JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Joshi, learned advocate for the petitioner. Though served, no one has entered appearance for the respondent. 2. The petitioner electricity board has challenged award dated 5.5.2006 passed by the learned Tribunal at Rajkot in Approval Application (IT) No. 10 of 2001 in Reference (IT) No. 222 of 1991 whereby the learned Tribunal rejected approval application filed by present petitioner. 3. So far as the factual background is concerned, it has emerged from the record and from the submissions by learned advocate for the petitioner that the respondent herein was working with the Board as Helper and that he did not report for duty on 10.3.1997 without prior permission and without any intimation and he, thereafter, continued his absence without any intimation about reason on account of which he was not reporting for duty or any intimation about the time when he would resume duty, such absence from duty without any intimation and despite notices and intimations by the electricity board, continued upto 15.9.2001 i.e. for almost 4 years. 3.1. Therefore, the board issued last warning/notice to present respondent on 15.9.2001 and asked him to report for duty and to explain his unauthorized absence. 3.2. According to the board, it had issued notices to the concerned workman on 10.3.1997, 19.3.1997, 17.6.1997, 28.8.1997, 12.3.2001 and 16.4.2001 and thereafter above mentioned last notice dated 15.9.2001 was issued. 3.3. According to the electricity board, the concerned workman did not accept the notice and therefore, the notices were served by affixing the notices at the residence of the concerned workman. 3.4. The workman also did not accept the notice dated 15.9.2001 and therefore, the said notice was served to the claimant by affixing the notice at his residence on 17.9.2001 and necessary Rojkam was drawn. 3.5. Even after the said notice, the respondent did not report for duty within 7 days from the date when the notice was served by affixing and that, therefore, the board published notice (in light of Rule 113 of the Service Regulations of the board) in local newspaper. 3.6. Even after publication of the notice, the respondent did not report for duty and that, therefore, the board terminated service of present respondent vide order dated 29.10.2001. 3.7. 3.6. Even after publication of the notice, the respondent did not report for duty and that, therefore, the board terminated service of present respondent vide order dated 29.10.2001. 3.7. It appears that at the relevant time, dispute, wherein present respondent was the concerned workman, was pending before the learned Tribunal by way of Reference No. 222 of 1991. 3.8. In view of the pendency of the said proceedings, the board filed application under Section 33(2)(b) of the Industrial Disputes Act, 1947 and prayed for approval of its order dated 29.10.2001 whereby the board terminated service of the opponent (present respondent). The said application was registered as Approval Application No. 10 of 2001 in Reference (IT) No. 222 of 1991. 3.9. From the award and more particularly in light of the observations made in paragraph No. 4 of the award, it appears that after the electricity board filed the said Approval Application No. 10 of 2001, despite the service of notices, the respondent did not appear before the learned Tribunal for almost 5 years, i.e. till January 2006. 3.10. Therefore, the electricity board submitted the approval application dated 23.1.2001 (Exh. 4) and prayed that since the application is not opposed by the concerned workman, the relief prayed for in the application may be granted, i.e. approval with reference to the termination order dated 29.10.2001 may be granted. 3.11. It appears that in view of the said application by present electricity board, the learned Tribunal considered it appropriate to issue another notice to the concerned workman with a view to granting further opportunity of hearing to the workman and therefore, the Court issued notice dated 27.1.2006 which was served to the concerned workman through bailiff. At the request of the concerned workman, the proceedings adjourned to February 2006 and thereafter in April 2006 the opponent, i.e. concerned workman filed his reply opposing the application. 3.12. At the request of the concerned workman, the proceedings adjourned to February 2006 and thereafter in April 2006 the opponent, i.e. concerned workman filed his reply opposing the application. 3.12. It appears that in his reply, which the concerned workman filed after almost 5 years, the concerned workman came out on the allegation that the board should have treated him Junior Assistant and instead, the board started treating him as Helper and instead of allotting the workman of clerical nature he was assigned duty of Helper (Electrical) which was illegal and that despite such position, he was reporting for duty, however, his presence was not marked and he was asked to perform duty as Helper at some village and that, therefore, the action of the board of terminating his service without conducting enquiry even after having served show cause notice/charge-sheet dated 17.6.1997 is bad in law and therefore, the application should not be granted. 