JUDGMENT : Michael Zothankhuma, J. Heard Mr. G.N Sahewalla, learned senior counsel for the writ petitioner (Management) as well as Mr. S. Dutta, learned senior counsel for the respondent (Workman) in WP(C) No. 2436/2017. The Workman has in turn filed WP(C) No. 7769/2016. The above two writ petitions are being disposed of by this common judgment and order. For easy reference, the position of the parties in WP(C) No. 2436/2017 are being relied upon in the present common judgment and order. 2. The writ petitioner has prayed for setting aside the Award dated 31.03.2015 passed by the Industrial Tribunal, Cachar, Silchar, in Reference Case No. 1/2009, by which the dismissal of the respondent (workman) has been set aside, on account of non-furnishing of the enquiry report prior to the dismissal order being issued. The respondent in his writ petition, on the other hand prays for modifying the impugned Award dated 31.03.2015 passed in Reference Case No. 1 of 2009, by directing the writ petitioner to pay full back wages to the petitioner. 3. The respondent, who was working as a driver in Lallachera Tea Estate, was charged with damaging irrigation aluminum pipes, which was kept inside the factory, which costed Rs. 3,200/-. The respondent was suspended w.e.f. 17.10.2006 and was asked to submit his explanation on or before 20.10.2006. Having found the explanation of the respondents to be unsatisfactory, a domestic enquiry was initiated against the respondent. 4. As the respondent's subsistence allowance was allegedly not being paid as per the prescribed rates, a conciliation proceeding was started before the Labour Officer, for enhancement of his subsistence allowance @ 75% of his income from 50%. The dates for the conciliation proceedings were adjourned from time to time and prior to conclusion of the conciliation proceeding, the petitioner terminated the service of the respondent on 06.12.2007, by concluding the domestic enquiry. 5. The respondent, through the Indian Tea Employees Union, had challenged the termination of the petitioner's service and the Government framed 2 (two) issues for adjudication of the Industrial Tribunal:- (1) Whether the writ petitioner was justified in dismissing the respondent w.e.f. 06.12.2007 and (2) If not, what relief is the Workmen entitled to? 6. The Industrial Tribunal, Cachar, Silchar, disposed of Reference Case No. 1/2009 vide the impugned Award dated 31.03.2015 by holding that the dismissal order passed by the Management/writ petitioner against the respondent was justified. 6. The Industrial Tribunal, Cachar, Silchar, disposed of Reference Case No. 1/2009 vide the impugned Award dated 31.03.2015 by holding that the dismissal order passed by the Management/writ petitioner against the respondent was justified. However, it held that the termination of the respondent by the writ petitioner, without furnishing a copy of the enquiry report against the proposed punishment to be inflicted, was a blatant violation of the rules of natural justice. Accordingly, the learned Tribunal set aside the termination Order dated 06.12.2007 and restored him back into service. However, no back-wages was given by the learned Tribunal on the ground that there were several allegations of malpractices against the respondent. 7. The case of the writ petitioner is that the non-furnishing of the enquiry report, prior to the issuance of the dismissal order, did not cause any prejudice to the respondent, as he had been given full opportunity to defend himself in respect of all the charges framed against him before the learned Tribunal. 8. The respondent's case, on the other hand, is that the non-furnishing of the enquiry report to the respondent, prior to the issuance of the dismissal order, caused serious prejudice to the respondent. Further, the dismissal of the respondent during the pendency of the conciliation proceedings was in violation of Section 33 (1)(b) of the Industrial Dispute Act, 1947. Thus, the dismissal of the respondent has to be considered void and inoperative in law, as no application had been made by the writ petitioner asking for permission from the authority, prior to dismissing the respondent. In support of the above submission, the counsel for the respondent has relied upon the judgment of the Apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and Ors., 2002 2 SCC 224 and the judgment of this Court in the case of Siddhartha Chakrabarty Vs. The Management of United Bank of India and Anr., WP(C) No. 635/2001, which was disposed of vide Judgment and Order dated 06.05.2004. 