By this application under Article 226 of the Constitution of India, the petitioner has challenged an award dated (......) December 1983 made by the Industrial Tribunal Assam in Case No. 12 of 1972. 2. The facts of the case are thus. On 1.7.71 the respondent-workman was appointed as an Electrician by the petitioner, the Management of the Dikom Tea Estate (which we shall refer to as the “Management”), on probation. The period of probation was 6 (six) months but it was subsequently extended for another period of 3 (three) months by the management. Before the expiration of the extended period of three months, the respondent-workman was charged with insubordination. The workman submitted his explanation, but no enquiry was held. Instead, the management terminated his services with effect from 1.4.72 by an order dated 31.3.72 on the grounds that his performance as a probationer was not satisfactory. Being aggrieved by the order of termination, the respondent-workman made a .complaint under section 33 A of the Industrial Disputes Act, for short the “Act”, stating, inter alia, that there was Reference No. 35 of 1964 pending between the management and its employees and that the respondent-workman was concerned in the dispute. The Tribunal made its award on 15. 10.73 upholding the termination of the services of the workman. Against the award of the Tribunal, the workman made a writ application, ( Civil Rule No. 81 of 1974, to this Court under Article 226 of the constitution of India. This Court set aside the award and remanded the case to the Tribunal with a direction to dispose of the matter afresh in accordance with law. In Civil Rule 81 of 1974, this Court observed : “We see no force at all in the submission of Mr. Choudhury before us that since the petitioner”s probation was extended by another three months and terminated on the expiry of those three months, he could not be treated as a permanent workman because, according to the Standing order, a worker becomes a permanent worker if he has completed a (probationary) period of six months.” After that, this Court held : “For these reasons it is obvious and we so hold that the petitioner was a permanent workman ; on the expiry of the probationary period of six months lie became a permanent workman; no express order of confirmation was even necessary. It, therefore, follows from what we have said so far, that the termination of services in this case was not one made simpliciter in the sense that it was on the ground of automatic termination of services.” The management filed a special leave petition in the Supreme Court of India to appeal against the judgment of this Court. The leave petition was, however, withdrawn. While allowing the leave petition to be withdrawn, tae Supreme Court observed that the Tribunal would dispose of the case untrammeled by the peripheral obser­vations of toe High Court thereafter, the Tribunal made an award dated 24.8.79 allowing the application under section 33A of the Act with a direction that the respondent-workman was entitled to reinstatement with all back wages and allowances from the date of his termination till the date of his reinstatement. The management challenged the award before this Court in Civil Rule No. 342 of 1980. This Court quashed the award dated 24.8.79 and sent back the case again to the Tribunal for disposal afresh for the reasons that the evidence of two important witnesses were not considered by the Tribunal. The Tribunal, after hearing the parties, made the impugned award setting aside the order of termination/dismissal and directing the management to reinstate the workman with all back wages with effect from the date of his dismissal/termination. Hence this petition. 3 For the petitioner, it was contended that the Tribunal had no jurisdiction to entertain the application under section 33A of the Act. 4. The submission of Mr. Homchudhury, the learned counsel for the petitioner, was that the Tribunal was to give a clear finding that the management (the employer) had contravened the provisions of section 33 of the Act, but, in the present case, no such a finding had been made and, therefore, the Tribunal had no jurisdiction to entertain the application under section 33A of the Act and make the award. He relied on a decision of the Supreme Court in Digwadih Colliery vs. Ramji Singh, 1964-11 L. L. J. 143 to support his contention. , 5. In the case before the Supreme Court, the workman”s case set out in his application under section 33A of the Act was that, because there was Reference No. (0 of 1959 pending between the employer and some of its employees, the employer had contravened section 33 (2) of the Act in dismissing the workman. , 5. In the case before the Supreme Court, the workman”s case set out in his application under section 33A of the Act was that, because there was Reference No. (0 of 1959 pending between the employer and some of its employees, the employer had contravened section 33 (2) of the Act in dismissing the workman. But, in his application, the workman had made no averment that the workmen were concerned in the dispute. On the other hand, the employer denied before the Tribunal that the workman was concerned in the said dispute and in its statement of the case, the employer had clarified the position by stating that the dispute in Reference No. 60 of 1959 was on behalf of the “chaprasis” and watchmen for