Judgment :- 1. The petitioner is a State owned Transport Corporation, having its headquarters at Vellore. In this writ petition, they have come forward to challenge the order passed by the first respondent viz., Joint Commissioner of Labour (Conciliation) Chennai in A.P.No.116 of 2004 dated 10.04.2006. 2. By the impugned order, the authority declined to grant approval for the Management in dismissing the original second respondent vide their order of dismissal dated 05.03.2004. In the operative portion of the order, the authority has observed as follows:- "I refuse to accord approval for the dismissal of Thiru S.Deenadayalan, Driver, Staff No.5484, for the following reasons: (1.) The enquiry into the charges framed against the Opposite Party was not conducted according to the principles of natural justice. (2.) The findings of the Enquiry Officer that the charges are proved is perverse. (3.) The Applicant had not simultaneously or within such reasonably short time as to form part of the same transaction applied to this Authority before which the main industrial dispute is pending for approval of the action taken by him." 3. Challenging the same, the writ petition came to be filed. It was admitted on 28.02.2007. Pending the writ petition, this Court granted an interim stay of the operation of the order. 4. It now transpires the contesting second respondent unfortunately died on 07.05.2008. His legal heirs namely his wife and three daughters have been brought on record by the Management by filing M.P.No.1 of 2011, which was also ordered by this Court on 02.02.2012. Mr.E.Srinivasan, who originally entered appearance for the original second respondent has accepted to take notice for the proposed respondents. He has also filed a typed set containing documents relating to the domestic enquiry conducted against the original second respondent. It is unnecessary to go into the other issues relating to the merits of the case. It is suffice to state that the original second respondent had worked as a Driver in the petitioner Corporation and had put in more than 19 years of service. He was to retire from service on reaching the age of superannuation on 30.04.2004 and just two months before his retirement, by an order dated 05.03.2004, he was sought to be dismissed. 5. Since conciliation proceedings were pending before the Commissioner of Labour, the Management filed an application under Section 33-2(b) of the Industrial Disputes Act, seeking permission for dismissal. He was to retire from service on reaching the age of superannuation on 30.04.2004 and just two months before his retirement, by an order dated 05.03.2004, he was sought to be dismissed. 5. Since conciliation proceedings were pending before the Commissioner of Labour, the Management filed an application under Section 33-2(b) of the Industrial Disputes Act, seeking permission for dismissal. Though the order was dated 05.03.2004, the application was filed after a period of 14 days i.e. on 19.03.2004. The authority registered the approval petition as A.P.No.116 of 2004 and issued notice to the workman. The workman has also filed a counter statement objecting to the grant of approval. 6. The authority after marking documents held that the findings recorded in the enquiry are perverse and that enquiry was not conducted in accordance with the principles of natural justice. In his order relating to the enquiry as well as findings, he had observed in pages 4 and 5 as follows:- In this enquiry the witness for the management adverts to the petition from the pensioners of Tamilnadu Transport, Ambur, enquiries made by the security wing of the Applicant Corporation, the statement made by the Headmaster of the school and the letter from the District Elementary Education Officer, Vellore. The petition from the pensioners of Tamilnadu Transport, Ambur is though recorded to be marked as an Exhibit in the domestic enquiry was not filed before me and the Opposite Party is also not given a copy of the same. Similarly the statement of the Head Master though marked as an Exhibit in the domestic enquiry was not filed before me and the Head Master is not examined as a witness in the enquiry. The copy of the statement of the Head Master is not given to the Opposite Party. The letter from the District Elementary Education Officer, Vellore is marked as an Exhibit. But the District Elementary Education Officer is not examined as a witness. The copy of the letter from the District Elementary Education Officer, Vellore is not given to the Opposite Party. The significant point to be noted is that while the Head Master is reported to have stated that the documents are not available the District Elementary Education Officer states in his letter that the documents produced by the Opposite Party is false. The significant point to be noted is that while the Head Master is reported to have stated that the documents are not available the District Elementary Education Officer states in his letter that the documents produced by the Opposite Party is false. There is a contradiction between the statement alleged to have been made by the Head Master and the statement of the District Elementary Educational Officer. When such is the case the Applicant is not justified in refusing to give the copy of the statement of he Head Master and the letter of the District Elementary Education Officer, Vellore to the Opposite Party. They are also not examined as witnesses in the enquiry. In such a circumstance when the Opposite Party is deprived of the copies of the statements made by the Headmaster and the letter of the District Elementary Education Officer, Vellore and is also denied the opportunity to cross examine them, it has to be held that the enquiry into the charges against the Opposite Party were not conducted according to the principles of natural justice. Secondly the Opposite Party had contended that his request for adjournment of the enquiry to enable him to produce a certificate from the Headmaster of the school was refused is not contradicted by the Applicant. This is a gross and clear violation of the principles of natural justice in that the Opposite Party is denied an opportunity to prove his innocence. Several documents alleged to have been marked as Exhibits in the enquiry were not filed before me even though they are marked as part of the enquiry proceedings. This raises a doubt as to whether these documents were in fact marked in the enquiry. The possible presumption when the Applicant had not filed these documents before me coupled with the fact that the Applicant had refused to give copies of these documents to the Opposite Party at the time of enquiry is that these documents were not filed before the Enquiry Officer. Any finding which is based on these documents which are held to have been not filed before the Enquiry Officer have to be regarded as perverse." 