JUDGMENT S. C. PARIJA, J. — The short question of law which arises in this writ petition is as to whether the application made by the workman, opposite party No.2, before the Industrial Tribunal, Orissa, Bhubaneswar, under Section 33-A of the Industrial Disputes Act ceased to constitute a valid proceeding by reason of the fact that the main industrial dispute, the pendency of which had made the application necessary, had been finally decided. 2. The factual matrix of the case is that some employees of the petitioner-management, including the present opposite party no.2 through their Union raised an industrial dispute on 22.10.1992 before the District Labour Officer, Berhampur, pertaining to their condition of service and in particular, with regard to the promotional policy of the management. The said industrial dispute was taken up for conciliation and the same having ended in failure, the State Government in the Labour and Employment Department, in exercise of powers under Section 10(1) read with Section 12(5) of the Industrial Disputes Act (I.D. Act for short), referred the dispute to the Industria] Tribunal, Orissa, Bhubaneswar for adjudication, vide its order dated 26.4.1994. The terms of the reference were as follows: “Whether the demand made by the Hotel Oberoi Palm Beach Employees Union, Gopalpur, for adoption of promotion policy for the employees employed in M/s. Oberoi Palm Beach, Gopalpur, is justified ? If so, what should be the details ?” The said reference made to the Industrial Tribunal was registered as I.D. Case No. 36 of 1994, wherein the workmen filed their statement of claim and the management filed their written statement. 3. During the pendency of the reference before the Industrial Tribunal, the petitioner-management dismissed the workman, opposite party No.2 from service, for alleged misconduct, without taking approval of the Industrial Tribunal as required under Section 33(2)(b) of the I.D. Act. Being aggrieved by such action of the petitioner-management, the workman, opposite party No.2, filed the application under Section 33-A of the I.D. Act before the Industrial Tribunal, which was registered as Misc. Case No.9 of 1994(A). 4. The petitioner-management filed its counter to the said application of the workman. During pendency of the said Misc. Being aggrieved by such action of the petitioner-management, the workman, opposite party No.2, filed the application under Section 33-A of the I.D. Act before the Industrial Tribunal, which was registered as Misc. Case No.9 of 1994(A). 4. The petitioner-management filed its counter to the said application of the workman. During pendency of the said Misc. Case No.9 of 1994 (A) filed under Section 33-A of the I.D. Act, the Industrial Tribunal vide its award dated 15.5.2002 disposed of the aforesaid reference by holding that the same is not maintainable, as the formulation of the promotional policy is not a condition of service and therefore the same does not come within the purview of the I.D. Act. The said award of the Industrial Tribunal was published by the State Government vide notification dated 27.5.2002. 5. After disposal of the reference by the Industrial Tribunal vide its award dated 15.5.2002, passed in I.D. Case No. 36 of 1994, the petitioner-management raised objection before the Industrial Tribunal with regard to the continuation of Misc. Case No.9 of 1994 (A) filed by the workman, opposite party No.2, under Section 33-A of the I.D. Act, on the plea that after disposal of the reference in the main industrial dispute, the said application under Section 33-A filed by the workman does not survive and the same is not maintainable. The Industrial Tribunal vide its order dated 17.6.2002 rejected the said plea of the petitioner-management, which is the subject matter of the present writ petition. 6. The sole contention of Sri S.K.Patnaik, learned counsel appearing for the petitioner-management is that the main industrial dispute raised before the Industrial Tribunal by way of reference having been decided and disposed of, the ancillary proceeding under Section 33-A of the I.D. Act does not survive for adjudication and therefore the impugned order of the Industrial Tribunal rejecting the plea of the petitioner-management regarding maintainability of the application of the workman under Section 33-A of the I.D. Act is liable to be quashed. 7. Sri Patnaik, learned counsel for the petitioner-management has relied on a Division Bench decision of the Mysore High Court in the case of Madras Bangalore Transport Co. vrs. Labour Court, Bangalore and others, reported in Factories Journal Reports (Vol. 7. Sri Patnaik, learned counsel for the petitioner-management has relied on a Division Bench decision of the Mysore High Court in the case of Madras Bangalore Transport Co. vrs. Labour Court, Bangalore and others, reported in Factories Journal Reports (Vol. XXV) 244, in support of his contention that when the reference made to the Industrial Tribunal under Section 10 of the I.D. Act was found to be not maintainable, whatever proceeding commenced before the said Tribunal as a consequence of that reference, automatically stands terminated. The Division Bench in the said decision came to hold as follows: “xx xx xx.”A proceeding before a Labour Court can be said to exist only in a case where a reference to it is made by the appropriate Government in a matter in which it has the competence to make a reference. If a valid reference is made by the Government under section 10 to a Labour Court it is clear that reference commences a proceeding before a Labour Court during the pendency of which no contravention of Section 33 can be possible. But, if the reference is an incompetent reference and one which the Government had no power to make, it is clear that whatever proceedings commenced before the Labour Court as a consequence of that reference, those proceedings were not proceedings under the Act but have to be condemned as proceedings masquerading as those properly commenced under