JUDGMENT - Chandurkar, Acrg C. J.-This is an appeal against the order of the learned single Judge before whom an order made by the Industrial Tribunal on an application for approval of the orders of dismissal made under section 33 (2) (b) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”) made by the appellants was challenged. The learned single Judge has substantially dismissed the petition. 2. Respondents Nos. 2 and 3 are the employees of the appellants-Company. They were charged with acts of misconduct under Standing Order 24(k) of the Certified Standing Orders of the Company. The misconduct arose out of obstruction to a co employee one S B. Morbale from geting into the S. T. bus parked just outside the Company's premises. The charge against the two respondents was that when Morbale was attempting to get into the bus, they along with one A. M. Soman assaulted him by giving him fist blows on his face as a result of which Morbale got contusions on his chin and started bleeding. Thus, according to the Company, all the three workers had committed misconduct of obstructing/intimidating and assaulting a co-worker within the factory premises or outside adversely affecting the discipline of the establishment. 3. It is not necessary to refer to the merits of the charges of mis conduct alleged against the two respondents, but, it is necessary to refer to the findings recorded by the Enquiry Officer which are contained in Exh. “E” to the petition. The Enquiry Officer, after considering the evidence on record, has come to the conclusion that the two respondents along with Soman obstructed Morbale from getting into the S. T. bus at about 5-20p m. on 15th March 1972 and that they assaulted him by giving him fist blows on his face. . He, therefore, found that the charges levelled against Soman, Satam and Gore (the latter two being the two contesting respondents) have been conclusively proved and there were no extenuating circumstances to hold otherwise. All the three were held guilty of misconduct as specified in Standing Order 24 (k) of the Certified Standing Orders of the Company as applicabie to them. 4. Accepting this report of the Enquiry Officer, the Works Manager of the Company made orders of dismissal against the two respondents. All the three were held guilty of misconduct as specified in Standing Order 24 (k) of the Certified Standing Orders of the Company as applicabie to them. 4. Accepting this report of the Enquiry Officer, the Works Manager of the Company made orders of dismissal against the two respondents. The Works Manager stated in his orders that he has carefully scrutinised the pro ceedings of the Court of Enquiry and the Enquiry Report of K. B. Mehta and he could not help agreeing with Mehta that they were guilty of the charges of obstructing, intimidating and assaulting the co-worker Morbale on the evening of 15th March 1972. The orders of dismissal refers to the defence of the workers that Morbale had hurt himself because he slipped while he was rushing to catch the bus. The orders stated: “As you have been found guilty of the charges as communicated to you in our letter of the 21st March 1972, I hereby dismiss you from the service of the Company with immediate effect.” The orders also referred to the dues payable to them which were being remitted to them by cheques which were enclosed. The workers were also informed that as an industrial dispute was pending before the Industrial Tribunal, Maharashtra, Bombay, an application for approval of the action taken against them was being submitted to the Industrial Tribunal as required by section 33(2)(b) of the Act. Accordingly, the Company made an application on 7th October 1972 to the Industrial Tribunal for approval under section 33(2)(b) of the Act. The application referred to the charges and the fact that serious misconduct of obstructing, intimidating and assaulting a co-worker has been proved and, therefore, the action of dismissal should be approved under section 33(2)(b) of the Act. 5. Before the industrial Tribunal the respondents Nos. 2 and 3 took up the stand that in their explanation to the charge sheet they had stated that they did not know any person by name Morbaie and that they had nothing to do with the alleged incident and that they were innocent. It is aiso stated by them that the Enquiry Officer had rejected their request for being defended by their co-worker Dastoor and that the attitude of the Company towards the workers was vindictive. It is aiso stated by them that the Enquiry Officer had rejected their request for being defended by their co-worker Dastoor and that the attitude of the Company towards the workers was vindictive. The contention was that the order of dismissal amounted to victimisation and that the enquiry held was bad and against the rules of natural justice. The charges were stated to be false and according to the said respondents approval should not be granted because no prima facie case has been made out against them. 6. The Tribunal was conscious of the fact that its jurisdiction under section 33 (2) (b) was limited. The Tribunal in its order expressly negatived the contention that the Enquiry Officer was a biased person and found that the grievance that the enquiry was bad because Dastoor and Shome were not allowed to defend respondents Nos. 2 and 3 was without any substance. The Tribunal also held that there was no prejudice caused to them as the list of witnesses was already supplied to them. Almost every ground on which the validity or the fairness of the enquiry was challenged was negatived by the Tribunal. In addition to this, the Tribunal positively came to the conclusion that the findings of the Enquiry Officer cannot be held to be perverse and the enquiry would not, therefore, stand vitiated on that ground. Having thus held the Tribunal in paragraph 12 of the order has observed : “………. that the findings cannot be called perverse. No official bias was proved on the part of the inquiry officer. The inquiry, therefore, does not stand vitiated on any of the counts discussed.” The Tribunal found that there was only one point that remained for consideration and that was about the past record which, according to the workers, was not taken into consideration while awarding the punishment. Admittedly, the orders of dismissal do not on the face of them disclose what past record of the workers was considered by the Works Manager before he-made the orders of punishment. The Tribunal took the view that “the inquiry will have to be taken to be in continuation until the final order is passed by the management”, and “It cannot be said that the stage of inquiry is completed after the inquiry officer has submitted his findings to the management”. The Tribunal took the view that “the inquiry will have to be taken to be in continuation until the final order is passed by the management”, and “It cannot be said that the stage of inquiry is completed after the inquiry officer has submitted his findings to the management”. The Tribunal, therefore, found that consideration of the past record was a step in the enquiry as it was required to be done before a final order was passed and that if it was found that there was failure to consider the past record it would vitiate the enquiry. The decision of this Court in Borosil Glass Works Ltd. v. M. G. Chitale1 was cited before the Tribunal. In that case this Court had taken the view that compliance with requirements of a Standing Order which made it obligatory on the management to consider the previous record, gravity of misconduct, extenuating or aggravating circumstances was vital and that in such a case, the Tribunal is justified in rejecting the application for approval of the dismissal orders made pursuant to an enquiry into the charges levelled against the workers. Relying on this decision the Tribunal found that the enquiry would stand vitiated as one step in the enquiry, namely, considering the past record, was not followed by the management. Having taken that view the Tribunal further observed that the management will have to be directed to defend its dismissal orders passed in respect of the two workers, respondents Nos. 2 and 3 only, because no order was passed in respect of Soman. The application against Soman is held to be not maintainable. In the case of respondents Nos. 2 and 3 the Tribunal directed the management to lead evidence before it to justify the order passed against both these respondents. 