JUDGMENT : M.M. DAS, J. - The management of the Indian Rare Earths Limited has challenged the order dated 25.11.1997 passed by the Industrial Tribunal, Orissa, Bhubaneswar on an application filed by the petitioner-management u/s 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'). From the facts, it is revealed that the management, on charges being framed against the opp. parties 2 and 3 (workmen) called upon them to show cause. The workmen denied all the charges levied against them and pleaded that they being the President and General Secretary respectively of the recognized Trade Union have been singled out for being victimized from out of a number of workmen. The domestic enquiry held by the management culminated in orders of dismissal of the said workmen, which were passed on 22.4.1991. Since industrial disputes were pending before the Tribunal in which both the workmen were concerned, the management filed an application u/s 33(2)(b) of the Act for approval of the orders of dismissal passed by it on 22.4.1991. The said application was registered as I.D. Case No. 1 of 1991 (C). Both the workmen i.e., opp. parties 2 and 3 filed a joint reply to the show cause notice. The petitioner-management examined two witnesses who are the Enquiry Officer and the Deputy General Manager (P & A). In defence the workmen examined themselves. 35 documents were marked as exhibits. The Tribunal after hearing the I.D. case expressed its disapproval of the dismissal order passed by the management on the ground that the workmen have been victimized. 2. Mr. Nanda, learned counsel for the petitioner contended that the Tribunal has disapproved the order of dismissal on three grounds, which are (i) when 30 persons were said to have entered into the administrative building of CMD, there is no explanation from the management as to why they were not charge-sheeted though they were also similarly placed as the two opp. parties workmen, this implies that the opp. parties-workmen have been victimized for their union activities being the President and the General Secretary of the Trade Union. (ii) their past records had not been taken into consideration and/or there was no past bad record against the opp. parties workmen, this implies that the opp. parties-workmen have been victimized for their union activities being the President and the General Secretary of the Trade Union. (ii) their past records had not been taken into consideration and/or there was no past bad record against the opp. party No. 3 while three warnings were issued against the opp, party No. 2 which were for unauthorized absence and not for any assault or misbehaviour against any superior officer and (iii) for the first charge-sheet dated 18.5.1990, they had not been suspended from which the Tribunal assumed that those misconducts were not alarming in nature. He further contended that all the three reasons which the Tribunal has assigned for disapproval to the order of dismissal passed by the Disciplinary Authority are perverse on both facts and in law. In order to support his contention, Mr. Nanda has attempted to take this Court into the various materials produced before the Tribunal and the evidence adduced and also relied upon a number of case laws to support his contention, such as, the decisions in the case of Bharat Iron Works Vs. Bhagubhai Balubhai Patel and Others, ; Burn and Co. Limited Vs. Their Workmen and Others, ; Shriji Vidyalaya and Another Vs. Patel Anil Kumar Lallubhai and Another, and other decisions. 3. Learned counsel for the workman-opp. party No. 3 submitted that two questions arise for consideration in the present writ petition, which are (a) the propriety of the impugned order under Annexure-1(b) what is the effect of such disapproval on the claim of the workman-opp. party No. 3 till such disapproval is set aside by any court of law. He brought to the notice of this Court that had the opp. party No. 3 been in service he would have retired in October, 2010 for which he presses the second question raised as quoted above. 4. party No. 3 till such disapproval is set aside by any court of law. He brought to the notice of this Court that had the opp. party No. 3 been in service he would have retired in October, 2010 for which he presses the second question raised as quoted above. 4. By order dated 24.12.1997 passed in the writ petition, this Court stayed the impugned order and on appearance of both sides, the said order was modified by order dated 30.3.1999, which is quoted hereunder: The present writ petition is at the instance of Indian Rare Earths Ltd. They have challenged the order of Industrial Tribunal, Bhubaneswar in rejecting the application u/s 33(2)(b) of the Industrial Dispute Act, 1947 where the proposed approval of the dismissal of the workmen, namely, Raj Kumar Panda and Ajay Kumar Choudhury were sought for. The impugned order is dated 25th November, 1997, By order dated 24.12.1997, the said order remain stayed. The workmen-opp. parties asked for payment in the meantime as they are not being allowed to join nor they are being any financial benefit although there is dismissal of proposed recommendation disposed of by the Tribunal. It is submitted on behalf of the petitioner management that the opp. parties are