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2. The facts of the case, in brief, are as follows :

(i) In W.P. No. 31400/81 : The petitioner instituted disciplinary proceedings against number of workmen on certain serious charges of misconduct. Domestic Inquiry was held against each of the workman. The Inquiry Officer found them guilty of the charge levelled against them. The petitioner accepted the findings and imposed penalty of dismissal, on various dates. The number of workmen so dismissed, who are concerned in this petition are 42. Ten out of 42 workmen were dismissed on 18th March, 1980. One of them was dismissed on 14th March, 1980. The rest of the 31 workmen were dismissed from service by orders made in December 1980. Some of these orders were made on 3rd December, 1980 and others on 18th December, 1980. At the time when the orders of dismissal were made against 31 out of 42 workmen in December, 1980, an industrial dispute was pending before the Labour Court, Bangalore. As these 31 workmen were connected with the said dispute, the petitioner made applications before the Labour Court, Bangalore, under S. 33(2)(b) of the Act seeking its approval to the orders of dismissal, as it is a mandatory requirement of S. 33(2)(b) of the Act. The applications were made on the same date on which the orders of dismissal were made. When these proceedings were pending before the Labour Court, the State Government by its order dated 5th November, 1981 referred the dispute concerning the dismissal of all the 42 workmen for industrial adjudication under S. 10(1) of the Act to the Labour Court, Bangalore. The said order, which is produced as Annexure-E to the petition reads :
"On behalf of the petitioner the argument put forward by the learned counsel is that the order of reference made by the State Government is illegal and ultra vires since the proceeding for approval under S. 33(2)(b) of the Industrial Disputes Act was pending before the Labour Court, Ranchi, with regard to the dismissal of the workmen concerned. In our opinion, there is no substance in this argument. The question presented for determination in this case is whether on the date of the reference, namely, on 27th October, 1961, there was material before the State Government upon which it could form an opinion that an industrial dispute existed or was apprehended. It was not disputed by the learned counsel for the petitioner that on 27th October, 1961 the petitioner had in fact dismissed 493 workmen which was the subject-matter of the reference made by the State Government under S. 10(1)(c) of the Act. But the argument put forward on behalf of the petitioner was that until and unless the Labour Court disposed of the applications made by the petitioners for approval of the action taken under S. 33(2)(b) of the Act, there was no final order of dismissal of the workmen and the State Government, therefore, was not competent to make a reference of the Industrial dispute for adjudication under S. 10(1)(c) of the Act. We do not think there is any substance in this argument. The competency of the State Government to make the order of reference on 27th October, 1961 cannot be tested by reference to subsequent possibilities. Even if the Labour Court were ultimately to hold that no approval should be given under S. 33(2)(b) of the Act, the competency of the State Government to make a reference under S. 10(1)(c) of the Act on 27th October, 1961 cannot be challenged."

Elaborating his contention and in support of the view taken by the Patna High Court, learned counsel submitted as follows : A decision rendered in S. 33(2)(b) proceedings is not final for, even after the according of the approval to the dismissal of the workman, he could raise an industrial dispute and the State Government could refer such dispute for adjudication. Further in a proceeding under S. 10(1) of the Act between the same parties, the findings recorded in S. 33(2)(b) proceedings do not operate as res judicata. Apart from this under S. 11A the Labour Court has the power to examine as to whether the findings recorded was justified on the basis of evidence on record and further it has also the power to find out as to whether the punishment imposed was excessive having due regard to the gravity of the charge and if so to substitute a lesser penalty. Further the Labour Court or the Tribunal functioning under S. 10(1) of the Act has the power to pass an interim order for payment of wages in favour of the workmen under S. 10(4) of the Act, whereas it is the contention of the petitioner that no such power is conferred under S. 33(2)(b) on the Labour Court or the Tribunal, though he controverts the said contention. In S. 33(2)(b) proceedings, the Labour Court or the Tribunal has no power to pass an award either regarding payment of back wages, or reinstatement whereas in proceedings under S. 10(1) of the Act the Labour Court or the Tribunal has such power. The above being the uncontroverted position, if the Government considers that a final adjudication of the dispute concerning the dismissal of a workman, which is possible only in a reference under S. 10(1) is expedient both in the interest of the workman and industrial peace, there is nothing in the provisions of the Act which prevents the Government from making a reference under S. 10(1) of the Act.

For instance take the facts of the case in W.P. No. 31400/81. Out of the dispute concerning 42 workmen whose dismissal constitutes the subject matter of reference under S. 10(1) of the Act, S. 33(2)(b) proceedings were pending only in respect of 31 workmen. Therefore, it the Government considers that the dispute relating to all the 42 workmen are such as require a common reference, it is difficult to hold that it had no competence to do so and to quash the reference in respect of 31 workmen on the ground that proceedings under S. 33(2)(b) of the Act were pending in respect of those workmen and restrict the reference to only all.