ORDER : 1. This writ petition is under Article 226 and 227 of the Constitution of India, wherein, the Award dated 22.12.2017, passed by the Presiding Officer, Central Government Industrial Tribunal No. 1, Dhanbad in Central Government Industrial Tribunal No. 1, Dhanbad in Complaint Case No. 1 of 2012 by which the complaint filed by the respondents under Section 33 A of the Industrial Disputes Act, 1947, holding therein, that the punishment of dismissal and forfeiture of terminal benefits of the respondent as illegal and unjustified. 2. The brief facts of the case of the petitioner, as per the pleading made in the writ petition is that the respondents while being posted as Assistant Grade-I (D) and two other employees were deputed to proceed to Paddy Procurement Centre (in short PPC), Dumraon to supervise the delivery of procured paddy/stock to the millers and its transportation to the base depot and to submit a consolidated report after liquidation of entire paddy stock. The Respondent and other members of the Committee did not furnish any report even after lapse of more than two months. The Committee, however, had submitted two reports on 28.08.2009 and 28.10.2009 which were cryptic and did not disclose any concrete particulars, which suggest that the findings of the report were prepared mechanically in the office without actually supervising and physically verifying the delivery of paddy. The competent authority had decided to initiate a disciplinary proceeding against the respondent, namely, Shri Kumar Madan Mohan, Assistant Grade-I (D) vide Memo dated 12.07.2011, issued under Regulation no. 58 read with 60 (A) of the Food Corporation of India (Staff) Regulation 1971 under major Memorandum. The Articles of charges along with the list of documents and the evidences were served upon him. The Respondent has submitted his written statement of defence and has thereby upon giving adequate opportunity of hearing and thereafter, the enquiry Committee has found the charge levelled against the petitioner as proved basing upon which the competent authority has imposed punishment of dismissal from service vide order dated 24.07.2012. The Respondent has submitted his written statement of defence and has thereby upon giving adequate opportunity of hearing and thereafter, the enquiry Committee has found the charge levelled against the petitioner as proved basing upon which the competent authority has imposed punishment of dismissal from service vide order dated 24.07.2012. The Respondents on being dismissed from service, has made an application under Section 33 A of the Industrial Disputes Act, 1947 (hereinafter to be referred as the Act), making therein, the complaint before dismissal from service, the approval, as required under Section 33 (2) (b) of the Act, has not been taken from the Industrial Tribunal, where a dispute is lying pending being Reference No. 138 of 1997 for against the denial of payment of OTA at double the rate in respect of the workman, posted in Bihar region, the aforesaid application has been entertained and on adjudication, has been decided by quashing the order of dismissal on the ground of non-compliance of the provision of Section 33 (2) (b) of the Act, as also on merit by coming to the conclusion that the charge, which has been found to be proved by the Enquiry officer has erroneously been proved. The present writ petition is against the aforesaid order, passed by the Tribunal. 3. Learned counsel appearing for the petitioner has taken the following grounds:- (i) A complaint under Section 33A of the Act has wrongly been entertained, since the respondents was not a workman within the meaning of Section 2 (s) of the Act. (ii) Since the Respondents is not a workman, there is no requirement to seek approval, as required under Section 33 (2) (b) of the Act from the Tribunal, where a dispute is pending. (iii) The charge is of misconduct in discharge of the official duty, which has been proved in the domestic enquiry after providing adequate opportunity of hearing, the same having been initiated under the provision of Staff Discipline Rule and therefore, no interference should have been shown by the Tribunal on the ground that against the said order under the Staff Disciplinary Rules, there is a provision of Review and Appeal. 4. 4. This Court after having heard the learned counsel for the petitioner and after going across the pleadings made in the writ petition, as also the findings recorded and by the Tribunal in the Award, passed in Complaint Case No. 1 of 2012, is of the view that before entering into the legality and propriety of the order, certain provisions of the Industrial Disputes Act, 1947 needs to be referred:- “33 (2) (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. 33 (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; 2(s) “workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person – (i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); (ii) who is employed in the police service or as an officer or other employee of a prison. (iii) who is employed mainly in a supervisory capacity, draws wages exceeding [ten thousand rupees] per mensem or exercises, either by the nature of the duties attached to the office of by reason of the powers vested in him, functions mainly of a managerial nature.]” 