JUDGMENT 1. - This writ petition has been referred to the Division Bench by one of us as it was contended that (1) Associated Cement Companies Ltd. Lakheri Cement Works, Lakheri v. The Industrial Tribunal. Rajasthan, Jaipur and another (I.L.R. 1959) IX Raj. 1302) , which was followed in (2) M/s Metal Press Works Ltd. v. H. R. Deb and others ( AIR 1962 Cal. 123 ) . has been impliedly overruled by the decision of their Lordships of the Supreme Court in (3) M/s Poddar Mills Ltd. v. Bhagwan Singh and another ( AIR 1973 SC 2224 ) . 2. A few facts leading to this writ petition may briefly be stated:- 3. Respondent No. 2 Mool Singh was appointed as concudtor by the order dated August 25. 1970 of the Regional Manager, Jodhpur and was posted at Jodhpur Depot. On receipt of a report relating to misconduct, respondent No. 2 was charge-sheeted by communication dated May 18, 1974 and Shri K. C. Sogani was appointed as Enquiry Officer. Respondent No. 2 submitted a reply. The Enquiry officer submitted the report to the Regional Manager Jodhpur, who was the Appointing Authority. The Regional Manager, Jodhpur on the basis of the record of the domestic enquiry found that the charge of misconduct under clause 34(i) of the Standing Orders of 1965 was duly proved against him. He, therefore, by his order dated July 12, 7974 dismissed respondent No. 2 under clause 36(8) of the Standing Orders of 1965. That order was sent to the Depot Manager, Jodhpur with a direction that one month's wages without any deduction may be paid to him simultaneously by serving the order (Annexure-1). As the order (Anrexure I) of dismissal from service could not be served personally, it was sent by Depot Manager Jodhpur to respondent No. 2 by registered post and one month's wages were also sent by money order on July 17, 1974. An application under S. 33(2) (h) of the Industrial Disputes Act (No. XIV of 1974) (for short 'the Act') for granting, approval was sent to the Industrial Tribunal-1, Rajasthan. Jaipur by registered post. The approval application is dated July 17, 1974. It appears from the impugned order (Annexure-6) that the application was received by the Tribunal through registered post on November 27. 1974. In reply to the application. respondent No. 2 inter-alia, contended that the action of dismissal. Jaipur by registered post. The approval application is dated July 17, 1974. It appears from the impugned order (Annexure-6) that the application was received by the Tribunal through registered post on November 27. 1974. In reply to the application. respondent No. 2 inter-alia, contended that the action of dismissal. payment of wages and filing of application for approval being not simultaneous, the application is liable to be rejected. The Judge, Industrial Tribunal-I, Rajasthan, Jaipur (respondent No. 1) declined to grant the approval whereby refusing the approval application vide order (Annexure-6) dated February 4, 1976 on the ground of inordinate delay in filing it. The petitioners filed the writ petition for quashing the order (Annexure-6) dated February 4, 1976 and for a direction to respondent No. 1 for granting approval under S. 33(2) (b) of the Act in respect of the order of dismissal from service of respondent No. 2. In the writ petition, it was averred that there was sufficient compliance of the proviso to S. 33(2) (b) of the Act and respondent No. 1 was not right in law in refusing to grant the approval. The writ petition was contested on behalf of respondent No. 2 (workman). It was submitted that the application was rightly refused by respondent No. 1 as there was non-compliance of S. 33(2) (b) of the Act. 4. We have heard Mr. R.N. Munshi, learned counsel for the petitioners and Mr. M. Mridul, learned counsel for respondent No. 2. 5. Mr. R. N. Munshi, learned counsel for the petitioners while assailing the order (Annexure-6) contended that dismissal, payment of one month's wages and filing of application under S. 33 (2) (b) of the Act for granting approval of dismissal need not be simultaneous and in the facts and circumstances of this case, there was sufficient compliance of the proviso to S. 33 (2) (b) of the Act. In support of that. Mr. Munshi, learned counsel for the petitioners placed reliance on the Associated Cement Companies Ltd's case (1). On the other hand. Mr. M. Mridul, learned counsel for respondent No. 2 strongly refuted the submission made by Mr. R. N. Munshi, learned counsel for the petitioners and pressed for our consideration that fulfilment of the conditions laid down in the proviso to S. 33 (2) (h) of the Act is mandatory and in the absence of the conditions being satisfied. Mr. M. Mridul, learned counsel for respondent No. 2 strongly refuted the submission made by Mr. R. N. Munshi, learned counsel for the petitioners and pressed for our consideration that fulfilment of the conditions laid down in the proviso to S. 33 (2) (h) of the Act is mandatory and in the absence of the conditions being satisfied. the application cannot be said to be proper one before the Tribunal and so the approval cannot be granted. He submitted that the view taken in the Associated Cement Companies Ltd's case stands overruled by M/s Poddar Mills Ltd.'s case. 6. It will be useful here to notice the material part of S. 33 of the Act. "S. 33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings,-(1) ............................................ (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the Standing order 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- (a) Alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before commencement of such proceeding; or (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 and 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. (3)...................................................................... (4)...................................................................... (5) Where an employer makes an application to a conciliation officer. Board, an arbitrator, a Labour Court, Tribunal or National Tribunal under the proviso to sub-section (2) for approval of the action taken by him the authority concerned shall, without delay, hear such application and pass "within a period of three months from the date of receipt of such application" such order in relation thereto as it deems fit. Board, an arbitrator, a Labour Court, Tribunal or National Tribunal under the proviso to sub-section (2) for approval of the action taken by him the authority concerned shall, without delay, hear such application and pass "within a period of three months from the date of receipt of such application" such order in relation thereto as it deems fit. Provided that where any such authority considers it necessary or expedient so to do, it may for reasons to be recorded in writing extend such period by such further time as it may think fit : Provided further that no proceedings before any such authority shall lapse merely on ground that any period specified in this subsection had expired without such proceedings being completed." 7. Bhandari, J., as he then was, while interpreting sub-sections. (2) and (5) of section 33 of the Act in Associated Cement Companies Ltd's case observed as under : "This object is achieved if the proviso is taken as laying down that the discharge or dismissal shall not be effective unless such workman had been paid wages for one month and an application has been made by the employer to the authority before which the dispute is pending for approval of the action taken by the employer. This can be easily done by providing in the order of discharge or dismissal that it shall be operative from some future date. In the meantime, the employer may fulfill the two duties cast upon him, that is, he may make payment of wages for one month and may also file an application for approval. This would carry out the requirements of the main section as well as the proviso. Instead of giving the interpretation that the main section overrides the proviso or vice versa, it will be better to adopt the interpretation given above. I may also observe that it is not very common to pass an order for discharge or dismissal which may be operative at some future date. Instead of giving the interpretation that the main section overrides the proviso or vice versa, it will be better to adopt the interpretation given above. I may also observe that it is not very common to pass an order for discharge or dismissal which may be operative at some future date. The provision of law under consideration contemplates that the only legal order of discharge of dismissal which an employer is authorised to pass, is that it shall be operative at some future time thus affording the employer sonic breathing time to fulfill the requirements of the proviso." He also considered the scope of enquiry under sub-s. (5) of S. 33 of the Act to be held on an application for approval of action taken by the employer in cases governed by S. 33 (2) (b) of the Act. According to the learned Judge, the scope of enquiry is limited to the determination of the question whether the misconduct alleged to have been committed by the workman is prima facia proved and is of such a nature that prima facie, the employer was justified in awarding the punishment of dismissal or discharge and that in making its order, the Tribunal may prima facie examine the seriousness of the misconduct proved against the employee and may further examine that the employer is not acting malafide or is not resorting to any unfair practice or victimisation. The learned Judge was of the view that the Tribunal would not be justified in determining the question that the conditions laid down in the proviso to sub-s. (2) of S. 33 are not fulfilled by employer. The remedy of the employee is either by way of taking action under S. 31 for the criminal prosecution of the employer or else by making a complaint in writing in the prescribed manner to the appropriate authority as laid down in S. 33-A of the Act. Modi, J., while agreeing with the final order made by Bhandari, J., as he then was, while considering S. 33(2) of the Act observed as under : "I am, therefore, inclined to think that a construction should be placed on the proviso which would harmonise with the body of this section itself. Modi, J., while agreeing with the final order made by Bhandari, J., as he then was, while considering S. 33(2) of the Act observed as under : "I am, therefore, inclined to think that a construction should be placed on the proviso which would harmonise with the body of this section itself. It further seems to me that the requirements of S. 33 (2) would be satisfied substantially if in the category of cases provided for under S. 33(2), an employer makes the payment of a month's wages or offers it to the employee and makes an application to the Industrial Tribunal, simultaneously