3.13. After completion of pleadings and evidence, learned advocates for the contesting parties made their respective submissions and thereafter the learned Tribunal passed impugned award and rejected the application on the ground that since the board terminated service of the claimant without conducting enquiry, the order passed by the board cannot be approved. 4. In this background, learned advocate for the petitioner Board assailed the impugned order and submitted that the learned Tribunal failed to appreciate that the board had followed the procedure in accordance with the rules/standing orders and that ample opportunity was extended to the respondent before the board passed final order. He submitted that several notices were issued and even notice was published in newspaper, however, the respondent never submitted any response nor he resumed duties. He further submitted that the learned Tribunal also failed to appreciate that the jurisdiction of learned Tribunal while determining the approval application under Section 33 is limited and the merits of the case and/or adequacy of evidence and such other issues cannot be examined while deciding the approval application because the said issues would fall within purview of substantive proceeding under Section 10 of the Industrial Disputes Act. 5. I have considered the submissions as well as impugned award and material available on record. 6. 5. I have considered the submissions as well as impugned award and material available on record. 6. The situation, which has emerged from the above mentioned facts, is that- (a) the concerned workman stopped reporting for work from 10.3.1997 and unauthorizedly remained absent from duty; (b) despite several notices and intimations to the claimant asking him to report for duty and to explain his conduct of unauthorized absence, his unauthorized absence continued for almost 4 years; (c) despite the said notices, the concerned workman continued his unauthorized absence and did not report for duty till 15.9.2001 and that, therefore, the electricity board forwarded last intimation/notice to the workman asking him to report for duty and explain his conduct of unauthorized absence for more than 4 years; (d) even that notice was not responded, by the claimant and he did not resume his duty despite earlier notices as well as the said last intimation/notice dated 15.9.2001; (e) thereafter the board published notice in local newspaper i.e. notice was served by publication in newspaper whereby the claimant was asked to resume his duty and explain his conduct of unauthorized absence for more than 4 years; (f) since the workman did not respond to the said notices either by his reply or by offering any explanation about his unauthorized absence or by reporting for duty, the board ultimately passed order dated 29.9.2001 and terminated service of the claimant; (g) in view of the pendency of the proceedings of Reference No. 222 of 1991, the electricity board so as to comply the conditions prescribed by Section 33 of the Act, filed approval application before the learned Tribunal and prayed for approval in respect of its order dated 29.10.2001; (h) the concerned workman did not respond to even Tribunal's notice issued in respect of Approval Application No. 10 of 2001; (i) the concerned workman did not appear before the learned Tribunal for almost 5 years i.e. from 2001 to 2006; (j) therefore, the board submitted application dated 23.1.2006 and requested the learned Tribunal to grant application since the workman had not opposed the application for almost 5 years; (k) The learned Tribunal, however, considered it appropriate to give one more chance and opportunity to the workman and therefore issued another notice dated 27.1.2006; (l) It was in response to the said notice that the claimant appeared before the learned Tribunal after 5 years and sought adjournment and thereafter he filed his objection in April 2006. 7. In present case what is the important is the observation and findings by the learned Tribunal in paragraph No. 17 of the award. From the observations in paragraph No. 17 of the award, it comes out clear that the learned Tribunal examined the merits of the explanation and reply of the workman, which he had never offered before the board. 7.1. From the observations in paragraph No. 17 of the award, it comes out clearly that the learned Tribunal examined the defence and explanation of the concerned workman with regard to his unauthorized absence on merits and the learned Tribunal considered the concerned workman's allegation that though during the period from 1982 to 1997 he had performed duties of clerical nature, he was not granted status of permanent workman and certain other persons junior to him were granted status of permanent and he was directed to perform duties as Helper in a village near Lodhika. 7.2. The learned Tribunal, however, failed to take into account the fact that the said allegation by the concerned workman did not offer any explanation with regard to the concerned workman's absence from duty from 1997 to 2001 and his absence before the learned Tribunal from 2001 to 2006. 7.3. Besides this, even otherwise, such allegation or explanation by the concerned workman would form part of the merits of the case against the order of termination and would not be relevant consideration for deciding the approval application. 