JUDGMENT : SUJIT NARAYAN PRASAD, J. 1. The award dated 24.12.1997 passed in Industrial Misc. Case No. 55/97(53/94) by the Presiding Officer, Industrial Tribunal, Rourkela is under challenge whereby and where under approval required under Section 33(2)(b) of the Industrial Disputes Act, 1947 has not been accorded to the order of dismissal passed against the workman and accordingly the Misc. Case has been dismissed. 2. Brief facts of the case of the petitioner is that the workman, for the purpose of getting appointment, has submitted forged matriculation examination certificate and forged school leaving certificate, the authority after knowing this fact has charge sheeted him under clause 28(iv) and 28(xxviii) of the certified standing orders of the company. The workman has submitted explanation to the charge sheet, having been found unsatisfactory the competent authority had constituted an enquiry committee to enquire into the charge which was enquired into adhering to the principles of natural justice. During enquiry, the workman admitted the charge voluntarily. After conclusion of the enquiry the enquiry committee submitted its report to the disciplinary authority holding the charge as established against the workman, copy of the enquiry proceeding and copy of the finding thereof were given to the workman. The disciplinary authority confirmed the said finding and held that the workman deserves to be removed from service of the company, while doing so the disciplinary authority also examined past service records of the workman with a view to find out if there were any extenuating circumstances in his favour but could not find any such material. In such circumstances, the disciplinary authority passed order of dismissal of the workman from service with effect from 13.8.1994 as a disciplinary measure under Order 29(2)(d) of the certified sanding orders of the company. The petitioner-management has paid one month wages as required under proviso to section 33(2)(b) of the Industrial Disputes Act, 1947 on 13.8.1994 through money orders and since the workman is a concerned workman in I.D. Case No. 25 of 1990 pending disposal of the before the Industrial Tribunal, petition was filed for approval of the action taken by the management against the workman. 3. The Tribunal after going through the materials produced before it has not accorded approval of the order of dismissal passed against the workman. 3. The Tribunal after going through the materials produced before it has not accorded approval of the order of dismissal passed against the workman. The Tribunal has given reasons for not according approval in the award impugned that the Secretary, Bihar School Examination Board, Patna has found the certificate not genuine as well as also the School Leaving Certificate issued by the school concerned, since the authority who has issued Ext.9 i.e. letter of the Secretary, Bihar School Examination Board, Patna, Ext.10 is the letter of the Joint Secretary by which it has been intimated that the mark sheet was a forged one and the authority who has stated that the school leaving certificate is not genuine is not called upon in course of domestic enquiry to prove the documents and thereby the workman has not been provided with adequate opportunity to cross-examine them. 4. Learned counsel representing the management has assailed the order of the Tribunal on the ground that the Tribunal is only suppose to see requirement of the conditions mentioned in the proviso to section 33(2)(b) of the I.D. Act and that is the condition since been complied with by the management, hence the Tribunal ought to have accorded approval and by no doing so the Tribunal has erred in passing the award. While on the other hand learned counsel representing the workman has submitted that although statute provides that the conditions mentioned in proviso to section 33(2)(b) of the Act is to be followed before according approval of the order of dismissal but it is not a fact that the Tribunal will accept the enquiry report without applying its mind otherwise there will be no meaning of getting approval from the Tribunal in connection with the decision of dismissal taken against the workman. 5. In order to appreciate the rival submissions of the parties, it would be relevant to the relevant provisions of section 33(2)(b) of the Industrial Disputes Act,1947 which is quoted herein below: 33. Conditions of service, etc. 5. In order to appreciate the rival submissions of the parties, it would be relevant to the relevant provisions of section 33(2)(b) of the Industrial Disputes Act,1947 which is quoted herein below: 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; (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen 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 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; (b) for any misconduct not connected with the dispute, or 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) Notwithstanding anything contained in sub-section (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute:- (a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceedings; (b) by discharging or punishing, whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending. Explanation.