with the action taken, or on the day following or even within a reasonable time of the action taken, where such a course may have become necessary so that the actual payment of wages or the application made for approval are not characterised by any unreasonable delay whatsoever." The extent of the jurisdiction of the Tribunal while considering an application to approve order of dismissal passed against workmen under S. 33(2) (b) of the Act was examined in L.K. Textile Mills v. Its Workmen ( AIR 1961 SC 860 ) . Gajendragadkar, J. as then was,with whom Whanchoo, J, as he then was, agreed, observed as under : "In view of the limited nature and extent of the enquiry permissible under S. 33 (2) (b) all that the authority can do in dealing with an employer's application is to consider whether a prima facie case for according approval is made out by him or not. If before dismissing an employee the employer has held a proper domestic enquiry and has proceeded to pass the impugned order as a result of the said enquiry, all that the authority can do is to enquire whether the conditions prescribed by S. 33 (2) (b) and the proviso are satisfied or not. Do the standing orders justify the order of dismissal. Has an enquiry been held as provided by the Standing Order ? Have the wages for the month been paid as required by the proviso ?............ (Underlining is ours.)It was ruled in Straw Board Mfg. Co. v. Govind ( AIR 1962 SC 1500 ) , that the proviso to S. 33 (2) (b) contemplates the three things mentioned therein, namely, (1) dismissal or discharge. Have the wages for the month been paid as required by the proviso ?............ (Underlining is ours.)It was ruled in Straw Board Mfg. Co. v. Govind ( AIR 1962 SC 1500 ) , that the proviso to S. 33 (2) (b) contemplates the three things mentioned therein, namely, (1) dismissal or discharge. (ii) payment of wages; and (iii) making of an application for approval, to be simultaneous and to be part of the same transaction, so that the employer when he takes the action under S. 33 (2) by dismissing or discharging an employee, should immediately pay him or offer to pay him wages for one month and also make an application to the tribunal for approval at the same time. It will be useful here to excerpt the following from Straw Board Mfg. Co.'s case (5) : "There can, therefore, be no doubt that sub S. 2(b) read together with the proviso contemplates that the employer may pass an order of dismissal or discharge before obtaining the approval of the action taken by him. It is however urged on behalf of the respondent that if the employer dismisses or discharges a workman and then applies for approval of the action taken and the tribunal refuses to approve of the action the workman would be left with no remedy as there is no provision for reinstatement in S. 33(2). We, however, see no difficulty on this score. If the tribunal does not approve of the action taken by the employer the result would he that the action taken by him would fall and thereupon the workman would be deemed never to have been dismissed or discharged and would remain in the service of the employer. In such a case, no specific provision as to reinstatement is necessary and by the very fact of the Tribunal not approving the action of the employer, the dismissal or discharge of the workman would be of no effect and the workman concerned would continue to be in service as if there never was any dismissal or discharge by the employer. In that sense the order of discharge or dismissal passed by the employer does not become final and conclusive until it is approved by the tribunal under section 33 (2)." The provisions of S. 33 A of the Act were also considered in the aforesaid decision. In that sense the order of discharge or dismissal passed by the employer does not become final and conclusive until it is approved by the tribunal under section 33 (2)." The provisions of S. 33 A of the Act were also considered in the aforesaid decision. Metal Press Works Ltd's case was considered in the aforesaid decision wherein it was held: "that payment of wages and the making of the application should be simultaneous with the order of discharge or dismissal. It has further been pointed out that the word 'simultaneously' must of course be taken reasonably and a notion of split-second timing should not be imported. It should be done at once and without delay, and it will depend upon the facts of each case whether the application has been made at once or without delay." In Poddar Mills's case (3), the provisions of S. 33 (2) (b) proviso came up for consideration. The question arose whether in the absence of any satisfactory proof as to payment of one month's wages to the dismissed employee, the approval can be granted or not? In that case, the workmen were ordered to be dismissed with immediate effect on January 4, 1968. The approval application for the dismissal of the workman was made before the Tribunal on January 25, 1968 and one month's wages as required under the Act were given to the women only on February 2, 1968. Their Lordships of the Supreme Court held that one of the essential requirements of the proviso to S. 32 (2) (b) of the Act was not satisfied and, as such, the order of the Tribunal dismissing the application was upheld. 8. Their Lordships of the Supreme Court held that one of the essential requirements of the proviso to S. 32 (2) (b) of the Act was not satisfied and, as such, the order of the Tribunal dismissing the application was upheld. 