5. (iii) who is employed mainly in a supervisory capacity, draws wages exceeding [ten thousand rupees] per mensem or exercises, either by the nature of the duties attached to the office of by reason of the powers vested in him, functions mainly of a managerial nature.]” 5. The provision of Section 33 (2) (b) contains a condition of approval from the Tribunal, where a dispute is lying pending, on the basis of a reference and unless the approval would be granted by the Tribunal where the dispute is pending, the order of dismissal will take its effect. 6. The object and scope of Section 33 (2) (b) has been dealt with by the larger Bench of the Hon’ble Apex Court (5 Judges’ Bench of the Hon’ble Apex Court) in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Shri Ram Gopal Sharma and Others, AIR 2002 SC 643 , wherein, after dealing with all the previous pronouncements of the Hon’ble Apex Court, the scope of Section 33 (2) (b) has been approved and enhanced. In the aforesaid judgment, the scope has been enhanced by directing the Tribunal to look into the fairness and victimization on the part of the Management upon which workman apart from the condition stipulated under proviso to Section 33 (2) (b) of the Act. Their Lordships of the Hon’ble Apex Court in the aforesaid judgment has been pleased to hold that 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 order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking Section 33 (2) (b) dismissing or discharging an employee brings an end of relationship of 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. The order of dismissal or discharge passed invoking Section 33 (2) (b) dismissing or discharging an employee brings an end of relationship of 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, he is entitled to make a complaint under Section 33A challenging the order granting approval on any of the grounds available to him. Section 33A is available only to an employee and is intended to save his time and trouble inasmuch as, he can straightway 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 33A and that the order of dismissal or discharge becomes invalid or void only when it is set aside under Section 33A and that till such time he should suffer misery of unemployment in spite of statutory protection given to him by the proviso to Section 33 (2) (b). It is not correct to say where the order of discharge or dismissal becomes inoperative because of contravention of proviso to Section 33 (2) (b), Section 33A would be meaningless and futile. It is not correct to say where the order of discharge or dismissal becomes inoperative because of contravention of proviso to Section 33 (2) (b), Section 33A would be meaningless and futile. The said Section has a definite purpose to serve, as already stated above, enabling an employee to make a complaint, if aggrieved by the order of the approval granted. Their Lordships of the Hon’ble Apex Court in the aforesaid judgment has been pleased to further hold 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 33A, 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, is a clear case of 6 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. If it is so done, he will be happier or more comfortable than an employer who obeys the command of law and makes an application inviting scrutiny of the authority in the matter of granting approval of the action taken by him. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. An employer by design can avoid to make an application after dismissing or discharging an employee or file it and withdraw before any order is passed on it, on its merits, to take a position that such order is not inoperative or void till it is set aside under Section 33A notwithstanding the contravention of Section 33(2)(b) proviso, driving the employee to have recourse to one or more proceeding by making a complaint under Section 33A or to raise another industrial dispute or to make a complaint under Section 31(1). Such an approach destroys the protection specifically and expressly given to an employee under the said proviso as against possible victimization, unfair labour practice or harassment because of pendency of industrial dispute so that an employee can be saved from hardship of unemployment. Such an approach destroys the protection specifically and expressly given to an employee under the said proviso as against possible victimization, unfair labour practice or harassment because of pendency of industrial dispute so that an employee can be saved from hardship of unemployment. Their Lordships of the Hon’ble Apex Court in the aforesaid judgment has been pleased to further hold that Section 31 speaks of penalty in respect of the offences stated therein. This provision is not intended to give any remedy to an aggrieved employee. It is only to punish the offender. The argument that Section 31 provides a remedy to an employee for contravention of Section 33 is unacceptable. Merely because penal provision is available or a workman has a further remedy under Section 33A to challenge the approval granted, it cannot be said that the order of discharge or dismissal does not become inoperative or invalid unless set aside under Section 33A. There is nothing in Sections 31, 33 and 33A to suggest otherwise even reading them together in the context. These sections are intended to serve different purposes. 