employee constituted unfair labour practice on the part of employer and it has been answered in the affirmative. Issue No.4 was about the nature of relief to be granted and in view of finding reached on issue No.3, the Labour Court has granted employee reinstatement with continuity of service and full back wages. 26. Thus, consideration of Labour Court in relation to issue No.3 assumes importance. The said consideration is in paragraph 8 of its judgment. The Labour Court has stated that in order to find out whether punishment is proper or not, it has to see the facts. However, in the process of seeing facts, the Labour Court has at the end of para, concluded that the employer has not been able to prove his case and therefore, there was no propriety in imposing punishment at all. Thus, earlier having found that findings recorded by the Enquiry Officer are not perverse and therefore, misconduct is proved, a totally contradictory finding has been recorded in paragraph 8. The application of mind by Labour Court in paragraph 8 reveals that the Labour Court has been carried away by the fact that there was no injury, even smallest one, caused to the person of Mr. Deshpande. It has, therefore, found favour with the arguments of learned counsel representing employee that it was impossible to use weapon in such a way that no injury would be caused to Mr. Deshpande and cloth of his trouser only would be tom. The argument that if employee wanted really to cause injury to Mr. Deshpande. It has, therefore, found favour with the arguments of learned counsel representing employee that it was impossible to use weapon in such a way that no injury would be caused to Mr. Deshpande and cloth of his trouser only would be tom. The argument that if employee wanted really to cause injury to Mr. Deshpande, instead of piercing in such a manner, he would have inflicted a forceful stab is also accepted by the Labour Court. It has further observed that Mr. Deshpande admitted that there was no previous cause or reason for employee to get irritated or to be annoyed with him and there was no instance at least on that day to provoke employee to go to the extent of stabbing him. The Labour Court has further found that unless and until there is any reason or cause for the employee to be angry, the employee would not go to commit such misconduct. It has, thereafter, found that the Watchman at the gate, who must have watched the entire incident, was an important witness, but he was not made available as witness in Departmental Enquiry and the employee was denied opportunity to cross-examine him. It also found that Mr. Deshpande admitted that the other employees of the employer gathered there, when he was struggling with employee, to save himself for about 5 minutes and the Labour Court has expressed surprise as to why none came to his rescue. It further found that whenever any person enters the factory, the entry is taken in register at the gate, but no such entry in relation to employee was produced. It further found that though, police complaint by Watchman was lodged, the Watchman was not produced as witness before the Enquiry Officer. Mere production of police complaint by him was held to be not sufficient evidence to support the version of Mr. Deshpande. After this application of mind, the Labour Court has concluded that the employer has not been able to prove its case. 27. It is further clear that after appreciating the evidence on record by the Enquiry Officer, the Labour Court, no where found that the findings recorded by the Enquiry Officer were perverse. The findings, therefore, demonstrate that the misconduct was proved. 27. It is further clear that after appreciating the evidence on record by the Enquiry Officer, the Labour Court, no where found that the findings recorded by the Enquiry Officer were perverse. The findings, therefore, demonstrate that the misconduct was proved. However, thereafter, by accepting the arguments of learned advocate representing the employee and by drawing certain inferences and surmises from the material on record, the Labour Court has held that the employer has not been able to prove its case and therefore, there was no propriety in imposing any punishment on the employee. This application of mind by the Labour Court has been set aside pi by the Industrial Court. However, in paragraph 6 of its judgment while considering whether punishment was shockingly disproportionate or not again the Industrial Court has, drawn certain inferences of its own. It has observed that undisputedly no injury is caused to Mr. Deshpande and it has further observed that the matter would have been more serious and grave had such injury been caused. It has also stated s that because injury was not caused an untoward I incident was avoided. It has also mentioned that sometimes an untoward incident takes place in the heat of passion. This application of mind by Industrial Court is totally irrelevant and is not borne out from record of Departmental Enquiry. In view of this finding, it has found that the punishment is shockingly disproportionate. Thereafter, it has noticed that coming with a lethal weapon in the premises of factory is itself a serious charge and it does not lose its gravity only because the injury has not been caused. It has, therefore, remanded the matter back to the Labour Court for deciding the quantum of punishment to be inflicted. This approach and consideration is contrary to the law laid down in M/s. Hind Construction and Engineering Co. Ltd. case (supra). 