JUDGMENT K. Bhaskaran, J. 1. Ext. P-1 order in M.P, No. 26 of 1970 in I.D. No. 29 of 1970 on the file of the first respondent, Industrial Tribunal, Alleppey, has given rise to this writ petition. The petitioner seeks to have Ext. P-1 quashed, and also to have a direction to the first respondent to grant approval under section 33 (2) (b) of the Industrial Disputes Act, hereinafter referred to as the Act, for dismissal of respondents 2 to 12. 2. The facts leading to the filing of this writ petition could be stated briefly as follows: The petitioner is the Managing Partner of the firm Phoenix Plywood, Kottayam, manufacturing plywood products. Respondents 2 to 12 were employees working in the general section of the factory. In April 1970 there appears to have cropped up some dispute regarding the manner in which respondents 2 to 12, deputed for work in the Veneer Taping Section of the factory, should have kept the diaries. Originally the employees themselves were making entries in the diaries and were keeping the same with them, The purpose of this diary was to enable the management to work out the cost of production. Later on, the management having found that the employees were concealing the diaries, and the diaries were not forthcoming for the purpose for which they were introduced, another system by which the supervisor in charge of the section used to have the diary prepared in loose sheets on the basis of the observation he made during inspection was tried. This came into vogue early in April 1970. On 10th April 1970 a further change in the system was brought about by the management and by this the workers were required to sign below the entries made by the supervisor in the loose sheets-diaries. The workers protested against this procedure contending, inter alia, that they had no occasion to consult their Union about the feasibility of doing so. This resistance on the part of the workers was considered by the management as an act violative of clause 32 (a) of the Standing Orders of the Company which reads as follows: "Misconduct shall include the following acts or omissions (a) insubordination or disobedience whether alone or in combination with another or others to any lawful order of a Superior."� 3. The workers who declined to sign the diaries, respondents 2 to 12, were suspended; six on 6th May 1970, and the remaining five on 7th May 1970. Subsequently charge memos were issued to six of the workers on 12th May 1970, and to the remaining five on 13th May 1970. The. enquiry was to be conducted by one Sree Joseph Mackil, who, it is stated, was the legal advisor of the company, and also the Joint Secretary of the Kottayam Plywood Manufacturers Association. On 25th June 1970, while the enquiry was in progress, the workers refused to participate in the further proceedings stating that they had objection to the manner in which the enquiry was being conducted. On 26th June 1970 the enquiry was completed without the delinquent workers participating in the proceedings; and the enquiry officer having found the workers guilty, recommended that the appropriate punishment to be meted out to them would be dismissal from service. 4. The reference of the dispute which forms the subject-matter of I.D. No. 29 of 1970 was made by the Government by its order dated 3rd July 1970 which was duly communicated to the petitioner. It was while that dispute was actually pending, on 9th July 1970, as per a series of dismissal orders, marked as Exhibits W-8 series before the first respondent Tribunal, that the management terminated the services of respondents 2 to 12. The management having found later that in view of the pendency of I.D. No. 29 of 1970 it was incumbent on its part to get approval under section 33 (2) (b) of the Act, passed orders marked before the Tribunal as Ext. P-20 series dated 30th July 1970, dismissing respondents 2 to 12 from service; and it also sought approval of the 1st respondent Tribunal for that action. When the approval application came up before the Tribunal, the workers contended that the approval could not be granted because the order dated 9th July 1970 was not superseded or cancelled and that while it stood intact, there was no scope for issuing a further dismissal order. It was also contended that the enquiry officer was biased as against them and the punishment awarded was shockingly disproportionate to the alleged acts of misconduct with which they were charged. The Tribunal by Ext. It was also contended that the enquiry officer was biased as against them and the punishment awarded was shockingly disproportionate to the alleged acts of misconduct with which they were charged. The Tribunal by Ext. P-1 order upheld all the contentions raised by respondents 2 to 12 herein and declined to grant approval as prayed for by the petitioner. 5. Sri Phadke, the counsel for the petitioner, contended that it makes no difference whether the earlier orders of dismissal, dated 9th July 1970, marked as Ext. W-8 series before the Tribunal, were cancelled or not, as the management has the right to pass a second order as evidenced by the proceedings marked as Ext. P-20 series before the Tribunal. In support of this contention reliance was placed by the counsel on the following passage in the decision of the Supreme Court in Tata Iron and Steel Co. v. Modak 1965 (2).LLJ 128 at 133. "It cannot be denied that with the final determination of the main dispute between the parties, the employer right to terminate the services of the respondent according to the terms of service revives and the ban imposed on the exercise of the said power is lifted. But it cannot be overlooked that for the period between the date on which the appellant passed its order in question against the respondent, and the date when the ban was lifted by the final determination of the main dispute, the order cannot be said to be valid unless it receives the approval of the Tribunal. But it cannot be overlooked that for the period between the date on which the appellant passed its order in question against the respondent, and the date when the ban