D. P. KUNDU, J. ( 1 ) THE Court: In this writ proceeding the petitioner (hereinafter referred to as the workman) has challenged Memo. dated 6. 6. 97 issued by the Dy. Secretary, Government of West Bengal, Labour Department intimating the workman that in the terms of section 12 (5) of the Industrial Disputes Act, 1947 the Government do not consider the matter to be a fit case for making reference to any adjudicating forum. ( 2 ) IT appears that the workman was an employee of respondent No. 3 (hereinafter referred to as the company ). The company initiated a disciplinary proceeding against the workman and dismissed the workman from the services of the company. Since an industrial dispute between the company and their workmen was pending before the 7th Industrial Tribunal, West Bengal, the company preferred an application under section 33 (2) (b) of the Industrial Disputes Act, 1947 before the Tribunal for approval of the action in dismissing the workman. ( 3 ) IT appears that by an order No. 36 dated 13th March, 1992 the Tribunal passed an order refusing to approve the action of the company. It further appears that being aggrieved by and dissatisfied with the aforesaid order No. 36 dated 13th March, 1992 passed by the Tribunal company instituted a writ proceeding being Matter No. 2918 of 1992. It appears that on July 8, 1993 Susanta Chatterji, J. (as his Lordship then was) by an order quashed the said order No. 36 dated 13th March, 1992 passed by the Tribunal and the matter was sent back on remand before the Tribunal. The relevant portion of the judgment and order passed by Susanta Chatterji, J. , on July 8, 1993 in Matter No. 2918 of 1992 is quoted hereinbelow :-"upon perusal of the materials on record this court is of the view that the Tribunal has to approach the matter impartially independently and impassionately : The findings and the reasons of the Tribunal in refusing the approval do not appear to be fair and justified inasmuch as there is no proper appreciation of the enquiry report. Instead the Tribunal has considered the merit of the evidences adduced on behalf of the Company before the Enquiry officer. This is certainly beyond the scope of the scope of section 33 (2) (b) of the Industrial Disputes Act. Instead the Tribunal has considered the merit of the evidences adduced on behalf of the Company before the Enquiry officer. This is certainly beyond the scope of the scope of section 33 (2) (b) of the Industrial Disputes Act. The Tribunal sat for a limited purpose as to whether proper procedure was followed and whether there was any misconduct within the ambit of Clause 21 (a) of the Certified Standing Orders. Anything beyond the same will be unwarranted and uncalled for. The Tribunal, as this court finds, has gone beyond the scope of section 33 (2) (b) in assessing the merit of the evidence in the manner as done in the instant case. This judgment suffers from certain in inherent defects and the same cannot be sustained in law. The Tribunal has to consider in the proper perspective and to see whether there can be approval strictly within the spirit of section 33 (2) (b) of the Industrial Disputes Act. For the fitness of things, this court is of the view that the Tribunal should consider afresh the application of the company whether an approval should be granted by giving an opportunity to both sides and pass a fresh reasoned order in the manner as desired under section 33 (2) (b) of the Act. The matter is sent back on remand before the Tribunal and the impugned order is quashed accordingly. It is expected that the Tribunal will dispose the matter within a period of 4 months from the date of communication of the order. " ( 4 ) AFTER remand the Tribunal by an order No. 55 dated 5. 1. 95 approved the action of the company by dismissing the workman from the services of the company. The relevant portion from the order No. 55 dated 5. 1. 95 passed by the Tribunal is quoted hereinbelow :"the company in my view has been able to proving the prima facie case and as the application under section 33 (2) (b) of the I. D. Act was filed on 17. 5. 89 and the dismissal order was also done on the same day and one month's wages was also sent to the workman by M. D. on the same date there has been substantial compliance of provision of section 33 (2) (b ). 5. 89 and the dismissal order was also done on the same day and one month's wages was also sent to the workman by M. D. on the same date there has been substantial compliance of provision of section 33 (2) (b ). So in my view the company has been successful in proving their case and as such the action of the company in dismissing the workman concerned from his service is hereby approved. " ( 5 ) IT is now disputed that the workman did not challenge the aforesaid order No. 55 dated 5. 1. 95 passed by the Tribunal. The workman raised an industrial dispute in respect of his dismissal from the services of the company and prayed for referring the said industrial dispute under section 10 read with section 2a of the Industrial Disputes Act, 1947. The workman was communicated by the Labour Department, Government of West Bengal, which is under challenge in the writ proceeding that in terms of section 12 (5) of the Industrial Disputes Act, 1947 the Government did not consider the matter to be a fit case for making reference to any adjudicating forum. The relevant portion of the aforesaid Memo. dated 6. 6. 97 which is annexure 'c' of the writ petition is quoted hereinbelow :-"with reference to your representation dated 31. 3. 