8. The jurisdiction of the learned Tribunal for deciding approval application is limited. The adequacy of proof in respect of the misconduct cannot be examined by the learned Tribunal while deciding the approval application inasmuch as such issues can be adjudicated and decided in substantive reference proceedings. The jurisdiction of the learned Tribunal for deciding the approval application is confined to examining as to whether the conditions prescribed by Section 33 are complied or not and whether the employer passed order in legal and fair manner or not. 8.1. In this context, it would be appropriate to take into account following observations by Hon'ble Apex Court: "It is neither in doubt nor in dispute that the jurisdiction of the Industrial Tribunal under Section 33(2)(b) of the Industrial Disputes Act is a limited one. 8.1. In this context, it would be appropriate to take into account following observations by Hon'ble Apex Court: "It is neither in doubt nor in dispute that the jurisdiction of the Industrial Tribunal under Section 33(2)(b) of the Industrial Disputes Act is a limited one. The jurisdiction of the Industrial Tribunal under Section 33(2)(b) cannot be equated with that of Section 10 of the Industrial Disputes Act." [see: (2005) 3 SCC 241 ] In earlier decision Hon'ble Apex Court observed, inter alia, that: "The Tribunal before whom an application is made under that section has not to adjudicate upon any industrial dispute arising between the employer and the workman but has only got to consider whether the ban which is imposed on the employer in the matter of altering the condition of employment to the prejudice of the workman or his discharge or punishment whether by dismissal or otherwise during the pendency of the proceedings therein referred to should be lifted. A prima facie case has to be made out by the employer for the lifting of such ban and the only jurisdiction which the Tribunal has is either to give such permission or to refuse it provided the employer is not acting mala fide or is not resorting to any unfair practice or victimization." 9. True it is that when the employer takes action against an employee on ground of misconduct, then, while examining the approval application, the learned Tribunal would certainly examine the issue as to whether the employer complied principles of natural justice or not and whether opportunity of hearing and defence was granted to the workman or not. 9.1. While addressing the said issue, the learned Tribunal would examine prima facie material and the learned Tribunal would not enter into issue about adequacy or absence of evidence or merits of workman's explanation/defence with regard to the misconduct or the correctness of the findings of the Enquiry Officer because said aspects would be examined by the learned Tribunal or the learned Labour Court in substantive reference proceedings under Section 10 of the Industrial Disputes Act. 10. 10. However, in present case, the learned Tribunal failed to keep in focus the said distinction and the learned Tribunal seems to have entered into the merits of the case inasmuch as the learned Tribunal considered the concerned workman's allegation against the electricity board and the learned Tribunal appears to have been influenced by the allegation by the concerned workman that he was assigned different duty, i.e. duty other than the duty which he performed before January/February 1997. 11. Besides this, there is another relevant aspect in this petition. 12. It has emerged from the record that the electricity board had not conducted formal domestic enquiry before it passed the order dated 29.10.1991 and terminated the service of the concerned workman. 12.1. However, in this context, the learned Tribunal ought to have considered certain hard realities and relevant facts viz. that the claimant was not reporting for duty since last about 4 years i.e. from 1987 to 1991, that too despite several intimations by the board and without any intimation or without any explanation about his conduct of unauthorized absence. 13. Moreover, despite several notices and show cause notice/charge-sheet, i.e. despite notices dated 10.3.1997, 19.3.1997, 17.6.1997, 28.8.1997, 12.3.2001 and 16.4.2001, the claimant had not bothered to report for duty and/or to offer explanation about his unauthorized absence. 14. The learned Tribunal ought to have examined the requirement of conducting domestic enquiry in backdrop of above mentioned relevant facts and the learned Tribunal ought to have addressed the issue as to whether enquiry could have been conducted when the claimant was not reporting for duty for 4 years and was not given any reply in response to the notices and intimations by the electricity board. 15. The learned Tribunal also ought to have considered the case in light of the fact that the electricity board had even published notice in newspaper with intimation to the concerned workman to report for duty and offer explanation about his unauthorized absence and despite such public notice which was published in newspaper, the claimant did not report for duty. 16. The learned Tribunal also ought to have addressed the issue as to whether it would be reasonable to examine such peculiar facts on the basis of normal rule i.e. conducting domestic enquiry in legal and fair manner. 17. 16. The learned Tribunal also ought to have addressed the issue as to whether it would be reasonable to examine such peculiar facts on the basis of normal rule i.e. conducting domestic enquiry in legal and fair manner. 