JUDGMENT 1. - The present appellant has failed in the proceedings under Section 33A of the Industrial Dispute Act before the Industrial Tribunal as well as the Single Judge of this Court in the writ petition. He has challenged the order dated 3.12.2001 passed by the Industrial Tribunal, Jaipur and the order dated 14.2.2006 passed by the Single Judge in this appeal. 2. For the sake of convenience, we shall refer the appellant, `workman' and the respondent nos. 2 to 4, `employer'. The workman is said to have been appointed intermittently as Conductor in various depot of the employer for some period from the year 1987 until June, 1988. Then by an order dated 21.5.1993 he was appointed as Conductor in the Ajmer Depot and at the relevant time deputed on Jobner-Ajmer route. On 23.11.1993, at the time of sudden check and inspection of the vehicle wherein the workman was on duty as Conductor, nine passengers were found without ticket; out of them, two passengers were travelling from Sambhar to Ajmer, one passenger was travelling from Phulera to Ajmer, two passengers were travelling from Sambhar to Dudu and one passenger was travelling from Sambhar to Ajmer. The total fare of these nine passengers who were found travelling without ticket was Rs. 98/-; the workman had received fare from seven passengers. The inspection report was signed by the driver as well as the workman. For the misconduct conducted by him, on 23.11.1993, by an order dated 14.1.1994, workman's services were terminated. He challenged the termination order in departmental appeals unsuccessfully. Then he filed civil suit but later-on the said suit was withdrawn and he made an application under Section 33A of the Industrial Disputes Act, 1947 (for short, `Act of 1947'). Inter-alia, he raised the grievance that the order of termination dated 14.1.1994 suffered from breach of the principles of natural justice and Standing Orders and also the provisions contained in Section 33(2) (b) of the Act of 1947. 3. The employer contested the application of the workman under Section 33A and various objections were raised including that the complaint under Section 33A was not maintainable. In the reply, in the alternative, the employer craved leave to prove the charge of misconduct in the proceedings if the complaint was held maintainable. 4. 3. The employer contested the application of the workman under Section 33A and various objections were raised including that the complaint under Section 33A was not maintainable. In the reply, in the alternative, the employer craved leave to prove the charge of misconduct in the proceedings if the complaint was held maintainable. 4. By its order dated 28.2.1998, the industrial tribunal held that the complaint was maintainable and that the services of the workman were terminated on the charge of misconduct without holding any inquiry. However, the industrial tribunal granted permission to the employer to prove the charge of misconduct in the proceedings U/s. 33A. 5. The employer, accordingly, let in evidence for proof of charge of misconduct. In rebuttal the workman filed his affidavit and made himself available for cross-examination. 6. The Industrial Tribunal, after hearing the parties by its award dated 3.12.2001, dismissed the application made by the workman under Section 33A of the Act of 1947. 7. The workman challenged the award dated 3.12.2001 in writ petition before this Court which came to be dismissed on 14.2.2006. 8. Mr. Babu Lal Gupta, counsel for the appellant urged that it was not open to the employer to prove the charge or misconduct in the proceedings under Section 33A since the workman was not paid wages of one month and the application for approval of the action taken by the employer was not made before the authority where the industrial dispute was pending. In this connection, he strongly placed reliance upon the judgment of the Constitution Bench of the Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Limited v. Ram Gopal Sharma and Others [ 2002(2) SCC 244 ] . He would submit that the decision in the case of Punjab Beverages Private Limited v. Suresh Chand [ 1978(2) SCC 144 ] has been overruled. 9. On the other hand, Mr. N.S. Chauhan, counsel for the employer supported the order of the Industrial Tribunal as well as that of the Single Judge. He cited the judgment of the Supreme Court in the case of Rodrick (C.A.) v. Karam Chand Thapar & Bros. (Private) Ltd. and another [1963 LLJ (1) page 248] in support of his contention that it was open to the employer to justify the dismissal on merits in the proceedings under Section 33A of the Act of 1947. 10. He cited the judgment of the Supreme Court in the case of Rodrick (C.A.) v. Karam Chand Thapar & Bros. (Private) Ltd. and another [1963 LLJ (1) page 248] in support of his contention that it was open to the employer to justify the dismissal on merits in the proceedings under Section 33A of the Act of 1947. 10. Section 33 of the Act of 1947 reads thus : "33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings : (1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before [an arbitrator or] a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall- (a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings; or (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending; (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute [or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman] (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceedings; or (b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman : PROVIDED that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application, has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. (3) Notwithstanding anything contained in sub-section (2) no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute- (a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceedings; or (b) by discharging or punishing, whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending. Explanation : For the purposes of this sub-section a `protected workman' in relation to an establishment, means a workman who, being [a member of the executive or other office bearer] of a registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf. (4) In every establishment, the number of workmen to be recognised as protected workmen for the purposes of sub-section (3) shall be one per cent of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the appropriate Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recognised as protected workmen. (5) Where an employer makes an application to a conciliation officer, Board [an arbitrator, a Labour Court, Tribunal or National Tribunal] under the proviso to sub-section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, [within a period of three months from the date of receipt of such application], such order in relation thereto as it deems fit :] [PROVIDED that where any such authority considers it necessary or expedient so to do, it may, for reasons to be recorded in writing, extend such period by such further periods as it may think fit : PROVIDED FURTHER that no proceedings before any such authority shall lapse merely on the ground that any period specified in this sub-section had expired without such proceedings being completed.] 