was lifted by the final determination of the main dispute, the order cannot be said to be valid unless it receives the approval of the Tribunal. In other words, the order being incomplete and inchoate until the approval is obtained, cannot effectively terminate the relationship of the employer and the employee between the appellant and the respondent; and so, even if the main industrial dispute is finally decided, the question about the validity of the order would still have to be tried and if the approval is not accorded by the Tribunal, the employer would be bound to treat the respondent as its employee and pay his full wages for the period even though the appellant may subsequently proceed to terminate the respondent's services"� It is not disputed by the counsel for respondents 2 to 12 that the management has the right to pass a second order on the basis of the finding of the domestic enquiry officer; what he disputes is the management right to do so without superseding or annulling the previous order. It may be noted that the Supreme Court while upholding the right of the management to terminate the services of the respondent according to the terms of service, after the main dispute pending before the Tribunal was disposed of did not indicate that such an order could be passed totally ignoring the previous order. On the other hand, the indication is that the second order could be passed only if the management treated the delinquent worker as though he was in service between the date of the first order and the date of the second order. In this case the management has no case that they had treated the period between 9th July 1970 and 30th July 1970 as on duty or under suspension. As observed by the Supreme Court, the first order may be incomplete and inchoate until the approval is obtained. However, this observation would not go to the extent of having held the first order to be non est. As observed by the Supreme Court, the first order may be incomplete and inchoate until the approval is obtained. However, this observation would not go to the extent of having held the first order to be non est. The correct position seems to be that such an order, however imperfect it may be, or however inoperative it may appear to be as the law enjoins, the approval of the Tribunal is absolutely necessary, it would be in the nature of an order voidable, and it is not in the position of an order which is ab initio invalid or void. At any rate, until he annulls it, the maker of the order cannot be heard to say that the order of dismissal did not exist. The further question that remains to be answered is, when on the basis of the finding of the enquiry officer the management had issued an order of dismissal, how could another order of dismissal be issued, as, when an order of dismissal is issued, the worker ceased to be in the employment of the management, subject to the approval of the Tribunal before which an industrial dispute was then pending. Sri M. P. Menon, the counsel for respondents 2 to 12, submits that by applying the analogy of the decisions of the Madras High Court in Desikachari (P.S.) and others v. The Mall 1961 (2) L.L.J. 771 (a)and of the Kerala High Court in Melhy D'Cruz v. Travancore Minerals Ltd. 1967 (2) L.L.J. 637, it has to be held that though incomplete and incoherent orders, such orders as in the nature of dismissal orders dated 9th March 1970 in this case, have to be either superseded or annulled by the act of the management itself, and until then it is not open to the management to issue another order in the nature of orders dated 30th July 1970, marked as Ext. P-20 series before the Tribunal, without any reference to the orders dated 3rd July 1970 marked before the Tribunal as W-8 series, as though nothing has happened by the passing of the first series of dismissal orders (dated 3rd July 1970). P-20 series before the Tribunal, without any reference to the orders dated 3rd July 1970 marked before the Tribunal as W-8 series, as though nothing has happened by the passing of the first series of dismissal orders (dated 3rd July 1970). Counsel also places reliance on the decisions of this court reported in Trades Hills Produce v. I.T. Officer, Kottayam 1971 K.L.T. 646 and in Saidu v. Amina 1970 K.L.T. 430 D.B. Two other decisions relied on by the counsel for the petitioner are: K. P. Hormis v. P. A. John 1970 (2) L.L.J. 351 and Mysore Machinery Manufacturers v. Assistant Commissioner of Labour 1965 (1) L.L.J. 353 the former decision is of this court, and the latter of the Mysore High Court. These two decisions, as I understand them, would only go to show that it is open to the management to cancel or supersede an order of dismissal passed without applying for an approval, by cancelling or superseding that order, and making a fresh order paying full wages to the worker involved till the date of the second order of dismissal or discharge in accordance with law. The question considered in these two cases is not identical with the one posed for decision in this case. As I have pointed out at the very beginning the question here is whether, inspite of the management having the right to make a second order, it could be done without cancelling or annulling the order that was passed earlier. If, by the conduct of the management, it can be seen that there was no order which has the effect of annulling the previous order passed, the second order passed without even reference to the previous order cannot stand. I am therefore of the view that the decision of the first respondent Tribunal that a second order of termination of services could not have been passed by the management without cancelling or susperseding the previous order has to be upheld. 6. Counsel for the management-petitioner also submitted that there is no legal basis for the view taken by the Tribunal that Sree Joseph Mackil was not competent to conduct the enquiry in as much as he was biased. 