ALTAMAS KABIR, J. ( 1 ) THE respondent No. 1 was at the relevant point of time a Meter Inspector in the Revenue Department of the appellant company. On 25th May, 1985, he was assigned to inspect the meter of one Gopal Chandra nath, a consumer of the appellant company. On 27th May, 1985, the said consumer lodged a complaint with the appellant company that the respondent no. 1 had demanded a sum of Rs. 100/- not to disconnect supply and to settle the matter regarding non-consumption at the workshop of the respondent No. 1. The consumer was asked to meet the respondent No. 1 at his office with the money on 27th May, 1985. ( 2 ) ON receipt of the complaint, the appellant caused a preliminary investigation into the complaint and thereafter issued a show-cause notice to the respondent No. 1 on 3rd June, 1985. Not being satisfied with the reply to the said show-cause notice, the appellant company issued a chargesheet to the respondent No. 1 on 15th June, 1985. On 19th June, 1985, an Enquiry Committee was constituted under the Standing Rules and on conclusion of the enquiry the management representative found the respondent No. 1 guilty of the charges levelled against him. The two other members selected by the workmen were, however, of the view that the respondent No. 1 should be given the benefit of doubt and should be absolved of such charges. The findings of the Enquiry committee were forwarded to the Disciplinary Authority who was of the view that the respondent No. 1 should be dismissed from service. ( 3 ) THE respondent No. 1 was informed of the said decision of the Disciplinary authority by a letter dated 29th October, 1985, and being aggrieved thereby the respondent No. 1 preferred an appeal before the appellate authority under clause 19 (c) of the Standing Orders of the appellant Company. After hearing all the respective parties, the appellate authority by its order dated 4th December, 1985, upheld the decision of the Disciplinary Authority. After hearing all the respective parties, the appellate authority by its order dated 4th December, 1985, upheld the decision of the Disciplinary Authority. ( 4 ) THE respondent No. 1 was duly informed of the decision of the Disciplinary authority by a letter dated 23rd December, 1985, and he was also informed that an application had been made before the learned 2nd Industrial Tribunal, government of West Bengal, under section 33 (2) (b) of the Industrial Disputes act, 1947 for approval of the action taken against the respondent No. 1. In addition to the above, a sum equivalent to one month's wages was also sent to the respondent No. 1. ( 5 ) THE respondent No. 1 filed his objection to the said application under section 33 (2) (b) of the Industrial Disputes Act, and, thereafter, the learned tribunal, as a preliminary point, took up the question regarding the validity of the domestic enquiry. On 22nd February, 1989, the learned Tribunal passed an order holding that the domestic enquiry against the respondent No. 1 was not valid and proper. The matter was fixed by the learned Tribunal for hearing on merits on 13th April, 1989. ( 6 ) THEREAFTER, the parties adduced evidence on merit before the learned tribunal. Both, Shri Radhika Ranjan Basu, an employee of the appellant company, and the respondent No. 1 deposed before the learned Tribunal and one Shri Ranjit Roy also deposed on behalf of the respondent No. 1. On the basis of the evidence adduced before it, the learned Tribunal by its order dated 20th September, 1993 allowed the application filed by the appellant Company under section 33 (2) (b) of the above Act. On 27th September, 1993, the respondent no. 1 filed a petition before the learned Tribunal for review of the order passed on 20th September, 1993. By an order dated 9th June, 1994, the learned Tribunal rejected the review petition upon holding that the impugned order, not being an award, the same could not be reviewed by the Tribunal under the West bengal Industrial Disputes Rules, 1958. 1 filed a petition before the learned Tribunal for review of the order passed on 20th September, 1993. By an order dated 9th June, 1994, the learned Tribunal rejected the review petition upon holding that the impugned order, not being an award, the same could not be reviewed by the Tribunal under the West bengal Industrial Disputes Rules, 1958. ( 7 ) THE respondent No. 1 thereafter filed a writ petition, being W. P. No. 3453 of 1994 before this Court on 8th December, 1994 and inter alia, prayed for quashing of the orders passed by the learned Tribunal on the appellant company's application under section 33 (2) (b) of the Industrial Disputes Act, 1947. The writ petition was allowed by the learned Single Judge upon holding that the findings of the learned Tribunal were perverse and had no evidential basis. The learned Judge also directed that the writ petitioner was entitled to 50 per cent of back wages from the date of dismissal till his date of retirement. ( 8 ) THE instant appeal