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Vikramajit Sen, C.J.—In this Appeal the management of RPG Cables Limited Mysore (hereinafter ''Management'' for brevity) has assailed the Order dated 03.11.2011 passed by the learned Single Judge by which a certiorari to quash the Order dated 25.07.2011, passed by the Labour Court Mysore in ID. No. 154/2002 had been prayed for. The writ petition, however, came to be dismissed. Succinctly stated, the Respondent-Workman joined the service of the Appellant-Management in 1989 and very quickly became a Union/Labour Leader. On 27.09.2001 a Charge Sheet was issued alleging that the Workman frequently left the factory premises without recording requisite entries with the Security and was therefore guilty of dereliction of duty as well as misconduct. Consequent upon the Report submitted by the Enquiry Officer, the Workman was terminated from service on 29.04.2002. Prior to that Reference No. 253/2001, under 1 Section 33(2)(b) of the Industrial Dispute Act [hereinafter referred to as ''the ID Act'' for the sake of brevity] for approval of his dismissal was registered and came to be finally decided on 12.02.2008 holding that the Management had succeeded in establishing prima facie, that a proper Domestic Enquiry against the Respondent-Workman had been conducted. In view of the prima facie finding, the approval u/s 33(2)(b) of the ID Act came to be granted but even at that stage it had been clarified by the Industrial Tribunal that "it was for limited purpose of this case and without prejudice to the rights of both parties in the dispute raised by the Respondent in ID. No. 154/2002 on the file of the Labour Court Mysore." In ID. No. 154/2002 the Respondent-Workmen had challenged the termination of his employment u/s 10(4A) [applicable to the State of Karnataka] of the ID Act. The Appellant-Management contends that the conclusion arrived at in the proceedings u/s 33(2)(b) of the ID Act viz., holding that the Domestic Enquiry was conducted in accordance with law, would operate as res judicata even in the adjudication of the dispute u/s 10 (4A) of the ID Act, initiated by the Respondent-Workmen. Reliance appears to have been placed on Mysore Lamp Works Vs. State and Another, and keeping this decision in perspective the learned Single Judge has once again clarified that plea of res judicata can be agitated by the Management at the time of passing of the final award by the Labour Court, in the event, the Industrial Tribunal as well as the learned Single Judge concurrently held that the verdicts given in the proceedings u/s 33(2)(b) of the ID Act were not conclusive so far it relate to the Industrial Dispute raised by the Workman u/s 10(4A) of the ID Act.
Before the Labour Court in ID.No. 154/2002, the Management had placed reliance on Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd., Vs. Shri Ram Gopal Sharma 2002 LLR 237, which was concurrently found to be irrelevant for the contention raised on the applicability of the principles of res judicata. We may also record that the Industrial Tribunal Mysore has permitted the Management to adduce evidence prior to granting its approval u/s 33(2)(b) of the ID Act. Thereafter, a memo dated 21.09.2010 came to be filed by the Management in ID. No. 154/2002 claiming that the principles of res judicata were attracted even in the proceedings u/s 10(4A) of the ID Act. The Labour Court had formulated a preliminary issue to the following effect:
whether the order passed by the Industrial Tribunal in respect of Domestic Enquiry acts as res judicata and whether this court is precluded from considering the validity and fairness of Domestic Enquiry?
By its order dated 25.07.2011, the Labour Court held that "Order passed by the Industrial Tribunal does not act as Res Judicata while considering the validity and fairness of the Domestic Enquiry in the dispute raised by the Workmen". The Labour Court further observed that the Management had filed the Memo with an intention to drag on the proceedings and to harass the Workman. Challenging the said order dated 25.07.2011 passed by the Labour Court, the Management had preferred W.P.No. 41010/2011 which has been rejected by the impugned Order passed by the learned Single Judge who thereby affirmed the view taken by the Labour Court.
Reliance placed by the Appellant-Management on Mysore Lamp Works is wholly misplaced inasmuch as a proper perusal of the Judgment of the learned Single Judge of this Court manifestly militates against the legal proposition canvassed before us in futility. Our attention has also been drawn to the decision of the Division Bench in Management of Indian Aluminium Company Limited Vs. Sri S. Nagaiah, . Our learned brothers have referred to the decision of the Apex Court in Workmen of Motipur Sugar Factory (Private) Limited Vs. Motipur Sugar Factory, which is on a different point namely, that it is in the interest of justice to permit the management to lead evidence even in the proceedings initiated u/s 33(2)(b) of the ID Act, if it has failed to do so prior thereto. In fact their Lordships had considered it as a salutary solution to foster industrial peace, by eradicating or nullifying the use of the stratagem of repeatedly holding Domestic Enquiries as a weapon of delay. Our learned brothers had also referred to the decision of the Apex Court in Bharat Iron Works Vs. Bhagubhai Balubhai Patel and Others, , which is in similar vein i.e., if principles of natural justice are violated, the Tribunal was competent to record evidence before itself by giving an opportunity to both the Management and Workmen to produce evidence, if they chose to do so in the proceedings u/s 33(2)(b) of the ID Act. Those decisions however are not relevant for the legal nodus which has been raised before us. There can be a situation where no Enquiry or a deficient Enquiry has been conducted by the Management and in such circumstances, it has been enunciated by Apex Court, that the Management may apply for leave to lead evidence before the concerned Labour Court or Tribunal. In such an event the Management cannot rely on the Domestic Enquiry at all. (See The Lord Krishna Textile Mills Vs. Its Workmen, . But this is not the conundrum which obtains before us.
