Judgment 1. This writ petition is directed against the order dated 7th May 2012 passed by the Labour Court, Bangalore in I.D.No.24/2010 whereby, an application (dispute) filed by the petitioner-workman under Section 10(4-A) of the Industrial Disputes Act, 1947 (for short “the Act”) has been rejected. In that petition, the petitioner had raised a challenged to the order dated 10-8-2010 passed by the respondent-Corporation dismissing him from service. 2. The Labour Court framed the following issues for consideration: “1. Whether the second party management proves that the domestic enquiry so conducted against the first party workman was fair and proper? 2. Whether the second party management proves that order of dismissal of the first party workman from service is sustainable, just and proper? 3. Whether the first party applicant proves that order of dismissal is perverse and bad in law, and such the same is liable to be set aside? 4. To what reliefs the first party applicant is entitled for? 5. What order and award? ADDITIONAL ISSUE 1. Whether the first party applicant proves that order of dismissal is non est for want of approval by the court in ID.148/2005 pending on the file of Industrial Tribunal, Bangalore?” 3. In the present writ petition, we are concerned with the findings recorded by the Labour Court on Issue Nos.2, 3 and the additional issue. Learned counsel for the parties confined their arguments on these issues. 4. The questions that fall for my consideration, as raised and argued by learned counsel for the parties, are whether the action of dismissal of the petitioner from service on the ground contemplated by Regulation 4(9) of the Karnataka State Transport Corporation (Cadre & Recruitment) Regulations, 1982 (for short “1982 Regulations”) without approval as provided for in the proviso to sub-section 2(b) of Section 33 of the Act is legally sustainable and whether on the facts and circumstances of the case, the order of dismissal/termination of the petitioner could be termed as perverse and bad in law. 5. The background facts leading to this writ petition, in short, are as follows: The petitioner was appointed as a driver by the respondent-Corporation in 1992, and since then, till he was dismissed/terminated from services vide order dated 10-8-2010, worked with the respondent-Corporation. 5. The background facts leading to this writ petition, in short, are as follows: The petitioner was appointed as a driver by the respondent-Corporation in 1992, and since then, till he was dismissed/terminated from services vide order dated 10-8-2010, worked with the respondent-Corporation. He came to be dismissed/terminated from service on the allegations that for obtaining the employment in 1992 he furnished false/wrong information in the application and in support thereof relied upon a fake/false and fabricated transfer certificate. It is not in dispute that the order of dismissal was passed after following the due procedure for imposing major penalties provided for in the Karnataka State Road Transport Corporation Service (Conduct & Discipline) Regulations, 1971 (for short “1971 Regulations”). 5.1 The petitioner had called in question a legality of the order dated 10-8-2010 by filing petition under Section 10 (4-A) of the Act before the Labour Court and prayed for setting aside the order of dismissal and sought direction to the respondent-Corporation to reinstate him into service with full back-wages, continuity of service and consequential benefits. The Labour Court rejected the petition by order dated 7th May 2012, impugned in this writ petition. 5.2 Further reference to the specific allegation against the petitioner and the evidence led by the parties would not be necessary, since the findings of fact recorded by the Labour Court are not seriously disputed by the petitioner. Learned counsel for the petitioner, as a matter of fact, focused his challenge on the questions of law, to which I would like to deal with at this stage. 6. At the outset, my attention was invited to Section 33 of the Act, to contend that, even if it is assumed that the allegations against the petitioner are correct, it was not open to the respondent-Corporation to take action of dismissal from service without approval as contemplated by proviso to clause (b) of sub-section (1) of Section 33 of the Act. It was submitted that though the alleged misconduct was not connected with the dispute pending between the Workers’ Union/Federation (for short “the Federation”) and the respondent-Corporation, sub-section (2) clearly provides the employer cannot take action of discharge or dismissal without making an application to the authority before which the dispute is pending for approval of the action taken by the employer. In support of this contention, learned counsel for the petitioner placed reliance upon the judgment of the Supreme Court in Tata Iron and Steel Limited Vs. Modak, 1964 (II) LLJ 128; Lord Krishna Textile Mills Vs. Its workmen, AIR 1961 SC 860 ; and P.D. Sharma Vs. State Bank of India, AIR 1968 SC 985 . My attention was also invited to the landmark judgment of the Supreme Court in Jaipur Zila S.B.V. Bank Ltd. vs. Ram Gopal Sharma 2002 (I) LLJ 834 . 