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2009 DIGILAW 129 (KAR)

P. A. Girish v. Management of Bpl Limited

2009-02-12

SUBHASH B.ADI

body2009
ORDER : Subhash B. Adi, J. This writ petition is directed against the order dated 23-9-2006 passed by the Industrial Tribunal, Bangalore in Serial Application Nos. 1 of 2000 and 24 of 2000 produced at Annexure-M. 2. Brief facts leading to this case are that, the respondent-management runs 12 units in and around Bangalore and all the employees of the 12 units are represented by one union. The said union placed chartered of demands before the management. When the matter was pending before the Conciliation Officer in connection with the charter of demands, an unwanted incident of burning of bus carrying the employees of the respondent-industry took place and in the said incident, two employees succumbed to the injury on 25-3-1999 at Madiwala. In this regard, the police registered a criminal case showing these petitioners as accused 29 and 30. The respondent--Management in view of the charge-sheet having been filed against the petitioners and others dismissed the petitioners and thereafter management filed an application u/s 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'), inter alia seeking permission of approval of the order of dismissal. The said application was contested by the petitioners on the ground that, order of dismissal is not preceded by an enquiry nor the petitioners had any notice and they were not involved in the alleged crime nor the incident has taken place in the factory premises. Further, the quarrel was not between one workman and workman in another unit, and is not misconduct. The workmen travelling in the company bus were not belonging to the unit in which the petitioners were working. Further, there is no iota of evidence to show that, these petitioners were involved in the said crime and also stated that, petitioners have been honourably acquitted by the Sessions Judge, Bangalore City, in S.C. No. 51 of 2000, dated 13-10-2003. It is also alleged that, the alleged eye-witness has not supported the case of the management. 3. The Industrial Tribunal considering the evidence led by the parties and on the preponderance of probabilities prima facie held that, the petitioners are guilty of misconduct and approved the order of punishment by its order dated 23-9-2006. 4. It is also alleged that, the alleged eye-witness has not supported the case of the management. 3. The Industrial Tribunal considering the evidence led by the parties and on the preponderance of probabilities prima facie held that, the petitioners are guilty of misconduct and approved the order of punishment by its order dated 23-9-2006. 4. Sri Anantharaman, learned Counsel appearing for the petitioner submitted that, undisputedly the management has not held any enquiry and has passed the order of punishment only on the ground that the petitioners are involved in the alleged crime. Management has not produced any evidence to prove that the petitioners are involved in the crime. The Sessions Court has honourably acquitted both the petitioners in the alleged crime. The evidence led by the management do not show the involvement of the petitioners. In this regard, he pointed out that, except the evidence of O.W. 3, O.W. 1 and O.W. 2 are neither eye-witness nor they have any personal knowledge of the incident. He also relied on the evidence of O.W. 3-Smt. Latha Maheshwari alleged to be the injured eye-witness and submitted that, she has not identified these petitioners nor alleged that, they are the members of the alleged unlawful assembly or they were part of the assembly which alleged to have committed an offence and he further submitted that, the grant of approval u/s 33(2)(b) of the Act, management must make out a prima facie case of misconduct committed by the workman. When the management has admitted that, it has not held an enquiry, the order of dismissal by itself will not make out any prima facie case and it would only amounts to victimisation of the workman. 5. In the absence of any enquiry, the management was required to adduce evidence before the Industrial Tribunal to justify its order of punishment. Even the evidence led before the Industrial Tribunal do not prove the involvement of the petitioners in the alleged offence. Except oral evidence, there is no other material produced by the management to show that these petitioners were the members of the alleged unlawful assembly. 6. He also submitted that, in terms of the standing order, if an incident takes place within the factory premises and involving a dispute between the workman and another workman, it is construed as a misconduct. 6. He also submitted that, in terms of the standing order, if an incident takes place within the factory premises and involving a dispute between the workman and another workman, it is construed as a misconduct. Admittedly the incident alleged has not taken place inside the factory premises nor between one workman and another workman. In this regard, he also submitted that, each of the units are governed by different standing orders and are also managed by different management. The workman of other unit cannot become the workman of the unit in which the petitioners were working and as such it will not amount to misconduct in terms of the standing order. 