not entitled to financial benefit as envisaged u/s 17B of the Industrial Disputes Act. We do not appreciate the steps taken by the petitioner-management. If the petitioner management has passed the impugned order of dismissal unless the same is approved by the Tribunal, the workmen cannot be dismissed. If there is any relief available against the dismissal, it was open for the management to approach the Tribunal in setting aside the same in accordance with law. In the eye of law, the workmen have not been dismissed, but they are deprived of any financial benefit. Mr. Nanda, for the petitioner-management submitted that the entire matter may be fixed for early disposal. It is to be seen how the workmen who are not dismissed and deprived of their financial benefit. In a pragmatic way, we modify the order dated 24.12.1997 to the extent that the workmen who are not being paid for years together and who are suffering from hungry and penury may be paid Rs. 10,000 immediately within a month from the date. In a pragmatic way, we modify the order dated 24.12.1997 to the extent that the workmen who are not being paid for years together and who are suffering from hungry and penury may be paid Rs. 10,000 immediately within a month from the date. This matter may be fixed for final disposal six weeks from the date, namely, on 3rd May, 1999 before the Bench presided over by Hon'ble Mr. Justice R.K. Patra. Liberty to mention before the Bench for giving priority in dispose as the business of the said Bench would permit. 5. Relying upon the aforesaid order passed by this Court, learned counsel for the opp. party No. 3 contended that in view of the above order or even the stay order passed earlier, the order of dismissal of the workmen did not take effect as under law, such a dismissal order is non-est in the eye of law till statutory approval u/s 33(2)(b) of the Act is accorded by the competent court. He further contended that the management-petitioner is bound under law to take back the workman-opp. party No. 3 to service and/or pay all his wages till statutory approval is granted. He also relied upon various case laws in support of his contention that the legislative intention behind the provision of Section 33(2)(b) of the Act is clear that it is intended to provide the workmen with a cloak of statutory protection of being immuned to any disciplinary action during pendency of any proceeding under the Act so as to obliterate any possibility of victimization. Therefore, till an approval is given by any competent court as prescribed under the Act, the order of dismissal will be invalid and inoperative in law and the management petitioner has been vested with no authority to withhold the wages of the workmen in the interregnum. 6. With regard to the question of propriety of the impugned order of disapproval as raised by the petitioner-management, learned counsel for the workman-opp. party No. 3 contended that the order cannot be faulted with as in a writ of certioran, the Court is not required to go into the disputed questions of fact before the Tribunal inasmuch the impugned order of disapproval has been passed on the basis of a finding of fact that the workman-opp. party No. 3 has been subjected to victimization and discrimination, inasmuch as he is a protected workman. party No. 3 has been subjected to victimization and discrimination, inasmuch as he is a protected workman. It was further submitted by him that the findings in paragraphs-5 and 6 of the impugned order are pure findings of fact and therefore, they are not liable to be interfered with while exercising of writ jurisdiction under article 226 of the Constitution. In support of his above contention, he relied upon the decision in the case of P.H. Kalyani Vs. Air France Calcutta. Countering the contention of the petitioner, he also submitted that it is not correct on the part of the management to contend that the workmen never pleaded regarding victimization. Referring to the reply of the workmen exhibited in the case, he submitted that the said documents clearly disclose that a specific plea was taken by the workmen regarding victimization. The other question raised by him was with regard to violation of principles of natural justice by the Enquiry Officer during course of disciplinary proceeding in support of which he contended that the enquiry against the workman-opp. party No. 3 was ex parte and it is an admitted case that on the date the workman-opp. party No. 3 was required to appear before the Enquiry Officer, the C.B.I. had directed him to appear before them for interrogation. The said letter was marked as Ext. M before the Tribunal. From the above letter, it could be concluded that the opp. party No. 3 was not afforded with reasonable opportunity of hearing thereby resulting in gross violation of natural justice. A question was also raised with regard to furnishing a copy of the enquiry report to the workmen. According to the learned counsel for the workmen, the impugned order of non-approval of dismissal of the workmen is also not prejudicial to the management-petitioner inasmuch as the said order is now the subject matter of I.D. Case No. 60 of 1997 (C) renumbered as I.D. Case No. 126 of 2001 upon a reference made at the behest of