17. Ultimately, the purpose and object of domestic enquiry is to grant reasonable and sufficient opportunity of hearing and defence to the concerned workman and the purpose of the ban imposed by virtue of Section 33(2)(b) of the Industrial Disputes Act is to protect the workman against victimization and to ensure fair opportunity before any change in service condition is made or before his service is discontinued. Therefore, at the stage when the learned Tribunal is requested to lift the ban, the learned Tribunal would restrict its quest to ascertaining whether fair opportunity was granted to the workman and whether the action is mala fide or tainted by victimization and the procedure/conditions prescribed under this section are followed and fulfilled. Fair opportunity of hearing is matter of substance and not form. The learned Tribunal, therefore, will not allow breach of principles of natural justice and/or denial of opportunity of hearing but at the same time the learned Tribunal will not be swayed or influenced by facade of so called domestic enquiry. Except in cases where applicable Standing Orders or Service Regulations specifically prescribe requirement of domestic enquiry in accordance with the provisions, the learned Tribunal will prefer real and effective opportunity in preference over form - rather than substance - and the learned Tribunal will find out whether the workman was granted real and effective opportunity or not. The learned Tribunal also ought to have considered that if written intimations/notices are issued and served to the concerned workman who has been abstaining from work for long time and thereby such workman is not only instructed to resume duty but his explanation (for continuously remaining absent for long time) is called for and opportunity to explain and defend his conduct is also granted but he does not avail such opportunity and on one hand he continues to abstain from work and on the other hand he does not submit explanation as called for, then in such circumstances what would matter and what would be relevant actual opportunity and not the form or mode of the opportunity. Differently put, the learned Tribunal ought to have considered that the end result (viz. Differently put, the learned Tribunal ought to have considered that the end result (viz. the fact that the opportunity to offer explanation was granted) is relevant and not mere form or manner in which the opportunity was granted. It is pertinent that in some cases, due to circumstances beyond the control of the management, process of conducting domestic enquiry may not be practicable or feasible, e.g. when the workers are on strike and are indulging in demonstrations which lead to assault or violence, etc. or where the employee, as in present case, is continuously not reporting for duty without any intimation about the reason for absence or even his whereabouts. For myriad reasons it may not be possible or practicable to conduct domestic enquiry. In such circumstances and cases question would arise as to whether approval should be mechanically denied by ignoring the fact that though not in particular form or manner but in effect repeated opportunities were granted to the workman but formal enquiry could not be conducted for reasons beyond control of the management/employer. In this context, it is pertinent to note that in the decision in case of Shankar Chakravarti v. Britannia Biscuit Co. Ltd. and Another AIR 1979 SC 1652 : (1979) 3 SCC 371 : LNIND 1979 SC 276 : 1979-II-LLJ-194 and in the decision in case Shambhu Nath Goyal v. Bank of Baroda and Others AIR 1984 SC 280 : (1983) 4 SCC 491 : LNIND 1983 SC 267 : 1983-II-LLJ-415, Hon'ble Apex Court observed that in case inquiry is found defective, Tribunal would permit the employer, if such permission is requested for, to prove allegations by leading evidence before the Court. Hon'ble Apex Court has also held that 'No inquiry' and 'defective inquiry' stand on same footing. The decision by the learned Tribunal in present case is contrary to send observations by Hon'ble Apex Court. Hon'ble Apex Court has also held that 'No inquiry' and 'defective inquiry' stand on same footing. The decision by the learned Tribunal in present case is contrary to send observations by Hon'ble Apex Court. If the learned tribunal refuses approval and rejects the application that too in absence of any conclusion about victimization - by minutely examining proceedings of domestic inquiry and holding that inquiry is defective or the findings by inquiry officer are incorrect, then it would take away the employer's opportunity to lead evidence and to prove allegations/charge in the Court, and would deprive the employer of such opportunity since on rejection of approval application then there would be no need to raise dispute and prosecute reference under Section 10 of the Industrial Disputes Act. 17.1. The learned Tribunal also ought to have considered that the principles of natural justice, as observed by Hon'ble Apex Court, not unruly horse and cannot be bound in straightjacket formula. 