ORDER Rama Jois, J.—In these three Writ Petitions presented against the Orders of the State Government refusing to refer the dispute relating to dismissal from service of each of the petitioners by the concerned management, for industrial adjudication, the following important question of law arises for consideration : Whether the decision of the Government not to refer a dispute between a workman of an industry and its management jo respect of imposition of penalty of dismissal or removal from service of the workman, on the ground that approval had been accorded to the order of dismissal by an order made by the Industrial Tribunal or Labour Court under Section 33 of the Industrial Disputes Act, is valid ? 2. The facts of the case, in brief, are as follows :- (i) W. P. No. 17184/80 : The Petitioners in this Writ Petition are the Mysore Lamp Works represented by the President of the Mysore Lamp Works Employees Association. One Shankar was an employee of the Mysore Lamp Works Limited. A disciplinary inquiry was instituted against him by the management of Mysore Lamp Works on the charge that he, who was a cook, was guilty of gross negligence of duty by putting considerable quantity of gunny thread in 'sambar' and 'rasam' meant for consumption by the workmen and as a result of this gross negligence, there was a big commotion and disturbance in the factory premises and the same lead to loss of production and loss of food stuffs. The Inquiring Officer nominated by the management held inquiry in accordance with the rules and recorded a finding to the effect that the said workman was guilty of the charge levelled against him. The said finding was accepted by the management and the order dated 2-4-1974 imposing the penalty of dismissal from service on the said Shankar was made. As certain industrial disputes between the work-men and management were pending before the Industrial Tribunal, an application under Section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) was filed before the Industrial Tribunal seeking its approval for the order of dismissal passed by the management against the said Shankar. As regards the validity of domestic enquiry, the Tribunal recorded a finding that the inquiry was held in conformity with the prescribed rules and the rules of natural justice, having regard to the fact that the same was conceded by the workmen. As regards the validity of domestic enquiry, the Tribunal recorded a finding that the inquiry was held in conformity with the prescribed rules and the rules of natural justice, having regard to the fact that the same was conceded by the workmen. The other objections raised by the workmen were :- (i) The holding of a joint inquiry with another workman was bad. (ii) The workman had been victimised. The above objections were considered in great detail by the Industrial Tribunal and by its order dated 31-1-1979 it rejected the contentions and accorded approval to the dismissal of the workman. Thereafter a dispute was raised by the workman before the Conciliation Officer. Notices were sent to the management and the matter was considered by the Conciliation Officer. The conciliation failed. There-after a report was sent to the State Government. The State Government considered the matter and issued an endorsement dated 23-2-1980 (Annexure-A) declining to refer the dispute for adjudication, The endorsement reads:- "With reference to the above subject, I am directed to state that Government consider that the dispute in question does not merit reference for adjudication for the reason that no prima facie case has been made out to show that the action taken by the management is unjustified". Aggrieved by the said order, the Petitioner has presented this Writ Petition. (ii) W. P. No. 12788/83 : The Petitioner in this Writ Petition was an employee of M/s. Bharat Electronics Ltd., (BEL for short), Bangalore. He joined the service of the BEL in the year 1955 as a Clerk. During 1976 he was working as a Senior Clerk and had put in about 21 years of service. Disciplinary proceedings were instituted against him by the management of BEL. The charge against him was that he was dishonest in his work and also in connection with the company's business in that, in the course of his employment he had not posted the purchases from the credit sheets to the Ledger in respect of some customers and in respect of some others, even though he had posted the purchases to the ledger, he did not include the names in the recovery statement. In the inquiry he was found guilty of the charge framed against him. Thereafter the management by its order dated 17-6-1976 imposed the penalty of dismissal from service against him. In the inquiry he was found guilty of the charge framed against him. Thereafter the management by its order dated 17-6-1976 imposed the penalty of dismissal from service against him. As on the said date certain industrial disputes were pending before the Tribunal an application under Section 33(2)(b) of the Act was filed by the management seeking approval of the Tribunal to the order of dismissal. The Tribunal after thorough examination of all the contentions urged by the Petitioner accorded approval to the order of dismissal passed by the BEL, The Petitioner preferred W. P. No. 6116 of 1976 before this Court questioning the legality of the order of the Tribunal under Section 33(2)(b) of the Act. The Writ Petition was dismissed and Writ Appeal No. 155 of 1981 preferred against the said order was also dismissed. Thereafter the Petitioner raised an industrial dispute before the Conciliation Officer functioning under the Act. The conciliation failed and a report to that effect was submitted to the State Government . On consideration of the records, the State Government declined to refer the dispute for industrial adjudication and issued an endorsement dated 20th April 1983. It reads:- " With reference to the above subject I am directed to state that Government consider that the dispute in question does not merit for reference for adjudication for the reason that the action taken by the management is fully justified ". Aggrieved by the said order, the Petitioner has preferred this Writ Petition. (iii) W. P. No. 3681 of 1984 : The Petitioner in this Writ Petition is an ex-employee of Bharat Earth Movers Ltd., (BEML for short). He joined the services of the BEML as Mechanic 'C' in 1960. Having been promoted to higher grades, in the year 1979 he was holding the post of A Grade Mechanic. Disciplinary proceedings were instituted against him on charges of habitual absence without leave or permission. An inquiring committee was constituted to hold inquiry into the charges levelled against the Petitioner. The Petitioner was found guilty of the charges framed against him. Thereafter as an industrial dispute was pending before the Industrial Tribunal, Bangalore, the management of BEML filed an application before the Tribunal under Section 33(2)(b) of the Act seeking its approval for the action taken by it. Approval was accorded by the Tribunal after holding that the domestic inquiry held was valid. Thereafter as an industrial dispute was pending before the Industrial Tribunal, Bangalore, the management of BEML filed an application before the Tribunal under Section 33(2)(b) of the Act seeking its approval for the action taken by it. Approval was accorded by the Tribunal after holding that the domestic inquiry held was valid. Thereafter the Petitioner raised a dispute before the Conciliation Officer. The conciliation failed and thereafter a report was sent to the Government. On consideration of the records the State Government issued an endorsement dated 26-1-1984 (Annexure-B). It reads:- "With reference to the above subject, I am directed to state that Government consider that the dispute in question has no prima facie case for reference for adjudication for the reason that the workman was not given an opportunity to defend himself is not correct. The allegation of the workman that the punishment given by the management is too harsh and is highly disproportionate is also not correct, since the Industrial Tribunal has heard both the parties and has accorded approval of the action taken by the management". Aggrieved by the said order, the Petitioner has presented this Writ Petition. Original records of the Government which culminated in the issue of the three endorsements have been produced. Relevant portions of those records (extracted later) indicate that the decision of the Government not to refer the disputes for adjudication was based on the order made by the Tribunal under Section 33(2)(b) of the Act according approval to the order of dismissal in the case of each of the Petitioners. 3. The submission made by the Learned Counsel for the Petitioners in the three Petitions are similar and may be summarised as follows. Section 2A read with Section 11A of the Act creates a right to a remedy to workmen as against orders imposing the penalty of dismissal or removal from service. The fact that an order of dismissal had been approved by an order of the Industrial Tribunal under Section 33(2)(b) of the Act, constitutes no basis for refusing to refer the dispute for industrial adjudication. The fact that an order of dismissal had been approved by an order of the Industrial Tribunal under Section 33(2)(b) of the Act, constitutes no basis for refusing to refer the dispute for industrial adjudication. A finding recorded in an order made under Section 33(2)(b) of the Act does not operate as res judicata in a proceeding under Section 10 of the Act and, therefore, the entire matter would be at large for consideration by the Labour Court or the Industrial Tribunal, as the case may be, on such disputes being referred for adjudication under Section 10 of the Act. In particular, while according approval under Section 33(2)(b) of the Act, the Labour Court or the Industrial Tribunal or the Conciliation Officer, as the case may be, is required to accord approval, only on the prima facie examination of the case and not after in depth examination. In any event, Section 11A of the Act confers jurisdiction on the Labour Court or the Industrial Tribunal, as the case may be, not only to reappreciate the evidence and to find out as to whether the finding recorded in the domestic inquiry was justified or not, and if not to record a finding of exoneration but it has also the jurisdiction to decide, even if the finding recorded in the domestic inquiry was found to be valid and based on evidence on record, as to whether the imposition of the penalty of dismissal or removal from service was justified having regard to the gravity of the charge, and if it is found to be harsh to substitute it by a lesser penalty. Therefore the fact that the approval has been accorded to the order of dismissal by the Tribunal by an order made by it under Section 33(2)(b) of the Act constitutes no relevant basis for refusing to refer the dispute for adjudication. 