95 before the Labour Commissioner, West Bengal on the subject mentioned above, I am directed to inform you that the dispute relating to your case had been examined. On examination it transpires that the charges brought against you had been fully established and the Company had taken steps under clause 21a (a) of the Standing Order and Rules of the Company. The Company had also taken the approval of their action from the Seventh Industrial Tribunal, West Bengal, under section 33 (2) (b) of the I. D. Act. In the circumstances, in terms of section 12 (5) of the I. D. Act, 1947, this Government do not consider the matter to be a fit case for making reference to any adjudicating forum. " ( 6 ) IT is apparent from the aforesaid Memo dated 6. 6. 97 that for two reasons the Government did not consider the matter to be a fit case for making reference to any adjudicating forum. " ( 6 ) IT is apparent from the aforesaid Memo dated 6. 6. 97 that for two reasons the Government did not consider the matter to be a fit case for making reference to any adjudicating forum. The two reasons are (1) on examination it transpired to the Government that the charges brought against the workman had been fully established and the company had taken steps under clause 21a (a) of the Standing Order and Rules of the Company and (2) the Company had also taken the approval of their action from the 7th Industrial Tribunal, West Bengal, under section 33 (2) (b) of Industrial Disputes Act, 1947. ( 7 ) BY catena of decisions of Supreme Court it is now well settled, that, while exercising power under section 10 (1) of the Industrial Disputes Act, 1947, the function of the appropriate Government is an administrative function and not a judicial or quasi-judicial function, and that in performing this administrative function the Government cannot delve into the merits of the dispute and take upon itself the determination of this lis, which would certainly be in excess of the power conferred on it by section 10 of the Act. Reference may be made to Ram Avtar Sharma v. State of Haryana reported in (1995)3 SCC 189 ; M. P. Irrigation Karmachari Sangh v. State of M. P. reported in (1995)2 SCC 103; Sambhu Nath Goyal v. Bank of Baroda, Jullundur reported in (1978)2 SCC 353 ; Telco Convey Drivers Mazdoor Sangh and Anr. v. State of Bihar reported in (1989)3 SCC 271 ; Dhanbad Colliery Karmachari Sangh v. The Union of India reported in 1991 Supp (2) SCC 10. ( 8 ) IT is evident from the first reason given by the Government for not referring the dispute to the adjudicating forum that the Government delved into the merits of the dispute and took upon itself the determination of the lis which is in excess of the power conferred on it by section 10 of the Act. That apart the Government failed to take into consideration that in a case where there is no defect in procedure in the course of a domestic enquiry into the charges for misconduct against an employee, the Tribunal can interfere with an order of dismissal on one or the order of the following conditions. That apart the Government failed to take into consideration that in a case where there is no defect in procedure in the course of a domestic enquiry into the charges for misconduct against an employee, the Tribunal can interfere with an order of dismissal on one or the order of the following conditions. If there is no legal evidence at all recorded in the domestic enquiry against the concerned employee with reference to the charge or if no reasonable person can arrive at a conclusion of guilt on the charge levelled against the employee on the evidence recorded against him in the domestic enquiry. This is what is known as a perverse finding. (1)even if there is some legal evidence in the domestic enquiry but there is no prima facie case of guilt made out against the person charged for the offence even on the basis of evidence so recorded is reliable. Such a case may overlap to some extent with the second part of the condition No. (1) above. A prima facie case is not, as in criminal case, proved to the hilt. (2)where there is no failure of principles of natural justice in the course of the domestic enquiry, if the Tribunal finds that dismissal of an employee is by way of victimisation or unfair labour practice, it will then have complete jurisdiction to interfere with the order of dismissal passed in the domestic enquiry. In that event the fact that there is no violation of principles of natural justice in the course of the domestic enquiry will absolutely lose its importance or efficacy. (3)if the adjudicating forum is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit or give such other relief, to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require under section 11a of the Industrial Disputes Act, 1947. While exercising jurisdiction under section 33 (2) (b) the adjudicating forum cannot exercise power under section 11a of the Act. Power under section 11a of the Act can be exercised by the adjudicating forum only when a reference has been made under section 10 of the Act. While exercising jurisdiction under section 33 (2) (b) the adjudicating forum cannot exercise power under section 11a of the Act. Power under section 11a of the Act can be exercised by the adjudicating forum only when a reference has been made under section 10 of the Act. These very vital and relevant points were not taken into cosideration by the Government while refusing to refer the dispute to the adjudicating forum. Under these circumstances I am of the view that the first reason recorded by the Government