JUDGMENT 1. - This special appeal is directed against the order dated 21.12.1993, passed by the learned Single Judge dismissing the writ petition, filed by the appellant and maintaining the order dated 18.2.1993 passed by the Industrial Tribunal, Jaipur. 2. The brief facts are that the services of the respondent No.1 (In short 'workman'), were terminated by the appellant vide order dated 26.7.1991. Before passing of the termination order a Departmental Enquiry was held against the workman in which the charges of criminal breach of trust for an amount of Rs. 7,31,887.75 p. have been proved. Since a dispute was pending in the Industrial Tribunal, Jaipur an application under Section 33(2)(b) of the Industrial Disputes Act (In short, 'the Act'), was filed by the appellant before the Tribunal seeking approval of the termination order dated 26.7.1991. 3. Admittedly, the workman had been put under suspension on 2.5.1987. During the period of suspension, the pay scales were revised from 1.9.1988. However, while making payment of one month's salary as required under Section 33(2)(b) of the Act, the benefit of revision of pay scale was not given to the workman. The Tribunal came to the conclusion that there was a short payment and, thus, on the ground of non-compliance of mandatory requirement of provisions of Section 33(2)(b) dismissed the approval application filed by the appellant vide order dated 18.2.1993. 4. The appellant filed a writ petition before this Court challenging the order dated 18.2.1993 passed by the Tribunal. The learned single Judge also concurred with the findings of the Tribunal and held that because of short payment, the Tribunal was justified in dismissing the approval application. It was further observed that the counsel for the appellant has not been able to show as to why the workman was not entitled for revision of pay scale during the period of suspension for calculating the one month's wages to be paid to the workman at the time of termination, as required under the proviso to Section 33(2)(b) of the Act. The writ petition was accordingly dismissed as having no force vide order dated 21.12.1993, which is under challenge in the present appeal. 5. The counsel for the appellant Shri Kewal Ram, has assailed the order of the learned single Judge as well as the order of the Tribunal on two grounds. The writ petition was accordingly dismissed as having no force vide order dated 21.12.1993, which is under challenge in the present appeal. 5. The counsel for the appellant Shri Kewal Ram, has assailed the order of the learned single Judge as well as the order of the Tribunal on two grounds. The main contention of the learned counsel for the appellant is that during the period of suspension the relationship of master and servant ceased to exist for the time being, and, thus, the workman was not entitled for the salary during the period of suspension. He has further contended that during the period of suspension the workman was only entitled for subsistence allowance as per provisions of the regulation/standing orders. During the period of suspension he was not entitled for any revision of pay scale and in case he is dismissed from service, one month's salary has to be calculated on the basis of last pay drawn by him, when he was put under suspension. 6. On the basis of above contention, the learned counsel for the appellant has vehemently argued that one month's wages, as paid to the concerned workman was rightly calculated by the appellant and the Industrial Tribunal was not justified in dismissing the approval application filed by the appellant. He has placed reliance on the judgment of Division Bench of Andhra Pradesh High.Court in the case reported in 1994 I CLR 207 (G. Yadi Reddi v. Brooke Bond India Ltd.) , judgment of the Supreme Court in the case reported in 1977 LIC 710 (Vice Chancellor, Jammu University v. Dushiyant Kumar) , and also referred to the Judgment of this Court in the case reported in 1982 LIC 517 (Dinesh Khere v. Industrial Tribunal, Jaipur) . 7. After having carefully gone through the record and the judgment of the learned Single Judge as well as the order of the Tribunal and also the cases cited by the learned counsel for the appellant, we are of the view that the submissions made by the counsel for the appellant are devoid of any force. 8. The point to be considered is whether the workman was entitled for revision of pay scale during the period of suspension so as to calculate one month's salary to be paid to him at the time of termination as required under the provisions of Section 33 (2)(b) of the Act. 8. The point to be considered is whether the workman was entitled for revision of pay scale during the period of suspension so as to calculate one month's salary to be paid to him at the time of termination as required under the provisions of Section 33 (2)(b) of the Act. Even after a pointed query made by the Court, the learned counsel for the appellant could not show any rule or law that an employee is not entitled to a revision of pay scale during the period of suspension. On the contrary, under the regulations as applicable to the appellant-corporation itself, there is a provision for payment of revised scale of pay during the period of suspension. That apart the relationship of master and servant is never snapped during the period of suspension, which is evident from the fact that for that period the workman is entitled for subsistance allowance. 