7. On the other hand, Smt. H.R. Renuka, learned counsel for the respondent-Corporation vehemently submitted that in the present case the provisions contained in Section 33 of the Act have no application since the action against the petitioner was taken for committing fraud on the Corporation for securing the job of driver in 1992. She submitted even if it is assumed that the act of the petitioner also amounts to misconduct, the said misconduct had no connection with his employment. In other words, she submitted that the alleged misconduct was not committed in the course of employment and therefore, for taking permission contemplated by Section 33 of the Act was not necessary. She submitted that the action against the petitioner is taken under Regulation 4(9) of the 1982 Regulations, for which, the approval contemplated under Section 33 was not necessary. 8. It is not in dispute that an Industrial Dispute bearing I.D.No.148/2005 was and is pending between the KSRTC Staff and Workers Federation and the respondent-Corporation before the Industrial Tribunal, Bangalore. The dispute, referred to by the State Government for adjudication of the issues, is regarding Charter of demands submitted by the Federation. The impugned action of dismissal/termination was initiated by issuing articles of charge against the petitioner-workmen on 9-12-2004. Enquiry was conducted and concluded on 13-10-2006 and the disciplinary authority passed an order of dismissal on 10-8-2010. 9. In this backdrop, it would be necessary to have a glance at Section 33 of the Act. Section 33 of the Act reads thus: “33. Enquiry was conducted and concluded on 13-10-2006 and the disciplinary authority passed an order of dismissal on 10-8-2010. 9. In this backdrop, it would be necessary to have a glance at Section 33 of the Act. Section 33 of the Act 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 proceeding; or (b) for any misconduct connected with the dispute, discharge or punish whether by dismissal or otherwise, any workman 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 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.” (3) xxx xxx xxx (4) xxx xxx xxx (5) xxx xxx xxx” 9.1. Sub-Section (1) of Section 33 states that during the pendency of the proceedings contemplated by this provision, in regard to “any matter connected with the dispute” or for “any misconduct connected with the dispute”, no employer shall discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, saved with the express permission in writing of the authority before which the proceeding is pending. 9.2. Sub-section (2) states that during pendency of any such proceedings in respect of an industrial dispute “for any misconduct” not connected with the dispute, the employer shall not discharge or punish any workman unless an application has been made by the employer to the authority before which the proceeding is pending for approval of action taken by the employer. 9.3. A conjoint reading of sub-section (1) and sub-section (2) of Section 33 of the Act, shows that the legislature has made significant and deliberate departure in separating two classes of cases falling under these sub-sections, requiring ‘express previous permission’ in writing in sub-section (1) on one hand and ex-post facto ‘approval’ in sub-section (2) on the other. The distinction between two sub-sections is thus clear. Sub-section (1) deals with “any misconduct connected with the dispute”, while sub-section (2) deals with “any misconduct not connected with the dispute”. In short, the action of discharge or dismissal cannot be taken for any misconduct connected with the dispute against the workman by the employer without express permission in writing of the authority before which the proceedings contemplated under sub-section (1) of Section 33 are pending or without making an application for an action for any misconduct not connected with such dispute, to such authority for approval of the action taken by the employer as provided for in sub-section (2) of Section 33 of the Act. 9.4. The object and reasons for inserting Section 33, before its amendment in 1956 vide Industrial Disputes (Amendment & Miscellaneous Provisions) Act, 1956, was to protect the workman concerned in dispute which form the subject matter of pending proceedings against victimization by the employer on account of their having raised industrial dispute or their continuing the pending proceedings. Further, to ensure proceedings in connection with industrial disputes already pending should be brought to an expeditious determination in a peaceful atmosphere and that no employer should during pendency of those proceedings, take any action of the kind mentioned in the section which may give rise to fresh disputes likely to further accelerate the already strained relationship between the employer and the workman. 9.5 The Section was amended in 1956. 9.5 The Section was amended in 1956. The provisions contained in Section 33, as it stood before the amendment, was prohibiting during the pendency of conciliation proceedings before a Tribunal for any change being made in the conditions of service of, or any action being taken against, the workmen concerned in the dispute except with the previous written permission of the authority concerned. It was found that the number of applications for such permission were large and their disposals used to take long time, and as a result thereof, employers were not in a position to take action even in obvious cases of misconduct and discipline unconnected with the dispute till long after the offence of misconduct had been committed. It was, therefore, proposed to alter the then existing Section 33 so as to provide that, where, during the pendency of proceedings, an employer finds it necessary to proceed against any workman in regard to any matter unconnected with the dispute, he may do so in accordance with the Standing Order applicable to the workmen, but where the action taken involves discharge or dismissal he would have to pay to the workman one month’s wages and simultaneously file an application before the authority, before which the proceeding is pending, for its approval of the action taken. Thus, the protection on the lines of provisions as existed prior to 1956 was continued to be available to all workmen in regard to any matter or misconduct not connected with the dispute. 