7. It is thus, evident that in case of dismissal, if approval has not been sought for, the remedy available to the workman is to make a complaint under the provision of Section 33A of the Act. 8. Section 33A confers power upon the Tribunal to entertain the complaint, if there is any alteration in the service condition. In the judgment rendered in the case of Gujarat Agricultural University vs. All Gujarat Kamdar Karmachari Union, (2009) 15 SCC 335 . Their Lordships of the Hon’ble Apex Court has been pleased to hold from paragraph 24 to 26, that the foundation for exercise of the power in the proceeding under Section 33A as a breach of the provisions of Section 33A of the Act. At para 25, it has been held therein, that whether the alternation in the conditions of service has any connection or nexus with the industrial dispute pending before the Industrial Tribunal, Ahmedabad. At para 27, it has been held hereunder as:- “27. The Industrial Tribunal while dealing with the question whether the alteration in the service conditions has any connection with the pending industrial dispute observed: “…It is at present not possible to say that the workmen are directly connected with the dispute as well as with the subject-matter of the reference. At para 27, it has been held hereunder as:- “27. The Industrial Tribunal while dealing with the question whether the alteration in the service conditions has any connection with the pending industrial dispute observed: “…It is at present not possible to say that the workmen are directly connected with the dispute as well as with the subject-matter of the reference. But if it is viewed with large angle, the said complaint is connected with the pending reference because subject-matter of the reference is whether all the workmen should be treated permanent and accordingly be given benefits attached to the permanent service or not? This also includes working hours and holidays, etc. of the employment of the workmen. If the workmen are made permanent, they will also get leave benefits and other rights, etc. given to the permanent workmen. Further, it is the contention of the complainant that under the settlement, it was agreed to provide work for six days, but instead, more than one leave is given. If this is permitted to be so done, that would straightaway and simply mean that by ignoring the seniority of the workmen and by taking work from them in some other manner, leave/holidays of more than one day in a week are being given to the workmen as a result of which the total working days of the workmen will be reduced to such an extent that as and when time of disposing of the reference on merits would come, though the workmen would legally be entitled to get work for six days in a week, their total working days would be reduced to such an extent that that would also affect the case of the workmen to make them permanent and though the workmen are entitled, the opponent would submit in that event that the workmen are working for very less number of days and, therefore, they should not be made permanent. It was agreed to give work for six days in a week under the settlement arrived at under Section 2(p) of the ID Act and the same is part and parcel of the service conditions. Thus, subject-matter of the complaint is connected with the subject-matter of the reference.” 9. Therefore, it is to be seen by this Court:- (i) Whether the petitioner is a workman under the meaning of Section 2 (s) of the Act? Thus, subject-matter of the complaint is connected with the subject-matter of the reference.” 9. Therefore, it is to be seen by this Court:- (i) Whether the petitioner is a workman under the meaning of Section 2 (s) of the Act? (ii) Whether a complaint under Section 33A of the Act will lie, amounting to alteration in service condition due to dismissal of the respondents from service. (iii) Whether Reference No. 138 of 1997 is connected with the interest of the respondents. If the answer in these three issues will be affirmative, then the complaint under Section 33 A of the Act, as has been entertained by the Industrial Tribunal will suffer from no infirmity, therefore, this Court thinks it proper to examine these issues. 