Order In this application under Article 226 of the Constitution the petitioner Darjeeling Consolidated Tea Co. Ltd., challenging the award dated the 30th August, 1975, passed by the Eighth Industrial Tribunal. 2. It appears that Balason Tea Garden, one of the tea gardens belonging to the petitioner, charge-sheeted one of its workmen Shri B.K. Pradhan for alleged misconduct. A domestic enquiry was held. The workman concerned was ultimately dismissed from service on the 18th December, 1972. On the very same date an application under S. 33(2)(b) of the Industrial Disputes Act, 1947 was posted addressed to the Tribunal and it was received by the Tribunal on the 30th December, 1972. But a single copy of the application was sent by the Company. Rule 70(2) of the West Bengal Industrial Disputes Rules under S. 38 of the Industrial Disputes Act, 1947, provides as follows :- “70(2) : An employer seeking the approval of the Conciliation Officer Board, Labour Court or Tribunal, as the case may be of any action taken by him under clause (a) or clause (b) of sub-s. (2) of S. 33 shall present an application in Form M in triplicate to such Conciliation Officer, Board Labour Court or Tribunal and shall file along with the application as many copies thereof as there are opposite parties.” Rule 79 of the said Rules is to the following effect : "79 : Any breach of these rules shall be punishable with fine not exceeding fifty rupees." 3. It is stated that inasmuch as a single copy had been forwarded no action was taken by the Tribunal on the application received under S. 33(2)(b). No case was registered and no notice was issued to the workman concerned. Thereafter the workman made an application before the Tribunal under S. 33A of the Industrial Disputes Act. Notice was issued to the Company. The Company put up its appearance on the 21st December, 1973 and filed written statement. The Company alleged in the written statement that the application under S. 33(2)(b) had been sent to the Tribunal on the 18th December, 1972 and it was received by the Tribunal on the 20th December, 1972. Thereafter the company filed an application in which it prayed that the default in sending copy of application in December, 1972 be condoned and the application be registered as a case under S. 33(2)(b) of the Industrial Disputes Act, 1947. Thereafter the company filed an application in which it prayed that the default in sending copy of application in December, 1972 be condoned and the application be registered as a case under S. 33(2)(b) of the Industrial Disputes Act, 1947. The said application for condonation was also registered as Miscellaneous Case No. 7 of 1975. The workman concerned filed a petition of objection to the aforesaid prayer of the company. By the impugned order the Tribunal has held that the rule was mandatory in character and the plea of the company that it was due to ignorance of the rule on the part of the officer concerned that the triplicate copy was not sent was not accepted. The Tribunal was, therefore, of the opinion that such a default could not be condoned in contravention of the express and strict provisions of the law and the company could not be allowed to proceed with the application under S. 33(2)(b) of the Act. It was, therefore, held by the Tribunal that the company had not filed an application in the proper form and that the company had committed violation of the provisions of S. 33(2)(b) of the Act and the application for condonation was dismissed. The application of the workman under S. 33A of the Act was automatically allowed. It was declared that the company had violated the provisions of the proviso to S. 33(2)(b) of the Industrial Disputes Act, 1947 by not having sought in proper form approval to the dismissal of the workman. The company was accordingly directed to reinstate the workman in his service with full back wages. 4. The above award has been impugned in this application. Now, in holding that the rule in question had been violated, namely, rule 70 of the West Bengal Industrial Disputes Rules, there had been violation of the mandatory provisions which could not be condoned, on a consideration of the proper materials, in my opinion, the Tribunal proceeded on a highly technical view of the matter. A similar rule had come up for consideration before the Supreme Court in connection with Mineral Concession Rules, 1960, being Rule 9(2) of such Rules, where certain fees were required to be paid. A similar rule had come up for consideration before the Supreme Court in connection with Mineral Concession Rules, 1960, being Rule 9(2) of such Rules, where certain fees were required to be paid. The Supreme Court in the case of Krishna Kumar Mediratta v. Phulchand Agarwala & Ors., (1977) 2 Supreme Court Cases, page 5, considered this matter and was of the view that in these procedural matters one has to look to the substance and held that the expression shall in Rule 9(2) of the Mineral Concessions Rules, 1960, was not conclusive in deciding the mandatory nature of the Rule. The said Rule 9(2) provided as follows: “9(2). Every such application shall be accompanied by- (a) a fee calculated in accordance with the provisions of Schedule II; and (b) an income-tax clearance certificate in Form C from the Income-tax Officer concerned; and (c) a certificate of approval in Form A or if the certificate of approval has expired, a copy of application made to the State Government for its renewal." Furthermore, the Supreme Court observed that breach of every mandatory duty does not ipso facto have the effect of the action being totally ineffective or void ab initio. In this case one application was filed in due time. In my opinion, in the facts and circumstances of this case in holding that the company did not make an application under S. 33(2)(b) of the Industrial Disputes Act the Tribunal acted illegally and in violation of the spirit of the provisions of the Act. In any event even if the Tribunal had come to the conclusion that there had been violation of S. 33(2)(b) of the Industrial Disputes Act, the Tribunal was not free to direct for reinstatement as such. The Tribunal had to go in to the merits of the question. In the case of The Hindusthan General Electrical Corporation Ltd. v. Bishwanath Prasad & anr. The Tribunal had to go in to the merits of the question. In the case of The Hindusthan General Electrical Corporation Ltd. v. Bishwanath Prasad & anr. (AIR 1971 Supreme Court 2417) the Supreme Court observed that in case of dismissal of an employee in violation of the provisions of S. 33 even if a Labour Court or a Tribunal found that the employee was dismissed during the pendency of conciliation proceeding, it could not straightway order for reinstatement, but it must go through the proceedings which would have to be taken under S. 10 and it was the duty of the Labour Court to examine the merits of the case in the light of the principles formulated by the Supreme Court in the case of Indian Iron & Steel Co. Ltd. v. Their Workmen, AIR 1958 Supreme Court 130. 5. On behalf of the respondent it was contended that there was no violation of the rules by the impugned order and reliance has been placed on the observations of the Supreme Court in the case of Strawboard Manufacturing Company v. Govinda, 1962 (1) Labour Law Journal, page 420. There the Supreme Court reiterated that dismissal without compliance with the proviso to S. 33(2)(b) of the Industrial Disputes Act would be bad. That, in my opinion, brings the question whether in the instant case there has been compliance with the proviso to S. 33(2)(b) of the Act. If the Tribunal was in error then the Tribunal must have acted illegally and in excess of its jurisdiction and in that view of the matter such an error would be amenable to correction by this Court in the facts and circumstances of this case even under Article 226 of the Constitution after its 42nd Amendment. 6. In the aforesaid view of the matter, the impugned order dated the 30th August, 1975 is set aside and the Tribunal is directed to consider the application for condonation of the delay under S. 33(2)(b) made by the Company as well as the said application under S. 33(2)(b) of the said Act and the application under S. 33A made by the workman concerned in accordance with law and in accordance with the observations made in this judgment. The Rule is made absolute to the extent indicated above. There will however be no order as to costs. Rule made absolute.