Judgment Anil K. Sen, J. This appeal under clause 15 of the Letters Patent is directed against the judgment and order dated November 20, 1973, passed by a learned single judge of this court in Civil Rule No. 2931(W) of 1970 which was earlier issued on a writ petition moved by the appellant-petitioner. In that writ petition the appellant-petitioner, the employer, challenged the validity of an award dated January 3, 1970, made by the Third Industrial Tribunal on a reference under S. 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as the said Act). 2. One Md. Hossain was a workman in the factory of the appellant/petitioner. He was served with a charge sheet dated February 7, 1968, for gross misconduct, insubordination, dereliction of duties, violation of factory rules and unauthorised absence from duties. The charge levelled against the workman was that on February 5, 1968, he reported for duty at 8 a.m. in the morning but at 12 noon he went to the office of the Works Manager and verbally requested the Works Manager to give him leave for the day which the Works Manager could not allow due to heavy pressure of work in the factory and the Works Manager directed him not to leave the factory in the presence of two outside gentlemen present in the office at the time. He, however, openly flouted the order of the Works Manager shouting that he must go whether the Works Manager allows him leave or not and he actually left the factory at 12 at noon. 3. The workman submitted an explanation to the aforesaid charge sheet. His defence was that he was feeling ill on that day from the morning and requested the Works Manager at 8 a.m. to allow him to go home for medical reason but since the Works Manager did not allow he continued to work with much difficulty upto 12 noon when it being extremely difficult for him to work he again approached the Works Manager for leave to go the doctor. That he left factory under such circumstances and later took medical aid from the panel doctor who granted him leave for two days. 4. The explanation was not considered satisfactory and the management directed a domestic enquiry to be held and the Law Officer was appointed the enquiry officer. That he left factory under such circumstances and later took medical aid from the panel doctor who granted him leave for two days. 4. The explanation was not considered satisfactory and the management directed a domestic enquiry to be held and the Law Officer was appointed the enquiry officer. At the enquiry witnesses were examined both on behalf of the management and the workmen and the enquiry officer submitted a report. The enquiry officer found that the defence sought to be made out had not at all been substantiated, that the workman never approached the Works Manager twice on that date and never reported ill in the morning at 8 a.m. as alleged. On the other hand, the enquiry officer found on the evidence before him that the charges had been fully made out as against the workman. On consideration of the report of the enquiry officer the appellant/petitioner by an order dated March 12, 1968, dismissed the workman. The workers union sponsored a dispute over such dismissal and the State Government on August 7, 1968, referred the following issue for adjudication by the Third Industrial Tribunal, West Bengal :- "Whether the dismissal of Md. Hossain is justified; to what relief, if any, he is entitled to ?" 5. Before the tribunal the Union filed a written statement. In this written statement it was claimed that the termination of service of the workman by the appellant/petitioner was an act of victimisation since the real intention was to remove him as he was taking a leading part in the formation and organisation of the trade union. That the charge sheet was a false one and that the enquiry was a sham enquiry which is neither bona fide nor fair. It is further claimed that the findings of the enquiry officer were perverse. All these allegations made on behalf of the Union were controverted in the written statement filed by the appellant/petitioner wherein. It was claimed that the order of dismissal was passed against the workman in a perfect legal and valid manner as it was preceded by a domestic enquiry. It was held fairly and properly and on due observance of all the rules of natural justice. It was further averred that the findings of the enquiry officer are fully justified being passed on sufficient evidence led at the enquiry. 6. It was held fairly and properly and on due observance of all the rules of natural justice. It was further averred that the findings of the enquiry officer are fully justified being passed on sufficient evidence led at the enquiry. 6. On the pleadings as aforesaid, the parties led evidence before the tribunal. The tribunal, however, found that the union had not been successful in substantiating their case that the entire proceeding against the workman had been an empty formality intended only to put an end to his service. On the other hand, the tribunal found that all the formalities of a fair and bona fide enquiry including the rules of natural justice having been observed, no exception can be taken to the domestic enquiry so held. The tribunal gave reasons for overruling the further defence that the findings of the enquiry officer, were perverse and the tribunal concluded: "I must hold that the domestic enquiry conducted against the workman concerned by D.W. 2 was fair and proper and the rules of natural justice were followed therein. I further hold, in view of the reasons already given by me, that the findings arrived at therein by the enquiry officer are also not at all perverse, and as such, I am not entitled to interfere with those findings." 