10. The first issue, which is to be examined as to whether the petitioner is a workman within the meaning of Section 2 (s) of the Act and in order to come to a conclusive finding in this regard, the reference needs to be made of the Section 2 (s) has been made hereinabove. In the judgment rendered by the Hon’ble Apex Court in the case of M/s. New India Motors (P.) Ltd. vs. K.T. Morris, 1960 AIR (SC) 875 : 1960 (1) LLJ 551 , wherein, it has been observed at paragraph 3 that the question as to whether the respondent is a workman as defined by Section 2 (s) of the Act is a question of fact and the finding recorded by the tribunal on the said question, after considering the relevant evidence adduced by the parties, cannot be successfully challenged before us in the present appeal. The Respondent has given evidence as to the nature of the work he was required to do as field service organizer. The letter of appointment issued to him in that behalf expressly required, inter-alia, that the respondent had, if need be, to check up and carry out necessary adjustments and repairs of the vehicles sold by the appellant to its customers and obtain signature of responsible persons on the satisfaction forms which had been provided to him. The respondent swore that he looked after the working of the workshop and assisted the mechanics and others in their jobs. He 9 attended to complicated work himself and made the workmen acquainted with Millers special tools and equipment needed for repairs and servicing of cars. The respondent swore that he looked after the working of the workshop and assisted the mechanics and others in their jobs. He 9 attended to complicated work himself and made the workmen acquainted with Millers special tools and equipment needed for repairs and servicing of cars. He denied the suggestion that he was a member of the supervisory staff. On this evidence the tribunal has based its finding that the respondent was a workman under Section 2 (s) and therefore, the Hon’ble Apex Court has declined to interfere with the aforesaid findings. In the case of Management of M/s. May and Baker (India) Ltd. vs. Their Workmen, 1967 AIR (SC) 678 : 1961 (2) LLJ 94 , wherein, at paragraph 9 it has been held that merely the designation of the employee was not of great moment and what was of importance was the nature of his duties. If the nature of the duties is manual or clerical then the person must be held to be a workman. On the other hand if manual or clerical work is only a small part of the duties of the person concerned and identical to his main work, which is not manual or clerical, then such a person would not be a workman. It has therefore, to be seen in each case from the nature of the duties whether a person employed is a workman or not, under the definition of that word as it existed before the amendment of 1956. In the judgment in the case of Lloyds Bank Ltd. New Delhi vs. Panna Lal Gupta and Others, 1967 AIR (SC) 428 : 1961 (1) LLJ 18 , wherein, at paragraph 12, it has been held as to whether an employee holds a supervisory post or not frequently arose for decision before industrial courts under the original definition of a workman in the Industrial Disputes Act. Section 2 (s) as it originally stood defined a workman as meaning, inter alia, any person employed (including an apprentice) in any industry to do any skilled or unskilled, manual or clerical, work for hire or reward. Section 2 (s) as it originally stood defined a workman as meaning, inter alia, any person employed (including an apprentice) in any industry to do any skilled or unskilled, manual or clerical, work for hire or reward. Under this definition, on many occasions, the employers claimed that the workmen concerned were officers or members of the supervisory staff and, as such, did not fall under Section 2 (s) and workmen contended that they were doing merely clerical or mechanical work and did not fall in the class of officers or supervisors. Dealing with such disputes industrial courts generally considered the essence of the matter and did not attach undue importance to the designation of the employee or the name assigned to the class to which he belonged. It was always a matter of determining what the primary duties of an employee were-did he do clerical or manual work? If the answer was in the affirmative he was a workman;-were his duties of a supervisory nature? If the answer was in the affirmative he was not a workman. In considering the latter aspect of the problem industrial adjudication generally took the view that the supervisor or officer should occupy a position of command or decision and should be authorized to act in certain matters within the limits of his authority without the sanction of the manager or other supervisors. In the judgment rendered in the case of Burmah Shell Oil Storage and Distribution Co. of India Ltd. vs. Burma Shell Management Staff Assn. (1970) 3 SCC 378 at paragraph 5 therein, it has been laid down that:- “5. For an employee in an industry to be a workman under this definition, it is manifest that he must be employed to do skilled or unskilled manual work, supervisory work, technical work or clerical work. If the work done by an employee is not of such a nature, he would not be a workman. Mr. Chari on behalf of the Association, however, put forward the argument that this definition is all comprehensive and contemplates that all persons employed in an industry must necessarily fall in one or the other of the four classes mentioned above and, consequently, the Court should proceed on the assumption that every person is a workman; but he may be taken out of the definition of “workmen” under the four exceptions contained in the definition. The two exceptions with which we are primarily concerned are Exceptions (iii) and (iv). Under Exception (iii), even a workman, who is employed mainly in a managerial or administrative capacity, goes out of the definition of “workmen” while under Exception (iv), persons, who are employed in a supervisory capacity, go out of the definition, provided they either draw wages exceeding Rs. 500 per mensem or exercise, by the nature of the duties attached to the office or by reason of the powers vested in them, functions mainly of a managerial nature.” In the judgment rendered in the case of Arkal Govind Raj Rao vs. Ciba Geigy of India Ltd. Bombay, 1985 AIR (SC) 985, wherein, it has been held that focus has to be on the nature of the duties performed. 