7. The short ground as to whether there was simultaneous application was concerned, the decision taken by the authority that there was no simultaneous filing of application is well taken. 8. Any finding which is based on these documents which are held to have been not filed before the Enquiry Officer have to be regarded as perverse." 7. The short ground as to whether there was simultaneous application was concerned, the decision taken by the authority that there was no simultaneous filing of application is well taken. 8. As it involves an interpretation of Section 33(2) of the Industrial Disputes Act, 1947, it is necessary to extract the said provision of law:- "Section 33 (2): During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the 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 proceeding ; 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." (emphasis added) 9. The Supreme Court vide its judgment in Strawboard Manufacturing Company Vs. Gobind reported in 1962 Vol (I) LLJ 420 = AIR 1962 SC 1500 had an occasion to consider the scope of Section 33(2)(b) of the Industrial Disputes Act, 1947. The Supreme Court had explained the proviso to Section 33 (2)(b) of the Act. In pages 425 and 426 of the Report, it was observed as follows:- "The next question is as to when should an application be made. In this connection, our attention was drawn to Section 33A of the Act which gives a right to the employer to apply for redress in case an employer contravenes the provision of S.33 and there is no doubt that the proviso to Section 33(2)(b) should be so interpreted as not to whittle down the protection provided by S.33A. In this connection, our attention was drawn to Section 33A of the Act which gives a right to the employer to apply for redress in case an employer contravenes the provision of S.33 and there is no doubt that the proviso to Section 33(2)(b) should be so interpreted as not to whittle down the protection provided by S.33A. As we read the proviso, we are of opinion that it contemplates the three things mentioned therein, namely, (i) dismissal or discharge ; (ii) payment of wages ; and (iii) making of an application for approval, to be simultaneous and to be part of the same transaction, so that the employer when he takes action under Section 33(2) by dismissing or discharging an employee, should immediately pay him or offer to pay him wages for one month and also makes an application to the tribunal for approval at the same time. When, however, we say that the employer must take action simultaneously or immediately, we do not mean that literally, for when three things are to be done, they cannot be done simultaneously but can only be done one after the other. What we mean is that the employers conduct should show that the three things contemplated under the proviso, namely, (i) dismissal or discharge ; (ii) payment of wages ; and iii) making of the application areparts of the same transaction. If that is done, there will be no occasion to fear that the employees right under S.33A would be affected. The question whether the application was made as part of the same transaction, or at the same time when the action was taken, would be a question of fact and will depend upon the circumstances of each case. We may now refer to certain cases which have been relied upon by either side. The main case on which learned counsel for the respondents relies is Premier Automobiles Limited Vs. Ramachandra Bhimayya Polkam and another (1960-I LLJ 443). In that case, the Bombay High Court held that the application should be made before the action has been taken by the employer and that it was not correct to infer from the use of the word "approval" in the proviso that the legislature intended that such an application should be made after the action had been taken. In that case, the Bombay High Court held that the application should be made before the action has been taken by the employer and that it was not correct to infer from the use of the word "approval" in the proviso that the legislature intended that such an application should be made after the action had been taken. The High Court has pointed out that there is apparent conflict between the first and last part of the proviso and the view it took was with the object of harmonizing the two parts. This view has been followed by the Gujarat High Court in Indian Extractions (Private) Limited Vs. A.V.Vyas, Conciliation Officer (AIR (1961) Guj.22) though with some hesitation. With respect we feel that it is not necessary to read the words "action taken" in the proviso as equal to "action proposed to be taken" as the Bombay High Court has done and that the apparent conflict between the two parts of the proviso can be harmonized, as we have indicated above, leaving it open to the employer to dismiss or discharge the employee and at the same time pay him the necessary wages and make an application to the authority concerned for approval of the action taken. The contrary view has been taken by the Calcutta High Court in Metal Press Works Limited Vs. Deb(N.R) and others (1962-I LLJ 75) where it has been held that payment of wages and the making of the application should be simultaneous with the order of discharge or dismissal. It has further been pointed out that the word