7. This order was challenged by two separate petitions under Article 226 of the Constitution of India. 8. Before the learned Single Judge, reference was made to an applica tion filed by the appellants to the effect that it the enquiry was found defec tive the management should be permitted to lead evidence in respect of the orders against respondents Nos. 2 and 3. This application is admittedly made on 13th March 1974 by which date the Tribunal had started hearing arguments on the application of the Company. 2 and 3. This application is admittedly made on 13th March 1974 by which date the Tribunal had started hearing arguments on the application of the Company. It was contended before the learned single Judge that a Division Bench of this Court in Borosil Glass Works's case was contrary to the decision of the Supreme Court in (East India Hotels v. Their Workmen)'1 and to the earlier decision of this Court in (Ziakh v. Firestone Tyre and Rubber Co. Ltd)3. Though the learned Single Judge, prima facie, expressed an opinion that there was some conflict in the obser vations in Borosil Glass Works's case and Ziakh's case he found that it was not necessary to go into the conflict for the purposes of the present case. The learned Judge then observed that the first question which is to be consi dered before proceeding to apply the law was to consider at what stage the attention of the Company was drawn to the requirement of Standing Order 25(6). There is some difficulty in this case in ascertaining what exactly transpired at the hearing before the Tribunal and at what stage the question of dismissal being bad on the view taken in Borosil Glass Works's case arose, but it is common ground that non-compliance with Standing Order 25(6) was not one of the grounds on which the validity of the dis missal orders was challenged in the statements tiled on behalf of respondents Nos. 2 and 3 in reply to the application under section 33(2)(b) of the Act. It Appeared that written arguments were submitted before the Tribunal on 26th April 1974 and in the written arguments reference is made to the fact that the Tribunal had drawn the attention of the appellants counsel to the judgment of this Court in Borosil Glass Works's case. Attempt was made in the said written arguments to show that that decision was not relevant having regard to the scope of the proceedings under section 33 (2) (b) of the Act. The written arguments contain a statement that simply because the orders of dismissal do not make a mention of the consideration of previous record and other circumstances it cannot be assumed that they were not considered. The written arguments contain a statement that simply because the orders of dismissal do not make a mention of the consideration of previous record and other circumstances it cannot be assumed that they were not considered. In the said written arguments a statement was further made that if the Tribunal were to hold that it was incumbent on the Company to have considered the previous record and make a specific mention of it in the dis missal orders, this infirmity, if at all it may be so called, cannot be a ground for refusing approval and the management may be permitted to produce the record of the workers before the Tribunal in which case the Tribunal ought to consider whether taking into account the previous record, if any, the dismissal orders can be regarded as amounting to victimisation on the basis of the evidence on record. Undoubtedly, the written arguments do not take a positive stand that the Works Manager had, in fact, considered the previous record before he made the orders of punishment or that the Company should be permitted to adduce evidence to show that previous record was in fact considered by the Works Manager before the orders of dismissal were made. The learned Single Judge took the view that if in the written submissions there would have been a clear statement that in fact the Works Manager had at the time of awarding punishment considered the previous record of the workers, then the present case might have been in favour of the Company, but on consideration of the written submissions, the learned Judge took the view, and in our opinion, rightly so, that on a fair reading of the submissions they do not indicate a positive case of the Company that the Works Manager had considered the previous record of the workers concerned before awarding punishment. The learned Judge then further took the view that there was no material before the Tribunal to show that in fact the Standing Order has been complied with, although the fact of such compliance was not referred to in the orders of dismissal. The learned Judge then further took the view that there was no material before the Tribunal to show that in fact the Standing Order has been complied with, although the fact of such compliance was not referred to in the orders of dismissal. The learned Judge proceeded on the footing that before the Tribunal the Company had not contended that it should be allowed to lead evidence or bring on record the necessary evidence for the purpose of satisfying the Tribunal that there had been compliance with Standing Order 25(6) as a matter of fact though this might not appear in any record or in the orders. This conclusion is seriously challenged on behalf of the present appellants. Having taken this view the learned Judge sustained the decision of the Tribunal. The learned Judge then went on to consider as to what would be the course to be adopted by the Tribunal. The learned Judge referred to the view of the Tribunal that it did not find any infirmity in the conduct of the Enquiry Officer, but found an infirmity in the further proceedings before punishment was awarded, and according to the learned Judge, the Tribunal was right in considering the said application by the Company to lead evidence before the Tribunal to sustain the ultimate punishment awarded. The learned Judge rejected the argument on behalf of respondents Nos. 2 and 3 that the application for approval should have been rejected. While, however, laying down the scope of the proceedings before the Tribunal, the learned Judge took the view that the Company may proceed either to hold a fresh enquiry and may thereafter proceed to award punishment and seek approval therefor, or it may ask the Tribunal to consider the evidence before it, to appraise the evidence and come to its own independent conclusion whether or not the workers concerned were guilty of the charges levelled against them by the Company. The learned Judge further took the view that it would be for the Tribunal to consider the mandatory requirement of Standing Order 25(6) and consider whether the proposed punishment against the workers is consistent with the gravity of the misconduct, the previous record of the workers and other extenuating or aggravating circumstances. The learned Judge further took the view that it would be for the Tribunal to consider the mandatory requirement of Standing Order 25(6) and consider whether the proposed punishment against the workers is consistent with the gravity of the misconduct, the previous record of the workers and other extenuating or aggravating circumstances. The learned Judge seems to have taken the view that the charges would have to be proved afresh before the Tribunal because he has observed that in the case of proof of charges the decision will be of the Tribunal. He has also observed that “that is the restriction which the Company has to face if it chooses to justify its action by leading evidence de novo before the Tribunal”. The learned Judge also made it clear that it would be open to the Company to inform the Tribunal that it did not desire to lead evidence before the Tribunal and would conduct the domestic enquiry against the two workers and if the Company so informed the Tribunal before leading any evidence the only order which would be required to be passed by the Tribunal would be one of refusal of approval leaving it to the Company to proceed further to hold an enquiry de novo. This order of the learned single Judge and the order of the Tribunal is now challenged on behalf of the Company in this appeal. 