Judgment :- 1. These writ petitions are filed against the award of the Labour Court in I.D.Nos.81 and I.D.No.82 of 1994, dated 13.04.2005. While W.P.No.23155 of 2005 is filed by the management against the award in I.D.No.81 of 1994 and other two writ petitions are filed by the workers union against the award in I.D.Nos.81 and 82 of 1994. 2. Brief facts leading to the filing of the writ petitions are as follows: a) The management which is having a factory at the SIPCOT Industrial Estate Cuddalore is known as Asian Paints (India) Limited (Penta Division). In respect of the six workmen by settlements, dated 22.04.1993 and 10.05.1993 entered under Section 12(3) of the Industrial Disputes Act (hereinafter referred to as the Act) before the Special Deputy Commissioner of Labour, Madras, the management and the union have agreed to refer for adjudication apart from the validity of grant of special increments to three staff and the justifiability of lock out. b) The application was made to the Government under Section 10(2) of the Act on 18.06.1993. Since reference was not made, the union has filed W.P.No.7852 of 1994 and thereafter, the dispute was referred by the Government as per the G.O.(D)No.392, Labour and Employment, dated 12.05.1994 to the first respondent/Labour Court. The following disputes were referred: "Whether the Management in fact violated the terms of the Settlement dated 8th May 1991 in giving special increments to three of the workmen Tvl .S.Sampathkumar, S.S.Kumaravelu and L.D.Samuelson on the evaluation of their performance. Whether the termination of the services of Tvl.M.K.Radhakrishnan, G.Logadasan and S.Lakshmanan, is valid and, if not, the relief that they are entitled to. Whether the termination of the services of Tvl.K.Kasinathan, V.Govindarajulu and V.Prabhu, is valid and, if not, the relief that they are entitled to". c) It is stated that among the said employees M/s.Lakshmanan and Govindarajulu were dismissed on proven charges and were settled the accounts with the result the reference was restricted for adjudication in respect of the other four workmen and that was taken up in I.D.No.81 of 1994 by the Labour Court. d) The issue relating to justifiability of lockout of the management was referred by the Government in G.O.(D).No.393, Labour and Employment, dated 12.05.1994 to the first respondent Labour Court and inthe award, dated 13.04.2005, the Labour Court has held that the lockout is illegal. d) The issue relating to justifiability of lockout of the management was referred by the Government in G.O.(D).No.393, Labour and Employment, dated 12.05.1994 to the first respondent Labour Court and inthe award, dated 13.04.2005, the Labour Court has held that the lockout is illegal. That was in I.D.No.82 of 1994 against which the Union has filed W.P.No.37730 of 2005. e) The Labour Court in I.D.No.81 of 1994 relating to the said employees has held as follows: "i)that in respect of Thiruvalargal S.Sampathkumar, S.Kumaravel and L.D.Samuelson, the Management violated the terms and conditions of settlement, dated 08.05.1991 by giving special increments to them. ii) that the Management has to either withdraw the special increment granted to them or grant such increment to other workers also. iii) that the termination of services of Tvl.M.K.Radhakrishnan, G.Logadasan and K.Kasinathan are held to be not valid and directed reinstatement with continuity of services and backwages". It is in respect of that portion of the award passedby the Labour Court in I.D.No.81 of 1994, the management has filed W.P.No.23155 of 2005. In I.D.No.81 of 1994, the Labour Court has held that termination of V.Prabhu as valid. It is as against that portion of the impugned award, the union has filed W.P.No.37731 of 2005. It is stated that the workmen had originally formed Union in 1988 and thereafter, the workmen switched over allegiance to the Pentasia Pattali Thozhir Sangam namely, the union. The union has raised charter of demand, dated 27.10.1990 and when the discussions were on, the union has called off direct negotiations and went to the Deputy Commissioner of Labour for discussion. f) It is the case of the management that when the discussion was pending with the Deputy Commissioner of Labour, on 25.01.1991, on the same day, the union has issued a strike notice supported by a political party. Therefore, according to the management, the efforts of the union was not bona fide and there has been an act of indiscipline and sabotage after the strike notice on 25.01.1991 was given and the Union went on strike from 01.02.1991 as notified. It is stated that due to certain untoward incidents, the management approached the local Civil Court and for police protection. The Deputy Commissioner of Labour has failed to bring about settlement. It is stated that due to certain untoward incidents, the management approached the local Civil Court and for police protection. The Deputy Commissioner of Labour has failed to bring about settlement. However, at the instance of the Collector, a settlement was reached on 08.05.1991 which was valid upto 03.05.1994 by which the Union has agreed for normalcy and it is stated that the Union has agreed not to raise any dispute involving any financial burden on the management during the subsistence of the settlement. However, it is stated by the management that on 07.09.1991, the Union has raised a demand for ex-gratia payment for each of the workmen and after discussion it was agreed to pay an advance amount of Rs.1,250/-of which Rs.700/- would be recoverable. The Union further demanded in October 1991 for sweets during Deepavali demanding 1Kg instead of 1/2Kg and when that was denied, resorted to strike on 05.11.1991. g) It is stated by the management that in 1992 February, the Union has made 14 demands including an interim relief and some of the demands were accepted to be considered stating that there was substantial decline in production efficiency. It is stated that in May 1992, an additional special increment was granted to three clerical staff on evaluation of their performance and that was objected to by the Union by demanding additional increment to all workmen. Subsequently, there was some agitation and the management has decided to sustain the processing operations to protect the chemical equilibrium in the system and notice was issued on 17.6.1992. It is stated that the workmen have engaged in disrupting the work by threatening the Executives and Engineers and there was a danger on the noxious chemicals which are stored. It is stated that various workmen were involved in threatening the officials obstructing the co-employees preventing electricians from working, preventing utility department from carrying out the maintenance work using abusive and vulgar languages etc., h) It is stated that various suggestions made by the Deputy Commissioner of Labour to put an end to the unrest has not worked. Again when the Collector and Sub Collector of the South Arcot District intervened, there was an agreement on 23.07.1992 before the Sub Collector by which normalcy was agreed to be restored and joint reference of dispute for adjudication was accepted to be made under Section 10(2) of the Act. Again when the Collector and Sub Collector of the South Arcot District intervened, there was an agreement on 23.07.1992 before the Sub Collector by which normalcy was agreed to be restored and joint reference of dispute for adjudication was accepted to be made under Section 10(2) of the Act. It is stated that since the workmen have not resorted to normalcy, the management has notified the various acts of indiscipline and informed the same to the Deputy Commissioner of Labour on 12.08.1992 and show cause notices were issued. It is stated that Thiru. Radhakrishnan and Thiru. Kasinathan apart from Thiru.G.Logadasan and others have insisted for withdrawal of show cause notice and order of suspension and also served a notice of stay in strike on 15.08.1992. It is stated that in order to safeguard the industry, the management has declared lock out of the factory on and from 15.08.1992. Since there was an order of suspension against one of the workmen, the Union has commenced the stay in strike and thereafter, after declaring the lock out, the management has issued charge sheets to the office bearers of the Union. i) In the proceedings before the Labour Court, it was the case of the management that grant of additional increment to three employees is not in violation of settlement; that the reference made under Section 10(2) of the Act is to be adjudicated; that there has been violation of agreement by the union; that the production levels had substantially come down; that there has been confrontation instead of conciliation; that the stay in strike by the Union has resulted in shut down procedures endangering the plant and machinery; that the termination of four workmen was after observing all the principles of natural justice etc., j) It has been the case of the Union that the agreement before the District Collector is not valid in law since under the Act it is only Labour Officer who can act as conciliator and that the strike resorted to from 15.08.1992 pursuant to the notice dated 25.05.1992 is legal. It is stated that before the first respondent/Labour Court, no oral evidence was adduced by both the side, while the management has marked 229 documents, the Union marked 30 documents. However, the Union has issued notice for production of various documents. It is stated that before the first respondent/Labour Court, no oral evidence was adduced by both the side, while the management has marked 229 documents, the Union marked 30 documents. However, the Union has issued notice for production of various documents. On the basis of the oral and written submissions before the Labour Court, the Labour Court after extensively dealing with the contentions has held that the grant of special increment to three persons is not justified by referring to various exhibits especially Exs.M.153 and 169 and therefore, the act of the management comes under 9 of the 5th Schedule of the Act as unfair labour practice. k) In respect of termination of M/s. M.K.Radhakrishnan and G.Logathasan, it was held that they are protected workmen since they are the President and Executive Member of the Union and acted in accordance with the resolution of the general body and therefore, was held to be not equated to an act of an individual worker. Holding so, the said two persons were directed to be reinstated with continuity of service and backwages and other benefits. 