9. Subsistence allowance has also been defined under the regulations. A workman is entitled for subsistence allowance equal to the amount of half of leave salary, admissible to him on leave and dearness allowance on such reduce salary. Subsistence allowance may be further increased as per discretion of competent authority in accordance with the provisions of the Regulation. Thus, it cannot be said that the concerned workman ceases to be in the employment during the period of suspension. In the absence of any specific rule, the workman is entitled to the revision of pay scale as well during the period of suspension and the subsistence allowance have also to be calculated and paid on the basis of the revision of the pay scale from time to time. 10. The case of G. Yadi Reddi, (supra) was a matter of non- compliance of Section 25-F of the Act and while interpreting the provisions of Section 25(b) of the Act the Division Bench of Andhra Pradesh High Court explained the words 'ceasion' and observed that merely because a casual labour was willing to work, there is no implied obligation on the part of the Company to provide him work if there is no work so as to attract the provisions of Section 25(b) while calculating continuous service. The above judgment, as cited by the learned counsel for the appellant is not relevant for the present case. The above judgment, as cited by the learned counsel for the appellant is not relevant for the present case. The Apex Court in the case of Vice Chancellor, (supra) was dealing with the powers of suspension and entitlement of wages during. the period of suspension and in that case the employee had claimed full salary during the period of suspension. The Apex Court rejecting the claim of the employee held that the employee was entitled only for the subsistence allowance in accordance with the rules governing the terms, and conditions of his service. The above judgment is also of no assistance to the appellant in the facts and circumstances of the present case. So far as the case of Dinesh Kumar (supra) is concerned the same also does to help the appellant in any manner. In that case the learned single Judge after going through the whole scheme of the Act and the provisions of Section 33(2)(b) of the Act specifically held that there cannot be any deduction from one month's wages to be paid as required under the Act and approval application is liable to be dismissed only on this ground. 11. One month's wages have to be calculated in its strict sense in the light of the mandatory provisions of Section 33(2)(b) of the Ad. The payment of one month's salary or wages is to soften the rigour of unemployment that will face the workman against whom an order of discharge or dismissal has been passed. 'Wages' have been defined under the Act itself and while making payment of one month's wages as required under the provisions of Section 33(2)(b) the same is to be calculated on the basis of salary which a workman would have been entitled at the time of this termination. 12. In Dinesh Khere's case (supra) this Court has categorically held that one month's wages which are payable under the proviso to Section 33(2)(b), stands on the same footing as wages paid in lieu of notice for termination of service of an employee under the standing orders. One month's wages, which are paid to the workman under the proviso to Section 33(2)(b) can-not, therefore, be regarded as the emoluments earned by the workman concerned while on duty. One month's wages, which are paid to the workman under the proviso to Section 33(2)(b) can-not, therefore, be regarded as the emoluments earned by the workman concerned while on duty. The said payment is to be made in view of the requirements of proviso to Section 33(2)(b) of the Act and it relates to the period, the workman will not be in service and therefore will not be on duty. The Court further held that the management could not have made the deduction of Provident Fund contribution from one month's wages for the purposes of paying the same to the workman as per provisions of Section 33(2)(b) of the Act and thus since the management had failed to pay to the workman one month's wages, as required by the proviso to Section 33(2)(b), there has been non- compliance of the provisions of proviso to Section 33(2)(b) of the Act. In view of the aforesaid contravention of the provisions of proviso, the application filed by the management for approval under Section 33(2)(b) was liable to be dismissed. 13. A similar question came for consideration before Division Bench of Patna High Court in the case of Muzaffarpur Electric Supply Company Ltd. v. S.K. Dutta, (1970 II LLJ 547) , wherein the Court while considering the entire matter held that the payment of one month's wages is to be made without making any deductions or dues and the dismissal could not be approved due to failure to pay one month's wages in full without deduction, and observed as under:- "If it were to be held that the payment of one month's wages can be made after deducting the previous dues due to the management from the workman, the very purpose of the mandatory requirement will be frustrated or is likely to be frustrated in many cases. In many cases there may be disputes in regard to the past dues. While hearing the application under Section 33(2)(b) of the Act a Tribunal or the Authority concerned in such a situation will be under a duty to find out whether the deduction made or proposed to be made by the management on account of any past dues, was correct, justified and legal. While hearing the application under Section 33(2)(b) of the Act a Tribunal or the Authority concerned in such a situation will be under a duty to find out whether the deduction made or proposed to be made by the management on account of any past dues, was correct, justified and legal. This does not seem to be the intention of the legislature when it provided in the proviso that one month's wages should be paid at the time of the dismissal of the workman concerned. The accounting or the adjustment of the past dues and the method of realisation from the workman may follow later on. But, this one month's wages must be paid or offered to be paid in full and at that stage the management cannot be allowed to make any deduction or adjustment against the allegedly past dues". 