The court established that the punishment of dismissal for involvement in riotous behavior and inciting violent activity was proportionate to the charge.

( 1 ) HEARD learned counsel for the parties and perused the record. This petition arises from an award passed by the Labour Court, Allahabad dated 23 Februrary, 1984 in Adjudication case No. 196 of 1981. The award was enforced by publication on the Notice board under Section 6 (3) of the U. P. Industrial Disputes Act, 1947 on 28. 4. 1984.

( 2 ) THE dispute arises due to termination of the services of the petitioner on 18. 12. 1980 by the Company. Aggrieved by his termination the petitioner raised an industrial dispute, which was referred by the State governement in exercise of the powers under Section 4-K of the Act to the labour Court Allahabad where it was registered as Adjudication Case No. 196 of 1981.

( 3 ) THE case set out by the employer was that the workman along with other workers assaulted the Chief Executive officer of the Company. He was found responsible for riotous and disorderly behaviour and was dismissed from service after holding enquiry. It was also the case of the employer that some of the workers who were with the dismissed workman had accepted their guilt, which establishes the fact of involvement and participation of the workman in the aforesaid act of misconduct.

( 4 ) THE case as set out by the petitioner workman before the Labour court was that he was victimized for such behaviour, charge sheeted for the alleged misconduct and illegally dismissed from service. Question mark was also raised regarding the fairness of the domestic enquiry on the basis of the pleadings of the parties an additional issue was framed before the Labour Court as to whether the domestic enquiry by the employer was fair and proper. The Labour Court by its interim award held that the domestic enquiry was fair proper and in accordance with law. This interim award is also part of the final award of the Labour Court.

( 5 ) BY the impugned award the labour Court has held that the petitioner workman misbehaved with the Chief executive Officer of the establishment of the company, was involved in the act of beating him along with others, instigated other workers to indulge in such violent activity and as such it was not proper to keep such a person in service for the reason that industrial discipline, peace and harmony have to be maintained and if the workman is let out, indiscipline would increase. He found that the punishment of dismissal was not disproportionate, illegal and unjustified. The operative portion of the findings recorded by the Labour Court in paras 4, 5 and 6 are as under:

( 6 ) LEARNED counsel for the petitioner has denied in his argument that the workman concerned was dismissed from service for any trade union activity. It is alleged that he was dismissed from service as he was found responsible to organize riotous and disorderly behaviour and such an act cannot be said to be a trade union activity.

( 7 ) LEARNED counsel for the petitioner submits that in paras 1 and 3 of the written statement filed by the employer it has been stated that the petitioner along with others forcibly entered in the office of the respondents and assaulted the officer but in the enquiry the Chief security Officer has stated that the workman tried to enter in the gate and there were 200 workers whereas the labour Court in its award held that the petitioner was only inciting the workers. On the basis of these averments the argument advanced by the learned counsel for the petitioner is that the finding of the labour Court that the petitioner was inducing the other workmen is never pleaded in the written statement filed by the employer hence it can not be improved by any other evidence. He has placed reliance on 1982 smt. Bibbe Vs. Smt. Ram Kali, A. W. C. 665 in which it has been held that a decision based on facts not pleaded. No evidence would be permissible to be led with regard to a fact, which has not been pleaded. Relying the case of Sy. Yakub vs. K. S. Radhe Krishnan 1964 SC-477 he submits that the perversity of the or