3. Holding so, the said two persons were directed to be reinstated with continuity of service and backwages and other benefits. 3. The award of the Labour Court is challenged by the management insofar as it relates to the finding regarding the special increments granted to Thiruvalargal S.Sampathkumar, S.Kumaravel and L.D.Samuelson holding the same as violative of the terms of the settlement and setting aside the termination of service of M.K.Radhakrishnan and G.Logathasan and directing reinstatement with continuity of service, on the legal grounds, that the Labour Court has gone beyond the jurisdiction vested under Section 10(2) of the Act; that the grant of special increments to three of the workmen was on the evaluation of the performance which is well within the powers of the employer; that even it was the case of the Union that while six persons have worked during the strike period in February 1991, the management has chosen only three and the grant of increment to three should have been held to be discriminatory; that the management has issued such increments during the period of strike earlier that has been lost sight of by the Labour Court that the Labour court has traversed beyond the scope of reference; that in Ex.M.170, the management has explained the reason for granting such increments to such three workmen; that in respect of termination of two employees, the Labour Court, has failed to give a finding that the Enquiry Officer finding is perverse and inspite of the direction given by the Labour Court permitting the parties to let in evidence, the Union has not taken any steps. In such circumstances, the Enquiry Officer finding must be held not perverse as per the judgment of this Court reported in 1992 1 LLJ 9 (S.Ramaiah Mudaliar Bros & others Vs.Industrial Tribunal, Madras); that the workmen have not tendered any explanation for the charge at any point of time and therefore, there has been an uncontroverted evidence of the management witness; that the Labour Court having found that simply because the two workmen are the office bearers of the Union they can be considered as protected workmen and because of the status of office bearers of the Union it does not mean that they can involve any unlawful activities has nevertheless held wrongly that their termination is not valid; that the Labour Court has failed to consider the significance of the term "protected workmen" under Section 33(3) of the Act and also Rule 65 of the Rules framed under the said Act; that the Labour Court itself having found that there was misconduct on the part of the said workmen but has justified the same on the ground that the misconduct was resorted to because of the conferment of the said increments to three workers failing to note the decision of the Supreme Court reported in 2001 3 LLN 832 (Chandra Vilash Rai Vs. State of Bihar) holding that such action would not exonerate the delinquent from the liabilities for irregularities committed; that as per various judgments of the High Courts, a workmen cannot be termed to indulge in unlawful activities by using the term "protected workmen", that the enquiry having been held fairly by the Enquiry Officer, the Labour Court ought not have interfered in that regard; that there was no inordinate delay on the part of the management in taking action against the erring workmen, that the Labour Court has failed to appreciate the various factual matters and various exhibits filed on the side of the management in their proper perspective and the award has been passed contrary to the evidence let in and that the impugned award of reinstatement with backwages is not valid in the absence of any pleading of the workmen in not having been gainfully employed and in the absence of any finding that the workmen are not gainfully employed and the same would be bad as per the judgment reported in 1982 (3)SCC 385 (Durg District Metal & Engg.Worker Union Vs. Bhilai Construction Company). 4. On the other hand, in respect of the portion of the impugned award of the Labour Court holding that the termination of service of V.Prabhu is valid, the Union has challenged the same on the ground that the Labour Court ought not have accepted the evidence of the management witness P.Karthikeyan; that the Labour Court has erred in referring Ex.M.14 shift log book as corroborating evidence of P.Karthikeyan; that the Labour Court ought to have held that there is no evidence that V.Prabhu was sleeping; that the Labour Court ought to have considered the charge framed against the said V.Prabhu that he has refused to increase feed rates from 170 volts to 180 volts has not been proved; that the Labour Court has failed to appreciate the charge No.2 that the said B.Prabhu has deliberately increased the feed rates and the said allegations stood not proved and the allegation that the said V.Prabhu was found sleeping making false entries also stood not proved and inspite of it, the Labour Court has confirmed the termination and in any event, the Labour Court ought to have taken note of the fact that the termination is grossly improportionate to the charges. 5. 5. Again in respect of the decision of the Labour Court in justifying the lock out of the management, the Union has challenged the said award passed in I.A.No.82 of 1994 on the ground that the allegation of strike resorted by the Union on 15.08.1992 is against Ex.M.42 and against Section 22(1) (a) of the Act; that the allegation of loss of production or damage of the plant and machinery was not substantiated with any evidence; that the finding of the Labour Court that under Section 22(2)(a) of the Act, there was no necessity on the part of the employer to give advance notice to lock out is erroneous; that the finding of the Labour Court that the management has complied with the requirement of Section 22(6) of the Act is not sustainable; that the finding of the Labour Court on the lock out declared by the management is justifiable is not sustainable in law; that in respect of the information by the Collector that management is likely to resort to lock out, the Labour officer has taken steps to conciliate pursuant to a settlement arrived at in the presence of the District collector and the workmen have joined duty after 22.07.1992 and inspite of it, the management has resorted to victimization and that the allegation of stay in strike is against Ex.M.41 and therefore, in that regard is not valid in law. 6. It is the contention of Mr.R.Krishnamurthy, learned Senior counsel for the management that the Union has never pleaded protection under the "protected workmen" before the domestic enquiry and it is submitted that under Section 33(3) explanation, there is no protection given to the protected workmen and as per Rule 65 of the Tamil Nadu Industrial Disputes Rules for the office bearers of the union who are referred to as protected workmen certain privileges are given and that is not a protection against the unfair practice and therefore, it is his submission that when there is a factual finding that misconduct has been committed, according to the learned Senior Counsel, the Labour Court ought not to have directed reinstatement. He would also reiterate that the award of the Labour court is beyond the scope of reference and the Labour Court has not adverted to various materials on record which are filed and marked as documents. 7. He would also reiterate that the award of the Labour court is beyond the scope of reference and the Labour Court has not adverted to various materials on record which are filed and marked as documents. 7. On the other hand, it is the contention of Mr.R.Muraleedharan, learned counsel for the union that the special increment granted to three of the employees is unfair labour practice and he would also refer to Ex.W.18 and it is submitted that when the Labour Court has found that there is no provision under the settlement arrived at under Section 12(3) of the Act for payment of special increment, such payment made to three workmen should be treated as unfair labour practice. He would also reiterate that the protected workmen concept applies to the office bearers of the union and as per the collective decision of the union, if the office bearers act based on the resolution such action sought to be protected and such conduct cannot be the basis either for disciplinary proceedings or termination of service. It is his submission that the mere inaction on the part of the management for a period of four months would create a presumption that it has taken note of the fact that the said two workmen are protected workmen and therefore has decided to exonerate them and the subsequent action is only an after thought. It is submitted that the management ought to have explained the delay in taking disciplinary action against protected workmen. He would also rely upon the following judgments: "i) Mavji C Lakum Vs. Central Bank of India reported in 2008 7 Scale 32 ii) Management of Essorpe Mills (P) Ltd., Coimbatore Vs. Presiding Officer, Labour Court, Coimbatore and another reported in 1998 II LLJ 1998 iii) P.Palanisamy Vs.Regiional Manager, Tamil Nadu Forest Plantation Corporation Ltd., Indira Nagar, Machuvadi, Pudukkottai and 2 others reported in 2008 3 L.W 1000 iv)S.Ramaiah Mudaliar Bros and Others Vs.Presiding Officer, Industrial Tribunal, Madras and another reported in 1992 I LLJ 1992" 8. In respect of the portion of the award relating to the workman V.Prabhu justifying the termination, it is his submission that even assuming that the charges against the said V.Prabhu are proved, considering the nature of charges framed against the said workman termination is disproportionate and that aspect has not been considered by the Labour Court. In respect of the portion of the award relating to the workman V.Prabhu justifying the termination, it is his submission that even assuming that the charges against the said V.Prabhu are proved, considering the nature of charges framed against the said workman termination is disproportionate and that aspect has not been considered by the Labour Court. He would also rely upon a judgment reported in AIR 2009 SC 2458 (Jagdish Singh Vs. Punjab Engineering College & others). 9. Again while assailing the award by the Labour Court justifying the lock out, the learned counsel would submit that the Labour Court has failed to consider the reasons for such lock out and also the circumstances when the lock out was declared. It is his specific submission that inasmuch as it remains a fact that the management is involved in public utility service, the Labour Court ought to have considered the evidence and he would rely upon the judgment reported in 2009(1) LLN806 (Roop Singh Negi Vs. Punjab National Bank and others). 