17.2. True it is that a punitive action should not and cannot be taken without opportunity of hearing and defence and in breach of principles of natural justice. However, it is equally true that the principles of natural justice are not in inflexible formula. The principles of natural justice is a concept which is elastic which should be and deserve to be applied and enforced and its compliance should be examined in light of the facts of the case and not by disregarding peculiar the circumstances of the case. In present case the learned Tribunal failed to and did not consider above discussed aspects. 17.3. In this context, profitable reference can be had to the observations by Hon'ble Apex Court in case of Chairman, Board of Mining Examination and Chief Inspector of Mines, and Another v. Ramjee AIR 1977 SC 985 : (1977) 2 SCC 256 : LNIND 1977 SC 67, wherein Hon'ble Apex Court observed, inter alia, that: "Natural justice is no unruly horse, no lurking land mine, nor a judicial cure all. If fairness is shown by the decision maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt - that is the conscience of the matter." 18. Therefore, in present case, the learned Tribunal ought to have taken into account the fact that before terminating service of the claimant the electricity board had issued several notices and that the notices which were refused by the claimant, were served to the concerned workman by affixing the notices at his residence and despite such notices, the claimant had never given any response. 18.1. The learned Tribunal also ought to have considered that the board had published public notice in newspaper and had asked the workman to report for duty and offer his explanation; 18.2. The learned Tribunal ought to have addressed the issue whether the said procedure followed by the board and the steps taken by the board would suffice the requirement or not and whether it would amount to granting reasonable and sufficient opportunity of hearing and defence to the claimant or not and whether that such steps and actions should be considered sufficient in lieu of requirement of conducting domestic enquiry or not. 18.3. The learned Tribunal, instead, proceeded on the technical path and considered the case in traditional and technical manner by posing question as to whether formal domestic enquiry was conducted or not and since the learned Tribunal found that such formal enquiry was not conducted, the learned Tribunal rejected the approval application. 19. In the process the learned Tribunal got influenced by the allegation by the workman and the learned Tribunal entered into the merits of the allegation by the claimant and observed that the electricity board had committed illegality in awarding different work to the claimant which action/procedure was beyond Tribunal's jurisdiction. 20. Though the said aspects were not subject matter of the case before the learned Tribunal and were neither germane nor relevant so far as the approval application is concerned, the learned Tribunal examined the said aspects and thereby the learned Tribunal transgressed the jurisdiction conferred for the purpose of deciding approval application under Section 33 of the Act. 20.1. 20. Though the said aspects were not subject matter of the case before the learned Tribunal and were neither germane nor relevant so far as the approval application is concerned, the learned Tribunal examined the said aspects and thereby the learned Tribunal transgressed the jurisdiction conferred for the purpose of deciding approval application under Section 33 of the Act. 20.1. In this context, it is appropriate to take into account observations by Hon'ble Apex Court with regard to the extent of learned Tribunal's jurisdiction for examining approval application under Section 33(2)(B) of the Industrial Disputes Act. 20.2. In the decision in case of Martin Burn Ltd. v. R.N. Banerjee AIR 1958 SC 79 : LNIND 1957 SC 161 : (1958) 1 MLJ (Crl) 208, Hon'ble Apex Court observed, inter alia, that: "22. The nature and scope of the enquiry before the Labour Appellate Tribunal under s. 22 of the Act has been the subject matter of decisions of this Court in Atherton West and Co. Ltd. v. Suti Mill Mazdoor Union and Others (1), Automobile Products of India Ltd. v. Rukmaji Bala and Others 2 and Lakshmi Devi Sugar Mills Limited v. Pt. Ram Sarup (3). In the last mentioned case this Court succinctly laid down the principles governing such enquiry and observed at p. 935: "The Tribunal before whom an application is made under that section has not to adjudicate upon any industrial dispute arising between the employer and the workman but has only got to consider whether the ban which is imposed on the employer in the matter of altering the condition of employment to the prejudice of the workman or his discharge or punishment whether by dismissal or otherwise during the pendency of the proceedings therein referred to should be lifted. A prima facie case has to be made out by the employer for the lifting of such ban and the only jurisdiction which the Tribunal has is either to give such permission or to refuse it provided the employer is not acting mala fide or is not resorting to any unfair practice or victimization." 23. A prima facie case has to be made out by the employer for the lifting of such ban and the only jurisdiction which the Tribunal has is either to give such permission or to refuse it provided the employer is not acting mala fide or is not resorting to any unfair practice or victimization." 