JUDGMENT : Brijesh Kumar, C.J.—The precise question which arises for consideration in this Writ Appeal is about the relative scope of the provisions contained u/s 33 and Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). A case, where approval to proposed punishment has been granted by the Industrial Tribunal u/s 33(2)(b) of the Act, it would or not, create bar by applying principles of res judicata to examine the order of punishment on merits, in adjudication proceedings initiated and referred to at the instance of the employee, u/s 10 of the Act. 2. The brief facts are that the respondent No. 3 namely, Sri Achyut Talukdar was working as Section assistant in Civil Department in the Associated Industries (Assam) Spinning Unit, Charidrapur belonging to the National Textile Corporation (WBABO) Ltd. Certain charges seem to have been levelled against the respondent No. 3 and one of his co-workers. It appears that some other proceedings under the Act were already pending, relating to conditions of service of employee of the appellant before the Industrial Tribunal. Hence the employer moved a petition u/s 33(2)(b) of the Act, for approval of order of dismissal of respondent from service. The case was registered as Case No. 15 of 1984 and the other one related to Sri Sundar Kurmi, a co-worker of the respondent as Case No. 16 of 1984. In the proceedings under Sec. 33(2)(b) of the Act, parties adduced evidence before the Tribunal and ultimately by order dated October 4, 1985 the Industrial Tribunal accorded approval for dismissal of the service of the respondent. The Tribunal observed to the following effect. "..,,.. I am very much constrained to hold that there was a strong prima facie case against the employees concerned." It was also observed that according to the employer they approached the Tribunal for approval by way of abundant caution though no such approval was required under the law. Ultimately the Tribunal made the following observations: "..... Now in view of the above discussion I am quite unable to refuse the approval sought. The charges against the employees are quite independently proved before this Tribunal and as a result the petitions for approval are hereby allowed." It appears that after the approval was granted by the Tribunal the employer dismissed the respondent from the services. Now in view of the above discussion I am quite unable to refuse the approval sought. The charges against the employees are quite independently proved before this Tribunal and as a result the petitions for approval are hereby allowed." It appears that after the approval was granted by the Tribunal the employer dismissed the respondent from the services. The employee approached the Government and a Notification dated May 20, 1987 was issued by the Government referring the Industrial Disputes for adjudication before the Labour Court. The two questions referred for adjudication are quoted below: "1(a) Whether the management of Associated Industries (Assam) Spinning Unit, Chandrapur,, Guwahati are justified in dismissing Sri Achyut Talukdar from service with effect from November 26, 1984. l(b) If not, is he entitled to re-instatement with back wages or any other relief in lieu thereof." It was registered as Reference No. 23 of 1987 by the Labour Court. The parties exchanged their written statements. It appears that one additional issue was framed as Issue No. 1(a) as raised by the employer regarding maintainability of the reference u/s 10 of the Act. The plea seems to have been raised in view of the order passed by the Industrial Tribunal dated October 4, 1985 giving approval for passing the order of dismissal of the services. That issue seems to have been decided as preliminary issue by order dated June 22, 1989. The Labour Court held that the reference proceedings were maintainable and thereafter proceeded to hear the case on merits. It further transpires that in the proceedings before the Labour Court both the parties desired to rely upon the evidence adduced before the Industrial Tribunal and a request was made that the same may be treated as evidence adduced by the parties in the reference case. The workman, however, in addition examined himself before the Labour Court with its permission. After considering the material on record including the evidence, the Presiding Officer, Labour Court by order dated February 27, 1991 held that the dismissal was unjustified and also granted the relief of reinstatement with all back ages. The said order of the Labour Court was impugned by the appellant before the learned single Judge in Civil Rule No. 3352 of 1991. The learned single Judge dismissed the Writ Petition by order dated January 29, 1996. The said order of the Labour Court was impugned by the appellant before the learned single Judge in Civil Rule No. 3352 of 1991. The learned single Judge dismissed the Writ Petition by order dated January 29, 1996. The present appeal arises out of the said order passed by the learned Single Judge in the Civil Rule. 3. Sri N.N. Saikia, learned counsel appearing for the appellant contended that once the Industrial Tribunal had recorded the finding about the guilt the workman, namely, respondent No. 3 after the Tribunal had permitted the parties to adduce evidence, such finding would have the effect of constructive res judicata, in the proceedings, on reference by the Government u/s 10 of the Act. In support of his contention he