28. From perusal of judgments to which I have made reference above, it is apparent that the extenuating circumstance has been found in the events prior to misconduct and not only in the mode and manner of committing the misconduct or in the course of events constituting misconduct. Here, it is apparent that the employee did not point out any such extenuating circumstance and no such circumstance has even come on record either in Departmental Enquiry or before the Labour Court. Here, it is apparent that the employee did not point out any such extenuating circumstance and no such circumstance has even come on record either in Departmental Enquiry or before the Labour Court. The injuries has not been caused only because Mr. Deshpande after feeling a pricking sensation on his thigh, turned around and thereby accidently avoided stab injury. Such fortuitous circumstance cannot be used in favour of present employee to hold that it is an extenuating circumstance. As is apparent, the leadings in complaint do not make out any case of factual victimization and are inadequate o support legal victimization. The employee has not led any oral evidence before the Labour Court. He has relied upon evidence before only Inquiry Officer. There cannot be anything and there is nothing in said evidence to judge approach of same employer or any other employer towards other employees in similar situation. Hence, application of mind on the lines as stated by the Hon'ble Apex Court is rendered impossible. Both the courts below have been carried away by irrelevant material in this respect. I, therefore, find that the Labour Court has not applied its mind properly and strayed while recording finding against issue No.3 and the Industrial Court has failed to exercise jurisdiction available to it in refusing' to correct that error. The Industrial Court has noticed said error, but then went astray for irrelevant reasons again concluded that the punishment is shockingly disproportionate. I, therefore, find that there is failure to exercise jurisdiction by the Labour Court as also by the Industrial Court. 29. Advocate Shri. S. D. Thakur appearing for employee has contended that by not considering past service record of employee, there is unfair labour practice. He has tried to contend that this constitutes undue haste and is, therefore, unfair labour practice, falling under Schedule IV, Item 1, clause (f). He further states that non-consideration of past service record, is also legal victimization. However, looking to the nature of misconduct proved, I find that the past service record is totally irrelevant. The employer cannot be said to be unreasonable, if he does not want to retain such employee in his service. The punishment of dismissal inflicted upon employee is not shockingly disproportionate and also is not one which no reasonable employer would impose if such type of misconduct is proved. The employer cannot be said to be unreasonable, if he does not want to retain such employee in his service. The punishment of dismissal inflicted upon employee is not shockingly disproportionate and also is not one which no reasonable employer would impose if such type of misconduct is proved. I, therefore, find that the arguments of learned counsel for employee are misconceived. Moreover, the grievance of unfair labour practice under Schedule IV, Item 1, clause (f) has not been made in complaint at all. Arguments of employee by pointing out Section 30(1)(b) of M.R.T.U. & P.U.L.P. Act do not carry his case any further as the Labour Court did not ascribe any particular unfair labour practice to employer and also did not hold punishment to be disproportionate. 30. In the circumstances, judgment dated 26-04-1994 delivered by the Labour Court, Amaravati in ULP Complaint No.123 of 1992 and also the judgment dated 31-081998 delivered by the Industrial Court, Amaravati in Revision ULP Complaint No.134 of 1994 are quashed and set aside. The complaint ULP No.123 of 1992 filed by employee is dismissed. 31. It has been brought to the notice of this court that the petitioner employer has deposited an amount of Rs.30,000/- before the Industrial Court, Amaravati as per directions of Industrial Court as a condition for granting interim relief. The respondent employee has withdrawn that amount. In the circumstances, petitioner employer is entitled to recover that amount from respondent employee. 32. Writ Petition No.3750 of 1998 is allowed in terms of prayer clause (i) therein. Rule accordingly. Writ Petition No.4126 of 2000 is dismissed and Rule is discharged in it. In the circumstances of the case, there shall be no order as to costs. Order accordingly.