JUDGMENT 1. - The petitioner has challenged the order of the Industrial Tribunal dated 18-11-1991 mainly on the ground that the application submitted by the employer has wrongly been considered under Section 33(2) (b) whereas it should have been considered under Section 33(1) (b). 2. The brief facts of the case are that an industrial dispute has arisen between the various textile mills and Mazdoor Unions and accordingly the State Government vide Notification dated 18th August, 1987 referred the following dispute for adjudication to the Industrial Tribunal : "Whether the workload of the workers employed in Maharaja Shri Ummed Mills, Pali, Tirupati Fibres and Industrial Ltd., Abu Road, Aditya Mills Ltd., Kishangarh, Rajasthan Textile Mills, Bhawani Mandi Bhilwara Spinners Ltd., Bhilwara and Sagar Spinning Mills Ltd.. Madri, Udaipur represented by INTUC, AITUC, CITU, HMS, BMS and Rajasthan Trade Union Centre (RTUC) is just and valid, if not what should be the workload of each workman of the above industries." 3. During the pendency of the above dispute it is alleged that on 16-5-1988 the petitioner has acted in a manner which amounted to misconduct for which a charge-sheet was given to him. This charge-sheet is Annexure-1. The Management has alleged that the petitioner incited and abetted the workers to resort the boycott of the work. 4. Thereafter, on 4-6-1988 another incident took place in which the petitioner has prevented the workers from joining the duty and has taken part in the breaking of items and beating various persons and caused damage to the property of the mill and have abused the officers of the mill. The charge-sheet of this incident was also given (Annexure-2). 5. The enquiry was conducted by the enquiry officer Prakash Chaturvedi and the said enquiry was ex parte as the petitioner has not appeared. This enquiry was conducted in respect of the incident of 4-6-1988 and three charges were framed against the petitioner. After recording the evidence the enquiry officer came to the conclusion that the charges are proved. The report of the enquiry officer dated 14.8.1988 was sent to the Factory Manager and the petitioner was held guilty of misconduct and punishment of dismissal was awarded as per order dated 5th August, 1988. It was also provided that the dismissal shall come into effect with effect from 8.8.1988. 6. The Management submitted an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 on 6.8.1988. It was also provided that the dismissal shall come into effect with effect from 8.8.1988. 6. The Management submitted an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 on 6.8.1988. Notices were issued to the petitioner by the Industrial Tribunal wherein number of preliminary objection were taken and the reply of mill on the application was also submitted. It was submitted that the matter falls under Section 33(1)(b) and since the proceedings have not been taken in accordance with the provisions of the said Section the dismissal of the petitioner without the prior permission is entirely illegal. 7. An order was passed by the Industrial Tribunal on 18.11.1991 wherein the objections raised by the petitioner were considered and the approval was given to the action taken by the Management. 8. The submission of the learned counsel for the petitioner is that since the reference was pending and the petitioner was connected in respect of the dispute of workload the provisions of Section 33(1)(b) should have been invoked and the .provisions of Section 33(2)(b) were not applicable. Alternatively, it has also been submitted that once the matter was before the Tribunal then the entire matter was open before it and the employer must satisfy the Tribunal that the punishment imposed was justified. It has been submitted that there was a strike from 11.7.1988 to 23.10.1988 and the dispute was with regard to the work load. The domestic enquiry was conducted in respect of the alleged misconduct on 4th June, 1988. The enquiry conducted was not fair. Reliance was placed on the decision of Ganesh Rajan Servai v. M/s. Benett Coleman and Co. Ltd. and Another 1989 Lab. I.C. 534 (Bombay) wherein, it was held that termination of service on the ground of misconduct where the domestic enquiry was not held and the evidence was not led before the Tribunal in support of the termination of service, the entire matter is open before the Tribunal and the employer has not only to prove the misconduct alleged against the workman but also to satisfy the Authority that in the facts and circumstances of the case the infliction of a certain kind of punishment on the workmen was justified. It was further held, it is only when an employer holds a domestic enquiry and takes an action of discharge or dismissal of a workman and seeks approval or permission of the Industrial Tribunal or Labour Court under S. 33(2) (b) of the Act, all that the authority has to find out that whether the enquiry is a proper domestic enquiry being held and that the action of the employer was not malafide and that he had not indulged in an act of victimisation or unfair labour practice and the conditions laid down in the proviso to S. 33(2)(b) of the Act are satisfied, the authority may approve of the action of discharge or dismissal of the workman or grant permission to do so." 9. In the present matter a domestic enquiry was conducted and it is to be seen as to whether the action of the management was malafide or there was any victimisation .or the said enquiry was unfair. It is submitted that the petitioner has prayed in the course of domestic enquiry that Shri Narendra Kumar Tiwari, Secretary of Hind Mazdoor Sangh may be authorised to represent the petitioner in the enquiry. This request was rejected on the ground that outside person cannot be allowed to represent the petitioner. Thereafter, Shri Satya Narain Jaiswal was appointed as a representative/defence nominee. He was allowed to represent. The allegation of the petitioner was that Prakash Chaturvedi who was a representative of the Management was on the post of Labour Welfare Officer and was a law graduate and, therefore, Shri Satya Narain Jaiswal could not represent the petitioner properly. This contention of the petitioner has no force because there cannot be any proof or basis that a representative appointed by the employee is not capable of putting the correct fact in the course of domestic enquiry and there is no violation