for not referring the dispute to the adjudicating forum is bad in law. ( 9 ) THE learned Advocate for the company argued that since the Tribunal, after remand by the High Court, approved the action of the company under section 33 (2) (b) of the Industrial Disputes Act, 1947 and since the said order of the Tribunal has not been challenged by the workman concerned, the order of the Tribunal approving the action of the company has reached its finality and cannot be reopened by making a fresh reference under section 10 (1) of the Industrial Disputes Act, 1947. In support of his argument the learned Advocate for the company referred to Bharat Iron Works v. B. B. Patel reported in AIR 1976 SC 98 : 1976 (32) FLR 72, Supreme Court in Bharat Iron Works' case (supra) observed as follows :-"there is also no difference in principle of the law applicable to a case under section 10, Industrial Dispute Act and that under section 33. To put it clearly, it is this : when an application under section 33 whether for approval or for permission is made to a Tribunal it has initially a limited jurisdiction only to see whether a prima facie case is made out in respect of the misconduct charged. This is, however, the position only when the domestic enquiry preceding the order of dismissal is free from any defect, that is to say, free from the vice of violation of the principles of natural justice. If on the other hand, there is violation of the principles of natural justice, the Tribunal will then given opportunity to the employer to produce evidence, if any, and also to the workman to rebut it if he so chooses. If on the other hand, there is violation of the principles of natural justice, the Tribunal will then given opportunity to the employer to produce evidence, if any, and also to the workman to rebut it if he so chooses. In the latter event the Tribunal will be entitled to arrive at its own conclusion on merits on the evidence produced before it with regard to the proof of the misconduct charged, and the Tribunal, then will not be confined merely to consider whether a prima facie case is established against the employee. In other words, in such an event, the employers' findings in the domestic enquiry will lapse and these will be substituted by the independent conclusions of the Tribunal on merits. There is a two fold approach to the problem and if lost sight of, it may result in some confusion;firstly, in a case where there is no defect in procedure in the course of a domestic enquiry into the charges for misconduct against and employee, the Tribunal can interfere with an order of dismissal on one or other of the following conditions :- (1) If there is no legal evidence at all recorded in the domestic enquiry against the concerned employee with reference to the charge or if no reasonable person can arrive at a conclusion of guilt on the evidence recorded against him in the domestic enquiry. This is what is known as a perverse findings. (2) Even if there is some legal evidence in the domestic enquiry but there is no prima facie case of guilt made out against the person charged for the offence even on the basis that the evidence so recorded is reliable. Such a case may overlap to some extent with the second part of the condition No. 1 above. A prima facie case is not as in a criminal case, proved to the hilt. It must be made clear in following the above principles, one or the other, as may be applicable in a particular case, the Tribunal does not sit as a court of appeal, weighing or reappreciating the evidence for itself but only examines the finding of the enquiry officer on the evidence in the domestic enquiry as it is, in order to find out either whether there is a prima facie case or if the findings are perverse. Secondly, in the same case i. e. where there is no failure of the principles of natural justice in the course of domestic enquiry, if the Tribunal finds that dismissal of an employee is by way of victimisation or unfair labour practice, it will then have complete jurisdiction to interfere with the order of dismissal passed in the domestic enquiry. In the event the fact that there is no violation of the principles of natural justice in the course of domestic enquiry will absolutely lose it importance or efficacy. "in Lalla Ram v. D. C. M. Chemical Works reported in AIR 1978 SC 1004 Supreme Court observed, inter alia, as follows-"in proceedings under section 33 (2) (b) of the Act the 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 victimisation the employee ?? 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 property or adequacy of 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 has simultaneously or within such reasonably 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. " ( 10 ) IT appears from the order No. 55 dated 5. 1. 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. " ( 10 ) IT appears from the order No. 55 dated 5. 1. 95 passed by the 7th Industrial Tribunal in connection with Case No. 6/89 under section 33 (2) (b) of the Industrial Disputes Act, 1947 that evidences were adduced by the parties before the Tribunal. Such evidences were produced before remand of the case by the High Court. After remand no further evidence was allowed by the Tribunal. The Tribunal in its order No. 55 dated 5. 1. 