9. The main grievance of the appellants-Company now is with regard to the scope of the enquiry which the Tribunal will have to make having regard to its finding that the orders of dismissal were made without-complying with the requirements of Standing Order 25(6). According to Mr. Damania, the learned counsel for the appellants, the Tribunal having specifically found that the enquiry made by the Enquiry Officer was in no way vitiated, the proceedings of the enquiry cannot be set at nought and the Company cannot be required to go through the whole process of enquiry all over again by adducing the evidence of misconduct before the Tribunal. The argument is that if there is any infirmity in the dismissal orders inasmuch as the Works Manager had not made reference to the provisions of Standing Order 25(6) as having considered them before he made up his mind to make an order of dismissal, then the only limited evidence which the Company can be called upon to adduce is the evidence to show that in fact the Works Manager had taken into account the previous record of the two workers. It has been vehemently argued before us by Mr. Damania that the counsel who appeared in the case before the Tribunal and who is also present in this Court to assist Mr. Damania, was required by the Tribunal to say how the Company got over the decision in Borosil Glass Works's case, and at that stage according to Mr. Damania, a specific oral request was made to the Tribunal that the Company was in a position to prove that the previous record of the two workers was considered by the Works Manager and that the Works Manager would be examined to prove this fact. In support of this, our attention has been drawn to the affidavit in rejoinder filed on 30th September 1974 in this Court in which it is stated (paragraph 4) : “.... the petitioners had stated before respondent No. I that the past records were taken into consideration and offered to prove the same by the affidavit of the Works Manager. Respondent No. 1 however took no notice of the offer.” This is an affidavit sworn by the Secretary of the appellants-Company. Admittedly, there is no counter-affidavit on the basis of which any challenge can be said to have been made to the truthfulness and correctness of this statement. It is also argued that the learned Single Judge has also not considered this statement in the affidavit. Our attention has also been drawn to the affidavit of Dr. Admittedly, there is no counter-affidavit on the basis of which any challenge can be said to have been made to the truthfulness and correctness of this statement. It is also argued that the learned Single Judge has also not considered this statement in the affidavit. Our attention has also been drawn to the affidavit of Dr. S. Varma, who passed the orders of dismissal and which was filed in the Writ Petition in which it has been stated that after the Enquiry Officer submitted his report on 14th September 1972, be passed on the enquiry papers to the Personnel Manager and the Personnel Manager submitted the personal file including the statements of past record of the two respondents and it is further stated in the said affidavit: “ After going through the enquiry proceedings of the enquiry officer, findings and the personal file of the respondents Nos. 2 and 3, I ordered that they be dismissed from service.” 10. In the writ petition before this Court the positive case of the appellants-Company was that the previous record of the two workers was considered before the orders of dismissal were made and, therefore, the limit ed enquiry which would now be permissible would be to-show that the orders of dismissal are valid inasmuch as the previous record of the two workers was considered by the Works Manager. 11. Mr. Sawant, who Appeared on behalf of the two contesting respon dents, has contended that the only argument before the Tribunal was that the charges against the two workers were very serious and the Company was prepared to produce the personal files of the two workers which would show that having regard to the seriousness of misconduct, punishment of dismissal would be justified. It has been strenuously urged before us that at no stage was any application made by the Company to enable them to lead evidence to prove the fact that the previous record of the two workers has been con sidered. The further submission of Mr. Sawant is that the proceedings in connection with an enquiry of misconduct are continuous proceedings and if at one stage of the proceedings some infirmity is found, the whole proceed-ings must be held to be vitiated. Mr. The further submission of Mr. Sawant is that the proceedings in connection with an enquiry of misconduct are continuous proceedings and if at one stage of the proceedings some infirmity is found, the whole proceed-ings must be held to be vitiated. Mr. Sawant contends that if the orders of dismissal were now vitiated for non-consideration of the previous record of the two workers, then the inevitable effect of this infirmity must be that the entire proceedings of the enquiry that must stand vitiated with the result that there was nothing wrong with the view taken by the Tribunal or the learned Single Judge that it is open to the employer to adduce evidence with regard to the proof of misconduct with which the two workers were charged. Some decisions have been relied upon in support of these contentions by Mr. Sawant to which we shall make reference later. 12. Now, the scope of the proceedings under section 33(2)(b) of the Act is well established. The jurisdiction of the Tribunal under sec-iion 33(2) (b) is the jurisdiction primarily to ascertain whether the enquiry made into the misconduct of a workman is proper and that such workman has been given sufficient opportunity to meet the charges framed-against him and further to see that the order of punishment does not amount to victimi sation. The jurisdiction is, therefore, a limited jurisdiction and it is also well established that where there is any infirmity found in the enquiry, it is still open to the employer to adduce evidence before the Tribunal and prove the misconduct. In a case where an infirmity has been found in the enquiry proceedings, the order of dismissal does not automatically pet vacated nor does it become illegal though it cannot be given effect to. The Tribunal has to reach a decision as to whether it should give its approval to the order of punishment made by the employer only after the Tribunal applies its mind to the evidence which is adduced by the employer in proof of the misconduct. If the Tribunal holds that the finding of misconduct is established on the evidence tendered and grants approval the order of punishment made by the employer in respect of which approval is sought then becomes effective. In (Delhi Cloth General Mills Co. Ltd. v. Ludh Budh Singh)4', the Supreme