10. In that regard, it is the submission of Mr.R.Krishnamurthy, leaned Senior Counsel appearing for the management that the lock out was a necessary consequence of the various undesirable conducts of the union and that was to protect the sensitive manufacturing process. That apart, the learned Senior counsel for the management and union have taken me to the portions of the domestic enquiry as well as the documents which were filed and marked before the Labour Court to substantiate their respective contentions. 11. I have considered the rival submissions of the respective counsels and referred to the various documents filed in the form of the typed set of papers and given my anxious thought to the issues involved in these cases. 12. In these writ petitions based on the awards of the Labour Court in I.D.Nos.81 and 82 of 1994 challenged by the management and the union, broadly speaking the issues to be decided are: "i) relating to M/s.M.K.Radhakrishnan and G.Logathasan and K.Kasinathan and their termination made by the management having been set aside and the Labour Court directed reinstatement with continuity of services and backwages. Incidentally to decide as to whether the grant of special increments to S.Sampathkumar, S.S.Kumaravel and L.D.Samuelson are against the terms of settlement and they are the unfair labour practice as held by the Labour Court. Incidentally to decide as to whether the grant of special increments to S.Sampathkumar, S.S.Kumaravel and L.D.Samuelson are against the terms of settlement and they are the unfair labour practice as held by the Labour Court. The above said issues to be decided in the writ petition filed by the management. ii) relating to the termination of service of Mr.V.Prabhu held to be valid by the Labour Court in its award in I.D.No.81 of 1994 and iii) relating to the lock out declared by the management held to be valid as per the award passed by the Labour Court in I.D.No.82 of 1994. The above issues are to be decided in the writ petitions filed by the union". 13. The scope of reference made by the Government under Section 10(2) of the Act concerning the award in I.D.No.81 of 1994 as given in the annexure to the Government Order in G.O.Ms.No.(D)392 Labour and Employment Department, dated 12.05.1994 is as follows: "1. Whether Management infact, violated the terms and conditions, of the settlement dated 8th May91 in giving special increments to three of the workers Tvl.S.Sampathkumar, S.S.Kumaravel and L.D.Samuelson on the evaluation of their performance. If so, to what relief they are entitled to. 2. Whether the termination of the services of Tvl.M.K.Radhakrishnan and G.Logadasan is valid and if not what relief they are entitled to. 3. Whether the termination of the services of Tvl.K.Kasinathan and V.Prabhu is valid and, if not to what relief they are entitled to". 14. Likewise in respect of the issue of lock out, the reference made by the Government under Section 10(1)(c) of the Act as per G.O.Ms.No.(D) 392 Labour and Employment Department, dated 12.05.1994 for adjudication is as follows: "Whether the lock out declared by the Management on 15th August, 1992 is legal and/or justified; if not, whether the workmen would be entitled to wages for the period of the lock out". 15. As stated above, in fact, originally when the reference was made in respect of termination it included S.Lakshmanan and V.Govindarajulu. Since they were terminated on specific charges and stated that their accounts have been settled, the issue relating to them was not the subject matter of reference. Out of the remaining employees terminated Mr.M.K.Radhakrishnanand G.Logadasan have claimed themselves to be the protected workmen being the President and executive member respectively of the trade union. Since they were terminated on specific charges and stated that their accounts have been settled, the issue relating to them was not the subject matter of reference. Out of the remaining employees terminated Mr.M.K.Radhakrishnanand G.Logadasan have claimed themselves to be the protected workmen being the President and executive member respectively of the trade union. Their claim which found favour by the Labour Court in its award was under section 33(3) of the Act which gives certain privileges to the protected workmen which is as follows: "33(3)Notwithstanding anything contained in sub-section (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute a)by altering, to the prejudice, whether by dismissal or otherwise, such protected workman, b)by discharging or punishing, whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending. Explanation:-For the purposes of this sub-section, a "protected workman", in relation to an establishment, means a workman who, being [a member of the executive or other office bearer] of a registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf". The Labour court has found that in respect of the said employees they being protected workmen, their termination without express permission in writing of the authority was held to be invalid. 16. As per the Tamil Nadu Industrial Disputes Rules 1958 framed by the State Government in exercise of the powers conferred under Section 38 of the Act 1947, Rule 65 deals with the protected workmen which is as follows:- "65. Protected workmen:[(1)Every registered trade union connected with an industrial establishment, to which the Act applies, shall communicate to the employer, before the 30th September of every year, the names and addresses of such of its officers as are employed in that establishment and as in its opinion, should be recognised as "protected workmen" during the subsequent calendar year. Any change in the incumbency of any such officer shall be communicated to the employer by the union within fifteen days of such change. Any change in the incumbency of any such officer shall be communicated to the employer by the union within fifteen days of such change. In case of any dispute between the employer and any registered trade union in respect of matters connected with the recognition of "protected workmen", the 30th September of an year shall be taken as the date for determining the representative character of each union for the purpose of this rule.] (2)The employer shall, subject to sub-section (4) of Section 33, recognise such workmen to be "protected workmen" for the purposes of sub-section (3) of the said section and communicate to the union, in writing, within fifteen days of the receipt of the names and addresses under sub-rule(1), the list of workmen recognised as "protected workmen": Provided that where the number of officers suggested for recognition as "protected workmen" falls short of the number of officers for whom recognition can be given in respect of the union concerned, the employer shall intimate the fact to the union and the union shall thereupon be entitled to select additional officers to be recognised as "protected workmen". Such selection shall be made by the union and communicated to the employer within five days of the receipt of the employers letter. On receipt of the communication, the employer shall act as specified in this sub-rule. (3)Where the number of officers suggested for recognition by the union exceeds that for which recognition can be given according to sub-section (4) of section 33, the required number shall be selected according to the order of priority suggested by the union. (4)Where there is more than one registered trade union in the establishment, the maximum number of workmen to be recognised as "protected workmen" shall be so distributed by the employer among the unions, that the number of recognised "protected workmen" in the individual unions bear, as nearly as possible, the same proportion to one another as the membership figures of the unions. The employer shall, in that case, intimate in writing to the Secretary or principal officer of the union the number of "protected workmen" allotted to it. (5)When a dispute arises between the employer and any registered trade union in respect of matters connected with the recognition of "protected workmen" under this rule, the dispute shall be referred to the Labour Officer concerned. (5)When a dispute arises between the employer and any registered trade union in respect of matters connected with the recognition of "protected workmen" under this rule, the dispute shall be referred to the Labour Officer concerned. He may call for and scrutinise such of the records as may be considered to be relevant and shall give the parties a reasonable opportunity of stating their case before giving a decision. The decision given by the Labour Officer shall be final: Provided that the decision shall have effect only for a period of six months from the date of such decision or till the 30th September of the year immediately following the year referred to in sub-rule(1), whichever is earlier". 17. Accordingly, the protected workmen gets the privilege if the registered trade union applies to the employer and the employer should recognise such workmen to be the protected workmen and when there is a dispute regarding the protected workmen and its recognition, the matters are to be decided by the Labour Officer and the communication of the protected workmen by the union has to be done before 30th September every year. Therefore, the claim of privileges of protected workmen is a matter of fact based on the procedure contemplated under the Rules. 