withdrawal of their overtime wages, and the workman was a clerk, Grade III who was not concerned in that dispute. The question as to whether section 33 (2) of the Act had been contravened in dismissing the workman, was one of the question at issue before the Tribunal. The Tribunal held that the employer had contravened section 33(2) of the Act in dismissing the workman. The Supreme Court reversed it and held that even without the clarification made by the employer, it was necessary that the workman should have satisfied the Tribunal by proving the nature of the dispute pending in Reference No.60 of 1959, before asking the Tribunal to make a finding in his favour under section 33(2) and in the absence of any such evidence, the Tribunal was not justified in holding that section 33(2) applied and had been contravened. 6. Turning to the present case, a reading of the application made by the workman under section 33A of the Act shows that there was Refer­ence No. 35 of 1964 pending between the management and its workmen and that the respondent-workman was concerned in the dispute. The management had not denied the statement that Reference No. 35 of 1964 was pending and the respondent-workman was concerned in the dispute. The case for the employer was that the employer had not violated the provisions of section 33 of the Act as the workmen was not terminated for misconduct or by way of penalty, that is, the termina­tion was made during or at the end of the period of probation as he was found unsuitable. The case for the employer was that the employer had not violated the provisions of section 33 of the Act as the workmen was not terminated for misconduct or by way of penalty, that is, the termina­tion was made during or at the end of the period of probation as he was found unsuitable. This Court, in Civil Rule No. 81 of 1974 while holding that the respondent-workman could not be terminated as such, further held : “The Tribunal was , therefore, wrong in holding that the appli­cation under section 33 A was not maintainable. The above was the only ground on which it held that the petition was not main­tainable.” The plea of ouster of jurisdiction of the Tribunal, as was submitted by the learned counsel for the petitioner, was not raised before the Tribu­nal on the hearing of trie application under section 33 A of the Act as well as before this Court in the above-mentioned Civil Rules. It has been raised before us in this Court for the first time. 7. In the case before the Supreme Court, in the application of the workman, it was not clearly stated that the workman was concerned in the dispute. The employer raised the question as to the maintaina­bility of the application. The maintainability of the application was a question at issue or subject matter of enquiry before the Tribunal and the Tribunal dealt with it. In the present case, the workman had stated in his application that he was concerned in that dispute. The employer had not denied the statement and had nut raised the plea of want of jurisdiction before the Tribunal as well as before this Court in the above-mentioned Civil Rules, already stated. That apart, the contention of the employer that the employer had not contravened section 33 of Act in terminating the respondent-workman as the termination was not by way of punishment, had been rejected by this Court, in Civil Rule No. 81 of 1974. Therefore, the facts of the present case and those of the case before the Supreme Court are not the same. In such a situa­tion, the decision of the Supreme Court in Digwadih (supra) does not help the petitioner. The decision in that case was one on its own facts. 8. Therefore, the facts of the present case and those of the case before the Supreme Court are not the same. In such a situa­tion, the decision of the Supreme Court in Digwadih (supra) does not help the petitioner. The decision in that case was one on its own facts. 8. The next question which arises for consideration is whether we would allow the petitioner to raise the plea of ouster of jurisdiction of the Tribunal, as was submitted by the learned counsel for the petitioner, at this stage. It is true that the foundation of jurisdiction of a Tribunal “to entertain the complaint under section 33 A of the Act is the contra­vention of section 33 of the Act, (see Mahendra Singh Dhantwal vs. Hindustan Motors Ltd., 1976(4) SCC 606 : AIR SC 2062). But, the question whether there had been contravention of section 33 of the Act, a mixed question of law and fact in the context of this case, and not a simple question of law. 9. The management now seeks /to raise a plea of ouster of jurisdiction of the Tribunal for the first time before us in this Court after about 15 years of the termination/dismissal. This point was never raised before the Tribunal as well as before this Court in Civil Rule Nos. 81 of 1974 and 342 of 1982. Besides, the management submitted to the- jurisdiction of the Tribunal without any objection to its jurisdiction to make the Award, and the management also had not denied the state­ment of the respondent-workman that he was concerned in the dispute. Considering the over-all circumstances of the case, we are not allowing to raise this plea of jurisdiction before us in this Court for the first time in this petition. 10. For the foregoing reasons, the petition is dismissed. Interim order, if any, stands vacated. No costs.