95 observed, inter alia, as follows :-"further the spirit of the order of the Hon'ble High Court as given in Page 4 of the Judgment goes clearly to show that this Tribunal has been asked to give a fresh reasoned order and consequently the scope of section 33 (2) (b) of the Industrial Disputes Act being a limited one and also in view of the specific direction of the Hon'ble High Court there is no necessity whatsoever for allowing further evidence and that was not done by my predecessor-in-office. Furthermore, it must be borne in mind that in disposing of such cases the prima facie case has got to be looked into and it is not at all necessary that the matter is to be discussed at length and that there should be proof to the hilt in as much as there is not such scope for detailed discussions relating to the merits of the case itself. " ( 11 ) IT is evident from the Order No. 55 dated 5. 1. 95 that the Tribunal was of the view that the Company had been able in proving the prima facie case and there had been substantial compliance of the provisions of section 33 (2) (b) of the Industrial Disputes Act, 1947 and approved the action of the Company in dismissing the workman from service. ( 12 ) LEARNED Advocate for the Company also referred to State of Bombay and another v. Krishnan (K. P.) and others reported in 1960 (2) LLJ 592 . In the said case Supreme Court observed, inter alia as follows :-"the controversy between the parties as to the construction of section 12 (5) is, however, only of academic importance. ( 12 ) LEARNED Advocate for the Company also referred to State of Bombay and another v. Krishnan (K. P.) and others reported in 1960 (2) LLJ 592 . In the said case Supreme Court observed, inter alia as follows :-"the controversy between the parties as to the construction of section 12 (5) is, however, only of academic importance. On the Respondents' argument, even if it is obligatory on Government to make a reference provided it is satisfied that there is a case for reference, in deciding whether or not a case for reference is made, Government would be entitled to consider all relevant facts, and if on a consideration of all the relevant facts it is not satisfied that there is a case for reference, it may well refuse to make a reference and record and communicate its reasons therefor. According to the appellants and the Company also though the discussion is with Government, its refusal to make a reference can be justified only if it records and communicates its reason therefor and it appears that the said reasons are not wholly extraneous or irrelevant. In other words, though there may be a difference of emphasis in the two methods of approach adopted by the parties in interpreting section 12 (5), ultimately both of them are agreed that if in refusing to make a reference Government is influenced by reasons which are wholly extraneous or irrelevant or which are not germane, then its decision may be open to challenge in a court of law. It would thus appear that even the appellant and the Company do not dispute that if a consideration of all the relevant and germane factors leads the Government to the conclusion that there is a case for reference, the Government must refer though they emphasise that the scope and extent of relevant consideration in very wide; in substance the plea of respondents that "may" must mean "shall" in section 12 (5), leads to the some result. Therefore, both the methods of approach ultimately leads to the same crucial enquiry : are the reasons recorded and communicated by the Government under section 12 (5) germane and relevant or not? Therefore, both the methods of approach ultimately leads to the same crucial enquiry : are the reasons recorded and communicated by the Government under section 12 (5) germane and relevant or not? it is common ground that a writ for mandamus would be lie against the Government if the order passed by it under section 10 (1) is for instance contrary to the provisions of section 10 (1) (a) to (d) in the matter of selecting the appropriate authority, it is also common ground that in refusing to make a reference under section 12 (5) if Government does not record and communicate to the parties concerned its reasons therefore, a writ of mandamus would lie. Similarly it is not disputed that if a party can show that the refusal to refer a dispute is not bonafide or is based on a consideration of wholly irrelevant facts and circumstances, a writ of mandamus would lie. The order passed by the Government under section 12 (5) may be an administrative order and the reasons recorded by it may not be justiciable in the sense that their propriety, adequecy or satisfactory character may not be open to judicial scrutiny; in that sense it would be correct to say that the court hearing a petition for mandamus is not sitting in appeal over the decision of the Government; nevertheless if the court is satisfied that the reasons given by the Government for refusing to make a reference are extraneous and not germane, then the court can issue, and would be justified in issuing a writ of mandamus even in respect of such an administrative order. After an elaborate argument on the construction of section 12 (5) was addressed to us it became clear that on this part of the case there was no serious dispute between the parties. That is why we think controversy as to the construction of section 12 (5) is of no more than academic importance. " (Emphasis added) ( 13 ) SUPREME Court in Mysore Steel Works v. Jitendra Chandra Kar and others reported in 1971 (1) LLJ 543, in paragraph 10 of the reported decision laid down the scope of the power of an industrial Tribunal in an enquiry under section 33 (2) of the Industrial Disputes Act. " (Emphasis added) ( 13 ) SUPREME Court in Mysore Steel Works v. Jitendra