9. The learned counsel for the writ petitioner submits that the question of payment of 75% subsistence allowance instead of 50% subsistence allowance, which was a part of the conciliation proceeding before the Labour Officer was not an industrial dispute but was a claim for more money. He accordingly submits that Section 33(1) of the 1947 Act would accordingly not be applicable to the case in hand. He accordingly submits that Section 33(1) of the 1947 Act would accordingly not be applicable to the case in hand. In support of his submission, the learned counsel has relied upon the judgment of the Apex Court in the case of English Electric Co. of India Vs. V. Manohara Rao and Ors., (2001) 9 SCC 739 . In the alternative, he submits that even if there is violation of Section 33(1) of the 1947 Act, the workman has a remedy against such alleged violation by filing a complaint in writing before the Conciliation Officer, Labour Court, Tribunal etc. for redressal of his grievance under Section 33A of the 1947 Act. However in a case where there is violation of Section 33(1) of the 1947 Act, the Conciliation Officer, Labour Court, Tribunal etc. has to deal not only with the question of whether there was contravention with the provision of Section 33(1), but it would also have to consider whether the impugned order of dismissal or discharge of the workman was justified. In support of his submission, the learned counsel has relied upon the judgments of the Apex Court in the case of (i) The Hindusthan General Electrical Corporation Ltd. Vs. Bishwanath Prasad and Anr., (1971) 2 SCC 605 (ii) Air-India Corporation, Bombay Vs. V.A. Rebellow and Anr., (1972) 1 SCC 814 (iii) Blue Star Employees Union Vs. Ex Off. Principal Secy. to Govt. and Anr., (2000) 8 SCC 94 (iv) Management of Karur Vysya Bank Limited Vs. S. Balakrishnan, (2016) 12 SCC 221 and in the case of (v) Managing Director, North-East Karnataka Road Transport Corporation Vs. Shivasharanappa, (2017) 16 SCC 540 . 10. I have heard the learned counsels for the parties. 11. The question to be decided is whether the conciliation proceeding that was pending before the Labour Officer, with regard to payment of 75% of the subsistence allowance instead of 50%, can be said to be any matter/misconduct connected with the dispute, in respect of the domestic enquiry initiated against the respondent. The further question that has to be decided by this Court is whether there was violation of Section 33(1) by the writ petitioner, while dismissing the respondent from service, during pendency of a conciliation proceeding, with regard to the claim of the respondent for payment of subsistence allowance @ 75% of his salary. The further question that has to be decided by this Court is whether there was violation of Section 33(1) by the writ petitioner, while dismissing the respondent from service, during pendency of a conciliation proceeding, with regard to the claim of the respondent for payment of subsistence allowance @ 75% of his salary. Also, whether the non-furnishing of the enquiry report to the respondent caused any prejudice to the respondent. 12. Section 33(1) and 33A of the Industrial Disputes Act, 1947 (hereinafter referred to as the 1947 Act) states as follows:- "33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.-(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before [an arbitrator or. a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall,- (a) In regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or (b) For any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending. 33A. Special provision for adjudication as to whether conditions of service, etc., changed during pendency of proceeding.-Where an employer contravenes the provisions of section 33 during the pendency of proceedings [before a conciliation officer, Board, an arbitrator, Labour Court, Tribunal or National Tribunal. 33A. Special provision for adjudication as to whether conditions of service, etc., changed during pendency of proceeding.-Where an employer contravenes the provisions of section 33 during the pendency of proceedings [before a conciliation officer, Board, an arbitrator, Labour Court, Tribunal or National Tribunal. any employee aggrieved by such contravention, may make a complaint in writing, [in the prescribed manner,- (a) To such conciliation officer or Board, and the conciliation officer or Board shall take such complaint into account in mediating in, and promoting the settlement of, such industrial dispute; and (b) To such arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such complaint the arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply accordingly.]" A reading of the Section 33(1)(a) of the 1947 Act shows that during the pendency of any conciliation proceeding before the authority concerned, the employer cannot alter to the prejudice of the workman concerned, the conditions of service applicable immediately before the commencement of the conciliation proceeding, with regard to matters connected with the dispute. As per Section 33(1)(b) of the 1947 Act, the employer cannot punish by way of dismissal or discharge, any workman for any misconduct connected with the dispute, without the employer taking the prior express written permission of the authority before whom the conciliation proceeding is pending. 