JUDGMENT : 1. By this petition, the petitioner-employee seeks to challenge the order dated April 1, 1986 passed by the Industrial Court dismissing his appeal and allowing the appeal filed by the respondent-employer. 2. The petitioner was employed with the 1st respondent Modern Mills Limited as a clerk in 1943 and he continued to serve in that capacity for about 38 years, till he was dismissed from service on August 9, 1981. The incident leading to his dismissal was as follows : Sometime in the second week of January, 1981 the petitioner was told orally by the Administrative Officer to go and work in the Records Section from the Sizing Section or C.D.S. Section, where he was working for about two years till that time. The petitioner, however, demanded his order of transfer in writing and did not resume his duties in the Records Section but continued to work in the C.D.S. Section. Thereafter on February 6, 1981 the Administrative Officer gave him a letter stating as follows : "You have been asked by the undersigned to work in the Record Section last month. It is reported to me that you have not gone there as instructed. You are hereby informed to attend the work in Record Section from tomorrow, i.e., February 7, 1981, failing which disciplinary action would be taken against you." Pursuant to this letter the petitioner reported for work in the Record Section from February 7, 1981. Thereafter on February 11, 1981 the Labour Officer called him in his cabin. Shri Thapaliyal. Administrative Officer, was also present in the Labour Officer's cabin at that time. The Labour Officer told the petitioner that from February 12, 1981, he should observe the duty hours from 8.00 A.M. to 12.30 P.M. and from 2.30 to 5.00 P.M. At that time the petitioner by gestures asked for an order to be given in writing. When the Labour Officer asked him as to why he wanted the order in writing, the petitioner insisted that he should be given the order in writing. The petitioner also raised his voice and told the Labour Officer that he knew what he was doing in another Mill, i.e., Phoenix Mills. The petitioner also told the Labour Officer that he was working in the Mills for about 36 years and he was senior to him. The petitioner also raised his voice and told the Labour Officer that he knew what he was doing in another Mill, i.e., Phoenix Mills. The petitioner also told the Labour Officer that he was working in the Mills for about 36 years and he was senior to him. When the petitioner was about to leave the cabin, Administrative Officer Shri Thapaliyal told the petitioner not to behave in that fashion. At that time the petitioner told the Administrative Officer that he had ruined him and then he left the cabin. On account of this incident the petitioner was served with a charge sheet on the next day, i.e. February 12, 1981 and after a domestic inquiry. He was dismissed from service with effect from August 9, 1981. 3. Thereafter the petitioner approached the respondent Mills u/s 42 of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as 'the said Act') by an approach letter of September 19, 1981. The letter having had no effect, he approached the Labour Court u/s 78 read with Section 79 of the Act. By its order of October 15, 1984 the Labour Court held that the punishment meted out to the petitioner was grossly disproportionate and granted him reinstatement in service but without back wages. Aggrieved by this order of the Labour Court both the petitioner as well as the respondent Mills preferred cross-appeals before the Industrial Court and by the impugned order the Court reversed the finding of the Labour Court, dismissed the petitioner's appeal and allowed the employer's appeal. Hence the petitioner has approached this Court by this petition filed under Articles 226 and 227 of the Constitution of India. 4. The facts narrated above will show that the petitioner had put in on the date of his dismissal, no less than 38 years' continuous service. The incident which led to his dismissal cannot be said to be more than a minor one. It is true that in the conduct of the petitioner there were elements of insubordination. If must, however, be remembered that the employee who was at his advanced age (he completed his 60 years only on July 14, 1984) and whose routine was sought to be disturbed was not unnaturally perturbed. It is true that in the conduct of the petitioner there were elements of insubordination. If must, however, be remembered that the employee who was at his advanced age (he completed his 60 years only on July 14, 1984) and whose routine was sought to be disturbed was not unnaturally perturbed. He had continued to serve in the stagnated position of a clerk doing the time routine work for a period of 38 years till the date of his dismissal. Some allowance, therefore, has to be made for the loss of temper in such situation on the part of the employee with advanced age. It is difficult to view the said incident except in that perspective. In any case, it could hardly be said that the incident by itself merited the ultimate punishment, namely that of dismissal. As has been pointed out time and again by the Courts, dismissal of an employee before the ultimate penalty has to be resorted to only for substantial reasons and when otherwise indiscipline is not possible to cure. The Labour Court had appreciated this situation and had rightly come to the conclusion that the dismissal was a disproportionate punishment. However, the Court had also gone to the extreme of refusing back wags, when it granted only reinstatement by its order of October 15, 1984. The Labour Court failed to observe that on July 14, 1984 the petitioner had already completed his 60 years, which is the superannuation age under the Standing Orders and the relief of reinstatement without back wages granted by it was no relief at all. 5. The Industrial