JUDGMENT P.B. MUKHARJI, J. - This is an application under Article 226 of the Constitution of India. The applicant is B.N. Elias and Company Private Ltd. It is directed against the award of the Second Industrial Tribunal. By the award the Tribunal set aside the applicant's dismissal of the Respondent workman Sailendra Nath Bose and directed his re-instatement. 2. The workman in this case was dismissed on the ground of his deafness. That the workman is deaf is admitted. That he has to use a hearing aid is also admitted. It is admitted that he has put in about years of service. He began his career with a slight defect of hearing but later on it appears the defect increased until in February, 1957, he had to take resort to a hearing aid. Medical certificates are unanimous on the point of deafness, but are divergent on the effect of it. Dr. Feldmann, M.D., the company's doctor says that it is a serious defect and describes him as "suffering from crippling deafness of both his ears". He took an audiogram. He found his bone conduction to be not good and not fit for operation. He expressed the opinion that "unless he is particularly competent in some kind of work where he can plod along without being disturbed by questions, he is unfit for office work". Major K. K. Ghose, Professor of Surgery of the Medical College Hospitals, Calcutta, Ear, Nose and Throat Department, gives a guarded certificate. He also certifies that "he is a subject of otosclerosis". But he goes on to express; the opinion that he can hear "ordinary conversation across the table with the hearing "aid he is using". He expressed the opinion that he was fit to carry on the duties of clerk "which does not entail any great acuteness of hearing''. He was working in the Provident Fund Section where it would be wrong to think that it was ordinary conversation not requiring any great acuteness of hearing. Schemes and tables of provident fund and figures would be surely not ordinary conversation. Where doctors differed the Tribunal intervened and by putting a few questions in Court found him to give appropriate replies. The Tribunal says "the Petitioner came to the witness box with the hearing aid which he was using. Schemes and tables of provident fund and figures would be surely not ordinary conversation. Where doctors differed the Tribunal intervened and by putting a few questions in Court found him to give appropriate replies. The Tribunal says "the Petitioner came to the witness box with the hearing aid which he was using. I put some questions to him in a normal tone in order to test whether he can hear with the help of the hearing aid and he gave appropriate replies to the questions put to him by me". He came to the conclusion that "the Petitioner is fit "enough to carry on the duties of the clerk with the hearing aid "he has been using". 3. Ordinarily I am loath to interfere with a finding of fact, do not propose here also to interfere with the finding of fact because the question of jurisdiction raised in this application seems to me to be unanswerable. I should however say only this on the particular point that it is necessary to emphasise the wholesome principles laid down by the Supreme Count in Messrs. Indian Iron and Steel Co., Ltd. and Another Vs. Their Workmen, AIR 1958 SC 130 . 4. The Supreme Court said: Undoubtedly, the management of a concern has power to direct its own internal administration and discipline ; but the power is not unlimited and when a dispute arises, Industrial Tribunals have been given the power to see whether the termination of service of a workman is justified and to give appropriate relief. In cases of dismissal or misconduct the Tribunal does not however act as a Court of Appeal and substitute its own judgment for that of the management. It will interfere (1) when there is want of good faith, (2) when there is victimisation or unfair labour practice, (3) when the management has been guilty of basic error or violation of a principle of natural justice, and (4) when on the materials the finding is completely baseless or perverse. This observation was made in connection with dismissal on the ground of misconduct. To my mind these principles apply with greater force to a case not of misconduct but to a case of termination of service on the ground of being an invalid and ^therefore leading to inefficiency of service. Such a matter appertains more to internal administration. This observation was made in connection with dismissal on the ground of misconduct. To my mind these principles apply with greater force to a case not of misconduct but to a case of termination of service on the ground of being an invalid and ^therefore leading to inefficiency of service. Such a matter appertains more to internal administration. In a case such as this, where the workman is admittedly deaf, where the workman has admittedly to use a hearing aid, where admittedly such hearing aid had to be used because the defect increased and the workman had to go to the company's doctor for advice, I should leave his fitness for the work which he has to do to be judged by the employer with whom the workman has to work from day to day, rather than judge it myself as a witness by the test of passing conversation in a Court and against obviously at least one medical certificate of Dr. Feldmann to which even hardly a reference has been made by the Tribunal. A Court or a Tribunal is always competent to use its own faculties. It often does as in the case of forgery by looking at the documents. But in the case of such physical defects as in the present case it is: wise for the Tribunal or Court not to act as a witness and take a doctrinaire attitude. This has become all the more unfortunate in the facts of this case because the applicant in this case asked for only one adjournment to have the opportunity to adduce evidence and even that was denied by the Tribunal with the result that the applicant was put in a position where it could not produce the evidence it wanted. Were it necessary I would be prepared in this case to hold that the Tribunal denied the applicant a fair trial according to principle's of natural justice. 