has been preferred against the said judgment and order of the learned Single Judge. ( 9 ) APPEARING for the appellant Company, Mr. Pradyush Mullick, learned senior Counsel, submitted that in a writ proceeding from a decision from an application under section 33 (2) (b) of the Industrial Disputes Act, the Writ Court was not entitled to act as an appellate forum and to reappraise the evidence which had been adduced both in the domestic enquiry and before the learned tribunal. Mr. Mullick urged that in a proceeding under section 33 (2) (b) the learned Tribunal was merely required to take aprima facie view and the relief, if any, of the workman concerned against an order of dismissal would be by way of a reference under section 10 of the said Act. ( 10 ) IN support of his aforesaid submissions Mr. Mullick urged that in a proceeding under section 33 (2) (b) the learned Tribunal was merely required to take aprima facie view and the relief, if any, of the workman concerned against an order of dismissal would be by way of a reference under section 10 of the said Act. ( 10 ) IN support of his aforesaid submissions Mr. Mullick referred to and relied on a Special Bench decision of this Court in General Electric Company vs. 5th industrial Tribunal, reported in 1987 (2) CLJ Page 305, where reference was made to the observations made by the Hon'ble Supreme Court in Lord Krishna textile Mills vs. Its Workmen, AIR 1961 SC Page 860) wherein it was observed 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 Order and principle of natural justice has been held; (ii) whether a prima facie case for dismissing 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 victimize the employee, regard being had to the position settled by the decisions of the Court in Bengal Bhatdee coal Company vs. Ram Probash Singh. . . . . . . . " ( 11 ) MR. Muillick pointed out that in the said case the Special Bench also referred to the decision of the Hon'ble Supreme Court in the case of Punjab beverages Private Limited vs. Suresh Chandra and Anr. AIR 1979 SC Page 995)where the Hon'ble Supreme Court also observed as follows:"where the Tribunal entertains an application for approval under section 33 (2) (b) on merits, it applies its minds and considers whether the dismissal of workman amounts to victimization or unfair labour practice and whether a prima facie case has been made out by the employer for the dismissal of the workman. If the Tribunal finds that either no prima facie case has been made out or there is victimization or unfair labour practice, it would refuse to grant approval and reject the application on merits. If the Tribunal finds that either no prima facie case has been made out or there is victimization or unfair labour practice, it would refuse to grant approval and reject the application on merits. Then, of course, the dismissal of the workman would be void and inoperative, but that would be because of the Tribunal having held that no prima facie case has been made out by the employer or there is victimization or unfair labour practice, it has refused to lift the ban. " ( 12 ) MR. Mullick submitted that after considering the matter from different aspects, the Special Bench held that it was abundantly clear that the Tribunal in exercising the power under section 33 (2) (b) does not decide the issue on merits and only a prima facie view is taken by the Tribunal in coming to the conclusion whether the permission should be accorded or withheld. It is only in a proceeding under section 10 that the Tribunal adjudicates an issue and there the Tribunal has to go into evidence and come to certain definite findings. ( 13 ) REFERENCE was also made to the decision of the Hon'ble Supreme Court in Food Corporation of India Workers' Union vs. Food Corporation of India, reported in AIR 1996 SC Page 2412, in which it was observed that a Tribunal under the Industrial Disputes Act is not a 'court' and the Tribunal was wrong in insisting that there should be 'evidence' to prove the facts as per the provisions of the Evidence Act. It was also observed that the Tribunal is not a Court and, therefore, there should only be 'material' and not evidence as required by the evidence Act. Mr. Mullick submitted that the learned Single Judge had wrongly proceeded on the basis that the evidence adduced before the Tribunal is to prove the evidence against the workman beyond reasonable doubt. The Hon'ble supreme Court held that this approach was also wrong and the only question was whether on weighing the probabilities, the materials placed by the petitioner was acceptable or probable. ( 14 ) IN this context, Mr. Mullick lastly referred to the decision of the Hon'ble supreme Court in Dharam Pal vs. National Engineering Inds. The Hon'ble supreme Court held that this approach was also wrong and the only question was whether on weighing the probabilities, the materials placed by the petitioner was acceptable or probable. ( 14 ) IN this context, Mr. Mullick lastly