JUDGMENT : 1. The present petition under Article 226/227 of the Constitution of India is filed by the petitioner by challenging the illegality, validity and propriety of the order dated 30.03.2022 passed by the learned Labour Court No.2, Vadodara in Approval Application No.5 of 2012 which is preferred by the present petitioner under Section 33(2) of the Industrial Disputes Act, 1947, seeking approval of dismissal of respondent workman after holding detailed departmental enquiry against him. 2.1 Brief facts of the case are as such that the petitioner is a company registered under the Companies Act, 1956 originally established as Gordhandas Desai Private Limited and subsequently changed name to G. D. Lab Solutions Private Limited, and now it is known as G.D. Waldner India Pvt. Ltd effective from 16th July 2021, upon received approval from the concerned authorities. 2.2 It is the case of the petitioner that the company is engaged in the work of Manufacturing of Laboratory Scientific Equipment, Laboratory Furniture and Turnkey Projects for the same. The respondent workman along with other workmen of the Company placed a charter of demand through their Trade Union for enhancement of Dearness Allowance and other allowances for the period between 2011-2014 in view of the period of earlier settlement under Section 18(1) and Section 2(P) got over on 31.03.2011. Upon failure of conciliation proceedings on demand matter, the charter of demand placed by the workmen of the Company was referred to the learned Labour Court, Vadodara for adjudication of dispute, which was numbered as Demand Reference No.31 of 2012. Pending the above reference case, having found the respondent workman indulged into gross irregularities and misconduct including illegal strike, was placed under suspension on 21.03.2012 which was followed by issuance of charge sheet on 26.03.2012. The inquiry proceedings is commenced and the workman was allowed to represent his case through his lawyer. After enquiry proceedings, the workman was found guilty of the charges levelled against him by the Inquiry Officer as reported dated 06.08.2012, hence, prior to imposition of punishment, show cause notice was issued on 09.08.2012, which was replied by the workman on 17.08.2012. 2.3 The company has considered the seriousness of the charges of the respondent workman decided to terminate the workman from service from 26.03.2012 w.e.f. the date of suspension vide letter dated 07.09.2012. 2.3 The company has considered the seriousness of the charges of the respondent workman decided to terminate the workman from service from 26.03.2012 w.e.f. the date of suspension vide letter dated 07.09.2012. While terminating respondent workman from the service, he was given the one month’s notice pay and other terminal dues towards final settlement by the petitioner. 2.4 Thereafter, the company has preferred an Approval Application under Section 33(2) of the Industrial Dispute Act and Rule 63(2) of the Industrial Disputes (Gujarat) Rules, 1966 seeking approval of the Ld. Labour Court, Vadodara, as main Demand Reference No.31 of 2012 is pending. The said application is opposed by respondent submitting his reply dated 15.10.2013. On 15.04.2014, the respondent workman has filed an application praying for rejection of Company’s Approval Application at preliminary stage. That application of workman was responded by the petitioner Company on 24.06.2014. The said application came to be disposed of on 17.07.2017 as same was not pressed by the workman. The learned Labour Court recorded examination-in-chief of Officer of Company on 26.03.2018 and cross examination was done on 27.08.2018 and thereafter, both the parties have submitted their written submissions in support of their cases. The learned Labour Court No.2, Vadodara has passed order on 30.03.2022 rejecting the Approval Application No.5 of 2012 of petitioner Company. 2.5 Thereafter, the petitioner has preferred the present petition challenging the order passed by the learned Labour Court. 3. At the consent of learned advocates for the respective parties, today, the matter is heard for final disposal. 4.1 Learned advocate Mr. Hriday Buch for the petitioner - Company has submitted that the impugned order passed by the learned Labour Court is totally erroneous, improper and against the settled position of law. 4.2 He has further submitted that the learned Labour Court has committed gross error in not considering the fact that the issue involved in the main Reference i.e. Demand Reference No.31 of 2012 was totally different than the issue in the Approval Application. 4.2 He has further submitted that the learned Labour Court has committed gross error in not considering the fact that the issue involved in the main Reference i.e. Demand Reference No.31 of 2012 was totally different than the issue in the Approval Application. The issue in main Reference was related to enhancement of DA and other dues, whereas, approval application was filed seeking approval of dismissal of respondent - workman as a part of disciplinary action after holding departmental proceedings, hence, dismissal, being an independent and different issue, can never be termed as ‘related issue’ to the dispute pending for adjudication in main proceeding, and therefore, the learned Labour Court has arrived at a wrong conclusion, which is contrary to the provision made in the Industrial Disputes Act. 4.3 He has further submitted that the learned Labour Court has failed to appreciate the fact that while dismissing the respondent workman from service, all his legal dues were paid to him on the very same day, and therefore, mere filing of an application for seeking approval after delay of one month and two days would not jeopardize the right of an employer to dismiss an employee on his guilty. 