JUDGMENT Ashok Kumar Gaur, J. - The instant petition has been filed by the petitioner challenging order dated 05.10.2004 (Annex.-10) whereby Industrial Tribunal, Jaipur has accepted the application of the employer filed under Section 33(2)(b) of the Industrial Disputes Act, 1947 and has approved the termination of service of the petitioner vide order dated 23.02.1993. 2. The brief facts of the case are that the petitioner was in receipt of charge-sheet dated 16.03.1992 wherein the employer has alleged that the petitioner while working as Conductor in Jhalawar Depot was absent from duty since 17.11.1991 and the petitioner without having any sanction of leave, continuously remained absent and as such the enquiry was initiated against the petitioner. 3. The petitioner after receipt of charge-sheet, was allowed to participate in the enquiry which was conducted by the employer. The employer finally passed order dated 23.02.1993 whereby they decided to terminate services of the petitioner w.e.f.23.02.1993. The employer on the same day also decided to send money order to the petitioner of a sum of Rs. 2040/- i.e. one month salary as per requirement of Section 33(2)(b) of the Industrial Disputes Act, 1947. The application filed by the employer under Section 33(2) (b) of the Act, 1947 was taken up by the Industrial Tribunal, Jaipur and vide order dated 17.04.2003 the order of termination of service was not approved. The operative portion of the order dated 17.04.2003 is reproduced hereunder:- 4. The said order dated 17.04.2003 was challenged before this Court by the employer by filing SBCWP No.478/2003. This Court vide order dated 21.01.2004 allowed the writ petition and the matter was remanded back to the Industrial Tribunal, Jaipur to decide afresh. 5. The petitioner felt aggrieved against the decision of the Single Bench passed on 21.01.2004, filed DBSAW No.58/2005. Learned counsel for the petitioner has submitted that the Division Bench vide order dated 18.09.2006 dismissed the appeal of the petitioner. Learned counsel has submitted that it was informed to the Division Bench that after remand of the case to the Industrial Tribunal, Jaipur, the order was again passed on 05.10.2004, which is the subject matter of challenge before the Court in the instant petition. 6. The Division Bench observed that in case the ld. Learned counsel has submitted that it was informed to the Division Bench that after remand of the case to the Industrial Tribunal, Jaipur, the order was again passed on 05.10.2004, which is the subject matter of challenge before the Court in the instant petition. 6. The Division Bench observed that in case the ld. Single Judge has remanded back the matter for fresh decision to consider the question of law as to whether the Industrial Tribunal, Jaipur has jurisdiction to grant interim relief in a proceeding under Section 33 (2)(b) of the Act and if so, manner of execution thereof, the request was made to the Division Bench to decide the case. The Division Bench has observed that only on which ground the Single Bench interfered with the order of the Tribunal was that the Tribunal was not competent authority to reject the application of the management under Section 33(2)(b) on the ground of noncompliance of the interim order and the question arose for consideration was whether on account of non-compliance of interim order, granting interim relief to the workman, the plea/defence of the management can be struck out and as such the Division Bench simply observed that in case, the plea of the workman is not considered by the Single Judge or is decided against him, it was open to the petitioner/appellant to challenge the order of the ld. Single Judge before the Division Bench in accordance with law. The operative portion of the order of the Division Bench is reproduced hereunder:- "When this appeal came up for consideration on 01.09.2006, it was submitted on behalf of the appellant that notwithstanding the fact that the Tribunal has decided the application under Section 33(2)(b) of the Act on merit, after remand, the question of law as to whether the Industrial Tribunal has jurisdiction to grant interim relief in a proceeding under Section 33(2)(b) of the Act and if so, manner of execution thereof, may be decided by this Court. In course of hearing today, however, it became clear that the only ground on which the learned Single Judge interfered with the order of the Tribunal being that the Tribunal was not competent to reject the application of the management under Section 33(2)(b) on the ground of noncompliance of an interim order, the question as to whether the Tribunal has jurisdiction to grant interim relief does not arise from the order of the learned Single Judge. The only question which arises for consideration is whether on account of