-For the purposes of this sub- section, a "protected workman" in relation to an establishment, means a workman who, being a member of the executive or other office bearer of a registered trade union connected with the establishment, is recognized as such in accordance with rules made in this behalf. (4) In every establishment, the number of workmen to be recognized as protected workmen for the purposes of sub-section (3) shall be one per cent. of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the appropriate Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recognized as protected workmen. (5) Where an employer makes an application to a conciliation officer, Board, an arbitrator, a Labour Court, Tribunal or National Tribunal under the proviso to sub- section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, 3 within a period of three months from the date of receipt of such application], such order in relation thereto as it deems fit: Provided that where any such authority considers it necessary or expedient so to do, it may, for reasons to be recorded in writing, extend such period by such further period as it may think fit: Provided further that no proceedings before any such authority shall lapse merely on the ground that any period specified in this sub- section had expired without such proceedings being completed.” From perusal of the provisions as contained in Section 33(2)(b) of the I.D. Act, it is evident that Section 33 bars alterations in the conditions of service prejudicial to the workmen concerned in the dispute and disciplinary punishment of discharge or dismissal when either is connected with pendent lite industrial dispute, save with the permission of the authorities before which the proceeding is pending or where the discharge or dismissal is for any misconduct not connected with the pendent lite industrial dispute without the approval of such authority. Section 33(1) shows that provisions of the said sub-section protects the workman concerned in the main dispute which is pending conciliation or adjudication. Section 33(1) shows that provisions of the said sub-section protects the workman concerned in the main dispute which is pending conciliation or adjudication. Fact of such sub-section (1) is that where condition precedent prescribed by it are satisfied, the employer is preferring from taking any action in regard to matters as specified in Clauses (a) and (b) against the employee concerned, no such dispute without previous express permission in writing by the authority before which the proceeding is pending. Otherwise, in cases falling under sub-section (1) before any action can be taken by the employer to which reference is made by Clauses (a) and (b) he may obtain expression permission by specified authority. Proviso to section 33(2) shows where action is required to be taken by an employer against any of these employees which falls within the scope of clause (b), he can do so subject to the requirement of the proviso. If the employer intends to discharge or dismissal of the workman, an order can be passed by the employer against him provided he has paid such employees wages for one month and he has made an application to the authority before which the proceeding is pending for approval of the action taken by him, these requirements of proviso are to be satisfied by employer on the basis of forming part of the same transaction. It also settled that if approval is concerned, it shall take effect from the date of the order passed by the employer for which approval so sought for. If Tribunal has not granted order of dismissal or discharge passed by the employer is wholly invalid or inoperative and the employee can legitimately claim to continue to be an employee of the employer notwithstanding the order passed by him dismissing or discharging him. Scope of Section 33(2)(b) has been discussed by Hon’ble Apex Court in the case of Tata Iron and Steel Company Ltd. vs. Modak (S.N.) reported in 1965 (2) LLJ 128 (SC), Strawboard Manufacturing Co vs. Gobind, reported in AIR 1962 SC 1500 . 6. The issue as to whether fairness of the domestic enquiry can be looked into by the Tribunal while granting approval under section 33(2)(b) of the Industrial Disputes Act, 1947 or not, this issue fell for consideration before the Hon’ble Apex Court in the case of Tata Oil Miss Co. 6. The issue as to whether fairness of the domestic enquiry can be looked into by the Tribunal while granting approval under section 33(2)(b) of the Industrial Disputes Act, 1947 or not, this issue fell for consideration before the Hon’ble Apex Court in the case of Tata Oil Miss Co. Ltd. vs. Its Workmen, reported in (1964) 7 SCR 555 and Agnani (W.M.) vs. Badri Das, reported in (1963) 1 Lab LJ 684 (SC). In the case of Agnani (W.M.) vs. Badri Das (supra) the Hon’ble Apex Court held as under: “It is true that if a domestic enquiry is properly held and the employer terminates the service of his employee, the industrial tribunal dealing with industrial disputes arising out of such dismissal is not authorized to sit in appeal over the findings of the enquiry committee, or to examine the propriety of the ultimate order of dismissal passed by the employer.” In the case of P.H. Kalyani and Air France, Calcutta reported in (1963) 1 Lab LJ 679 it has been held by the Hon’ble Apex Court: “If the enquiry is not defective, the labour court has only to see whether there was a prima facie case for dismissal, and whether the employer had come to the bona fide conclusion that the employee was guilty of misconduct. Thereafter, on coming to the conclusion that the employer has bona fide come to the conclusion that the employee was guilty, i.e. there was no unfair labour practice and no victimization, the labour court would grant the approval which would related back to the date from which the employer had ordered the dismissal. If the inquiry is defective for any reason, the labour court would also have to consider for itself on the evidence adduced before it whether the dismissal was justified. If the inquiry is defective for any reason, the labour court would also have to consider for itself on the evidence adduced before it whether the dismissal was justified. However, on coming to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified, its approval of the order of dismissal made by the employer in a defective enquiry would still relate back to the date when the order was made.” In the case of Lalla Ram vs. Management of D.C.M. Chemical Works Ltd. and another, reported