the management-petitioner u/s 10 of the Act. In the impugned order, the Tribunal has also taken note of this fact and the petitioner-management has also reserved such a right. Learned counsel for the workman-opp. In the impugned order, the Tribunal has also taken note of this fact and the petitioner-management has also reserved such a right. Learned counsel for the workman-opp. party No. 3 has supported the impugned judgment and contended that factually, findings given in the impugned judgment are amply proved and punishment of dismissal is clearly disproportionate to the allegations made. 7. Law is well-settled that when an application u/s 33 of the Act whether for approval or for permission is made before the Tribunal, the Tribunal initially has a limited jurisdiction only to see whether a prima facie case is made out in respect of the misconduct charged. 8. Learned counsel for the workman-opp. party No. 2 relying upon the counter-affidavit filed by him contended that the finding of the learned Presiding Officer that Ext. 8, the enquiry report, clearly spells out that the incidents which allegedly occurred on 19.5.1990 and 20.5.1990 are similar to that of the incident on 18.5.1990 and not separate. According to the learned counsel, the management in the present writ petition has attempted to change its stand by contending that they are different causes of action. If that be so, on the own showing of the management, the writ petition must fail because the enquiry report does not give a separate finding with regard to the incidents on 19.5.1990 and 20.5.1990. It has been further averred in the affidavit that the allegation made on behalf of the management that the workmen did not plead victimization is absolutely incorrect. It was submitted that as a matter of fact, in his reply, the opp. party No. 2-workman, before the Tribunal categorically, stated that the charges leveled against him were fabricated, only to victimize him and he being a protected workman, such victimization has been caused without following the privileges available to him. It has been further contended that the domestic enquiry was abruptly concluded by setting the opp. party No. 2 ex parte thereby there is violation of principles of natural justice and such action was intended to harass him only because he was involved in bonafide Trade Union activities. Learned counsel also argued on facts which, according to him, have been clearly disclosed from the documents exhibited before the Tribunal, and more specifically contended that the opp. party No. 2 ex parte thereby there is violation of principles of natural justice and such action was intended to harass him only because he was involved in bonafide Trade Union activities. Learned counsel also argued on facts which, according to him, have been clearly disclosed from the documents exhibited before the Tribunal, and more specifically contended that the opp. party No. 2 has been singled out from the alleged mob which according to the management entered into the office premises and committed the occurrence on the relevant dates which clearly amounts to victimization as has been held by the Tribunal. A bare perusal of the impugned order passed by the Tribunal would go to show that the Tribunal arrived at a categorically finding that there is no evidence explaining as to why 30 persons who were said to have entered into the administrative building of the CMD have not been charge-sheeted even though they were similarly placed like the opp. parties-workmen and in the absence of any explanation furnished by the management, the action taken only against the two workmen clearly shows a pick and choose method adopted by the management and such method indicates victimization. Such discrimination made in respect of the opp. parties-workmen cannot be further cured by analyzing the merit or otherwise of the domestic enquiry. The Tribunal by assigning cogent reasons has concluded that the issue of suspension order on 21.5.1990 is suggestive of the fact that the incident of 18.5.1990 was not at all alarming for which the delinquents were allowed to perform duties for another span of two to three days and all these materials were discussed by the Tribunal leading to the irresistible conclusion that the opp. parties-workmen have suffered the consequence of victimization. 9. In the case of Bharat Earth Irons (supra), the Supreme Court on the facts of the said case found that the conclusion of the Tribunal that the plea of victimization has been justified was unsustainable as the Tribunal wrongly held that no prima facie case was established against the workmen and thus fail into an error. The Supreme Court in the facts of the said case found that the Tribunal made two serious errors, firstly by holding that the offence was not established prima facie, and secondly by allowing it to be influenced by an extraneous finding with regard to the lay off. The Supreme Court in the facts of the said case found that the Tribunal made two serious errors, firstly by holding that the offence was not established prima facie, and secondly by allowing it to be influenced by an extraneous finding with regard to the lay off. In such contingency, the Supreme Court allowed the appeal of the management setting