non-compliance of the interim order granting interim relief to the workman, the plea/defence of the management can be struck out. We are given to understand that against the order of the Tribunal, passed after remand, the workman has preferred writ petition which is pending before the learned Single Judge. In this view of the matter, we refrain from going into the question. Counsel submitted that having regard to the order of the learned Single Judge impugned in this appeal, the question as to whether the Tribunal can strike out the plea/defence of the management for noncompliance of interim order may not be entertained by the learned Single. We make no comment on the submission. We would simply observe that in case the plea of the appellant/workman is not considered by the learned Single Judge or is decided against him, it will be open to the appellant to challenge the order of the learned Single Judge before the Division Bench in accordance with law. With these observations, the appeal is dismissed." 7. Mr. Ankul Gupta, counsel for the petitioner has submitted that the Industrial Tribunal, Jaipur while passing the order dated 05.10.2004 has committed a serious illegality and it has failed to give any finding in respect of violation of Section 33(2)(b) of the Industrial Disputes Act, 1947. Learned counsel has submitted that as per the requirement of provision to Section 33(2)(b), the petitioner could not be removed from service as he was not paid wages for one month along with termination order and further the application was not made simultaneously by the employer to the authority before which the proceedings were pending. Learned counsel has submitted that as per the requirement of provision to Section 33(2)(b), the petitioner could not be removed from service as he was not paid wages for one month along with termination order and further the application was not made simultaneously by the employer to the authority before which the proceedings were pending. Learned counsel has submitted that all the three acts of removing the person from service by passing the order and making payment of wages for one month and the application is to be filed on the same day and all the three acts should form part of the same transaction. 8. Learned counsel has submitted that specific objection was raised by the petitioner before the Industrial Tribunal, Jaipur by filing reply to the application and further during the course of arguments it was also pleaded on his behalf that the respondents did not follow mandatory requirement of Section 33(2)(b) of the Act and as such entire exercise was bad in law. 9. Learned counsel has further submitted that the employer was not able to prove the charge against the petitioner of remaining absent and from none of the evidence, which was examined during the course of enquiry, conducted against the employee, the employer was not able to prove the charge of remaining absent against the petitioner. 10. Learned counsel has submitted that none of the witnesses proved that the notices which were sent to the petitioner were received by him and in absence of proof of services of notices of remaining absent, the charge of absence was not proved and still the Industrial Tribunal has allowed the application filed under Section 33(2)(b) of the Industrial Disputes Act. 11. Learned counsel has further submitted that the Corporation failed to adduce any legal evidence before enquiry authority to prove that the petitioner was guilty of remaining absent. Learned counsel has submitted that the petitioner was not initially avoiding any notice which was said to be sent by the employer and further the petitioner was not well and he had sent an intimation of his illness by UPC, but the Corporation failed to take into account all these facts and still the petitioner came to be dismissed from service. 12. 12. Learned counsel has submitted that due to non payment of subsistence allowance, which was ordered by the Tribunal, initially great prejudice was been caused to the petitioner and as such all exercises taken by the employer to terminate the services of the petitioner cannot be sustainable in the eye of law. 13. Learned counsel has further submitted that the petitioner has every justification for not attending his job due to illness and the charge of remaining willfully absent cannot be said to be proved against the petitioner and however on quantum of punishment, the respondents have imposed harsh punishment of termination of service as the petitioner was absent from his job only w.e.f.17.11.1991 and charge-sheet was given on 16.03.1992. Learned counsel has submitted that the absence of about four months should not result into loss of job, as the petitioner could not work anywhere else with the stigma casted on him. 14. Mr. Vinayak Joshi, counsel