Judgment :- 1. The writ petition is filed by the petitioner Management, seeking to challenge an order passed by the first respondent second Additional Labour Court, Chennai in I.A.No.142 of 2008 in Petition No.13 of 2007 in I.D.No.4 of 2004 dated 23.09.2008 and seeks to set aside the same. 2. The said petition was filed by the Management under Rule 34 of the Tamil Nadu Industrial Dispute Rules, 1958 read with Section 11 of the Industrial Disputes Act to eschew and delete the word which occurred wrongly in Paragraphs 8 and 11 in their Petition No.13 of 2007 in I.D.No.4 of 2004 and to read the same as Section 33(2)(b) instead of Section 33(1)(b) of the I.D.Act. After notice to the second respondent workman, the application was dismissed by an order dated 23.09.2008. 3. The writ petition was admitted on 12.12.2008. Pending the writ petition, an interim stay of further proceedings was granted. 4. Heard the arguments of Mr.N.Balasubramanian, learned counsel for the petitioner Management and Mr.K.M.Ramesh, learned counsel for the second respondent. 5. It is seen from the records that an industrial dispute was raised by the workman, who was also a member of the Axles India Workers Union. The dispute related to transfer of Fork Lift operators and appointment of contract workmen in their place was contrary to Section 33 of the I.D.Act. Therefore,the Government wanted the Labour Court, Chennai to adjudicate as to whether the demand of the workmen including the second respondent to be posted as Fork Lift Operators was justified. The said dispute was taken on file as I.D.No.4 of 2004 and is pending before the first respondent Labour Court. 6. At this stage, the petitioner filed a petition under Section 33(1) of the I.D.Act claiming for grant permission to discharge the second respondent who is connected with the dispute under Section 33(1)(b) of the I.D.Act. They also offered only month's wage as notice pay. The said petition was numbered as Petition No.13 of 2007. On notice, the second respondent filed a counter statement contending that the workman along with others filed a petition before the Industrial Tribunal under Section 33-A of the I.D.Act and it is pending adjudication. Before the Tribunal those two disputes were registered as I.D.Nos.34 of 2004 and I.D.No.22 of 2005. 7. On notice, the second respondent filed a counter statement contending that the workman along with others filed a petition before the Industrial Tribunal under Section 33-A of the I.D.Act and it is pending adjudication. Before the Tribunal those two disputes were registered as I.D.Nos.34 of 2004 and I.D.No.22 of 2005. 7. The petitioner Management filed a rejoinder dated 25.03.2008 stating that the petition filed by the Management was only for grant of permission under Section 33(1)(b) of the I.D.Act and not for an approval under Section 33(2)(b) of the I.D. Act. They had only asked for permission to discharge the employee but by mistake in paragraph 11, they had stated that it was an application under Section 33(2)(b) of the I.D. Act. Therefore, they wanted that paragraph to be omitted as unnecessary for the purpose of deciding the Petition No.13 of 2007 in I.D.No.4 of 2004 under Section 33(1)(b). They also filed one memo stating that the workman has been paid his entire salary from 15.12.2006 till the date of the application namely till February 2008, totally a sum of Rs.1,26,117/-. They also filed I.A.No.142 of 2008 seeking for amendment of the wrong usage of the term 33(2)(b) and to read as 33(1)(b) of the I.D.Act. 8. On notice on the said interlocutory application, the workman filed a counter affidavit stating that the Management filed only application for approval of the action and that is why they had offered one month's pay. The Union had already filed 9 petitions under Section 33-A before the Industrial Tribunal and their complaint if taken on file is a deemed industrial dispute and the present amendment application was not valid. 9. The Labour Court upon hearing the arguments held that the main matter in I.D.No.4 of 2004 is posted for enquiry. Sufficient opportunities were given to both sides. Hence, there was no justification for the grant of relief. It is against this interlocutory order, the writ petition came to be filed. 10. Assailing the order, Mr.N.Balasubramanian, learned counsel for the petitioner placed reliance on the judgment of the Supreme Court reported in AIR 1972 SC 1343 Air India Corporation v. V.A. Rabellow and anotherand referred to the following passages found in paragraph 9:- "9. It is against this interlocutory order, the writ petition came to be filed. 10. Assailing the order, Mr.N.Balasubramanian, learned counsel for the petitioner placed reliance on the judgment of the Supreme Court reported in AIR 1972 SC 1343 Air India Corporation v. V.A. Rabellow and anotherand referred to the following passages found in paragraph 9:- "9. The basic object of these two sections broadly speaking appears to be to protect the workmen concerned in the dispute, which form the subject-matter of pending conciliation proceedings or proceedings by way of reference under Section 10 of the Act, against victimisation by the employer on account of raising or continuing such pending disputes and to ensure that those pending proceedings are brought to expeditious termination in a peaceful atmosphere, undisturbed by any subsequent cause tending to further exacerbate the already strained relations between the employer and the workmen. To achieve this objective a ban, subject to certain conditions, has been imposed by Section 33 on the ordinary right of the employer to alter the terms of his employees' services to their prejudice or to terminate