4. Therefore the fact that the approval has been accorded to the order of dismissal by the Tribunal by an order made by it under Section 33(2)(b) of the Act constitutes no relevant basis for refusing to refer the dispute for adjudication. 4. As against the plea of the Petitioners, the stand taken on behalf of the State Government is as follows : The jurisdiction of the Tribunal or Labour Court under Section 33 of the Act and the nature of inquiry which they are required to hold in a proceeding arising under that Section, on an application by an employer seeking prior permission or subsequent approval to the imposition of the penalty of dismissal from service against his workman and their jurisdiction in deciding a reference under Section 10 of the Act in which the dispute is as to the justification for the imposition of penalty of dismissal from service is, having regard to the several pronouncements of the Supreme Court, are similar, except the additional powers conferred under Section 11A of the Act on the Labour Court or the Tribunal in deciding a dispute concerning the imposition of the penalty of dismissal or removal from service. Therefore, if in a proceeding under proviso to Section 33 of the Act, the Labour Court or Industrial Tribunal, as the case may be holds that the domestic inquiry held by the management is invalid and the matter is inquired into by the Labour Court or Industrial Tribunal itself and approval is accorded, the said circumstance constitutes a very valid and relevant ground for the State Government to decide as to whether the dispute should be referred for adjudication or not. Similarly, in cases where the validity of the domestic inquiry, is not at all contested by the workman in a proceeding under Section 33(2)(b) of the Act or upheld after contest and thereafter approval is accorded to the dismissal from service of the workman, the order so made constitutes relevant ground to decide as to whether the dispute should be referred for adjudication or not. In these three Petitions, the validity of the domestic inquiry had been upheld and it is only thereafter the Tribunal accorded its approval to the order of dismissal against each of the work-men. In these three Petitions, the validity of the domestic inquiry had been upheld and it is only thereafter the Tribunal accorded its approval to the order of dismissal against each of the work-men. In the reports sent to the Government by the Labour Commissioner and by the Conciliation Officer, they also opined that in view of the approval of the order of dismissal by the Tribunal, these were not fit cases for reference for industrial adjudication. On consideration of these records, the State Government decided that there was justification to refer the dispute for industrial adjudication. Accordingly, the impugned endorsements were issued. The decision of the State Government is in accordance with law and there is no ground for interference. 5. In view of the above contention, the question set out first arises for consideration. 6. Learned Counsel for the Petitioners contended that an industrial dispute concerning the imposition of penalty of dismissal or removal from service of a workman falls into a special category after Sections 2A and 11A were incorporated into the Act and in view of those provisions the Act conferred a right to a remedy to a dismissed workman, though a formal order of reference was necessary and, therefore, it was obligatory for the Government to refer such disputes for adjudication. In support of this submission, they relied on the Judgments of this Court in Hariba -v.- K.S.R.T.C 1983 (1) K.L.J. 261 and Basavaraj -v.- The Secretary to Government, W.P. 41290 of 1982. Date. 9-8-1983 In the case of Hariba, two questions arose for consideration, namely-(l) whether Section 10 of the Act provided a remedy to a dismissed workman ; and (2) if so, whether it was appropriate to entertain a Writ Petition under Article 226 of the Constitution against an order of dismissal of a workman of a Statutory Corporation. The first question was answered in the affirmative and the second in the negative. Relevant portions of the judgment reads : - "11. The first question was answered in the affirmative and the second in the negative. Relevant portions of the judgment reads : - "11. Apart from this even from the point of view of the workman, the remedy provided under Section 10 of the Act is certainly a "better and more effective remedy, in that the workman also would have full opportunity of adducing rebuttal evidence before the Industrial Court and would have the benefit of an independent Judicial Officer of the rank of a District Judge to appreciate the evidence on record a finding instead of a person appointed by the management to hold an inquiry. Further, even if the workman is found guilty of the charge framed against him, in view of the wide powers conferred under Section 11-A of the Act on the Industrial Court presided over by a Judicial Officer, he would have the benefit of adjudication even regarding the Quantum of penalty as that would also be scrutinised judicially and if the Industrial Court comes to the conclusion that the penalty imposed in a given case is disproportionate to the gravity of the charge proved, it could modify the penalty. Thus both from the point of view of having an opportunity of proving the innocence of workman as also on the question of convincing the Industrial Court that the penalty imposed was disproportionate to the gravity of the charge, the workman concerned would have very effective opportunity before the Industrial Court. x x 12.As far as the point raised by the Learned Counsel for the petitioner that Section 10 of the Act is no remedy as it depends upon whether or not the Government makes a reference, the question is not resintegra. In the case of The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, AIR 1975 SC 2238 the Supreme Court considered a similar objection and said thus - " ...It is also true that it was not open to the workman concerned to approach the Labour Court or the Tribunal directly for adjudication of the dispute. It is further well established on the authorities of this Court that the Government under certain circumstances even on the ground of expediency (Vide State of Bombay Vs. K.P. Krishnan and Others, AIR 1960 SC 1223 and Bombay Union Of Journalists -V.- State Of Bombay (AIR 1963 SC 1617) can refuse to make a reference. It is further well established on the authorities of this Court that the Government under certain circumstances even on the ground of expediency (Vide State of Bombay Vs. K.P. Krishnan and Others, AIR 1960 SC 1223 and Bombay Union Of Journalists -V.- State Of Bombay (AIR 1963 SC 1617) can refuse to make a reference. If the refusal is not sustainable in law, appropriate directions can be issued by the High Court in exercise of its writ jurisdiction. But it does not follow from all this that the remedy provided under the Act is a misnomer. Reference of industrial disputes for adjudication in exercise of the power of the Government under Section 10(1) is so common that it is difficult to call the remedy a misnomer or insufficient or inadequate for the purpose of enforcement of the right or liability created under the Act. The remedy Suffers from some handicap but is well compensated on the making of the reference by the wide powers of the Labour Court or the Tribunal. The handicap leads only to this conclusion that for adjudication of an industrial dispute in connection with a right or obligation under the general or common law and not created under the Act, the remedy is not exclusive. It is alternative. But surely for the enforcement of bright or an obligation under the Act the remedy provided uno flatu in it is the exclusive remedy. The legislature in its wisdom did not thick it fit and proper to provide a very easy and smooth remedy for, enforcement of the rights and obligation created under the Act. Persons wishing the enjoyment of such rights and wanting its enforcement must rest content to secure the remedy provided by the Act. The possibility that the Government may not ultimately refer an industrial dispute under Section 10 on the ground of expediency is not a relevant consideration in this regard ". 16. The result of the discussion may be summed up as follows : Whenever a workman employed in an industry is dismissed or removed from service and the workman desires to challenge the legality of such action of the management of an industry, on grounds of violation of procedure, as regulated by the prescribed rules or rules of natural justice, the workman should resort to the remedy available under Section 10 of the Industrial Disputes Act." (Underlined by me) 7. In the case of Basavaraj, the question for consideration was, whether the Government was justified in refusing to refer the dispute between Basavaraj, a dismissed workman of the K S.R.T.C. and the K.S.R.T.C., on the ground that in the opinion of the Government, the inquiry held was proper and legal and the punishment imposed was also proper. It was held, that the Government, was not justified in deciding those questions as they lay within the jurisdiction of the Labour Court or Tribunal and refusing to refer the dispute. Relevant portion of that order reads :- "6. It should be pointed out that particularly after the introduction of Sections 2-A and II-A into the I.D Act. in all cases where a work-man complains that he has been illegally dismissed from service, he has the right to have the master adjudicated by the Labour Court though a formal reference order by the State Government under Section 10 read with Section 12 of the I. D. Act is necessary. (See : Hariba Vs. K.S.R.T.C., (1983) 2 LLJ 76 Kant. The very intent and purpose of introducing Section 2-A as is evident from its wording, is to provide a remedy to a workman under the L.J. Act dispensing with the necessity of his case being sponsored by a Trade Union or by substantial number of workmen. Section 11-A is intended to take care of cases in which penalty of removal from service is found to be harsh or excessive i.e., highly disproportionate to the gravity of the charge proved. For a dismissed workman, that is the only efficacious and cheap remedy provided for by law, either to have the punishment set aside or at least to have it reduced at the hands of the Labour Court, if they could make out a case to secure such an order. This right for a remedy cannot be denied or scuttled by rejecting to make the reference." 8. This right for a remedy cannot be denied or scuttled by rejecting to make the reference." 