V. P. MOHAN KUMAR, J. ( 1 ) THE validity of the finding on an issue entered by the labour court in reference under Section 10 (1) of the Industrial Disputes Act (hereinafter referred to as 'the act') is questioned in these writ petitions. The facts of the case are that pending adjudication of a dispute before the labour court the services of the workers in question were terminated. As required under Section 33 (2xb) of the act the management applied to the tribunal for approval of the action taken. The tribunal examined the question as to whether the approval be granted. In doing so it examined the question whether there had been a proper enquiry and whether the charges against the workers had been proved prima facie. The tribunal found that there was a proper domestic enquiry and that the charges had been proved. It also held that the dismissal was not an act of victimisation. It therefore granted permission to the management to dismiss the worker. Subsequent thereto an industrial dispute was raised by the worker under Section 10 of the Industrial Disputes Act with reference to the termination of their services and the dispute was referred to the labour court, in that reference a preliminary issue was raised in the following terms: "whether the domestic enquiry conducted by the second party is fair, reasonable and valid in law"? The labour court after hearing the respective parties held that there was no valid domestic enquiry, and that the enquiry officer was biased against the worker. It therefore called upon the management to substantiate the charges. It is this finding that has been challenged by the employer in these writ petitions before this court. ( 2 ) BEFORE we advert to the question of law raised the following factual details may also be noticed. In writ petition No. 15900 of 1994 the allegation was that the worker committed theft and the serial application No. 49 of 1974 was filed for approval to impose the punishment of dismissal. Annexure-B is the order passed by the labour court granting permission. In that proceedings the worker had disputed the fairness of the domestic enquiry. The main contention was that the enquiry officer himself had cross-examined the witness. The contention was adverted to but overruled by the labour court (vide para 7 of Annexure-B order ). Annexure-B is the order passed by the labour court granting permission. In that proceedings the worker had disputed the fairness of the domestic enquiry. The main contention was that the enquiry officer himself had cross-examined the witness. The contention was adverted to but overruled by the labour court (vide para 7 of Annexure-B order ). It further held (at para 9) that the domestic enquiry held is fair and proper. Accordingly serial application was allowed. ( 3 ) LIKEWISE in writ petition No. 17531 of 1994 Annexure-C is the order is serial application No. 85 of 1975 filed by the management seeking approval of its decision to dismiss the employee. Therein also the worker disputed the fairness of the domestic enquiry conducted by the employer. Annexure-B is the order on the question of domestic enquiry in serial application No. 85 of 1975 upholding the validity of the domestic enquiry. Similar contentions, namely, that the enquiry officer allegedly cross-examined the witnesses etc. , Were the ground of attack against the domestic enquiry. This contention was also overruled by the labour court (vide at para 8 of Annexure-B order while upholding the validity of the domestic enquiry. ( 4 ) THE contention raised by Sri a. g. holla, learned counsel for the petitioner-employer in short is that in view of the earlier finding by the industrial tribunal to the effect that there has been proper domestic enquiry in the serial application a fresh enquiry on the very same issue is not called for and the same is barred on the ground of resjudicata. ( 5 ) ON the question of res judicata the learned counsel Sri subba rao appearing on behalf of the respondents-workers submits that the said principle will not apply in the present case and the whole issue has to be examined and decided by the labour court afresh. We should notice here that this question as such has not been raised or argued before the labour court by the management. The answer to the dispute raised by the workers before the labour court is not met by the management on the principle of either estoppel or res judicata. This issue was contested otherwise. But as this question has been raised before the court and argued at length, I am considering the same. The answer to the dispute raised by the workers before the labour court is not met by the management on the principle of either estoppel or res judicata. This issue was contested otherwise. But as this question has been raised before the court and argued at length, I am considering the same. ( 6 ) SRI a. g. holla, learned counsel, invited my attention to the observation in the decision of the Supreme Court in Bengal Bhatdee