23. We have, therefore, got to consider whether in the instant case a prima facie case was made out by the appellant for terminating the service of the respondent and whether in giving the notice dated November 11, 1955, terminating the respondent's service the appellant was motivated by any unfair labour practice or victimisation. 24. The facts as they appear from the narration of events in the earlier part of this judgment go to establish that the respondent was grossly negligent in the performance of his duties, was in the habit of absenting himself on flimsy grounds, was also insolent in his behaviour and conduct and in spite of repeated warnings, oral as well as written, addressed to him by the Management of the appellant did not show any signs of improvement. The incidents of 1949, 1951, and 1952 culminating in the stoppage of his annual increment in February, 1953, were sufficient to demonstrate that the Management of the appellant dealt with the respondent very leniently in spite of his work and conduct not being at all satisfactory. The appellant would have been well within its rights if it had taken action against the respondent on each of the several occasions above referred to, but out of sheer compassion went on giving him one opportunity after the other so that he would register an improvement in his work and conduct. The respondent however, persisted in his behaviour and the two reports made by Mr. Hooper One on August 19, 1953, and the other on May 4, 1954, were considered by the Management and it came to the conclusion that the respondent was unsuitable to be retained in the appellant's service and even then instead of deciding to dismiss him without anything more, it offered him the choice of one of the two alternatives, viz., that it may forthwith terminate his service if he was agreeable to accept the term of full retrenchment compensation or if he refused to accept the same to make an application before the Fifth Industrial Tribunal for permission to terminate his service. The whole of the correspondence ending with the respondent's letter dated February 17, 1953, was sufficient to prove with, out anything more the unsatisfactory nature of his work and conduct and the, appellant was evidently of the opinion that the records of the respondent taken along with the reports made by Mr. Hooper afforded sufficient material to justify it in taking the step which it ultimately decided to do. It was under these circumstances that the appellant did not consider it necessary to furnish to the respondent a charge-sheet and to hold a formal enquiry into the work and conduct of the respondent. 25. This circumstance was considered by the Labour Appellate Tribunal as sufficient to entitle it to determine for itself whether a prima facie case for the termination of the respondent's service was made out by the appellant. It was open to the appellant to submit a charge-sheet to the respondent and institute a formal inquiry into his work and conduct. If that had been done and the appellant had, after holding such formal enquiry, come to the conclusion that the respondent was guilty of the charges which were leveled against him and had then decided to terminate his service, the Tribunal could not have intervened and on its coming to the conclusion that a prima facie case for the termination of the service of the respondent was thus made out, it would have granted the appellant the permission asked for. Unfortunately for the appellant, in spite of the work and conduct of the respondent being demonstrably unsatisfactory and, therefore, justifying the conclusion that he was unsuitable to be retained in its service, the appellant did not hold any formal enquiry of the nature indicated above and did not afford to the respondent an opportunity to have his say in the matter of the charges levelled against him. The Labour Appellate Tribunal therefore rightly took upon itself the burden of determining whether on the material submitted before it by the appellant a prima facie case for the termination of the respondent's service was made out by the appellant." 20.3. In the decision in case of Lallu Ram v. Management of D.C.M. Chemical Works Ltd. and Another AIR 1978 SC 1004 : (1978) 3 SCC 1 : LNIND 1978 SC 56 : 1978-I-LLJ-507, Hon'ble Apex Court observed, inter alia, that: "12. In the decision in case of Lallu Ram v. Management of D.C.M. Chemical Works Ltd. and Another AIR 1978 SC 1004 : (1978) 3 SCC 1 : LNIND 1978 SC 56 : 1978-I-LLJ-507, Hon'ble Apex Court observed, inter alia, that: "12. The position that emerges from the above quoted decisions of this Court may be stated thus: In proceedings under S. 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 come 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 victimise the employee regard being had to the position settled by the decisions of this Court in Bengal Bhatdee Coal Co. v. Ram Prabesh Singh, (1964) 1 SCR 709 : ( AIR 1964 SC 486 ) : Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar 1961-I-LLJ-511) (SC); Hind Construction and Engineering Co. Ltd. v. Their Workmen, (1965) 2 SCR 83 : AIR 1965 SC 917 ; Workmen of Messrs Firestone Tyre and Rubber Company of India (P.) Ltd. v. Management, (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 of 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 and (v) whether the employer has simultaneously or within such reasonably short time as to form part of the same 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." 