for the respondents has submitted that due compliance of Section 33(2)(b) of the Industrial Disputes Act, was made by the employer. Learned counsel has submitted that the order dated 23.02.1993, dismissing the petitioner from service and notices were sent to the petitioner on the same day and receipt of same has been shown to this Court. Learned counsel has further submitted that the application seeking approval under Section 33(2)(b) of the Act, 1947 was also sent on the same day and same was received by the Industrial Tribunal on 01.03.1993. Learned counsel has submitted that the earlier order passed by the Tribunal dated 17.04.2003 makes a reference in detail about receipt of application sent by the employer as being received on 01.03.1993. Learned counsel has submitted that separate application was filed by the employer under section 33(2) (b) of the Industrial Disputes, Act, 1947, due compliance has been made by the Corporation and the allegation of the petitioner that compliance thereof has not been made, is not correct. 15. I have heard both the counsel and perused the material available on record. 16. This Court finds that the impugned order dated 05.10.2004 has been passed by the Industrial Tribunal, Jaipur whereby it has discussed the evidence which was produced in respect of issuance of charge-sheet and further notices said to have been received by the petitioner. 15. I have heard both the counsel and perused the material available on record. 16. This Court finds that the impugned order dated 05.10.2004 has been passed by the Industrial Tribunal, Jaipur whereby it has discussed the evidence which was produced in respect of issuance of charge-sheet and further notices said to have been received by the petitioner. This Court finds that the Industrial Tribunal has further recorded its finding that the notices which were sent by the employer were duly served and as such it cannot be said that the charge of remaining absent was not proved. The Industrial Tribunal, Jaipur has come to the conclusion and recorded a finding in para 9 that plea of disproportionate punishment was raised by the petitioner, however after referring the judgments of the Apex Court reported in (2002) 2 SCC 244 and 1978 (3) SCC 1 , the application filed by the respondent has been allowed under Section 33(2)(b) of the Industrial Disputes, Act. This Court finds that if the plea of non-compliance of Section 33(2)(b) of the Industrial Disputes Act was raised by the petitioner/employee, the Industrial Tribunal ought to have given its finding about requirement of compliance of the conditions enumerated in Section 33(2)(b) of the Industrial Disputes, Act. The judgment cited by the learned counsel for the petitioner in the case of [ Strawboard Manufacturing Co. vs. Govind] reported in AIR 1962 SC 1500 , the Apex Court has inter-pretated the requirement of Section 33(2)(b) of the Industrial Disputes Act. This Court considers it appropriate to quote the para 10 of the judgment of the Apex Court passed in the case of Strawboard Manufacturing Co. vs. Govind (supra) which reads as under:- "10.The next question is as to when should an application be made. This Court considers it appropriate to quote the para 10 of the judgment of the Apex Court passed in the case of Strawboard Manufacturing Co. vs. Govind (supra) which reads as under:- "10.The next question is as to when should an application be made. In this connection our attention was drawn to section 33-A of the Act which gives a right to the employer to apply for redress in case an employer contravenes the provision of section 33 and there is no doubt that the proviso to section 33 (2), (b) should be so interpreted as not to whittle down the protection provided by section 33-A. As we read the proviso, we are of opinion that it contemplates the three things mentioned therein, namely, (i) dismissal or discharge, (ii) payments of wages and (iii) making of ,in application for approval, to be simultaneous and to be part of the same transaction, so that the employer when he takes action under section 33 (2) by dismissing or discharging an employee, should immediately pay him or offer to pay him wages for one month and also make an application to the tribunal for approval at the same time. When however we say that the employer must take action simultaneously or immediately we do not mean that literally, for when three things are to be done they cannot be done, simultaneously but can only be done one after the other. What we mean is that the employer's conduct should show that the three things contemplated under the proviso, namely, (i) dismissal or discharge, (ii) payment of the wages, and (iii) making of the application, are parts of the same transaction. If that is done, there will be no occasion to fear that the employee's