8. Learned Counsel for the Government and the concerned employer submitted that they had no quarrel with the proposition laid down in the aforesaid cases, but they said that the proposition holds good to all cases in which a workman was dismissed or removed from service and in which there had been no prior permission or subsequent approval accorded by the Labour Court, Tribunal, or Conciliation Officer, as the case may be, on an application made to any one of them under Section 33 of the Act. They maintained that in cases where there has been an order according permission or approval to the order of dismissal by the Industrial Tribunal or Labour Court and that circumstance is relied on by the Government and a decision is taken not to refer the dispute, such an order cannot be termed arbitrary or based on irrelevant consideration, as in such a case the Government would not be deciding the question as to whether the penalty imposed was valid, but only be basing its decision on the quasi judicial order made by the Labour Court, or Tribunal upholding the penalty of dismissal or removal from service of the concerned workman and therefore such a decision of the Government would be valid and could not be interfered with. 9. As against the above submission, the Learned Counsel for the Petitioners, maintained that a case of dismissal of a workman whose dismissal was permitted by an order made under Section 33(1)(b) or approved by an order made under Section 33(2)(b) of the Act, did not stand on a different footing than the case of a workman, who was dismissed from service by an order of the management, during the period when the restrictions imposed under either Section 33(1) or 33(2)(b) of the Act were not applicable, for the following reasons : - (i) The Tribunal or Labour Court or Conciliation Officer in according permission or approval, has the power to examine only as to whether a prismatic case was made out by the management for imposing the penalty. (ii) The findings recorded in a proceeding under Section 33(2)(b) of the Act does not operate as res judicata in a proceeding under Section 10 of the Act. (ii) The findings recorded in a proceeding under Section 33(2)(b) of the Act does not operate as res judicata in a proceeding under Section 10 of the Act. (iii) It is well settled by long line of decisions that a dispute, under Section 10 can be raised even though the order of dismissal had been made with prior permission or it had subsequent approval. (iv) Jurisdiction of the Labour Court or Tribunal under Section 10 of the Act read with Section 11A of the Act is much wider, in that (a) they can reappreciate the evidence and arrive at a finding different from the one recorded in the domestic inquiry, and (b) they can examine the justness of the penalty imposed and substitute the penalty of dismissal or removal from service by a lesser penalty. and these two powers are not available to them in proceedings under Section 33 of the Act. 10. The legal position as above, in the matter of jurisdiction of the Labour Court or Industrial Tribunal while exercising power under Section 33 and Section 10 of the Act is not in controversy. The stand taken by the Government and the managements, however, was, not that it was not competent for the Government to refer the dispute concerning dismissal from service of a workman for adjudication under Section 10 of the Act if it had been permitted or approved by an order made under Section 33 of the Act. But their stand is that if the Government decides not to refer a dispute on consideration of the order made by the Tribunal or Labour Court, according permission or approval to the order of dismissal or removal from service of a workman under Section 33 of the Act, such a decision of the Government cannot be set aside, as such ground on which the decision rests is relevant and valid. 11. Before proceeding to consider the rival contentions, it is necessary to set out the relevant portions of the records, which culminated in the issue of the impugned orders ; A. In W.P. 17184/80 (i) The report of the Conciliation Officer reads - "IDA/SR/13/79-80 Office of the Assistant Commissioner, Division I, Bangalore Dated : 7th December, 1979. To The Commissioner and Secretary to the Government, Social Welfare and Labour Department, Vidhana Soudha, Bangalore. To The Commissioner and Secretary to the Government, Social Welfare and Labour Department, Vidhana Soudha, Bangalore. Sir, Subject : Industrial Dispute between the workmen and the management of Mysore Lamp Works Ltd., Bangalore regarding alleged illegal dismissal of Sri Shankar. In continuation of my factual report of even number date, reporting failure of conciliation held in respect of subject dispute, I write to render my confidential report on the merits of the case as under. Sri Shankar, a worker in the canteen of Mysore Lamp Works Ltd. was charged with the misconduct of mixing 'Naru' in the Sumbar prepared in the canteen. A charge sheet was issued, and an enquiry was held, he was found guilty, and was dismissed by the management from service w.e.f. 2-4-76. A Section 33(2)(b) application was filed before the Industrial Tribunal, Bangalore, by the management for approval of the action taken because of a pendency before the Tribunal. The Tribunal after thoroughly examining the case, approved the action of the management on 31-1-79. The Union raised the dispute on 9th April, 1979. The Union contends that there is no bar in raising a dispute even after the approval is given. This is true. But during this approval application hearing it was agreed that the enquiry was in accordance with principles of natural justice and a record to that effect was caused to be made also in that case. It has been held in that case that the findings of the enquiry officer were not perverse, the action of the management could not be held as that of victimisation etc., Thus with the acquiescence of the parties, the case has been thoroughly examined and decision again. And so I feel that there is no necessity of going through that exercise again by a reference of this dispute to the adjudicator. Therefore this dispute may be rejected with a suitable endorsement under Section 12(5) of industrial Disputes Act, 1947. Proforma duly filled in is enclosed. Yours faithfully, Sd/- K.R. Shankaranarayana Rao, Assistant Labour Commissioner, Bangalore Division I, Bangalore." (Underlined by me) (ii) The report of the Commissioner of Labour reads - A copy of the Confidential Report bearing No. IDA/SR-13/79-80 dated 7-12-79 together with its enclosures received from the Assistant Labour Commissioner and Conciliation Officer, Bangalore is sent herewith. Proforma duly filled in is enclosed. Yours faithfully, Sd/- K.R. Shankaranarayana Rao, Assistant Labour Commissioner, Bangalore Division I, Bangalore." (Underlined by me) (ii) The report of the Commissioner of Labour reads - A copy of the Confidential Report bearing No. IDA/SR-13/79-80 dated 7-12-79 together with its enclosures received from the Assistant Labour Commissioner and Conciliation Officer, Bangalore is sent herewith. I agree with the opinion that the dispute does not merit reference to adjudication as expressed by the Conciliation Officer in the Confidential Report referred to above and request that an endorsement to the parties as required under Section 12(5) of the Industrial Disputes Act, 1947, may be issued. Yours faithfully, Sd/- for Commissioner of Labour" It is on the above basis, the decision not to refer the dispute was taken and the impugned endorsements, extracted earlier was issued. B. In W.P. No. 12788/83 (1) The report of the Conciliation Officer reads:- Sub : Industrial dispute between the Workman and the Management of M/s. Bharat Electronics Ltd., Bangalore, regarding alleged illegal termination of services of Sri K. Venkataramaiah, w.e.f. 17-7-1976. Sri K. Venkataramaiah, was working in M/s. Bharat Electronics Ltd., Bangalore, as Senior Clerk. He was appointed as 'B' Grade Clerk in October 1960. At the time of dismissal he was working as Senior Clerk and was in charge of posting credit sheets of BEL Cooperative Society. His duty was to post entries into the ledger against the names of the Worker member of the Society on purchases made by them on credit. In actuality, this job was to ensure regular deductions from the salary of the workers of M/s. B.E.L. That means to safeguard the interest and finances of the Company. The Company has given all physical help to the society by giving place, furniture, credit facilities and also employees to run the workers cooperative society. This worker while doing duty as Senior Clerk was dishonest so the Management by not posting credit slips to the ledger thereby duping the workers and the Management. There was the expenditure but these were not properly realised. This is a great misconduct never to be pardoned. The point here is he has duped and cheated his fellow workers of their hard earned money and also was dishonest to the employer. The purpose of his posting was to safeguard the Company's properties and finances. There was the expenditure but these were not properly realised. This is a great misconduct never to be pardoned. The point here is he has duped and cheated his fellow workers of their hard earned money and also was dishonest to the employer. The purpose of his posting was to safeguard the Company's properties and finances. The very purpose of his posting was defeated and for his cunningness and misconduct the Management has rightly punished him. But before punishing him he was given all opportunities to defend his case and disprove the charges against him. This matter has even been thoroughly dealt in by the Industrial Tribunal, High Court and also Divisional Bench of High Court. All have rejected his plea. No doubt this does not bar him from raising a dispute before me, but I also did not take this as an added support to my opinion expressed here. I went to the Factory inspected the records and registers wherein his handwriting was there and was fully convinced about the illegal act committed by this worker. He even wanted to misguide me by quoting a case law which was irrelevant to his case and hence, that has not been taken cognisance off. In view of my above findings on the case at hand, I recommend for rejection of the dispute from reference. Hence, I request for necessary endorsement to be issued to the parties concerned. Yours faithfully, Sd/- Gurudas M. Bhat, Assistant Labour Commissioner, Bangalore Division I, Bangalore. " (Underlined by me) (ii) The report of the Labour Commissioner reads :- A Copy of the Confidential Report No. IDA/SR-18/82-83, dated 2-2-1983 together with its enclosures received from the Assistant Labour