7. He also submitted that, entire order passed u/s 33(2)(b) of the Act is based on probabilities and not based on any evidence. In such circumstances, granting of permission by the Industrial Tribunal is only because the management has passed an order of dismissal and alleged incident being very serious in nature, amounts abuse of power. Even if an incident is very serious in nature touching the discipline of the industry, minimum requirement is an enquiry. In the absence of enquiry, a proof of involvement in the said incident, O.W. 1, O.W. 2 admit in their evidence that, they have not seen the incident and their knowledge is only hearsay knowledge. O.W. 3 though injured eye-witness, does not name the petitioners. Despite of there being no prima facie evidence show that, petitioners have committed misconduct, the order impugned at Annexure-M granting of approval would amounts to putting a seal on the illegal order of dismissal. 8. In this regard, he also relied on the judgment in S.C. No. 51 of 2000, dated 13-10-2003 and submitted that, Ashok Nagar Police registered a crime for an offence punishable under Sections 143, 147, 148, 324, 326, 332, 307, 302, 435, 427, 506-B and 120-B read with Section 149 of the IPC against 49 accused. No doubt these petitioners were shown as accused 29 and 30, however, in the entire judgment, there is no whisper as regards to the involvement of these petitioners in the crime and the Sessions Judge by his judgment dated 13-10-2002 passed an order of conviction only against accused 1, 2, 15, 25, 32, 33 and 46 and insofar as petitioners are concerned, they have been acquitted honourably. He submitted that, when there is no evidence against the petitioners, their acquittal has to be treated as honourable acquittal. Despite the judgment of the learned Sessions Judge before the Industrial Tribunal, however quite contrary to the said findings and also without there being the evidence on record, only on the probabilities, the Industrial Tribunal has granted approval. 9. In support of his contention he relied on a judgment in the matter of Lalla Ram Vs. Management of D.C.M. Chemical Works Ltd. and Another, AIR 1978 SC 1004 and referred to paragraphs 9 and 12 and submits that, the workman means the workman of the same company and further submitted that, enquiry u/s 33(2)(b) of the Act means, whether a proper domestic enquiry in accordance with the relevant rules/standing orders and principles of natural justice has been followed, and whether the dismissal order is based on legal evidence adduced before the domestic Tribunal, and whether the employer had come to a bona fide conclusion that employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise employee. These aspects of the matter are not considered by the Tribunal. He also submitted that, though Tribunal may not required to consider the propriety or adequacy of punishment, however, whether domestic enquiry is held in terms of the Standing Orders or rules and principles of natural justice is followed or not, are the paramount consideration for the purpose of granting approval u/s 33(2)(b) of the Act. He also submitted that, in case the domestic enquiry suffers from any defect or infirmity, the Labour Court or the Industrial Tribunal will have to find out on its own on the basis of assessment of the evidence adduced before it, to find put, whether there was a justification for dismissal and if it finds that, there is justification in granting approval of the order of dismissal, in such a event, order of approval relates back to the date of dismissal. 10. He also submitted that, before the Tribunal could come to the conclusion, it should find out as to whether there is acceptable evidence to support its conclusion. If the evidence does not support the alleged misconduct, the conclusion would be decision without any evidence. 11. He further relied on another judgment in the matter of G.M. Tank Vs. 10. He also submitted that, before the Tribunal could come to the conclusion, it should find out as to whether there is acceptable evidence to support its conclusion. If the evidence does not support the alleged misconduct, the conclusion would be decision without any evidence. 11. He further relied on another judgment in the matter of G.M. Tank Vs. State of Gujarat and Another, AIR 2006 SC 2129 and submitted that, the Apex Court in case of possession of the property, disproportionate to known source of income, when the delinquished official was honourably acquitted in the criminal case based on same set of facts and evidence as a departmental enquiry, the dismissal order passed against the said employee was set aside. 12. He further relied on another judgment of the Apex Court in the matter of Glaxo Laboratories (I) Ltd. Vs. Presiding Officer, Labour Court, Meerut and Others, AIR 1984 SC 505 and submitted that, misconduct enumerated in Standing Orders requires that, the incident or misconduct committed within the factory premises of the establishment or within the vicinity and not the misconduct or any act outside the factory premises or beyond the vicinity of the factory could be construed as a misconduct within the meaning of standing order. 13. He also submitted that, since the order of dismissal was passed when the conciliation proceedings were pending before the Industrial Tribunal, it amounts to violation of Section 33 of the Act and in this regard workmen had filed a complaint before the Industrial Tribunal in complaint Nos. 22, 23 and 24 of 1999. He submitted that, even looking at the entire evidence, none of the witness supports the allegation made by the management to prove the misconduct. There is no evidence to show that the petitioners were involved in the said incident. He submitted that, merely because these two petitioners were also shown as accused, that by itself does not amount to misconduct unless they are convicted. More so, when the said criminal case ended in acquittal against these petitioners, it cannot be held that, the petitioners have committed an offence. 