Coal Company Limited v Ram Probesh Singh and others. At para 6 of the said decision the Supreme Court states that when a finding has been entered by the industrial tribunal in a proceedings under Section 33 (2) (b) on the basis of the domestic enquiry it is not open for the labour court to find otherwise while adjudicating the same question under Section 10 (1 ). There are similar observations of the Supreme Court in the decision in workmen of mis. Firestone, tyre and rubber co. Of India Pvt. Ltd. V The Management and others , as well. In particular, the following passage in bengal bhatdee coal company limited's case, supra, is relied on by the learned counsel. ". . . . We have already indicated that the tribunal did not find that there was any basic error or violation of the principles of natural Justice in the holding of the inquiry; nor did it find that the findings of the inquiry officer were perverse or baseless. It could hardly do so in the face of its own approval of the action taken on applications made to it under Section 33 (2) (b) of the Act, for if it had found that the inquiry was not proper, it would not have approved of the action taken against the workmen by the appellant when it was approached under Section 33 (2) (b ). We must therefore proceed on the assumption that the inquiry was held properly and the inquiry officer who held the inquiry was justified on the evidence before him in coming to the conclusion which he did, namely, that the charges had been proved". the learned counsel submits that this observation stress that the domestic enquiry is valid and proper. ( 7 ) THE question whether a finding in a proceeding under Section 33 (2) (b) will operate as resjudicata has been considered by several courts including the Supreme Court. the learned counsel submits that this observation stress that the domestic enquiry is valid and proper. ( 7 ) THE question whether a finding in a proceeding under Section 33 (2) (b) will operate as resjudicata has been considered by several courts including the Supreme Court. See the following decisions: East Asiatic Company (India) (Put.) Ltd. V Their Workmen and others ; the management of M/s. Amalgamated electric co. Ltd. , Belgaum Branch v Their Workmen and others ; K. Ramulu v Industrial Tribunal, Andhra Pradesh and another ; Mis. Graphite India Ltd. V State of West Bengal and others ; mis. Mining and allied machinery corporation v State of West Bengal and others; management of Delhi transport corporation, New Delhi v Ram Kumar and another ; F. A. C. T. Ltd. V F. A. C. T. Employees'association. The view of the Supreme Court is that any finding entered in any proceeding under Section 33 (2) (b) will not operate as res judicata in a proceeding initiated either under Section 10 or Section 33-a of the Industrial Disputes Act. Apparently the reason for this view seems to be that the enquiry, by the labour court contemplated, in a proceedings under Section 33 (2) (b) is a prima facie enquiry and that the tribunal is merely called upon to consider whether at the domestic enquiry there has been compliance of the principle of natural Justice and whether the act of the management is a case of victimisation or not. The tribunal need not consider as to whether there is clear evidence to find that the worker is guilty; its enquiry, will only evaluate whether the management is motivated by its intention to victimise the employee. ( 8 ) IT may be noticed that on the basis of the enquiry the tribunal has no power to grant any of the reliefs that it can grant in a proceeding under Section 10 (1) of the act. It cannot pass any enforceable order on award. It can either grant or refuse approval. The enquiry that it conducts is to satisfy for itself whether it should grant or decline approval. It cannot pass any enforceable order on award. It can either grant or refuse approval. The enquiry that it conducts is to satisfy for itself whether it should grant or decline approval. Even if approval is declined and the employer proceeds to impose the punishment, the relief of setting aside the punishment and granting of reinstatement can be had by the worker by initiating independent proceeding either under Section 33-a or Section 10 (1) of the Industrial Disputes Act. Therefore, the enquiry that the tribunal conducts under Section 33 (2) (b) is for its own satisfaction and restricted to ascertain whether it would be justified in granting the approval for the imposing of the punishment of dismissal. It cannot be assigned a greater validity or sanctity than what the statute itself envisages. ( 9 ) IN this case after examining both sides the tribunal held that approval for dismissal of the worker may be granted. In such an enquiry under Section 33 (2) (b) the tribunal is not sitting in appeal over the findings of the enquiry officer. As held by the Supreme Court in the decision in the Lord Krishna Textile Mills v Its Workmen. ". . . . 