Commissioner and Conciliation Officer, Bangalore Division-I, Bangalore is sent herewith. I agree with the opinion that the disputes does not merit reference to adjudication as expressed by the Conciliation Officer in the Confidential Report referred to above and request that an endorsement to the parties as required under Section 12(5) of the Industrial Disputes Act, 1947 may be issued. Yours faithfully, Sd/- For Commissioner of Labour in Karnataka, Bangalore." It is on the basis of the above report the Government took its decision and issued the impugned endorsements in the petition. Yours faithfully, Sd/- For Commissioner of Labour in Karnataka, Bangalore." It is on the basis of the above report the Government took its decision and issued the impugned endorsements in the petition. C. In W.P. No. 3621/84 : (i) The report of the Conciliation Officer reads : Sub: Industrial dispute between the workman and the management of Bharat Earth Movers Ltd., KGF Regarding Termination of the Services of Sri M. Rajanna, Ex. S. No. B 511-05727 w. e. f. 18-6-1980. With reference to the above subject, the Conciliation Report has been submitted vide this office letter of even number dated 27-10-1983. Now, I am submitting my confidential report as hereunder : Sri M. Rajanna raised an industrial dispute under Section 2A of the Industrial Disputes Act, 1947, through his letter dated 13-11-1982. The said matter was admitted in conciliation and several joint meetings and conciliation meeting were held and ultimately the dispute was treated as failed on 3-10-1983 as the Management was very firm in its stand as taken in letter dated 22-12-1982. In this dispute, the workman has raised only one issue, i.e. termination of his services by the management of Bharat Earth Movers Ltd., K.G.F. Kolar by their Order dated 18th June 1980. On this issue, the stand taken by the parties to the dispute are narrated in detail, in my factual report. On perusal of the documents filed by the management, it can be seen that the workman has been given punishments not less than seven times for the unauthorised absence on several occasions. Even for the eighth time of the offence, the management served a notice of enquiry and appointed an Enquiry Officer, also. Even though the workman has received the communication from the enquiry committee, he has failed to participate in the enquiry proceedings. Therefore the Enquiry Officer was forced to conduct enquiry exparte. The management has filed an application before the Hon'ble Tribunal, Bangalore, also for approval of the action taken by them. The Hon'ble Industrial Tribunal after hearing the parties, has accorded approval for the action proposed by the management. Therefore, the allegations of the workman that he was not given an opportunity to defend himself is not correct. The management has filed an application before the Hon'ble Tribunal, Bangalore, also for approval of the action taken by them. The Hon'ble Industrial Tribunal after hearing the parties, has accorded approval for the action proposed by the management. Therefore, the allegations of the workman that he was not given an opportunity to defend himself is not correct. In view of the several punishments given to him on account of the unauthorised absence, the allegation of the workman that the punishment given by the management is too harsh and is highly disproportionate, is also not correct. In view of the above circumstances, I am of the opinion that this is not a fit case for reference. Therefore, ah endorsement accordingly may kindly be issued to the workman. Other particulars of the dispute are also furnished in the prescribed proforma which is herewith enclosed. Yours faithfully, Sd/- S. Daniel Sathyaveera, Asst. Labour Commissioner and Conciliation Officer, Bangalore Division - II," Bangalore." (Underlined by me) (ii) The report of the Labour Commissioner reads - A copy of the Confidential Report No. ID/SR-8/83-84 dated 27-10-1983 together with its enclosures received from the Assistant Labour Commissioner and Conciliation Officer, Bangalore Division-II, Bangalore is sent herewith. I agree with the opinion that the dispute does not merit reference to adjudication as expressed by the Conciliation Officer in the Confidential Report referred to above and request that an endorsement to the parties as required under Section 12(5) of the Industrial Disputes Act, 1947, may be issued. Yours faithfully, Sd/- for Commissioner of Labour in Karnataka, Bangalore." It is on the basis of the above reports the Government took its decision and issued the impugned endorsement. 12. I shall now proceed to consider the validity of the rival submissions. Yours faithfully, Sd/- for Commissioner of Labour in Karnataka, Bangalore." It is on the basis of the above reports the Government took its decision and issued the impugned endorsement. 12. I shall now proceed to consider the validity of the rival submissions. "Section 33 of the Act reads - "CONDITIONS OF SERVICE, etc, TO REMAIN UNCHANGED UNDER CERTAIN CIRCUMSTANCES DURING PENDENCY OF PROCEEDINGS - (i) During the pendency of any conciliation proceeding before an Arbitrator or a Conciliation Officer or a Board or of any proceeding before a Labour Court or Tribunal or National Tribunal in respect of an Industrial Dispute, no employer shall (a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding ; or (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending. (2) During the pendency of any such proceeding in respect of an Industrial Dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute, or where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman, (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the 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. (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, as expeditiously as possible, such order in relation thereto as it deems fit." The scope of the powers and jurisdiction of the Industrial Tribunal and the Labour Court under Section 33 of the Act has been expounded in the following decisions of the Supreme Court : (i) Mckenzie and Co. Ltd. Vs. Its Workmen and Others, AIR 1959 SC 389 (ii) Central Bank of India Ltd. Vs. Prakash Chand Jain, AIR 1969 SC 983 (iii) Delhi Cloth and General Mills Co. Vs. Ludh Budh Singh, AIR 1972 SC 1031 (iv) Lalla Ram Vs. Management of D.C.M. Chemical Works Ltd. and Another, AIR 1978 SC 1004 (v) Shambhu Nath Goyal Vs. Bank of Baroda and Others, AIR 1984 SC 289 I shall set out the relevant paragraphs of the Judgment in the case of Delhi Cloth and General Mills Co.,5 which arose out of proceedings under Section 33 of the Act and in which the earlier decisions have been referred to and reiterated. They read- " 21. Before we proceed to deal with the contentions of Mr. Anand, it is necessary to state the law regarding the nature of the jurisdiction exercised by a Tribunal in dealing with an application under Section 33 of the Act. We had occasion to deal with a similar aspect in Delhi Cloth & General Mills Co., -v.- Ganesh Dutt, C.A. No. 982 of 1967, D/- 17-12-1971 41 FJR 4(SC). It was observed therein : "The nature of the jurisdiction exercised by an Industrial Tribunal in such circumstances is a very limited one and it has been laid down by several decisions of this Court. 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, should give the permission asked for 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. [Vide The Punjab National Bank Ltd. Vs. Its Workmen, AIR 1960 SC 160 ; Bharat Sugar Mills Ltd. Vs. [Vide The Punjab National Bank Ltd. Vs. Its Workmen, AIR 1960 SC 160 ; Bharat Sugar Mills Ltd. Vs. Shri Jai Singh and Others, AIR 1961 SC 1183 ; Management of Ritz Theatre (P) Ltd. Vs. Its Workmen, AIR 1963 SC 295 and Mysore Steel Works -v.- Jitender Chandra Kar (1971) I LLJ 543 (SC)]. 22. In Martin Burn Ltd. Vs. R.N. Banerjee, AIR 1958 SC 79 , it has been laid down that once an Industrial Tribunal is satisfied that the conclusion arrived at by the Enquiry Officer, on the evidence led before it, is a possible one. The Tribunal has no jurisdiction to substitute its own judgment for the judgment of the Enquiry Officer, though the Tribunal may itself have arrived at a different conclusion on the same materials. 23.It has been further laid down in The Lord Krishna Textile Mills Vs. Its Workmen, AIR 1961 SC 860 , as follows : 'It is well known that the question about the adequacy of evidence or its sufficiency or satisfactory character can be raised in a court of facts and may fall to be considered by an Appellate Court which is entitled to consider facts; but these considerations are irrelevant where the jurisdiction of the Court is limited as under Section 33(2)(b). It is conceivable that even in holding an enquiry under Section 33(2)(b) if the authority is satisfied that the finding recorded at the domestic enquiry is perverse in the sense that it is not justified by any legal evidence whatever, only in such a case it may be entitled to consider whether approval should be accorded to the employer or not ; but it is essential to bear in mind the difference between a finding which is not supported by any legal evidence and a finding which may appear to be not supported by sufficient or adequate or satisfactory evidence' 24. We may also refer to the decision in Central Bank of India Ltd. Vs. Prakash Chand Jain, AIR 1969 SC 983 , where alter a reference to the principles laid down in The Lord Krishna Textile Mills Vs. Its Workmen, AIR 1961 SC 860 , it has been pointed out that the test of perversity of a finding recorded by a Tribunal or an Enquiry Officer will be that the said finding is not supported by any legal evidence at all. Its Workmen, AIR 1961 SC 860 , it has been pointed out that the test of perversity of a finding recorded by a Tribunal or an Enquiry Officer will be that the said finding is not supported by any legal evidence at all. It has been further pointed out that finding recorded by a domestic Tribunal like an Enquiry Officer will also be held to be perverse in those cases where the finding arrived at by the Domestic Tribunal is one, which no reasonable person could have arrived at on the material before it. The position was summed up by this Court in the said decision as follows : 'Thus, there are two cases where the findings of a domestic tribunal like the Enquiry Officer dealing with disciplinary proceedings against a workman can be interfered with, and these two are cases in which the findings are not based on legal evidence or are such as no reasonable person could have arrived at on the basis of the material before the Tribunal, In each of these cases the findings are treated as perverse. ORDER Rama Jois, J.