the Act which an employer can ignore without becoming liable to proceedings being commenced against him under section 33-A of the Industrial Disputes Act.” 8. Sri Patnaik has also relied on a Division Bench decision of Calcutta High Court in the case of Shalimar Paints Ltd. v. Third Industrial Tribunal, reported in 1974 LAB. I.C. 213 wherein it has been held that Section 33(2) of the I.D. Act is attracted only when there is a valid reference pending under Section 10(1) of the I.D; Act. If there is no reference pending or if the reference made by the State Government has been declared to be invalid and quashed, it cannot be said that Section 33(2) of the I.D. Act is attracted. Section 33-A of the I.D. Act in its turn can be invoked only when an employer contravened the provision of Section 33 of the I.D. Act. Section 33-A of the I.D. Act in its turn can be invoked only when an employer contravened the provision of Section 33 of the I.D. Act. Hence, where the main reference under Section 10(1) of the I.D. Act has been declared invalid and quashed, it can by no means be said that a proceeding is pending before the Tribunal as contemplated by Section 33(2) of the said Act. The mere fact that a reference under Section 10(1) of the I.D. Act was pending sometimes, does not by itself entitle an employee to claim relief under Section 33-A of the I.D. Act, since the main reference has been declared to be invalid and the reference by itself has been quashed. 9. Sri R.K. Bose, learned counsel appearing for the opposite party No.2 submits that once a proceeding under Section 33-A of the I.D. Act has been initiated by the workman for violation of the provisions of Section 33(2) of the said Act, during pendency of the industrial dispute the same does not come to an end automatically with the disposal of the main industrial dispute. In this regard, it is submitted by the learned counsel that Section 33-A of the I.D. Act makes a special provision for adjudication as to whether any employer has contravened the provisions of Section 33. This section has conferred on industrial employees a very valuable right of seeking the protection of the Industrial Tribunal, in case their rights have been violated, contrary to the provisions of Section 33. Section 33-A provides that wherever an employee has a grievance that he has been dismissed by his employer in contravention of Section 33(2), he may make a complaint to the specified authority and such a complaint should be tried as if it was an industrial dispute referred to the Tribunal under Section 10 of the I.D. Act. In other words, the complaint is treated as independent industrial proceeding and an award has to be pronounced on it by the Tribunal concerned. 10. In support of his aforesaid contention, learned counsel for the workman has relied on a decision of the apex Court in the case of Tata Iron and Steel Co. Ltd. v. S.N. Modak, reported in AIR 1966 SC 380 , wherein the scope and effect of the provisions contend in Section 33(2) of the I.D. Act was under consideration. 10. In support of his aforesaid contention, learned counsel for the workman has relied on a decision of the apex Court in the case of Tata Iron and Steel Co. Ltd. v. S.N. Modak, reported in AIR 1966 SC 380 , wherein the scope and effect of the provisions contend in Section 33(2) of the I.D. Act was under consideration. The Hon’ble Court held that an application under Section 33(2) of the I.D. Act can, in a sense, be treated as an incidental proceeding but it is a separate proceeding all the same, and in that sense, it will be governed by the provisions of Section 33(2)(b) as an independent proceeding. It is not an interlocutory proceeding properly so-called in its full sense and significance. It is a proceeding between the employer and his employee, who was no doubt concerned with the main industrial dispute along with other employees, but it is nevertheless a proceeding between the two parties in respect of a matter not covered by the main dispute. Accordingly the Hon’ble Court proceeded to hold that it is difficult to accept the argument that a proceeding, which validly commences by way of an application made by the employer under Section 33(2)(b) of the I.D. Act should automatically come to an end because the main industrial dispute has in the meanwhile been decided. 11. In the aforesaid case, the Hon’ble Court accordingly proceeded to observe that if it is held that since the main industrial disputes were finally determined, the application made by the appellant (employer) under Section 33(2) of the I.D. Act automatically came to an end, the respondent (workman) would not be able to get any relief against the management for the wrongful termination of his services between the date of the impugned order and the final disposal of the main industrial disputes and this would mean that Section 33-A of the I.D. Act would be rendered nugatory, because the employer having duly applied under Section 33(2)(b), the employee cannot complain that there has been a contravention of Section 33 by the employer even though on the merits, the dismissal of the employee may not be justified. The Hon’ble Court accordingly came to hold that a proceeding validly commenced under Section 33(2)(b) of the I.D. Act would not automatically come to an end merely because the main industrial dispute has in the meanwhile been finally determined. The Hon’ble Court accordingly came to hold that a proceeding validly commenced under Section 33(2)(b) of the I.D. Act would not automatically come to an end merely because the main industrial dispute has in the meanwhile been finally determined. Section 33-A of the I.D. Act reads as under: “33-A. 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.” 