11. The same view has been reiterated in the case of S.K. Maini vs. M/s. Carona Sahu Company Limited and Others, 1994 AIR (SC) 1824. In view of the settled position of law, as laid down by the Hon’ble Apex Court, so far as it relates to the definition of “workman” the nature of duty is to be seen. In the light of the aforesaid legal position, the factual aspect in this case is with respect as to whether the respondent is a workman or not, the Tribunal has framed issue as point no. (1) as to whether the complainant is the workman under the Industrial Dispute Act, 1947. It is evident from the detailed discussion made, therein, under the heading point No. (1) that admittedly, the complainant-respondent was appointed as Assistant Grade III (D) and thereafter promoted to the post of the Assistant Grade II (D) and Assistant Grade I (D). On the date of dismissal, the complainant-Respondent was Assistant Grade III (D). It is evident from the Award, as has been annexed by the petitioner that the Assistant Grade I (D) is category III post in the Food Corporation of India and he is not having power of his own. He has to act as per order of the Area Manager. He is not having administrative, supervisory or managerial power. He cannot take independent decision. His work is to maintain daily receipt and issue register of food grain and as such, he is merely a store clerk. He has to act as per order of the Area Manager. He is not having administrative, supervisory or managerial power. He cannot take independent decision. His work is to maintain daily receipt and issue register of food grain and as such, he is merely a store clerk. In F.C.I., departmental labourers are getting salary and allowance more than one lakh per month which is almost double the salary of the workman complainant but merely getting more pay labourers shall not be treated supervisor or Manager for the reason of the nature of the work as has been laid down in catena of decisions as referred hereinabove. 12. The Tribunal after going across the order of appointment letter, issued in favour of the respondents and taking into consideration their nature of duties, which is evident under administrative authority and he cannot take any independent decision and has held the respondent as workman within the meaning of Section 2 (s) of the Industrial Disputes Act, 1947. This Court is not in disagreement with the aforesaid findings, since the Tribunal has come to the conclusive finding on the basis of the evidence and the documents produced before it and therefore, the said finding suffers from no infirmity, so far as it relates to the status of the respondent as workman. 13. The second issue is with respect to maintainability of the complaint under Section 33A of the Industrial Disputes Act. Section 33 was enacted for to adjudicate upon the complaints relating to the contravention of Section 33. This Section endeavours an employee aggrieved by such contravention, to make a complaint in writing, in the prescribed manner, to the concerned authority. This Section is attracted when the following conditions precedent are satisfied:- (i) That there should have been a contravention by the Management of the provisions of Section 33 of the Act; (ii) That the contravention should have been during the pendency of the proceedings before the Labour Court/Tribunal or National Tribunal as the case may be; (iii) That the complaint should have been aggrieved by the contravention; (iv) That the application should be to the Labour Court/Tribunal/National Tribunal in which the proceedings are pending. In a complaint to the Tribunal under Section 33 A, the basic question that falls to be considered by the competent authority is whether there has been a contravention by the employer of the provisions under Section 33 and it is only in case it is found that there has, in fact, upon such contravention that the occasion arises for the authority to embark upon an adjudication of the dispute contained in the complaint on its merit. Section 33 speaks about a condition of service etc. to remain unchanged under certain circumstances, during pendency of the proceeding, which stipulates that during the pendency of any conciliation proceedings before the conciliation officer or by 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 to be prejudiced of the workman concerned, in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings; (b) For any misconduct connected with the dispute, discharge or punishment, whether by dismissal or otherwise, any workman concerned of such dispute, save with the express permission in writing of the authority before which the proceeding is pending. In view of Section 33 read with Section 33 A, this Court is now examining the issue as to whether there is alteration in the service condition and the complaint made by the petition under Section 33 A of the Act, is maintainable. 