has placed reliance upon a decision reported in Workmen of Motipur Sugar Factory (Private) Limited Vs. Motipur Sugar Factory, AIR 1965 SC 1803 . Our attention has more particularly been drawn to paragraphs 11 and 12 of the judgment. It has been held that where an employer failed to hold an enquiry before dismissing or discharging a workman, it is open to the employer to lead evidence before the Tribunal to justify the action. Thus the scope will not be confined only to the question as to whether the enquiry was properly held or not, but the Tribunal would record its finding on the basis of the evidence which may be led to justify the order. It has further been observed that in principle no difference was observed, whether the matter was before the Tribunal for approval u/s 33 of the Act or in reference u/s 10 of the Act. In either of the cases if the enquiry is defective or no enquiry was held, it would be open for the employer to justify the order of dismissal or discharge. It was further held that it has been so provided with the object of avoiding delay in disposal of industrial disputes. What has been held by the Hon'ble Supreme Court in the above noted decision is that the Tribunal either in proceedings u/s 33 or Labour Court u/s 10 of the Act may allow the employer to justify the order of punishment, by adducing evidence in support thereof. 4. Yet another decision which has been relied upon by the learned counsel for the appellant is reported in Workmen of Cochin Port Trust Vs. 4. Yet another decision which has been relied upon by the learned counsel for the appellant is reported in Workmen of Cochin Port Trust Vs. Board of Trustees of The Cochin Port Trust and Another, AIR 1978 SC 1283 . In this decision the question of res judicata was considered about the findings recorded in the earlier proceedings. We further find that the said decision is in a different context. In that case a SLP filed by the employer before the Supreme Court was dismissed. No reasons whatsoever were indicated. Thereafter the employer invoked the writ jurisdiction of the High Court. The workmen went to the Supreme Court against the decision of the High Court invoking the doctrine of res judicata in view of dismissal of the earlier SLP filed by the employer saying that it was thereafter not open to the employer to approach the High Court. The Hon'ble Supreme Court observed that the principles of constructive res judicata are applicable when any matter might and ought to have been made a ground of defence or attack in a former proceeding but was not so made and would bar the trial in a subsequent proceedings between the same parties. As observed by us earlier the whole matter was considered in different context. We are, in this case, not concerned with such a situation. 5. As a matter of fact, so as to appreciate the point raised in its proper perspective, it would be necessary to consider the scope of enquiry u/s 33 of the Act and the adjudication u/s 10 of the Act. Section 33 only puts an embargo that during the pendency of any conciliation proceeding or any proceeding before the Tribunal, conditions of service of the employees shall remain unchanged and alteration is permissible only with regard to the matter not connected with the dispute with the approval of the Tribunal. It is thus only with a view to lift the ban or restriction placed on the employer to change the condition of service of the workmen during pendency of proceeding before the Labour Court or the Industrial Tribunal that the Industrial Tribunal has to examine the matter u/s 33(2)(b) of the Act. The purpose, prima facie, is to find out that the action which is proposed to be taken is not to victimise the workmen. The purpose, prima facie, is to find out that the action which is proposed to be taken is not to victimise the workmen. In case prima facie case in favour of the employer is found, then proposed punishment may be approved by the Tribunal. So far the scope of enquiry in a matter of adjudication of dispute u/s 10 is concerned, it is when the appropriate Government is of the opinion that any industrial dispute exists, it refers the dispute for adjudication to a Court. The powers are vested in the Labour Court, Tribunals and National Tribunals u/s 11A of the Act to grant appropriate relief in the case of discharge or dismissal of the workmen. It will be appropriate to quote Section 11A of the Act. It reads as under: "11.A. Power of Labour Court, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen. Where in industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court. Tribunal or National Tribunal, as the case may be, 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: Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter." A perusal of the above provisions clearly indicates that it is within jurisdiction of the Labour Court to consider the question of award of any lesser punishment in lieu of discharge or dismissal of the workmen as the circumstances of the case may require. It has also the power to grant any other relief. It has also the power to grant any other relief. Therefore, in any case the contention which is sought to be raised by the appellant is accepted, it will only curtail the jurisdiction which is vested in the Labour Court on a reference made by the Government u/s 10 of the Act. An order of approval of punishment passed on the basis of proceedings u/s 33(2)(b) of the Act would