right under section 33-A would be affected. The question whether the application was made as part of the same transaction or at the same time when the action was taken would be a question of fact and ,Will depend upon the circumstances of each case." 17. In the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma & Ors. reported in (2002) 2 SCC 244 the Apex Court had an occasion to consider the judgments passed by the Apex Court while deciding the reference to consider the correctness of the judgment of Punjab Beverages (P) Ltd. reported in (1978) 2 SCC 144 . reported in (2002) 2 SCC 244 the Apex Court had an occasion to consider the judgments passed by the Apex Court while deciding the reference to consider the correctness of the judgment of Punjab Beverages (P) Ltd. reported in (1978) 2 SCC 144 . The Apex Court in the said judgment came to the conclusion that the view taken in the case of Strawboard Manufacturing Co. vs. Govind (supra) and Tata Iron & Steel Company Ltd. vs. S.N. Modak reported in AIR 1966 SC 380 were correct view and the judgment in the case of Punjab Beverages (P) Ltd. was not correct as earlier decisions of Strawboard Manufacturing Co. vs. Govind and Tata Iron Steel Company Ltd. were not followed. 18. The perusal of the said judgment of the Apex Court clearly lays down that compliance of Section 33 (2)(b) of the Act, 1947 is required to be made as the question of fact and it will depend upon the circumstances of the each case. 19. In the instant case, this Court finds that the petitioner has raised the plea of nonconsideration of Section 33(2)(b) by not following the requirement of giving him one month wages with the termination order and filing application before the Tribunal in one series of act and learned counsel submits that it should form same part of the transaction. This Court finds that though objection has been noted by the Tribunal but no finding has been given on this aspect and as such, as per the judgement of the Apex Court, question of fact has to be examined by the competent Court i.e. Industrial Tribunal. The Industrial Tribunal has failed to consider these aspects of the matter and as such this matter requires to be adjudicated by the Industrial Tribunal on the issue which is raised before it and the same is required to be decided as question of fact about compliance of Section 33(2)(b) of the Industrial Disputes, Act. 20. Learned counsel submits that quantum of punishment has not been considered by the Labour Court and it is also required to be looked into by the Labour Court as per the requirement of Section 11 of the Industrial Disputes Act. This Court finds that the Industrial Tribunal has made reference of argument of the petitioner about disproportionate punishment however, except referring the case law, nothing has been recorded. This Court finds that the Industrial Tribunal has made reference of argument of the petitioner about disproportionate punishment however, except referring the case law, nothing has been recorded. This Court feels that the Industrial Tribunal, Jaipur was required to go into the issue which was raised by the petitioner before it in respect of not only non-compliance of Section 33(2)(b) as well as the quantum of punishment also. 21. The submission of learned counsel for the petitioner that due to non payment of subsistence allowance, the application under Section 33(2)(b) deserves to be rejected. It is significant to mention that this Court has already set aside the order passed by the Tribunal while deciding the writ petition in SBCWP NO.478/2003 by judgement dated 21.01.2004. 22. The submission of learned counsel for the petitioner that the Division Bench has given liberty to the petitioner to raise objection about non payment of subsistence allowance, this Court finds that the issue with regard to compliance of Section 33(2)(b) is required to be adjudicated by appropriate forum and further quantum of punishment is required to be adjudicated by the Industrial Tribunal. This Court once has given a finding about order which has been passed by the Industrial Tribunal and further set aside by the High Court, no separate findings are required in respect of non payment of subsistence allowance to the petitioner. Accordingly, the present petition is allowed to the extent of setting aside the order passed by the Industrial Tribunal, Jaipur and order dated 05.10.2004 is quashed and set aside. The Industrial Tribunal is directed to decide the application filed by the employer under Section 33(2)(b) of the Industrial Disputes Act, 1947 as per the provisions of the law. Since the matter pertains to the year 2004, it is expected from the Industrial Tribunal that the dispute will be decided expeditiously, but in no case later than six months from the date of receipt of copy of this order.