Court has given reasons for justifying the dismissal of the petitioner. According to it, the petitioner did not go to the Record Section because he would not get overtime to which he was entitled in the Sizing Department. The Court has further observed that even after reporting to the Record Section from February 7, 1981, the petitioner did not observe the working hours of his predecessor in office and did not give normal work. This was, according to the Court, by way of protest because he did not like his transfer. The Court has further observed that even after reporting to the Record Section from February 7, 1981, the petitioner did not observe the working hours of his predecessor in office and did not give normal work. This was, according to the Court, by way of protest because he did not like his transfer. The Court further took into consideration the charge-sheet served on the petitioner on an earlier occasion three years ago, i.e. on March 30, 1978 in which it was alleged that on his transfer to the Record Section at that time he had not observed his duty hours for 14 days. For this misconduct he was suspended for two days by way of punishment. That order was challenged by the petitioner in the Labour Court and while the said application was still pending before the Labour Court the present incident had occurred on February 11, 1981. The Court, therefore, held that – "In the background of all these facts, it would be a mockery to conclude that the punishment of dismissal was shockingly disproportionate to the charge proved. The charge of defying a lawful and reasonable order issued by the superior is itself so grave. Again, challenging the authority of the superior by casting aspersions on him simply because he refused to oblige by giving in writing his instructions to follow the duty hours as demanded by an employee cannot be treated so lightly, considering the gravity of the acts of misconduct alleged and proved against the applicant (petitioner) in the background of other facts on record." The Court was therefore unable to conclude that the punishment of dismissal was improper or unjustified. 6. With respect to the learned Member of the Industrial Court, on the facts stated above, the said observations are totally uncalled for. In his service of no less than 38 years, the only other incident alleged against him was that of March 24, 1978 for which he had suffered a punishment of suspension of two days only. Even that punishment was under challenge in the Labour Court and the Labour Court's verdict on the same is yet awaited. The present incident, which is the only other incident, was on the facts stated above, admittedly not so grave as the learned Member has chosen to hold. It is unnecessary to repeat what we have stated earlier in this respect. The present incident, which is the only other incident, was on the facts stated above, admittedly not so grave as the learned Member has chosen to hold. It is unnecessary to repeat what we have stated earlier in this respect. It is, therefore, difficult to agree with the learned Member, firstly, that the incident was grave and, secondly, it was so grave as to demand the final sentence of dismissal from service. Normally this court does not reappreciate evidence in its writ jurisdiction. However, when throwing to winds all canons of justice and objectivity, the Courts below chose to impose punishments arbitrarily, it becomes the duty of this Court to step in to do justice to the parties. For the reasons which we have already discussed, we are if the view that neither the past record of the petitioner nor the present incident was such as would merit his dismissal from service after 38 years' otherwise unblemished and continuous employment. 7. There is no doubt that an employee however old and senior in service has no right to defy the orders of his superiors whatever his grievance in that behalf, in the manner the petitioner did. There are, however, ways and ways of correcting the conduct of such employees and Model Standing Orders for this very reason provide for graded punishments for minor and major misconducts. By no stretch of imagination the present misconduct even read with the past conduct, can be considered to be major. The misconduct being undoubtedly minor, the maximum punishment it merited was suspension for a few days or fine or stopping of an increment etc. Since the employee has attained his superannuation age on July 14, 1984, no purpose will be served in granting him reinstatement today. At the same time some punishment has to be meted out to him for the said conduct of insubordination. 8. We, therefore, set aside the order of the Industrial Court and allow the petition. We declare that the employee will be deemed to have been in service till he attained his superannuation age on July 14, 1984. He would, therefore, be entitled to all his retirement benefits on the footing that he continued to be in service till July 14, 1984 and if any retirement benefits have been paid to him earlier, they will be recalculated accordingly. He would, therefore, be entitled to all his retirement benefits on the footing that he continued to be in service till July 14, 1984 and if any retirement benefits have been paid to him earlier, they will be recalculated accordingly. However, as regards his salary for the period from August 10, 1981 till July 14, 1984, he would be paid a total amount of Rs. 45,000, the rest of the amount being deducted from his salary by way of punishment. The amount of Rs. 45,000, together with the recalculated amount of the retirement benefits should be paid to him within six weeks from todays. If the said amount not paid within six weeks from today, the petitioner will be entitled to interest at 12% per annum from the expiry of the six weeks from today till payment. 9. Accordingly, rule made absolute with costs.