10. At this stage, I would also like to take a close look at 1971 Regulations. Part-III of 1971 Regulations deal with disciplinary proceedings. Regulation 18 provides nature of penalties consisting of minor penalties and major penalties. Then the Regulations provide for procedure to be followed for imposing major penalties in Regulation 23. Regulation 23 provides that no order imposing any of the penalties specified in clauses (ix) and (x) of Regulation 18 shall be made except after an enquiry, held, as far as may be in the manner provided in the Regulations. Clause (ii) of Regulation-23 states whenever disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of “misconduct or misbehaviour” against a Corporation servant it may itself inquire into or appoint under this Regulation an Authority to inquire into the truth thereof. Clause (ii) of Regulation-23 states whenever disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of “misconduct or misbehaviour” against a Corporation servant it may itself inquire into or appoint under this Regulation an Authority to inquire into the truth thereof. 10.1 Part-II of 1971 Regulations provides for provisions relating to conduct. Regulation-3 in part-II is relevant which reads thus: “3.General- (1) Every Corporation servant shall at all times:- (i) maintain absolute integrity; (ii) maintain devotion to duty; (iii) do nothing which is unbecoming of a Corporation servant. (2) (i) Every Corporation servant holding a supervisory post shall take all possible steps to ensure the integrity and devotion to duty of all Corporation servants for the time being under his control and authority. (ii) No Corporation servant shall in the performance of his official duties or in the exercise of the powers conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior and shall where he is acting under such direction, obtain the direction in writing, wherever practicable, and where it is not practicable to obtain the direction in writing, he shall obtain written confirmation of the direction as soon thereafter as possible. Explanation- Nothing in clause-(ii) of Sub-Regulation (2) shall be construed as empowering a Corporation servant to evade his responsibilities by seeking instructions from, or approval of a superior Officer or Authority when such instructions are not necessary under the scheme of distribution of powers and responsibilities. 10.2 Regulation-4 in Part II provides that no Corporation servants shall except the previous sanction of the Corporation engage directly or indirectly in trade or business or undertake any other employment. Regulation-5 deals with insolvency or habitual indebtedness. Regulation-6 puts restrictions on the Corporation servants from engaging in any demonstration. Regulation-7 provides for restrictions on consumption of intoxicating drinks or drugs. Regulation-8 provides that no Corporation servant shall use his position or influence to secure employment for any member of his family in any private undertaking. Regulation-9 prohibits the Corporation servant from taking part in politics and elections. Even the remaining regulation Nos. 10 to 17 in this Part state about the conduct and discipline which the Corporation servants need to observe while in service. The last regulation-17 states that the servants are obligated to abide by all Administrative Instructions. Regulation-9 prohibits the Corporation servant from taking part in politics and elections. Even the remaining regulation Nos. 10 to 17 in this Part state about the conduct and discipline which the Corporation servants need to observe while in service. The last regulation-17 states that the servants are obligated to abide by all Administrative Instructions. 10.3 From the bare perusal of these provisions, it is clear that 1971 Regulations deal with “conduct and discipline” by the Corporation servants once having entered the service. In other words, if “conduct” in the course of discharge of their official duty or in the course of their employment, is contrary or in breach of what is provided in the regulations, in particular, Part-II thereof, the action can be taken after following the due procedure provided for/prescribed in Part-III of 1971 Regulations for imposing minor or major penalties. In short, if the conduct of the Corporation servant is in breach of or inconsistent with the provisions relating to “conduct and discipline”, specified in Part-II of the Regulations in the course of the discharge of his official duty, the Corporation can take action under 1971 regulations. The 1971 regulations do not state about their conduct before obtaining the job/employment or their conduct for obtaining the job. If the Corporation servant commits any misconduct such as misrepresentation or supplying false information to obtain job, the provisions contained in 1982 Regulations would be attracted. 11. 1982 Regulations provide method of recruitment, procedure for selection of candidates, eligibility criteria for appointment including qualifications for appointments, mode of selection, procedure for appointment, probation period, training period, classification of posts, selection authorities, etc. In the present petition, we are concerned with Regulation 4 which provides for eligibility criteria and disqualification for appointment. The action against the respondent-workman is taken under Regulation 4(9). Clause-9 reads thus: “9. Any person who has given false or wrong information in the application will be disqualified and if appointed and found at a later date that he has given false or wrong information his services shall be terminated.” 