18. In the claim statement filed by the union before the Labour Court in I.D.No.81 of 1994, even though a reference is made that the said two workmen Mr.M.K.Radhakrishnan and G.Logadasan are the President and Executive Member respectively of the union, no claim under the protected workmen category has been made. The entire claim statement proceed on the basis that by granting increment to three workmen S.Sampathkumar, S.S.Kumaravel and L.D.Samuelson it is opposed to 12(3) settlement and it is an unfair labour practice as per the Act and in respect of disciplinary proceedings, the domestic enquiry was not properly conducted and the strike was declared by the union in accordance with law. Even before the conciliation proceedings such issue of claiming right as a protected workmen has not been raised by the union and ultimately in the order of reference made by the Government also no such issue was referred to the Labour Court.However, a close reading of the award passed by the Labour Court while setting aside the order of termination passed by the management against the said M.K.Radhakrishnan and G.Logadasan shows that the Labour Court has considered them as protected workmen and therefore, they have got more responsibility to protect the rights of the members of the union. It is true that the Labour Court by relying upon the judgment of the Supreme Court as well as the Karnataka High Court, has observed that merely because a person is office bearer of the union, he has no higher right than the employee. The observation by the Labour Court in this regard is as follows: "12. Thiru.M.K.Radhakrishnan was a process operator and Thiru.G.Logadasan was an Utility operator in the Respondent Management at that time of the alleged misconducts. It is not in dispute that at that time Thiru.M.K.Radhakrishnan was the president of the petitioner union and Thiru.G.Logadasan was an executive member of the Union. Hence Thiru.M.K.Radhakrishnan and Thiru.G.Logadasan were the protected workers". 19. Admittedly, there was no issue as claimed by the union itself in respect of the said two employees as protected workmen which as per the said Rule has to be proved on factual assertion. Certainly it is not proper for the Labour Court to have been swayed by taking as if the said two employees were the protected workmen. In the absence of any claim, there was absolutely no possibility either to accept or deny about the said persons as protected workmen as per the rule enumerated above and on that basis, there is no difficulty to conclude that the said portion of the award of the Labour Court in proceeding as if it is the admitted case that the said two workmen are protected workmen is not sustainable. 20. While referring to the status of the office bearer of the Union including the immunity, the Karnataka High Court in M.H.Devendrappa Vs. 20. While referring to the status of the office bearer of the Union including the immunity, the Karnataka High Court in M.H.Devendrappa Vs. Karnataka State Small Industries Development Corporation reported in 72 FJR 143 by quoting a judgment of the Honble Supreme Court in All India Bank Employees Association V.National Industrial Tribunal reported in AIR 1962 SC 171 by referring to the observation of the Honble Supreme Court regarding the right of a labour union in the above said case, has held as follows: "In view of this declaration it was not possible to dissociate his status for the purpose of gaining immunity, to which he was not otherwise entitled. Otherwise, the Conduct Rules would get denuded". 21. The Division Bench of the Rajasthan High Court in Kishori Lal Verma Vs. Hindustan Zinc Ltd., & Another reported in 1995 II LLJ 35, while holding that leadership is a matter of concession and not a service condition in the context of transfer of a trade union leader, has held as follows: "10. Transfer of a trade Union leader does not ipso facto imply that the transfer is an act of victimisation. Trade Union activities performed by the office bearers of the Union are solely for the benefit and welfare of the workmen and not connected with the establishment itself or the members of the public whose interest the establishments are intended to serve. The duties rendered by the office-bearers to the Union are not part of the duties rendered to the establishment. The establishment can function without the Union but the Union cannot function without the establishment. The prime duty of the employee is to serve the establishment and then only the Union. No doubt Trade Union activity has won universal recognition and it has a twin objective, viz., safeguarding the interests of the workers and ushering industrial peace. For whatever reason the management may have deemed it fit or conducive to grant duty relief the legal status of that act is only that of a concession and not a matter pertaining to the condition of service. For whatever reason the management may have deemed it fit or conducive to grant duty relief the legal status of that act is only that of a concession and not a matter pertaining to the condition of service. It has been observed in Jogendra Tiwari V.Food Corporation of India, 1992(2) LLN 671 at page 672, para 6, as follows: "We have already indicated that the learned Judge has gone through the file and was of the view that because of the exigency of the situation, the management had to take this action and there was no manifest mala fide that could be ascertained from the records. Only because the transfer order was passed in a situation arising out of rivalry between the two Unions, it cannot be held that the order passed by the management was a mala fide one. There is no discrimination only because of the fact that leaders of the one Union were transferred and others were kept in the same depot. The object of the order of transfer was not to restore normalcy as is found by the learned trial Judge". 22. In such circumstances, when the Labour Court in the award having considered that as the office bearers of the union, the said employees cannot claim better right, has nevertheless concluded that they are the protected workmen and the same cannot be said to be proper. Such a decision is a necessary corollary in the circumstance that it is the specific case of the union as raised by its representative that the said two workmen M.K.Radhakrishnan and G.Logadasan were President and office bearers of the union and have acted in accordance with the resolution passed by the General Body and therefore, the termination of their services is not valid and entitled for reinstatement with continuity of service. 23. Ex.M.35 which is the charge memo issued by the management, dated 20.10.1992 against M.K.Radhakrishnan relates to various alleged misconduct against him in the form of seven charges relating to June 1992 as extracted in the award by the Labour Court which are as follows: "1. That on 23.06.1992 at about 9.30 a.m. while he was on duty in general shift informed the electrical Engineer, Thiru.Thirunavukarasu that he should not instruct the electrician to carry out some work without M.K.Rathakrishnans permission. 2. That on 23.06.1992 at about 9.30 a.m. while he was on duty in general shift informed the electrical Engineer, Thiru.Thirunavukarasu that he should not instruct the electrician to carry out some work without M.K.Rathakrishnans permission. 2. That the same day he instructed all the workmen in the Utilities Department not to carry out maintenance work and also instructed the Plant Engineer Thiru.A.Murugesan not to allot work or issue works orders to the Utility workmen. He further signed the work orders for on behalf of the Utility workmen, refusing to do the jobs indicated therein. 3. That the same day at about 10.30 he used vulgar and abusive language against the Manager Technical services Thiru.T.S.Sridhar at the time office for his refusing leave to a workman. 4. That on 24.06.1992 at about 5.00 p.m. he addressed a gate meeting exhorting the workmen to defy the Managements notice regarding marking of attendance and enter the factory premises armed with deadly weapons and thus incited workmen to riotous and disorderly behaviour. 5. That on 25.06.1992 morning he exhorted the workmen assembled at the fate to forcibly enter the factory. 6. That on 08.08.1992 he wilfully refused to check the initial Formal Dehyde strength as per existing practice and in breach of settlement dated 23.07.1992. 7. That he entered the factory on 15.08.1992 at about 9.45 a.m and went round the factory along with Tvl.Kasinathan, G.Logadasan and T.Nedumaran and asked the workmen to stop work abruptly, which they did without following the usual shut down procedure damaging thereby the product and plant. Further when the Engineers attempted to go through the usual shut down procedure to save the product and plant these workmen obstructed and prevented them from doing so". and Ex.M.68 which relates to the four charges issued against Mr.G.Logathasan which also relates to June 1992 as referred to in the award as follows: "1. That on 22.06.1992 at about 9.30 am Mr.G.Logadasan threatened Thiru.R.M.Raghavan Instrumentation Engineer that he would beat him outside the factory premises if he dared to intervene in the discussions with Thiru.V.Thirunavukarasu regarding work instructions given to his electrician. 2. That on 14.06.1992 at about 12.30 p.m. Thiru.G.Logadasan while on duty in the first shift threatened Thiru.R.M.Raghavan, Instrumentation Engineer, that he will tamper with the instruments installed in the plant and thereby cause sabotage and bring the plant to a standstill. 3. 2. That on 14.06.1992 at about 12.30 p.m. Thiru.G.Logadasan while on duty in the first shift threatened Thiru.R.M.Raghavan, Instrumentation Engineer, that he will tamper with the instruments installed in the plant and thereby cause sabotage and bring the plant to a standstill. 3. That on 29.06.1992 Thiru.G.Logadasan while on duty in the general shift at about 11.55 a.m took out of the factory on his own and without any permission or instruction, Thiru Sankar who had sustained minor injury while at work, on his moped despite the Management having made all arrangements for his medical attendance and treatment. 4. On 15.08.1992 Thiru G.Logadasan along with Tvl.Rathakrishnan, Kasinathan, S.Lakshmanan and T.Nedumaran and several others went around the plant and asked the workmen to stop work abruptly which they did without following the usual shut down procedure thereby damaging the product and the plant. Further, when the Engineers attempted to go through the usual shut down procedure to save the product and plant, these workmen obstructed and prevented them from doing so". shows that the charges against them were relating to riotous and disorderly behaviour and sabotage. 