of the principles of natural justice inasmuch as the appointment of Shri Satya Narain Jaiswal was on the request of the petitioner and the facts which were necessary to be adduced in the course of domestic enquiry could have been adduced by Shri Satya Narain Jaiswal. The learned counsel for the petitioner has not been able to point out as to which particular fact was not brought and/or what was not brought on record in the domestic enquiry which caused prejudice to him. The learned counsel for the petitioner has not been able to point out as to which particular fact was not brought and/or what was not brought on record in the domestic enquiry which caused prejudice to him. It is also not known whether Shri Satya Narain Jaiswal had experience of representing any of the domestic enquiry and the petitioner has to blame himself and nobody else while selecting the defence nominee. It has further been alleged that evidence was recorded in the absence of the petitioner and that a compromise was entered into on 23.10.1988 according to which all the workmen were taken on service except the petitioner and 5 other workmen. It has also been submitted that with a view to thrust arbitrary workload the Management has acted with the spirit of retaliation and have acted malafide. From condition No. 7 of the compromise dated 23.10.1988 it was agreed between the parties that in respect of the violence during the course of strike action can be taken in respect of the six persons including the petitioner after six months. This compromise shows that it refers to the violence during. the period of strike and has no connection with the alleged misconduct of 4.6.1988 because the domestic enquiry has already been concluded on 5.8.1988 and the matter was referred to the Industrial Tribunal on 6.8.1988 for approval. Had that misconduct been also a subject-matter of settlement then a reference would have been in the compromise dated 23-10-1988. The case of the petitioner, therefore would not be considered as that of discrimination on the ground that all other persons have been taken by the Management on duty who were on strike. The decision of Hon'ble the Supreme Court in the case of Iron and Metal Traders Pvt. Ltd. v. M.S. Haskiel and Another 1984 SC 629 has thus no application because in that case all the workmen were dismissed for going on strike and were reinstated by the Management and 10 workmen alleged were not considered and this action was discriminatory against the 10 workmen. In the present case the dismissal of the petitioner was hot in respect of the strike or for the period of strike but in respect of the misconduct on 4.6.1988. In the present case the dismissal of the petitioner was hot in respect of the strike or for the period of strike but in respect of the misconduct on 4.6.1988. As stated above if the misconduct of 4.6.1988 was also intended to be covered then the compromise should have specifically recorded this fact and the order of dismissal having been passed on 5th August, 1988, the matter being referred to the Tribunal on 6th August, 1988, subsequent compromise of 23.10.1986 will not undo/nullify actions already taken unless specifically mentioned in the compromise itself. 10. In accordance with the provisions of Section 33(1)(b) of the Industrial Disputes Act, 1947 no employer can 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 has to be taken. In accordance with the provisions of Section 33(2)(b) if an employee is not connected no employer for any misconduct not connected with the dispute; discharge or punish, whether by dismissal or otherwise, that workman. A provision has been provided under this clause 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. On the proper analysis of the provisions of Section 33(2)(b) it is evident; (a) that the misconduct should not be connected with the dispute which is pending. It is not the employee/workman to which the reference is made but it is the misconduct and that makes the entire difference. The object of this clause in contrast with the provisions of Section 33(1)(b) is that if the misconduct is connected with the dispute then it will be falling within the purview of Section 33(1)(b) but if the misconduct is not connected with the dispute then it will be falling under Section 33(2)(b). The connection of the misconduct with the dispute, therefore, is to be seen and it appears that no workman should be punished, the object of Section 33(1)(b) and therefore,that the misconduct should be connected with the dispute. The connection of the misconduct with the dispute, therefore, is to be seen and it appears that no workman should be punished, the object of Section 33(1)(b) and therefore,that the misconduct should be connected with the dispute. The dispute which was pending in the present case was with regard to the workload whereas the mis-conduct is related to the incidence of 4.6.1988 regarding the damage and breakage and beating of the persons and various facts mentioned in the charge-sheet dated 4.6.1988, and, therefore, the provisions of Section 33(2)(b) could be applied and not Section 33(1) (b). (b) any condition which is required is that the payment of the wages for one month have to be made and this condition has duly been complied with. (c) An application has to be made by the employer to the Authority before which the proceeding is pending for approval of the action taken by the employer. The judgment in Rajasthan State Road Transport Corporation v. Judge, Industrial Tribunal, Jaipur 1986 Lab I.C. 291 is applicable where the action has not been taken in accordance with the proviso to Section 33(2)(b). Sub-Section 5 of Section 33 contemplates that where an application has been made under the proviso to sub-section 2 of Section 33 (2) for approval of the action taken by the employer, the authority concerned shall without delay, hear such application and pass the order within a period of three months from the date of receipt of such application provided that the authority concerned may for reasons recorded in writing extend such period as it thinks fit. Firstly, I am of the view that the time limit prescribed therein is normally directory and in any case the authority does not become functious officio after the lapse of time limit and the provisions could be considered only of directory nature. It has also not been shown or alleged that there was no exercise of the power under the proviso to sub-section (5) and therefore, on this ground no relief could be given to the petitioner. 