11.1 1982 Regulations do not provide any procedure for taking action against an employee who, after appointment, found to have given false or wrong information for obtaining the employment. Since 1982 Regulations do not provide such procedure, learned counsel for the Corporation submitted that in order to observe the principles of natural justice, the Corporation follow the same procedure provided for in 1971 Regulations for taking action of termination under regulation 4(9) of the 1982 Regulations. 11.2 In the present case, insofar as the procedure for holding an enquiry for giving false or wrong information is concerned, it is not in dispute that the respondent-workman was given fair and proper opportunity to meet the allegation. The allegation of giving false/wrong information and furnishing fake and fabricated transfer certificate has been proved in the enquiry. From the conduct of respondent-workman of giving false and wrong information and submitting fake and fabricated document, in my opinion, cannot be termed as misconduct, contemplated by 1971 Regulations. The action taken against respondent-workman, in any case, cannot be said to be an action for conduct in breach of or inconsistent with the provisions relating to the conduct and discipline specified in Part-II of 1971 Regulations having been committed in the course of discharge of his official duty or in the course of his employment. 12. Keeping the objective of the provisions contained in Section 33 of the Act, as it stands today, and the scheme of the 1971 Regulations in the light of the provisions contained in 1982 Regulations, if one looks at the word “misconduct” used in Section 33 of the Act or in 1971 Regulations, it would, in my opinion, means the misconduct committed by a workman in the course of discharge of his official duty or in the course of his employment. 13. In the present case, it was argued that the respondent-Corporation, in view of the fact that the alleged misconduct was not connected with the dispute pending between the Federation and the respondent-Corporation, the Corporation ought to have made an application for approval of the action of dismissal against the petitioner and since it was not obtained the order is bad in law. 14. The allegation against the petitioner was that he furnished false/wrong information in the application made by him for his appointment to the post of driver and he relied upon false and fabricated transfer certificate. To prove this allegation the Corporation examined school Headmaster-Nagaraj and Divisional Security Inspector-M.L. Jayakirthi. The Divisional Security Inspector was appointed by the respondent-Corporation who held preliminary enquiry through his security staff. To prove this allegation the Corporation examined school Headmaster-Nagaraj and Divisional Security Inspector-M.L. Jayakirthi. The Divisional Security Inspector was appointed by the respondent-Corporation who held preliminary enquiry through his security staff. The security staff after having visited the school of which the petitioner had produced transfer certificate verified the record and collected relevant documents from the Headmaster. Both these witnesses placed all the relevant material on record to prove the allegation against the petitioner. It would be relevant to reproduce the relevant observation made by the Labour Court, after considering the evidence on record, which read thus:- “25. Having come to know that the first party applicant has played fraud on the Corporation in getting employment by producing a fake transfer certificate, the management held preliminary enquiry through his Security Staff who having visited the school verified the records, collected the report from the school Head Master as per Ex.M.2 and submitted a report to that effect as per Ex.M.3 to the Divisional Security Inspector and on the basis of Ex.M.2 and M.3 the Divisional Security Inspector gave a report to the Divisional Controller KSRTC as per Ex.M.4 and on the basis of which the management initiated domestic enquiry against the first party applicant. In the process of preliminary enquiry the security staff also collected Ex.M.6 from the school Head Master to show that transfer certificate No.38/85-86 so mentioned on the top of Ex.M.5 pertains to a student by name Chandra Kumar who has taken admission in the said school under admission No.25/84-55. 26. During the course of the domestic enquiry the management examined the Head Master of the school in question and he produced the original admission register and also the Xerox copy of the same and the Enquiry Officer having verified the original with the Xerox copy, marked the Xerox copy in the enquiry at Ex.M.7, and before this court also through the Enquiry Officer the management got it marked Ex.M.7. 