Judgment S. Ali Ahmad, J. 1. How malicious a management can be and how it can victimise its workman, can, perhaps, be illustrated by this application which has been filed under Articles 226 and 227 of the Constitution of India with a prayer to quash Annexure 1, an award dated 28.2.1975 by which the Industrial Tribunal, respondent No.2, set aside the order dismissing respondent no.1 and directed him to be reinstated forthwith full wages and other benefits for the idle period. 2. Admittedly Reference nos.60 of 1969, 50 of 1969, of 29 1972, 40 of 1972 and several other reference between the management of M/s. Rohtas Industries ltd. and their workmen were pending before the Industrial Tribunal, Patna, and also admittedly respondent no.1, who was a clerk in the Rohtas Industries ltd. , was a concerned workman within the meaning of section 35 (2) of the industrial Disputes Act (hereinafter to be referred to as the Act ). While the aforesaid references were pending, the management dismissed respondent no.1 from service. Respondent no.1 filed a complaint under section 33-A of the Act making a grievance that the order terminating his services as made in violation of the mandatory provisions as contained in section 33 (2) (b) of the Act. It was, inter alia, stated in the complaint under section 33-A of the Act that he was a graduate at the time of his appointment and that after his appointment he started taking part in trade union activities which was not liked by the management and for that he was made to suffer and was threatened of dire consequences. It has been further stated that the management (the petitioner) did not tolerate his trade union activities and dismissed him from service falsely stating that he had not passed his B. A. Examination. Respondent no.1 in these circumstances asserted that the termination of services was in fact an order of dismissal and amounted to unfair labour practice. The order (terminating the services of respondent no.1) was also challenged on the ground that it was without affording any opportunity to him to clarify and explain the allegations. 3. The management in response to the notice issued by respondent no.2 appeared and showed cause. According to it, at the time of interview the complainant had submitted his marks-sheet of 8. 3. The management in response to the notice issued by respondent no.2 appeared and showed cause. According to it, at the time of interview the complainant had submitted his marks-sheet of 8. A. Part I and B. A, Part II examinations according to which he had obtained second division. The Deputy chief Accountant of the Company grew suspicion and he, therefore, wrote a letter to the Registrar, Gorakhpur University requesting him to inform if respondent no.1 had passed B. A. Examination in the year 1967 and also if he had passed then what was the division in which he was placed. A request was also made to send the mark-sheet of respondent no.1. It was further stated in the show cause that the Joint Secretary of the University replied that the complainant had appeared in B. A. Part II Examination in 1967 but for certain reasons his result had been withheld. With regard to the request for mark-sheet, the reply was that since the result has been withheld no mark-sheet could be issued. On these facts, the managements stand was that respondent no.1 had fraudulently obtained employment on the basis of false and fabricated document which amounted to violation of rule 65 of the standing order of the company. It was also said that this rule empowered the management to terminate the services of respondent no.1. 4. Clause 63 of the Standing Order of the Rohtas Industries Ltd. , dalmianagar, reads as follows :- "every workman on appointment shall file a statement of his qualifications, age, experience, past services, etc. , in prescribed form. If the company finds the statement after the appointment to be incorrect, it will be at liberty to terminate the servises of the workman without notice, and may further take such action against him as the law permits. " The Industrial Tribunal, on a consideration of the evidence adduce before it, held that respondent no. i had in fact passed the B A. Examination from the gorakhpur University in 1967 and he never misrepresented the management. It also held that the management should have before passing an order of termination of his services given an opportunity to prove and satisfy it that he had passed the B. A. examination and had not misrepresented regarding his qualification to the company. It also held that the management should have before passing an order of termination of his services given an opportunity to prove and satisfy it that he had passed the B. A. examination and had not misrepresented regarding his qualification to the company. Further, on a consideration of the materials placed before it, the Industrial Tribunal came to a finding that the action of the management in terminating the services of the complainant was quite mala fide and was a clear proof of victimisation of the complaint due to his trade union activities on these findings, it set aside the order of dismissal and directed respondent no.1 to be reinstated forthwith with full wages and other benefits for the idle period. 5. Mr. Katriar, learned counsel for the petitioner submitted that the finding that respondent no.1 was a graduate at the time of filing the application for employment is perverse. He further submitted that since respondent no.1 obtained employment through misrepresentation the management was justified under clause 63 of the Standing Order in terminating his services. It is not possible to hold that the finding as recorded by the Industrial Tribunal is perverse, further it appears to me to be absolutely correct. Respondent no.1 in support of his passing B. A. Examination filed his B. A. Degree (Ext.2)which shows that he had passed B. A. Examination in the year 1967. As against division a cross is put which also is printed. This means that there was no division in the B. A. Examination. The serial number of the degree is 13268. (Ext.2/a) is a form which the university sent to respondent no.1 enquiring from him as to whether he would be attending the convocation or not. Again Ext.2/b is another letter from the Registrar of the Gorakhpur University giving notice that the convocation would be held on 19th December, 1967. A printed (sic) calendar bears (the authenticity of which has not been disputed)of the Gorakhpur University