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 (2xb) 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". The scope of enquiry is limited. It has no similar power as under Section 11-a of the Industrial Disputes Act and cannot evaluate whether the punishment proposed is proper or not. It is not the province of the enquiry to find whether on the basis of the particular evidence on record the charges would stand proved or not. The scope of enquiry is limited. It has no similar power as under Section 11-a of the Industrial Disputes Act and cannot evaluate whether the punishment proposed is proper or not. It is not the province of the enquiry to find whether on the basis of the particular evidence on record the charges would stand proved or not. All the same it does not straightaway follow that in all cases where there is no violation of principles of natural justice, it has to grant the stamp of approval under Section 33 (2) (b ). It follows that the finding on the domestic enquiry is collateral finding and cannot be treated as a finding on an issue directly and substantially in issue. It may still be entitled to sift the evidence tendered to ascertain whether there is prima facie case made out against the worker. But this enquiry, to repeat at the risk of repetition, is only to find a prima facie case. In other words the tribunal is not expected to examine the question in detail as contemplated in a proceeding under Section 10 (1) armed with the powers under Section 11-a of the Act, when it decides the question as to whether there has been an enquiry conforming to the requirement of natural Justice and there is prima facie case made out against the worker. We may refer to the following passages from the decision of the Supreme Court in Punjab national bank limited v all India Punjab national bank employees' federation and another, which clearly brings home this aspect: "where an application is made by the employer for the requisite permission under Section 33 the jurisdiction of the tribunal in dealing with such an application is limited. It has to consider whether a prima facie case has been made out by the employer for the dismissal of the employee in question. If the employer has held a proper enquiry into the alleged misconduct of the employee, and if it does not appear that the proposed dismissal of the employee amounts to victimisation or an unfair labour practice, the tribunal has to limit its enquiry only to the question as to whether a prima facie case has been made out or not. If the employer has held a proper enquiry into the alleged misconduct of the employee, and if it does not appear that the proposed dismissal of the employee amounts to victimisation or an unfair labour practice, the tribunal has to limit its enquiry only to the question as to whether a prima facie case has been made out or not. In these proceedings it is not open to the tribunal to consider whether the order proposed to be passed by the employer is proper or adequate or whether it errs on the side of excessive severity; nor can the tribunal grant permission, subject to certain conditions, which it may deem to be fair. It has merely to consider the prima facie aspect of the matter and either grant the permission or refuse it according as it hold that a prima facie case is or is not made out by the employer. 25. But it is significant that even if the requisite permission is granted to the employer under Section 33 that would not be the end of the matter. It is not as if the permission granted under Section 33 validates the order of dismissal. It merely removes the ban; and so the validity of the order of dismissal still can be, and often is, challenged by the union by raising an industrial dispute in that behalf. The effect of compliance with the Provisions of Section 33 is thus substantially different from the effect of compliance with Section 240 of the government of India Act, 1935, or article 311 (2) of the constitution. In the latter classes of cases, an order of dismissal passed after duly complying with the relevant statutory Provisions is final and its validity or propriety is no longer open to dispute; but in the case of Section 33 the removal of the ban merely enables the employer to make an order of dismissal and thus avoid incurring the penalty imposed by Section 31 (1 ). But if an industrial dispute is raised on such a dismissal, the order of dismissal passed even with the requisite permission obtained under Section 33 has to face the scrutiny of the tribunal". We may again refer to the following passages from the decision in the case of lord krishna textile mills', supra: ". . . . But if an industrial dispute is raised on such a dismissal, the order of dismissal passed even with the requisite permission obtained under Section 33 has to face the scrutiny of the tribunal". We may again refer to the following passages from the decision in the case of lord krishna textile mills', supra: ". . . . It is plain that whereas in cases falling