27. The document at Ex.M.5 bares the admission register number of the student as 19/70-71. In the light of the said entry if Ex.M.7 is looked into then it clearly goes to show that the entry bearing registration No.19/70-71 stands in the name of one L. Krishnappa having date of birth as 1-6-1964 and Transfer Certificate with respect to him has been issued under Transfer Certificate No.11/77-78. In the light of the said entry if Ex.M.7 is looked into then it clearly goes to show that the entry bearing registration No.19/70-71 stands in the name of one L. Krishnappa having date of birth as 1-6-1964 and Transfer Certificate with respect to him has been issued under Transfer Certificate No.11/77-78. So in the light of the admission register at Ex.M.7, if the Transfer Certificate at Ex.M.5 is looked into, then it clearly goes to show that the contents of Ex.M.5 are not correct except the registration number. There is some justification on the part of the management to contend that Ex.M.5 is fake and concocted document since the contents of Ex.M.5 do not tally with the information so found at registration No.19/70-71 in the school admission register at Ex.M.7. 28. In the light of the entries so found at Ex.M.6 issued by the school Head Master in the preliminary enquiry, if the Transfer Certificate at Ex.M.5 so produced by the first party applicant at the time of getting employment in the Corporation, then it clearly goes to show that Transfer Certificate No.38/85-86 pertains to a student by name Chandra Kumar who had take admission in the said school during the year 1984 with admission No. 25/84-85, and as such on that count also the contents of Ex.M.5 do not tally with any of the contents of Ex.M.6. 29. Infact it was for the first party applicant to examine Munivenkatappa the author of Ex.M.5 who has issued the same with his signature, to make out a positive case that only on the basis of the entries found in the school register pertaining to the first party applicant, Ex.M.5 has been issued. But the first party applicant did not choose to examine the said Munivenkatappa before the enquiry and also before this court. 30. So also nothing has been brought out in the cross examination of the Head Master who has been examined in the domestic enquiry to make out a positive case that during the year 1985 and more especially on 21-9-1985 the date on which Ex.M.5 is alleged to have been issued by the said school, one Munivenkatappa was the Head Master of the said school. But to that effect nothing has been made out in the cross. But to that effect nothing has been made out in the cross. Under the circumstance I am convinced that there is some justification on the part of the learned counsel for the management to contend that on the basis of Ex.M.6 and M.7, it can be safely held that Ex.M.5 is a got up and concocted document. 31. The Enquiry Officer having gone into all these aspects has come to the just conclusion to the effect that on the basis of the fake Transfer Certificate at Ex.M.5, the first party applicant got employment in the second party Corporation, and the disciplinary authority having verified the reports and records has accepted the same and based the said report for passing the impugned order.” 15. I have also perused the articles of charge and the documents produced on record to prove the allegations against the petitioner. It is clear that the petitioner for obtaining the job of driver had produced fake/false and fabricated transfer certificate and thereby committed fraud on the Corporation. For obtaining the job he virtually cheated the Corporation by placing false and fabricated documents so as to qualify for the said job. If the petitioner had not produced the fake and fabricated transfer certificate the concerned authorities of the respondent-Corporation would not have appointed him as a driver. In other words, it is clear that only because false and fabricated documents were produced by the petitioner, he was selected and appointed as a driver by the respondent-Corporation. 16. It is against this backdrop, once again I would like to have a glance at the provisions contained in Section 33 once again. Sub-section (1) as well as sub-section (2) of Section 33 use the word “misconduct”. Insofar as sub-section (1) is concerned it states about “any misconduct connected with the dispute” which obviously means the misconduct committed by any workman in the course of his employment. Sub-section (2) states about “any misconduct not connected with the dispute.” The expression “any misconduct” is a wide term/expression which covers the misconduct not connected with the dispute between the Federation and the respondent-Corporation. The expression “any misconduct” in sub-section (2)(b) of Section 33 whether would cover the act of the petitioner producing false and fabricated documents for the purpose of obtaining employment is the question. 17. The expression “any misconduct” in sub-section (2)(b) of Section 33 whether would cover the act of the petitioner producing false and fabricated documents for the purpose of obtaining employment is the question. 17. The Supreme Court in State of Punjab vs. Ram Singh, AIR 1992 SC 2188 , had an occasion to consider the word “misconduct”. The observations made by the Supreme Court while considering the word ‘misconduct’, would help us to understand what does the word “misconduct” mean in the context of the provisions of 33 of the Act. The Supreme Court after looking into dictionary meaning of the word “misconduct”, in paragraph 5 of the report observed thus: “5. Thus it could be seen that the word misconduct’ though not capable of precise definition, its reflection receive its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour, unlawful behaviour, willful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve.” 18. The word misconduct is not defined either in the Act or in the Rules and is not capable of precise definition. Though it is incapable of precise definition the word “misconduct” on reflection receives its connotation from the context. It is a relative term, which has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. In other words, the word “misconduct” will have to be understood and interpreted in the context of Section 33, as it occurs therein, having regard to not only the scope of the Act but also the objective for inserting such provisions in the Act. The expression “any misconduct’ employed in sub-section (1) and sub-section (2), therefore, will have to be read in the context of said provision or the Scheme of Section 33 of the Act. The expression “any misconduct’ employed in sub-section (1) and sub-section (2), therefore, will have to be read in the context of said provision or the Scheme of Section 33 of the Act. The interpretation of the statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. 