24. To substantiate the same, various reports of the executives in the form of Exs.M.42, 40 72 73 and affidavit Ex.M.77 were all marked. But the Labour Court in the award has presumed that there is a delay of four months from the date of incident to the date of filing of charge memos Ex.M.35 and 68 and that the delay has not been explained. Therefore, the Labour Court has concluded that the charges are to be negated without even considering the fact that especially in the circumstance that the said workmen have not even submitted their explanations for the said charges. By drawing such adverse interference against the management due to the delay of four months in giving the charge sheet from the date of occurrence, the Labour Court has presumably given a finding in favour of the said employees holding that the termination as invalid and directing reinstatement on the basis of the contention of the representative of the said union that they are the protected workmen. Therefore, on the basis that the factum of protected workmen having not been raised by the union at any point of time either in the claim petition or by way of any material evidence to the effect that concerned rules as elicited above and the procedures has been followed, the decision arrived at by the Labour Court, in that regard has to be necessarily held as extraneous and perverse. 25. In respect of the other aspect of the award regarding the grant of increment to three workmen as correctly submitted by the learned Senior counsel for the management, the Labour court has not taken the reference in that regard in its proper perspective the reference as elicited above, specifically states as to whether the grant of special increment to the said three workmen on evaluation of their performance is in violation of the settlement, dated 08.05.1991. However, the Labour Court has wrongly understood the reference and framed it, as it is seen in the very first paragraph of the award itself by omitting to refer to the term "on evaluation of their performance". Even in paragraph 7 of the award while formulating the point for consideration the Labour Court in that regard has formulated the points which is as follows: "1) Whether the Management in fact violated the terms of the Settlement dated 8.5.91 in giving special increments to three of the workmen Tvl.S.Sampathkumar, S.S.Kumaravelu and L.D.Samuelson? If so what relief can be given? 2) Whether the termination of the services of Tvl.M.K.Radhakrishnan, G.Logadasan and S.Lakshmanan is valid and, if not to what relief they are entitled? 3) Whether the termination of services of Tvl.K.Kasinathan and V.Prabhu, is valid and if not to what relief they are entitled to?" There by omitting to consider the relevant aspect of the reference made by the Government regarding the factum "on evaluation of their performance". Certainly, it is a material irregularity which has been committed by the Labour Court at the threshold of consideration of the issue in that regard. Certainly, it is a material irregularity which has been committed by the Labour Court at the threshold of consideration of the issue in that regard. The Labour Court having regard to Ex.M.159 which is a settlement, dated 08.05.1991 that there is no clause for granting special increment to any workmen and having specifically observed that "no one can deny the discretion of the Management to grant special increment to any particular workman in recognition of good work” has proceeded to state that "unless the management proves that such special increment was given in recognition of good work done by a particular workmen the act of the management cannot said to be bona fide" has failed to consider the reference which is self explanatory. Certainly, the finding of the Labour Court, in that regard is beyond the scope of reference. 26. Even if there is no clause in the agreement Ex.M.159 as stated by the Labour Court itself in the award that it is the discretion of the management to grant special increment in recognition of good work, it is not known as to how such recognition would amount to unfair labour practice as per the provisions of the Act. Except stating that the said workmen have continued their work under the management during the time when the union has declared strike there is nothing to show that the increment granted to the said three individuals was not in the recognition of their good work. In this regard, it is relevant to point out that it was the admitted case of the union that there were 17 workmen during construction stage prior to the commission of plant who were granted increment during 1989 and 1990 and inspite of it, the Labour Court has come to a conclusion that there are no recourse to show that granting of additional increment by management for good work has been in vogue. The said portion of the award is as follows: "On behalf of the petitioner it is also stated that since 17 workmen were in service during construction stage prior to the commission of the plant they were given additional increment during 1989 and 1990. No material available on the side of the respondent to reject the said statement of the petitioner. No material available on the side of the respondent to reject the said statement of the petitioner. Hence, it cannot be said that granting additional increment by the management to its workmen in recognition of good work was in vogue and on that basis special increment was granted to Tvl.S.Sampathkumar, S.S.Kumaravel and L.D.Samuelson. Ex.M.159 is the settlement for increased wages entered into after a prolonged strike for more than three months. Admittedly, the special increment has been given to the said three persons who worked during the said strike period". Hence, it cannot be said that granting additional increments by the management to its workmen in recognition of good work was not in vogue and on that basis special increment granted to Tvl.S.Sampathkumar, S.S.Kumaravel and L.D.Samuelson cannot be said to be extraneous. The said portion of the award abundantly prove the contradictory stand taken by the Labour Court in arriving at such conclusion. The labour Court has certainly failed to appreciate that the said delay of four months cannot be termed by any stretch of imagination as inordinate delay in taking disciplinary action. The finding that the management has not taken immediate action against the said two workmen and, if really there was any misconduct, action would have been taken swiftly is certainly a perverse finding taking note of the fact that even in the domestic enquiry the said workmen have not participated and no evidence adduced before the Labour Court to substantiate that the so-called delay is attributable to the management and that the management was aware that the seven charges against Mr.M.K.Radhakrishnan and four charges against G.Logadasan were false. In the absence of any explanation to the charges by the said workmen, such conclusion by the Labour Court cannot be sustained. 27. As far as the domestic enquiry in this case is concerned in the context that the office bearers as well as the workers of the union against whom specific charges have been levelled have not admittedly submitted their explanation and even during the domestic enquiry they have not chosen to participate and cross examine the witness apart from not producing any evidence in respect of their claims being the claimants in the industrial dispute. It is also not in dispute, as it is seen in the record that the evidence of various employees of the management were let in the form affidavits presented before the enquiry officer. The said affidavits filed before the Enquiry Officer were marked as Exs.M.11, M.39, M.43, 46, 74, 77 87, 92 and 114 and it is seen that the workmen have not chosen to controvert the said affidavits which are filed as a matter of evidence to substantiate their defence against the charges levelled against them. As elicited above, when the charges levelled against the said M.K.Radhakrishanan and G.Logathasan were grave in nature, it was certainly incumbent on their part to have controverted the same. So long as, it is not the case of the said employees that they were prevented from cross examining the witnesses on behalf of the management who have filed affidavits, it cannot be said as if the rights of the workers in the domestic enquiry have been either violated or there is a flaw in the domestic enquiry. It is relevant to point out at this stage that even as per the award of the Labour Court, it is not a finding that the domestic enquiry was perverse or it was not done properly. But the Labour Court has chosen to disagree with the charges framed as it is seen under Exs.M.35 and 68 relating to M.K.Radhakrishnan and G.Logathasan that there has been a delay of four months from the date of occurrence and the filing of charges and therefore, it was presumed that the managements action was improper and for the delay, the Labour Court has come to a conclusion that the contents of the charges in Exs.M.35 and 68 cannot be termed as a misconduct warranting disciplinary action. 28. In this regard, a reference has to be made to the judgment of the Division Bench of this Court reported in 1992 1 LLJ 9 (S.Ramaiah Mudaliar Bros & others Vs. Industrial Tribunal, Madras). The Division Bench considered a similar issue that 55 affidavits were filed on behalf of the workers while the management has not chosen to deny the contents of the affidavits by filing counter affidavits. Industrial Tribunal, Madras). The Division Bench considered a similar issue that 55 affidavits were filed on behalf of the workers while the management has not chosen to deny the contents of the affidavits by filing counter affidavits. Taking note of the fact that Rule 34 (7) of the Tamil Nadu Industrial Disputes Rules enables evidence to be recorded either orally or through the affidavit and rejecting the contentions of the employer that the tribunal should inform the party to cross examine the deponent of an affidavit, has held that when sufficient opportunity was available on various dates of hearing to the employer which was not utilised to cross examine the deponent of the affidavit on behalf of the workmen in 55 affidavits, it is not open to such employer to question that there is a denial of opportunity. The relevant portions of the judgment is in the following paragraphs: "11. The second answer to the contention of the learned counsel for petitioner is that even though the Rule confers a right on the opposite party to cross-examine the deponent of an affidavit, the party concerned should inform the tribunal that he would like to cross-examine the deponent. Unless the Tribunal or the opposite party is informed of the stand taken by the person concerned, it cannot be assumed that he was going to exercise his right of cross-examination. If an affidavit is filed in a court, then it is for the other party to say that he denies the contents of the affidavit and he wants to cross examine the deponent. Before the Tribunal, the owners of the factories had lot of opportunities to state that they wanted to cross examine the deponents of the 55 affidavits. The enquiry was pending for