—In these three Writ Petitions presented against the Orders of the State Government refusing to refer the dispute relating to dismissal from service of each of the petitioners by the concerned management, for industrial adjudication, the following important question of law arises for consideration : Whether the decision of the Government not to refer a dispute between a workman of an industry and its management jo respect of imposition of penalty of dismissal or removal from service of the workman, on the ground that approval had been accorded to the order of dismissal by an order made by the Industrial Tribunal or Labour Court under Section 33 of the Industrial Disputes Act, is valid ? 2. The facts of the case, in brief, are as follows :- (i) W. P. No. 17184/80 : The Petitioners in this Writ Petition are the Mysore Lamp Works represented by the President of the Mysore Lamp Works Employees Association. One Shankar was an employee of the Mysore Lamp Works Limited. 2. The facts of the case, in brief, are as follows :- (i) W. P. No. 17184/80 : The Petitioners in this Writ Petition are the Mysore Lamp Works represented by the President of the Mysore Lamp Works Employees Association. One Shankar was an employee of the Mysore Lamp Works Limited. A disciplinary inquiry was instituted against him by the management of Mysore Lamp Works on the charge that he, who was a cook, was guilty of gross negligence of duty by putting considerable quantity of gunny thread in 'sambar' and 'rasam' meant for consumption by the workmen and as a result of this gross negligence, there was a big commotion and disturbance in the factory premises and the same lead to loss of production and loss of food stuffs. The Inquiring Officer nominated by the management held inquiry in accordance with the rules and recorded a finding to the effect that the said workman was guilty of the charge levelled against him. The said finding was accepted by the management and the order dated 2-4-1974 imposing the penalty of dismissal from service on the said Shankar was made. As certain industrial disputes between the work-men and management were pending before the Industrial Tribunal, an application under Section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) was filed before the Industrial Tribunal seeking its approval for the order of dismissal passed by the management against the said Shankar. As regards the validity of domestic enquiry, the Tribunal recorded a finding that the inquiry was held in conformity with the prescribed rules and the rules of natural justice, having regard to the fact that the same was conceded by the workmen. The other objections raised by the workmen were :- (i) The holding of a joint inquiry with another workman was bad. (ii) The workman had been victimised. The above objections were considered in great detail by the Industrial Tribunal and by its order dated 31-1-1979 it rejected the contentions and accorded approval to the dismissal of the workman. Thereafter a dispute was raised by the workman before the Conciliation Officer. Notices were sent to the management and the matter was considered by the Conciliation Officer. The conciliation failed. There-after a report was sent to the State Government. Thereafter a dispute was raised by the workman before the Conciliation Officer. Notices were sent to the management and the matter was considered by the Conciliation Officer. The conciliation failed. There-after a report was sent to the State Government. The State Government considered the matter and issued an endorsement dated 23-2-1980 (Annexure-A) declining to refer the dispute for adjudication, The endorsement reads:- "With reference to the above subject, I am directed to state that Government consider that the dispute in question does not merit reference for adjudication for the reason that no prima facie case has been made out to show that the action taken by the management is unjustified". Aggrieved by the said order, the Petitioner has presented this Writ Petition. (ii) W. P. No. 12788/83 : The Petitioner in this Writ Petition was an employee of M/s. Bharat Electronics Ltd., (BEL for short), Bangalore. He joined the service of the BEL in the year 1955 as a Clerk. During 1976 he was working as a Senior Clerk and had put in about 21 years of service. Disciplinary proceedings were instituted against him by the management of BEL. The charge against him was that he was dishonest in his work and also in connection with the company's business in that, in the course of his employment he had not posted the purchases from the credit sheets to the Ledger in respect of some customers and in respect of some others, even though he had posted the purchases to the ledger, he did not include the names in the recovery statement. In the inquiry he was found guilty of the charge framed against him. Thereafter the management by its order dated 17-6-1976 imposed the penalty of dismissal from service against him. As on the said date certain industrial disputes were pending before the Tribunal an application under Section 33(2)(b) of the Act was filed by the management seeking approval of the Tribunal to the order of dismissal. The Tribunal after thorough examination of all the contentions urged by the Petitioner accorded approval to the order of dismissal passed by the BEL, The Petitioner preferred W. P. No. 6116 of 1976 before this Court questioning the legality of the order of the Tribunal under Section 33(2)(b) of the Act. The Writ Petition was dismissed and Writ Appeal No. 155 of 1981 preferred against the said order was also dismissed. The Writ Petition was dismissed and Writ Appeal No. 155 of 1981 preferred against the said order was also dismissed. Thereafter the Petitioner raised an industrial dispute before the Conciliation Officer functioning under the Act. The conciliation failed and a report to that effect was submitted to the State Government . On consideration of the records, the State Government declined to refer the dispute for industrial adjudication and issued an endorsement dated 20th April 1983. It reads:- " With reference to the above subject I am directed to state that Government consider that the dispute in question does not merit for reference for adjudication for the reason that the action taken by the management is fully justified ". Aggrieved by the said order, the Petitioner has preferred this Writ Petition. (iii) W. P. No. 3681 of 1984 : The Petitioner in this Writ Petition is an ex-employee of Bharat Earth Movers Ltd., (BEML for short). He joined the services of the BEML as Mechanic 'C' in 1960. Having been promoted to higher grades, in the year 1979 he was holding the post of A Grade Mechanic. Disciplinary proceedings were instituted against him on charges of habitual absence without leave or permission. An inquiring committee was constituted to hold inquiry into the charges levelled against the Petitioner. The Petitioner was found guilty of the charges framed against him. Thereafter as an industrial dispute was pending before the Industrial Tribunal, Bangalore, the management of BEML filed an application before the Tribunal under Section 33(2)(b) of the Act seeking its approval for the action taken by it. Approval was accorded by the Tribunal after holding that the domestic inquiry held was valid. Thereafter the Petitioner raised a dispute before the Conciliation Officer. The conciliation failed and thereafter a report was sent to the Government. On consideration of the records the State Government issued an endorsement dated 26-1-1984 (Annexure-B). It reads:- "With reference to the above subject, I am directed to state that Government consider that the dispute in question has no prima facie case for reference for adjudication for the reason that the workman was not given an opportunity to defend himself is not correct. It reads:- "With reference to the above subject, I am directed to state that Government consider that the dispute in question has no prima facie case for reference for adjudication for the reason that the workman was not given an opportunity to defend himself is not correct. The allegation of the workman that the punishment given by the management is too harsh and is highly disproportionate is also not correct, since the Industrial Tribunal has heard both the parties and has accorded approval of the action taken by the management". Aggrieved by the said order, the Petitioner has presented this Writ Petition. Original records of the Government which culminated in the issue of the three endorsements have been produced. Relevant portions of those records (extracted later) indicate that the decision of the Government not to refer the disputes for adjudication was based on the order made by the Tribunal under Section 33(2)(b) of the Act according approval to the order of dismissal in the case of each of the Petitioners. 3. The submission made by the Learned Counsel for the Petitioners in the three Petitions are similar and may be summarised as follows. Section 2A read with Section 11A of the Act creates a right to a remedy to workmen as against orders imposing the penalty of dismissal or removal from service. The fact that an order of dismissal had been approved by an order of the Industrial Tribunal under Section 33(2)(b) of the Act, constitutes no basis for refusing to refer the dispute for industrial adjudication. A finding recorded in an order made under Section 33(2)(b) of the Act does not operate as res judicata in a proceeding under Section 10 of the Act and, therefore, the entire matter would be at large for consideration by the Labour Court or the Industrial Tribunal, as the case may be, on such disputes being referred for adjudication under Section 10 of the Act. In particular, while according approval under Section 33(2)(b) of the Act, the Labour Court or the Industrial Tribunal or the Conciliation Officer, as the case may be, is required to accord approval, only on the prima facie examination of the case and not after in depth examination. In particular, while according approval under Section 33(2)(b) of the Act, the Labour Court or the Industrial Tribunal or the Conciliation Officer, as the case may be, is required to accord approval, only on the prima facie examination of the case and not after in depth examination. In any event, Section 11A of the Act confers jurisdiction on the Labour Court or the Industrial Tribunal, as the case may be, not only to reappreciate the evidence and to find out as to whether the finding recorded in the domestic inquiry was justified or not, and if not to record a finding of exoneration but it has also the jurisdiction to decide, even if the finding recorded in the domestic inquiry was found to be valid and based on evidence on record, as to whether the imposition of the penalty of dismissal or removal from service was justified having regard to the gravity of the charge, and if it is found to be harsh to substitute it by a lesser penalty. Therefore the fact that the approval has been accorded to the order of dismissal by the Tribunal by an order made by it under Section 33(2)(b) of the Act constitutes no relevant basis for refusing to refer the dispute for adjudication. 