13. A reading of the judgments relied upon by the writ petitioner shows that when a complaint has been made under Section 33 of the 1947 Act, for violation of Section 33(2)(b) of the Act, the Tribunal or the Conciliation Authority, Tribunal etc. are required to undertake a twin duty. The first is to find out whether the employer has contravened the provision of Section 33 by not seeking approval of the authority before whom Conciliation Proceedings are pending. The other requirement is that the further question of whether the dismissal or other punishment imposed on the workman was justified in law. The facts in relation to the Apex Court decisions relied upon by the learned counsel for the petitioner is different from the case in hand. The other requirement is that the further question of whether the dismissal or other punishment imposed on the workman was justified in law. The facts in relation to the Apex Court decisions relied upon by the learned counsel for the petitioner is different from the case in hand. In the cases cited by the petitioner's counsel, complaint had been made under Section 33A for violation of Section 33 of the 1947 Act. It was in this context that the Apex Court in the case of Management of Karur Vysya Bank Limited (Supra) and in Managing Director, North-East Karnataka Road Transport Corporation (Supra) had held that Section 33A enjoins upon the Labour Court/Tribunal/Adjudicator a twin duty, i.e., to find out whether the employer had contravened the provision of Section 33 and whether the dismissal or such other punishment imposed upon the workman was justified in law. 14. In the present case, the service of the respondent workman was terminated by way of dismissal on the basis of the domestic enquiry initiated against the respondent. The respondent was dismissed on 06.12.2007, during the pendency of a conciliation proceeding, which was in relation to the amount of subsistence allowance to be paid. The respondent did not file a complaint under Section 33A of the 1947 Act. Instead, only after termination of the respondent's service, the Indian Tea Employees Union made a challenge to the same by raising an industrial dispute. In consequence to the same, the Government framed 2 issues, which was to be adjudicated by the Tribunal, which are as follows:- (1) Whether the writ petitioner was justified in dismissing the respondent w.e.f. 06.12.2007 and (2) If not, what relief is the Workmen entitled to? 15. A perusal of the impugned Order dated 31.03.2015 passed by the Industrial Tribunal, Cachar shows that the learned Tribunal has decided the first that the dismissal order passed by the Management against the delinquent employee was justified. If that be the case, there was no requirement of the learned Tribunal to have gone any further and answered issue No. 2. The point that has to be decided is whether violation of Section 33(1) of the 1947 Act would render the dismissal of the respondent, during the pendency of conciliation proceedings, void or inoperative in law, even if no challenge had been made by the respondent workman under Section 33A. The point that has to be decided is whether violation of Section 33(1) of the 1947 Act would render the dismissal of the respondent, during the pendency of conciliation proceedings, void or inoperative in law, even if no challenge had been made by the respondent workman under Section 33A. In the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (Supra), the Constitution Bench of the Apex Court has held that the conditions of Section 33(2)(b) of the 1947 Act are mandatory and they have to be satisfied if an order of discharge or dismissal is to be operative under Section 33(2)(b). The Constitution Bench further held that taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void, defeats the very purpose of the proviso and it becomes meaningless. 16. The extract of paragraph Nos. 13, 14 and 15 of the judgment of the Constitution Bench of the Apex Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (Supra) are reproduced below:- "13. To put it in another way, the said conditions being mandatory, are to be satisfied if an order of discharge or dismissal passed under Section 33(2)(b) is to be operative. If an employer desires to take benefit of the said provision Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void, defeats the very purpose of the proviso and it becomes meaningless. 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. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if the order of discharge passed invoking Section 33(2)(b) dismissing or discharging an employee brings an end of relationship of the employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. In other words, this relationship comes to an end de jure only when the authority grants approval. If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position there is no need of a separate or specific order for his reinstatement. But on the other hand, if approval is given by the authority and if the employee is aggrieved by such an approval, his is entitled to make a complaint under Section 33-A challenging the order granting approval on any of the grounds available to him. Section 33-A is available only to an employee and is intended to save his time and trouble inasmuch as he can straightaway make a complaint before the very authority where the industrial dispute is already pending between the parties challenging the order of approval instead of making efforts to raise an industrial dispute, get a reference and thereafter adjudication. In this view, it is not correct to say that even though where the order of discharge or dismissal is inoperative for contravention of the mandatory conditions contained in the proviso or where the approval is refused, a workman should still make a complaint under Section 33-A and that the order of dismissal or discharge becomes invalid or void only when it is set aside under Section 33-A and that till such time he should suffer misery of unemployment in spite of the statutory protection given to him by the proviso to Section 33(2)(b). It is not correct to say that where the order of discharge or dismissal becomes inoperative because of contravention of proviso to Section 33(2)(b), Section 33-A would be meaningless and futile. It is not correct to say that where the order of discharge or dismissal becomes inoperative because of contravention of proviso to Section 33(2)(b), Section 33-A would be meaningless and futile. The said section has a definite purpose of serve, as already stated above, enabling an employee to make a complaint, if aggrieved by the order of the approval granted. 15. The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such an order is set aside under Section 33-A, cannot be accepted. In our view, not making an application under Section 33(2)(b) seeking approval or withdrawing an application once made before any order is made thereon, it is a clear case of contravention of the proviso to Section 33(2)(b). An employer who does not make an application under Section 33(2)(b) or withdraws the one made, cannot be rewarded by relieving him of the statutory obligation created on him to make such an application." 17. The Constitution Bench of the Apex Court in the above case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (Supra) has thus held that if approval of the authority for dismissal or discharge of an employee is not taken under the proviso to Section 33(2)(b), it will be deemed that the order of discharge or dismissal had never been passed, the consequence of which would be that the employee would be deemed to be in service entitling him to all benefits available. The Apex Court further held that just because an order of dismissal or discharge is not set aside under Section 33A, it cannot be accepted that the said order is not void or inoperative, so long as it violates the provision of Section 33(2)(b) of the 1947 Act. In the above case, the Apex Court dealt with the provision of Section 33(2)(b) of the 1947 Act. The cases cited by the learned counsel for the writ petitioner is also with regard to the provision of Section 33(2)(b) of the 1947 Act. 18. This Court, vide Judgment and Order dated 06.05.2004 passed in WP(C) No. 635/2001, Siddhartha Chakrabarty Vs. The Management of United Bank of India and Anr. The cases cited by the learned counsel for the writ petitioner is also with regard to the provision of Section 33(2)(b) of the 1947 Act. 18. This Court, vide Judgment and Order dated 06.05.2004 passed in WP(C) No. 635/2001, Siddhartha Chakrabarty Vs. The Management of United Bank of India and Anr. had to decide the question whether the dismissal of the petitioner therein, in the absence of an application under Section 33(2)(b) of the 1947 Act could be said to be inoperative in law. This Court by following the judgment of the Apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (Supra) held at paragraph 11 and 12 as follows:- "11. There cannot be two opinions that in the attending facts and circumstances the order of dismissal of the petitioner in view of omission on the part of the Respondent Bank to file an application under Section 33(2)(b) of the Act has to be adjudged as void and inoperative in law. The learned Tribunal having totally missed the above aspect of the matter, the impugned award cannot be sustained and is set aside. 12. As a corollary, in law the petitioner is deemed to be in service and is accordingly entitled to all consequential benefits. The petition is thus allowed. No costs." 19. Section 33(2) of the 1947 Act states as follows:- "(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute [or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman]- (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or (b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer." A perusal of the above clearly shows a lot of similarities between Section 33(1) and Section 33(2). Section 33(1) deals with the case of a workman in a pending dispute, who has been prejudicially affected by an action in regard to a matter connected with such pending dispute. Section 33(2) deals with a workman concerned with regard to matters unconnected with such pending dispute. Section 33(1) bans the alteration of the service of the workman in respect of the service conditions applicable to him immediately before the commencement of the conciliation proceeding and also discharge or dismissal for misconduct connected with the dispute, without the express permission in writing of the authority dealing with the pending conciliation proceeding. Section 33(2) places a similar ban in matters not connected with the pending dispute, but the employer is free to discharge or dismissed the workman by paying for 1 month wages, provided he applies to the authority dealing with the pending proceeding, for approval of the action taken. 