JUDGMENT : P.C. Misra, J. - The Orissa Road Transport Company Ltd., the employer of opposite party No. 1 is the petitioner in this writ application. The order of the Assistant Labour Commissioner, Orissa, Bhubaneswar rejecting an application u/s 32(2)(b) of the Industrial Disputes Act, 1947 (hereinafter called the Act) a copy of which is Annexure 2 to the writ application, has been impugned in this case. 2. Opposite party No. 1 was serving under the Petitioner as a driver. It is alleged that on 19.8.1978 at about 10.15 a.m. while the Traffic Manager, Orissa Road Transport Company, Berhampur was on duty in his office, the opposite party 1 went into the office room of the said Traffic Manager without any prior permission and threatened him raising his fist and saying that the order passed by him against another employee should be modified. The Traffic Manager expressed his inability to comply with the request of opposite party 1 for which he became furious and shouted at the Traffic Manager threatening to throw him out of the premises. It was further alleged that opposite party 1 intimated and attempted to assault the Traffic Manager. On these allegations, the police being informed registered a case against opposite party 1 for the offences under Sections 448/189/506, I.P.C. and after investigation, a criminal case bearing G.R. Case No. 698/78 in the court of the Judicial Magistrate, Berhampur was initiated.Simultaneously a disciplinary proceedings against opposite party 1 was initiated by the management of the petitioner-Company on the allegation that on the aforesaid date and time while the Traffic Manager was on duty in his office, the opposite party 1 intimidated and attempted to assault the Traffic Manager which constitutes a misconduct under Clause 14, Sub-clause (13) of the modified Standing Orders of the Company. He was directed to explain as to why he should not be discharged or dismissed from service on the aforesaid charges. Opposite party No. 1 submitted his explanation on 1.1.1979 denying the charges levelled against him whereafter the Deputy Director, Enforcement was appointed as the Enquiring Officer. During the enquiry conducted by the aforesaid Enquiring Officer, some witnesses were examined on behalf of the management who were cross-examined by the delinquent opposite party 1. 3. Opposite party No. 1 submitted his explanation on 1.1.1979 denying the charges levelled against him whereafter the Deputy Director, Enforcement was appointed as the Enquiring Officer. During the enquiry conducted by the aforesaid Enquiring Officer, some witnesses were examined on behalf of the management who were cross-examined by the delinquent opposite party 1. 3. The Enquiring Officer submitted his report giving a finding that opposite party 1 was guilty of the charges of unruly and violent behaviour in the office of the Traffic Manager on the aforesaid date and time and the opposite party 1 was served with the second show-cause notice dt. 9.10.1979 calling upon him to explain as to why he should not be discharged or dismissed from the service of the Company for the offence committed by him. Opposite party 1 submitted his explanation in response to the aforesaid notice denying the charges against him and stated that all the witnesses examined on behalf of the management being subordinates to the Traffic Manager, their evidence should not be accepted. The opposite party 1 prayed that he not being guilty of the charges levelled against him should be exonerated. 4. The disciplinary authority after taking into consideration the materials on record came to hold that the delinquent opposite party 1 by his conduct proved that he is an Undesirable employee and his continuance in service would seriously affect the discipline in the Company. The disciplinary authority ordered for dismissal of opposite party 1 from service and further ordered that one month's wages due to him should be paid to him. Accordingly opposite party 1 was paid a month's wages. 5. Some conciliation proceedings between the management and All Orissa Motor Transport Employees Federation was then pending before the Assistant Labour Officer-cum-Conciliation Officer, Bhubaneswar (O.P. No. 2) and therefore, an application u/s 33(2)(b) of the Act was filed before opposite party 2 for according approval of the order of dismissal of opposite party 1. The case of the petitioner is that all necessary documents and the entire disciplinary proceedings drawn against opposite party No. 1 were submitted before opposite party 2. 6. The case of the petitioner is that all necessary documents and the entire disciplinary proceedings drawn against opposite party No. 1 were submitted before opposite party 2. 6. It is an admitted case that while the proceedings u/s 33(2)(b) of the Act was pending before the opposite party No. 2 the judgment in the Criminal Case was delivered acquitting the opposite party 1 u/s 256 of the Cr.P.C. The opposite party 2 before whom a copy of the judgment passed by the Criminal Court" was produced passed an order saying that the action proposed against opposite party 1 cannot be approved on the basis of the findings in the Criminal Case as the charges levelled against opposite party 1 are identical with the charges in the disciplinary proceeding and the opposite party 1 having been acquitted in the Criminal Case, the necessary consequence would be the disapproval of the action taken in the disciplinary proceeding. 