referred to the decision of the Hon'ble supreme Court in Dharam Pal vs. National Engineering Inds. Ltd. , AIR 2002 sc Page 510, wherein while considering an application made under section 33 (2) (b) of the Industrial Disputes Act and the validity of the approval granted by the Industrial Tribunal it was observed that the Tribunal was only required to arrive at a prima facie satisfaction and the Single Bench of the High Court was not justified in holding that the Tribunal had acted in error while granting approval to the action of the employer in dismissing the workman. The appropriate course for the workman would have been to invoke section 10 of the Industrial Disputes Act to work out his rights. ( 15 ) MR. Mullick submitted that the argument advanced on behalf of the respondent No. 1 before the learned Single Judge that he did not get an opportunity to cross-examine the complainant or the witness produced on behalf of the appellant Company before the learned Tribunal, was completely devoid of any substance since on the conclusion of such evidence the respondent No. 1 had not expressed any desire to examine Shri Radhika Ranjan Basu or Shri gopal Chandra Nath. Mr. Mullick pointed out that the Enquiry Committee had examined the complainant, Shri Nath and it was recorded that no member of the committee had any further question to ask Mr. Nath and he was allowed to leave. Mr. Mullick submitted that at that point of time the respondent No. 1 had not expressed any intention of wanting to cross-examine Shri Nath or Shri basu and the proceedings were concluded after examination of the respondent no. 1 by the Enquiry Committee. Mr. Mullick urged that the complaint made by Shri Nath had been duly exhibited before the learned Tribunal as Exhibit 1 and in his deposition before the learned Tribunal the respondent No. 1 had duly admitted that the documents which had been exhibited before the Tribunal had been exhibited in his presence and that at the time of deposition before the learned Tribunal he had not challenged the documents filed on behalf of the company. Mr. Mr. Mullick submitted that since the respondent No. 1 had not himself made any objection, the question of denial of natural justice did not arise and it was not for the Writ Court to question the finding of the learned Tribunal on the evidence which had been adduced by the parties both during the domestic enquiry and before the learned Tribunal. ( 16 ) MR. Mullick submitted that the learned Single Judge had acted as an appellate authority in reappraising the evidence and upon holding that the learned Tribunal instead of calling for legal evidence and direct proof had gone by inference and implication and had wrongly applied the principle of non-traverse in the absence of any specific denial of charges in the reply to the show-cause notice. ( 17 ) MR. Mullick submitted that the approach of the learned Single Judge in a matter of this nature was entirely erroneous and the learned Single Judge had overstepped his jurisdiction in deciding the matter in the role of an appellate authority. ( 18 ) APPEARING for the writ petitioner/respondent No. 1 Mr. Sujosh Ghosh dastidar urged that the findings of the learned Tribunal were perverse, being based on surmise and conjecture without any direct evidence to bring home the allegation made against the respondent No. 1. Mr. Ghosh Dastidar submitted that when there was no direct evidence with regard to the allegation made against the respondent No. 1, the learned Tribunal ought not to have come to any finding regarding the alleged misconduct on the part of the respondent No. 1 merely on the basis of the evidence of Shri Radhika Ranjan Basu, who did not have any personal knowledge of the allegation brought against the respondent no. 1. ( 19 ) MR. Ghosh Dastidar submitted that having produced the complainant, shri G. C. Nath, as a witness to prove the complaint filed by him, the respondent no. 1 should have been given a proper opportunity by the appellant Company to cross-examine Shri Nath. Mr. Ghosh Dastidar pointed out that Shri Nath had, in fact, been examined only before the domestic Tribunal and had not thereafter been examined before the 2nd Industrial Tribunal when fresh evidence was directed to be adduced on behalf of the parties. ( 20 ) REFERRING to the Special Bench decision in the General Electric Company's case (supra) Mr. Mr. Ghosh Dastidar pointed out that Shri Nath had, in fact, been examined only before the domestic Tribunal and had not thereafter been examined before the 2nd Industrial Tribunal when fresh evidence was directed to be adduced on behalf of the parties. ( 20 ) REFERRING to the Special Bench decision in the General Electric Company's case (supra) Mr. Ghosh Dastidar submitted that while it had been held in the said case that only a prima facie view was required to be taken in a proceeding under section 33 (2) (b) of the Industrial Disputes Act, it had also been observed that, although, the Rule of