simultaneously" must of course be taken reasonably and a motion of split-second timing should not be imported. It should be done at once and without delay. andit will depend upon the facts of each case whether the application had been made at once or without delay. This, we think, is the correct view to take. Let us, therefore, see what has happened in this case. The appellant concern is situate at Saharanpur while one tribunal was at Meerut and the other at Allahabad. What the appellant did was to pass an order of dismissal on 1 February 1960. On the same day, he sent two applications by post addressed to the two tribunals. The application at Meerut was received on 3 February and the application at Allahabad on 4 February 1960. What the appellant did was to pass an order of dismissal on 1 February 1960. On the same day, he sent two applications by post addressed to the two tribunals. The application at Meerut was received on 3 February and the application at Allahabad on 4 February 1960. In these circumstances, we are of opinion that the appellant had made the application to the tribunal simultaneously and without delay on its passing the order of dismissal and its action was, therefore, in accordance with the proviso. The view taken by the labour Court that the application must be made before dismissing the respondent, is not correct. The appellant in this case had complied with the proviso to Section 33(2)(b) when it dismissed the workman, paid him or offered to pay the necessary wages and at the same time sent the application by post to the tribunal concerned for approval of the action taken by it. " 10. The Supreme Court, once again, considered the scope of proviso to Section 33(2) (b) of the Act in the judgment in Calcutta State Transport Corporation Vs. Md.Noor Alam reported in AIR 1973 Supreme Court 1404. In that case, the Court also referred to Strawboard Manufacturing Company Vs. Gobind reported in 1962 Vol I LLJ 420 and in paragraph 4, it was observed as follows:- "(4.) .........The employers conduct should show that the three things contemplated under the proviso are parts of the same transaction. (See Strawboard Manufacuting Co. Vs. Goving (1962) Supp 3 SCC 618 (AIR 1962 Scheduled Caste 1500) In P.H.Kalyani Vs. M/s.Air France, Calcutta, (1964) 2 SCR 104 (AIR 1963 Scheduled Caste 1756) the order of dismissal was passed on May 28, 1960 and was communicated to the employee on May 30,1960. The wages were offered to him at the same time when the order was communicated. An application was made under S.33(2)(b) on the same day. It was held that the application was in accordance with the proviso to S.33(2)(b). This decision shows that similar action has to be taken in these matters but that does not mean that all the three things mentioned before should be done on the same day. An application was made under S.33(2)(b) on the same day. It was held that the application was in accordance with the proviso to S.33(2)(b). This decision shows that similar action has to be taken in these matters but that does not mean that all the three things mentioned before should be done on the same day. It is the conduct of the employer that has to be considered from the point of view of finding out whether the dismissal or discharge, payment of wages and making of the application for approval form a part of the same transaction. A difference of a day in doing one thing or the other may not be of materials consequence so long as it is clear that the employer meant to do all the three things as part of one and the same transaction. No hard and fast rule can be laid down in these matters. Each case must be decided on its own facts." (Emphasis added) 11. The Supreme Court in the judgments cited have considered as to what was meant by the "same transaction" and held it has to be seen in the facts and circumstances of each case. In the case of Calcutta State Transport Corporation Vs. Md.Noor Alam reported in AIR 1973 Supreme Court 1404, the Supreme Court held that a days delay cannot be said to be material consequence so long as it was clear that the employer had meant to do all the three things as part of one and the same transaction. In the case of Strawboard Manufacturing Company Vs. Gobind reported in 1962 Vol I LLJ 420, the Supreme Court rejected the argument that approval should be obtained before dismissal. The Supreme Court had held that the word "simultaneously" must of course be taken reasonably and a motion of split-second timing should not be imported. It should be done at once and without delay. In the present case, the Authority had categorically held that 14 days delay was unexplained and therefore, the time gap is too large. 12. In the light of the above, there are no merits in the writ petition filed by the Management. Hence, the writ petition stands dismissed. The order dated 10.04.2006 passed by the first respondent is hereby confirmed. In the present case, the Authority had categorically held that 14 days delay was unexplained and therefore, the time gap is too large. 12. In the light of the above, there are no merits in the writ petition filed by the Management. Hence, the writ petition stands dismissed. The order dated 10.04.2006 passed by the first respondent is hereby confirmed. Therefore, it must be treated that the original second respondent deemed to have continued in service and got retired from service as on 30.04.2004. Since during the pendency of the writ petition, he had passed away and had reached the age of superannuation, the question of reinstatement will not be possible. At the same time, he is eligible for all monetary benefits till the date of his retirement. He is also entitled to get all the terminal benefits including pension. The petitioner Corporation is hereby directed to compute the monetary benefits due to the second respondent and pay the same to the Legal Representatives, who are brought on record as respondents 3 to 6 without driving them to any other forum. This exercise shall be undertaken within a period of 12 weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.