19. The proviso to Section 33(2) (b) on which heavy reliance was placed on behalf of the petitioner in support of the contentions urged, as can be seen from its very unambiguous and clear language, is mandatory. The proviso to Section 33(2)(b) contemplates three things mentioned therein, namely, (i) dismissal or discharge; (ii) payment of wages; and (iii) making of an application for approval. The proviso to Section 33(2)(b) affords protection to a workman to safeguard his interest and it is a shield against victimization and unfair labour practice by the employer during the pendency of industrial dispute when the relationship between them are already strained. An employer cannot be permitted to use the provision of Section 33(2)(b) to ease out a workman without complying with the conditions contained in the said proviso for any alleged misconduct said to be unconnected with the already pending industrial dispute. The protection afforded to a workman under the said provision cannot be taken away. If it is to held that an order of discharge or dismissal passed by the employer without complying the requirements of the said proviso is not void or inoperative, the employer may with impunity discharge or dismiss a workman. Where an application is made under Section 33(2)(b) proviso, the authority before which proceeding for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bonafide, whether it was by way of victimization or unfair labour practice etc. (see Jaipur Zila S.B.V. Bank Ltd. v. R.G. Sharma). 20. Having regard to the principle laid down by the Supreme Court in Jaipur Zilla S.B.V. Bank and the provisions contained in sub-section (2) of Section 33 of the Act, in particular, the proviso thereof, it cannot be stated that the impugned action against the petitioner under Regulation 4(9) of 1982 Regulations was an act of vicitmisation or unfair labour practice by the respondent-Corporation during the pendency of the industrial dispute bearing No.148 of 2005 between the Federation and respondent-Corporation. The action of dismissal, which was initiated in 2004 taken by the respondent-Corporation, was not for any misconduct allegedly committed by him in the course of employment but it was for committing fraud on the Corporation for obtaining the employment as a driver. The petitioner produced fake and bogus transfer certificate and on the basis thereof, was appointed as driver which fact cannot be treated as a misconduct committed by him in the course of employment or the misconduct contemplated by sub-section (2) of Section 33 of the Act. This view finds further support in view of the clear finding of fact in respect of the transfer certificate, recorded by the labour Court based on the evidence on record. The judgment relied upon by the learned counsel for the petitioner in my opinion, though the propositions laid down by the Supreme Court are very clear, are of no avail to the petitioner, in view of the peculiar facts and circumstances of this case. The allegations against the petitioner cannot be treated as a misconduct within the meaning of word/expression “misconduct” or “any misconduct” occurred in Section 33 of the Act. 21. Next, I would like to consider the challenge to the order of dismissal. Learned counsel for the petitioner placed heavy reliance upon an unreported judgment of this Court dated 19th November 2009 in V. Krishna vs. Bangalore Metropolitan Transport Corporation (Writ Appeal No.1273/2009) to contend that the order, dismissing the petitioner, is discriminatory. He submitted that other employees who were also tried for the similar allegations were not dismissed from service and they were given either lesser punishment or allowed to retire compulsorily. He submitted that having regard to the length of service of the petitioner, he is entitled to leniency. According to learned counsel for the petitioner, the disciplinary authority ought to have given him option of compulsory retirement before passing the order of dismissal. In support of his contention he placed reliance upon the order passed by this Court dated 24-2-2011 in Writ Petition No.16564/2008. In that case, the learned single Judge though did not entertain the challenge to the order of dismissal passed by the disciplinary authority and the Labour Court converted the order of dismissal into compulsory retirement. In support of his contention he placed reliance upon the order passed by this Court dated 24-2-2011 in Writ Petition No.16564/2008. In that case, the learned single Judge though did not entertain the challenge to the order of dismissal passed by the disciplinary authority and the Labour Court converted the order of dismissal into compulsory retirement. The said order (dated 24-2-2011), it was submitted, was passed by learned single Judge at the time of preliminary hearing, without hearing the respondent-Corporation, whereby the petition was dismissed. 