published by the University showing the names of successful candidates, who obtained degree or certificate from the University in the year 1967 was also filed. Page 280 of this calendar bears the name of respondent no.1 against serial no.13268 This figure of 13268 is the number of the B. A. degree awarded to the respondent no.1. As against these documents, the management relied on Ext. Page 280 of this calendar bears the name of respondent no.1 against serial no.13268 This figure of 13268 is the number of the B. A. degree awarded to the respondent no.1. As against these documents, the management relied on Ext. C-l, a letter reported to have bean written by an officer of the Univeisity. On these materials, in my opinion, the only possible conclusion was to accept the fact that respondent no.1 had passed his B. A. Examination in the year 1967 and that Ext. C-1 (Letter by an-offcer of the university to the Deputy Chief Accountant) was a collusive document and its contents were false air I that it was obtained by the management with a view to victimise respondant no.1. The Industrial Tribunal, in my opinion, therefore, was absolutely correct in holding that respondent no.1 had passed his B. A. Examination in 1967 and had adduced all the relevant documents including the marks-sheet at the time of interview. 6. Mr. Katriar also submitted that the Industrial Tribunal did not afford opportunity to the petitioner to addure evidence in support of its case. In that connection, learned counsel submitted that he wanted to examine certain persons in support of his case and also prayed certain documents to be examined by an expert, but his prayer were improperly rejected by the Tribunal. In order to appreciate this argument, I will have to refer to certain orders passed from time to time by the Tribunal. Sixth February, 1975, was the date fixed for hearing of the case. On that day, both parties were present but on behalf of the management Sri Jain stated that he was not ready with the case. There was no justification for the petitioner not to be ready with the case on that day ; yet the Tribunal gave indulgence to the petitioner by adjourning the casa to 11th February, 1975. On the 11lth February, 1975, the case was taken up. Respondent no.1 was examined-in-chief and he proved a number of exhibits. After he was examined in-chief the petitioner declined to cross-examine him. Thereafter, the order-sheet reads : "evidence on behalf of the complainant is finished. Sri P. C. Jain on behalf of the opposite party says that he is not in a position to give rebutting evidence today. Respondent no.1 was examined-in-chief and he proved a number of exhibits. After he was examined in-chief the petitioner declined to cross-examine him. Thereafter, the order-sheet reads : "evidence on behalf of the complainant is finished. Sri P. C. Jain on behalf of the opposite party says that he is not in a position to give rebutting evidence today. " The Tribunal again gave indulgence to the petitioner by adjourning the case for the next day to enable the petitioner to give evidence in rebuttal. On the next day, an application was filed by the management saying that the application under section 33-A of the Act was not maintainable. After hearing learned counsel for the management, the Tribunal ordered that "this matter will be considere in the award which will be pronounced. "on the same day, another petition was also filed on bahalf of the management praying to recall respondent no.1 for cross-examination. The Tribunal showed yet another indulgence to the management by recalling Pathak for cross-examination on payment of Rs.50/- as costs. But before Pathak could be cross-examined, the management filed a third petition stating "incorreet" facts and again prayed for an adjournment. The Tribunal showed indulgence for the fourth time by adjourning the case to 13th February, 1975 On the 13th February, 1975, pathak was cross-examined by the management and was discharged. Thereafter, rajendra Prasad Gara was examined on behalf of the management, who proved exts C and C/l. This witness was dis chaged after cross-examination. After Sri gara was discharged an application was filed on behalf of the management praying that the Registrar, Gorakhpur University should be summoned to give evidence in this case as he could say whether the letter, dated 3.9.1975 (Ext. C/l)was genuine or not. As the order-sheet shows, the prayer was refused inter alia on the ground that it was not necessary at all to summon the Registrar of the gorakhpur University at that belated stage to prove the genuineness or otherwise ext. C/l. It appears that the purpose for which the petitioner wanted to examine the Registrar was to prove the genuineness of Ext. C/1. The question in the case was not as to whether Ext. C/l was genuine or not The question in the case was as to whether respondent no. I had passed his B A. examination in the year 1967 and had obtained marks as stated by him. C/1. The question in the case was not as to whether Ext. C/l was genuine or not The question in the case was as to whether respondent no. I had passed his B A. examination in the year 1967 and had obtained marks as stated by him. The petitioner did not want to examine him to prove that respondent no.1 had not passed the B. A. Examination in 1967 but only to prove the genuineness of Ext. C/l. In that view of the matter, in my opinion, the Tribunal was absolutely justified in rejecting the prayer for summoning the Registrar to be examined at that belated stage. After rejecting the prayer for summoning the Registrar of the Gorakhpur University, arguments were heard and hearing concluded and award was reserved. At 3.10 p. m. on the same day, after conclusion of the hearing, another application was filed praying to allow Surajbans Sahai to be examined as witness in the case to prove certain papers as exhibits in the case. The prayer was rightly refused for reasons mentioned in the order which need not be reiterated by me. After this petition was rejected yet another application was filed praying to call for an expert to get certain documents which the management had filed and respondent no.1 had denied to have been written by him. The Tribunal for the reasons mentioned in the order rightly rejected this application also. I have mentioned in some detail as to how the proceeding before the Tribunal was conducted and I cannot help observing that the conduct of the management was simply deplorable. It did not want the Tribunal to proceed with the case and tried to put obstacle at every stage. It is really too much now for Mr. Katriar to suggest that the petitioner was denied opportunity to adduce evidence in support of its case. It did not keep quiet after the conclusion of argument. It went on filing petition after petitions either to allow more witnesses to be examined or to get certain documents examined by an expert. 