5. The more formidable objection to the award however is made on grounds of law and jurisdiction. The Tribunal missed the pointy completely. The counsel appearing before the Tribunal was also the counsel appearing in this Court for the company and has assured me that he argued the point of jurisdiction as he was doing in this Court. I accept and believe the counsel's statement. The Tribunal missed the pointy completely. The counsel appearing before the Tribunal was also the counsel appearing in this Court for the company and has assured me that he argued the point of jurisdiction as he was doing in this Court. I accept and believe the counsel's statement. I find also from the order-sheet under date 5th November 1957 that the Tribunal says: "Mr. Ginwalla, counsel, "came on behalf of the opposite party and asked that the application u/s 33A as made by the Petitioner was not maintainable. On the question of jurisdiction and maintainability of the application the Tribunal makes the following observation: Learned Personnel Officer on behalf of the company has invited my attention to new Section 33 which has come into force with effect from September 1, 1956, and argued that the present application which was admittedly filed long after Section 33 came into force is not maintainable. His line of argument, as I understood, is that the present application does not fall within the ambit of Clause (a) and (b) of Sub-section (1) of Section 33. I fully agree with him that Clause (a) and (b) of Section 33 will not cover the present application because the present matter regarding the termination of service of the Petitioner was not connected with the dispute that was originally referred to the Tribunal, nor was the Petitioner discharged for any misconduct connected with the main dispute. But in my view Clause (a) of Sub-section (2) of this section will apply to this case, if what has been stated in the application regarding the termination of Petitioner's service is found to be true. The termination of service of the Petitioner on and from March 12, 1957, on the alleged ground of his deficiency in hearing is in fact an alteration in the conditions of service applicable to the Petitioner and that as this change or alteration in the conditions of the Petitioner's service was to his prejudice and as it could not be shown or proved on behalf of the opposite party that it was made in accordance with, the standing orders applicable to the Petitioner, there was certainly contravention of the provisions of Clause (a) of Sub-section (2) of Section 33. In this view of the matter I hold that the present application u/s 33A is maintainable. 6. In this view of the matter I hold that the present application u/s 33A is maintainable. 6. I am afraid the Tribunal not only missed the point of jurisdiction but also has messed up the new law with the old. The point no doubt is made tricky by the amendments of the Industrial Disputes Act, and unless their dates and sequences are dovetailed in the dates and sequences of events of the facts of this case, such a confusion is not unnatural. 7. It is necessary for a clear understanding of the effect of the different amendments on the facts of this application to have some of the major events dated. In this case there was originally a reference of an industrial dispute to this Tribunal. This reference was made on May 31, 1956. While the reference was pending the Industrial Disputes Act was amended by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956. Although this Act was published in the "Gazette of India" on August 28, 1956, for the purposes of the application the relevant amendment came into force on March 10, 1957. The relevant amendment is Section 30 of this amending Act. I shall deal with those provisions later on. On March 12, 1957, the company discharged the workman Sailendra Nath Bose on the following grounds: As you have been found medically unfit, under the Company's Standing Orders and conditions of service, your services are terminated with effect from 12th March 7,591 The company will pay you one month's salary in lieu of notice. You will receive Rs. 272-8 as salary in lieu of 28 days' leave due to you. You will receive a sum of Rs. 1,242 as gratuity. You should also make necessary application to the Trustees, B.N. Elias and Company Private Ltd. Provident Fund Institution for Employees for your dues from the Fund as per Rules of the Institution. In answer to that notice, Respondent workman wrote a letter to the company which I have directed to be filed and marked as Ext. 1(a) in this Court, stating inter alia: On the advice of the office doctor I purchased a fort phone (hearing aid) only two months ago. The doctor had told me that it would take some 7/8 months to get myself adjusted to this hearing device, when the extent of improvement it could lend to my hearing would become sufficiently apparent. 