8. The scope of S. 33 (2) (b) of the Act was examined in (6) Lalla Ram v. D. C. M. Chemical Works, ( AIR 1978 SC 1004 ) , wherein it was held that the jurisdiction of the Industrial Tribunal is confined to the enquiry as to (i) whether a proper domestic enquiry in accordance with the relevant rules, Standing Orders and principles of natural justice has been held; (ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out; (iii) whether the employer had come to a bonafide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee, regard being had to the position settled by the Supreme Court that though generally speaking the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe yet an inference of malafides may in certain cases be drawn from the imposition of unduly harsh, severe. unconscionable or shockingly dis proportionable punishment. (iv) whether the employer has paid or offered to pay wages for one month to the employee: and (v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before with the main industrial dispute is pending for approval of the action taken by him. It was held that if these conditions are satisfied, the Industrial Tribunal would grant the approval which could relate back to the date from which the employer had ordered the dismissal. It was held that if these conditions are satisfied, the Industrial Tribunal would grant the approval which could relate back to the date from which the employer had ordered the dismissal. It was observed as under: "If, however, the domestic enquiry suffers from any defect or infirmity, the labour authority will have to find out on its own assessment of the evidence adduced before it whether there was justification for dismissal and if it so finds it, which would also relate back to the date when the order was passed provided the employer had paid or offered to pay wages for one month to the employee and the employer had within time applied to the authority before which the main industrial dispute is pending for approval of the action taken by him." (Emphasis supplied)The question whether the requirements contained in the proviso to Section. 33 (2) (b) of the Act are mandatory or not was examined by a learned Judge of the Bombay High Court in B. Lawrie and Co. v. W. B. More, 1981 (42) F. L. R. 272. It was observed therein as under: "The provisions of Section 33 (2) (b) have come to be considered by the Supreme Court as well as by the High Courts in a number of decided cases. The requirements contained particularly in the provision have been observed to be mandatory requirements and it has been further opined that the payment or tender of wages for one month and the application must be part and parcel of any transaction. Some decisions have indicated that an element of flexibility is permissible in considering that would constitute one transaction, but it is quite clear that compliance will have to be correlated with the immediate offer to make payment and the statements made in the application. The requirements postulated by the proviso can never be said to be complied with if the shortfall is either to be made good after being pointed out in the written statement." (Emphasis added) 9. Keeping in view the principles laid down by their Lordships of the Supreme Court in the aforesaid four decisions; L. K. Textile Mills's case, Straw Board Mfg. Co's case , Poddar Mills's case, Lalla Ram's case, and Metal Press Works Ltd's case which was approved in Straw Board Mfg. Keeping in view the principles laid down by their Lordships of the Supreme Court in the aforesaid four decisions; L. K. Textile Mills's case, Straw Board Mfg. Co's case , Poddar Mills's case, Lalla Ram's case, and Metal Press Works Ltd's case which was approved in Straw Board Mfg. Co's case and B. Lawrie and Co's case , we are of opinion that before an order for approval is passed, there must be a proper application before the Tribunal as envisaged by S. 33 (2) (b) proviso. In order that an application may be proper, it must comply with the conditions contained in the proviso to S. 33 (2) (b) of the Act. According to the proviso, the workman should not be discharged or dismissed until and unless he has been paid wages for one month and simultaneously an application is made by the employer before the authority for approval of the action taken by it. When an application is made in accordance with the proviso to S. 33 (2) (b) of the Act for approval of the action taken by the employer, then it has to hear the application without delay and is required to pass the order within a period of three months from the date of the receipt of such application. If the payment of wages for one month and filing of the application are not simultaneous, the authority concerned need not grant approval of the action taken by the employer. Fulfilment of the conditions viz., order of dismissal or discharge, payment of one month's wages and making of an application for approval should be simultaneous and part of the same transaction for granting of approval as held in Straw Board Mfg. Co.'s case. These are conditions precedent for dealing with an application for approval by the Tribunal and on fulfilment of the conditions, the approval after holding an enquiry if necessary, can be granted. 