not be the end of the matter. The real adjudicatory powers are vested in the Labour Court and the Tribunal u/s 10 read with Section 11A of the Act. A decision on the point is reported in Mckenzie and Co. Ltd. Vs. Its Workmen and Others, AIR 1959 SC 389 . Relevant discussion is to be found in paragraphs 16 and 18 of the judgment and it has been observed that Section 33 of the Act empowers the Tribunal to give or withhold permission to the employer, during the pendency of an industrial dispute, to discharge or punish a workman concerned. It is further observed that in such a case the Tribunal has only to see the prima facie case and the object is to protect the workman during a pending industrial dispute, against intimidation or victimisation. It would be to ensure that the employer is not acting mala fide or resorting to any unfair labour practice. It is further observed as follows:- "..... Therefore when the Tribunal gives or refuses permission it is not adjudicating an industrial dispute, its function is to prevent victimisation of a workman for having raised an industrial dispute. The nature and scope of proceedings u/s 33 shows that removing or refusing to remove the ban on punishment or dismissal of workman does not bar the raising of an industrial dispute when as a result of the permission of the Industrial Tribunal the employer dismisses or punishes the workman. As the purpose of Section 33 of the Act is merely to give or withhold permission and not to adjudicate upon an industrial dispute, any finding u/s 33 would not operate as res judicata and bar the raising of an industrial dispute." From coming to the above conclusion the Hon'ble Supreme Court placed reliance on its several earlier decisions. Yet another decision of the Supreme Court on the point is reported in Punjab Beverages Pvt. Ltd., Chandigarh Vs. Yet another decision of the Supreme Court on the point is reported in Punjab Beverages Pvt. Ltd., Chandigarh Vs. Suresh Chand and Another, AIR 1978 SC 995 . The relevant discussion is to be found in paragraph 6 of the judgment. It has been held: "It will be seen that the only scope of the inquiry before the Tribunal exercising jurisdiction u/s 33 is to decide whether the ban imposed on the employer by this Section should be lifted or maintained by granting or refusing the permission or approval asked for by the employer. If the permission or approval is refused by the Tribunal, the employer would be precluded from discharging or punishing the workman by way of dismissal and the action of discharge or dismissal already taken would be void. But the reverse is not true even if the permission or approval is granted that would not validate the action of discharge or punishment by way of dismissal taken by the employer. The permission or approval would merely remove the ban so as to enable the employer to make an order of discharge or dismissal and thus avoid incurring the penalty u/s 31(1), but the validity of the order of discharge or dismissal would still be liable to be tested in a reference at the instance of the workmen u/s 10. (vide Atherton West & Co's case and the Punjab National Bank case.) The workman would be entitled to raise an industrial dispute in regard to the order of discharge or dismissal and have it referred for adjudication u/s 10 and the Tribunal in such reference would be entitled to interfere with the order of discharge or dismissal within the limits laid down by this Court in several decisions commencing from Indian Iron & Steel Co. Ltd. v. Their Workmen." From perusal of the above decision it is quite clear that lifting of ban or approving the order of punishment to be passed by the employer, does not create a bar nor operate as constructive res judicata to consider the validity or grant of any appropriate relief in proceeding u/s 10 of the Act. The nature and purpose of the two proceedings are different. The nature and purpose of the two proceedings are different. Merely the fact that the Industrial Tribunal permitted the parties to adduce evidence to justify its action would not divest the workman of his right to challenge the order of punishment passed after lifting of the ban, u/s 10 of the Act. In one of the decisions of this Court reported in 1988 2 GLR 8 (Md. Anwar Azim Borah v. The State of Assam and Ors.) it was observed that a decision of an application u/s 33(2)(b) even if rendered on merit would not, ipso facto, be res judicata in a reference u/s 10 of the Act. 6. Learned counsel for the appellant tried to make a distinction by submitting that in case where the approval is granted to pass the order of punishment without permitting the parties to adduce evidence, in that case it will be open for the workmen to agitate the validity of the order of punishment u/s 10 of the Act But in case the Tribunal while dealing with the matter u/s 33(2)(b) allows the parties to adduce evidence, it will not be permissible for the workman to raise such question before the Labour Court. We do not feel persuaded by this submission. As noted earlier, the Labour Court in exercise of powers u/s 11A of the Act, on reference u/s 10 of the Act, can make an award and the Labour Court has jurisdiction even to consider the quantum of punishment required to be awarded in the facts and circumstances of the case. It also has jurisdiction to grant any relief as may be thought appropriate. In case the finality is attached to the order passed