7. Notwithstanding the findings, as aforesaid, the tribunal set aside the termination of service and directed reinstatement without back wages on the ground that in the tribunal's view punishment imposed is so unreasonable and unconscionable as to give rise to an inference of victimisation. According to the tribunal the workman had been serving since 1953 and had been working without any blemish and the impugned charge sheet the first he received and that being the first offence and the misconduct alleged and found being also not of a serious character penalty imposed can hardly be justified. The tribunal observed: "So, the incident was undoubtedly an instance of insubordination on the part of the workman concerned but was it such an act of insubordination as to justify the imposition of penalty of dismissal? In my opinion the answer should be in the negative. It is not that the workman remained absent for a long time of his own accord after the date of the incident as it appears from Ext. 1 that he was suspended from service from 7.2.68. In my opinion the answer should be in the negative. It is not that the workman remained absent for a long time of his own accord after the date of the incident as it appears from Ext. 1 that he was suspended from service from 7.2.68. So, the incident was just an act of disregard of the orders of the Works Manager by the workman concerned on 5.2.68 and his remaining absent from duty thereafter on 6.2.68 as well without any leave. It was, therefore, not at all a very serious one, I am constrained to say again, which may justify the imposition of extreme penalty, namely, penalty of dismissal. So, the imposition of that penalty is; in my opinion, grossly out of proportion to the nature of the offence alleged to have been committed by the workman and it is so unconscionable that an adverse inference of victimisation can be drawn merely from the punishment inflicted." 8. The appellant/petitioner felt aggrieved by the award so made and moved this court under Article 226 of the Constitution for setting aside the award on the ground that the tribunal having upheld the findings of the domestic enquiry and having found such an enquiry to be fair and lawful could not have set aside the penalty, that the tribunal did so on a wrong approach and thereby acted beyond its jurisdiction. The learned single judge hearing the writ petition however, dismissed the same on the view that the tribunal had correctly drawn an inference of victimisation as the punishment is disproportionate to the offence committed by the workman and, as such unconscionable. Hence, this appeal by the appellant/petitioner. 9. Mr. Dutt appearing in support of this appeal has contended that the tribunal having upheld the domestic enquiry and the findings arrived at therein on the charges levelled against the workman could not have set aside the dismissal since the punishment lay in the discretion of the employer. According to Mr. Hence, this appeal by the appellant/petitioner. 9. Mr. Dutt appearing in support of this appeal has contended that the tribunal having upheld the domestic enquiry and the findings arrived at therein on the charges levelled against the workman could not have set aside the dismissal since the punishment lay in the discretion of the employer. According to Mr. Dutt, though in a given case the punishment imposed may be so shockingly disproportionate or such as no reasonable employer would ever impose in like circumstances as to thereby betray a malicious approach by the employer and render it an act of victimisation or unfair labour practice, yet normally the tribunal possesses in a case like the present one no jurisdiction to consider the propriety or adeq uacy of punishment or whether it is excessive or too severe. In the present case, according to Me. Dutt the tribunal had really gone into the propriety of punishment and it had come to the conclusion that the punishment is unconscionable only because in the tribunal's opinion it is disproportionate and excessive. Mr. Dutt contends that that is a test which is never available to the tribunal in apply because if on the punishment itself the tribunal is to find that it is a case of victimisation the punishment on its face must be shockingly disproportionate and such as no reasonable employer' could ever impose in the circumstances established. According to Mr. Dutt, the workman was not guilty of any ordinary insubordination or absence without leave. When asked by the Works Manager not to leave he would shout at the Works Manager in the office itself and in the presence of outsiders that he would go and defy the order of the Works Manager. According to Mr. Dutt, such an act would be an act of gross insubordination as it involved not only the particular workman but discipline