14. Admittedly, the Respondent has been dismissed from service on the ground of misconduct, but without seeking any approval, as required under Section 33 (2) (b) of the Act, since the mandate of the law is that if a proceeding by way of reference is pending before the Tribunal to which the workman is related, the approval is required to be taken under Section 33 (2) (b) of the Act. 15. A Reference No. 138/1997 was pending for adjudication of the dispute pertaining to denial for payment of OTA at double the rate in respect of the workman, posted in Bihar region. 15. A Reference No. 138/1997 was pending for adjudication of the dispute pertaining to denial for payment of OTA at double the rate in respect of the workman, posted in Bihar region. Since the year 1984 and during relevant time, the respondents were getting OTA and therefore, the Tribunal has come to the conclusive finding that the subject matter of the Reference No. 138 of 1997 is related to the respondent also and hence, the requirement of fulfilling the condition, as stipulated under proviso to Section 33 (2) (b) is necessitated. The only ground taken by the petitioner that the respondents is not a workman, but, since it has been held hereinabove, that the respondent is a workman and he was also getting OTA during the relevant time and now the reference is for getting OTA at double the rate, there is no denial about the fact that the said subject matter of the said reference is somehow related to the respondents and, as such, the dismissal of the petitioner from service will amount to alteration in the service condition for the reason that if the petitioner would be dismissed from service, he would be denying the benefit as adjudicated in the Reference No. 138 of 1997 and therefore, the provision of Section 33 A, which confers power upon the Tribunal to restore the position of ante status quo, so that the Reference, if answered in favour of the workman to which the workman, who has been subjected to alteration in the service condition by dismissal will be entitled to get the benefit of the aforesaid adjudication of the pending Reference and i.e. the purport and intent of the provision of Section 33A. In view of such legal position, since the petitioner has been held to be workman, therefore, the requirement under Section 33A of the Act is required to be fulfilled. In view of such legal position, since the petitioner has been held to be workman, therefore, the requirement under Section 33A of the Act is required to be fulfilled. The Tribunal after taking into consideration this aspect of the matter has exercised the power conferred under Section 33A and has come to the conclusion that the provision of Section 33 (2) (b) is applicable, as has been held by the Hon’ble Apex Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Shri Ram Gopal Sharma and Others, AIR 2002 SC 643 that apart from the condition stipulated under the proviso to Section 33 (2) (b) the fairness of the enquiry and victimization is also to be seen and hence, the Tribunal has proceeded in that direction by testing the fairness of the domestic enquiry vis-a-vis, the victimization part by looking into the charge levelled under the memorandum of charge. 16. It is evident from the materials available on record that a disciplinary domestic enquiry was conducted for commission of misconduct to the effect:- “Article-I The aforesaid committee member did not submit any progress/interim/final report or intimate the factual position even after lapses of more than two months compelling the Area Manager, FCI, DO, Patna to issue another order vide no. PAT/V&S/1/2009 Dated 19.08.2009 directing the aforesaid committee members to conduct the same job as assigned by the order dated 08.06.2009. Thus, the committee members in clear disobedience to the orders of higher authority were found negligent in their duties and failed to assess the gravity of the matter and to act in the desired manner which is detrimental to the interest of the corporation. Article-II The above committee member submitted two reports dated 28.08.2009 and dated 28.10.2009 in a very casual manner without supervising the delivery of paddy and its transportation as per direction rather they acted hand in glove with the I/C PPC Dumaraon in suppressing the factual position and the very purpose of their deployment was defeated. Article-III As per record, for the aboveassigned job of supervision of delivery/shifting of paddy, Sri Devendra Prasad Singh, Manager (Stg) and Kumar Madan Mohan, Assistant Gr. I (D) stayed at PPC Dumraon for 39 days and 41 days respectively which is abnormal and beyond any justification. Article-III As per record, for the aboveassigned job of supervision