res judicata indicated in section 11 of the Civil procedure Code, in terms, does not apply to the proceedings before the Industrial tribunals it was well-settled that the principle underlined is applicable to their decisions. Mr. Ghosh Dastidar submitted that if it were held that the relief of the workman against an order of dismissal was by way of a reference under section 10 of the aforesaid Act, any finding in an application under section 33 (2) (b) would operate as res judicata in a proceeding under section 10 and would stultify the relief of the workman concerned. ( 21 ) AS against the decision of the Hon'ble Supreme Court as cited by Mr. Mullick in the Food Corporation of India's case (supra) Mr. Ghosh Dastidar referred to another decision of the Hon'ble Supreme Court in the case of Bharat forge Company Ltd. vs. A. P. Zodge, AIR 1996 SC Page 1556) in which it had been held that a domestic enquiry may be vitiated either for non-compliance of rules of natural justice or for perversity. Disciplinary action taken on the basis of a vitiated enquiry does not stand on a better footing than a disciplinary action with no enquiry. The right of the employer to adduce evidence in both the situations is well-recognised. Mr. Ghosh Dastidar urged that it was within the jurisdiction of the Tribunal to direct the parties to adduce evidence in support of their respective cases when it was not satisfied with the evidence as adduced in the domestic enquiry. Mr. The right of the employer to adduce evidence in both the situations is well-recognised. Mr. Ghosh Dastidar urged that it was within the jurisdiction of the Tribunal to direct the parties to adduce evidence in support of their respective cases when it was not satisfied with the evidence as adduced in the domestic enquiry. Mr. Ghosh Dastidar also referred to a Bench decision of the Delhi High Court in Management of Municipal Corporation of Delhi vs. Presiding Officer, Labour Court, Delhi, 1993 Lab IC Page 771, in which it was held that when a fact is sought to be proved, even before a domestic Tribunal, it must be supported by statements made in the presence of the persons against whom an enquiry is held and that statement made behind the person in charge is not to be treated as substantive evidence. In other words, according to Mr. Ghosh Dastidar the evidence of the complainant, Shri Nath, who had not been allowed to be cross-examined by the respondent No. 1, could not be relied upon by the Tribunal in granting approval under section 33 (2) (b) of the Industrial disputes Act. ( 22 ) VARIOUS other decisions were referred to by Mr. Ghosh Dastidar in support of his said submissions. Mr. Ghosh Dastidar contended that an application made by the employer under section 33 (2) (b) does not come to an end automatically when a decision is given in the industrial dispute, but the order of dismissal becomes effective only if approval is granted on such application. Mr. Ghosh Dastidar submitted that in the event until approval under section 33 (2) (b) is given the order of dismissal remains incomplete and inchoate and cannot effectively terminate the relationship of the employer and the employee and so, even if the main industrial dispute is finally decided the question about the validity of order would still have to be tried and if the approval is not accorded by the Tribunal the employer would be bound to treat the respondent as its employee and to pay his full wages for the period even though the appellant may subsequently proceed to terminate the respondent's service. ( 23 ) IN support of his said submission Mr. Ghosh Dastidar referred to the decision of the Hon'ble Supreme Court in the case of Tata Iron and Steel Company ltd. ( 23 ) IN support of his said submission Mr. Ghosh Dastidar referred to the decision of the Hon'ble Supreme Court in the case of Tata Iron and Steel Company ltd. vs. S. M. Modak, AIR 1966 SC 380 and in M D. Tamil Nadu State Transport corporation vs. Neethivilangan Kumbakonam, AIR 2001 SC Page 2309, where a similar view was expressed. Mr. Ghosh Dastidar urged that there had been gross violation of the principles of natural justice by the learned Tribunal which had placed reliance and acted upon the statements made by the complainant before the Enquiry Committee in the domestic enquiry without affording the respondent No. 1 an opportunity of cross-examining the said complainant. Mr. Ghosh Dastidar concluded on the note that the decision of the learned Tribunal had been rightly held by the learned Single Judge to be perverse since it was based on no evidence which could directly connect the respondent No. 1 with the allegation made against him. Mr. Ghosh Dastidar urged that apart from shri Radhika Ranjan Basu who had no personal knowledge of the alleged incident there was no other material before the learned Tribunal to grant approval of the decision taken by the Disciplinary Authority of the appellant company to dismiss the respondent No. 1 from