Court referred to the earlier decision in (Delhi Cloth and Genera! If the Tribunal holds that the finding of misconduct is established on the evidence tendered and grants approval the order of punishment made by the employer in respect of which approval is sought then becomes effective. In (Delhi Cloth General Mills Co. Ltd. v. Ludh Budh Singh)4', the Supreme Court referred to the earlier decision in (Delhi Cloth and Genera! Mills Co Ltd. v. Ganesh Dutt others)5 in which it was laid down that the nature of jurisdiction of the Tribunal is a very limited one. In Ludh Budh Singh's case, the Supreme Court pointed out that the legal position is that where a proper enquiry has been held by the management, the Tribunal has to accept the finding arrived at in that enquiry unless it is perverse or unreasonable and permission must be given unless it has reason to believe that the management is guilty of victimisation or has been guilty of unfair labour practice; or is acting mala fide. Six principles have been culled out by the Supreme Court from those cases. We are concerned in this appeal with principles 4, 5 and 6 which are as follows : “4. When the management relies on the domestic enquiry it is open to them to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence in case the preliminary issue is decided against them. When the preliminary issue is decided against the management and the latter wants to give evidence before the Tribunal, an opportunity to adduce such evidence must be given. It will not be just and fair for the Tribunal to refuse to take evidence. 5. The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the manage ment should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. 6. If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence the duty of .the Tribunal is only to consider the validity of the domestic enquiry as well as the findings recorded and decide the matter.” 13. 6. If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence the duty of .the Tribunal is only to consider the validity of the domestic enquiry as well as the findings recorded and decide the matter.” 13. In Delhi Cloth and General Mills Company's case cited above, the Supreme Court also referred to the decision in the (Punjab National Bank Limited v. Its Workmen)6. In that case, the Supreme Court observed as follows (page 826) : “Where an application is made by the employer for the requisite permission under section 33 the jurisdiction of the tribunal in dealing with such an application is limited. It has to consider whether a prima facie case has been made out by the employer for the dismissal of the employee amounts to victimisation or an unfair labour practice, the tribunal has to limit its enquiry only to the question as to whether a prima facie case has been made out or not. In these proceedings it is not open to the tribunal to consider whether the order proposed to be passed by the employer is proper or adequate or whether it errs on the side of excessive severity; nor can the tribunal grant permission, subject to certain conditions, which it may deem to be fair. It has merely to consider the prima facie aspect of the matter and either grant the permission or refuse it according as it holds that a prima facie case is or is not made out by the employer.” (Emphasis supplied.) In the same decision, the earlier decision of the Supreme Court in the (Automobile Products of India Ltd. v. Rukmaji Bola and others)1 was cited with approval in which it was observed (page 827): “ Dealing with the effect of these sections (section 22 of the Act 48 of 1950 and section 33 of the Industrial Disputes Act, 1947) this Court held that the object of section 33 was to protect the workmen against the victimisation by the employer and to ensure the termination of the proceedings in connection with the industrial disputes in a peaceful atmosphere.” The view taken in the Punjab National Bank's case was again reiterated in (MIs Punjab Beverages v. Suresh Chand)8. After reproducing the passage, which we have quoted above, from the Punjab National Bank's case, the Supreme Court observed as follows (page 999): “It will be seen that the only scope of the enquiry before the Tribunal exercising jurisdiction under section 33 is to decide whether the ban imposed on the employer by this section should be lifted or maintained* by granting or refusing the permission or approval asked for by the employer. If the permission or approval is refused by the Tribunal, the employer would be precluded from discharging or punishing the workman by way of dismissal and the action of discharge or dismissal already taken would be void. But the reverse is not true for even if the permission or approval is granted that would not validate the action of discharge or punishment by way of dismissal taken by the employer. The permission or approval would merely remove the ban so as to enable the employer to make an order of discharge or dismissal and thus avoid incurring the penalty under section 31(1), but the validity of the order of discharge or dismissal would still be liable to be tested in a reference at the instance of the workman under section 10.” Thus, it is now well established that the Tribunal, when it deals with an application under section 32(2)(b); does not function as an appellate authority and is not entitled to interfere with the punishment awarded by the employer. All that it has to see is that a prima facie case is established and that the employee has not been victimised. 14. What is a prima facie case has been laid down by the Supreme Court in Martin Burn Ltd. v. Banerjee9. In that case, the Supreme Court has pointed out that a prima facie case is not a case which is proved to the hilt. The following observations are of some importance (page 255): “The Labour Appellate Tribunal had to determine on these materials whether a prima facie case had been made out by the appellant for the termination of the respondent's service. The following observations are of some importance (page 255): “The Labour Appellate Tribunal had to determine on these materials whether a prima facie case had been made out by the appellant for the termination of the respondent's service. A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed While determining whether a prima facie case had been made out, the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record.” (Emphasis supplied.) From these authorities it is, therefore, clear that the jurisdiction of the Tribunal, while dealing with an application under section 33 (2) (b) of the Act is an extremely limited jurisdiction. It has only to ascertain whether a prima facie case has been made out and in the process of finding whether a prima facie case has been made out, the Tribunal has also to ascertain whether the enquiry has been made in accordance with the principles of natural justice. It is also now well established that where there is no domestic enquiry or where the domestic enquiry is defective, it is open to the employer to adduce evidence before the Tribunal and it will then be for the Tribunal to come to the conclusion whether that evidence establishes the misconduct and further whether for the misconduct so established, the punishment awarded by the management is reasonable. 