20. Though the judgments cited by the learned counsels are with regard to Section 33(2) (b) of the 1947 Act, this Court is of the view that the principles laid down by the Apex Court in the above cases can be applied to Section 33(1) also. The conditions laid down for dismissing a workman, during the pendency of the conciliation proceeding under Section 33(1)(b), provides that the order of dismissal can be issued only with the express permission in writing of the authority concerned before which the conciliation proceeding is pending. In the present case, no such express permission in writing had been taken by the writ petitioner prior to dismissal of the respondent. 21. On perusal of the judgments, this Court is of the view that the Labour Court/Tribunal will have to decide the twin requirements of whether Section 33 was complied with and whether the dismissal or discharge was justified, only if a complaint is made under 33A of the 1947 Act and the issue is decided under Section 33A. 21. On perusal of the judgments, this Court is of the view that the Labour Court/Tribunal will have to decide the twin requirements of whether Section 33 was complied with and whether the dismissal or discharge was justified, only if a complaint is made under 33A of the 1947 Act and the issue is decided under Section 33A. Keeping in view the law laid down by the Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (Supra), it is accordingly held that if no complaint is made under Section 33A of the 1947 Act and if it is proved that there was violation of Section 33(1)(b), by not taking the express written permission of the authority before whom the conciliation proceeding was pending, prior to dismissal or discharge of the workman, it would render the same, void and inoperative in law. Thus, this Court finds that the conciliation proceeding pending with the Labour Officer is a matter connected with the domestic enquiry initiated against the respondent. This Court also finds that there has been violation of Section 33(1) of the 1947 Act. In that view of the matter, the Order dated 06.12.2007, dismissing the respondent from service is set aside and the respondent is restored back into his service. In view of the decision of this Court on the above two points, this Court is not going into the merits of whether the non furnishing of the enquiry report, prior to the dismissal of the respondent, caused any prejudice to the respondent. 22. In the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and Others, (2013) 10 SCC 324 , The Apex Court has held at paragraph No. 22 as follows:- "22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. With the passing of an order which has the effect of severing the employer-employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi- judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments." 23. In the case of Metropolitan Transport Corporation Vs. V. Venkateshan, (2009) 9 SCC 601 , the Apex Court has held that there is a misconception that when every reinstatement is directed, continuity in service and consequential benefits should follow as a matter of course. 24. On considering the Judgment of the Apex Court in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and Others (Supra) and keeping in view the fact that the respondent was under suspension at the time he approached the Labour Officer for enhancement of his subsistence allowance from 50% to 75%, the respondent has to be deemed to be still in service. Keeping in view the fact that the respondent superannuated on 07.12.2007, this Court accordingly holds that the respondent should be reinstated into service for the period of the remainder of his service and paid all consequential benefits. 25. WP(C) No. 2436/2017 is dismissed while WP(C) No. 7769/2016 is allowed. The above two writ petitions are accordingly disposed of. Keeping in view the fact that the respondent superannuated on 07.12.2007, this Court accordingly holds that the respondent should be reinstated into service for the period of the remainder of his service and paid all consequential benefits. 25. WP(C) No. 2436/2017 is dismissed while WP(C) No. 7769/2016 is allowed. The above two writ petitions are accordingly disposed of. Consequently, the Award dated 31.03.2015 passed by the Industrial Tribunal, Cachar, in Reference Case No. 1/2009 is set aside. Send back the LCR.