in AIR 1978 SC 1004 it has been held by the Hon’ble Apex Court that in proceedings under Section 33(2)(b) of the Act, the jurisdiction of the Industrial Tribunal is confined to the enquiry as to:- (i) whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice has been held; (ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out; (iii) whether the employer had tome to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimize the employee, regard being had to the position settled by the decisions of the Hon’ble Apex Court in the case of Bengal Bhatdee Coal Co. v. Ram Probesh Singh, (1964) 1 SCR 709 : AIR 1964 SC 486 ; Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar, (1961) 1 Lab LJ 511 (SC); Hind Construction & Engineering Co. Ltd. v. Their Workmen, (1965) 2 SCR 83 : AIR 1965 SC 917 ; Workmen of Messrs Firestone Tyre & Rubber Company of India (P) Ltd. v. Management & Others, (1973) 3 SCR 587 : AIR 1973 SC 1227 and Eastern Electric and Trading Co. Ltd. v. Their Workmen, (1965) 2 SCR 83 : AIR 1965 SC 917 ; Workmen of Messrs Firestone Tyre & Rubber Company of India (P) Ltd. v. Management & Others, (1973) 3 SCR 587 : AIR 1973 SC 1227 and Eastern Electric and Trading Co. v. Baldev Lal, 1975 Lab IC 1435 : AIR 1975 SC 1892 that though generally speaking the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe yet an inference of mala-fides may in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment; (iv) whether the employer has paid or offered to pay wages for one month to the employee; (v) whether the employer has simultaneously or within such reasonably short time as to form part of the game transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him. If these conditions are satisfied, the Industrial Tribunal would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If however, the domestic enquiry suffers from any defect or infirmity, the labour authority will have to find out on its own assessment of the evidence adduced before it whether there was justification for dismissal and if it so finds it will grant approval of the order of dismissal which would also relate back to the date when the order was passed provided the employer had paid or offered to pay wages for one month to the employee and the employer had within the time indicated above applied to the authority before which the main industrial dispute is pending for approval of the action taken by him. 7. Thus, in view of the reasons given by the Larger Bench judgment of the Hon’ble Apex Court before the conditions mentioned in proviso to Section 33(2)(b) of the I.D. Act, victimized part is also to be seen while granting approval by the Tribunal. 7. Thus, in view of the reasons given by the Larger Bench judgment of the Hon’ble Apex Court before the conditions mentioned in proviso to Section 33(2)(b) of the I.D. Act, victimized part is also to be seen while granting approval by the Tribunal. In this connection, reference may be to the judgment rendered by the Calcutta High Court in the case B. Yallappa vs. Presiding Officer, Eighth Industrial Tribunal and Others, reported in (1997) 2 LLJ 1047 needs to be referred wherein it has been held at para-11 which is being quoted herein-below: “Since a point has been raised that the proviso to such Section was not complied with inasmuch as, one month's salary was not paid to the petitioner, the Tribunal is certainly required to decide the question whether such application which has been made by the company was at all maintainable and proviso in respect of the said Section was complied with or not, Before going into such question, the question of examining the validity of the domestic enquiry, therefore cannot arise. I am not oblivious of the position that whether the domestic enquiry is valid or not is also to be examined prima facie for the purpose of granting or refusing (sic.) approval under Section 33(2) of the said Act and to that extent it may be said that such issue is also linked up with the previous question raised by the petitioner. But the learned Judge has erred in holding that the question as to the validity of the domestic enquiry must be decided first, inasmuch as, such a specific question haying been raised by the petitioner that the proviso to the said Section was not complied which pertains to the very maintainability of the application, unless such question is first decided, the question of examining the validity of the enquiry for the purpose of granting or refusing such approval does not arise. If the very application is not maintainable for non-compliance of the proviso, such application is bound to fail as such provisions have been held to be mandatory by the Supreme Court as indicated above.” 8. If the very application is not maintainable for non-compliance of the proviso, such application is bound to fail as such provisions have been held to be mandatory by the Supreme Court as indicated above.” 8. The Hon’ble Apex Court has further considered scope of Section 33(2)(b) of the Industrial Disputes Act, 1947 by its constitution Bench in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Shri Ram Gopal Sharma and Others, reported in AIR 2002 SC 643 wherein it has been held that where an application is made under Section 33(3)(b) proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not, etc. 9. After going through these authoritative pronouncements of the Hon’ble Apex Court the original statute although provides that for getting approval the condition provided in the proviso to Section 33(2)(b), i.e. one month wages and approval from the Tribunal where the reference is pending connected with the workman but the Tribunal has also suppose to see regarding fairness of the enquiry and as to whether order of dismissal has been passed in way of victimization or unfair labour practice. 