14. Sri Someshekhar, learned Counsel appearing for the respondent-management submitted that, on 25-3-1999, employees of the company were travelling in a company bus to reach the work place. The said bus was stopped by 50 to 60 workmen including the office-bearers, at Madiwala. 14. Sri Someshekhar, learned Counsel appearing for the respondent-management submitted that, on 25-3-1999, employees of the company were travelling in a company bus to reach the work place. The said bus was stopped by 50 to 60 workmen including the office-bearers, at Madiwala. They poured kerosene and set the bus at blaze and prevented some of the passengers even to alight from it. As a result of which, two of the lady employees of the company succumbed to the burn injuries and some of them sustained injuries. In view of the serious incident and in view of the threat given by the office-bearers against other co-workers, it become impossible for the management to conduct any enquiry or to secure the witnesses. It is in his background, the order of punishment was passed. He also submitted that, even if an enquiry was held, the management was not in a position to secure the witness, as most of the workmen were frightened and were afraid of coming out to give evidence. He submitted that, even though domestic enquiry was not held, however, three witnesses were examined before the Tribunal, two officials and one eye-witness. The Tribunal based on the said evidence has come to a prima facie conclusion that, petitioners have committed misconduct. 15. He also submitted that, merely because the petitioners are acquitted by the Criminal Court, is no ground to hold that, they have not committed misconduct. He submitted that, benefit of doubt is given to the petitioners and have been acquitted in the criminal case. 16. He also submitted that, petitioners have admitted that, they are the members of the union and the said union is formed by all the employees of 12 units of the respondent-company and most of them were office-bearers, and were threatening the management as well as the other co-workers from attending to duty. In this connection, they set the company bus on fire, as a result of which, two employees died. These petitioners were accused in the said case and it cannot be said that, such act is not misconduct. He also submitted that, though the incident took place outside the factory premises, but it was in connection with the union demand. It is in these circumstances, it has to be understood that, it has happened within the vicinity of the factory premises and submitted that, it is a serious misconduct. He also submitted that, though the incident took place outside the factory premises, but it was in connection with the union demand. It is in these circumstances, it has to be understood that, it has happened within the vicinity of the factory premises and submitted that, it is a serious misconduct. He also submitted that, getting direct eye-witness to prove misconduct is difficult and on account of various circumstances, the witnesses have not come forward to depose, however, the evidence is led to show the circumstances as to how the incident has happened and O.W. 3 is eye-witness who has been examined before the Tribunal. These witnesses evidence do prove the misconduct. 17. He also submitted that, what is required to prove before the Industrial Tribunal on an application u/s 33(2)(b) of the Act, is not the absolute proof of the crime or the misconduct, but prima facie material to show that the petitioners have committed misconduct and to this extent the Industrial Tribunal on appreciation of the evidence has found that the material produced do prove the prima facie misconduct. He also submitted that, company has suffered loss and it has effected transfer of the industry, and further submitted that, considering the gravity of the offence and the misconduct committed by the petitioners, the available material produced before the Industrial Tribunal did prove the prima facie case of misconduct. He further submitted that, it is only Section 33(2)(b) application and workmen can still avail the opportunity u/s 10 of the Industrial Disputes Act. 18. In the light of the above submissions, the points that arise for consideration are as under: (1) What is the prima facie proof necessary for approval u/s 33(2)(d) of the Act (2) Whether the incident of misconduct outside the factory premises and vicinity amounts to misconduct within the meaning of Clause 18.1(37) of the Standing Orders of British Physics Laboratory India Limited (BPD? (3) Incident of misconduct between workman of one unit against the workman of another unit would attract the Standing Orders to punish the workman? 19. Undisputed facts in this case are that, an unfortunate serious incident admittedly has taken place on 25-3-1999 involving burning of a company bus bearing No. TN-28/B-6999 near Madiwala, resulting in death of two workmen and causing injury to several others. 