1(a) in this Court, stating inter alia: On the advice of the office doctor I purchased a fort phone (hearing aid) only two months ago. The doctor had told me that it would take some 7/8 months to get myself adjusted to this hearing device, when the extent of improvement it could lend to my hearing would become sufficiently apparent. Already, after a period of two months I have been able to register appreciable improvement and I am sure that within the next 3/4 months my hearing could be expected to reach normal. The workman asked for being taken back to service. Three months thereafter the award on the industrial dispute was made on June 27, 1957. Between March 18, 1957, and June 27, 1957, the workman did not complain u/s 33A of the Industrial Disputes Act that he has been dismissed during the pendency of an industrial dispute before an Industrial Tribunal. During this period but prior to the main award on June 27, 1957, there was another amendment to the Industrial Disputes Act which was published on June 8, 1957, being the Industrial Disputes Amendment Act, 1957 (Act XVIII of 1957). By Section 2 of this amending Act in the definition of "Tribunal" in Section 2 of the Industrial Disputes Act, the following clause was substituted for Clause (r): "Tribunal " means an Industrial Tribunal constituted u/s 7A and includes an Industrial Tribunal constituted before the 10th day of March, 1957, under this Act. The complaint by the present workman Sailendra Nath Bose was not made to this Industrial Tribunal until July 26, 1957, when on that date he made an application to the Tribunal u/s 33A of the Industrial Disputes Act upon which the present award was made on November 5, 1957. This award was published on November 28, 1957- 8. On these facts Mr. Ginwalla, Learned Counsel for applicant company, has argued that the particular Tribunal had no jurisdiction to entertain an application under the amended Section 33A of the Industrial Disputes Act. His objection to jurisdiction is really twofold. His first submission is that after the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, being Act XXXVI of 1956, new Tribunals are contemplated u/s 7A of the Act. The power to appoint an Industrial Tribunal under that amendment naturally is exercisable only under the new Act. His objection to jurisdiction is really twofold. His first submission is that after the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, being Act XXXVI of 1956, new Tribunals are contemplated u/s 7A of the Act. The power to appoint an Industrial Tribunal under that amendment naturally is exercisable only under the new Act. It is said that the qualification of such a person constituting a Tribunal under the new Act is prescribed u/s 7A(3) which says that a person shall not be qualified for appointment as a Presiding Officer of a Tribunal unless (a) he is or has been a Judge of a High Court or (b) he has held the office of a Chairman or of any other Member of the Labour Appellate Tribunal constituted under the Industrial Disputes Appellate Tribunal Act, 1950, or of any Tribunal for a period of not less than two years; and it is not disputed that the present Tribunal does not answer that qualification. Mr. Ginwalla's second submission on the point of jurisdiction is that old Section 33 has also been modified by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956. His argument is that the word "Tribunal" in Section 33 of the Act, after the amendments, means the Tribunal u/s 7A of the Act, after the amendment, and not the old Tribunal of the Industrial Disputes Act before that amendment. He fortifies his argument by saying that the new provisions of Section 33 of the Act, after the amendment, had not retrospectively been made applicable to a discharge of a workman on the ground of being medically unfit when such discharge was before the amendment came into force. Developing his argument further, Mr. Ginwalla submits that Section 33A of the Industrial Disputes Act is also considerably modified by Section 34 and the Schedule of Industrial Disputes (Appellate Tribunal) Act, 1950, being Act XLVIII of 1950 and by Sections 22, 33B and 33C of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, being Act XXXVI of 1956. He pleads that contravention of Section 33 is the very basis of the application of Section 33A of the Industrial Disputes Act. After the amendment, therefore, it is the contravention of the provisions of the amended Section 33 which is the basis of the application of the amended Section 33A. 9. He pleads that contravention of Section 33 is the very basis of the application of Section 33A of the Industrial Disputes Act. After the amendment, therefore, it is the contravention of the provisions of the amended Section 33 which is the basis of the application of the amended Section 33A. 9. They appear to me formidable obstacles to the Respondents and sound objections to the award challenged by this application. 