20.4. In the decision in case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Shri Ram Gopal Sharma and Others AIR 2002 SC 643 : 2002 AIR SCW 249 : (2002) 2 SCC 244 : LNIND 2002 SC 44 : 2002-I-LLJ-834, Hon'ble Apex Court observed, inter alia, that: "14. Where an application is made under Section 33(2)(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....." 20.5. Thereafter, the issue was again considered by Hon'ble Apex Court in case of Cholan Roadways Ltd. v. G. Thirugnanasambandam AIR 2005 SC 570 : (2005) 3 SCC 241 : LNIND 2004 SC 1269 : 2005-I-LLJ-569 wherein Hon'ble Apex Court, after considering previous decisions, observed and held, inter alia, that: "13. It is neither in doubt nor in dispute that the jurisdiction of the Industrial Tribunal under Section 33(2)(b) of the Industrial Disputes Act is a limited one. The jurisdiction of the Industrial Tribunal under Section 33(2)(b) cannot be equated with that of Section 10 of the Industrial Disputes Act. In this case admittedly an enquiry has been held wherein the parties examined their witnesses. The Respondent was represented and assisted by three observers. Shri M. Venkatatesan was the Branch Manager, CRC Tanjore Town Branch, who had submitted his report and proved the same before the Inquiry Officer. In this case admittedly an enquiry has been held wherein the parties examined their witnesses. The Respondent was represented and assisted by three observers. Shri M. Venkatatesan was the Branch Manager, CRC Tanjore Town Branch, who had submitted his report and proved the same before the Inquiry Officer. He furnished a detailed account of the position of the bus vis' vis the other bus after the collision took place. He found that there was no brake tyre mark of the bus on the road. All the two seaters seats on the entire left side of the bus were found totally damaged. The left side roof arch angle of the bus was found totally out. Not only 4 persons were found to be dead at the spot, the driver and conductor of the bus and 10 other passengers were also sustained injuries in this accident. Out of the said 10 passengers, 3 subsequently died in the hospital owing to the injuries sustained by them. He further found that on the left side of the road in the earthen margin, there was a tamarind tree's protruding branch and which was found to have been already cut and the bottom stump of the branch was found protruding to a length of 3 inches. The bus was found to have been brought to a halt only at a distance of 81 ft. from the place of impact against the tree. He further noticed that even after the impact of the bus against the tree, the delinquent is said to have swerved the bus further to the right side from left side without applying brake and reducing speed and later only be brought the bus to a halt at some distance as a result of which the entire side roof angle of the bus got cut." 21. Unfortunately, the learned Tribunal failed to consider these aspects. Unfortunately, the learned Tribunal failed to consider these aspects. For these reason and in view of such defects, the award cannot be sustained and the matter deserves fresh consideration by the learned Tribunal in light of the settled legal principles which emerge from above quoted observations by Hon'ble Apex Court and in light of the relevant facts and circumstances of present case including the issue as to whether the steps and actions taken by the board before terminating the service of the claimant would amount to sufficient compliance of the principles of natural justice or not and whether the said steps would suffice the requirement of domestic enquiry or not. The learned Tribunal should address and answer the said issues. The said aspects can be examined in light of the evidence and material available on record of the learned Tribunal. 22. Since the relevant and sufficient material is not available before this Court, it would not be possible or practical or even permissible for this Court to examine the said factual aspects in this writ proceeding. For all these reasons, the matter deserves to be remanded to the learned Tribunal. 23. Before concluding and before passing final order, it is necessary to deal with one contention raised by learned advocate for the petitioner. 24. Learned advocate for the petitioner contended that the board had filed approval application because at the relevant time Reference No. 222 of 1991 was pending. He further submitted that however before the approval application came to be heard and adjudicated and before the learned Tribunal passed the award on 5.5.2006, the learned Tribunal had already passed final award in the said reference case and that, therefore, the learned Tribunal should have disposed of the approval application instead of deciding the approval application on merits. 25. Differently put, learned advocate for the petitioner contended that when the parent reference case, on account of which the approval application is filed, was already decided and disposed of by final award of learned Tribunal, the approval application was rendered infructuous and therefore, the impugned award in approval application is unjustified and unsustainable. 26. The said contention is misconceived inasmuch as even if the parent proceeding i.e. the reference gets terminated, the approval application would not be rendered infructuous and the learned Tribunal would be obliged to decide approval application in accordance with law and settled legal principles. 