14. In the present case also admittedly the pay scale was revised from 1.9.1988 when the concerned workman was under suspension and while making the payment of one month's salary, the workman was not given the benefit of revision of pay scale. Thus, there being a short payment and non-compliance of mandatory requirement of the provision of Section 33(2)(b) of the Act, the Tribunal was justified in dismissing the approval application of the appellant on this ground alone. We find no error or illegality in the order of the Tribunal as well as in the judgment of learned single Judge. 15. So far the mandatory requirement of provisions of Section 33(2)(b) of the Act is concerned, the legal position is well settled. The proviso to Sub-section 2 has been considered by the Apex Court time and again, right from the decision in Straw Board Manufacturing Company Ltd. v. Govind, ( AIR 1962 SC 1500 ) , Tata Iron and Steel Company Ltd. v. S.N. Modak, ( AIR 1966 SC 380 ) , Lord Krishna Textile Mills v. Its Workmen, (1961 SC 860) , Lala Ram v. Management of DCM Chemical Works Mills Ltd. ( AIR 1978 SC 1004 ) and M/s. Podar Mills Ltd. v. Bhagwan Singh, ( AIR 1973 SC 2224 ) . It is now well settled that the requirements of the proviso have to be satisfied by the employer to the extent that they form part of the same transaction; and stated generally, the employer must either pay or offer the salary for one month to the employee before passing an order of his discharge or dismissal, and must apply to the specified authority for approval of his action at the same time, or within such reasonable short time thereafter as to form part of the same transaction. It is also settled that if approval is granted, it takes effect from the date of the order passed by the employer for which approval was sought. If approval is not granted, the order of dismissal or discharge passed by the employer is wholly invalid and inoperative, and the employee can legitimately claim to continue to be in the employment of the employer notwithstanding the order passed by him dismissing or discharging him. In other words, approval by the prescribed authority makes the order of discharge or dismissal effective. In the absence of approval, such an order is invalid and inoperative in law. 16. However, one question which still persists and tickles in our mind as to whether dismissal of an application under Section 33(2)(b) of the Act on technical grounds i.e., for want of compliance of mandatory requirement of the section, absolves the concerned workman from the charges of misconduct proved against him and which had been the basis of his dismissal. From a catena of judgments, as referred to above, though it is clear that after dismissal of the application under Section 33(2)(b), the dis-missal order automatically comes to an end and the concerned workman is deemed to be in service, entitling him to all the benefits. However, the question of misconduct proved against the workman in such matters have not been discussed and dealt with in any of the judgments. As there has been a plea taken by the appellants in this regard, we gave our thoughtful consideration to the above question. 17. After having carefully gone through the whole scheme of the Act, it is clear that the Act protects rights of both the parties,i.e., the employer as well as the workman. As there has been a plea taken by the appellants in this regard, we gave our thoughtful consideration to the above question. 17. After having carefully gone through the whole scheme of the Act, it is clear that the Act protects rights of both the parties,i.e., the employer as well as the workman. If there is no application for approval filed by the employer, the workman still can file a complaint under Section 33-A and the appropriate Court has to adjudicate on the complaint as if a reference under Section 10 has been made under the Act. In the absence of any application, the employer is further liable to be punished under Section 31. Even after grant of approval by the Tribunal under Section 33(2)(b) a workman is free to raise an Industrial Dispute in the same matter and the Labour Court/Tribunal is bound to decide the same on merit in accordance with law. 18. There may be instances where very serious charges of misconduct have been proved against a workman after holding a valid enquiry by the employer. However, because of the ban imposed by the Statute, the employer has to seek approval of the appropriate authority. If the approval application is rejected on technical ground, without going into the merits of the case, then, in such circumstances the order of termination having become invalid, the further point which arises for consideration is whether finding on the charge of misconduct also goes away automatically and the employer will be left totally helpless. This cannot be the intention of the legislation. 19. In our opinion, once an application for approval under section 33(2)(b) is rejected by the Tribunal, on technical grounds, without going into the merits, the dismissal order for which approval is sought becomes automatically invalid. However, as there is no adjudication on the merits, the employer still has an opportunity to pass a fresh dismissal order after due compliance in accordance with law. The only thing is that the concerned workman has to be treated in service and to be paid all the emoluments for the intervening period. The fresh dismissal order may further be a subject matter of scrutiny by a competent Court in accordance with law. 20. With the observations made above, we find no merit in the appeal. The same is dismissed with no order as to costs.Appeal dismissed. *******