by the Tribunal u/s 33(2)(b) of the Act, the provision of reference and adjudication would be rendered nugatory. The Labour Court under its ad-judicatory power will not even be able to consider the question of quantum of punishment or any other relief to which the parties may be entitled to in the facts and circumstances of the case since the quantum of punishment, namely, discharge or dismissal from service will also have to be finally considered and decided by the Tribunal u/s 33(2)(b) of the Act 7. The scope of enquiry in proceedings u/s 33(2)(b) of the Act is certainly limited. The scope of enquiry in proceedings u/s 33(2)(b) of the Act is certainly limited. The Tribunal is required to examine as to whether there is any prima facie case made out for the punishment proposed to be awarded to the employee. This is required to be done with a view to ensure that the employer is not victimising or using unfair labour practices against the employee or employees by reason of the fact that they had already initiated certain proceedings which at the relevant time are pending before the Tribunal or any Labour Court To test the bona fides of the employer the Tribunal u/s 33(2)(b) of the Act would obviously like to see whether there is substance in the allegations and charges said to be made out by the employer against the employee or not. It has also to examine as to whether the charges and the subject-matter are other than and unrelated to the proceedings already pending before the Labour Court or the Tribunal. In our view, for finding out such things as indicated above, it is permissible for the Tribunal in proceedings u/s 33(2)(b) of the Act to permit the parties to adduce evidence as held in the case of Motipur Sugar Factory Pvt. Ltd. (supra). It was only for the purpose of permitting the parties to adduce evidence that the Hon'ble Supreme Court in the above noted decision observed that no difference was to be found for that purpose, namely, adducing of evidence, between the proceedings u/s 10 and u/s 33(2)(b) of the Act. While considering the prima facie case for the purpose of awarding punishment to the employee, to ensure that it was not a case of victimisation due to pendency of the previous proceedings, the Industrial Tribunal under the law is not required to go into the regular enquiry into the charges and proof thereof as that would be the domain of the Labour Court or the Tribunal while exercising jurisdiction u/s 10 read with Section 11A of the Act when referred by the appropriate Government for adjudication. As a matter of fact, the Tribunal while dealing with proceedings u/s 33(2)(b) of the Act is entitled to permit the employer to adduce evidence only with a view to establish prima facie case and to prove that it was not a case of victimisation, nor the misconduct related to the subject-matter involved in the previous proceedings already pending. Anything beyond that would be out of the purview of the proceeding u/s 33(2)(b) of the Act. It appears for the said reason that in the case of Motipur Sugar Factory Pvt. Ltd. (supra) relied upon by the appellant it has nowhere been held by the Hon'ble Supreme Court that proceedings u/s 10 of the Act are barred by constructive res judicata in case where the Tribunal accorded approval u/s 33(2)(b) of the Act to award punishment to the employee after permitting the employer to adduce evidence. As observed by the Hon'ble Supreme Court in the above noted case, it was with a view to avoid delay that industrial Tribunal may permit the employer to adduce evidence in proceedings u/s 33(2)(b) of the Act as permissible in adjudication case u/s 10 of the Act and on this point, namely, on the question of adducing evidence, the Hon'blc Supreme Court did not find any distinction. It is difficult to accept that merely because the Tribunal permitted the employer to adduce evidence in proceedings u/s 33(2)(b) of the Act the proceedings are to be taken as substitute for adjudicatory proceedings u/s 10 of the Act so as to be hit by bar of constructive res judicata. The powers vested in the Labour Court and the Tribunal u/s 10 of the Act cannot be divested nor the employee can be deprived of the adjudicatory remedy on the ground that the Tribunal while proceeding u/s 33(2)(b) of the Act had permitted the employer to adduce evidence to substantiate the charges. The scope of such proceedings as u/s 33(2)(b) of the Act is limited to prima facie case alone. The Labour Court or the Tribunal gets the jurisdiction to enter into the question of validity of the order of punishment only on reference of such a dispute made to it for adjudication u/s 10 of the Act not otherwise. Industrial Tribunal exercising power u/s 33(2)(b) of the Act cannot assume the powers of the Labour Court which vests in it after reference of the dispute. Industrial Tribunal exercising power u/s 33(2)(b) of the Act cannot assume the powers of the Labour Court which vests in it after reference of the dispute. The scope of enquiry u/s 33(2)(b) of the Act is to protect the employee from victimisation due to pendency of a previous proceedings. 8. In view of the discussions held above, in our view, the scope of two proceedings u/s 33(2)(b) and u/s 10 of the act is different and one is neither substitute nor is controlled by the other. 9. No other point has been pressed before us. 10. We find no merit in the appeal. It is accordingly dismissed. No order as to costs.