Chandra Kar and others reported in 1971 (1) LLJ 543, in paragraph 10 of the reported decision laid down the scope of the power of an industrial Tribunal in an enquiry under section 33 (2) of the Industrial Disputes Act. Paragraph 10 of the said reported decision is quoted hereinbelow :-"the question as to the scope of the power of an Industrial Tribunal in an enquiry section 33 (2) of the Industrial Disputes Act has by now been considered by this court in a number of decisions and is no longer in dispute. If the Tribunal comes to the conclusion that the domestic enquiry was not defective, that is, it was not in violation of the principles of natural justice, it has only to see if there was a prima facie case for dismissal, and whether the employer had come to a bona fide conclusion that the employee was guilty of misconduct. In other words, if there was no unfair labour practice and no victimisation, it will then grant its approval. If the Tribunal, on the other hand, finds that the enquiry is defective for any reason, it would have to consider for itself on the evidence adduced before it whether the dismissal was justified. If it comes to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified it would give its approval to the order of dismissal made by the employer in a domestic enquiry (See P. A. Kalyani v. M/s. Air France (1964)2 SCR 104 at 112. Where, therefore, the domestic enquiry is conducted in violation of the principles of natural justice evidence must be adduced before the Tribunal by the employer to obtain its approval. Such evidence must be adduced in the manner evidence is normally adduced before the Tribunal, that is, witnesses must be examined and not by merely tendering the evidence laid before the domestic enquiry, unless the parties agree and the Tribunal gives its assent to such a procedure. (See K. M. Barmah v. The Management of Budla Beta Tea Estate, C. A. No. 1017 of 1968, dated 9th March, 1967.) It is clear, therefore, that the jurisdiction of a tribunal under section 33 (2) is of a limited character. (See K. M. Barmah v. The Management of Budla Beta Tea Estate, C. A. No. 1017 of 1968, dated 9th March, 1967.) It is clear, therefore, that the jurisdiction of a tribunal under section 33 (2) is of a limited character. Where the domestic enquiry is not defective by reason of violation of principles of natural justice or it findings being perverse or by reason of any unfair labour practice, the Tribunal has only to be satisfied that there is a prima facie case for dismissal. The Tribunal in such cases does not sit as an appellate court and come to its own findings of fact. "it is evident from principle laid down by Supreme Court in Mysore Steel Works' case (supra) that if the Tribunal comes to the conclusion that the domestic enquiry was not defective, that is it was not in violation of the principle of natural justice, it was only to see if there was a prima facie case for dismissal, and whether the employer came to a bona fide conclusion that the employee was guilty of misconduct. In other words, if there was no unfair labour practice and no victimisation it will then grant its approval. Thus it is clear that the jurisdiction of Tribunal under section 33 (2) is of a limited character. Where the domestic enquiry is not defective by reason of violation of principles of natural justice or its findings being perverse or by a reason of unfair labour practice. The Tribunal has only to be satisfied that there is a prima facie case for the dismissal. But while exercising power under section 33 (2) of the Industrial Disputes Act, the Tribunal cannot exercise its power under section 11a of the Industrial Disputes Act, 1947. Therefore, the second reason recorded by the Government for refusing to refer the dispute to the adjudicating forum, in my opinion, is not germane. I am of the view that even when the adjudicating forum approved the action of an employer dismissing its workman from the services, under section 33 (2) (b) of the Industrial Disputes Act, still a question remains to be decided, the question is whether quantum of punishment is proportionate to the allegation of misconduct and the same can be decided by an adjudicating forum only under section 11a of the Industrial Disputes Act. I respectfully agree with the view expressed by a Division Bench of Rajasthan High Court-Jaipur Bench in Rajasthan State Road Transport Corporation v. Shyamlal and Another reported in 1996 (74) FLR 2532 where in the Division Bench held that even after 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. ( 14 ) IN view of the discussions made hereinabove I am of the view that the Government while refusing to refer the dispute raised by the workman to the adjudicating forum acted in excess of its jurisdiction and taken into consideration matters which are not germane. As a result I quash and set aside the Memo dated 6. 6. 97 issued by the Deputy Secretary, Government of West Bengal, Labour Department which is annexure-'c' of the writ petition, refusing to refer the dispute to any adjudicating forum. I direct the respondent No. 1, the State of West Bengal, Labour Department to refer the dispute raised by the workman under section 10 (1) read with section 2a of the Industrial Disputes Act, 1947 to the appropriate adjudicating forum and such reference should be made within three months from the date of communication of this order to the respondent No. 1. In these terms the writ application is allowed. However, there shall not be any order as to costs. Petition allowed