quite a long time and if only the owners of the factories had indicated that they would cross-examine the deponents the latter would have certainly produced themselves before the court. Learned counsel for the respondents invitesour attention to a statement made in the counter affidavit filed in C.M.P.No.10542 of 1983 in W.A.No.679 of 1983 which was filed by the owners of the factories against an interlocutory order passed in this writ petition. In the said interlocutory order, the writ petitioners were directed to pay 4% bonus as an interim measure till the disposal of the writ petition. In the said interlocutory order, the writ petitioners were directed to pay 4% bonus as an interim measure till the disposal of the writ petition. But, against that order, an appeal was filed by the owners of the factories. In that appeal, there was an application for stay and in that application, a counter affidavit was filed on the behalf of the workers. In para 8 of the said counter affidavit, it is stated as follows:- “Before the tribunal even though our demand was for a 15% bonus our union confined itself only for a relief of statutory minimum bonus so that the dispute may not be further protracted by going into the accounts and other details that are necessary to arrive at the quantum of bonus. It is not uncommon that when there are numerous parties before a quasi – judicial authority to let in evidence by filling necessary affidavits. In fact it was suggested to the writ appellants to name any one of the individual deponents of the 55 affidavits filed on our side, so that, the individual could be brought for cross examination. The writ appellants counsel did not name any of the individual deponents and merely chose to argue the case.” The truth of the statement appears to be probable and it is supported by the statement made by M.W.1 that he did not see the 39th affidavit which related to his factory. If the owners of the factories were not interested even seeing the affidavits which relate to his factory. If the owners of the factories were not interested even in seeing the affidavits filed by the workers, naturally it can be inferred there from that they were not interested in cross examining the deponents of the affidavits. No doubt, a counter affidavit was filed in common after the 55 affidavits were filed by the workers, it was not pursued by the owners of the factories and no intimation was given to the tribunal that they wanted to cross-examine the deponents of the affidavits. Learned counsel for the petitioners contended vehemently that the failure on the part of the tribunal to comply with the mandatory provision of rule 34(7) of the Industrial Disputes Rules would amount to violation of the principles of natural justice. Learned counsel for the petitioners contended vehemently that the failure on the part of the tribunal to comply with the mandatory provision of rule 34(7) of the Industrial Disputes Rules would amount to violation of the principles of natural justice. While pointing out that the Rule was not in force at that time, we would also hold that the writ petitioners have to blame themselves for not cross-examining the deponents of the affidavits and there was no error in the procedure adopted by the Tribunal. The Tribunal cannot be found fault with for not inviting the petitioners to cross-examine the deponents. There was no question of the petitioners being denied an opportunity of cross-examine the deponents. If the petitioners or the opposite party had stated that that they would like to cross-examine the deponent, they latter would have presented themselves for the cross-examination. The decisions relied on by learned counsel for the petitioners with regard to this aspect of the matter are not relevant as we have found that there is no question of any denial of opportunity to the writ petitioners and there was no violation of the principles of natural justice. We do not find any error in the acceptance by the tribunal of the affidavits filed by the workers". 29. The Division Bench has held that affidavits could be placed on a higher pedestal and that could be treated as evidence holding that mere claim statement does not amount to evidence, which is as follows: ".... But the affidavits can be placed on a higher pedestal and they can be treated as evidence. The claim statement does not amount to evidence. Once the affidavits are filed before the Tribunal, it is for the opposite party to contradict the same by filing counter affidavit with regard to each of the factories....". 30. By applying the yardstick laid down by the Division Bench of this Court, as stated above to the facts of the present case, it is clear that in the domestic enquiry affidavits were filed and opportunities were given to the workmen they have neither cross examined the witnesses who have filed the affidavits as stated above nor chosen to file affidavits on their side. Therefore, it is clear that it is a case of uncontroverted evidence and even before the Labour Court, no steps have been taken on behalf of the workmen in that regard, except the submission made during the course of argument. In such circumstances, when there is no finding by the Labour Court that the domestic enquiry is perverse, it has to be necessarily held that it is the said workmen who have failed to avail the opportunity of cross examination and therefore, it is not open to them to turn around to say as if there is a violation of principles of natural justice. This aspect of the matter has last sight of by the Labour Court in its award. The plea taken by the second respondent union that the two employees have acted as per the decision of the union general body was never raised at any point of adjudication and raised for the first time before the Labour Court to the effect that the two workmen have acted as per the resolution of the general body and had no intention to disobeying the management and that can never be a ground for the Labour Court to come to a conclusion that the charges framed against that the said workmen are not valid and consequent termination as not valid in the absence of any finding by the Labour Court that the domestic enquiry is perverse. It has to be necessarily construed that the domestic enquiry is fair. It was in State of Haryana Vs.Rattan Singh reported in (1977) 2 SCC 491 , the Supreme Court has held that in a domestic enquiry the strict and substantiated Rules of Evidence Act are not applicable. In these cases, it is only the case of evidence or no evidence which is a criteria and not in the technical sense of the Evidence Act as per the sufficiency of evidence that is relevant. The observation of the Apex Court in this regard is as follows: “In a domestic enquiry all the strict and sophisticated rules of the Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible, though departmental authorities and Administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Evidence Act. All materials which are logically probative for a prudent mind are permissible, though departmental authorities and Administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Evidence Act. The essence of judicial approach is objectively, exclusion of extraneous material or considerations, and observances of rules of natural justice. Fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment, vitiate the conclusion reached, such a finding, even of a domestic tribunal, cannot held to be good. The simple point in all these cases is, was there some evidence or was there no evidence not in the sense of the technical rules governing court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny by court, while absence of any evidence in support of the finding is an error of law apparent on the record and the court can interfere with the finding. In the present case evidence of the inspector is some evidence which has relevance to the charge and the Courts below had misdirected themselves in insisting on the evidence of ticket less passengers. Also, merely because the statements were not recorded, the order for termination cannot be invalid. In fact, the inspector tried to get their statements but the passengers declined further, it was not for the court but for the tribunal to assess the evidence of the co-conductor”. 31. That was also followed subsequently by the Supreme Court in Divisional Controller, KSRTC (NWKRTC) Vs.A.T.Mane reported in 2004 107 FJR 741 (SC) holding that it is not the amount of money misappropriated which is relevant and primary factor for awarding punishment is the loss of confidence. 32. In Roop Singh Negi Vs. Punjab National Bank and others reported in 2009 (1) LLN 806, the Supreme Court by referring to various judgments including the judgment in Moni Shankar Vs. Union of India and another reported in 2008 (2) LLN 753 and also in M.V.Bijlani Vs. 32. In Roop Singh Negi Vs. Punjab National Bank and others reported in 2009 (1) LLN 806, the Supreme Court by referring to various judgments including the judgment in Moni Shankar Vs. Union of India and another reported in 2008 (2) LLN 753 and also in M.V.Bijlani Vs. Union of India and others reported in 2006 (3) LLN 158, held that the nature of evidence in departmental proceedings is not that of a criminal trial but however held that if the report of the enquiry officer was based merely on ipse dixit and surmises and conjectures such enquiry report cannot be sustained, in the following paragraph: "23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof". 33. On the facts of the present case, the domestic enquiry which has been filed as Ex.M.145 has not been found either perverse or opposed to the principles of natural justice and based on surmises and conjectures, I am of the considered view that the finding of the Labour Court that the removal of M.K.Radhakrishnan and G.Logathasan is not valid in law has no legal basis whatsoever. Therefore, the reliance placed on by Mr. R.Muraleedharan, learned counsel appearing for the union, the above said judgment of the Supreme Court to substantiate the case of the union, cannot be accepted. Therefore, the reliance placed on by Mr. R.Muraleedharan, learned counsel appearing for the union, the above said judgment of the Supreme Court to substantiate the case of the union, cannot be accepted. It is no doubt true that when it is found that there has been unfair labour practice or victimisation, the departmental enquiry can be interfered with by this Court while exercising its jurisdiction under Articles 226 or 227 of the Constitution of India as held by the Supreme Court in Usha Breco Mazdoor Sangh Vs. Management of Usha Breco Ltd., and another reported in 2008 III CLR 85. 