ORDER : 1. The question before the Court is: "Whether the finding recorded by the Authority in a proceeding under Section 33(2)(b) of the Industrial Disputes Act, 1947, on the issue “whether the domestic enquiry was fair and proper” operates as Res Judicata, in the subsequent proceeding before the Labour Court, challenging the penalty of dismissal.” 2. The Labour Court has held that the finding in a proceeding under Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short 'Act, 1947') in so far as it relates to the finding on the issue whether the domestic enquiry was fair and proper, operates as Res Judicata in a proceeding initiated by the Union challenging the order of dismissal. 3. The Union/Petitioner representing three workmen, being aggrieved by the aforementioned order, is before this Court. 4. Three members of the petitioner-Union, namely K.Muniyappa, K. Chandrashekar and G. Krishnamurthy, were dismissed from service on 01.10.2002, 05.06.2002 and 13.10.2000, respectively. The Management invoked Section 33(2)(b) of the Act, 1947, seeking approval for a penalty of dismissal. In the said proceeding, workmen took a stand that the domestic enquiry was not fair and proper. Evidence was led on the issue relating to the fairness of the domestic enquiry. The Labour Court, on appreciation of evidence led before it by both sides, held that the domestic enquiry was fair and proper. Consequently, accorded approval for dismissal. 5. The Union later raised a dispute challenging the penalty of dismissal. Union contended that the domestic enquiry was not fair and proper. The Management urged that in a proceeding under Section 33(2)(b) of the Act, 1947, it has already been held that the domestic enquiry was fair and proper and the said finding operates as Res judicata and cannot be agitated again, in a proceeding challenging penalty of dismissal of service. 6. The Labour Court accepted the Management’s plea and declined to reconsider the said issue, holding that it operates as Res judicata. Hence, the present petition by the Union. 7. Learned counsel appearing for the petitioner would contend that the approval granted under Section 33(2)(b) of the Act, 1947, is not preceded by adjudication. It is only a tentative view on the domestic enquiry, for the purpose of lifting the ban to impose a penalty, and the validity of the domestic enquiry can be questioned in the dispute under Section 10 of the Act, 1947. It is only a tentative view on the domestic enquiry, for the purpose of lifting the ban to impose a penalty, and the validity of the domestic enquiry can be questioned in the dispute under Section 10 of the Act, 1947. It is urged that the Authority under Section 33(2)(b) has no jurisdiction to adjudicate on the fairness of the domestic enquiry. Thus, the issue on the fairness of the domestic enquiry does not operate as Res judicata. 8. In support of his contention, learned counsel for the petitioner would place reliance on the judgment of the Apex Court in M/s. G. Mckenzie and Co. Ltd. Vs. Its Workmen and others , AIR 1959 SC 389 and also the judgment of the Division Bench of this Court in RPG Cables Limited Vs. G.M. Kulkarni , W.A. No. 600/2012. 9. Learned counsel would further submit that the Labour Court committed an error in referring to the judgment in Chairman and Managing Director, The Fertilisers and Chemicals Travancore Ltd. and Others Vs. General Secretary FACT Employees Association and others , AIR 2019 SC 1870 though said judgment is not delivered in the context of Section 33(2)(b). 10. Learned counsel for the respondent submits that the Labour Court has rightly held that the issue is hit by the principle of Res judicata by following the judgment of the Division Bench of this Court in Management of M/s Indian Aluminium Co. Ltd Vs. S. Nagaiah, ILR 2009 KAR 1902 . Learned counsel would further submit that the law laid down in Nagaiah supra was doubted by another Division Bench in RPG Cables supra and now, the controversy is settled by the Apex Court in Rajasthan State Road Transport Corporation vs. Bharat Singh Jala, (2023) III LLJ 519 SC. 11. This Court has considered the contentions urged at the bar and perused the materials on record. 12. The doctrine of Res judicata as a principle would also apply to proceedings under the Industrial Disputes Act, 1947 is well settled and not disputed. To apply the principle of Res judicata contained in Section 11 of the Code of Civil Procedure, in the context of the present case, the Management has to satisfy the following: a. The authority under Section 33(2)(b) of the Act, 1947 has the jurisdiction to adjudicate the issue relating to the fairness of the domestic enquiry. To apply the principle of Res judicata contained in Section 11 of the Code of Civil Procedure, in the context of the present case, the Management has to satisfy the following: a. The authority under Section 33(2)(b) of the Act, 1947 has the jurisdiction to adjudicate the issue relating to the fairness of the domestic enquiry. b. The issue relating to the fairness of the domestic enquiry decided earlier has attained finality. 13. There is no dispute that the said issue is considered in a proceeding under Section 33(2)(b) of the Act, 1947. The Union contends that the said issue is not adjudicated and there is only a prima facie consideration of the point, while deciding the application under Section 33(2)(b) of the Act, 1947. 