26. The said contention is misconceived inasmuch as even if the parent proceeding i.e. the reference gets terminated, the approval application would not be rendered infructuous and the learned Tribunal would be obliged to decide approval application in accordance with law and settled legal principles. In this context, reference may be had to the observations by the Apex Court in case of Tata Iron and Steel Company Limited v. S.N. Modak AIR 1966 SC 380 , wherein Hon'ble Apex Court observed, inter alia, that: "10. In this connection it is significant that though the Legislature has specifically issued by S. 33(5) a directive to the specified authorities to dispose of the applications without delay and act as expeditiously as possible, it has not made any provision indicating that if the decision on the applications made under S. 33(2) is not reached before the main dispute is decided no order should be passed on such applications. There is little doubt that the Legislature intends that applications made under S. 33(2) should be disposed of well before the main dispute is determined; but failure to provide for the automatic termination of such applications in case the main dispute is decided before such applications are disposed of, indicates that the Legislature intends that the proceedings which begin with an application properly made under S. 33(2) must run their own course and must be dealt with in accordance with law. The direction that the said proceeding should be disposed of as expeditiously as possible emphasises the fact that the Legislature intended that proper orders should be passed on such applications without delay, but according to law and on the merits of the applications themselves. 11. It is, however, urged by the learned Solicitor General that it would be futile to allow the present application to proceed any further, because the appellant can proceed to dismiss the respondent notwithstanding the fact that the Tribunal does not accord its approval to its order in question. This argument in our opinion, is misconceived. It cannot be denied that with the final determination of the main dispute between the parties, the employer's right to terminate the services of the respondent according to the terms of services revives and the ban imposed on the exercise of the said power is lifted. This argument in our opinion, is misconceived. It cannot be denied that with the final determination of the main dispute between the parties, the employer's right to terminate the services of the respondent according to the terms of services revives and the ban imposed on the exercise of the said power is lifted. But it cannot be overlooked that for the period between the date on which the appellant passed its order in question against the respondent, and the date when the ban was lifted by the final determination of the main dispute, the order cannot be said to be valid unless it receives the approval of the Tribunal. In other words, the order being incomplete and inchoate until the approval is obtained, cannot effectively terminate the relationship of the employer and the employee between the appellant and the respondent; and so, even if the main industrial dispute is finally decided, the question about the validity of the order would still have to be tried and if the approval is not accorded by the Tribunal, the employer would be bound to treat the respondent as its employee and pay his full wages for the period even though the appellant may subsequently proceed to terminate the respondent's services. Therefore, the argument that the proceedings if continued beyond the date of the final decision of the main industrial dispute would become futile and meaningless, cannot be accepted." 27. Therefore, the said contention deserves to be rejected and is hereby rejected. In light of the foregoing discussion and for above mentioned reasons, following order is passed: The award which is impugned in present petition which is passed in respect of Approval Application (IT) No. 10 of 2001 in Reference (IT) No. 222 of 1991 is set aside and the case is remanded to the learned Tribunal for fresh decision after considering the aspects discussed above. It is clarified that the observations in present judgment are only for the purpose of examining the impugned award and deciding present petition, however, the said observations shall not be construed as opinion/views of this Court or final conclusion by this Court with regard to the merits of the approval application and/or in respect of conduct of the concerned workman and that, therefore, the learned Tribunal shall decide the approval application afresh on its own merits and on the basis of the material available on record of the application and without being influenced by the impugned award dated 5.5.2006 and/or this judgment. However, the learned Tribunal would consider and address the aspects mentioned in present judgment and pass reasoned and speaking order with regard to the said aspects. With the aforesaid clarifications, observations and directions, the petition is disposed of. The impugned award is set aside and the proceedings are remitted to the learned Tribunal. Accordingly, the petition is partly allowed. Rule is made absolute to the aforesaid extent.