4. As against the plea of the Petitioners, the stand taken on behalf of the State Government is as follows : The jurisdiction of the Tribunal or Labour Court under Section 33 of the Act and the nature of inquiry which they are required to hold in a proceeding arising under that Section, on an application by an employer seeking prior permission or subsequent approval to the imposition of the penalty of dismissal from service against his workman and their jurisdiction in deciding a reference under Section 10 of the Act in which the dispute is as to the justification for the imposition of penalty of dismissal from service is, having regard to the several pronouncements of the Supreme Court, are similar, except the additional powers conferred under Section 11A of the Act on the Labour Court or the Tribunal in deciding a dispute concerning the imposition of the penalty of dismissal or removal from service. Therefore, if in a proceeding under proviso to Section 33 of the Act, the Labour Court or Industrial Tribunal, as the case may be holds that the domestic inquiry held by the management is invalid and the matter is inquired into by the Labour Court or Industrial Tribunal itself and approval is accorded, the said circumstance constitutes a very valid and relevant ground for the State Government to decide as to whether the dispute should be referred for adjudication or not. Similarly, in cases where the validity of the domestic inquiry, is not at all contested by the workman in a proceeding under Section 33(2)(b) of the Act or upheld after contest and thereafter approval is accorded to the dismissal from service of the workman, the order so made constitutes relevant ground to decide as to whether the dispute should be referred for adjudication or not. In these three Petitions, the validity of the domestic inquiry had been upheld and it is only thereafter the Tribunal accorded its approval to the order of dismissal against each of the work-men. In the reports sent to the Government by the Labour Commissioner and by the Conciliation Officer, they also opined that in view of the approval of the order of dismissal by the Tribunal, these were not fit cases for reference for industrial adjudication. On consideration of these records, the State Government decided that there was justification to refer the dispute for industrial adjudication. Accordingly, the impugned endorsements were issued. The decision of the State Government is in accordance with law and there is no ground for interference. 5. In view of the above contention, the question set out first arises for consideration. 6. Learned Counsel for the Petitioners contended that an industrial dispute concerning the imposition of penalty of dismissal or removal from service of a workman falls into a special category after Sections 2A and 11A were incorporated into the Act and in view of those provisions the Act conferred a right to a remedy to a dismissed workman, though a formal order of reference was necessary and, therefore, it was obligatory for the Government to refer such disputes for adjudication. In support of this submission, they relied on the Judgments of this Court in Hariba -v.- K.S.R.T.C 1983 (1) K.L.J. 261 and Basavaraj -v.- The Secretary to Government, W.P. 41290 of 1982. Date. In support of this submission, they relied on the Judgments of this Court in Hariba -v.- K.S.R.T.C 1983 (1) K.L.J. 261 and Basavaraj -v.- The Secretary to Government, W.P. 41290 of 1982. Date. 9-8-1983 In the case of Hariba, two questions arose for consideration, namely-(l) whether Section 10 of the Act provided a remedy to a dismissed workman ; and (2) if so, whether it was appropriate to entertain a Writ Petition under Article 226 of the Constitution against an order of dismissal of a workman of a Statutory Corporation. The first question was answered in the affirmative and the second in the negative. Relevant portions of the judgment reads : - "11. Apart from this even from the point of view of the workman, the remedy provided under Section 10 of the Act is certainly a "better and more effective remedy, in that the workman also would have full opportunity of adducing rebuttal evidence before the Industrial Court and would have the benefit of an independent Judicial Officer of the rank of a District Judge to appreciate the evidence on record a finding instead of a person appointed by the management to hold an inquiry. Further, even if the workman is found guilty of the charge framed against him, in view of the wide powers conferred under Section 11-A of the Act on the Industrial Court presided over by a Judicial Officer, he would have the benefit of adjudication even regarding the Quantum of penalty as that would also be scrutinised judicially and if the Industrial Court comes to the conclusion that the penalty imposed in a given case is disproportionate to the gravity of the charge proved, it could modify the penalty. Thus both from the point of view of having an opportunity of proving the innocence of workman as also on the question of convincing the Industrial Court that the penalty imposed was disproportionate to the gravity of the charge, the workman concerned would have very effective opportunity before the Industrial Court. x x 12.As far as the point raised by the Learned Counsel for the petitioner that Section 10 of the Act is no remedy as it depends upon whether or not the Government makes a reference, the question is not resintegra. In the case of The Premier Automobiles Ltd. Vs. x x 12.As far as the point raised by the Learned Counsel for the petitioner that Section 10 of the Act is no remedy as it depends upon whether or not the Government makes a reference, the question is not resintegra. In the case of The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, AIR 1975 SC 2238 the Supreme Court considered a similar objection and said thus - " ...It is also true that it was not open to the workman concerned to approach the Labour Court or the Tribunal directly for adjudication of the dispute. It is further well established on the authorities of this Court that the Government under certain circumstances even on the ground of expediency (Vide State of Bombay Vs. K.P. Krishnan and Others, AIR 1960 SC 1223 and Bombay Union Of Journalists -V.- State Of Bombay (AIR 1963 SC 1617) can refuse to make a reference. If the refusal is not sustainable in law, appropriate directions can be issued by the High Court in exercise of its writ jurisdiction. But it does not follow from all this that the remedy provided under the Act is a misnomer. Reference of industrial disputes for adjudication in exercise of the power of the Government under Section 10(1) is so common that it is difficult to call the remedy a misnomer or insufficient or inadequate for the purpose of enforcement of the right or liability created under the Act. The remedy Suffers from some handicap but is well compensated on the making of the reference by the wide powers of the Labour Court or the Tribunal. The handicap leads only to this conclusion that for adjudication of an industrial dispute in connection with a right or obligation under the general or common law and not created under the Act, the remedy is not exclusive. It is alternative. But surely for the enforcement of bright or an obligation under the Act the remedy provided uno flatu in it is the exclusive remedy. The legislature in its wisdom did not thick it fit and proper to provide a very easy and smooth remedy for, enforcement of the rights and obligation created under the Act. Persons wishing the enjoyment of such rights and wanting its enforcement must rest content to secure the remedy provided by the Act. The legislature in its wisdom did not thick it fit and proper to provide a very easy and smooth remedy for, enforcement of the rights and obligation created under the Act. Persons wishing the enjoyment of such rights and wanting its enforcement must rest content to secure the remedy provided by the Act. The possibility that the Government may not ultimately refer an industrial dispute under Section 10 on the ground of expediency is not a relevant consideration in this regard ". 16. The result of the discussion may be summed up as follows : Whenever a workman employed in an industry is dismissed or removed from service and the workman desires to challenge the legality of such action of the management of an industry, on grounds of violation of procedure, as regulated by the prescribed rules or rules of natural justice, the workman should resort to the remedy available under Section 10 of the Industrial Disputes Act." (Underlined by me) 7. In the case of Basavaraj, the question for consideration was, whether the Government was justified in refusing to refer the dispute between Basavaraj, a dismissed workman of the K S.R.T.C. and the K.S.R.T.C., on the ground that in the opinion of the Government, the inquiry held was proper and legal and the punishment imposed was also proper. It was held, that the Government, was not justified in deciding those questions as they lay within the jurisdiction of the Labour Court or Tribunal and refusing to refer the dispute. Relevant portion of that order reads :- "6. It should be pointed out that particularly after the introduction of Sections 2-A and II-A into the I.D Act. in all cases where a work-man complains that he has been illegally dismissed from service, he has the right to have the master adjudicated by the Labour Court though a formal reference order by the State Government under Section 10 read with Section 12 of the I. D. Act is necessary. (See : Hariba Vs. K.S.R.T.C., (1983) 2 LLJ 76 Kant. The very intent and purpose of introducing Section 2-A as is evident from its wording, is to provide a remedy to a workman under the L.J. Act dispensing with the necessity of his case being sponsored by a Trade Union or by substantial number of workmen. (See : Hariba Vs. K.S.R.T.C., (1983) 2 LLJ 76 Kant. The very intent and purpose of introducing Section 2-A as is evident from its wording, is to provide a remedy to a workman under the L.J. Act dispensing with the necessity of his case being sponsored by a Trade Union or by substantial number of workmen. Section 11-A is intended to take care of cases in which penalty of removal from service is found to be harsh or excessive i.e., highly disproportionate to the gravity of the charge proved. For a dismissed workman, that is the only efficacious and cheap remedy provided for by law, either to have the punishment set aside or at least to have it reduced at the hands of the Labour Court, if they could make out a case to secure such an order. This right for a remedy cannot be denied or scuttled by rejecting to make the reference." 