11. The learned counsel for the petitioner has submitted that even if the provisions of Section 33(b) are applicable then the application was premature inasmuch as the punishment awarded was to take effect from 8.8.1988 and the action taken was of dismissal and, therefore, the application having been submitted on 6.8.1988 was premature. 11. The learned counsel for the petitioner has submitted that even if the provisions of Section 33(b) are applicable then the application was premature inasmuch as the punishment awarded was to take effect from 8.8.1988 and the action taken was of dismissal and, therefore, the application having been submitted on 6.8.1988 was premature. The requirement of moving the application by the employer for approval of the action taken by him refers to the decision which has been given. The word 'action' in the proviso is the decision which has been rendered in the domestic enquiry the consequence of which may be dismissal or even of lesser punishment. Simply because the said decision ...................................................(illegible) cannot be said that the application submitted was premature.. 12. Regarding the objection that the domestic enquiry was not conducted in the fair manner, the Industrial Tribunal has gone in detail and found that in spite of the opportunities being given to the petitioner he has absented himself and has not taken part in the proceeding. If the provisions of Section 33 are not complied with then the employer is liable to be punished under Section 33-A on a complaint being made to the Industrial Tribunal but in the present case the employer has complied with the provisions of Section 33 and there is no contravention. 13. It has been held by the Apex Court in Lalla Ram v. D.C.M. Chemical Works Ltd. AIR 1978 SC 1004 that "The enquiry officer has conducted the enquiry in a proper manner and the principles of natural justice cannot be said to have been violated. The Industrial Tribunal has itself also found that the domestic enquiry against the appellant was not violative of principles of natural justice or not based on evidence. It could not be said that there was no rational nexus between the appellant's misconduct and/or that there was any victimisation or bias against the appellant by the Management. As a matter of fact the jurisdiction of the Industrial Tribunal, thus is a very limited one to see that all the essential requisites of the proviso have been complied. with or not and while examining this aspect the various principles which have been laid down by the Apex Court have to be followed which on the face of it according to the finding recorded by the Tribunal appears to have been followed. with or not and while examining this aspect the various principles which have been laid down by the Apex Court have to be followed which on the face of it according to the finding recorded by the Tribunal appears to have been followed. It is no doubt true that the Tribunal can disregard the finding of the enquiry officer if they are perverse." 14. The technical rules of evidence do not apply to the domestic enquiry and only the substantive rules which form the part of principles of natural justice have to be applied. Once an opportunity is given and it is found that the petitioner has absented himself for any reason then he cannot complain that the principles of natural justice have been violated. According to, the finding recorded by the Industrial Tribunal it has been mentioned that a charge-sheet was given to the petitioner on 4th June, 1988 and the reply was submitted by him on 8th June, 1988 and the Management not being satisfied directed to hold the disciplinary enquiry against the workmen and Shri Narendra Kumar Maheshwari was appointed as the enquiry officer. He has resigned on 16th July, 1988 and, therefore, the rest of the enquiry was completed by Shri Satya.Prakash Chaturvedi. The petitioner has not appeared on 25th June, 28th June, 20th July, 1988 in spite of the opportunities being given. One month's salary was also offered to him which he has refused to accept and therefore, the same was sent by money-order on 5th August, 1988. It was alleged that Shri S.N. Jaiswal has refused to take part in the enquiry and in defence of the petitioner so that the officers of the Mill may not feel annoyed with Shri Satya Narain Jaiswal. The Tribunal has come to the conclusion that the dispute with regard to the workload was of different unions and was of a general nature and not connected with the petitioner alone. It was also held that the file was examined and it was found that it is not proved from the record that any request was made by the petitioner to assign Shri Narendra Kumar Tiwari as his defence nominee and due protection was given for Shri Satya Narain Jaiswal. It was further observed that in accordance with the standing orders the outside person could not be appointed as a defence nominee and the.objection in this regard was rejected. It was further observed that in accordance with the standing orders the outside person could not be appointed as a defence nominee and the.objection in this regard was rejected. I am in full agreement with the decision given by the Tribunal on this point. The submission of the petitioner that Shri S.N. Jaiswal refused to act as defence nominee was also disbelieved because no such objection was taken before the enquiry officer nor it was pointed out that he was intending to represent the workmen. The evidence was recorded on 4.7.1988 and the date 11th July, 1988 was fixed for cross-examination but neither the petitioner nor any of his representative was present on that date. A letter was sent by registered post which was refused to be received. The letter with regard to the date of 20th July, 1988 was served on the workman but he still absented himself and the next date was given 28.7.1988, on which date also he did not appear. From these dates it is evident that ample opportunity was given and the principle of natural justice was duly complied with. If the petitioner has failed to cross-examine any of the witnesses it cannot be said that evidence has been recorded ex-parte is not admissible. This plea, therefore, is also of no substance. 15. The writ petition is accordingly dismissed with no orders as to costs.Writ Petition Dismissed. *******