19. Undisputed facts in this case are that, an unfortunate serious incident admittedly has taken place on 25-3-1999 involving burning of a company bus bearing No. TN-28/B-6999 near Madiwala, resulting in death of two workmen and causing injury to several others. It is also not in dispute that, a criminal case was registered by the Ashok Nagar Police for an offence punishable under Sections 143, 147, 148, 324, 326, 332, 307, 302, 435, 427, 506-B and 120-B read with Section 149 of the IPC involving 49 accused including these two petitioners as accused 29 and 30. It is also not in dispute that, all 49 accused were the members of the union. It was also not in dispute that, two workmen, who died in the incident and others, who got injured, were also workmen working in different units of the same company. It is also not in dispute that, IV Additional Sessions Judge, Bangalore by his judgment in S.C. No. 51 of 2000, dated 13th October, 2003 has convicted some of the accused by holding that, they were involved in the offence. The incident as such in the face of it, is a cruel incident, committed by such of the workmen, who were involved, cannot be pardoned. In my opinion, those who are involved in such an incident, they do not deserve any sympathy or can be pardoned for such an act. Industrial discipline required to be maintained both by management as well as the workmen. Law relating to industrial dispute is well-settled and confers rights on both the management as well as the workmen or union to agitate all such grievances lawfully before appropriate forum in a peaceful manner without harming or affecting the industrial discipline. But trend has developed to take law in their hands, such persons cannot be called as workmen. 20. In this matter, what is required to be noticed is, as to whether these two petitioners were involved in the crime and whether they have committed misconduct inviting an order of dismissal? 21. It is not in dispute that, charge-sheet was filed against these two petitioners also for the offence referred to above and both petitioners were subjected to criminal trial. Before the learned Sessions Judge, as many as 56 witnesses were examined on behalf of the prosecution including the injured eye-witness P.W. 1-Latha Maheshwari. 21. It is not in dispute that, charge-sheet was filed against these two petitioners also for the offence referred to above and both petitioners were subjected to criminal trial. Before the learned Sessions Judge, as many as 56 witnesses were examined on behalf of the prosecution including the injured eye-witness P.W. 1-Latha Maheshwari. On defence side also, witnesses were examined as D.W. 1 to D.W. 31 and documents Exs. P. 1 to P. 21 were marked in the evidence and Exs. D. 1 to D. 28 were marked in the defence evidence. M.Os. 1 to 10 were also produced. The number of witnesses, documents and material objects produced before the Criminal Court do show that, the prosecution has adduced the evidence in proof of the criminal charge against the accused. However, the Criminal Court on appreciation of the entire evidence on record found that, the offence is proved insofar as the accused 1, 2, 15, 25, 32, 33 and 46 and convicted them for the offence punishable under Sections 143, 148, 301, 302, 435 and 427 read with Section 149 of the IPC. In respect of other accused are concerned, they were acquitted including the petitioners herein. Those who were convicted were sentenced with life imprisonment. 22. In view of the petitioners being also made as accused in the criminal case, the management passed an order of dismissal and sought for approval of the Tribunal u/s 33(2), Clause (b) of the Act. 23. It is not in dispute that, management did not conduct any enquiry against these petitioners except passing an order of dismissal. As such, the management led the evidence before the Industrial Tribunal. It examined O.W. 1 to O.W. 3, O.W. 3 is an injured eye-witness cited by the prosecution in the criminal case as P.W. 1. She was also examined before the Industrial Tribunal. Two other witnesses viz., O.Ws. 1 and 2 are concerned, it is not in dispute that, they were not the eye-witnesses nor they have seen the incident. The material evidence that was available before the Tribunal was only O.W. 3 and the Tribunal has extracted the entire evidence in its award at paragraph 16. O.W. 3 has narrated the entire incident of burning of bus. However, in the said evidence, she does not point out the presence of these two petitioners nor she refers the names of these two petitioners. O.W. 3 has narrated the entire incident of burning of bus. However, in the said evidence, she does not point out the presence of these two petitioners nor she refers the names of these two petitioners. But Industrial Tribunal observes that, when eye-witness is examined, no need to go into the proof of motive and surrounding circumstances and evidence of O.W. 3, who having identified some of the workmen of the said unit, obstructed the co-employee from getting down with common intention of supporting the charter of demands, probabilise that the petitioners have committed the misconduct as the criminal charge was also one u/s 149 of the IPC i.e., forming an unlawful assembly with common object of committing crime. It also observes that, for a domestic enquiry to find out the prima facie case, no standard of proof that is required to prove the offence before the Criminal Court is necessary. With this finding, the Industrial Tribunal grants approval of the order of dismissal. 