11. The object behind this provision is to protect the workman concerned in dispute against victimisation by employer on account of their having raised industrial dispute or their continuing the pending proceedings. The bar under Section 33(1) is lifted if permission in writing of the authority before which the proceedings is pending is obtained. The bar under Section 33(2) (B) is lifted by paying wages for one month to the concerned workman and making an application to the authority for approval of the action taken by the employer. 12. Section 33A is a special provision for adjudication with regard to the changed service conditions during the pendency of proceedings. It reads thus : "33A. Special provision for adjudication as to whether conditions of service, etc., changed during pendency of proceedings Where an employer contravenes the provisions of section 33 during the pendency of proceedings [before a conciliation officer, Board, an arbitrator, Labour Court, Tribunal or National Tribunal] any employee aggrieved by such contravention, may make a complaint in writing [in the prescribed manner, - (a) to such conciliation officer or Board, and the conciliation officer or Board shall take such complaint into account in mediating in, and promoting the settlement of, such industrial dispute; and (b) to such arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such complaint, the arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply accordingly.] 13. Section 33A, thus, provides for a remedy to an aggrieved employee to make a complaint before the competent authority, where the employer has contravened the provisions of Section 33. It is independent of the proceedings or recourse to Section 10. It is, however, important to notice that the adjudication by the tribunal under Section 33A is as if it were industrial dispute referred to it for adjudication and for submission of an award to the appropriate government. It is independent of the proceedings or recourse to Section 10. It is, however, important to notice that the adjudication by the tribunal under Section 33A is as if it were industrial dispute referred to it for adjudication and for submission of an award to the appropriate government. The plain language of Section 33A suggests without doubt that if it is shown that the dismissal of the workman/employer is in contravention of Section 33, it is open to the employer to justify the dismissal on merits by adducing satisfactory evidence before the tribunal. The contravention contemplated under section 33 comprehends the contravention of 33(2) (b) i.e. even where one month wages were not paid to the workman and the application for approval was not made before the concerned authority of the action taken by the employer. 14. In Rodrick (C.A.), the Supreme Court observed thus : "2. The respondent disputed the appellant's status as a workman and pleaded that section 33 was inapplicable and so the respondent's case was that since section 33 had not been contravened the appellant's application under S.33A was incompetent. 3. The tribunal has upheld the appellant's case that he was a workman employed by the respondent; it has also accepted his argument that he was a workman concerned in an industrial dispute which was then pending adjudication and so, S.33 was applicable and had been contravened by the respondent. That is why the tribunal rejected the preliminary objection of the respondent that the application made by the appellant under S.33A was not competent. Having reached this conclusion to the, tribunal proceeded to examine (sic) between the parties on its merits. It is well settled that if an application is made by an employee under S.33A and it is shown that the impugned dismissal of the employee has contravened S.33, it is open to the employer to justify the dismissal on the merits by adducing e satisfactory evidence before the tribunal." 15. The decision of the Supreme Court in case of Rodrick (C.A.) wholly negates the submission of Mr. Babu Lal Gupta, the counsel for the workman. 16. It is pertinent to notice here that the correctness of the order dated 28.2.1998 whereby the Industrial Tribunal permitted the employer to prove the misconduct of the workman by leading evidence was not put in issue at all in writ petition. Babu Lal Gupta, the counsel for the workman. 16. It is pertinent to notice here that the correctness of the order dated 28.2.1998 whereby the Industrial Tribunal permitted the employer to prove the misconduct of the workman by leading evidence was not put in issue at all in writ petition. We minutely scanned the grounds set out in the writ petition and we find that no such ground has been taken assailing the order of the tribunal granting permission to the employer to prove the charge of misconduct in the proceedings. 17. In this fact situation, the decision of the Constitution Bench of the Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Limited does not help the cause of the workman at all. 18. Mr. Babu Lal Gupta, counsel for the workman then sought to urge that the evidence let in by the employer does not sufficiently and satisfactorily establish the charge of misconduct. We are not persuaded by his submission. The Industrial Tribunal has referred to the evidence led by the parties in this connection and then reached the firm finding that on 23.11.1993, the Vehicle No. 3318 in which the workman was posted as conductor, nine passengers were found without tickets and he sought to misappropriate the fare given by seven passengers, which he would not do because of surprise inspection and check. The consideration of the evidence on record by the industrial tribunal does not suffer from any legal infirmity justifying interference by us. 19. Since the charge of misconduct has been proved by the employer in the proceedings under Section 33A, dismissal of the complaint by the Industrial Tribunal cannot be said to be flawed. The dismissal of writ petition by the Single Judge also does not suffer from any error of law. 20. We find no merit in the appeal and is dismissed with no order as to costs.Appeal Dismissed. *******