service. Mr. Ghosh Dastidar urged that the said fact had been clearly pointed out by the learned Single judge in the judgment under appeal and the same did not require any interference in the instant appeal which was liable to be dismissed with costs. ( 24 ) THE submissions made on behalf of the respective parties once again gives rise to the question relating to the extent of the Writ Court's jurisdiction to interfere with the Tribunal's order made on an application under section 33 (2) (b) of the Industrial Disputes Act, 1947. ( 25 ) THE aforesaid question has been dealt with in detail by the Special Bench in the General Electric Co. case (supra) relied upon by both the parties. ( 25 ) THE aforesaid question has been dealt with in detail by the Special Bench in the General Electric Co. case (supra) relied upon by both the parties. After considering the views of the Hon'ble Supreme Court on the subject the Special bench held that the Tribunal was not competent to reappreciate or reappraise the evidence in exercising jurisdiction under section 33 (2) (b) of the aforesaid act and could only examine the evidence in the domestic enquiry in order to find out whether a prima facie case is made out or if the findings are perverse. ( 26 ) THE aforesaid view has been consistently explained and emphasised by the Hon'ble Supreme Court, and the same holds good for the Writ Court as well. In other words, while considering a writ petition from an order of the tribunal under section 33 (2) (b) of the aforesaid Act, the Writ Court cannot also act as an appellate authority and reappraise the materials available to come to a finding on the merits. The jurisdiction of the Writ Court is to the extent of considering as to whether a prima facie case is made out on the materials available before the Tribunal. ( 27 ) IN the instant case, the learned Single Judge has examined the materials before the Tribunal to see whether the findings of the Tribunal were perverse or whether there had been any violation of the principles of natural justice and has come to the conclusion that the findings were perverse as they were based on no evidence. The learned Single Judge also held that there had been violation of the principles of natural justice as the respondent No. 1 had not been given an opportunity to cross-examine the complainant in the domestic enquiry nor was he produced before the learned Tribunal when fresh evidence was called for and tendered. ( 28 ) WHILE the reasoning of the learned Single Judge is based on the principles explained by the Hon'ble Supreme Court and the Special Bench of this Court, the learned Single Judge has not given due weightage to the fact that not only had the complaint been exhibited before the domestic Tribunal but the complainant had also been examined in the domestic enquiry and the respondent no. 1 could have cross-examined him if he had wanted to. 1 could have cross-examined him if he had wanted to. There was, therefore, some material before the learned Tribunal, while according approval to the decision taken on behalf of the appellant company on its application under section 33 (2) (b) of the Industrial Disputes Act, 1947. Whether such material was sufficient or not for an order of dismissal to be passed, would, in our view, have to be decided in a reference under section 10 of the said Act and since the finding in section 33 (2) (b) proceedings are only of a prima facie nature, the same cannot operate as resjudicata in a reference proceeding under section 10 of the said Act. ( 29 ) THE learned Single Judge appears to have assessed the materials available to the learned Tribunal to come to a finding as to whether the same was sufficient to prove the allegation against the respondent No. 1. Such an approach would have been unassailable had the learned Single Judge not been considering an order passed on an application under section 33 (2) (b) of the aforesaid Act, where the scope of such assessment is limited to a prima facie finding and not a finding beyond reasonable doubt in respect of the decision of the Disciplinary Authority. ( 30 ) WE are, therefore, inclined to accept Mr. Mullick's submissions that the learned Single Judge erred in assuming appellate jurisdiction in the writ proceedings in appraising the evidence to arrive at the conclusion that the charge levelled against the respondent No. 1 in the disciplinary proceedings had not been proved. ( 31 ) THE appeal, therefore, succeeds and is allowed. The judgment and order of the learned Single Judge is set aside, but this will not prevent the respondent no. 1 from pursuing his remedy, if any, under section 10 of the Industrial disputes Act, 1947. ( 32 ) THERE will be no order as to costs. ( 33 ) ALL parties to act on a signed copy of the operative portion of this judgment on the usual undertaking. ( 34 ) IF an urgent certified copy of this judgment is applied for, the same is to be supplied expeditiously. Asit Kumar Bisi, J. : I agree. Appeal allowed.