24. In order to grant approval u/s 33(2)(b) of the Act in the absence of a domestic enquiry, the Industrial Tribunal on the basis of the evidence led before it, must give a prima facie finding of the misconduct against the persons against whom it is alleged. This aspect of the matter is also settled by the decision of the Apex Court in the matter of Lalla Ram, at para 12, which reads as under: 12. The position that emerges from the above quoted decisions of this Court may be stated thus: In proceedings u/s 33(2)(b) of the Act, the jurisdiction of the Industrial Tribunal is confined to the enquiry as to (i) whether a proper domestic enquiry in accordance with the relevant rules/standing orders and principles of natural justice has been held; (ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic Tribunal is made out; (iii) whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee regard being had to the position settled by the decisions of this Court in Bengal Bhatdee Coal Co. Limited v. Ram Prabesh Singh and Ors. AIR 1964 SC 486 ; Titaghur Paper Mills Co. Limited v. Ram Naresh Kumar 1961 I LLJ 511 SC; Hind Construction and Engineering Co. Limited v. Ram Prabesh Singh and Ors. AIR 1964 SC 486 ; Titaghur Paper Mills Co. Limited v. Ram Naresh Kumar 1961 I LLJ 511 SC; Hind Construction and Engineering Co. Ltd. Vs. Their Workmen, AIR 1965 SC 917 ; The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Others, AIR 1973 SC 1227 and Management of Eastern Electric and Trading Co. Vs. Baldev Lal, AIR 1975 SC 1892 , that though generally speaking the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe yet an inference of mala fides may in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment; (iv) whether the employer has paid or offered to pay wages for one month to the employee; and (v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him. If these conditions are satisfied, the Industrial Tribunal would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If however, the domestic enquiry suffers from any defect or infirmity, the labour authority will have to find out on its own assessment of the evidence adduced before it whether there was justification for dismissal and if it so finds it will grant approval of the order of dismissal which would also relate back to the date when the order was passed provided the employer had paid or offered to pay wages for one month to the employee and the employer had within the time indicated above applied to the authority before which the main industrial dispute is pending for approval of the action taken by him. The Apex Court has observed that, there must be a proper domestic enquiry in accordance with the rules/standing orders, a prima facie case of dismissal must be based on legal evidence adduced before the domestic Tribunal and employer has to come to a bona fide conclusion that the employee was guilty and dismissal did not amount to unfair labour practice and not intended to victimise the employee. 25. In the light of the decision of the Apex Court, it is the duty of the employer to show that the enquiry is held in terms of the rules or standing orders and the dismissal is based on legal evidence. The evidence adduced by the management before the Tribunal is only oral evidence of three witnesses. Insofar as two witnesses are concerned, they have not seen the incident nor they have knowledge as regards to the involvement of these petitioners in the said offence. The only witness left was O.W. 3. Admittedly, she is an injured eye-witness and though she is examined, she has not referred to the names of the petitioners nor the management has elicited any such answer from the injured eye-witnesses regarding the involvement of these two petitioners. Barring these three oral evidences, only material that remains is the material produced before the Criminal Court. Even looking at the judgment of the Sessions Judge, there is no legal evidence which can prima facie show that these petitioners were involved in the crime. Merely because they are also arrayed as accused, that would not by itself constitute a misconduct. May be for the period they underwent the trial, the management might have kept them away, but once the order of acquittal is passed against them, what remains for consideration is to know whether the acquittal is a honourable acquittal or not. Reading of the judgment does not show that, the evidence was adduced by prosecution to show the presence of the petitioners and they were acquitted on the ground of benefit of doubt. Only one of the witnesses has stated the name, but does not even allege any crime committed by the petitioners. Reading of the judgment does not show that, the evidence was adduced by prosecution to show the presence of the petitioners and they were acquitted on the ground of benefit of doubt. Only one of the witnesses has stated the name, but does not even allege any crime committed by the petitioners. Normally if the order of the punishment is based on criminal charge and if the entire material relied by the prosecution is the material used against the workman to prove the misconduct and if the Criminal Court comes to a conclusion based on such material that the workman is not involved in the crime and is acquitted honourably, in such cases, the workman cannot be held guilty of misconduct. In the similar circumstances, the Apex Court in the case of G.M. Tank, at para 20 of the said judgment has observed as under: 20. It is thus seen that this is a case of no evidence. There is no iota of evidence against the appellant to hold that the appellant is guilty of having illegally accumulated excess income by way of gratification. The respondent failed to prove the charges levelled against the appellant. It is not in dispute that the appellant being a public servant used to submit his yearly property return relating to his movable and immovable property and the appellant has also submitted his return in the year 1975 showing his entire movable and immovable assets. No query whatsoever was ever raised about the movable and