10. In the light of the pronouncement we have examined the case in hand. From appraisal of the facts of this case it is evident that the workman has been provided appointment under the displaced quota on account of acquisition of land under the rehabilitation policy of the State Government. The workman has got his appointment and started discharging his duty but all of a sudden charge sheet has been issued against him for committing irregularities in getting engagement by submitting forged certificates i.e. Matriculation Certificate having been issued by the Secretary, Bihar School Examination Board, Patna as well as the School Leaving Certificate issued from the school where he had studied. Management alleged that these two certificates have been forged from the issuing offices and they have given certificates that these certificates have never been issued by them and the said certificates have been brought on record before the domestic enquiry and on the basis of these documents charge sheet leveled against the petitioner has been proved, thereafter he has been dismissed from service. Since the reference is pending and the concerned workman is connected with the matter application under section 33(2)(b) has been filed for seeking approval of the order of dismissal. The Tribunal has refused to grant approval on the ground that the domestic enquiry has not been conducted fairly. There is no denial about the fact that the employee having tarnished character has got no right to remain in service but before reaching to this conclusion the workman has to be provided with adequate and sufficient opportunity to defend his case. The management has called the report from the concerned issuing office and they have issued certificates by saying that these two certificates having not been issued by their office but the workman has not been apprised as to who is the authority has issued certificates since these authorities having not been brought to depose before the enquiry officer so that they may be cross-examined by the workman and thereby the workman has been deprived from adequate and sufficient opportunity to defend himself. The Industrial Tribunal has taken into consideration this aspect of the matter and given finding that the domestic enquiry is not fair. Order of dismissals since was passed upon the domestic enquiry and as such the Tribunal has refused to grant permission. The Industrial Tribunal has taken into consideration this aspect of the matter and given finding that the domestic enquiry is not fair. Order of dismissals since was passed upon the domestic enquiry and as such the Tribunal has refused to grant permission. The contention of the learned counsel for the management is that proviso to section 33(2)(b) of the Industrial Disputes Act, 1947 is only to see as to whether one month wage has been paid to the workman and application for getting approval from the Tribunal where connected Reference is pending, and since these two conditions have been complied with, the Tribunal has got no scope not to grant approval of order of dismissal passed against the workman but this argument is not worthy to be considered in view of the discussions having been made by us of authoritative pronouncements of the Hon’ble Apex Court in the preceding paragraphs whereby and where under scope of Section 33(2)(b) of the Industrial Disputes Acts has not been restricted only to see compliance of proviso to Section 33(2)(b) rather the Tribunal has also authorized to see fairness of domestic enquiry, unfairness and victimization of the concerned workman. The management has conducted domestic enquiry but without providing adequate and sufficient opportunity to the workman. As per the settled proposition, order of dismissal has to be passed after following due procedure i.e. after conducting full-fledged enquiry but the enquiry has to be conducted properly by providing adequate and sufficient opportunity of being heard to the concerned workman. Domestic enquiry cannot be said to merely a formality. In this case, even the two documents, i.e. the certificates issued by the concerned issuing authorities have been brought on record, as such it was duty of the management to call upon those authorities to prove said documents in order to see genuineness of the same then only it could have been said that the workman has committed irregularities and got employment by way of commission of fraud, without doing so the management has proved the charges against the workman in the domestic enquiry and as such it cannot be said to be proper enquiry in the eye of law. The Tribunal after taking into consideration these aspects of the matter has not granted approval and by doing so it cannot be said that the Industrial Tribunal has committed illegality although scope of Tribunal under Section 33(2)(b) is very limited but simultaneously it cannot be said that the Industrial Tribunal will act only as Post Office to give seal upon the decision taken by the management and the position has been clarified by the Hon’ble Apex Court in the constitutional judgment as has been referred to above. 11. We, after examining the entire aspect of the matter, have found that the Industrial Tribunal has not committed error in not according approval with respect to the order of dismissal of the workman. Accordingly, we find no reason to interfere with the same. Simultaneously we are conscious of the fact that merely on the ground of not providing adequate and sufficient opportunity the delinquent-workman cannot be given benefit rather truth has to come into surface by adopting proper method. It is also true that if the conduct of the workman or the employer is not proper, concerned workman has no right to continue in service, taking into this aspect of the matter, we thought it proper to give liberty to the management to take recourse of law in accordance with law if they so desire. With the above observation and direction, the writ petition is disposed of.