their services under the general law governing contract of employment and Section 33-A provides for relief against contravention of Section 33 by way of adjudication of the complaints by aggrieved workmen considering them to be disputes referred or pending in accordance with the provisions of the Act. This ban, however, is designed to restrict interference with the general rights and liabilities of the parties under the ordinary law within the limits truly necessary for accomplishing the above object. The employer is accordingly left free to deal with the employees when the action concerned is not punitive or mala fide or does not amount to victimisation or unfair labour practice. The anxiety of the Legislature to effectively achieve the object of duly protecting the workmen against victimisation or unfair labour practices consistently with the preservation of the employer's bona fide right to maintain discipline and efficiency in the industry for securing the maximum production in a peaceful harmonious atmosphere is obvious from the overall scheme of these sections. The anxiety of the Legislature to effectively achieve the object of duly protecting the workmen against victimisation or unfair labour practices consistently with the preservation of the employer's bona fide right to maintain discipline and efficiency in the industry for securing the maximum production in a peaceful harmonious atmosphere is obvious from the overall scheme of these sections. Turning first to Section 33, sub-section (1) of this section deals with the case of a workman concerned in a pending dispute who has been prejudicially affected by an action in regard to a matter connected with such pending dispute and sub-section (2) similarly deals with workmen concerned in regard to matters unconnected with such pending disputes. Sub-section (1) bans alteration to the prejudice of the workman concerned in the conditions of service applicable to him immediately before the commencement of the proceedings and discharge or punishment whether by dismissal or otherwise of the workman concerned for misconduct connected with the dispute without the express permission in writing of the authority dealing with the pending proceeding. Sub-section (2) places a similar ban in regard to matters not connected with the pending dispute but the employer is free to discharge or dismiss the workman by paying wages for one month provided he applies to the authority dealing with the pending proceeding for approval of the action taken. In the case before us we are concerned only with the ban imposed against orders of discharge or punishment as contemplated by clause (b) of the two sub-sections. There are no allegations of alteration of the complainant's terms of service. It is not necessary for us to decide whether the present case is governed by sub-section (1) or sub-section (2) because the relevant clause in both the sub-sections is couched in similar language and we do not find any difference in the essential scope and purpose of these two subsections as far as the controversy before us is concerned. It is noteworthy that the ban is imposed only in regard to action taken for misconduct whether connected or unconnected with the dispute. The employer is, therefore, free to take action against his workmen if it is not based on any misconduct on their part. It is noteworthy that the ban is imposed only in regard to action taken for misconduct whether connected or unconnected with the dispute. The employer is, therefore, free to take action against his workmen if it is not based on any misconduct on their part. In this connection reference by way of contrast may be made to sub-section (3) of Section 33 which imposes an unqualified ban on the employer in regard to action by discharging or punishing the workman whether by dismissal or otherwise. In this sub-section we do not find any restriction such as is contained in clause (b) of sub-sections (1) and (2). Sub-section (3) protects “protected workman” and the reason is obvious for the blanket protection of such a workman. The Legislature in his case appears to be anxious for the interest of healthy growth and development of trade union movement to ensure for him complete protection against every kind of order of discharge or punishment because of his special position as an officer of a registered trade union recognised as such in accordance with the rules made in that behalf. This explains the restricted protection in sub-sections (1) and (2)." The learned counsel therefore contended that there was no difference between a petition under Section 33(1)(b) as well as Section 33(2)(b). 11. The learned counsel also referred to the judgment of the Supreme Court reported in 1978 1 LLJ 558 [Management of Borpukhurie Tea Estate v. Industrial Tribunal Assam and another]for contending that the Court should remember that it is necessary sometimes in appropriate cases for promotion of justice to construe the pleadings not too technically or in a pedantic manner but fairly and reasonably. In that case, the request of the employer which was rejected by the Tribunal and upheld by the Court was found fault with and a direction was given to the Tribunal to treat the application as one under Section 33(3)(b) of the I.D.Act and to dispose of the same. 12. In the case dealt with by the Supreme Court, the employer submitted an application under Section 33(2)(b) seeking for post approval, whereas the workman claimed a protected workman status and therefore the application has to be filed under Section 33 (3)(b) and for which an express permission was required by the authority. 