aside the order passed by the High Court as well as the Tribunal. The facts of the present case being totally different, the ratio of the said decision cannot be made applicable to the present case. In the case of Burn and Co. Limited (supra), the Supreme Court was considering a question with regard to applicability of Section 28k of the Trade Union Act, 1926. It was not a case u/s 33 of the I.D. Act. In the case of Shriji Vidyalaya (supra), the Supreme Court was considering the order passed in an appeal filed by the workmen against the order of the Tribunal constituted under Gujarat Secondary Education Act, 1972 on different set of facts which is distinctly different from the facts of the present case. Hence, the ratio of the said decisions can not come to the aid of the petitioner-management. 10. In the case of M.D., Tamil Nadu State Transport Corporation Vs. Neethivilangan Kumbakonam, ), the Supreme Court categorically held that the action taken u/s 33(2) of the Act will become effective only if 'approval' is granted. If the 'approval' is refused, the order of dismissal will be invalid and in operative in law. In other words, the order of dismissal has to be treated as non-est and the workman will be taken never to have been dismissed. Interpreting Section 33(2)(b) of the Act, the Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and Others, held that it is clear from the proviso to section 33(2)(b) of the Act that the employer may pass an order of dismissal or discharge and at the same time make an application for approval of the action taken by him. If the approval is not granted u/s 33(2)(b) of the Act, the order of dismissal becomes ineffective from the date it was passed and failure to make application u/s 33(2)(b) of the Act would render the order of dismissal inoperative. If the approval is not granted u/s 33(2)(b) of the Act, the order of dismissal becomes ineffective from the date it was passed and failure to make application u/s 33(2)(b) of the Act would render the order of dismissal inoperative. Similar is the view in the case of Surest Sakharam Patil v. Mahindra & Mahindra Ltd., 1987 (54) FLR, Bombay High Court. A Division Bench of this Court with regard to payment of wages u/s 17B of the Act in the case of I.D.L. Chemicals Ltd. Vs. S.R. Tamma and Another, Orissa High Court held that even if Section 17B of the Act did not have application, when an order u/s 33 is challenged before this Court, the Court is not denuded of discretion which it had prior to its incorporation. The enactment of section 17B strengthened the case in favour of court possessing such discretion. Therefore, even if Section 17B does not apply, the Court can in its discretion while granting stay of operation of the order passed u/s 33(2)(b) of the Act, in appropriate cases, direct payment of wages. So far as the consequences are concerned, the order passed u/s 33(2)(b) of the Act stands on par with an award directing reinstatement of a workman. Hence, even though having regard to the language in Section 17B, the provision did not apply to an order passed u/s 33(2)(b), its beneficial spirit shall apply to an order passed under the said Section. Keeping the above principles of law enunciated in various decisions cited by the respective parties in view and on perusing the impugned order passed by the Tribunal, this Court finds that the contention raised by the management is in the realm of disputed questions of fact which cannot be entered into or adjudicated while exercising writ jurisdiction under Article 226 of the Constitution of India. It further appears that the approval as sought for by the management of the dismissal orders passed against the opp. parties 2 and 3 having been refused by the Tribunal, it would be deemed that both opp. parties 2 and 3 have not been dismissed from service and were continuing as such. Since the opp. party No. 3 has retired in the meantime, the management is liable to pay the wages of the said opp. party No. 3-workman from the date of the order of dismissal till the date of his superannuation. parties 2 and 3 have not been dismissed from service and were continuing as such. Since the opp. party No. 3 has retired in the meantime, the management is liable to pay the wages of the said opp. party No. 3-workman from the date of the order of dismissal till the date of his superannuation. So far as the opp. party No. 2 is concerned, it should be treated under law that the order of dismissal is non-est and he is continuing as such. In the event the opp. party No. 2 has not been permitted to be reinstated and discharged his duty, the management shall allow him to continue to work under it and he shall also be entitled to the wages for the period for which he has not been permitted to work. However, since it is stated that an industrial dispute is still pending, the management is directed to pay such arrear wages to the workmen Opp. Parties 2 and 3 within a period of three months hence which shall be subject to the final decision of the industrial dispute said to be pending, if not already disposed of in the meantime. This writ petition is, therefore, disposed of with the aforesaid directions, but without any interference with the impugned order. Writ petition disposed of.