of delivery/shifting of paddy, Sri Devendra Prasad Singh, Manager (Stg) and Kumar Madan Mohan, Assistant Gr. I (D) stayed at PPC Dumraon for 39 days and 41 days respectively which is abnormal and beyond any justification. Except in the committee reports there was no signature of the committee members in any other document enclosed with the reports to justify their presence in the centre from 13.06.2009 to 28.08.2009. Whereas Sri Devendra Prasad Singh, Manager (Stg) and Kumar Madan Mohan Assistant Gr. I (D) have claimed TA bills for their stay in the centre for 39 days and 41 days respectively. Sri Mishri Hembram Manager (Depot) another committee member has not claimed any TA Bill for his stay which raises doubt over his presence in the PPC, Dumraon. They have submitted false report in connivance with the I/C PPC Dumraon who could misappropriate huge food grain stocks at a later stage.” 17. The charge has been found to be proved in the domestic enquiry, but the domestic enquiry has been held to be unfair and therefore, the petitioner-Management has been allowed to lead evidence before the Tribunal to prove the charge and to that effect evidence has been led both oral and documentary and the Tribunal has taken note of the office order dated 8.6.2009, whereby and whereunder the duty has been assigned to the petitioner to supervise the delivery of procuring paddy stock, the said order contains a direction to submit a consolidated report to be sent after its liquidation of entire paddy, as lying at PPC, Dumraon. 18. The Tribunal after looking to the allegation, as levelled under Article (I) and Article-II under the memorandum of charge has found that the charge pertains to non-submission of final report, but, since in the office order dated 8.6.2009, the final report is to be submitted after liquidation of entire crop paddy, therefore, has come to the conclusive finding, that the genesis of charge is contrary to the duty assigned to the respondents vide Office Order dated 8.6.2009. For better appreciation, the office order dated 8.6.2009 is reproduced hereunder as:- “THE FOOD CORPORATION OF INDIA DISTRICT OFFICE EXHIBITION ROAD: PATNA Ref No. PAT/V&S/(1)/2009 Dated 08.06.2009 OFFICE ORDER In the light of FCI RO Patna’s order issued under Ref No. 4(1179)/2/2009 dated 03.06.2009, a squad consisting of under noted manager/officials is hereby directed in proceed to PPC, Dumraon to supervise the delivery of procured paddy stock to the millers/its transportation through the incharge PPC, Dumraon to the base depot. 1. Sri Devendra Prasad Singh, Manager (Stg), DO, FCI, Patna 2. Sri Mishri Hembram, Manager (D), FSD Dighaghat 3. Sri Kumar Madan Mohan,, AGI (Depot), DO, Patna The above squad will submit its consolidated report to the undersigned after its liquidation of entire procured paddy as lying at PPC, Dumraon. Sd/- (A. Thakur) Area Manager.” 19. It has further been considered by the Tribunal that when a direction has been issued by the competent authority for furnishing the report, which was served to the respondent- workman on 27.08.2009 and after two days, the report was on 29.08.2009 and, as such, conclusively, this has been observed in the Award that the allegation of delay on the part of complainant is found to be baseless. 20. Further consideration has been made by the Tribunal by taking an aid of the order passed in C.W.J.C. No. 2945 of 2014, which has been marked as exhibit W-18, wherein, in the similar circumstances, a Committee was constituted for specific purpose, but they have also been dismissed by the Corporation for delay of one month in submission of report and alleged conspiracy with depot incharge PPC Dumraon. Three employees were dismissed out of one directly filed a writ petition in Hon’ble Patna High Court and a complaint under ID act was filed by other two employees. The Hon’ble Patna High Court has allowed the writ petition and quashed the order of dismissal as well as the order of appellate and reviewing authority vide judgment dated 5.8.2014 and ordered his reinstatement with full back wages and other benefits. Paragraphs 13 and 14 of the aforesaid judgment has been referred in the Award and for better appreciation, the same is also being produced herein below: “13. Paragraphs 13 and 14 of the aforesaid judgment has been referred in the Award and for better appreciation, the same is also being produced herein below: “13. Misconduct has been defined by the courts to be an act of involving moral turpitude or improper or wrong or unlawful behavior which is wilful in character or a forbidden act, a transgression or established and definite rule of action or code of conduct but not mere error of judgment or carelessness or negligence in performance of the duty. It has been held that the act complained of must bear a forbidden quality character and its amit has to be construed with reference to the subject matter and the context wherein the term. Reference may be made in this regard to the Supreme Court judgments reported in State of Punjab vs. Ram Singh Ex-Constable, (1992) 4 SCC 54 , Zunjarran Bhikhaji Nagarkar vs. Union of India, (1999) 7 SCC 409 and Inspector Premchand vs. Govt. of N.C.T. of Delhi, (2007) 4 SCC 566 . 