22. On the other hand learned counsel appearing for the respondent-Corporation invited my attention to the judgments of the Supreme Court to contend that under any circumstances once having proved that employment was obtained on the basis of false and fabricated document no leniency of whatsoever nature can be shown to such employee and only punishment that can be imposed is an order of dismissal. 23. In this connection, I would like to refer to the judgments of the Supreme Court to which my attention was invited to, by learned counsel appearing for the parties. The Supreme Court in Union of India vs. V.M. Bhaskaran, 1996 SC 686, while considering almost identical situation in paragraph-6 observed thus: “6…………….Such orders of removal would amount to recalling of fraudulently obtained erroneous appointment orders which were avoided by the employer-appellant after following the due procedure of law and complying with the principles of natural justice. Therefore, even independently of Rule 3(1)(i) and (iii) of the Rules, such fraudulently obtained appointment orders could be legitimately treated as voidable at the option of the employer and could be recalled by the employer and in such cases merely because the respondent-employees have continued in service for number of years on the basis of such fraudulently obtained employment orders cannot create any equity in their favour or any estoppel against the employer. In this connection we may usefully refer to a decision of this Court in District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram M. Tripura Sundari Devi, (1990) 3 SCC 655 . In that case Sawant, J. speaking for this Court held that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. In that case Sawant, J. speaking for this Court held that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No Court should be a party to the perpetuation of the fraudulent practice. It is of course true as noted by the Tribunal that the facts of the case in the aforesaid decision were different from the facts of the present case. And it is also true that in that case pending the service which was continued pursuant to the order of the Tribunal the concerned candidate acquired the requisite qualification and hence his appointment was not disturbed by this Court. But that is neither here nor there. As laid down in the aforesaid decision if by committing fraud any employment is obtained such a fraudulent practice cannot be permitted to be countenanced by a Court of law. Consequently, it must be held that the Tribunal had committed a patent error of law in directing reinstatement of the respondent-workmen with all consequential benefits. The removal orders could not have been faulted by the Tribunal as they were the result of a sharp and fraudulent practice on the part of the respondents. Learned counsel for respondents, however, submitted that these illiterate respondents were employed as casual labourers years back in 1983 and subsequently they have been given temporary status and, therefore, after passage of such a long time they should not be thrown out of employment. It is difficult to agree with this contention. By mere passage of time a fraudulent practice would not get any sanctity. The appellant authorities having come to know about the fraud of the respondents in obtaining employment as casual labourers started departmental proceedings year back in 1987 and these proceedings have dragged on for number of years. Earlier removal orders of the respondents were set aside by the Central Administrative Tribunal. The appellant authorities having come to know about the fraud of the respondents in obtaining employment as casual labourers started departmental proceedings year back in 1987 and these proceedings have dragged on for number of years. Earlier removal orders of the respondents were set aside by the Central Administrative Tribunal. Madras Bench and proceedings were remanded and after remand fresh removal orders were passed by the appellant which have been set aside by the Central Administrative Tribunal, Ernakulam Bench and which are the subject matter of the present proceedings. Therefore, it cannot be said that the appellants are estopped from recalling such fraudulently obtained employment orders of the respondents subject of course to following due procedure of law and in due compliance with the principles of natural justice, on which aspect there is no dispute between the parties. If any lenient view is taken on the facts of the present case in favour of the respondents then it would amount to putting premium on dishonesty and sharp practice which on the facts of the present cases cannot be permitted.” (emphasis supplied) 23.1 In Bank of India and Avinash D Mandivikar 2005(7) SCC 690 in paragraph-6 observed thus: “6. Respondent 1 employee obtained appointment in the service on the basis that he belonged to a Scheduled Tribe. When the clear finding of the Scrutiny Committee is that he did not belong to the Scheduled Tribe the very foundation of his appointment collapses and his appointment is no appointment in the eye of law. There is absolutely no justification for his claim in respect of the post he usurped, as the same was meant for a reserved candidate.” (emphasis supplied) 23.2 While dealing with similar submission, as made by learned counsel for the petitioner in the present case, that the petitioner has put in nearly two decade of service, the Supreme Court in R.V. Vishwanatha Pillai vs. State of Kerala, 2004 (2) SCC 105 , in paragraph-19 observed thus: “19. It was then contended by Shri Ranjit Kumar, learned Senior Counsel for