14. Section 33(2)(b) of the Act, 1947 reads as under: " 33. Conditions of service, etc. to remain unchanged under certain circumstances during the pendency of proceedings.- (1) xxxx (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the 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) xxxx (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. (Emphasis supplied) 15. Scope of Section 33(2)(b) is considered by the Apex Court in Lord Krishna Textile Mills vs. Workmen , AIR 1961 SC 860 . The relevant portion of paragraphs No.16 and 17 is as under: " 16. In view of the limited nature and extent of the enquiry permissible under Section 33(2)(b), all that the authority can do in dealing with an employer's application is to consider whether a prima facie case for according approval is made out by him or not. The relevant portion of paragraphs No.16 and 17 is as under: " 16. In view of the limited nature and extent of the enquiry permissible under Section 33(2)(b), all that the authority can do in dealing with an employer's application is to consider whether a prima facie case for according approval is made out by him or not. If before dismissing an employee, the employer has held a proper domestic enquiry and has proceeded to pass the impugned order as a result of the said enquiry, all that the authority can do is to enquire whether the conditions prescribed by Section 33(2)(b) and the proviso are satisfied or not. Do the standing orders justify the order of dismissal? Has an enquiry been held as provided by the standing order? Have the wages for the month been paid as required by the proviso? and, has an application been made as prescribed by the proviso? xxx 17. It has been urged before us by the appellant that in holding the present enquiry, the Tribunal has assumed powers of an appellate court which is entitled to go into all questions of fact; this criticism seems to us to be fully justified. One has merely to read the order to be satisfied that the Tribunal has exceeded its jurisdiction in attempting to enquire if the conclusions of fact recorded in the enquiry were justified on the merits. It did not hold that the enquiry was defective or the requirements of natural justice had not been satisfied in any manner. xxxxxxxxx" (Emphasis Supplied) 16. In the aforementioned paragraphs, the Apex Court has held that “ If before dismissing an employee the employer has held a proper domestic enquiry and has proceeded to pass the impugned order as a result of the said enquiry, ” the authority has to satisfy that further requirements of Section 33(2)(b) of the Act, 1947 are satisfied. In other words, before embarking on the question as to whether the further requirements of Section 33(2)(b) of the Act, 1947 are complied or not, the Authority has to consider the question whether the domestic enquiry is fair and proper. Thus, it logically flows that to consider the compliance of Section 33(2)(b), the Authority under Section 33(2)(b) should also satisfy itself that the domestic enquiry is fair and proper. 17. Thus, it logically flows that to consider the compliance of Section 33(2)(b), the Authority under Section 33(2)(b) should also satisfy itself that the domestic enquiry is fair and proper. 17. The Union has placed its reliance on the judgment of the Apex Court in M/s. G. Mckenzie supra and also the judgment of the Division Bench of this Court in RPG Cables Limited supra. 18. In M/s. G. Mckenzie supra in a proceeding under Section 33(2)(b) of the Act, 1947, the approval for dismissal was rejected on the premise that the disciplinary enquiry was not proper. The Management initiated fresh disciplinary enquiry and again imposed a penalty of dismissal. In this context, the Apex Court has held that the proceeding under Section 33(2)(b) has a limited scope and a second disciplinary proceeding is not hit by the principle of Res judicata. 19. At this juncture, it is necessary to quote the relevant observations of the Apex Court in paragraph No.16 of M/s. G. Mckenzie supra "16. As to the applicability of the principle of res judicata the argument raised by counsel for respondents was that the findings of the State Industrial Tribunal in proceedings under Section 33 of the Act which were confirmed by the Labour Appellate Tribunal barred the right of the management of the appellant Company to start a fresh enquiry in respect of the same incident which formed the subject-matter of the previous enquiry. There is no force in this contention, which seems to be based on a misapprehension as to the nature and scope of proceedings under Section 33. That Section does not confer any jurisdiction on a tribunal to adjudicate on a dispute, but it merely empowers the Tribunal to give or withhold permission to the employer during the pendency of an industrial dispute to discharge or punish a workman concerned in the industrial dispute. And in deciding whether permission should or should not be given, the Industrial Tribunal is not to act as a reviewing tribunal against the decision of the management but to see that before it lifts the ban against the discharge or punishment of the workmen the