10. In answer to this ground, Mr. K.C. Mukherjee, counsel for the Government, has relied on Section 30 of the Industrial Disputes (Amendment and Miscellaneous (Provisions) Act, 1956, which provides as follows: If immediately before the commencement of this Act, there is pending any proceeding in relation to an industrial dispute before a Tribunal constituted under the Industrial Disputes Act, 1947 (Act XIV of 1947), as in force before such commencement, the dispute may be adjudicated and the proceeding disposed of by that Tribunal after such commencement as if this Act had not been passed. It is, therefore, contended on behalf of the Respondents that this saves the proceedings before the Tribunal who must under that section be regarded as competent to make the present award. Reliance has also been placed on behalf of the Respondents upon the amended definition of the "Tribunal" which I have already quoted above. I find it difficult to accept this argument as a sufficient answer to the objections to the award. I shall briefly state my reasons. 11. Section 30 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, speaks only of "pending proceeding". The relevant words of that section on this: point are: "There is pending any proceeding in relation to an industrial dispute before a Tribunal constituted under, the Industrial Disputes Act, 1947 (Act XIV of 1947)". Now the fact is that no proceeding u/s 33A of the Industrial Disputes Act was pending before this Tribunal on the relevant date which is "immediately before the commencement of this Act". From the dates which I have given above, it is clear that the amendment came into force on March 10, 1957, when no application by the present workman Sailendra Nath Bose was at all pending before this Tribunal. This application in fact was not made until long after, on July 26, 1957. From the dates which I have given above, it is clear that the amendment came into force on March 10, 1957, when no application by the present workman Sailendra Nath Bose was at all pending before this Tribunal. This application in fact was not made until long after, on July 26, 1957. Secondly, the protection u/s 30 of the Amending Act XXXVI of 1956 is not only limited to the pending proceedings before the Tribunal but is also limited to the adjudication and disposal of that pending dispute and proceedings. I, therefore, cannot see how the present application u/s 33A of the workman Sailendra Nath Bose can by any stretch of law or fact, be said to be pending prior to the date July 26, 1957, when in fact it was made. 12. Thereupon it was argued on behalf of the Respondents that the main reference before the Tribunal was pending on the date of this amendment by Amending Act XXXVI. of 1956. It will be recalled that the original reference was dated May 31, 1956, but the award in respect of it was not made until June 27, 1957, whereas the amendment came into force on March 10, 1957. It is then said that jurisdiction u/s 33A was really an ancillary and consequential jurisdiction and, therefore, when the main reference was pending, this ancillary jurisdiction which flowed from it, must be deemed to have been preserved by Section 30 of the Amending Act XXXVI of 1956. I am unable to uphold this argument. I shall expound my reasons briefly. 13. Section 33A of the unamended Industrial Disputes Act, 1947, expressly provided for making a complaint in writing in the prescribed manner. That means initiating a proceeding apart from and independent of the main reference of an industrial dispute pending before the Tribunal. In fact, this particular complaint has nothing to do with the actual industrial dispute pending before the Tribunal. It is a separate cause of action and a wholly different complaint. It deals with the contravention of the provisions of Section 33 during the pendency of the main reference. In other words, the industrial dispute of the main reference is not the dispute u/s 33A. They are not the same or even ancillary proceedings, but are entirely distinct proceedings and distinct dispute. All that Section 33A does it to provide the same Court for the adjudication of both. In other words, the industrial dispute of the main reference is not the dispute u/s 33A. They are not the same or even ancillary proceedings, but are entirely distinct proceedings and distinct dispute. All that Section 33A does it to provide the same Court for the adjudication of both. The pendency of the main reference or proceeding before the Industrial Tribunal marks the period of time within which must take place the contravention of Section 33 of the Act. In other words, Section 33 of the Act provided that the employer shall not discharge a workman during the pendency of a proceeding before a Tribunal. If there was a breach of that statutory provision, then a discharge of a workman during the pendency of a proceeding before the Tribunal was made a ground for complaint in writing u/s 33A and that Tribunal before which the industrial dispute was pending was given the jurisdiction to decide such contravention. But as Das, J., as he then was, points out clearly in the Supreme Court decision of Automobile Products Ltd. v. Rukmaji Bala (1955) S. C. A. 295, that Section 33 of the Industrial Disputes Act only imposes a ban on the right of the employer and all that the authority is called upon to do is to grant or withhold the permission and does not confer a general power of adjudication and His Lordship's significant observations on the point are: Even a cursory perusal of Section 33 of the 1947 Act will make it clear that the purpose of that section was not to confer any general power of adjudication of disputes. I must, therefore, hold that the words "pending proceeding" in Section 30 of the Industrial Disputes (Amendment, and Miscellaneous Provisions) Act, 1956, do not and cannot include a proceeding which was not pending at that time but initiated long after on the plea that the complaint u/s 33A though subsequent could only be made to the Tribunal dealing with the main reference and before which such main reference was pending. 