the appellant that since the appellant has rendered about 27 years of service, the order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensionary benefits of the appellant. We do not find any substance in this submission as well. It was then contended by Shri Ranjit Kumar, learned Senior Counsel for the appellant that since the appellant has rendered about 27 years of service, the order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensionary benefits of the appellant. We do not find any substance in this submission as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. The appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eye of the law. The right to salary or pension after retirement flows from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on a false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for a Scheduled Caste, thus depriving a genuine Scheduled Caste candidate of appointment to that post, does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He, who comes to the court with false claims, cannot plead equity nor would the court be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of a false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practicing fraud.” (emphasis supplied) 23.3 Keeping in view the law laid down by the Supreme Court, I perused the judgment of this Court in V. Krishna (supra) on which heavy reliance was placed on behalf of the petitioner. Insofar this judgment is concerned, learned counsel for the respondent-Corporation at the outset, invited my attention to the order passed by the Supreme Court in a petition Special Leave to Appeal (Civil) Nos.28020/2010 dated 5-7-2012. The Special Leave petition was directed against the very same judgment of the Division Bench in Writ Appeal No.1273/2009 dated 19th November 2009. The Supreme Court though dismissed the S.L.P. clarified that said judgment may not be treated as precedent. The order of Supreme Court reads thus: “After having heard learned counsel for the parties and after perusal of the impugned order passed by the Division Bench of the High Court, we find no ground to interfere against the said order. Special leave petition is accordingly dismissed. However, we clarify that it may not be treated as precedent.” 23.4 In view thereof and in view of the law laid down by the Supreme Court in the judgments referred to herein above, in my opinion, the judgment in V. Krishna is of no avail to the petitioner. Even the order passed by the learned single Judge dated 24-2-2011 also is of no avail to the petitioner. The question raised, considered and dealt with in this judgment was not either raised or considered by the learned single Judge while disposing of writ petition vide order dated 24-2-2011 in Writ Petition No.16564/2008. Insofar as discrimination is concerned, this Court is informed that the Corporation, during last about 9-10 years, has not made any exception in taking action in such cases. In other words, they have not discriminated while taking action of dismissal. In any case, as held by the Supreme Court, no leniency can be shown to a person who has obtained the employment by committing fraud on the Corporation and on the public at large. 24. In the present case, I am satisfied that the findings recorded by the enquiry officer on the point of fraud being committed by the petitioner on the Corporation and confirmed by the disciplinary authority and Labour Court deserve no interference. Exercise of discretion by the Labour Court under Section 11-A of the Act, in the facts of the present case, was unavailable and the Labour Court has rightly dismissed the application filed by the petitioner under Section 10 (4-A) of the Act. If any employment is obtained by committing fraud cannot be permitted to be countenanced by the Court of law. If any employment is obtained by committing fraud cannot be permitted to be countenanced by the Court of law. By mere passage of time a fraudulent practice would not get any sanctity. The concerned authority, in the present case, was right in taking the impugned action, having come to know about the fraud committed by the respondent-workman, in obtaining employment as a driver, after holding a departmental enquiry. As observed by the Supreme Court, if any lenient view is taken in favour of the respondent, then it would amount to putting premium on dishonesty and sharp practice which on the facts of the present case cannot be permitted. A person like the respondent-workman does not deserve any sympathy. Equity jurisdiction cannot be exercised in the case of respondent who obtained the employment, on the basis of false and fabricated transfer certificate. In my opinion, equity or compassion cannot be allowed to bend the arms of law in a case where an individual has obtained an employment by practicing fraud. 25. If the petitioner had not produced false and fabricated documents at the time of his appointment perhaps that post would have gone to a person qualified for the said post. Thus, as observed by the Supreme Court in M. Bhaskaran, the petitioner has committed fraud not only on the Corporation but on the public at large. Such practice cannot be encouraged by retaining a person like the petitioner in service. That would, in my opinion, send a wrong signal to the people at large, and perhaps may encourage to indulge in such a sharp practice. In the circumstances, the other limb of submission of learned counsel for the petitioner also deserves to be rejected. 26. In the result, the petition is dismissed. However, in view of the peculiar facts and circumstances of case, there shall be no order as to costs.