under Section 33 (1) no action can be taken by the employer unless he has obtained previously the express permission of the appropriate authority in writing, in cases falling under sub-section (2) the employer is required to satisfy the specified conditions but he need not necessarily obtain the previous consent in writing before he takes any action. The requirement that he must obtain approval as distinguished from the requirement that he must obtain previous permission indicates that the ban imposed by Section 33 (2) is not as rigid or rigorous as that imposed by Section 33 (1 ). The jurisdiction to give or withhold permission is prima facie wider than the jurisdiction to give or withhold approval. In dealing with cases falling under Section 33 (2) the industrial authority will be entitled to enquire whether the proposed action is in accordance with the standing orders, whether the employee concerned has been paid wages for one month, and whether an application has been made for approval as prescribed by the said sub-section. It is obvious that in cases of alteration of conditions of service falling under Section 33 (2) (a) no such approval is required and the right of the employer remains unaffected by any ban. Therefore, putting it negatively the jurisdiction of the appropriate industrial authority in holding an enquiry under Section 33 (2) (b) cannot be wider and is, if at all, more limited, than that permitted under Section 33 (1), and in exercising its powers under Section 33 (2) the appropriate authority must bear in mind the departure deliberately made by the legislature in separating the two classes of cases falling under the two sub-sections, and in providing for express permission in one case and only approval in the other. It is true that it would be competent to the authority in a proper case to refuse to give approval, for Section 33 (5) expressly empowers the authority to pass such order in relation to the application made before it under the proviso to Section 33 (2) (b) as it may deem fit; it may either approve or refuse to approve; it can, however, impose no conditions and pass no conditional order". Xxx xxx xxx xxx (16) in view of the limited nature and extent of the enquiry permissible under Section 33 (2) (b) all that the authority can do in dealing with an employer's application is to consider whether a prima facie case for according approval is made out by him or not. If before dismissing an employee the employer has held a proper domestic enquiry and has proceeded to pass the impugned order as a result of the said enquiry, all that the authority can do is to enquiry whether the conditions prescribed by Section 33 (2) (b) and the proviso are satisfied or not. Do the standing orders justify the order of dismissal? Has an enquiry been held as provided by the standing order? Have the wages for the month been paid as required by the proviso?; And, has an application been made as prescribed by the proviso?" What is stated earlier is clearly brought by the above decision. ( 10 ) NOW what is the dispute that is being resolved in a proceeding under Section 33 (2) (b)? Strictly the issue in such a proceeding is whether the approval sought for should be granted in the application made by the employer. It does not follow that in such a proceeding an approval would be granted the moment the management establishes the validity of the domestic enquiry. The tribunal even then is entitled to examine whether the approval need be granted even if there was legal evidence at the properly conducted domestic enquiry. It has further to see whether the Act, is a case of victimisation or not. It means that the finding on the domestic enquiry alone will not conclude the proceeding under Section 33 (2xb ). It has further to see whether the Act, is a case of victimisation or not. It means that the finding on the domestic enquiry alone will not conclude the proceeding under Section 33 (2xb ). The validity of the domestic enquiry is a "step-in-aid" finding for grant of approval under Section 33 (2xb); if so, the said issue cannot be treated as an issue directly and substantially in issue in a proceeding under Section 33 (2) (b ). As noticed, a finding on this issue will not affect one way or other the order to be passed in an approval application under Section 33 (2) (b ). To repeat a finding on this issue is a step preceding the finding on the issue regarding the validity of the charges which is the relevant finding to grant or refuse approval under Section 33 (2) (b ). Perhaps this aspect necessitated a change of approach on the question regarding the enquiry under Section 33 (2) (b ). Subsequent judicial decisions conferred enlarged power on the tribunal to examine the sustainability of the order of dismissal of the worker on the basis of the evidence tendered. The decision of the Supreme Court in the case of Shankar Chakravarti v Britannia Biscuit Co. , Ltd. And another , bring out this position