8. Learned Counsel for the Government and the concerned employer submitted that they had no quarrel with the proposition laid down in the aforesaid cases, but they said that the proposition holds good to all cases in which a workman was dismissed or removed from service and in which there had been no prior permission or subsequent approval accorded by the Labour Court, Tribunal, or Conciliation Officer, as the case may be, on an application made to any one of them under Section 33 of the Act. They maintained that in cases where there has been an order according permission or approval to the order of dismissal by the Industrial Tribunal or Labour Court and that circumstance is relied on by the Government and a decision is taken not to refer the dispute, such an order cannot be termed arbitrary or based on irrelevant consideration, as in such a case the Government would not be deciding the question as to whether the penalty imposed was valid, but only be basing its decision on the quasi judicial order made by the Labour Court, or Tribunal upholding the penalty of dismissal or removal from service of the concerned workman and therefore such a decision of the Government would be valid and could not be interfered with. 9. 9. As against the above submission, the Learned Counsel for the Petitioners, maintained that a case of dismissal of a workman whose dismissal was permitted by an order made under Section 33(1)(b) or approved by an order made under Section 33(2)(b) of the Act, did not stand on a different footing than the case of a workman, who was dismissed from service by an order of the management, during the period when the restrictions imposed under either Section 33(1) or 33(2)(b) of the Act were not applicable, for the following reasons : - (i) The Tribunal or Labour Court or Conciliation Officer in according permission or approval, has the power to examine only as to whether a prismatic case was made out by the management for imposing the penalty. (ii) The findings recorded in a proceeding under Section 33(2)(b) of the Act does not operate as res judicata in a proceeding under Section 10 of the Act. (iii) It is well settled by long line of decisions that a dispute, under Section 10 can be raised even though the order of dismissal had been made with prior permission or it had subsequent approval. (iv) Jurisdiction of the Labour Court or Tribunal under Section 10 of the Act read with Section 11A of the Act is much wider, in that (a) they can reappreciate the evidence and arrive at a finding different from the one recorded in the domestic inquiry, and (b) they can examine the justness of the penalty imposed and substitute the penalty of dismissal or removal from service by a lesser penalty. and these two powers are not available to them in proceedings under Section 33 of the Act. 10. The legal position as above, in the matter of jurisdiction of the Labour Court or Industrial Tribunal while exercising power under Section 33 and Section 10 of the Act is not in controversy. The stand taken by the Government and the managements, however, was, not that it was not competent for the Government to refer the dispute concerning dismissal from service of a workman for adjudication under Section 10 of the Act if it had been permitted or approved by an order made under Section 33 of the Act. The stand taken by the Government and the managements, however, was, not that it was not competent for the Government to refer the dispute concerning dismissal from service of a workman for adjudication under Section 10 of the Act if it had been permitted or approved by an order made under Section 33 of the Act. But their stand is that if the Government decides not to refer a dispute on consideration of the order made by the Tribunal or Labour Court, according permission or approval to the order of dismissal or removal from service of a workman under Section 33 of the Act, such a decision of the Government cannot be set aside, as such ground on which the decision rests is relevant and valid. 11. Before proceeding to consider the rival contentions, it is necessary to set out the relevant portions of the records, which culminated in the issue of the impugned orders ; A. In W.P. 17184/80 (i) The report of the Conciliation Officer reads - "IDA/SR/13/79-80 Office of the Assistant Commissioner, Division I, Bangalore Dated : 7th December, 1979. To The Commissioner and Secretary to the Government, Social Welfare and Labour Department, Vidhana Soudha, Bangalore. Sir, Subject : Industrial Dispute between the workmen and the management of Mysore Lamp Works Ltd., Bangalore regarding alleged illegal dismissal of Sri Shankar. In continuation of my factual report of even number date, reporting failure of conciliation held in respect of subject dispute, I write to render my confidential report on the merits of the case as under. Sri Shankar, a worker in the canteen of Mysore Lamp Works Ltd. was charged with the misconduct of mixing 'Naru' in the Sumbar prepared in the canteen. A charge sheet was issued, and an enquiry was held, he was found guilty, and was dismissed by the management from service w.e.f. 2-4-76. A Section 33(2)(b) application was filed before the Industrial Tribunal, Bangalore, by the management for approval of the action taken because of a pendency before the Tribunal. The Tribunal after thoroughly examining the case, approved the action of the management on 31-1-79. The Union raised the dispute on 9th April, 1979. The Union contends that there is no bar in raising a dispute even after the approval is given. This is true. The Tribunal after thoroughly examining the case, approved the action of the management on 31-1-79. The Union raised the dispute on 9th April, 1979. The Union contends that there is no bar in raising a dispute even after the approval is given. This is true. But during this approval application hearing it was agreed that the enquiry was in accordance with principles of natural justice and a record to that effect was caused to be made also in that case. It has been held in that case that the findings of the enquiry officer were not perverse, the action of the management could not be held as that of victimisation etc., Thus with the acquiescence of the parties, the case has been thoroughly examined and decision again. And so I feel that there is no necessity of going through that exercise again by a reference of this dispute to the adjudicator. Therefore this dispute may be rejected with a suitable endorsement under Section 12(5) of industrial Disputes Act, 1947. Proforma duly filled in is enclosed. Yours faithfully, Sd/- K.R. Shankaranarayana Rao, Assistant Labour Commissioner, Bangalore Division I, Bangalore." (Underlined by me) (ii) The report of the Commissioner of Labour reads - A copy of the Confidential Report bearing No. IDA/SR-13/79-80 dated 7-12-79 together with its enclosures received from the Assistant Labour Commissioner and Conciliation Officer, Bangalore is sent herewith. I agree with the opinion that the dispute does not merit reference to adjudication as expressed by the Conciliation Officer in the Confidential Report referred to above and request that an endorsement to the parties as required under Section 12(5) of the Industrial Disputes Act, 1947, may be issued. Yours faithfully, Sd/- for Commissioner of Labour" It is on the above basis, the decision not to refer the dispute was taken and the impugned endorsements, extracted earlier was issued. B. In W.P. No. 12788/83 (1) The report of the Conciliation Officer reads:- Sub : Industrial dispute between the Workman and the Management of M/s. Bharat Electronics Ltd., Bangalore, regarding alleged illegal termination of services of Sri K. Venkataramaiah, w.e.f. 17-7-1976. Sri K. Venkataramaiah, was working in M/s. Bharat Electronics Ltd., Bangalore, as Senior Clerk. He was appointed as 'B' Grade Clerk in October 1960. At the time of dismissal he was working as Senior Clerk and was in charge of posting credit sheets of BEL Cooperative Society. Sri K. Venkataramaiah, was working in M/s. Bharat Electronics Ltd., Bangalore, as Senior Clerk. He was appointed as 'B' Grade Clerk in October 1960. At the time of dismissal he was working as Senior Clerk and was in charge of posting credit sheets of BEL Cooperative Society. His duty was to post entries into the ledger against the names of the Worker member of the Society on purchases made by them on credit. In actuality, this job was to ensure regular deductions from the salary of the workers of M/s. B.E.L. That means to safeguard the interest and finances of the Company. The Company has given all physical help to the society by giving place, furniture, credit facilities and also employees to run the workers cooperative society. This worker while doing duty as Senior Clerk was dishonest so the Management by not posting credit slips to the ledger thereby duping the workers and the Management. There was the expenditure but these were not properly realised. This is a great misconduct never to be pardoned. The point here is he has duped and cheated his fellow workers of their hard earned money and also was dishonest to the employer. The purpose of his posting was to safeguard the Company's properties and finances. The very purpose of his posting was defeated and for his cunningness and misconduct the Management has rightly punished him. But before punishing him he was given all opportunities to defend his case and disprove the charges against him. This matter has even been thoroughly dealt in by the Industrial Tribunal, High Court and also Divisional Bench of High Court. All have rejected his plea. No doubt this does not bar him from raising a dispute before me, but I also did not take this as an added support to my opinion expressed here. I went to the Factory inspected the records and registers wherein his handwriting was there and was fully convinced about the illegal act committed by this worker. He even wanted to misguide me by quoting a case law which was irrelevant to his case and hence, that has not been taken cognisance off. In view of my above findings on the case at hand, I recommend for rejection of the dispute from reference. Hence, I request for necessary endorsement to be issued to the parties concerned. He even wanted to misguide me by quoting a case law which was irrelevant to his case and hence, that has not been taken cognisance off. In view of my above findings on the case at hand, I recommend for rejection of the dispute from reference. Hence, I request for necessary endorsement