JUDGMENT : K.M. Thaker, J. 1. In present petition, the petitioner Ahmedabad Municipal Transport Services ('AMTS' for short) has challenged order dated 16.9.2002 passed by the learned Industrial Tribunal in Approval Application No. 123 of 1994 in Reference (IT) No. 433 of 1992 whereby the learned Tribunal dismissed the approval application filed by present petitioner AMTS. 2. It has emerged from the record that present respondent worked with present petitioner AMTS as Conductor under Badge No. 120. 2.1 It has also emerged from the record that certain complaint/report was made and submitted against present respondent with the allegation that he had not deposited Rs. 317.75 being the amount collected from the passengers. 2.2 Such report was submitted on or around 9.5.1992. In that view of the matter, the petitioner AMTS issued and served to the respondent a charge-sheet dated 11.11.1992. In pursuance of the said charge-sheet, domestic enquiry was conducted. 2.3 After completion of the enquiry, the Enquiry Officer submitted its finding/report dated 12.10.1994. 2.4 Thereafter, the petitioner AMTS served second show cause notice to present respondent and his explanation with regard to the Enquiry Officer's report and proposed penalty was called for. 2.5 The said second show cause notice was served to respondent herein on or around 28.7.1994. Subsequently, the order dated 7.9.1994 was passed and the respondent came to be dismissed from service. 3. It appears that at the relevant time, i.e. when the service of present respondent came to be terminated, dispute by way of Reference (IT) No. 433 of 1992 was pending before the learned Tribunal. 3.1 The respondent herein was one of the concerned reference in the said pending dispute/reference. 3.2 In that view of the matter and having regard to the provisions under Section 33 of the Industrial Disputes Act, 1947 ('the Act' for short), the petitioner AMTS filed an application seeking approval for its action (i.e. approval application). 3.3 The said approval application was registered as Approval Application No. 123 of 1994 in Reference (IT) No. 433 of 1992. 3.4 In the said application, the petitioner AMTS claimed that the approval application is filed simultaneously, i.e. on the same day when the order dismissing service of the respondent came to be passed and served and it has complied with the conditions prescribed under Section 33 are complied. 3.4 In the said application, the petitioner AMTS claimed that the approval application is filed simultaneously, i.e. on the same day when the order dismissing service of the respondent came to be passed and served and it has complied with the conditions prescribed under Section 33 are complied. 3.5 The petitioner AMTS also claimed before the learned Tribunal that the service of the opponent - respondent is terminated by way of dismissal pursuant to the domestic enquiry which was initiated on the allegation that the respondent did not deposit sum of Rs. 317.75 which was collected from the passengers and that sufficient opportunity of hearing and defence was granted to the claimant during domestic enquiry and after considering report of the Enquiry Officer who concluded and held that the charge and allegation against the delinquent employee, the order against the respondent is passed. On such premise, the petitioner AMTS prayed for approval of its action. 4. The opponent before the learned Tribunal, i.e. present respondent opposed the said approval application. He disputed and denied the claim of AMTS that the notice pay contemplated under Section 33 of the Act was paid at the time when the dismissal order came to be passed/served and the application came to be filed. He also claimed that the domestic enquiry was not conducted in his presence and he was not granted proper opportunity of hearing and defence. He also denied the allegation that he had not deposited Rs. 317.75, as alleged in the charge-sheet. He claimed that the dismissal order is unjust and deserves to be set aside and the approval may not be granted and the application may be rejected. The respondent herein even denied that the registered post acknowledgment slip acknowledged that the dismissal order was forwarded to him on 20.11.1992 was returned to the petitioner AMTS and/or that the said slip reflected his signature acknowledging the receipt. With such submission, the respondent herein urged that the approval application may be dismissed. 5. The learned Tribunal received evidence on record and after hearing rival contentions, the learned Tribunal passed the order dated 16.9.2002 and rejected the approval application. 6. This Court has considered the contention raised in the petition and the discussion and observation by the learned Tribunal in the impugned order as well as reply which was filed by present respondent before the learned Tribunal. 6. This Court has considered the contention raised in the petition and the discussion and observation by the learned Tribunal in the impugned order as well as reply which was filed by present respondent before the learned Tribunal. The respondent has not filed any affidavit in counter to the details mentioned in the petition. 