This batch of writ petitions has been filed against common Award dated 12.08.2013. All the cases arise out of the complaints filed under Section 33A of the Industrial Disputes Act, 1947. Considering the common question of law involved in the writ petitions, the learned counsel for the parties advanced arguments referring to the facts in W.P.(L) No. 2032 of 2014.

2. Heard the learned counsel for the parties and perused the documents on record.

3. Referring to the stand taken by the Management that the concerned workmen were not involved in dispute pending adjudication at the time when the order of dismissal was passed, Mr. Nipun Bakshi, the learned counsel for the petitioner submits that, without adjudicating the said issue the Industrial Tribunal has held the action of the Management illegal on the ground that permission under Section 33(2)(b) of the Industrial Disputes Act, 1947 was not taken by the Management. Contending that the procedure envisaged under the Act was completely ignored by the Industrial Tribunal, the learned counsel for the petitioner Food Corporation of India submits that the Award dated 12.08.2013 is liable to be set-aside. Mrs. M.M. Pal, the learned Senior counsel for the respondent Workman however, contends that permission under Section 33(2)(b) of the Industrial Disputes Act, 1947 was not taken before the order of dismissal was passed against the concerned workmen and therefore, application under Section 33 (A) has rightly been allowed. It is further contended that opposite party F.C.I did not seek permission to lead evidence when the argument was heard by the Tribunal and thus, it has to be understood that the Management has admitted breach of Section 33 (2) (b).

4. Having carefully considered the contentions raised on behalf of the parties and after perusing the proceeding in Complaint Case No. 01 of 2012, I am of the opinion that Award dated 12.08.2013 is liable to be set-aside. Section 33 was amended in the year, 1956. The object behind amendment in Section 33(2)(b) was to provide some safeguard to workman incorporating the following provision: Proviso to Section 33 (2)(b):

“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.”

5. In cases where the application made under proviso to Section 33(2)(b) is refused or where such an application under proviso to Section 33(2(b) is not made at all, and the Management passes order of dismissal or discharge, the order remains incomplete and inchoate. In “Rajasthan State Road Transport Corporation & Another Vs. Satya Prakash”, reported in (2013) 9 SCC 232, the Honble Supreme Court has held that in complaint filed under Section 33A, the employee will succeed only if he establishes that the misconduct is not proved and not otherwise. It is also not in dispute that the complaint under Section 33A has to be dealt with in the same manner as a reference under Section 10 of the Industrial Disputes Act, 1947 proceeds. The contention raised on behalf of the workmen that the petitioner Food Corporation of India did not seek permission for leading evidence and it did not raise objection at the time of argument and now it cannot challenge the Award, is liable to be rejected. The proceeding in Complaint Case No. 01 of 2012 discloses that on 06.11.2012, a petition questioning maintainability of the complaint case was filed by the Management and vide order dated 04.12.2012, the Tribunal ordered that the petition questioning maintainability would be decided with the main case. Order dated 14.02.2013 records that the counsel for the complainant submitted that the “evidence is not necessary” and the Tribunal proceeded to hear the matter. It further appears that another petition was filed on behalf of the Management which was simply kept on record and after hearing both