( 1 ) THIS petition raises a question of some importance affecting the construction of section 33 (2) of the Industrial Disputes Act 1947 to be referred to be us hereinafter as the Act. The matter has been argued before us by Mr. S. D. Parekh with ability and discerment and he has made a valiant attempt to persuade us to hold that a decision of the Bombay High Court on the identical question should not be regarded by us as binding on this Court and he has taken his stand on the ground that that decision to which we shall presently turn was delivered per incuriam.

( 2 ) THE facts may be succinctly stated. The petitioners are a Limited Company which owns a factory at Jamnagar. The second respondent was in the employment of the petitioners-Company and he was charge-sheeted by the Company on 14/09/1959 and a departmental inquiry was held against him. After the inquiry the employer dismissed the second respondent from employment. At that time conciliation proceedings were pending before the first respondent. An order was passed by the employer discharging the service of the second respondent and in that order it was mentioned that the amount of one months salary had been sent by Money Order to the second respondent along with certain other amounts due to him in respect of outstanding leave. After the order of dismissal. the petitioner. Company made an application to the first respondent who is the Conciliation Officer asking for his approval in respect of the order of dismissal. The Conciliation Officer passed an order on that application on 27/01/1960 and by that order he refused to grant approval to the action taken by the petitioner-Company and rejected the application. The ground on which the application asking for approval of the dismissal was rejected was that the application had been made subsequent to the order of dismissal. In that order he has expressly referred to section 33 (2) of the Act. The petitioner Company has challenged the correctness of that order on this petition.

( 3 ) IT has been argued before us by Mr. Parekh that the Conciliation Officer has erroneously interpreted the relevant provisions of section 33 of the Act. In order to appreciate the argument it is necessary to set out here the material and relevant part of section 33. "33. Conditions of service etc. to remain uncharged under certain circumstances during pendency of proceedings :- (1) During the pendency of any conciliation proceeding before a Conciliation Officer or a Board or of any proceedings before a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute no employer shall (a) in regard to any matter connected with the dispute alter to the prejudice of the workmen concerned in such dispute the conditions of service applicable to them immediately before the commencement of such proceeding; or (b) for any misconduct connected with the dispute discharge or punish whether by dismissal or otherwise connected in such dispute save with the express permission in writings of the authority before with the proceeding is pending. (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:- (a) alter in regard to any matter not connected with the dispute the condition of service applicable to that workman immediately before the commencement of such proceeding; or (b) for any misconduct not connected with the dispute discharge or punish whether by dismissal or otherwise that workman Provided that no such workman shall be discharged or dismissed unless he has been paid wages for one month and an application has been made by the employer to the authority before which proceeding is pending for approval of the action taken by the employer. . . . . . . . . . . . . . . . . . . (6) Where an employer makes an application to a Conciliation Officer Board Labour Court Tribunal or National Tribunal und