7. Before proceeding further, it is relevant to mention that after the petitioner filed present petition against the order dated 16.9.2002 in Approval Application No. 123 of 1994, the widow of present respondent had filed a petition, i.e. Special Civil Application No. 6213 of 2007, wherein the widow of present respondent claimed that the respondent died on 12.2.2003. With the said statement in the application, the widow prayed that appropriate order directing the petitioner AMTS to pay compensate pension, gratuity etc. may be passed. In the said petition, the petitioner, i.e. widow of present respondent averred and stated that: "3.3 The petitioner submits that after the death of deceased husband of the petitioner on 13.2.2003, by letter dated 10.3.2003 addressed to the respondent, the petitioner sought for the amount of gratuity as well as pension and other benefits. As far as the request of the petitioner is concerned, the same has not been responded and therefore in the circumstances by a letter dated 6.2.2007 addressed to the respondent, the petitioner sought for the compassionate pension from the date of dismissal i.e. from 19.10.1994, the amount of gratuity as well as the benefits of family pension from the date of the death of the husband of the petitioner i.e. 13.2.2003. Though the copy of the letter dated 6.2.2007 is made available to the respondent on 8.2.2007 nothing has happened so far and therefore in the circumstances the petitioner who is widow of the late Becharbhai Rohit and hailing from poor strata of the society is constrained to approach this Hon'ble Court by way of the present writ petition." 8. In the said petition, this Court (Coram: Hon'ble Mr. Justice H.K. Rathod, as His Lordship then was) passed the order dated 8.3.2007, which reads thus: "1. Heard learned Advocate Mr. V.M. Dhotre for the petitioner. Husband of the petitioner namely Becharbhai Ramabhai Rohit was the conductor in the respondent Transport Service, badge No. 120 who was dismissed from service by order dated 19.10.1994 wherein it was clarified that the muni. Heard learned Advocate Mr. V.M. Dhotre for the petitioner. Husband of the petitioner namely Becharbhai Ramabhai Rohit was the conductor in the respondent Transport Service, badge No. 120 who was dismissed from service by order dated 19.10.1994 wherein it was clarified that the muni. Contribution towards provident fund of the conductor and the amount of gratuity payable to him has not been forfeited and if he is a member of the pension scheme, then, the intimation about reduction in the amount of compassionate pension available to him will be made subsequently and the benefit of family pension will be continued. 2. After the husband of the petitioner was dismissed, expired on 12.2.2003. Thereafter, request was made by the widow on 10.3.2003 and 6.2.2007 to pay the legally dues available amounts of PF Gratuity and the amount of compassionate pension as well as family pension. Learned Advocate Mr. VM Dhotre appearing for the petitioner, widow of the deceased conductor raised grievance before this court that till this date, no reply, response or payment has been received by the petitioner from the respondents as a consequence of her representations referred to above and, therefore, present petition has been filed. 3. In view of these facts, it is directed to the respondent Transport Service to consider representation of the petitioner dated 10.3.03 and 6.2.2007 and consider case of petitioner as per said two representations wherein petitioner has been claiming benefit of PF Contribution of employer, Gratuity, compassionate pension and family pension as mentioned in the dismissal order dated 19.10.1994 and also examine grievance of the petitioner and pass appropriate reasoned order in accordance with law within two months from the date of receipt of copy of this order and communicate decision to the petitioner immediately thereafter. 4. It is further directed to the respondent Transport Service to calculate whatever benefits legally due, undisputed and available to the petitioner as per service rules and to pay the same to the petitioner immediately within one month from the date of receipt of copy of this order and in respect of the claim of the petitioner which respondent Transport Service is disputing, for such claim respondent Transport Service shall have to pass appropriate reasoned order within the period stipulated hereinabove and same shall have to be communicated to the petitioner immediately thereafter. 5. 5. With these observations and directions, this petition is disposed of at this stage without expressing any opinion on merits of the matter and with a liberty in favour of the petitioner to challenge the orders that may be made by respondent Transport Service before the appropriate forum in accordance with law if the orders are adverse to the petitioner. Direct Service is Permitted." 9. It is also relevant to mention that before filing the said petition, i.e. Special Civil Application No. 6213 of 2007. Present petitioner had filed Civil Application No. 3678 of 2007 with a request that the petition may be permitted to be amended so as to implead/substitute original respondent by impleading widow/legal representative of the original respondent. It appears that the said application was allowed vide order dated 18.2.2008, pursuant to which the petition came to be amended and the widow of original respondent came to be impleaded. 10. Thus, present petition is required to be examined in light of the fact that the original opponent/workman died in February 2003 and the petition challenging the order passed in approval application remained pending for almost 13 years thereafter. 11. On reading impugned order, it comes out that the learned Tribunal rejected the approval application on limited but important ground. 12. After examining material available on record, the learned Tribunal found that despite the fact that the workman disputed and denied the fact that one month's notice pay was paid, the applicant, i.e. AMTS did not place any material/document on record to establish that in compliance with the condition under section 33 of the Act, one month's notice pay was simultaneously paid to the claimant, i.e. it was paid at the time when application was filed. 13. The learned Tribunal, after carefully examining entire material on record, reached to finding of fact that the AMTS failed to establish that the condition prescribed by section 33 of the Act, i.e. one month's salary should be paid to workman whose service is sought to be terminated and in respect of whom the approval/permission application is filed, was fulfilled in compliance with section 33 of the Act. 14. At this stage, it is relevant to take into account section 33 of the Act, which reads thus; "33. 