clearly. Therein their lordships stated that in an enquiry under Section 33 of Industrial Disputes Act if the employer is unable to prove the charges with the evidence already on record he should be given an opportunity to lead evidence to sustain the charges. We may advert to the following passages: "the employer terminates the service of a workmen. That termination raises an industrial dispute either by way of an application under Section 33 of the act by the employer or by way of reference by the appropriate government under Section 10. If an application is made by the employer as it is required to be made in the prescribed form all facts are required to be pleaded. If a relief is asked for in the alternative that has to be pleaded. In an application under Section 33 the employer has to plead that a domestic enquiry has been held and it is legal and valid. If a relief is asked for in the alternative that has to be pleaded. In an application under Section 33 the employer has to plead that a domestic enquiry has been held and it is legal and valid. In the alternative it must plead that if the labour court or industrial tribunal comes to the conclusion that either there was no enquiry or the one held was defective, the employer would adduce evidence to substantiate the charges of misconduct alleged against the workman. Xxx xxx xxx xxx 34. Having given our most anxious consideration to the question raised before us, and minutely examining the decision in Cooper Engineering Limited v P. P. Mundhe , case to ascertain the ratio as well as the question raised both on precedent and on principle, it is undeniable that there is no duty cast on the industrial tribunal or the labour court while adjudicating upon a penal termination of service of workman either under Section 10 or under Section 33 to call upon the employer to adduce additional evidence to substantiate the charge of misconduct by giving some specific opportunity after decision on the preliminary issue whether the domestic enquiry was at all held, or if held, was defective, in favour of the workman. Cooper engineering limited's case, supra, merely specifies the stage at which such opportunity is to be given, if sought. It is both the right and obligation of the employer, if it so chooses, to adduce additional evidence to substantiate the charges of misconduct. It is for the employer to avail of such opportunity by a specific pleading or by specific request. If such an opportunity is sought in the course of the proceeding the industrial tribunal or the labour court, as the case may be, should grant the opportunity to lead additional evidence to substantiate the charges. But if no such opportunity is sought nor there is any pleading to that effect no duty is cast on the labour court or the industrial tribunal suo motu to call upon the employer to adduce additional evidence to substantiate the charges". The Supreme Court therefore equated the enquiry with the enquiry under Section 10 of the Industrial Disputes Act. If the enquiry was of prima facie in nature then there was no need to conduct a full-fledged enquiry with liberty to lead evidence. The Supreme Court therefore equated the enquiry with the enquiry under Section 10 of the Industrial Disputes Act. If the enquiry was of prima facie in nature then there was no need to conduct a full-fledged enquiry with liberty to lead evidence. It means, the enquiry under Section 33 (2) (b) was given similar status as that of an enquiry under Section 10 (1) of the act. It means that the full-fledged enquiry in a proceeding under Section 33 is tantamount to the enquiry under Section 10 (1) of the act. This is a departure from the view earlier stated by the Supreme Court in the reported decision referred to supra as the view had been that the consideration of the validity of the domestic enquiry be a prima facie consideration. It was held that the tribunal need consider whether there is ad herence to the principles of natural Justice and the delinquent had fair opportunity to defend. But when we come to the decision in shankar chakravarti's case, supra, referred to above it has been held that a full-fledged enquiry has to be held by the tribunal before granting approval under Section 33 (2) (b) of the act. ( 11 ) AS stated and referred to earlier it is reiterated by the Supreme Court and almost all other high courts that decisions the findings entered by the tribunal in a proceeding under Section 33 (2) (b) will not operate as res judicata. As we have noticed earlier the question to be decided in the proceeding under Section 33 (2) (b) is entirely different from Section 10 (1) of the act. If this be the position what is the validity any of the findings of the tribunal in a proceeding under Section 33 (2) (b)? Can the labour court rely on that finding in a full-fledged enquiry under Section 10 (1) of the act? As can be seen from shankar chakravarti's case, supra, in an enquiry under Section 33 (2) (b) of the Act, the