4.4 He has further submitted that the learned Labour Court has rightly observed in the impugned order that the three acts - dismissal, payment of full and final settlement amount and filing of approval application are to be done simultaneously on the same day. He has submitted that in fact, the Hon’ble Apex Court has categorically held that employer must take action simultaneously or immediately, however, it does not liberally mean to be done simultaneously but can only be done one after the other and if those are parts of the same transaction then the application for approval filed under Section 33(2)(b) can be said to be validly commenced. This case law though relied upon and referred by the petitioner but it was not even mentioned by the learned Labour Court in the impugned judgment. 4.5 He has further drawn the attention of this Court towards judgment of Hon’ble Apex Court in the case of Straw Board Manufacturing Co., Ltd., Saharanpur Versus Govind reported in AIR 1962 SC 1500 and has has relied upon the paragraph 5 of that judgment, which reads as under:- “5. The next question is as to when should an application be made. The next question is as to when should an application be made. In this connection our attention was drawn to s. 33-A of the Act which gives a right to the employer to apply for redress in case an employer contravenes the provision of s. 33 and there is no doubt that the proviso to s. 33 (2), (b) should be so interpreted as not to whittle down the protection provided by s. 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 s. 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 s. 33-A would be affected. The ques- tion 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.” 4.6 He has further submitted that the same view is reiterated by the Hon’ble Apex Court in the case of Calcutta State Transport Corporation Versus Md. Noor Alam reported in (1974) 3 SCC 70 , he has relied upon para 4 of that judgment and has submitted that each case must be decided on its own facts, and therefore, he has submitted that there cannot be any hard and fast rule that all the three things should be done simultaneously on the same date but in the present case, when the approval application is filed, the other two acts are done on the same day and only the approval application is filed after one month and two days after termination and it cannot be said that there is gross delay or unreasonable delay and considering the totality of the circumstances and considering the provisions of Section 33(2) of the Industrial Disputes Act, the present petition deserves to be allowed. 5.1 Per contra, learned advocate Mr. Krishnan M. Ghavariya appearing for learned advocate Mr. Bhavesh D. Hajare for the respondent has opposed the contentions raised by learned advocate for the petitioner and has referred his affidavit-in-reply, wherein he has stated that though the two out of three acts done on the same day and application for seeking approval is filed after much delay of one month and two days, which cannot be considered as the act is done simultaneously, and therefore, in view of the judgment of the Hon’ble Apex Court and even the application for approval cannot be considered to be filed immediately after dismissal, and therefore, the three conditions are not properly satisfied in the facts of the present case. 5.2 He has relied upon the decision of this Court in the case of Manavadar Nagarpalika Through Chief Officer Versus Vijay Vinubhai Rathod rendered in Special Civil Application No.15113 of 2019 and allied matter dated 06.09.2019, and has submitted that when the Reference is pending, the workman can invoke the provisions of Section 33(a) of the I.D. Act, which he has already invoked but the learned Labour Court has rejected the same. He has filed separate petition but considering the very fact that the Reference, which was substantially raised by the workman, is pending, such termination cannot be considered as legal and valid, and therefore, he has prayed to dismiss the present petition. 6.1 I have heard the learned advocates appearing for the respective parties. I have perused the record and proceedings. I have also perused the affidavit-in-reply filed by the respective respondents. 6.1 I have heard the learned advocates appearing for the respective parties. I have perused the record and proceedings. I have also perused the affidavit-in-reply filed by the respective respondents. 6.2 The main controversy reveals around the three acts on the same day, which are required to be done at the time of filing of approval application as per Section 33(2) (b) of the Industrial Disputes Act and the three acts i.e. (i) dismissal/discharge, (ii) payment of full and final settlement amount and (iii) filing of approval application, to be part of same transaction. 6.3 The learned Labour Court has rejected the application filed by the present petitioner for approval mainly on the ground that such application is not filed simultaneously on the same day but it is filed after the delay of one month and 2 days after dismissal of the respondent as well as payment of full and final settlement “payment of wages”. The first two acts are happened on 07.09.2012 and approval application is filed on 09.10.2012 and this aspect is considered by the learned Labour Court by relying on Section 101 of the Indian Evidence Act, 1872 by saying that such three aspects are not fully satisfied by the present petitioner, and therefore, the approval application is dismissed. 