12. In the case dealt with by the Supreme Court, the employer submitted an application under Section 33(2)(b) seeking for post approval, whereas the workman claimed a protected workman status and therefore the application has to be filed under Section 33 (3)(b) and for which an express permission was required by the authority. Therefore, he contended that there was no difficulty for the Labour Court in allowing the amendment and it ought not to have dismissed the application. 13. However, it is rather unfortunate that on technical grounds the matter has been kept pending for the last five years without benefit to either side. Since the very transfer of the workman from the Fork Lift section itself was pending in an ID, the Labour Court might have been anxious to dispose the ID. But nevertheless since the Management has filed an approval petition arising out of the ID, the Labour Court also has a duty to decide the matter in accordance with law. 14. In the present case, admittedly, the Management had filed a petition under Section 33(1)(b) and a perusal of the petition will clearly show they are entitled to seek permission from the Court. But there is a distinction between Section 33(1)(b) and Section 33(2)(b) of the I.D.Act. While under Section 33(1)(b), the order of discharge can come into operation only with express permission in writing of the Labour Court. In case of Section 33(2)(b), the workman can be discharged by offering one month's pay and an application filed for approving their action. In essence, discharge in the case of Section 33(1)(b) comes into operation after express permission is given by the Labour Court. In the case of Section 33(2)(b), approval is post approval ratification of the action of the employer. In the first case, the order comes into effect after the permission given by the Labour Court and the workman can technically continue in service till such permission is given. Whereas in case of Section 33(2)(b) application, the discharge can take place subject to post approval by the Labour Court. 15. The Supreme Court in P.D. Sharma v. State Bank of India, (1968) 3 SCR 91 dealt with the scope of Section 33(1) and 33(2) and found that there is material difference with the two provisions. Whereas in case of Section 33(2)(b) application, the discharge can take place subject to post approval by the Labour Court. 15. The Supreme Court in P.D. Sharma v. State Bank of India, (1968) 3 SCR 91 dealt with the scope of Section 33(1) and 33(2) and found that there is material difference with the two provisions. In paragraphs 10 to 12, the Supreme Court held as follows:- "10.One common condition precedent for an application to be made under both those provisions is the pendency of any conciliation proceedings before a conciliation officer or a board or any proceeding before an arbitrator or a labour court or a tribunal or National Tribunal in respect of an industrial dispute. That apart the two provisions deal with different situations. Sub-section 2 of Section 33 concerns itself with actions that may be taken by an employer against his employees in respect of matters not connected with the industrial dispute. In those cases though the employer can take any of the actions mentioned in that provision in accordance with the standing orders or where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workmen, on his own authority, he must, in the case of discharging or punishing whether by dismissal or otherwise, a workman, pay him wages for one month and must also make an application to the authority before which the industrial dispute is pending for approval of the action taken by him. Sub-section 3 of Section 33 deals with “protected workman” which expression in relation to an establishment means a workman who being an officer of a registered trade union connected with the establishment, is recognized as such in accordance with the rules made in that behalf. If the, employer wants to take any action prejudicial to a protected workman concerned in an industrial dispute pending before one of the authorities mentioned earlier he can do so only with the “express permission in writing of the authority before which the proceeding is pending”. On a comparison of subsections (2) & (3) of Section 33 it will be seen that the scope of the two provisions are wholly different. On a comparison of subsections (2) & (3) of Section 33 it will be seen that the scope of the two provisions are wholly different. Taking the case of a worker's discharge or punishment by dismissal or otherwise in the former the previous permission of the authority before which the industrial dispute is pending is necessary but under the latter only a subsequent approval from a competent authority is needed. Though the application under that provision should be made to the authority before which the industrial dispute is pending the approval to be obtained need not be from that authority. Once approval is given it goes back to the date on which the order in question was made. If the approval asked for is not accorded then the action taken by the employer becomes ab initio void and the employee will continue in service and his conditions of service will also continue without any break as if the order in question had not been made at all. Hence we are unable to accept the contention of Mr Sen that the decision of this Court in Tata Iron and Steel Company case4has any bearing on the question to be decided in this case. 11. The purpose of those two sub-sections are wholly different. This will be further clear if we refer to the history of Section 33. That section, since its incorporation in the Act in 1947, has undergone several legislative changes. As it stood originally it read “No employer