14. This view also fortified by reference to Section 33 of the same Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, whereby the Industrial Disputes Appellate Tribunal Act, 1950, was repealed. 14. This view also fortified by reference to Section 33 of the same Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, whereby the Industrial Disputes Appellate Tribunal Act, 1950, was repealed. By Section 33(2)(b) of that Act it is expressly provided that the provisions of Section 22, 23 and 23A of the Industrial Disputes Appellate Tribunal Act shall in relation to any proceeding pending before. the Appellate. Tribunal be deemed to be continuing in force. Now Section 23 of the Industrial Disputes Appellate Tribunal Act contained a similar provision as Section 33A of the Industrial Disputes Act. By Section 22 of that Act it was provided that during the pendency of any appeal no employer was inter alia to discharge a workman concerned in the appeal except with the express permission in writing of the Appellate Tribunal and Section 23 provided that if there was a contravention of that provision of Section 22 during the pendency of a proceeding before the Appellate Tribunal the employee aggrieved by such contravention could make a complaint in writing to the Appellate Tribunal who could then decide the complaint as if it was an appeal pending before it. Express reference to preservation of pending proceedings in as. 22 and 23 of the Industrial Disputes Appellate Tribunal Act, 1950, and in Section 33 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, appears to indicate that the Parliament in spite of being fully aware of the type of proceedings contemplated by Section 33A and Section 23 of these two Acts, did not consider these proceedings either in the main reference before the Industrial Tribunal or in the main appeal before the Appellate Tribunal to be the same proceedings. That is the reason why Section 30 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, dealing with pending proceedings before the Industrial Tribunals, in contrast with its Section 33(2)(b), has not expressly preserved the rights u/s 33A of the Industrial Disputes. Act. It is then argued on behalf of the Respondents that there is no reason why Parliament in one case should preserve the right of the workman and in the other case not do so. Act. It is then argued on behalf of the Respondents that there is no reason why Parliament in one case should preserve the right of the workman and in the other case not do so. The first answer to that argument is that it is a question of, policy and if the language of the section is clear both inherently as well as by comparison and contrast with other relevant sections used in the same Act, then this Court's duty is to apply the Act as it finds it. The second answer is that with regard to the Appellate Tribunals the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, was repealing the whole of the Industrial Disputes Appellate Tribunal Act, 1950, whereas the Industrial Disputes Act was not being repealed but only amended. It may very well therefore be the intention of Parliament that in the one case it would preserve the rights of the workman before Appellate Tribunals whose very existence was being abolished and in the other case not preserved the right because new rights and new provisions were being introduced under the amendments to the Industrial Disputes Act, under which alone the workman could seek his rights and remedies and under no other. Such rights and remedies under the new amendments of the Industrial Disputes Act will obviously be to plead contravention or breach as provided by the Section 33A of the Act as an industrial dispute and have reference of such dispute to the new Tribunals tinder the amended Act. 15. The Tribunal in this case has held that the termination of the workman's service by the company was an alteration in the conditions of service to his prejudice and that this change or alteration in the conditions of the workman's service was not shown or proved by the company to have been in accordance with the standing orders. It therefore came to the conclusion that such contravention came within the provisions of Clause (a) of Sub-section (2) of Section 33 of the amended Industrial Disputes Act. The Tribunal was, apparently and obviously misled on this point on the facts of this application The company's letter of discharge, dated March 12, 1957, said: As you have been found medically unfit under the company's standing orders and conditions of service, your services are terminated with effect from 12th March 1957. The Tribunal was, apparently and obviously misled on this point on the facts of this application The company's letter of discharge, dated March 12, 1957, said: As you have been found medically unfit under the company's standing orders and conditions of service, your services are terminated with effect from 12th March 1957. The Tribunal thought that these standing orders and conditions of service were not produced by the company when in fact it did by producing a previous award of a Tribunal laying down conditions of service, whose effect and relevance the Tribunal completely failed to appreciate. I shall discuss later in this judgment the question of standing orders, after I have finished discussing the Tribunal's decision that discharge is an alteration of the conditions of service. 