34. While granting reinstatement with backwages in respect of the said employees namely, M.K.Radhakrishnan and G.Logadasan, the Labour Court has again lost sight of the established judicial precedent that it is the employees who have to substantiate by exercising their initial burden of proof that they were not gainfully employed and admittedly, the said workers have not even attempted to exercise the initial burden of their non employment and therefore, even otherwise the order of reinstatement with backwages cannot be sustained. That was the judicial precedent established in Kendriya Vidyalaya Sanghathan and another Vs.S.C.Sharma reported in 2005 LLR 275, the Supreme Court has held that burden of proof lies on the employees that they were not gainfully employed so as to entitle themselves to get backwages by holding that in that regard there was no straitjacket formula available is following paragraph: "In P.G.I. of Medical Education and Research Chandigarh vs. Raj Kumar, JT 2001 (1) SC 336:2001 LLR 225 (SC), this court found fault with the High court in setting aside the award of the Labour court which restricted the back wages to 60% and directing payment of full back wages, It was observed thus: “9. The Labour court being the final court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. The finding of perversity or being erroneous or not in accordance with law shall have to be recorded with reasons in order to assail the finding of the tribunal or the Labour court. It is not for the High court to go into the factual aspect of the matter and there is an existing limitation on the high court to that effect”. It is not for the High court to go into the factual aspect of the matter and there is an existing limitation on the high court to that effect”. Again at paragraph 12, this court observed: “Payment of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no straitjacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety”. The position was reiterated in Hindustan Motors Ltd. V. Tapan Kumar Bhattacharya and another, JT 2002 (5) SC 143; 2002 (6) SCC 41 : 2002 LLR 925 Indian Railway construction Co.Ltd v. Ajay Kumar,JT 2003 (2) SC 295; 2003 (4) SC 579: 2003 LLR 337 and M.P State Electricity Board V. Smt.Jarina Bee, JT 2003 (5) SC 542; 2003 (6) SCC 141 . Applying the above principle, the inevitable conclusion is that the respondent was not entitled to full back wages which according to the High court was natural consequence. That part of the High court order is set aside. When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in the regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard". 35. In 1982(3)SCC 385 (Durg District Metal & Engg.Worker Union Vs. Bhilai Construction Company), it was held that in the absence of finding by a tribunal that the workmen have not gainfully employed during the period, then granting of backwages for the period cannot be sustained. 36. In such view of the matter, the writ petition filed by the management in W.P.No.23155 of 2005 challenging the award in I.D.No.81 of 1994, dated 13.04.2005 stands allowed setting aside the award except insofar as it relates to the finding of the Labour Court in respect of Mr.V.Prabhu holding that the termination of the said V.Prabhu is valid. 37. 36. In such view of the matter, the writ petition filed by the management in W.P.No.23155 of 2005 challenging the award in I.D.No.81 of 1994, dated 13.04.2005 stands allowed setting aside the award except insofar as it relates to the finding of the Labour Court in respect of Mr.V.Prabhu holding that the termination of the said V.Prabhu is valid. 37. Now coming to W.P.No.37731 of 2005 filed by the union against the portion of the said award of the Labour Court in I.D.No.81 of 1994, dated 13.04.2005, it relates to the said V.Prabhu holding that the order of termination passed by the management against him as valid. Against the said V.Prabhu, whose cause is being taken up by the union as petitioner in W.P.No.37731 of 2005, the charges framed against him as seen in Ex.M.6 are as follows: "1. That on 12.08.1992 while he was on duty in the Fluid Bed Dryer in the C shift at about 10.45 p.m. he was instructed by the process Engineer to increase the feed rate from 170 volts to 180 volts and he refused to do so. 2. That he without any instructions in this behalf. Deliberately increased the feed rate upto 230 volts and thereafter closed the steam valve of the first compartment of the dryer and failed to maintain the temperature, because of which there were lumps formation in the first compartment adversely affecting the production in the subsequently shifts on 13.08.1992. 3. That he was found sleeping in the main control room from 11.55 p.m on 12.08.1992 till 6.00 a.m on 13.08.1992 4. That he made false entries in the operators logbook for the period be slept without performing any work". 38. The Labour Court in its award in this regard has held that as against V.Prabhu it is the case of the proved misconduct and even after the second show cause notice was sent enclosing the finding of the Enquiry Officer, he has not chosen to reply and ultimately finding his past record when the termination order was passed, the Labour Court has held that the termination is not shockingly disproportionate to the act of misconduct. It is seen in the domestic enquiry proceedings in respect of the said V.Prabhu that the witness examined namely T.Karthikeyan has categorically deposed that the operator (V.Prabhu was found sleeping) and the said witness was cross examined and in Ex.M.11 affidavit he has clearly stated his instructions to Mr.V.Prabhu to increase the feed rate in the fluid bed dryer from 170 volts to 180 volts which he not only refused to carry out the instructions but increased feed rate upto 230 volts and it was due to that conduct the temperature level of 55"C dipped to 40"C and the production in the second shift came to be adversely affected. It is in that context of proved misconduct the enquiry report came to be accepted by the Labour Court and I do not see any reason to interfere with the finding of the Labour Court, in that regard, in I.D.No.81 of 1994. In that view of the matter, the W.P.No.37731 of 2005 stands dismissed. 39. In this regard, the case of the union that there is victimisation does not deserve to be held as tenable. First of all, the plea of victimisation has never been raised by the union insofar as the services of Mr.V.Prabhu. It was held in M/s.Bharat Iron Works Vs. Bhagubhai Balubhai Patel and others reported in AIR 1976 SC 1998 that victimisation is serious charge and that must be pleaded and proved and such victimisation must be connected with the activities of the concerned employee which is as follows: "9. A word of caution is necessary. Victimisation is a serious charge by an employee against an employer, and, therefore, it must be properly and adequately pleaded giving all particulars upon which the charge is based to enable the employer to fully meet them. The charge must not be vague or indefinite being as it is an amalgam of facts as well as inferences and attitudes. The fact that there is a union espousing the cause of the employees in legitimate trade union activity and an employee is a member or active office-bearer thereof, is, per se, no crucial instance. Collective bargaining being the order of the day in a democratic social welfare State, legitimate trade union activity which must shun all kinds of physical threats, coercion or violence, must march with a spirit of tolerance, understanding and grace in dealings on the part of the employer. Collective bargaining being the order of the day in a democratic social welfare State, legitimate trade union activity which must shun all kinds of physical threats, coercion or violence, must march with a spirit of tolerance, understanding and grace in dealings on the part of the employer. Such activity can flow in healthy channel only on mutual cooperation between employer and employee and cannot be considered as irksome by the management in the best interest of the concern. Dialogues with representatives of a union help striking a delicate balance in adjustment and settlement of various contentious claims and issues. 10. The onus of establishing a plea of victimisation will be upon the person pleading it. Since a charge of victimisation is a serious matter reflecting, to a degree, upon the subjective attitude of the employer evidenced by acts and conduct, these have to be established by safe and sure evidence. 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. 11. Again victimisation 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. The question to be asked is: Is the reason for the punishment attributable to a gross misconduct about which there is no doubt or to his particular trade union activity which is frowned upon by the employer?" 40. Now coming to W.P.No.37730 of 2005 which relates to the finding of the Labour Court in award I.D.No.82 of 1994, dated 13.04.2005 holding that lockout declared by the management as valid. The Labour Court has framed point for consideration as to whether the declaration of the management in lockout on 15.08.1992 was legal and justified. In respect of this issue, the union which is the claimant has examined three witnesses while the management side two witnesses were examined. Apart from that the management has marked Exs.M.1 to 106 while the union has marked Exs.W.1 to 32. The Labour Court has found that the stay in strike resorted to by the union on 15.08.1992 was against Ex.M.41 which was the agreement entered into under Section 12(3) of the Act on 23.07.1992. Apart from that the management has marked Exs.M.1 to 106 while the union has marked Exs.W.1 to 32. The Labour Court has found that the stay in strike resorted to by the union on 15.08.1992 was against Ex.M.41 which was the agreement entered into under Section 12(3) of the Act on 23.07.1992. The Labour Court found on fact that the stay in strike resorted to by the union is illegal and against the Section 22(1)(a) of the Act which stipulates a specific notice is to be given six weeks before strike which is as follows: "22. Prohibition of strikes and lockouts:-(1) No person employed in a public utility service shall go on strike, in breach of contract- (a)without giving to the employer notice of strike, as hereinafter provided, within six weeks before striking; or" 41. The Labour Court has also found that the activity of the management being one of the continuous process for which the persons on the spot is required through out by shift working and therefore, by resorting to such stay in strike against the provisions of the Act, the declaration of lock out by the management under Ex.M.45 on 15.08.1992 is justified. The Labour Court has also found that since the stay in strike was resorted to forthwith on 15.08.1992 there was no necessity on the part of the employer to give advance notice under Section 22(2)(a) of the Act which is as follows: "22(2)(a)No employer carrying on any public utility service shall lock out any of his workmen:- a) without giving them notice of lock out as hereinafter provided, within six weeks before the locking out; or" 42. Section 22(3) of the Act which is as follows: "3) The notice of lock out or strike under this section shall not be necessary where there is already in existence a strike or, as the case may be, lock out in the public utility service, but the employer shall send intimation of such lock out or strike on the day on which it is declared, to such authority as may be specified by the appropriate Government either generally or for a particular area or for a particular class of public utility services", stipulates that in such circumstances, no notice of lock out is necessary. 