immovable assets of the appellant. In fact, the respondent did not produce any evidence in support of and/or about the alleged charges levelled against the appellant, likewise, the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of the Prevention of Corruption Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honourably acquitted by the Competent Court on the same set of facts, evidence and witness and, therefore, the dismissal order based on same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice. 26. The appellant has been honourably acquitted by the Competent Court on the same set of facts, evidence and witness and, therefore, the dismissal order based on same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice. 26. The Apex Court has held that, if the person is honourably acquitted by the Competent Court on the same set of facts, evidence and witness, the dismissal order based on same set of facts and evidence by the Management, the punishment if any passed against the workman is liable to be set aside. Looking at the evidence available on record, I find that the management has failed to adduce prima facie evidence and produce material to prove the alleged misconduct. There is no additional material other than what was produced before the Criminal Court. In fact, only one witness amongst the other witnesses examined in the criminal case has been examined by the management; there is no other material nor there is any allegation by the management of any other misconduct. No doubt, it is not necessary to establish whether the punishment is proportional to the charge or not, but, at least there must be some acceptable legal evidence, which could be believed by a prudent man. It many not be necessary of standard of proof as required to prove the offence, nevertheless it also cannot be said that, without any evidence, one could be held guilty of misconduct only on the basis of an allegation. 27. In the light of the above discussion, I am of the opinion that, the management has failed to show prima facie evidence for alleged misconduct. And as such, the approval granted by the Tribunal u/s 33(2)(b) of the Act is bad. As regard to misconduct by workman of one unit with the workman of other unit: 28. It is not in dispute that, the management had 12 units in and around Bangalore and it is also not disputed by the learned Counsel for the petitioner that, there was one union for all the units and the charter of demands was in respect of all the workmen of all the units and agitation was going on in respect of the same. In connection with the same, the incident has taken place. In connection with the same, the incident has taken place. The incident within the premises of factory and the vicinity has to be understood to mean that, a crime committed by a workman against the other workmen of the same union, in such an event it is not necessary that, the incident must take place within the factory premises, if it is connected with charter of demands and is against the other workmen, necessarily it has to be brought within the meaning of vicinity of the industry. Nevertheless, it may not have occurred near the factory but it is connected with industrial discipline. As such, I do not find there is any merit in the contention of the petitioner. In regard to the workmen of industry: 29. Learned Counsel has contended that, the petitioners being workmen of one unit and the incident has taken place in respect of workmen of another unit, such disputes are not covered under the Standing Order, as the others are not the workmen of the petitioners' unit and they being governed by different standing orders, the proceedings cannot be initiated against the workmen, no doubt, they may be working in different units, as admitted by the petitioners themselves that, all the units had one union and union is fighting for charter of demands and in this connection they had quarreled with the other workmen. In such circumstances, meaning of workman cannot be restricted to mean that, workmen of one unit and other are workmen of another unit, industrial dispute necessarily means that, dispute between the workmen and workmen and in view of the same, I find no justification to consider that ground also. 30. It is clear that, when there is no evidence to connect the petitioners with the incident, the findings given on probabilities cannot be held prima facie findings of the misconduct, but they could be termed as perverse findings. No doubt, the circumstantial evidence, material and probabilities also to be taken into consideration. Even stretching the case to the preponderance of probabilities, the pre-ponderance of probabilities require that the evidence must probabilize the involvement of the petitioners. Considering the evidence on record, it does not even probabilise prima facie involvement of these petitioners. It is in these circumstances also, I find that the findings arrived by the Industrial Tribunal in approving the order of punishment suffers from want of probabilities. Considering the evidence on record, it does not even probabilise prima facie involvement of these petitioners. It is in these circumstances also, I find that the findings arrived by the Industrial Tribunal in approving the order of punishment suffers from want of probabilities. Looking at from any angle, I find that the impugned order is not sustainable in law. Accordingly, the writ petition is allowed. The impugned order dated 23-9-2006 passed by the Industrial Tribunal, Bangalore in Serial Application Nos. 1 of 2000 and 24 of 2000 is quashed. No order as to cost.