to be issued to the parties concerned. Yours faithfully, Sd/- Gurudas M. Bhat, Assistant Labour Commissioner, Bangalore Division I, Bangalore. " (Underlined by me) (ii) The report of the Labour Commissioner reads :- A Copy of the Confidential Report No. IDA/SR-18/82-83, dated 2-2-1983 together with its enclosures received from the Assistant Labour Commissioner and Conciliation Officer, Bangalore Division-I, Bangalore is sent herewith. I agree with the opinion that the disputes does not merit reference to adjudication as expressed by the Conciliation Officer in the Confidential Report referred to above and request that an endorsement to the parties as required under Section 12(5) of the Industrial Disputes Act, 1947 may be issued. Yours faithfully, Sd/- For Commissioner of Labour in Karnataka, Bangalore." It is on the basis of the above report the Government took its decision and issued the impugned endorsements in the petition. C. In W.P. No. 3621/84 : (i) The report of the Conciliation Officer reads : Sub: Industrial dispute between the workman and the management of Bharat Earth Movers Ltd., KGF Regarding Termination of the Services of Sri M. Rajanna, Ex. S. No. B 511-05727 w. e. f. 18-6-1980. With reference to the above subject, the Conciliation Report has been submitted vide this office letter of even number dated 27-10-1983. Now, I am submitting my confidential report as hereunder : Sri M. Rajanna raised an industrial dispute under Section 2A of the Industrial Disputes Act, 1947, through his letter dated 13-11-1982. The said matter was admitted in conciliation and several joint meetings and conciliation meeting were held and ultimately the dispute was treated as failed on 3-10-1983 as the Management was very firm in its stand as taken in letter dated 22-12-1982. In this dispute, the workman has raised only one issue, i.e. termination of his services by the management of Bharat Earth Movers Ltd., K.G.F. Kolar by their Order dated 18th June 1980. On this issue, the stand taken by the parties to the dispute are narrated in detail, in my factual report. In this dispute, the workman has raised only one issue, i.e. termination of his services by the management of Bharat Earth Movers Ltd., K.G.F. Kolar by their Order dated 18th June 1980. On this issue, the stand taken by the parties to the dispute are narrated in detail, in my factual report. On perusal of the documents filed by the management, it can be seen that the workman has been given punishments not less than seven times for the unauthorised absence on several occasions. Even for the eighth time of the offence, the management served a notice of enquiry and appointed an Enquiry Officer, also. Even though the workman has received the communication from the enquiry committee, he has failed to participate in the enquiry proceedings. Therefore the Enquiry Officer was forced to conduct enquiry exparte. The management has filed an application before the Hon'ble Tribunal, Bangalore, also for approval of the action taken by them. The Hon'ble Industrial Tribunal after hearing the parties, has accorded approval for the action proposed by the management. Therefore, the allegations of the workman that he was not given an opportunity to defend himself is not correct. In view of the several punishments given to him on account of the unauthorised absence, the allegation of the workman that the punishment given by the management is too harsh and is highly disproportionate, is also not correct. In view of the above circumstances, I am of the opinion that this is not a fit case for reference. Therefore, ah endorsement accordingly may kindly be issued to the workman. Other particulars of the dispute are also furnished in the prescribed proforma which is herewith enclosed. Yours faithfully, Sd/- S. Daniel Sathyaveera, Asst. Labour Commissioner and Conciliation Officer, Bangalore Division - II," Bangalore." (Underlined by me) (ii) The report of the Labour Commissioner reads - A copy of the Confidential Report No. ID/SR-8/83-84 dated 27-10-1983 together with its enclosures received from the Assistant Labour Commissioner and Conciliation Officer, Bangalore Division-II, Bangalore is sent herewith. I agree with the opinion that the dispute does not merit reference to adjudication as expressed by the Conciliation Officer in the Confidential Report referred to above and request that an endorsement to the parties as required under Section 12(5) of the Industrial Disputes Act, 1947, may be issued. I agree with the opinion that the dispute does not merit reference to adjudication as expressed by the Conciliation Officer in the Confidential Report referred to above and request that an endorsement to the parties as required under Section 12(5) of the Industrial Disputes Act, 1947, may be issued. Yours faithfully, Sd/- for Commissioner of Labour in Karnataka, Bangalore." It is on the basis of the above reports the Government took its decision and issued the impugned endorsement. 12. I shall now proceed to consider the validity of the rival submissions. "Section 33 of the Act reads - "CONDITIONS OF SERVICE, etc, TO REMAIN UNCHANGED UNDER CERTAIN CIRCUMSTANCES DURING PENDENCY OF PROCEEDINGS - (i) During the pendency of any conciliation proceeding before an Arbitrator or a Conciliation Officer or a Board or of any proceeding before a Labour Court or Tribunal or National Tribunal in respect of an Industrial Dispute, no employer shall (a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding ; or (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending. (2) During the pendency of any such proceeding in respect of an Industrial Dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute, or where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman, (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the 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. (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, as expeditiously as possible, such order in relation thereto as it deems fit." The scope of the powers and jurisdiction of the Industrial Tribunal and the Labour Court under Section 33 of the Act has been expounded in the following decisions of the Supreme Court : (i) Mckenzie and Co. Ltd. Vs. Its Workmen and Others, AIR 1959 SC 389 (ii) Central Bank of India Ltd. Vs. Prakash Chand Jain, AIR 1969 SC 983 (iii) Delhi Cloth and General Mills Co. Vs. Ludh Budh Singh, AIR 1972 SC 1031 (iv) Lalla Ram Vs. Management of D.C.M. Chemical Works Ltd. and Another, AIR 1978 SC 1004 (v) Shambhu Nath Goyal Vs. Bank of Baroda and Others, AIR 1984 SC 289 I shall set out the relevant paragraphs of the Judgment in the case of Delhi Cloth and General Mills Co.,5 which arose out of proceedings under Section 33 of the Act and in which the earlier decisions have been referred to and reiterated. They read- " 21. Before we proceed to deal with the contentions of Mr. Anand, it is necessary to state the law regarding the nature of the jurisdiction exercised by a Tribunal in dealing with an application under Section 33 of the Act. We had occasion to deal with a similar aspect in Delhi Cloth & General Mills Co., -v.- Ganesh Dutt, C.A. No. 982 of 1967, D/- 17-12-1971 41 FJR 4(SC). It was observed therein : "The nature of the jurisdiction exercised by an Industrial Tribunal in such circumstances is a very limited one and it has been laid down by several decisions of this Court. 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, should give the permission asked for 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. [Vide The Punjab National Bank Ltd. Vs. Its Workmen, AIR 1960 SC 160 ; Bharat Sugar Mills Ltd. Vs. [Vide The Punjab National Bank Ltd. Vs. Its Workmen, AIR 1960 SC 160 ; Bharat Sugar Mills Ltd. Vs. Shri Jai Singh and Others, AIR 1961 SC 1183 ; Management of Ritz Theatre (P) Ltd. Vs. Its Workmen, AIR 1963 SC 295 and Mysore Steel Works -v.- Jitender Chandra Kar (1971) I LLJ 543 (SC)]. 22. In Martin Burn Ltd. Vs. R.N. Banerjee, AIR 1958 SC 79 , it has been laid down that once an Industrial Tribunal is satisfied that the conclusion arrived at by the Enquiry Officer, on the evidence led before it, is a possible one. The Tribunal has no jurisdiction to substitute its own judgment for the judgment of the Enquiry Officer, though the Tribunal may itself have arrived at a different conclusion on the same materials. 23.It has been further laid down in The Lord Krishna Textile Mills Vs. Its Workmen, AIR 1961 SC 860 , as follows : 'It is well known that the question about the adequacy of evidence or its sufficiency or satisfactory character can be raised in a court of facts and may fall to be considered by an Appellate Court which is entitled to consider facts; but these considerations are irrelevant where the jurisdiction of the Court is limited as under Section 33(2)(b). It is conceivable that even in holding an enquiry under Section 33(2)(b) if the authority is satisfied that the finding recorded at the domestic enquiry is perverse in the sense that it is not justified by any legal evidence whatever, only in such a case it may be entitled to consider whether approval should be accorded to the employer or not ; but it is essential to bear in mind the difference between a finding which is not supported by any legal evidence and a finding which may appear to be not supported by sufficient or adequate or satisfactory evidence' 24. We may also refer to the decision in Central Bank of India Ltd. Vs. Prakash Chand Jain, AIR 1969 SC 983 , where alter a reference to the principles laid down in The Lord Krishna Textile Mills Vs. Its Workmen, AIR 1961 SC 860 , it has been pointed out that the test of perversity of a finding recorded by a Tribunal or an Enquiry Officer will be that the said finding is not supported by any legal evidence at all. Its Workmen, AIR 1961 SC 860 , it has been pointed out that the test of perversity of a finding recorded by a Tribunal or an Enquiry Officer will be that the said finding is not supported by any legal evidence at all. It has been further pointed out that finding recorded by a domestic Tribunal like an Enquiry Officer will also be held to be perverse in those cases where the finding arrived at by the Domestic Tribunal is one, which no reasonable person could have arrived at on the material before it. The position was summed up by this Court in the said decision as follows : 'Thus, there are two cases where the findings of a domestic tribunal like the Enquiry Officer dealing with disciplinary proceedings against a workman can be interfered with, and these two are cases in which the findings are not based on legal evidence or are such as no reasonable person could have arrived at on the basis of the material before the Tribunal, In each of these cases the findings are treated as perverse.