in the factory itself. Such being the charges proved and upheld by the tribunal, according to Mr. Dutt, the only test which was open to the tribunal to apply was as to whether any reasonable employer in such circumstances could have passed an order of dismissal or not irrespective of what the tribunal as the employer would have done in such circumstances. The error on the face of the award, according to Mr. Dutt, the only test which was open to the tribunal to apply was as to whether any reasonable employer in such circumstances could have passed an order of dismissal or not irrespective of what the tribunal as the employer would have done in such circumstances. The error on the face of the award, according to Mr. Dutt, that was committed by the tribunal was to apply not that test but the test what the tribunal would have done in such circumstances. The entire foundation of the award according to Mr. Dutt is that in the opinion of the tribunal the penalty imposed was disproportionate. Mr. Dutt has further contended that the learned single judge in dismissing the writ petition failed to appreciate that the tribunal committed such an error on the face of its records when it made the award based on an unauthorised test altogether. 10. Mr. Banerjee appearing on behalf of that union has contested the point thus raised by Mr. Dutt in this appeal. According to Mr. Banerjee it was open to the tribunal to adjudge whether the punishment by itself is of such a nature as to render it an act of victimisation and that was the adjudication made in the present case. Secondly, it has been strongly contended by Mr. Banerji that in the present case when there was no standing order prescribing either as to what constitutes serious misconduct or punishment or different grades of misconduct it was open to the tribunal to assess the punishment even for, the purpose of finding out whether the punishment imposed was excessive or not. 11. We have carefully considered the rival contentions put forward before us and in out opinion there is great substance in the contention put forward by Mr. Dutt. On the findings of the tribunal as we have set out extensively hereinbefore, it is well established that the charges levelled against the workman had been fully made out at a domestic enquiry which was not only a fair enquiry on the finding of the tribunal but was one that was held in due compliance with the principles of natural justice. Having upheld the domestic enquiry and the findings therein arrived at, the whole question left with the tribunal was as to whether it could interfere with the punishment as imposed by the employer. Having upheld the domestic enquiry and the findings therein arrived at, the whole question left with the tribunal was as to whether it could interfere with the punishment as imposed by the employer. On this point, S. 11A of the Act not being applicable to the present case the law is now well settled by the Supreme Court in the case of Hind Construction and Engineering Company Limited v. Their Workmen AIR 1965 S.C. 917 . It had been clearly laid down that there are limits to the power of interference by the tribunal because the whole of the dispute is not open before the tribunal as it is ordinarily before a court of appeal. The Supreme Court observed: "The tribunal's powers have been stated by this court in a large number of cases and it has been ruled that the tribunals can only interfere if the conduct of the employers shows lack of bona fides or victimisation of the employee or employees or unfair labour practice....... in respect of punishment it has been ruled that the award of punishment for misconduct under the standing orders, it any, is a matter for the management to decide and if there is any justification for the punishment imposed that the tribunal should not interfere. The Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe. But where the punishment is shockingly disproportionate, regard being had to the particular conduct and the past record or is such as no reasonable employer would have ever imposed in like circumstances, the tribunal may treat the imposition of such punishment as itself showing victimisation or unfair labour practice." 12. The test laid down is a strict one. It is not the test of an individual opinion. Tribunal's individual opinion regarding the punishment or such opinion of this court is wholly immaterial as that would bring in the consideration of propriety or excessiveness of the punishment. On the other hand, the test to be applied is to see if there being no justification for the punishment it is so shockingly disproportionate as would betray malice on the part of the employer or in other words one is to see if imposition of a particular punishment is colourable act on the part of the employer or net. On the other hand, the test to be applied is to see if there being no justification for the punishment it is so shockingly disproportionate as would betray malice on the part of the employer or in other words one is to see if imposition of a particular punishment is colourable act on the part of the employer or net. The true test, therefore, laid down by the Supreme Court is to see what a reasonable employer could have done in the circumstances. If