shall during the pendency of any conciliation proceeding or proceedings before a tribunal in respect of any industrial 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 proceeding, nor save with the express permission in writing of the conciliation officer, board or tribunal, as the case may be shall he during the pendency of such proceedings, discharge, dismiss, or otherwise punish any such workmen, except for misconduct not connected with the dispute.” The section was amended by Act 48 of 1950. The amended section read: “During the pendency of any conciliation proceedings or proceedings before a tribunal in respect of any industrial dispute, no employer shall (a) 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; (b) discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute; savewith the express permission in writing of the conciliation officer, board or tribunal, as the case may be.” The amended section dropped the exception made in respect of misconduct not connected with the dispute. This change in the law prevented the employers from discharging or punishing their employees even in respect of a misconduct not connected with the industrial dispute. That was a serious inroad into the disciplinary jurisdiction of the employer. It is possibly with a view to avoid unnecessary interference with the rights of the employers the section was amended by Act 36 of 1956. 12. In Strawboard Manufacturing Co. v. Govind5 this Court observed: “The plain object of the section was to maintain the status quo as far as possible during the pendency of any industrial dispute before a tribunal. But it seems to have been felt that Section 33, as it stood before the amendment of 1956, was too stringent for it completely took away the right of the employer to make any alteration in the conditions of service or to make any order of discharge or dismissal without making any distinction as to whether such alteration or such an order of discharge or dismissal was in any manner connected with the dispute pending before an industrial authority. It seems to have been felt therefore that the stringency of the provision should be softened and the employer should be permitted to make changes in conditions of service etc. which were not connected with the dispute pending before an Industrial Tribunal. For the same reason it was felt that the authority of the employer to dismiss or discharge a workman should not be completely taken away where the dismissal or discharge was dependent on the matters unconnected with the dispute pending before any tribunal. which were not connected with the dispute pending before an Industrial Tribunal. For the same reason it was felt that the authority of the employer to dismiss or discharge a workman should not be completely taken away where the dismissal or discharge was dependent on the matters unconnected with the dispute pending before any tribunal. At the same time it seems to have been felt that some safeguards should be provided for a workman who may be discharged or dismissed during the pendency of a dispute on account of some matter unconnected with the dispute. Consequently Section 33 was re-drafted in 1956 and considerably expanded.” (Emphasis added) 16. Subsequently, in 1975 (1) LLJ 326 = 1975 (30) FLR 225 [Prabhakar Shamrao Marathe v. Maharashtra Sate Electricity Board and others], a Division Bench of the Bombay High Court held that two provisions are somewhat different. In page 229 (FLR), it was observed as follows:- "The provisions of Section 33(2)(b) are somewhat different, and in a case falling under that sub-section the discharge or dismissal is, in point of time, previous to the approval which is also to be obtained from the authority before which the proceeding is pending. In sub-sections (1) and (3) there is a requirement of previous express written permission, whereas sub-section (2) postulates a post facto approval." 17. But however in the present case, since the Management had paid the wages upto the date of filing of the application and also filed the amendment application, the Labour Court was wrong in rejecting the amendment application filed by the petitioner. Therefore, this Court is inclined to set aside the order passed by the Labour Court in I.A.No.142 of 2008 in Petition No.13 of 2007 in I.D.No.4 of 2004 dated 23.09.2008. 18. Accordingly, I.A.No.142 of 2008 stands allowed and the first respondent Labour Court is directed to consider the Petition No.13 of 2007 as one filed under Section 33(1) (b) of the I.D.Act and in accordance with law. 19. However, the matter does not end therein. Until permission is obtained by the Management from the Labour Court, the workman is deemed to be in service. If for some reason, the Management do not want to keep the workman in service, they should continue to pay the wages until they get permission from the Labour Court. 19. However, the matter does not end therein. Until permission is obtained by the Management from the Labour Court, the workman is deemed to be in service. If for some reason, the Management do not want to keep the workman in service, they should continue to pay the wages until they get permission from the Labour Court. Hence, the Management is directed to pay the wages from February 2008 and continue to pay the same till the disposal of Petition No.13 of 2007. Before the Labour Court, the Management shall file a memo to the effect that they have paid salary from February 2008 till the date of filing of the memo within eight weeks. On filing such memo, the Labour Court shall consider the Petition and dispose of the same in accordance with law. 20. The writ petition is disposed of with the above directions. No costs.