16. The Tribunal was applying the amended Section 33 of the Industrial Disputes Act, 1947, as amended by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, which uses the words: During the pendency of any such proceedings in respect of an industrial dispute, the employer may in accordance with the standing orders applicable to a workman concerned in such dispute - (a) alter in regard to any matter, not connected with the dispute the conditions of service applicable to that workman immediately before the commencement of such proceedings, or (6) any misconduct, not connected with the dispute discharge or punish, whether by dismissal or otherwise that workman. In the first place, the Tribunal failed to realise that this provision was only applicable where the proceeding was pending before a Labour Court or a Tribunal or a National Tribunal under the amended Section 33(1) of the Industrial Disputes Act and not under the unamended Industrial Disputes Act and he could not form that Tribunal under the amendment. Secondly, the Tribunal makes the mistake of focusing the case of discharge with the case of altering the conditions of service which are separately and independently provided in Sub-clauses (a) and (b) in Sub-section (2) of Section 33 of the amended Industrial Disputes Act, 1947. If the Tribunal's views are correct, then every discharge will be an alteration in the conditions of service and therefore there will be no point in separating Clause (b) dealing inter alia with discharge from Clause (a) dealing with alteration of service conditions in Section 33(2) as amended. If the Tribunal's views are correct, then every discharge will be an alteration in the conditions of service and therefore there will be no point in separating Clause (b) dealing inter alia with discharge from Clause (a) dealing with alteration of service conditions in Section 33(2) as amended. The distinction between alteration of service conditions and dismissal or discharge was emphasised in the two Supreme Court decisions, (1) by Bhagawati, J. in Luxmi Devi Sugar Mills v. Pandit Ramsarup AIR (1857) S.C. 82, holding that lock-out was neither alteration of service conditions under Clause (a) of Section 33(2) of the Industrial Disputes Act nor dismissal or discharge under Clause (b) of the same section and (2) by S.K. Das, J. in Banaras Ice Factory Ltd. v. Its Workmen (1957) S.C.A. 125 in respect of similar and analogous provisions in Section 22(a) and (b) of the Industrial Disputes Appellate Tribunal Act dealing with bona fide closure of business. I therefore hold that discharge or dismissal in the facts of this case cannot in law be alteration of the conditions of service within the meaning of Section 33 of the Industrial Disputes Act. Thirdly, the Standing Orders and Conditions of Service in this case were not a separate document but are contained in the award of the Industrial Tribunal, dated the 23rd April, 1949, and published in the "Calcutta Gazette, Extraordinary" of May 12, 1949, whose annexure A lays down "service conditions for all companies", which includes the present Petitioner company. Although this award was produced before the Tribunal, the Tribunal did not quite realise and understand that the standing orders were nothing else than those conditions of service appearing and laid down in that award. Even where there are separate standing orders, I should be very surprised to find a written condition of service that a man could be discharged for deafness. There is always an implied condition of service that the workman shall be physically fit to discharge the work for which he is employed. 17. Mr. K.C. Mukherjee, counsel for the Government, advanced an argument that the company in this case was governed by the Industrial Employment (Standing Orders) Act, 1946, under which every industrial establishment has to submit to the certifying officer draft standing Orders for the industrial establishment. 17. Mr. K.C. Mukherjee, counsel for the Government, advanced an argument that the company in this case was governed by the Industrial Employment (Standing Orders) Act, 1946, under which every industrial establishment has to submit to the certifying officer draft standing Orders for the industrial establishment. I cannot help feeling that this was also in the mind of the Tribunal although it does not say so It is obligatory under this Act for every industrial establishment to maintain standing orders under the Act including items specified in the Schedule to that Act. What the counsel for the Government has missed is that the Industrial Employment Standing Orders Act does not apply at all to this company and, therefore, to expect standing orders under that Act to be maintained by the company was wholly wrong. This Act applies only to industrial establishments which is defined by Section 2(e) of that Statute as meaning (i) an industrial establishment as defined in Section 2(ii) of the Payment of Wages Act, 1936 or (ii) a factory as defined in Section 2(i) of the Factories' Act, 1934 or (iii) a Railway as defined in Section 2(iv) of the Indian Railways Act, 1890 or (iv) the establishment of a person who for the purpose of fulfilling