12. In a decision of the apex Court in the case of Punjab National Bank Ltd. v. All India Punjab National Bank Employees’ Federation and another, reported in AIR 1960 SC 160 , it has been held that by Section 33-A of the I.D. Act, an employee aggrieved by a wrongful order of dismissal passed against him in contravention of Section 33 of the said Act, is given a right to move the Tribunal for redressal of his grievances without having to take recourse to Section 10 of the said Act. In an enquiry under Section 33-A, the employee would not succeeded in obtaining an order of reinstatement merely by proving contravention of Section 33 by the employer. After such contravention is proved, it would still be open to the employer to justify the impugned dismissal on merit. That is a part of the dispute which the Tribunal has to consider because the complaint made by the employee is treated as an industrial dispute and all the relevant aspects of the said dispute has to be considered under Section 33-A of the I.D. Act. That is a part of the dispute which the Tribunal has to consider because the complaint made by the employee is treated as an industrial dispute and all the relevant aspects of the said dispute has to be considered under Section 33-A of the I.D. Act. Therefore, the enquiry under Section 33-A is not confined only to the determination of the question as to whether the alleged contravention by the employer of the provisions of Section 33-A has been proved or not. There can be no doubt that any complaint filed under Section 33-A, the Tribunal has to deal not only with the question of contravention but also the merits of the order of dismissal and the position cannot be different, when a reference is made to the Tribunal under Section 10 of the I.D. Act. What is true about the scope of enquiry under Section 33-A of the I.D. Act is a fortiori true in the case of an enquiry under Section 10 of the said Act. 13. Sri Bose, learned counsel for the workman has also relied upon a Division Bench decision of this Court in the case of Gangpur Labour Union vrs. Presiding Officer, Industrial Tribunal, Orissa and another, reported in 74 (1992) C.L.T. 168, wherein a similar question arose or to whether an application filed by the workman under Section 33-A of the I.D. Act survives after disposal of the main industrial dispute and whether the Industrial Tribunal is entitled to drop such a proceeding, as having become infructuous, since the original industrial dispute, during the pendency of which the contravention of the provisions of Section 33 of the I.D. Act is complained of ends in a no dispute award. This court came to hold as under: “Section 33-A of the Act is a provision where if an allegation is made of the contravention of the provisions of Section 33 during the pendency of a proceeding, inter alia, before the Tribunal and an application is made in that behalf, the Tribunal is to proceed to determine the complaint as if it is a dispute referred to it or is pending before it. Hence once an application is made to a Tribunal under Section 33-A it has to decide as to whether there has been in fact a contravention of Section 33 of the Act which, if it may be so said, is the primary, corollary or jurisdictional fact to decide. On its reaching a decision that there has been in fact a contravention of the provisions of Section 33, the Tribunal is thereafter to treat the complaint as a dispute referred to it and to proceed to adjudicate upon the same in accordance with the provisions of the Act. So far as the present case is concerned, it is the conceded case of the opp. party No.2, the Management that in fact there was contravention of Section 33 inasmuch as there was change of conditions of service without prior approval of the Tribunal during the pendency of Industrial Dispute Case No.5 of 1984 (Central). That being so, the Tribunal was under a mandate to treat the application under Section 33-A as a dispute referred to it and to proceed to adjudicate upon it. There was no jurisdiction in it to pass an award saying that the dispute had become infructuous. The claim of the applicants was to be decided on merit and since that was not done, we have no hesitation to hold that the award of the Tribunal was illegal and without jurisdiction.” 14. In the instant case admittedly the petitioner-management had dismissed the workman, opposite party no.2, from service during the pendency of the main industrial dispute in I.D. Case No. 36 of 1994, pending before the Industrial Tribunal, without complying with the provision of Section 33(2) of the I.D. Act. The complaint filed by the workman, opposite party No.2, under Section 33-A, registered as Misc. Case No.9 of 1994 (A), is required to be tried as if, it was an industrial dispute referred to the Industrial Tribunal under Section 10 of the I.D. Act. Hence the said complaint of the workman made under Section 33-A of the I.D. Act has to be treated as an independent industrial proceeding and the Industrial Tribunal has to deal not only with the question of contravention but also with the merits of the order of dismissal and pass an award. Hence the said complaint of the workman made under Section 33-A of the I.D. Act has to be treated as an independent industrial proceeding and the Industrial Tribunal has to deal not only with the question of contravention but also with the merits of the order of dismissal and pass an award. Hence it cannot be said that with the disposal of the main industrial dispute by the Industrial Tribunal, the complaint/ application of the workman under Section 33-A of the I.D. Act would automatically come to an end, merely because the main industrial dispute has in the meanwhile been finally determined or decided. 15. Applying the principles of law as discussed above to the facts of the present Case and considering the impugned order passed by the Industrial Tribunal, refusing to drop the proceeding in Misc. Case No.9 of 1994(A) initiated “Under Section 33-A of the I.D. Act, no impropriety or illegality can be said to have been committed by the Industrial Tribunal so as to warrant any interference by this Court. The writ application being devoid of merits, the same is accordingly dismissed. There shall be no order as to costs. Application dismissed.