7. It has been urged in this writ application that the order of the Assistant Labour Commissioner in Annexure-2 is contrary to law and without jurisdiction as he failed to exercise the jurisdiction vested in him under the law. Learned counsel for petitioner has vehemently argued that acquittal in the Criminal Case would not ipso facto amount to exoneration of the petitioner from the disciplinary proceeding even in a case where the charges in both the proceedings are identical and the order passed by the opposite party 2 would show that there has been a total non-application of mind in disposing of the proceeding u/s 33(2)(b) of the Act. 8. A counter-affidavit was filed on behalf of opposite party 2 justifying the order in Annexure-2 and contending that the Criminal Case as well as the disciplinary proceeding having been initiated on identical charges, the acquittal of opposite party 1 in the Criminal Case would in all fairness result in dropping the disciplinary proceeding and in that view of the matter refusal to approve the action against the workman opposite party 1 in the impugned order is justified in law. Opposite party I, however, did not choose to file a counter after the writ application was admitted on 28.8.1982. Opposite party 1 has, however, filed an affidavit on 3.8.1987 purporting to supplement the counter-affidavit filed by him earlier. Opposite party I, however, did not choose to file a counter after the writ application was admitted on 28.8.1982. Opposite party 1 has, however, filed an affidavit on 3.8.1987 purporting to supplement the counter-affidavit filed by him earlier. On a verification of the record we find that no counter-affidavit had at all been filed earlier in this case by opposite party 1 and the learned counsel appearing for opposite party 1 conceded that the averment in the affidavit dt. 3.8.1987 to the above effect is not correct. In the said affidavit the only point that has been urged is that opposite party 1 was a member and Secretary of the Orissa Sadak Paribahan Sramik Congress which is a recognised Union of the O.R.T. Employees and that he was a recognised office-bearer and protected workman at the relevant point of time. On the basis of the said averment it has been stated that prior permission from the appropriate authority having not been taken, the initiation of the disciplinary proceeding against opposite party 1 is ab-initio void and not maintainable. 9. The aforesaid stand that opposite party 1 is a protected workman does not appear to have been taken at any of the stages of the disciplinary proceeding and was spelt out for the first time in the affidavit dt.3.8.1987 filed in this Court. Mr. Murthy appearing for the petitioner seriously objects to the acceptance of the said affidavit and submits that no counter-affidavit having been filed earlier by opposite party 1, the said affidavit may be ignored as it introduced a question of met which would take the petitioner by surprise. He has further argued that no opportunity having been given to the petitioner to file a rejoinder against the said affidavit, the averments made therein should not be considered by the Court at the hearing of the case. On a consideration of the facts and circumstances of the case specially for the reason that the plea that opposite party 1 is a protected workman having not been taken before the Assistant Labour Commissioner, we do not consider it appropriate to permit the opposite party 1 to raise such a plea at the stage of hearing of the case, as it would cause great prejudice to the petitioner. The object of Section 33 as explained in the decision reported in : The Automobile Products of India Ltd. Vs. The object of Section 33 as explained in the decision reported in : The Automobile Products of India Ltd. Vs. Rukmaji Bala and Others, is to protect the workmen concerned in disputes which from the subject-matter of pending proceeding against victimisation by the employer on account of their having raised the industrial disputes or their continuing the pending proceedings. The further object of the section is to ensure that proceedings in connection with industrial disputes already pending should be brought to a termination in a peaceful atmosphere and that no employer should, during the pendency of those proceedings, take any action of the kind mentioned in the Section which may give rise to fresh disputes likely to further exacerbate the already strained relations between the employer and the workmen. Section 33(2) of the Act deals with the alterations in the conditions of service as well as discharge or dismissal of workmen concerned in any pending dispute where such alteration or such discharge or dismissal is, in regard to a matter not connected with the pending dispute. A bare reading of the Section makes it clear that during the pendency of an industrial dispute the employer's right is recognised in the matter of dismissal or discharge of a workman for alleged misconduct not connected with the pending dispute, but a ban has been imposed on the exercise of such power by the proviso. The proviso requires that no such workman shall be discharged or dismissed unless two conditions are satisfied, namely, (i) that the employee concerned should have been paid wages for one month; and (ii) that an application should have been made by the employer to the appropriate authority for approval of the action taken by the employer. $.33(3) deals with cases of protected workmen. In case of a protected workman alteration of the conditions of service or action by discharging or punishing the workman whether by way of dismissal or otherwise can be made only with -the express permission in writing of the appropriate authority. The procedure to be taken ar the case of a workman and a protected workman as provided in Sub-sections (2) and (3) of Section 33 of the Act is entirely different One common condition precedent for an application to be made under Sub-sections (2) and (3) of Section 33 is the pendency of any proceeding before any of the authorities mentioned therein. That apart, the two provisions deal with different situations Sub-section (2) concerns itself with actions that may be taken by an employer against his employees in respect of matters not connected with the industrial dispute. In those cases the employer must pay to the employee wages for one month and must also make an application to the authority before which the industrial dispute is pending for approval of the action taken by him. Under Sub-section (3) of Section 33 if the employer wants to take any action prejudicial to a protected workman concerned in an industrial dispute pending before one of the authorities mentioned, he can do so only with the express permission in writing of the authority before which the proceeding is pending. Thus the scope of the two provisions is entirely different. Under Sub-section (3) the previous permission of the authority before which the industrial dispute is pending, is necessary whereas under Sub-section (2) only a subsequent approval is needed. Once approval is given it relates back to the date on which the order in question was made. If the approval asked for is not accorded then the action taken by employer becomes ab-initio void (vide P.D. Sharma Vs. State Bank of India, . 10. To treat opposite party 1 as a protected workman evidently would lead to the conclusion that all the actions taken by the management would be rendered void for which reason it appears that this belated stand has been taken by opposite party 1, No records or further particulars have been produced before us by opposite party 1, save and except the bare statement in the aforesaid affidavit that the opposite party 1 is a protected workman. In these circumstances the actions taken by the management cannot be thrown out on entirely a new ground, namely, that the opposite party 1 is a protected workman for which reason as urged in the affidavit dt. 3.8.1987, the proceedings taken u/s 33(2)(b) of the Act was inappropriate. 11. It has now to be examined as to whether the order in Annexure-2 passed by the Conciliation Officer-cum-Asst. Labour Commissioner is in accordance with law. It has been pointed out time and again by the Supreme Court vide : Lalla Ram Vs. Management of D.C.M. Chemical Works Ltd. and Another. 11. It has now to be examined as to whether the order in Annexure-2 passed by the Conciliation Officer-cum-Asst. Labour Commissioner is in accordance with law. It has been pointed out time and again by the Supreme Court vide : Lalla Ram Vs. Management of D.C.M. Chemical Works Ltd. and Another. regarding the jurisdiction of the Tribunal u/s 33(2)(b) of the Act which was the subject-matter of discussion in that case. After referring to a large number of cases, their Lordships have held:- "In proceedings u/s 33(2)(b) of the Act, 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 bona fide 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 Order is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy the punishment or whether it is excessive or too severe yet an inference of mala fides may in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment; (iv) whether the employer has paid or offered to pay wages for one month to the employee and (v) whether the employer had simultaneously or within such reasonable short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him. If these conditions are satisfied, the Industrial Tribunal would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If these conditions are satisfied, the Industrial Tribunal would grant the approval which would relate back to the date from which the employer had ordered the dismissal. 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 will grant approval of the order of dismissal 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." In the present case the Asst. Labour Commissioner after considering the respective cases of the parties has referred to and quoted a substantial portion of the judgment passed in the Criminal Case, namely, C.R. Case No. 698/78 under Sections 448/189/506, I.P.C. and relying solely on the said judgment came to the conclusion that the charges framed for a domestic enquiry lost all its importance on account of the acquittal recorded in the criminal case. He jumped to the conclusion therefrom that the approval sought for should be refused. 12. Learned counsel appearing for the petitioner has challenged the aforesaid order of the Asst. Labour Commissioner on the ground that none of the conditions enumerated in the aforesaid decision of the Supreme Court is satisfied in justification of refusal of the approval sought for. He has further argued that the decision of the criminal court cannot operate as res judicata and certainly not conclusive so far as the disciplinary proceeding is concerned. According to him, the standard of proof required to prove the guilt of an accused beyond all reasonable doubts is not necessary in a disciplinary proceeding and a person escaping liability under the Penal Code may still be liable in a disciplinary proceeding even though the charges in both may be identical. The High Court of Kerala in a decision reported in 1979 LabIC 258 G. Ravindran Nair v. Chairman, Chochin Port Trust expressed the law on the subject in the following words: "In criminal cases, the Courts insist on a high standard of proof. The High Court of Kerala in a decision reported in 1979 LabIC 258 