employer makes out a prima facie case . The object of the Section is to protect the workmen in pending industrial disputes against intimidation or victimization. The object of the Section is to protect the workmen in pending industrial disputes against intimidation or victimization. As said above principles governing the giving of permission in such cases are that the employer is not acting mala fide, is not resorting to any unfair labour practice, intimidation or victimisation and there is no basic error or contravention of the principles of natural justice. Therefore when the Tribunal gives or refuses permission it is not adjudicating an industrial dispute, its function is to prevent victimisation of a workman for having raised an industrial dispute. xxxx" (Emphasis supplied) 20. On a reading of the aforementioned paragraph, it is evident that the Apex Court has held that the authority under Section 33(2)(b) of the Act, 1947 has no jurisdiction to adjudicate the dispute. One has to notice the context in which such an observation is made. It is made in the context of the contention that the finding on the proof of charges recorded in a proceeding under Section 33 of the Act, 1947. The said observations are not made on the findings as to the fairness of the disciplinary enquiry. Thus, said judgment in M/s. G. McKenzie supra cannot be construed as having held that the Authority acting under Section 33 of the Act, 1947, has no jurisdiction to adjudicate on the question whether the domestic enquiry was fair and proper. 21. The scope of Section 33(2)(b) of the Act, 1947, is also considered in Punjab National Bank Ltd. vs All India Punjab National Bank Employees Federation , AIR 1960 SC 160 . Paragraph No.24 of the said judgment reads as under:- " 24. Where an application is made by the employer for the requisite permission under Section 33, the jurisdiction of the tribunal in dealing with such an application is limited. It has to consider whether a prima facie case has been made out by the employer for the dismissal of the employee in question . If the employer has held a proper enquiry into the alleged misconduct of the employee, and if it does not appear that the proposed dismissal of the employee amounts to victimisation or an unfair labour practice, the tribunal has to limit its enquiry only to the question as to whether a prima facie case has been made out or not . In these proceedings, it is not open to the tribunal to consider whether the order proposed to be passed by the employer is proper or adequate or whether it errs on the side of excessive severity; nor can the tribunal grant permission, subject to certain conditions, which it may deem to be fair. It has merely to consider the prima facie aspect of the matter and either grant the permission or refuse it according as it holds that a prima facie case is or is not made out by the employer." (Emphasis supplied) 22. What emerges from the above extracted paragraph is that the Authority, while deciding the application under Section 33(2)(b), has no jurisdiction to adjudicate on the merits of the finding in the disciplinary proceeding. However, the Authority, before granting or refusing approval, has to record a finding as to whether:- (a) the employer has acted malafide. (b) has resorted to any unfair labour practice. (c) violated any basic principles of natural justice, and whether the enquiry is fair and proper. (d) the enquiry conforms with the binding Standing Orders. (e) Wages are paid as required under the proviso to Section 33(2)(b). 23. In view of the law declared in Punjab National Bank Ltd. supra, on considering the above aspects, the authority may pass appropriate orders on the application. Thus, the order on the fairness of the domestic enquiry in a proceeding under Section 33 of the Act, 1947, is not an empty formality. It involves an adjudication on the aspects referred to above. And the Authority is vested with the jurisdiction to decide those aspects. Thus, this Court is of the view that the question “whether domestic enquiry was fair and proper? ” if raised in an application under Section 33(2)(b) of the Act, 1947, and if the finding on such an application is recorded after full fledged enquiry, such finding is not just a prima facie finding on the said question as to the fairness and validity of the domestic enquiry and it is a finding on adjudication which attains finality if not questioned, and cannot be re-agitated in subsequent proceedings between the same parties. 24. 24. In the Rajasthan State Road Transport supra relied on by the management, on an application under Section 33(2)(b) of the Act, 1947, the employer sought approval for the penalty of dismissal, the Tribunal held that enquiry was bad and the permitted both parties to lead evidence. Thereafter, the application under Section 33(2)(b) of the Act, 1947 was allowed, and approval was granted to the order of termination. The workman raised the industrial dispute challenging the order of termination. The Labour Court accepted the challenge, and the order of termination was set aside. The Labour Court’s award was upheld by the High Court, in Writ Petition as well as Writ Appeal. The Apex Court held that once an elaborate enquiry was held under Section 33(2)(b) of the Act, 1947, further challenge to the order is not permissible. 