6. Counsel for the management-petitioner also submitted that there is no legal basis for the view taken by the Tribunal that Sree Joseph Mackil was not competent to conduct the enquiry in as much as he was biased. It is fairly conceded by Sri M. P. Menon the counsel for respondents 2 to 12, that merely for the reason that Sree Joseph Mackil happened to be the legal advisor of the company it cannot be said that he is biased. However, the counsel hastens to point out that when respondents 2 to 12 expressed their apprehension that they would not get justice at the hands of the enquiry officer, they raised their protest against the manner in which the enquiry officer conducted the enquiry, and asked the management to appoint somebody else to enquire into the matter, in keeping with the true spirit of the principle of natural justice, it would have been more commendable for the management, and also for the enquiry officer, if another person was put in charge of the enquiry. Counsel also points out that the enquiry officer in his capacity as the company advocate, and as an office bearer of the Kottayam Plywood Manufacturers Association, had represented the management before the Conciliation Officer, and that his enquiry report, apart from containing his finding on the charges framed, indicated that the punishment of dismissal was appropriate; this giving room for an inference that the enquiry officer was not showing the detachment expected of him, Though I have to differ from the reasoning of the Tribunal, on this question, I am of the opinion that it would have been better in conditions like this, where during the course of the enquiry proceedings the workers expressed apprehension that they might have no chance to get a fair deal and a proper enquiry at the hands of the domestic enquiry officer, to put somebody else in charge of the enquiry. In spite of the infirmities pointed out by the counsel for respondents 2 to 12 on this point, I would not have interfered with the finding recorded by the enquiry officer, and Ext. P-1 order would not have been upheld, but for the fact that there are other grounds which renders the second dismissal order of the management impugned before the Tribunal invalid. 7. P-1 order would not have been upheld, but for the fact that there are other grounds which renders the second dismissal order of the management impugned before the Tribunal invalid. 7. Yet another point argued by the counsel for the petitioner is that the Tribunal was absolutely wrong in taking the view that the punishment was shockingly disproportionate to the offence alleged and proved against respondents 2 to 12. The argument of the counsel was that it is not within the province of the Tribunal to sit in judgment over the punishment which the management in its discretion had decided upon on the basis of the finding of the enquiry officer. Ordinarily that could be the position, and that certainly is the rule also. However, there are cases where, if the punishment appears to he shockingly disproportionate to the act of misconduct alleged and proved, lack of bona fides on the part of the management in the exercise of its disciplinary power over the delinquent employees could be inferred. Looked at from that angle, in this case it would appear that there is some substance in the argument advanced by the counsel for respondents 2 to 12 before the Tribunal. The standing orders do not provide anything direct for meeting a situation like the one that has cropped up in the present case. Standing order No. 32 (a) only states that where there is disobedience or insubordination of the lawful authority of the superior that will amount to misconduct. Whether asking the workers to sign a statement, which they do not approve, can be considered to be an order of the superior in the exercise of the lawful authority is a doubtful proposition. In the case of industrial relationship cases of this type should be settled by negotiation and consultation with the Union. An attempt behind the back of the Union is naturally resented to by the workers. They may have the apprehension that if they sign the statement it may prejudice their interest. In the case of industrial relationship cases of this type should be settled by negotiation and consultation with the Union. An attempt behind the back of the Union is naturally resented to by the workers. They may have the apprehension that if they sign the statement it may prejudice their interest. As I understand it, they did not resist the demand of the supervisor to sign the statement, absolutely or even in an unqualified manner; they only wanted a right for them to make an entry in the loose- sheets, about what they might have to say regarding their performance, and if there was any shortage in the production, causes that led to such shortage, like failure of electricity, etc. The management in fairness ought to have consulted according to the accepted labour practice with the Union on this question and should have evolved a formula acceptable to both sides instead of imposing such a liability on the workers. It cannot therefore be said that in requesting that they might be permitted to record their remarks before signing the supervisor entries in the diary sheets, the delinquent workers acted in such a manner as to amount to misconduct, or disobedience or insubordination to the lawful authority of the superior, as to deserve such a severe punishment as dismissal from service. As I have already stated, this court ordinarily would not have upheld the interference by the Tribunal with the discretion exercised by the management, because it is by and large within the purview of the management right in a proven case to award the punishment which would meet the occasion; but in this particular case, in the circumstances and on the facts pointed out it appears to be that the management lacked bona fides in the exercise of its disciplinary power against the delinquent workers, respondents 2 to 12. In the light of the foregoing reasons I do not find sufficient justification for interfering with Ext. P-1 order passed by the first respondent Tribunal. The writ petition is therefore dismissed, but in the circumstances of the case I make no order as to costs.