15. Now, so far as the present case is concerned, it is common ground that the Tribunal has found that the domestic enquiry is not vitiated in any way. The Tribunal has, however, taken the view, as already pointed out, that consideration of the past record as required by Standing Order 25(6) does not appear on the face of the final order and, therefore, the enquiry is vitiated. The Tribunal has, however, taken the view, as already pointed out, that consideration of the past record as required by Standing Order 25(6) does not appear on the face of the final order and, therefore, the enquiry is vitiated. There is no doubt that this view was taken by the Tribunal on the authority of the Borosil Glass Work's case (supra). The learned Single Judge has in his order pointed out, and in our view correctly, that there is a conflict between the decision in Borosil Glass Work's case and an earlier decision of a Division Bench of this Court in Ziakh v. Firestone Tyre and Rubber Company Ltd. The decision in Ziakh's case goes to show that the Standing Order did not require that the fact that certain facts have been taken into consideration before punishment is meted out should be either communicated to the petitioner or that it should appear in any record. The Division Bench in that case has further observed as follows (page 285): “…… It is mandatory direction to the manager and that mandatory direction has got to be complied with, but it may be complied with without a written record being made of it, and, therefore, if it had been suggested that there had been non-compliance of this particular Standing Order it would have been possible for the manager to give evidence and satisfy the Tribunal that he had taken into consideration the factors which it was obligatory upon him to take into consideration.” In Borosil Glass Works's case, the view of the Division Bench regarding Standing Order 25 (6), which was relevant, reads as follows (page 185): “ in awarding punishment under Standing Order 25 the management should take into consideration the gravity of the misconduct, the previous record if any, of the workman and any other extenuating or aggravating circumstances that might exist.” While dealing with Standing Order 25 (6) the Division Bench, observed as follows (page 189): “The Standing Order 25 (6) has not to be observed merely as a routine or a matter of form but careful application of mind is required to each of the relevant factors mentioned therein before coming to the conclusion, and such an application of mind must be revealed in the order itself, and much more so when it is the question of dismissal of an employee.” These are the observations which run counter to the earlier observations of the Division Bench in Ziakh's case. This conflict was once again noticed earlier by this Court in Raymond Woollen Mills v. A. K. Thorat10. While referring to the decision in Barosil Glass Works's case, the Division Bench observed as follows (page 15): “It is unfortunate that while this judgment was being delivered in the year 1974, a much earlier judgment of this Court of the Division Bench consisting of Shri Chagla, the then C. J and Dixit J. in the case of Ziakh v. Firestone Tyre and Rubber Company Limited does not seem to have been cited. As early as 1954, by a considered judgment the Division Bench laid down the law that for the proper compliance with the provisions of Standing Order 25(6) a reference to it or a discussion thereafter by a speaking order is not necessary. As early as 1954, by a considered judgment the Division Bench laid down the law that for the proper compliance with the provisions of Standing Order 25(6) a reference to it or a discussion thereafter by a speaking order is not necessary. It is an obligation on the Competent Authority to apply its mind to the provisions of that order which requires the Competent Authority to take into account several factors, like the previous record, the gravity of misconduct and any other extenuating or aggravating circumstances.” However, on the facts of the case before the Division Bench in Raymond Woollen Mills' case, the Division Bench took the view that inasmuch as the speaking order of punishment made by the Competent Authority showed that its obligation under model Standing Order 25 (6) was taken into account and it did not find any extenuating circumstances, the Division Bench found that the conflict was not of much consequence for deciding the case before it. Even in the instant case, the learned Single Judge, while observing that there is some conflict in the observations in Borosil Glass Works's case and the observations in Firestone Tyre and Rubber Company's case, took the view that on other grounds it was possible to sustain the decision of the Tribunal, because according to the learned Single Judge, even if the requirements laid down in Borosil Glass Works's case about the necessity of compliance of the Standing Order appearing in the years is ignored for the time being, there was no material before the Tribunal to show that in fact the Standing Order had been complied with, although the fact of such compliance did not occur in the order of dismissal. According to the learned Single Judge if that was so, the appellants cannot now be heard to say that it had the record to show that the Works Manager of the Company had the previous record of the workman before him when he passed the order. According to the learned Single Judge if that was so, the appellants cannot now be heard to say that it had the record to show that the Works Manager of the Company had the previous record of the workman before him when he passed the order. The learned Judge took the view that the Company was required to categorically apply to the Tribunal before it made the final order and seek permission to lead evidence and produce the necessary record, and if that was not done, an opportunity cannot now be given to the Company to satisfy the High Court for the first time that: (1) in fact the Works Manager had considered the requirements mentioned by the Standing Order 25(6) and (2) submit that the further requirement that this should appear in the order itself, should be ignored as the decision in Borosil Glass Works's case was either obiter or contrary to the observations in the earlier decision in Firestone Tyre and Rubber Company's case. Having made all these observations, the learned Judge went on to observe: “In my opinion, the decision of the Tribunal would be required to be sustained even on the ground that there was nothing on the record to satisfy the Tribunal that the mandatory requirements of certified Standing Order 25(6) had been complied with.” These observations were made because the learned Judge found that no clear submission or averment in the written submissions was made that evidence that the past record was considered should be allowed to be produced and the learned Judge, therefore, proceeded on the footing that before the Tribunal the Company had not contended that it should be allowed to lead evidence or bring on record the necessary evidence for the purpose of satisfying the Tribunal that there had been compliance with Standing Order 25(6) as a matter of fact though this might not appear in any record or in the order. 