7. Mr. Katriar lastly urged that no complaint under section 33-A of the act was maintainable inasmuch as there was no contravention of any of the provisions of section 33 of the Act. It went on filing petition after petitions either to allow more witnesses to be examined or to get certain documents examined by an expert. 7. Mr. Katriar lastly urged that no complaint under section 33-A of the act was maintainable inasmuch as there was no contravention of any of the provisions of section 33 of the Act. According to him, action had been taken under clause 63 of the certified standing order of the company and, as such, it was not necessary to comply with the requirement of section 33 (2) (h) of the Act. Mr. Ranen Roy appearing on behalf of respondent no.1 on the other hand, contended that there was contravention of section 33 (2) (b) of the Act. He also fairly conceded that in case if it be held that actions taken under the Standing orders are not governed by the provisions of section 3 (2) (b) of the Act then the application under section 33-A of the Act filed before the tribunal was not maintainable. I have no hesitation in holding that Mr. Katriar is wrong and Mr. Roy is correct, Sec.33 (2) (b) of the Act has to be read as follows :- " (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute (or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman. (b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman : provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. " Mr. Katriar wanted us to read clause (b) in isolation of the provision which is common to both clauses (a) and (b) that is for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise that workman. That gives us no meaning. The clause becomes meaningful only when the earlier part of sub-section (2) is also read either with clause (b) or clause (a ). That gives us no meaning. The clause becomes meaningful only when the earlier part of sub-section (2) is also read either with clause (b) or clause (a ). Further every order for misconduct is passed either under the Standing order for where there are no such standing orders then in accordance with the terms of the contract whether express or implied between the management and the workman. In case a workman is proceeded against for misconduct and if he is dismissed after due enquiry, and observance of other requirement in the standing orders then the order dismissing the workman from service is an order passed under the Standing Orders. In case the argument of Mr. Katriar is correct then such orders as I have mentioned above also gets out of the purview of section 33 (2) (b) of the Act as it is an order passed unier the standing orders. This interpretation, therefore, which is sought to be given to section 33 (2) (b) of the Act by Mr. Katriar cannot be acceptable. In my view, therefore, all the orders of punishment whether by dismissal or otherwise imposed on the workman for any misconduct not connected with the dispute are covered by section 33 (2) (b) of the Act. In that view of the matter, even though the order terminating the services of respondent no.1 was passed under clause 63 of the certified standing order, it was incumbent on the petitioner to comply with the requirement of section 33 (2) (b) of the Act. Admittedly it was not done. Therefore, there was a contravention of the provision of section 33 of the Act and as such a complaint under section 33-A of the Act was maintainable. 8 There is yet another ground why this application has to fail. The tribunal has held that the services of respondent no.1 was terminated on account of mala fide and unfair labour practice. In the case of bihar State Road Transport Corporation V/s. State of Bihar and other, (AIR 1970 S. C.1217), it has been held that if the order is couched in an innocent language, the court should see the real motive behind it. In the case of bihar State Road Transport Corporation V/s. State of Bihar and other, (AIR 1970 S. C.1217), it has been held that if the order is couched in an innocent language, the court should see the real motive behind it. The motive as lias been seen above was to get rid of respondent no.1 as he had become an active member of the trade union The order of dismissal, therefore, cannot be sustained and the Tribunal was right in setting it aside. 9. It appears that the operation of the award (Annexure-1) was stayed by order dated 21st April, on payment of half of the wages of respondent no.1 payable by the petitioner from the date of his dismissal upto date. The petitioner deposited this amount which has not so far been withdrawn by respondent no.1 it will be open to respondent no.1 to withdraw the amount deposited in compliance with the order dated 21st. April, 1975. 10. In the result, the application is dismissed with costs. Hearing fee rs.110/-. 11. I agree that this writ application should be dismissed with costs. My learned brother has affirmed the finding of the Industrial tribunal holding that the respondent no 1 had passed the B. A. examination in 1967 and had adduced the relevant documents at the time of his interview. The substance of the finding of the Tribunal is that the respondent no.1 had not made any misrepresentation before the management. The finding is substantiated by the evidence on the record and is not open for re examination in writ jurisdiction. I also accept the finding tint the workman has been dismissed by way victimisation due to his trade union activities. 12. In view of the aforementioned findings, it follows that the clause 63 of the Standing Orders relied upon by the petitioner cannot apply to the case and the dismissal of the petitioner was illegal. The further conclusion would be that the case would be covered by the provisions of section 33 (2) (b) of the industrial Disputes Act even on the assumption that the interpretation of the section put by Mr. Katriar is correct ; and the workmans application must be held to be maintainable under section 33-A of the Act. For these reasons, the writ application has to be dismissed. Application dismissed.