6.4 In my view, this breach of learned Labour Court is very hyper technical and there no dispute about the fact that there is delay of one month and two days after the filing of approval application after dismissal of workman, however, two acts were satisfied on the very day and the third act, which is approval application, is satisfied with later but not to be considered that it is filed after much period of delay in the facts and circumstances of the present case. Delay of one month and two days in filing of approval application is certainly not causing any prejudice to the right of any party. The petitioner may not get any benefit for causing such delay and moreover, in view of the judgments in the cases of (i) Straw Board Manufacturing Co., Ltd., Saharanpur (supra), (ii) Calcutta State Transport Corporation (supra) and para 4 is relevant, which reads as under:- “4. It has been argued before us and rightly that the Labour Court wholly misunderstood the true position both on facts and in law. It has been argued before us and rightly that the Labour Court wholly misunderstood the true position both on facts and in law. Firstly the order of removal was merely recorded on the official file on May 18, 1967 and it was to be effective only from July 1, 1967. Before that period it was open to the competent authority to withdraw the order. Therefore the (late of dismissal of the workman could only be July 1, 1967 and not any prior date on which the order was recorded on the file. The wages were also received by the workman i.e. the respondent on the same date which was a Saturday. It was wholly immaterial when the Money Order was sent. The application was filed for approval on July 3, 1967 which was a Monday. It is obvious that no application could have been filed on a Sunday which was a holiday. The proviso to s. 33(2) (b) contemplates three things; (i) dismissal or discharge; (ii) payment of wages and (iii) making of an application for approval to be simultaneous and to be part of the same transaction. The object is that when the employer takes action under s. 33(2)(b) by dismissing or discharging an employee he should immediately make payment to him or offer payment of wages for one month and also make an application to the Tribunal or the Labour Court, as the case may be, for approval. The employer's conduct should show that the three things contemplated under the proviso are parts of the same transaction. [See Strawboard Manufacturing Co. v. Govind(1)]. In P. H. Kalyani v. M/s. Air France, Calcutta (2) the order of dismissal was passed on May 28, 1960 and was communicated to the employee on May 30, 1960. The wages were offered to him at the same time when the order was communicated. An application was made under s. 3 3 (2) (b) on the same day. It was held that the application was in accordance with the proviso to s. 3 3 (2) (b) This decision shows that similar action has to be taken in these matters but that does not mean that all the three things mentioned before should be done on the same day. It was held that the application was in accordance with the proviso to s. 3 3 (2) (b) This decision shows that similar action has to be taken in these matters but that does not mean that all the three things mentioned before should be done on the same day. It is the conduct of the employer that has to be considered from the point of view of finding out whether the dismissal or discharge, payment of wages and making of the application for approval form a part of the same transaction. A difference of a day in doing one thing or the other may not be of material consequence so long as it is clear that the employer meant to do all the three things as part of one and the same transaction. No hard and fast rule can be laid down in these matters. Each case must be decided on its own facts.” And also the judgment of this Court cited by the respondent in the case of Manavadar Nagarpalika Through Chief Officer (supra), the fact remains that even Hon’ble Apex Court has also considered this aspect by observing that “a difference of a day in doing one thing or other thing may not be of material consequence so long as it is clear that the employer meant to do all the three things as a part of one and same transaction. No hard and fast rule can be laid down in these matters. No hard and fast rule can be laid down in these matters. Each case must be decided on its own facts.” Therefore, in my opinion, in view of the above settled position of law and in the facts of the present case, when the employer has acted in pursuant to the same transaction, the delay of one month and two days in filing the approval application should not be considered as fatal but it should be considered in compliance of Section 33(2)(b) of the Industrial Disputes Act, which reads as under:- Section 33(2)(b) in The Industrial Disputes Act, 1947:- “(b) for any misconduct not connected with the dispute, or 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.” 6.5 In view of above discussion, I am of the considered opinion that the present petition deserves to be allowed. The impugned order dated 30.03.2022 passed by the learned Labour Court No.2, Vadodara in Approval Application No.5 of 2012 is hereby quashed and set aside with a further direction to allow the approval application, as prayed for. 7. With the above observation, the present petition is allowed.