16. It has been strenuously disputed before us by Mr. Sawant that after the arguments were over before the Tribunal it was expressly stated before the Tribunal orally that the Company was prepared to examine Varma, because Varma had considered the previous record of the workmen. We shall deal with this submission a little later, but before that it will be worthwhile to deal with the decision in Borosil Glass Works's case (supra). We shall deal with this submission a little later, but before that it will be worthwhile to deal with the decision in Borosil Glass Works's case (supra). In that case following an enquiry into the misconduct the workman was discharged from the service of the Company. When an application under section 33(2)(b) of the Act was made, the workman complained with regard to the unfairness of the enquiry and challenged the findings as being against the principles of natural justice. His contention was that he was not given any opportunity to examine any witnesses and that the charges did not amount to misconduct under the Standing Orders. The whole enquiry was thus challenged as being bad in Jaw. An additional contention which was raised was that the Standing Orders were mandatory and that the Company had failed to adhere strictly to the provisions of Standing Order 25(6) and consider, when awarding punishment, his previous record and any extenuating or aggravating circumstances that might exist and, therefore, the enquiry and the order of discharge issued against the workman stood vitiated. The Tribunal had held that the order of discharge was passed without compliance with the Standing Order 25(6) and refused approval under section 33(2)(b) of the Act. Now it Appeared from the decision of Borosil Glass Works's case that all that was done before the Tribuual was that the enquiry papers were produced and no oral evidence was led before the Tribunal when the application for approval was being dealt with. One of the arguments advanced on” behalf of the workman in that case, was although the point with regard to non-compliance with Standing Order 25(6) was specifically taken in the written statement by the workman no evidence was Jed by the Company to show that the previous record of the workman was taken into account while awarding punishment. It Appeared that it was the case of the Company before the Tribunal that there was no previous record of said workman though admittedly the workman had put in a service of about four years. It Appeared that it was the case of the Company before the Tribunal that there was no previous record of said workman though admittedly the workman had put in a service of about four years. The Tribunal took the view that it was difficult to understand how it could be said that the workman had no previous record and the plea of the Company that the workman had no previous record was construed as meaning “that in the previous record there was nothing in particular to be mentioned against the workman concerned.” Now, so far as the enquiry itself is concerned, the Tribunal had found that the enquiry was properly made and that the finding arrived at by the Enquiry. Officer was justified. After having found that the finding was justified, the Tribunal had asked the counsel for the workman to make his submissions with regard to merits but the learned counsel for the workman stated that since the Tribunal was inclined to take the view that Standing Order 25(6) was not complied with, he did not want to argue the case on merits and thereafter the Tribunal held that since the mandatory provisions of Standing Order 25(6) were not complied with while passing the order of punish-me-nt he could not grant approval and rejected the application under section 33(2)(b) of the Act. It is on these facts that the Division Bench took the view that the Company in awarding punishment had not taken into account the past record and “there is no knowing that the petitioners would have awarded the extreme penalty of discharge had the past record been . looked into. The omission to comply with Standing Order 25(6) was an independent ground upon which the Tribunal was entitled to reject the application for approval of discharge under section 33(2)(b) of the industrial Disputes Act, 1947.” The decision in Borosil Glass Works's case, therefore, seems to have been based mainly on the fact that there was nothing to show that the provisions of Standing Order 25(6) were not complied with by the employer. The ratio of the decision in Borosil Glass Works's case must, therefore, be restricted to a case where the employer has failed to prove before the Tribunal independently that he has complied with the requirements of Standing Order 25(6) by evidence given before the Tribunal. The ratio of the decision in Borosil Glass Works's case must, therefore, be restricted to a case where the employer has failed to prove before the Tribunal independently that he has complied with the requirements of Standing Order 25(6) by evidence given before the Tribunal. The decision in Borosil Glass Works's case cannot be regarded as an authority for the proposition that in all cases where it is not apparent on the dismissal order that the requirements of Standing Order 25(6) were not considered, the Tribunal can straightway proceed to reject the application under section 33(2)(b) of the Act, because in such a case it is still open to the employer by adducing independent evidence before the Tribunal to show that the employer had in fact taken into account the previous record of the workman and considered if there were any mitigating circumstances which could weigh with him in deciding upon the nature of punishment to be awarded for the misconduct proved in a given case. 17 Two questions now arise: Is the finding recorded by the learned Single Judge that no opportunity was prayed for by the appellants before the Tribunal for adducing evidence that the Works Manager had applied his mind to the previous record correct, and secondly, if we take the view that this finding is not justified then what would be the scope of the enquiry which the Tribunal would now be entitled to make ? Now, it is undoubtedly true that in the written submissions which are made, after the arguments were already closed before the Tribunal, the appellants have not made out a plea that they would like to examine the Works Manager himself to prove that he had considered the past records of the concerned workman, It is not in dispute that the question as to whether the Borosil Glass Works's case covers the present case or not was debated for the first time after the entire evidence was closed. Before the evidence in the case was closed, it Appeared that neither the Tribunal nor the appellants were aware of the fact that the -ratio of the Borosil Glass Works's case was likely to be attracted by the facts of the present case. Before the evidence in the case was closed, it Appeared that neither the Tribunal nor the appellants were aware of the fact that the -ratio of the Borosil Glass Works's case was likely to be attracted by the facts of the present case. Therefore, before the evidence was closed, there was no question of the order of dismissal being brought under challenge on the ground that the requirements of Standing Order 25(6) were not complied with. The whole thrust of the contest before the Tribunal Appeared to be with regard to the validity of the enquiry proceedings and that the challenge was met by the appellants as detailed before the Tribunal and it is only at the final stages of the arguments that the decision in Borosil Glass Works's case seems to have come to the notice of the parties and the Tribunal. Now, undoubtedly, while it would have been much better and advisable to put down this request for giving additional evidence in writing, we do not think that we should treat it as an invariable rule that request for adducing oral evidence must be only in writing. Having regard to the circumstances in which the question arose between the parties before the Tribunal, we do not think that there is justification to reject the two affidavits filed before the learned Single Judge to the effect that the request was made showing the willingness on the part of the appellants to examine the Works Manager. The order of the learned Judge does not show that these two affidavits have been considered by him. The two affidavits, which we have earlier referred to, are the affidavit of the Works Manager himself and the affidavit of the Secretarv of the appellants-Company filed before the learned Single Judge. These affidavits were on the record, but the order of the learned Single Judge appealed against does not make any reference as to why he was not inclined to accept the correctness of the statements made in these affidavits. So far as this appeal is concerned, we must, therefore, proceed on the footing that (the request was made to the Tribunal that the personal files would be produced and that the Works