JUDGMENT : N. Pandey, J. - Petitioner at the relevant time was an employee of the Bihar State Road Transport Corporation. In this petition under Article 226 of the Constitution, he has challenged the validity of the ORDER :under Section 33(2)(b) of the Industrial Disputes Act, 1947, in short the 'Act', whereby and whereunder, the Presiding Officer, Industrial Tribunal, Patna, approved the ORDER :of discharge of the petitioner from service. 2. Facts, which are beyond the pale of controversy, may be briefly stated as under : On 12.10.1982 while the petitioner was proceeding with vehicle no. BRM 9620, it was detected by the Central squad that three passengers of the bus were travelling without tickets. Similar checking was made on 10.9.1984 with regard to vehicle no. BRM 772 and this time it was detected that thirty passengers were travelling without tickets. There is no dispute that on both the occasions petitioner was the conductor of the concerned buses. Therefore, having found that the petitioner for his personal gain, had allowed the passengers to travel without tickets, the competent authority placed him under suspension. Thereafter, on 23.11.1984 petitioner was served with a copy of charge-sheet (Annexure-5) with regard to second incident calling upon to show cause within fifteen days before Sri Thakur Umeshwar Prasad Singh, who was appointed as conducting officer. It is alleged although the disciplinary authority had given fifteen days' time to file show cause, but Sri Thakur started enquiry on the same day and also examined and cross-examined the checking officer Mr. Z. M. Khan and thereafter, granted one week's time to enable the petitioner to examine his witness and to file written submission. Ultimately on 28.12.1984 the conducting officer having found the petitioner guilty for carrying passengers un-booked without issuing them proper tickets, recommended before the disciplinary authority for an ORDER :of punishment and accordingly the Chief of Administration by ORDER :dated 17.1.1985 discharged him from service and filed an application before the Presiding Officer, Industrial Tribunal for approval under Section 33(2)(b) of the Act. 3. Mr. Sinha, Sr. counsel contended that the Industrial Tribunal has completely failed to appreciate that no reasonable opportunity was given to the petitioner at the time of domestic enquiry. 3. Mr. Sinha, Sr. counsel contended that the Industrial Tribunal has completely failed to appreciate that no reasonable opportunity was given to the petitioner at the time of domestic enquiry. Because from a bare reference to the facts stated above, it would appear that on 23.11.1984 a copy of charge-sheet was given to the petitioner and on that very day the conducting officer was also appointed, who without extending any opportunity to the petitioner to file show cause, started the proceeding on that very day and examined Sri Z. M. Khan, the checking officer. The petitioner getting no alternative, had no option but to cross-examine Mr. Khan, although he had no opportunity to file show cause with regard to alleged charges. 4. It was next contended that as would appear from Annexure-5 that no charge was framed with regard to the alleged irregularity, which was detected on 12.10.1982 and charges were exclusively framed with regard to second incident, as detected on 10.9.1984. But the conducting officer held him guilty with respect to the irregularities, found on both the occasions. Therefore, one can safely infer that no opportunity whatsoever was given to the petitioner with respect to the first allegation. 5. On the other hand, Mr. Verma learned counsel appearing on behalf of the respondents, contended that from the findings of the conducting officer it would appear that the petitioners had cross-examined Mr. Z. M. Khan on 23.10.1984 itself. Therefore, it would not be proper to allege that no reasonable opportunity was given at the time of domestic enquiry. He further contended that having regard to the provisions as contemplated under ORDER :No. 25(b) of the standing ORDER :of the Bihar State Road Transport Corporation, petitioner had an alternative remedy of appeal against the ORDER :of punishment or he can raise industrial disputes under Section 10 of the Act, if aggrieved by the impugned ORDER :of the Industrial Tribunal under Section 33(2)(b) of the Act. He further contended though the copy of charge (Annexure-5) only relates to the second incident, but having regard to the materials available on the record about the first allegation, the conducting officer was quite competent to record his finding, if those allegations were proved. 6. In my view, there appears no substance in either of the submission of Mr. Verma. He further contended though the copy of charge (Annexure-5) only relates to the second incident, but having regard to the materials available on the record about the first allegation, the conducting officer was quite competent to record his finding, if those allegations were proved. 6. In my view, there appears no substance in either of the submission of Mr. Verma. Because the scope and ambit of Section 33 of the Act is quite different to a reference under Section 10. While dealing with an application under S. 33(2)(b), the Tribunal is not required to consider whether punishment sought to be imposed by the employer to the workman was harsh or excessive. The jurisdiction of the Tribunal in an application under S.33(2)(b) of the Act is confined to a scrutiny whether proper domestic enquiry in accordance with the relevant rules or standing ORDER :s were followed by the conducting officer and whether the principles of natural justice were adhered to. The Tribunal at this stage is also required to find out whether prima facie a case for dismissal based on legal evidence at the time of domestic enquiry is made out and further the action of the employer was bonafide and not intended to victimise the employee. Reference in this regard can usefully be made to a decision of the Apex Court in the case of All India Punjab National Bank Employees' Federation vs. Punjab National Bank Ltd., A.I.R. 1960 S.C. 160, which runs as follows : "....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. 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. 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 holds that a prima facie case is or is not made out by the employer." 7. To support the aforesaid views reference can also be made to a decision in the case of The Cooper Engineering Ltd. vs. P.P. Mundhe, A.I.R. 1975 S.C. 1900, where in paragraph no. 22 of the JUDGMENT : it was observed as under. "....when a case of dismissal or discharge of an employee is referred for industrial adjudication the Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the Labour Court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue……" 8. In this case it has been rightly alleged that the learned Tribunal without appreciating the grievance of the petitioner and even without referring to the relevant records, has held that domestic enquiry was fair and proper since he had cross examined the witness on 23.11.1984 and had filed written argument. No consideration whatsoever was made under what circumstances even without framing charges with respect to the alleged incident of 12.10.1982 findings were recorded by the conducting officer. He also failed to consider when on 23.11.84 a copy of charge was given to the petitioner how on that day itself, the conducting officer started a proceeding and examined and cross-examined Z. M. Khan, checking officer, even without extending any opportunity to the petitioner to file show cause. He also failed to consider when on 23.11.84 a copy of charge was given to the petitioner how on that day itself, the conducting officer started a proceeding and examined and cross-examined Z. M. Khan, checking officer, even without extending any opportunity to the petitioner to file show cause. Therefore, regard to the facts, stated above, in my having view, there can not be any manner of doubt that the learned Tribunal has failed to comply with the mandatory requirements of S. 33(2)(b) of the Act, hence the matter requires reconsideration. 9. I accordingly, set aside the ORDER :of the Tribunal and remit the matter back to the same authority for adjudication whether a proper domestic enquiry was made in accordance with the relevant rules and standing ORDER :after applying the principles of natural justice and whether a prima facie case for dismissal based on legal evidence adduced at the time of domestic enquiry was made out. 10. If, however, the Tribunal holds that the domestic enquiry was not fair, having regard to the law laid down by the Apex Court in the case of The Cooper Engineering Ltd. (supra) or State Bank of India vs. R. K. Jain & ors., A.I.R. 1972 S.C. 136 or even by this Court in L.P.A. No.8 of 1986, opportunity must be given to the management to establish by evidence that the ORDER :of removal or discharge was properly imposed. 11. In the result, this writ application is allowed to the extent indicated above and the impugned ORDER :of the Industrial Tribunal stands set aside.