10. An argument was also raised that employee has been placed in a better position, for, if the employer does not apply under Section 33 (2) (b), he (workman) may apply under S. 33 A of the Act, and as such, it should he held that the fulfilment of the conditions as laid down in proviso to S. 33 (2) (b) of the Act need not be simultaneous. The argument seems to be attractive but it does not bear scrutiny, for, S. 33 A is a special provision for adjudication as to whether conditions of service etc. have been changed during the pendency of proceedings. This section entitles an employee to file a complaint when his or her employer had contravened the provisions of S. 33 of the Act. This is perhaps the only case in which a worker or an employee can come directly to the Court or approach the Tribunal without any reference being made by the Government. S. 33 A of the Act is attracted when the following conditions precedent are satisfied: (1) that there should have been contravention by the management concerned of the provisions of S. 33 of the Act. (2) that the contravention should have been during pendency of the proceedings before the Labour Court, Tribunal or National Tribunal as the case may be; (3) that the complaint should be aggrieved by the contravention. (4) that the application should be made to the Labour Court, Tribunal or National Tribunal in which the original proceeding, are pending. It is then provided by this section that the Labour Court, Tribunal or National Tribunal will adjudicate upon the dispute as if the same had been referred to it for adjudication, that is, like a reference mad. to it by the appropriate Govern merit subject to the other provisions of the Act. By this section, an employee aggrieved by a wrongful order passed against him in contravention of S. 33 is given a right to move the Tribunal for redress of his grievance without having, recourse to S. 10 of the Act. If the contention of the learned counsel for the petitioners is accepted that the fulfilment of the conditions laid down in the proviso, to S. 33 (2) (b) of the Act need not be simultaneous, then the employer can at any time file an application under S. 33 (2) (b) of the Act to avoid the proceedings S. 33 A of the Act, which cannot be said to be the object of the section. 11. In this case, the order (Annexure 1) of dismissal from service is dated July 12, 1974. 11. In this case, the order (Annexure 1) of dismissal from service is dated July 12, 1974. The application under S. 33 (2) (b) of the Act is dated July 17, 1974, which was received by registered post on November 27, 1974 by the Tribunal and the wages were sent by money order on July 17, 1974. So, the dismissal, payment of the wages and making of the application were not simultaneous and, therefore, as there was non-fulfilment of the conditions laid down in the proviso to S. 33 (2) (b) of the Act, the Tribunal, in our opinion, was right in declining to grant approval of the action taken by the petitioners. In view of the decisions of the Supreme Court in M/s Poddar. Mills Ltd's case, L. K. Textitle Mills's case, Straw Board Mfg. Co.'s case and Lalla Ram's case , we are of opinion that the view taken in Associated Cement Companies Ltd.'s case (Supra) is no longer good law, for, the order of dismissal, payment of wages and making of an application under S. 33 (2) (b) of the Act should be simultaneous and part of the same transaction and in this case, they were not simultaneous. We are unable to accept this contention of the learned counsel for the petitioners that they need not be simultaneous or that there was substantial compliance of the proviso to S. 33 (2) (b) of the Act. 12. It was next argued by the learned counsel for the petitioners that the order (Annexure-6) dated February 4. 1976 is bad and invalid and stands vitiated as respondent No. 1 (the Tribunal) had not heard the application for approval under S. 33 (2) (b) of the Act without delay and has not decided it within the period of three months from the date of the receipt of the application as provided in S. 33 (5) of the Act. This argument cannot be accepted for the reason that if the application is not in accordance with the provisions of S. 33 (2) (b). proviso then there is no proper application before the authority concerned so as to hear without delay and to decide the same within a period of three months from the date of its receipt. S. 33 (5) is attracted only when there is a proper application in accordance with S. 33 (2) (b) proviso. 13. proviso then there is no proper application before the authority concerned so as to hear without delay and to decide the same within a period of three months from the date of its receipt. S. 33 (5) is attracted only when there is a proper application in accordance with S. 33 (2) (b) proviso. 13. The upshot of the above discussion is that as the conditions precedent as laid down in S. 33 (2) (b) proviso were not satisfied and the application for approval was received by the Tribunal on November 27, 1974 much after passing of the order (Annexure-6) dated July 12, 1974 of dismissal from service of respondent No. 2 and one month's wages were sent by money order on July 17, 1974, the Tribunal was right in refusing the prayer made in the application for approval filed by the petitioners under S. 33 (2) (b) of the Act. 14. The petitioners are not entitled to any relief. 15. The writ petition is accordingly dismissed without any order as to costs.Petition dismissed. *******