14. At this stage, it is relevant to take into account section 33 of the Act, which 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 b [an arbitrator or] a conciliation officer or a Board or of any proceeding before 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 the standing orders applicable to a workman concerned in such dispute, b [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." 15. The condition prescribed by section 33, i.e. payment of one month's wage is mandatory and breach of said condition would vitiate the action of the employer, i.e. dismissal order. 16. The condition prescribed by section 33, i.e. payment of one month's wage is mandatory and breach of said condition would vitiate the action of the employer, i.e. dismissal order. 16. Having found that AMTS had not paid one month's wage at the time when the dismissal order came to be passed/served to the claimant and when approval application came to be filed and having found that AMTS did not place any material on record to establish that the said condition was complied, the learned Tribunal rejected the approval application on the ground that the vital and mandatory condition prescribed by section 33 is not complied and therefore, approval application cannot be granted. 17. When the learned Tribunal rejected the application on such ground (i.e. breach or non-compliance of the condition prescribed by section 33) then such order cannot be faulted. 18. At this stage, it is relevant to mention that the petitioner amended the petition somewhere in September 2006 (pursuant to the Court's order granting such permission) and the petitioner added paragraphs No. 7(A) and 7(AA), which read thus: "7(A) The petitioner says and submits that on passing of the order of termination, the petitioner organization paid a sum of Rs. 2,64,100/- being notice pay on Oct. 19, 1994 under bus bill 24277. It is submitted that this documentary evidence was produced before the learned Labour Court. A copy of the extracts of payment of notice pay from the original register is annexed hereto and marked as ANNEXURE 'B' to this petition. 7(AA) It is respectfully submitted that the said notice pay was paid under Voucher No. 3026 dated 10/19/1994. It is submitted that, as per the counting system of the petitioner organization, the said fact is recorded head-wise in the budget register maintained by the petitioner organization. The copies of the extracts from the said register are annexed hereto and marked as ANNEXURE 'C' collectively to this petition. The petitioner says and submits that the above important facts are necessary to be brought on record before this Hon'ble Court as the same goes to the root of the matter and therefore, this Hon'ble Court would be pleased to permit the petitioner to amend the petition, as prayed for hereinabove." 19. The petitioner says and submits that the above important facts are necessary to be brought on record before this Hon'ble Court as the same goes to the root of the matter and therefore, this Hon'ble Court would be pleased to permit the petitioner to amend the petition, as prayed for hereinabove." 19. From the said averment, it comes out that the material which was not placed on record before the learned Tribunal, is sought to be placed on record of this petition. 19.1 Actually, the said material cannot be taken into account in view of the fact that it was not placed on record before the learned Tribunal and the concerned workman never got opportunity to deal with the said material. 19.2 Besides this, the details which emerge from the said documents, even otherwise give rise to several queries and doubts which are not clarified by the petitioner AMTS. 19.3 In any case, in absence of any evidence and proof about payment of the claimant, the said document cannot be relied on or any advantage on strength of the said document cannot be extended to the petitioner AMTS. 19.4 In the first place, the document does not deserve to be considered because it was undisputedly not placed before the learned Tribunal. 19.5 Second reason which goes against the petitioner is that even if the said document is considered, it is pertinent that the said document is outward register of AMTS and it does not bear signature of the claimant and it does not give out proof or evidence of payment. 19.6 Under the circumstances, the said document which does not bear signature/thumb impression of the claimant, cannot rescue the petitioner from the consequences of the order passed by the learned Tribunal. 19.7 Besides this, the petitioner has not placed on record any order to establish compliance of the order dated 8.3.2007 passed by this Court in Special Civil Application No. 6213 of 2007. 19.8 Foregoing discussion has brought out that AMTS failed to prove that it complied mandatory condition under section 33 of the Act viz. payment of one month's wages. Thus, breach of section 33 of the Act was established. The learned Tribunal considered said fact i.e. breach of section 33 and on that ground rejected approval application on the ground that condition was not complied by AMTS. payment of one month's wages. Thus, breach of section 33 of the Act was established. The learned Tribunal considered said fact i.e. breach of section 33 and on that ground rejected approval application on the ground that condition was not complied by AMTS. Under the circumstance, the order does not suffer from any error and the order cannot be faulted. 20. For the reasons mentioned above and in light of the foregoing discussion, the petition should fail. Therefore, following order is passed: "The order passed by the learned Tribunal impugned in present petition does not warrant any interference. The petitioner has failed to make out any case against the findings of fact and conclusions recorded by the learned Tribunal and/or against the final decision by the learned Tribunal. Therefore, the petition fails and deserves to be rejected and is accordingly rejected. Rule is discharged."