any reasonable employer could have imposed such a punishment the tribunal' would have no power to interfere. The tribunal in the present case, however, failed to appreciate the true nature of the test which it was to apply in the given circumstances. The tribunal throughout proceeded on the basis as to what would be the proper punishment in the opinion of the tribunal. The tribunal failed to apply the test of what a reasonable employer would have done in given circumstances and on the other hand substituted its own opinion on liue thereof. Thus, the tribunal unwittingly proceeded to consider the propriety or excessiveness of the punishment which it had not the jurisdiction to do. This being the position the tribunal's award must be held to be suffering from an error which is apparent on the face of the record. The learned single judge in dismissing the writ petition failed to appreciate that the tribunal went wrong in not applying the correct test in law which led it to usurp a jurisdiction not vested in it and he too made the same mistake as done by the tribunal in holding that the tribunal had correctly drawn or inference of victimisation as the punishment is disproportionate to the offence. In our opinion, it is wholly inconsequential whether the punishment is so either in the opinion of the tribunal or in the opinion of the learned judge disposing of the writ petition. Until it could be held that the punishment so imposed can have no justification and is so shockingly disproportionate that no reasonable employer could in given circumstances have imposed such a penalty, the punishment could not be interfered with as it was with the management to decide what should be the punishment. On the facts found in the present case it cannot be said that no reasonable employer could have imposed a penalty of dismissal. On the facts found in the present case it cannot be said that no reasonable employer could have imposed a penalty of dismissal. It was not a case of simple unauthorised absence for a short period. The guilt established is an act subversive of discipline at the works. It is well established, therefore, that the tribunal in the present case having set aside the dismissal of the workman on application of wrong principle it had either acted without jurisdiction or illegally in the exercise of such jurisdiction where such illegality appears on the face of the award. The learned single judge, therefore, in exercise of his writ jurisdiction should have interfered and not doing so constitutes refusal on his part to exercise jurisdiction (See Hindusthan Steel v. A.K. Roy, 1970 SC 1401 paragraph 14). 13. Before we conclude we must, however, dispose of the extreme contention put forward by Mr. Banerji in support of the award. It has been contended by Mr. Banerji that admittedly there is no standing order either defining misconduct or prescribing the punishment therefore. In such circumstances Mr. Banerji has contended that it, is open to the tribunal to go into the propriety or excessiveness of the punishment and the test laid down in the case of land Construction and Engineering Company Limited could have no application where the standing order does not specify the punishment with reference to the nature of the misconduct. It should be made clear that the provisions of the newly incorporated S. 11A of the said Act was not available to the tribunal as the said provision is not applicable to the present case. Reliance is placed by Mr. Banerji on the decision of the Supreme Court in the case of Agnani v. Badri Das 1963(6) F.L. Reports 440. This decision, however, in our opinion is no authority for-the extreme proposition put forward by Mr. Banerji. In this case, the Supreme Court was considering whether an act of private quarrel between a workman and a shopkeeper would constitute misconduct or not and there it was observed by the Supreme Court that in the absence of the standing orders defining what constitutes misconduct it would be open to the employer to consider reasonably what conduct can be appropriately treated as misconduct. It was further observed by the Supreme Court that it would be no part of the employer's business to improve the moral and ethical part of the employee's conduct in relation to strangers so that a private quarrel with a shopkeeper by the workman can never constitute a misconduct and it well within the jurisdiction of the tribunal to find as such. This decision, in our opinion, however, cannot be relied on in support of an extended proposition that in the absence of a standing order it would be open to the tribunal to adjudge reasonableness or otherwise of the penalty imposed. On the other hand, it is well established on the decision of the Supreme Court in the' case of FIC Commerce v. R.K. Mittal, AIR 1975 SC 763 that the same test as laid down in the case of Hind Construction and Engineering Company Limited would apply whether or not the punishment is prescribed by any standing order. 14. In the result, we allow this appeal, set aside the judgment and order of the learned single judge in our view the writ petition should succeed and we, therefore, allow the writ petition and set aside the award impugned. There will be no order as to costs. Appeal allowed.