25. This Court is of the view that it was a case where the Authority under Section 33 of the Act, 1947, held that the domestic enquiry was bad and a fresh enquiry was held before the Tribunal. Based on fresh enquiry before the Tribunal, the issues relating to the fairness of the domestic enquiry and the merit of the charges were adjudicated. However, in the case on hand, the enquiry was held to be valid, and later the order on termination was approved. There is no adjudication on the merits of the charges when the issue relating to the fairness of the enquiry was considered. Thus, the said judgment does not apply to the fact situation. 26. Learned Counsel for Union has relied on the judgments of the Division Bench of this Court in The Management of M/s Amalgamated Electric Company Ltd. vs. Workmen , 1975 Lab IC 879 and RPG Cables supra to contend that under Section 33(2)(b), there is no jurisdiction to adjudicate the dispute. 27. In The Management of M/s Amalgamated Electric Company and RPG Cables supra, the Division Bench of this Court has referred to the judgment in Punjab National Bank Ltd. supra, and this Court has already discussed the said judgment. This Court is of the view that the judgment in Punjab National Bank Ltd. supra does not lay down a law, that a finding under Section 33(2)(b) of the Act, 1947, holding the domestic enquiry as fair and proper, (that too after recording evidence in Section 33(2)(b) proceeding), can be re- agitated in an Industrial dispute. This Court is of the view that the judgment in Punjab National Bank Ltd. supra does not lay down a law, that a finding under Section 33(2)(b) of the Act, 1947, holding the domestic enquiry as fair and proper, (that too after recording evidence in Section 33(2)(b) proceeding), can be re- agitated in an Industrial dispute. 28. Moreover, it is not forthcoming from the facts in The Management of M/s Amalgamated Electric Company supra as to whether any evidence was recorded by the parties on an application under Section 33(2)(b). 29. In RPG Cables supra, the law declared in Punjab National Bank Ltd. supra is not noted. 30. More than anything else, paragraph No.19 of the judgment of the Apex Court in Lakshmidevi Sugar Mills vs PT. Ram Sarup and others , AIR 1957 SC 82 (4 Judges bench) dealt with Section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950 which in substance is pari materia with Section 33 of the Act, 1947 when it comes to nature of enquiry is not brought to the notice of the Division Bench of this Court. The relevant portion of paragraph No.19 reads as under: "The scope of the enquiry before the Labour Appellate Tribunal under Section 22 of the Act has been the subject-matter of decisions by this Court in Atherton West & Co. Ltd. v. Suti Mill Mazdoor Union, (1953) 1 SCC 438 : (1953) SCR 780 and Automobile Products of India Ltd. v. Rukmaji Bala, (1955) 1 SCR 1241 . The Tribunal before whom an application is made under that section has not to adjudicate upon any industrial dispute arising between the employer and the workman but has only got to consider whether the ban which is imposed on the employer in the matter of altering the conditions of employment to the prejudice of the workman or his discharge or punishment whether by dismissal or otherwise during the pendency of the proceedings therein referred to should be lifted . A prima facie case has to be made out by the employer for the lifting of such a ban, and the only jurisdiction which the Tribunal has is either to give such permission or to refuse it, provided the employer is not acting mala fide or is not resorting to any unfair practice or victimisation . A prima facie case has to be made out by the employer for the lifting of such a ban, and the only jurisdiction which the Tribunal has is either to give such permission or to refuse it, provided the employer is not acting mala fide or is not resorting to any unfair practice or victimisation . xxxxxx If on the materials before it the Tribunal came to the conclusion that a fair enquiry was held by the management in the circumstances of the case and it had bona fide come to the conclusion that the workman was guilty of misconduct with which he had been charged a prima facie case would be made out by the employer and the Tribunal would under these circumstances be bound to give the requisite permission to the employer to deal out the punishment to the workman. xxxx. If the punishment was harsh or excessive or was not such as should be dealt out by the employer having regard to all the circumstances of the case the dealing out of such punishment by the employer to the workman after such permission was granted would be the subject-matter of an industrial dispute to be raised by the workman and to be dealt with as aforesaid. The Tribunal, however, would have no jurisdiction to go into that question, and the only function of the Tribunal under Section 22 of the Act would be to either grant the permission or to refuse it. xxxxx (Emphasis supplied) 31. The aforementioned paragraph would lead to the inevitable conclusion that while exercising jurisdiction under Section 22 of the Industrial Disputes (Appellate Tribunal Act), 1950 which is similar to Section 33 of Act, 1947 when it comes to the nature of enquiry, the authority has to consider whether the domestic enquiry was fair and proper and then, has to proceed to decide as to whether approval sought is to be granted or not by considering other requirements. This being the position, the jurisdiction of the authority under Section 33 of the Act, 1947, is adjudicatory on the question whether the domestic enquiry is fair and proper. Though the judgment in Lakshmidevi Sugar Mills supra is quoted in RPG Cables supra, it appears paragraphs extracted above are not brought to the notice of the Division Bench of this Court. 