Manager had considered the personal files of the two workmen and that the affidavit of the Works Manager would be produced in support of this fact. 18. So far as this appeal is concerned, we must, therefore, proceed on the footing that (the request was made to the Tribunal that the personal files would be produced and that the Works Manager had considered the personal files of the two workmen and that the affidavit of the Works Manager would be produced in support of this fact. 18. The next question, and an important one, which arises is, if there is some infirmity in the order of dismissal atone, does it mean that the whole enquiry was vitiated even though the Industrial Tribunal has found that there was no infirmity in the enquiry proceedings ? Mr. Sawant has argued that if the order of punishment becomes infirm, then the entire enquiry is vitiated and before the Tribunal evidence must now be again adduced by the employer even to prove the misconduct. This argument is advanced on the basis of the authority of the Supreme Court in (Lak shmiratan Cotton Mills v. Workman)11. In a. reference challenging the validity of dismissal of certain workers the Industrial Tribunal had held that show cause notices issued after the receipt of the report of the enquiry officer, as regards the punishment, were not served on the workers nor were they given a proper and adequate opportunity to show cause against their dismissal. The Supreme Court has found that a notice to show cause against the punish ment is not a mere idle formality, because the workman might show that the findings of the enquiry officer were not justified on the evidence on record or that even if the findings are not justified they did not warrant the extreme penalty of dismissal from service having regard to the nature or gravity of the misconduct, the past record of the workman and any other extenuating -circumstances. But, in the same case, the Supreme Court found that when the employer has to prove the charge of misconduct before the Tribunal itself, if the Tribunal thought that the enquiry was not properly conducted the Tribunal should have given an opportunity to the management to do so and, therefore, the award made by the Tribunal without giving an opportunity to the employer to adduce additional evidence to establish that the workmen were guilty of misconduct and that the action of the appellant in dismissing them as justified could not be sustained. The facts in Lakshmi-ratan Cotton Mills's case show that the employer had offered to prove independently before the Tribunal that certain workmen were guilty of misconduct charged against them, but on the application filed by the employer asking for an opportunity to give evidence, the Tribunal made no order. That was not a case in which the Tribunal found that the enquiry was proper and that the findings are properly recorded but that was a case where the employer itself had offered to give evidence substantively before the Tribunal to prove the misconduct itself. As a matter of fact, it Appeared that the employer did not want to rely on the findings of the enquiry officer as will appear from the following observations of the Supreme Court (page 183): “It will, therefore, be seen that when the application dated 12th March 1973, was made by the appellant, the Industrial Tribunal should have either declined to try the issue as to the validity of the domestic enquiry as a preliminary issue and directed the appellant to lead its evidence simultaneously on the issue as to the validity of the domestic enquiry as also in regard to the misconduct of the workmen so as to justify its action, or decided to deal with the validity of the domestic enquiry as a preliminary issue and if the finding on the preliminary issue went against the appellant, then to give an opportunity to the appellant to adduce additional evidence to justify its action. Strangely enough, however, the Industrial Tribunal refused to give either of these two directions on the application of the appellant and merely passed an order that on the application orders would be passed at the appropriate time'.” In view of this, the Supreme Court held that the award made by the Industrial Tribunal without giving an opportunity to the appellant to lead additional evidence to establish that the workmen were guilty of misconduct and that the action of the appellant in dismissing them was justified, could not, therefore, be sustained. This decision cannot, therefore, be treated as an authority for the proposition that where a domestic enquiry is not found to be vitiated in any manner, but the order of punishment is vitiated because of non-compliance with the Standing Order, the entire proceedings of the enquiry must be ignored and fresh evidence will have to be given before the Tribunal to establish misconduct. Mr. Sawant then relied on a decision of the Madras High Court in (Somarajan v. Management of A, R. C. Engg. Works)12. The learned single Judge of the Madras High Court in that case has held that from the commencement of the issue of charge-sheet upto the passing of the ultimate order of punishment it is one continuing process and if an opportunity is tot given to the workmen to show cause against the proposed punishment it will definitely amount to depriving the delinquent workman of a reason-able.opportunity to defend himself by stating that the findings of the enquiry officer could not be sustained or at any rate the proposed punishment is excessive, besides constituting breach of the mandatory provisions of the Standing Orders. The learned Judge further held that in a case like that, where the management is obligated to take into account the past record of the workman and other extenuating and aggravating circumstances in the matter of punishment it will be open to the workman to show that his past record has been so exemplary that he should be treated lightly on this occasion. The learned Judge undoubtedly held in that case that failure to issue a show-cause notice vitiated the entire disciplinary proceedings and remanded the matter to the Labour Court with a direction that it would be open to the management to adduce independent evidence with regard to the misconduct alleged against the workmen and it would be open to the workmen in their turn to adduce evidence to the contrary. 19. Now, it is difficult for us to see why the employer should be called upon to establish misconduct afresh before the Industrial Tribunal especially when on a proper application of mind, the Tribunal has found that not only was the domestic enquiry fair and proper but the findings recorded in the domestic enquiry were justified. The argument of Mr. 19. Now, it is difficult for us to see why the employer should be called upon to establish misconduct afresh before the Industrial Tribunal especially when on a proper application of mind, the Tribunal has found that not only was the domestic enquiry fair and proper but the findings recorded in the domestic enquiry were justified. The argument of Mr. Sawant Appeared to be that the proceedings in the enquiry must come to an end only with the order of punishment, because passing an order of punishment is only one stage in the enquiry proceedings and if one stage is vitiated, the entire enquiry must be gone through all over again. Undoubtedly, the stage at which an order of punishment is made is a stage in the entire disciplinary proceedings. Indeed, an order of dismissal or an order of punishment is culmination of the disciplinary proceedings taken against a workman. The disciplinary proceedings consist of different stages and they commence with the giving of a charge-sheet to the workman. After the charge-sheet is given the workman has to be called upon to give his reply to the charges. An enquiry has to be made in which the employer has to