a contract with the owner of any industrial establishment employs workmen. Now the Petitioner company in this case is not an industrial establishment at all within the meaning of that definition. It does not come under the Payment of Wages Act's definition of "industrial establishment" nor under the expression "factory" under the Factories Act and it certainly is not a Railway. Argument, therefore, was advanced to bring it as "an establishment of a person who for the purpose of fulfilling a contract with the owner of an industrial establishment employs workmen". It was developed by suggesting that the Petitioner company is a Agent the Petitioner company is said to fulfil a contract of the Managing Agent of the National Tobac Company As the Managing owner of the industrial establishment whose Managing Agent it is. This argument misconceives the role and position of a Managing Agent of a company. A Managing Agent as the name implies manages the entire business of the company under an agency agreement. This argument misconceives the role and position of a Managing Agent of a company. A Managing Agent as the name implies manages the entire business of the company under an agency agreement. It is almost the substitute company subject of course to the terms of the agency and such control of the (Directors and shareholders of the company whose business it manages. But that does not mean that the agent "fulfils a "contract with the owner of an industrial establishment" and therefore employs workmen so as to be an "industrial establishment" within the meaning of Section 2(iv) of the Industrial Employment Standing Orders Act, 1946. I hold that the Petitioner company is not governed by the Industrial Employment Standing Orders Act at all. 18. This conclusion is strengthened by the fact that the breach of the provision requiring maintenance of standing order would have made the Petitioner company liable to prosecution u/s 13 of that Act, but no prosecution has been thought of far less launched, against the Petitioner company. Besides, u/s 8 of the Act there is a Register of Standing Orders filed with the certifying officer under that Act and any person applying on payment of the prescribed fee would easily obtain a copy of them. No such attempt was made by the Respondent workman in this case. The source of this confusion lies in a reference to the Standing Orders and Conditions of service in the company's letter of discharge of March 12, 1957, which I have quoted above. But the Standing Orders and Conditions of Service there referred to were those appearing in Annexure "A" to the award of the Industrial Tribunal of 1949 and not the standing orders under the Standing Orders Act. It was here that the Tribunal could not appreciate the importance of the fact of producing that award before it. 19. On behalf of the applicant the Supreme Court decision in the Indian Iron and Steel Co., Ltd. and Another Vs. Their Workmen, AIR 1958 SC 130 was cited on the jurisdiction of the Industrial Tribunal u/s 33 of the Industrial Disputes Act. I do not think that decision is particularly relevant here on this point because it is concerned with a case of punishment for misconduct. Their Workmen, AIR 1958 SC 130 was cited on the jurisdiction of the Industrial Tribunal u/s 33 of the Industrial Disputes Act. I do not think that decision is particularly relevant here on this point because it is concerned with a case of punishment for misconduct. It is, however, an authority on the point that in such cases of punishment once the Industrial Tribunal comes to the conclusion that the enquiry which was conducted by the employer was fair and no principle of natural justice had been violated in the conduct of the enquiry and the employers bona fide came to the conclusion that dismissal was the only punishment which could be meted out by them, the Industrial Tribunal has no power to substitute another punishment or impose any condition on the employers before the requisite permission could be granted to them. How very much more so would it be in a case of this nature where the Industrial Tribunal should never impose or substitute its own views, when due to physical unfitness the workman is considered by the employer with whom he lias to work, as incapable of discharging his work properly and when there is not the remotest suggestion that in discharging the employee on that ground the employer was actuated by any spirit of malice of victimisation or that the employer was not acting bona fide. 20. For these reasons I must hold that the Tribunal acted beyond its jurisdiction and confused the old Act and the old procedure with the amendments and the new procedures brought about by the amendments. I further hold that the proceeding u/s 33A of the Industrial Disputes Act in this case was not pending within the meaning of Section 30 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, and the Tribunal had no jurisdiction to entertain such application. I also hold that this particular Tribunal had no jurisdiction after the amendment of the Industrial Disputes Act by Act 36 of 1956. 21. I, therefore, set aside the award and make the Rule and the injunction absolute. There will be an order for Certiorari quashing the award of the Industrial Tribunal, dated November 5, 1957, and a Writ of Prohibition restraining the Respondent from enforcing or taking any steps to enforce such award. There will be no order as to costs.