management has the right to lead evidence to establish the charges against the worker even if the evidence led before the domestic enquiry by it, is insufficient to establish the charges. If this be the position the question would then arise whether the said finding would operate as res judicata when the very same question is agitated in the subsequent proceeding. If this be the position the question would then arise whether the said finding would operate as res judicata when the very same question is agitated in the subsequent proceeding. It is not in dispute that the management could still dismiss the worker despite the declining of approval under Section 33 (2) (b ). If so, the enquiry conducted by the labour court and a finding entered in his favour under Section 33 (2) (b) proceeding does not at all help the worker. If so, should the tribunal pin down the worker and jebar his pleas if the findings are against him when in the enquiry conducted under Section 33 (2) (1) of the act. It cannot be said that such a Rule can be adopted by the labour court and if adopted it would be against all principles of fair play. To hold that if the findings are in favour of the worker it is of no effect and it can be ignored by the employer and whereas when it is against the worker, the worker is debarred from reagitating the question is not a correct approach to the question. In other words if the finding in the Section 33 (2) (b) proceedings can be ignored by the employer and despite the rinding, a punishment can be imposed against worker, then, the worker also can ignore the said finding and reagitate the validity of the domestic enquiry if and when the question has to be examined by the labour court. Hence it is only proper to treat the finding entered by the tribunal to decide the application under Section 33 (2) (b) as purely prima facie intent to deal with the application for approval. An approval granted after a full-fledged enquiry under Section 33 (2) (b) will not render it to be immune from attack in a proceeding under Section 10 (1) or Section 33-a of the act. A dismissal of the worker after securing approval under Section 33 (2xb) is on the same pedestal as a dismissal without an approval. Both are liable to be interfered in a Section 10 (1) or Section 33-a proceeding. It means the finding in the proceeding under Section 33 (2xb) is subject to the right available to the party under Section 10 or Section 33-a of the act. Both are liable to be interfered in a Section 10 (1) or Section 33-a proceeding. It means the finding in the proceeding under Section 33 (2xb) is subject to the right available to the party under Section 10 or Section 33-a of the act. If so, none of the finding therein can be declared as operating as res judicata in any subsequent proceeding either under Section 10 (1) or Section 33-a of the Industrial Disputes Act. ( 12 ) IN this case the finding is entered by the labour court in the present proceedings on the basis the evidence tendered before it. The rinding entered by the tribunal on the preliminary issue be challenged while challenging the final award in the reference. may be in a given case, the labour court may accept the finding on the domestic enquiry entered in the proceeding under Section 33 (2) (b ). But it cannot be held that whatever be the materials placed before it, the labour court should not depart from the finding in Section 33 (2) (b) proceeding will be erroneous. Perhaps the management may be able to persuade the labour court that the findings entered by the labour court in the proceedings under Section 33 (2) (b) should be accepted. It is a material piece of evidence which can be relied on by either side. The observation of the Supreme Court in the decision of bengal bhatdee coal company's case, supra means only that if the finding under Section 33 (2) (b) of the act is entered by the tribunal after taking into account all materials on the issue regarding the domestic enquiry, the labour court cannot be found fault with if it concurs with that finding in an enquiry in a proceeding under Section 10 (1 ). It can be treated as a material piece of evidence. But it is not a conclusive piece of evidence. Therefore the finding entered by the tribunal in a proceeding under Section 33 (2) (b) will not certainly operate as res judicata. The proceedings under Section 10 (1) of the act cannot stand concluded by holding that the Rule of res judicata would apply and the findings of the labour court under Section 33 (2) (b) should be accepted as final. In this view of the matter i do not find any error committed by the labour court in passing the impugned order. In this view of the matter i do not find any error committed by the labour court in passing the impugned order. I therefore dismiss both the writ petitions. However, i make it clear that it is open to the petitioner to challenge the finding in this behalf if and when a final order is passed against them. --- *** --- .