establish the charges if they are denied by the workman. This is done by a process of oral inquiry in which statements of witnesses of both the employer and the workman are recorded. The enquiry officer then arrives at his own conclusions and makes an enquiry report. At the stage when the enquiry report is made, in our view, the domestic oral enquiry must strictly come to an end. What happens thereafter is another function of the management which consists of punishing the workman by accepting the report or not proceeding further if the report is in favour of the workman that no misconduct is proved. In a given case the employer may not accept the findings exonerating the workman and may take a different view after issue of a notice to show cause why the charges should not be held to be proved. This stage, however, is an entirely different stage from the enquiry proceedings and such a distinction Appeared to be well-known, because what follows after the enquiry is really the disciplinary action. This stage, however, is an entirely different stage from the enquiry proceedings and such a distinction Appeared to be well-known, because what follows after the enquiry is really the disciplinary action. If we have a look at the Central Civil Services (Classification; Control and Appeal) Rules, 1965, Part VI deals with the procedure for imposing penalties and the relevant part of sub-rule (23) of Rule 14 reads as follows:- “(23) (i) After the conclusion of the inquiry, a report shall be prepared and it shall contain- ** ** ** (d) the findings on each article of charge and the reasons therefor.” Then there is Rule 15, which reads “Action on the inquiry report” and sub-rule (1) thereof says that the disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 14 as far as may be. Sub-rule (2) reads as follows: “(2) The disciplinary authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.” Sub-rule (4) says: “(4) (i) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in clauses (i) to (iv) of rule 11 should be imposed on the Government servant, it shall- ** ** **” Dealing with a case where it is necessary to consult the Public Service Commission, Rule 15(4)(ii)(b) reads as follows:- “(b) The disciplinary authority shall after considering the representation, if any, made by the Government servant, and the advice given by the Commission, determine what penalty, if any, should be imposed on the Government servant, and make such order as it may deem fit. (iii) Where it is not necessary to consult the Commission the disciplinary authority shall consider the representation, if any, should be imposed on him and make such order as it may deem fit.” Therefore, there Appeared to us a clear distinction between the enquiry proceedings culminating with the finding of the enquiry or the oral enquiry and the subsequent stage which deals with the management making an order of punishment if so warranted by the finding. It is, therefore, not possible for us to accept the contention of Mr. Sawant that even though there is nothing wrong with the enquiry proceedings as found by the Tribunal, the employer must be asked to adduce the entire evidence afresh before the Tribunal even with regard to the proof of misconduct as the final order of punishment is vitiated by failure to consider the past record of the workman. 20. Mr. Damania has brought to our notice a decision of a Division Bench of this Court, to which one of us was a party, in (Maharashtra Slate Road Transport Corporation,v. A. N. Jadhav)13. That was a case in which after the enquiry into misconduct, during the pendency of a dispute, the employer has passed an order of dismissal without prior approval of the Conciliation Officer. Realising that the order of dismissal could not have been made without prior permission, the employer cancelled the order of dismissal and proceeded with the enquiry. In the meantime, the dispute, which was the subject-matter of the conciliation, came to an end and the employer served a fresh notice as to why he should not be dismissed. A dismissal order was made after making a fresh enquiry. The Labour Court held that the second enquiry and dismissal was without jurisdiction because cancellation of the first dismissal order amounted to an acquittal. In the writ petition filed by the employer it was held that after the order of dismissal was withdrawn the proceedings would be relegated back to the stage immediately before the order of dismissal and till the stage at which the employer reaches the conclusion that the employee should be dismissed, the proceedings were thoroughly comoetent and there was no infirmity in the proceedings. It was held that it was competent for the employer to proceed further from the stage upto which there was no legal infirmity in the proceedings just prior to the making of an order of dismissal. What is important is, it was pointed out in that case that strictly speaking, if the only legal infirmity was that the previous approval of the appropriate authority was not obtained, the employer could well have only restricted his further action to obtaining such approval and it was really not necessary to grant any fresh opportunity to show cause as to why the employee should not be dismissed nor was it necessary to re-open the enquiry. We are, therefore, unable to agree with the view of the Tribunal and the learned Single Judge that the entire enquiry into the misconduct of the workmen has to be gone through all over again in spite of the finding recorded by the Tribunal that the enquiry proceedings and the enquiry report were not in any way vitiated and the enquiry report rightly established the misconduct. 21. The learned Single Judge has left two alternatives to the appellants while giving directions regarding the proceedings before the Tribunal. The first alternative is that if the Company did not desire to lead evidenec before the Tribunal, it is at liberty to inform the Tribunal that it would conduct the domestic enquiry against the two workmen. If that is done, the learned Judge directed that the Tribunal would pass an order refusing approval. The other alternative was that if evidence is led by the Company, the Tribunal would appraise this evidence and decide the matter in the light of the guidelines indicated in the judgment. The learned counsel for the appellants appearing before us has now made a statement that the Company would like to lead evidence before the Tribunal to show that the past record of the two workmen was, in fact, considered. In view of this statement, the first option given by the learned Single Judge to the appellants does not now survive. The learned counsel for the appellants appearing before us has now made a statement that the Company would like to lead evidence before the Tribunal to show that the past record of the two workmen was, in fact, considered. In view of this statement, the first option given by the learned Single Judge to the appellants does not now survive. In the view which we have taken, we must allow the appeal and modify the order of the learned Single Judge by holding that the appellants are entitled to adduce evidence before the Tribunal to show that the past record of the two workmen was considered by the Works Manager before the order of punishment was made. Such evidence may be in the form of an affidavit filed by the Works Manager, in which case the Works Manager will be permitted to be cross-examined by the workmen. It is open to the Company to give oral evidence of Varma in place of the affidavit. After such evidence as is given is recorded the Tribunal shall proceed to decide the application under section 33 (2) (b) of the Act having regard to the well-known principles cited earlier. 22. The appeal is thus allowed. However, there will be-no order as to the costs of this appeal. Appeal allowed. -----