32. Though the judgment in Lakshmidevi Sugar Mills supra is quoted in RPG Cables supra, it appears paragraphs extracted above are not brought to the notice of the Division Bench of this Court. 32. While dealing with an application under Section 33(2)(b) of Act, 1947 if the authority gives a finding and holds that the enquiry was not fair and proper and thereafter permits the parties to lead evidence afresh on the charges levelled, then in such situation the defect in enquiry gets cured. In such an event, in a subsequent proceeding under Section 10 of the Act, 1947, there cannot be any further enquiry relating to the fairness of the disciplinary enquiry. 33. Though judgments in M/s. G. McKenzie and Punjab National Bank Ltd. supra at the first glance indicate that the jurisdiction under Section 33(2)(b) of the Act, 1947 is limited to consider prima facie aspects and not adjudicatory, on consideration of the factual background in which those judgments are rendered one cannot but conclude that jurisdiction exercised while refusing or granting approval under Section 33(2)(b) of the Act, 1947, is adjudicatory on few aspects namely "Whether the domestic enquiry is fair and proper, which in its fold may include few aspects like, compliance of principles of natural justice, compliance of requirements of the Standing Orders governing domestic enquiry or compliance of any other binding contract of employment, payment of wages as provided under Section 33(2)(b)?" 34. After considering the above aspects, if the Authority takes a final call approving the punishment imposed, then the order granting approval for the punishment is neither an adjudication on the merits of the finding in the domestic enquiry nor on the proportionality of the punishment . It is in this context, it has been held that the scope of enquiry under Section 33(2)(b) is limited to lifting the ban on the punishment. 35. The interpretation that the scope of enquiry under Section 33(2)(b) is limited cannot be stretched to contend that the finding as to whether the domestic enquiry was fair and proper is not on adjudication. For the reasons recorded above, this Court holds that the finding on the issue relating to fairness of domestic enquiry is adjudicatory . And said question cannot be revisited in an industrial dispute challenging the penalty. 36. For the reasons recorded above, this Court holds that the finding on the issue relating to fairness of domestic enquiry is adjudicatory . And said question cannot be revisited in an industrial dispute challenging the penalty. 36. In the case on hand, the Court has secured the records pertaining to the proceeding under Section 33(2)(b) of the Act, 1947 and after going through the said records, it is noticed that the parties have led evidence on the issue relating to the fairness of the domestic enquiry. Later, the finding is recorded holding that the enquiry was fair and proper, and approval is granted for dismissal of the employee. 37. Conclusions: (a) The enquiry under Section 33(2)(b) of the Industrial Disputes Act, 1947, as to whether the domestic enquiry was fair and proper, is adjudicatory. (b) The enquiry under Section 33(2)(b) of the Act, 1947 as to whether domestic enquiry was fair and proper (rendered after recording of evidence before the authority) is binding on the parties to the proceeding as the authority has the jurisdiction to adjudicate on the fairness of the domestic enquiry and said finding cannot be re-agitated in a subsequent industrial dispute assailing the order of penalty as it operates as Res judicata between the same parties in a subsequent proceeding. (c) The Authority under Section 33(2)(b) of the Industrial Disputes Act, 1947 cannot adjudicate on the merits of the finding in the domestic enquiry or on the penalty, as it has no jurisdiction to adjudicate on the merits of the findings in a domestic enquiry. Those questions have to be adjudicated in a subsequent industrial dispute, if raised. 38. It is stated that one of the dismissed workmen, namely Sri K. Muniyappa, is no more. Since Union is representing the workmen, in case the award is passed by the Labour Court in favour of the workmen, the benefit flowing from the award shall accrue to the legal representatives of the deceased workman-K. Muniyappa. 39. Hence, the following: ORDER: (i) Writ Petition is dismissed. (ii) The matter is remitted to the Labour Court to consider the challenge to the merits of the finding of the disciplinary enquiry as well as the penalty imposed. (iii) Parties shall appear before the Labour Court on 21.07.2025 without waiting for any notice. (iv) The records secured shall be sent back.