G. Ravindran Nair v. Chairman, Chochin Port Trust expressed the law on the subject in the following words: "In criminal cases, the Courts insist on a high standard of proof. Accusations against an accused nave to be proved beyond reasonable doubt, in criminal cases. Not so in departmental proceedings. In the latter preponderance of probability of guilt is sufficient. Therefore to say that the acquittal in a criminal case should always tie the hands of departmental authorities from proceeding against a delinquent is not to put the question of law correctly." The position of law is well settled that there is no bar in continuing parallel proceedings before a criminal court and before a disciplinary authority simultaneously and that the acquittal in the criminal case does not necessarily bar proceedings before the disciplinary authority. Learned counsel appearing for opposite party 1 as well as opposite party 2 have placed strong reliance on the decision reported in Corporation of the City of Nagpur, Civil Lines, Nagpur and another Vs. Ramchandra and others, in support of the point that even though there might not be a legal bar for continuance of the disciplinary proceeding in spite of the acquittal recorded in a criminal proceedings, it would not be expedient to continue a departmental enquiry on the very same charges. In the aforesaid decision their Lordships held:- "Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the facts remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its direction (discretion) in any way fettered. However, as quite some time has elapsed since the departmental inquiry had started the authority concerned will take into consideration this factor in coming to the conclusion if it is really worthwhile to continue the departmental inquiry in the event of the acquittal of the respondents. If, however, the authority feels that there is sufficient evidence and good grounds to proceed with the enquiry, it can certainly do so." 13. The facts of this case stand on a slightly different footing. If, however, the authority feels that there is sufficient evidence and good grounds to proceed with the enquiry, it can certainly do so." 13. The facts of this case stand on a slightly different footing. Unlike the case reported in Corporation of the City of Nagpur, Civil Lines, Nagpur and another Vs. Ramchandra and others, the departmental proceeding in this case was concluded earlier and during the pendency of the proceeding initiated u/s 33(2)(b) of the Act the criminal court passed the judgment of acquittal. In such circumstances, there is no occasion for the disciplinary authority to take into consideration the act of acquittal for coming to a decision if it is really worthwhile to continue the departmental enquiry as that stage had already passed by the time the opposite party No. 1 was acquitted in the criminal case. The Asst. Labour Commissioner before whom the proceeding u/s 33(2)(b) was then pending was not entitled to go into the question of fact involved in the disciplinary proceeding. As already stated, the question about the adequacy of evidence or its sufficiency or satisfactory character can be raised in a court of facts which the Asst. Labour Commissioner exercising jurisdiction u/s 33(2)(b) was not. In other words, the effect of acquittal of opposite party No. .1 in the criminal case was not a relevant consideration for the Asst. Labour Commissioner in the proceeding which was then pending before him. 14. Mr. Swamy appearing for opposite party 1 next contended that the charges levelled against opposite party I having been denied by him in the departmental enquiry, it was obligatory on the part of the Asst. Labour Commissioner to record a finding of its own as to whether the charges have been proved against him. He relied upon a decision reported in Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd. and Another, The principles decided in that case, in our opinion, would not be available to be applied to the facts of this case. In that case an application seeking approval of the order of dismissal for the misconduct of the employee was made before the Industrial Tribunal who found that the domestic enquiry conducted was in violation of the principles of natural justice. The Tribunal, however, called upon the employer suo motu to adduce evidence in support of the allegation of misconduct against the employee. The Tribunal, however, called upon the employer suo motu to adduce evidence in support of the allegation of misconduct against the employee. Such a course as taken by the Tribunal was held by the Supreme Court to be against the rules of justice, reason and fair play. Their Lordships held that the Industrial Tribunal or the Labour Court should adopt an advisory role by informing the employer of its rights, namely, the right to adduce additional evidence to substantiate the charges when it fails to make good the domestic enquiry and then to give an opportunity to it to adduce additional evidence. It is thus clear that the order of the Asst. Labour Commissioner (vide Annexure-2) suffers from non-application of mind and is liable to be quashed. We would accordingly quash Annexure-2 and direct the Asst. Labour Commissioner to dispose of the proceeding u/s 33(2)(b) of the Act afresh in accordance with law after giving opportunity to both the parties to be heard. It is desirable that the proceeding should be disposed of within a period of three months from the date of receipt of the writ. 15. The writ application is accordingly allowed. There shall be no order as to costs. 16. I agree. Application allowed. Final Result : Allowed