The distinction between the proceedings initiated u/s 10 and Section 33(2)(b) of the ID Act should not be lost sight of or diluted. u/s 10, a full fledged dispute has to be adjudicated upon by the Labour Court. However, in Section 33(2)(b) proceedings, only a prima facie view has to be arrived at so that approval of dismissal of the Workmen can be granted (always without prejudice to the final adjudication of the industrial dispute raised by the Workmen), in the backdrop of the necessity of conditions of service remaining unchanged/undisturbed during the pendency of any conciliation proceedings before a Conciliation Officer or a Board or an Arbitrator or a Labour Court or Tribunal or National Tribunal. The purpose of an Enquiry u/s 33(2)(b) of the ID Act is not to return a conclusive determination as to the legal propriety of a Dismissal of workmen but only for according an approval of such dismissal on adopting a prima facie view. The accent is on ensuring that no victimization occurs, and this is all the more important where the victim is a Union Leader, as in the present lis.
A consideration of Section 33(2) of the ID Act specifically arose in the case of The Lord Krishna Textile Mills Vs. Its Workmen, and at once the Apex Court was quick to bring home and demarcate the distinction in the two provisions, in the following passage:
In view of the limited nature and extent of the enquiry permissible u/s 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 enquiry whether the conditions prescribed by Section 33(2)(b) and the proviso are satisfied or not.....
x x x x
17.....It is well known that the question about the adequacy of evidence or its sufficiency or satisfactory character can be raised in a Court of facts and may fall to be considered by an appellate court which is entitled to consider facts; but these considerations are irrelevant where the jurisdiction of the Court is limited as u/s 33(2)(b)...
The question before the Hon''ble Supreme Court in Workmen of Motipur Sugar Factory (Private) Limited Vs. Motipur Sugar Factory, was formulated thus - "whether it was open to the Tribunal when there was no enquiry whatsoever by the respondent to hold an enquiry itself in to the question of go-slow?". It was that question which was answered in the affirmative by their Lordships, keeping in view of the case laws available on that date. The Court was neither concerned with nor made any obiter observations on the question whether evidence recorded by the Management, or on the asking of the Management before the Court/Tribunal seized with an application u/s 33(2)(b) would operate as res judicata for the much wider proceedings u/s 10 of the ID Act. This is also the enunciation of the law that can be found in Bharat Iron Works Vs. Bhagubhai Balubhai Patel and Others, . It is palpably clear to us that the entire case law had not been presented before our learned brothers in Nagaiah.
The fundamental distinction between Section 10 and Section 33 came up for consideration before a Division Bench of the High Court of Delhi in Delhi Transport Corporation Vs. Ram Kumar and another, . Relying on the pronouncement of the Hon''ble Supreme Court in Atherton West and Co. Ltd. Vs. Suti Mill Mazdoor Union and Others, , and Lakshmi Devi Sugar Mills Ltd. Vs. Pt. Ram Sarup, , it was held that proceeding under the two are distinct, and if approval is accorded u/s 33 it would not operate as res judicata in a Reference u/s 10. The Division Bench further took support from the opinion of the Apex Court expressed in Mckenzie and Co. Ltd. Vs. Its Workmen and Others, , to the effect that "the purpose of Section 33 of the Act is merely to give or withhold permission and not to adjudicate upon an industrial dispute, any finding u/s 33 would not operate as res judicata and bar the raising of an industrial dispute." This is also the appreciation of the law on this point by a Division Bench of the High Court of Judicature at Madras in East Asiatic Company Limited Vs. Its Workmen 1964 II LLJ 626.
For very sound reasons, the powers of the Management to dismiss workmen during the pendency of conciliation or adjudication have been statutorily regulated. Protected workmen cannot be dismissed without the express permission in writing of the concerned Authority. Similarly, for misconduct connected with a pending dispute workmen cannot be dismissed without the express permission in writing of the concerned Authority. However, for a misconduct not connected with such a dispute, the workmen can be dismissed, but the post facto approval of the concerned Authority is to be obtained subsequently. It must also be kept in perspective that Section 33 of the Act is not intended to apply in every case; it becomes operative only where a general dispute is receiving the attention of the industrial authority concerned. In the course of the disposal of applications u/s 33(2)(b) what is expected of the industrial authority is to peruse the contents of the application and the Enquiry Report and records, if any, with a view to granting or declining its approval of the dismissal order that has already been passed. The scope of the enquiry should only be what has been laid down in the Lord Krishna Mills.
In Mckenzie and Co. Ltd. Vs. Its Workmen and Others, it has been explicitly clarified by the Hon''ble Supreme Court that "the purpose of Section 33 of the Act is merely to give or withhold permission and not to adjudicate upon an industrial dispute, any finding u/s 33 would not operate as res judicata and bar the raising of an industrial dispute...." In this conspectus of the law and on the analysis of pronouncements of the Hon''ble Supreme Court, it is clear to us that the learned Single Judge as also the Labour Court had correctly concluded that the principles of res judicata have no part to play in the adjudication of an Industrial Dispute u/s 10 of the ID Act. Having said so, we are of the firm conviction that the question of relevance of the principles of res judicata in arriving at a decision in the proceedings initiated by the Workmen u/s 10 of the ID Act need not even be considered as preliminary issue. While dismissing the appeal, we direct the Labour Court to proceed and conclude the dispute as expeditiously as possible, on the basis of the evidence available on its records.
The Appeal is dismissed with costs of Rs. 25,000/- to be paid to the Respondent-Workmen within four weeks from today.