43. 43. The Labour Court has also found that as per Section 22(6) of the Act which is follows: "22(6) if on any day an employer receives from any persons employed by him any such notices as are referred to in sub-section (1) or gives to any persons employed by him any such notices as are referred to in sub-section 92), he shall within five days, thereof report to the appropriate Government or to such authority as that Government may prescribe the number of such notices received or given on that day". the management has sent necessary report to the Deputy Commissioner of Labour, on 18.08.1992 itself and therefore, justified the lock out declared by the management as lawful. Therefore, the ground raised by the union in writ petition No.37730 of 2005 challenging the award of the Labour Court in I.D.No.82 of 1994 that the lock out was in violation of Section 22 of the Act has no legal force. In the circumstances that the Labour Court has found that the grounds mentioned by the union under Ex.W.5, dated 15.08.1992 for resorting to stay in strike on the very same day which were not the ground mentioned in the earliest strike notice dated 25.05.1992 marked as Ex.M.27 and therefore, the stay in strike notice issued by the union on 15.08.1992 cannot be said to be a continuation of earlier notice of the union, dated 25.05.1992 as seen in Ex.M.27 it cannot be said to be either improper or incorrect. It has been repeatedly held by the Supreme Court that by superior bargaining power either employer or workmen cannot resort to lock out or a strike especially when the mechanism is available for resolution of such dispute as it was held in Syndicate Bank and another Vs. K.Umesh Nayak and others reported in 1994 II CLR 753. 44. Law is well settled that the jurisdiction of the High Court while deciding the validity or otherwise of the award especially relating to the strike or lock out. The High Court cannot assume jurisdiction to decide the legality or justifiability of the strike or the lock out which power is ultimately vested with the industrial adjudicator. 44. Law is well settled that the jurisdiction of the High Court while deciding the validity or otherwise of the award especially relating to the strike or lock out. The High Court cannot assume jurisdiction to decide the legality or justifiability of the strike or the lock out which power is ultimately vested with the industrial adjudicator. By setting aside the order of the High Court holding that the strike in the particular facts of the case resorted to by the employees of the bank as legal and quashing the circular of the bank in deducting the wages during the period of strike laying down the law the Supreme Court in the above case in 1994 II CLR 753, supra has held as follows: "28. In the present case the High Court, relying on Churakulam Tea Estate1 and Crompton Greaves2 cases has held that the strike was both legal and justified. It was legal according to the High Court because the reference to the conciliation proceedings was itself illegal and, therefore, in the eye of the law, no conciliation proceedings were pending when the employees struck work. The strike was, further justified according to the High Court because the Bank had taken a recalcitrant attitude and had insisted upon obtaining the approval of the Central Government for the implementation of the agreements in question, when no such approval was either stipulated in the agreements or required by law. We are afraid that the High Court has exceeded its jurisdiction in recording the said findings. It is the industrial adjudicator who had the primary jurisdiction to give its findings on both the said issues. Whether the strike was legal or illegal and justified or unjustified, were issues which fell for decision within the exclusive domain of the industrial adjudicator under the Act and it was not primarily for the High Court to give its findings on the said issues. The said issues had to be decided by taking the necessary evidence on the subject. We find nothing in the decision of the High Court to enlighten us as to whether notwithstanding the fact that the agreements in question had not stipulated that their implementation was dependent upon the approval of the Central Government; in fact, the Bank was not duty-bound in law to take such approval. We find nothing in the decision of the High Court to enlighten us as to whether notwithstanding the fact that the agreements in question had not stipulated that their implementation was dependent upon the approval of the Central Government; in fact, the Bank was not duty-bound in law to take such approval. If it was obligatory for the Bank to do so, then it mattered very little whether the agreements in question incorporated such a stipulation or not. If the approval was necessary, then there did exist a valid industrial dispute between the parties and the conciliation proceedings could not be said to be illegal. It must be noted in this connection that the said agreements provided for benefits over and above the benefits which were available to the employees of the other Banks. Admittedly, the employees struck work when the conciliation proceedings were still pending. Further, the question whether the implementation of the said agreements was of such an urgent nature as could not have waited the outcome of the conciliation proceedings and if necessary, of the adjudication proceedings under the Act, was also a matter which had to be decided by the industrial adjudicator to determine the justifiability or unjustifiability of the strike. 29. It has to be remembered in this connection that a strike may be illegal if it contravenes the provisions of Sections 22, 23 or 24 of the Act or of any other law or of the terms of employment depending upon the facts of each case. Similarly, a strike may be justified or unjustified depending upon several factors such as the service conditions of the workmen, the nature of demands of the workmen, the cause which led to the strike, the urgency of the cause or the demands of the workmen, the reason for not resorting to the dispute resolving machinery provided by the Act or the contract of employment or the service rules and regulations etc. An enquiry into these issues is essentially an enquiry into the facts which in some cases may require taking of oral and documentary evidence. Hence such an enquiry has to be conducted by the machinery which is primarily invested with the jurisdiction and duty to investigate and resolve the dispute. An enquiry into these issues is essentially an enquiry into the facts which in some cases may require taking of oral and documentary evidence. Hence such an enquiry has to be conducted by the machinery which is primarily invested with the jurisdiction and duty to investigate and resolve the dispute. The machinery has to come to its findings on the said issue by examining all the pros and cons of the dispute as any other dispute between the employer and the employee". 45. Applying the dictum laid down as stated above, when the Labour Court in its award has held that the lockout declared by the management was not illegal or not opposed to Section 22 of the Act, there is no question of this Court deciding otherwise on fact especially when it is not the case of the parties that the Labour Court proceedings are perverse in that regard. On the factual finding by the Labour Court that there is no violation of any provision of Section 22 of the Act by the management, it is not possible to accept the contention of Mr.Muraleedharan, the learned counsel for the union to decide contra which would amount to deciding the illegality or otherwise of the lockout on fact by this Court to which this Court has no jurisdiction under Article 226 of the Constitution of India. Further, there is no substance in the contention of the learned counsel for the union that the termination is improportionate to the charges. As elicited above, the charges are serious in nature and domestic enquiry has been held which cannot be stated to be perverse. 45. In such view of the matter, I do not see any illegality or perversity in the finding of the Labour Court in this regard and the writ petition in W.P.No.37730 of 2005 fails and the same is dismissed. In fine, "I)W.P.No.23155 of 2005 stands allowed and the award of the Labour Court in I.D.No.81 of 1994, dated 13.04.2005, except insofar as it relates to V.Prabhu stands set aside. ii) W.P.No.37731 of 2005 stands dismissed and the portion of the award in I.D.No.81 of 1994 relating to Mr.V.Prabhus termination upholding the same is held as valid. iii) W.P.No.37730 of 2005 stands dismissed and the award of the Labour Court in I.D.No.82 of 1994, dated 13.04.2005 declaring the lock out of the management as valid is upheld". No costs. ii) W.P.No.37731 of 2005 stands dismissed and the portion of the award in I.D.No.81 of 1994 relating to Mr.V.Prabhus termination upholding the same is held as valid. iii) W.P.No.37730 of 2005 stands dismissed and the award of the Labour Court in I.D.No.82 of 1994, dated 13.04.2005 declaring the lock out of the management as valid is upheld". No costs. Consequently, connected miscellaneous petitions are closed.