14. The charges levelled and finally sustained by the enquiry Officer, in my opinion, do not constitute misconduct against the petitioner. At the maximum it can be said to be an act of error of judgment, negligence or careless on the part of the petitioner. However, his conduct has to be assessed keeping in mind the fact that after conducting investigation as per Office order dated 08.06.2009, the competent authority was reported about the outcome of the investigation verbally, and the competent authority was satisfied with such report, which finding of the enquiry officer is not in dispute.” 21. It is further evident that the aforesaid order has been assailed by the petitioner- management in the LPA No. 1289 of 2014, where they have not succeeded against which they have preferred SLP being S.L.P. (C) No. 22573 of 2014, but the Hon’ble Apex Court has also been pleased to confirm the findings of the Hon’ble Patna High Court and remitted the case to the disciplinary authority for decision to pass any minor punishment, taking into consideration the similar nature of allegation in the aforesaid writ petition before the Hon’ble Patna High Court. The Labour Court has also considered the aforesaid aspect in the matter and considering the fact that the charge itself cannot be said to be conclusively proved in view of the office order dated 8.6.2009, and thus, comes to the conclusion that the charge itself is without any basis and hence, cannot be said to be misconduct. This Court after appreciating the findings recorded by the Tribunal, is of the view that each and every aspect of the matter has been dealt with alongwith the legal position and, as such, is of the view that if this Court will interfere in the fact finding, it will amount to acting as an appellate Court, which is not permissible under the provisions of Article 226 and 227 of the Constitution of India, as has been held in the judgment rendered by the Hon’ble Apex Court rendered. It needs to refer herein that the scope of interference of the High Court to issue writ of certiorari sitting under Article 226 of the Constitution of India is very limited, as has been discussed by Hon'ble Supreme Court in the case of Syed Yakoob vs. Radhakrishnan, 1964 AIR 477 SC wherein at paragraph no. 7 their Lordships have held as follows:- “The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised. Hari Vishnu Kamath vs. Ahmad Ishaque, 1955 (1) SCR 1104 : AIR 1955 SC 233 , Nagendra Nath vs. Commr. of Hills Division, 1958 SCR 1240 : AIR 1958 SC 398 and Kaushalya Devi vs. Bachittar Singh, AIR 1960 SC 1168 . In another judgment of Hon'ble Apex Court in the Case of Sawarn Singh vs. State of Punjab, (1976) 2 SCC 868 their Lordships while discussing the power of writ under Article 226 for issuance of writ of certiorari has been please to hold at paragraph nos.12 and 13 as under: “12. In another judgment of Hon'ble Apex Court in the Case of Sawarn Singh vs. State of Punjab, (1976) 2 SCC 868 their Lordships while discussing the power of writ under Article 226 for issuance of writ of certiorari has been please to hold at paragraph nos.12 and 13 as under: “12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate Court. As was pointed out by this Court in Syed Yakoob's case (supra). 13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice.” In another judgment rendered by Hon'ble Apex Court in the case of Pepsico India Holding (P) Ltd. vs. Krishna Kant Pandey, (2015) 4 SCC 270 their Lordships while discussing the scope of Article 226 and 227 of the Constitution of India in the matter of interference with the finding of the tribunal has been please to hold by placing reliance upon the judgment rendered in the case of Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram, (1986) 4 SCC 447 at para 17 has held as under:- “17. In case of finding of facts, the court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. In case of finding of facts, the court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of this Court in Bathutmal Raichand Oswal vs. Laxmibai R. Tarta where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and re-appreciating. Speaking for the Court, Bhagwati, J, as the learned Chief Justice then was, observed at page 1301 of the report as follows: …......power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways vs. Sukumar Mukherjee to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors. This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bose vs. Commr. of Hills Division and it was pointed out by Sinha, J. as he then was, speaking on behalf of the court in that case: It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extent to quashing an impugned order on the ground of mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeking that the tribunal functions within the limits of its authority.” 22. In view of the entirety of the facts and circumstances, this Court is not inclined to interfere with the fact finding recorded by the Tribunal, therefore, the writ petition lacks merit and accordingly, dismissed. 23. Consequently, I.A. No. 1293 of 2019 also stand disposed of.