JUDGMENT Ajit Kumar Sengupta, J 1. This appeal is directed against the judgment and order dated 10th October, 1991 passed by a learned single Judge of the Court. 2. Shortly stated, the facts are that the Respondent No. 1 M/s. Aaj Kaal Publishers Private Limited. (hereinafter referred to as "AAJ KAAL") is a Newspaper Organisation, publishing a Bengali daily from Calcutta in the name of "Aaj kaal". The Appellant Sri Arunangshu Chakraborty who joined "Aaj kaal' as a Trainee Journalist, was promoted to the rank of Senior Reporter, and subsequently to the rank of Principal Correspondent. 3. During his employment as Principal Correspondent at the Delhi Office of the Respondent Company, the appellant committed certain acts which prima facie constituted misconduct. A domestic enquiry was held into the allegation of misconduct and the appellant was found guilty of the charge and a second show cause notice was served on him to show cause why he should not be dismissed from service. 4. The Board of Directors of Aajkaal after going through the representation of the appellant, was of the opinion that the appellant be given "an opportunity to reform himself and therefore instead of imposing the maximum penalty of dismissal we take lenient view of the matter and decide that he be reduced in rank and be placed in the rank of a reporter". 5. The resolution of the Board of Aajkaal dated January 22, 1990 was conveyed to the appellant by a letter dated January 28, 1990 and by the same letter the appellant was asked to report as a Staff Reporter of Aajkaal at Port Blair within a fortnight on receipt of the said communication. Inspite of the posting of the appellant as a Staff Reporter at Port Blair, Andaman, the appellant did not join his duties till date and instead against the decision of the Board of Directors demoting him from the rank of Principal Correspondent to that of Staff Reporter and transferring him to Andaman, raised a purported dispute before the Labour Commissioner through the Indian Journalists' Association. 6. The Indian journalists' Association by letter dated 21st April, 1990 complained to the Labour Commissioner against the demotion and transfer of the appellant as a Staff Reporter to Andaman. 7. 6. The Indian journalists' Association by letter dated 21st April, 1990 complained to the Labour Commissioner against the demotion and transfer of the appellant as a Staff Reporter to Andaman. 7. Aajkaal raised objection regarding the locus standi of the Indian Journalists' Association to espouse the cause of the appellant as Indian Journalists' Association had no following amongst the employees of Aaj Kaal and, as such, it could not raise an Industrial Dispute with regard to any employee of Aaj Kaal under s. 2(k) of the Industrial Disputes Act. It was also specifically stated in the said objection that the appellant was given the punishment of demotion in rank after the charge of misconduct was proved in an enquiry. 8. After realising the fact that Indian Journalists" Association cannot raise a dispute under s. 2 (k) of the Industrial Disputes Act, 1947 as it had no following in Aajkaal, the appellant by a letter dated 5th June, 1990 stated that in addition to the grounds taken by the Indian Journalists' Association on behalf of the appellant and submitted on 21st April, 1990 and 7th May, 1990, the appellant was advancing fresh grounds, namely, the dispute carne squarely within s. 2A of the Industrial Disputes Act and according to the appellant, his service as Principal Correspondent was terminated and his demotion to the rank of a staff Reporter from that of Principal Correspondent was a new appointment. 9. Aajkaal by its letter dated 13th June, 1990 specifically stated that demotion cannot be equated with dismissal and, as such, the effort of the appellant to bring his grievances within s. 2A of the Industrial Disputes Act, 1947 had no basis whatsoever. By another letter, it was specifically stated that the case was not of termination of service but a case of demotion by way of disciplinary action and, as such, no dispute can be raised under s. 2A of the Industrial Disputes Act, 1947. In paragraph I of the said letter addressed to the Assistant Labour Commissioner it was stated "this is not a case of termination of service but a case of demotion by way of disciplinary action. In paragraph I of the said letter addressed to the Assistant Labour Commissioner it was stated "this is not a case of termination of service but a case of demotion by way of disciplinary action. Hence s. 2A of the Industrial Disputes Act is not attracted in the present case." In the last nine lines it was stated on behalf of the said Company as follows: "Finally with reference to the letter dated 5th June, 1990 of Sri Arunangshu Chakraborty, it is categorically denied that his service for more than 7 years in the organisation has been wiped out or he is being treated by the organisation as a new entrant as wrongly alleged. We make it clear that he is having all continuity of service and it is only a case of demotion by way of disciplinary action and not a case of termination of service and, as such, there is no question of treating him as a' new entrant." By another letter dated 10th August, 1990 it was specifically stated that the appellant was awarded a punishment of demotion. 10. Inspite of the specific assertion of Aajkaal and the documents on record that the appellant was demoted by way of punishment, a reference was made by an order dated 17th August, 1990 with the following issue framed for adjudication – "Whether termination of service of Sri Arunangshu Chakraborty, principal correspondent, is justified? To what relief, if any, is he entitled?" Aajkaal being aggrieved by the order of reference, challenged the said order of reference in this Court under Article 226 of the Constitution and ultimately the Learned Trial Court held as follows: (1) Since the petitioner newspaper has taken a lenient view and instead of termination of services, decided to demote the respondent workman, the State Government had no material before it to consider the same as termination of services of the Respondent workman and refer the dispute to the Second Industrial Tribunal. (2) On behalf of the workman, the Indian Journalists' Association once by its letter dated 21st April, 1990 having considered the said punishment as a demotion, neither the State Government nor the Respondent workman is entitled to term the same as "termination of service" in the fact and circumstances of the present case. (2) On behalf of the workman, the Indian Journalists' Association once by its letter dated 21st April, 1990 having considered the said punishment as a demotion, neither the State Government nor the Respondent workman is entitled to term the same as "termination of service" in the fact and circumstances of the present case. (3) Further, the State Government had no occasion to apply their mind, but they have solely relied on the report submitted by Sri S.R. Chakraborty, Conciliation Officer dated July 13, 1990, wherein, Sri Chakraborty had himself posed that the problem has to be decided by the State Government, before taking further action including making a reference of the dispute to the Tribunal, if it is at all a case of termination. (4) There was no material before the State Government to arrive at the necessary satisfaction that there was an order of termination of service of the respondent workman from the post of Principal Correspondent and a new appointment to the post of Staff Reporter was made and, as such, the State Government has referred the dispute without any application of mind and hence calls for interference by the writ Court. The Learned Judge was, therefore, pleased to quash the said order of reference. 11. Being aggrieved by the Judgment and order of the Learned Trial Court, the appellant has preferred the instant appeal and stay application. The Division Bench declined to grant any interim stay vide its order dated 20th December, 1991 when the stay application came up for final hearing before this Court, Learned Counsel appearing for all the parties agreed that the appeal itself may be disposed of after hearing their submissions and accordingly this matter appeared as a short appeal and learned counsel made their respective submissions on the merits of the appeal. 12. The Learned Counsel appearing for the appellant has submitted that every order of demotion is a termination and accordingly the issue was rightly framed for adjudication as to whether termination of service of the appellant is justified. 13. In our view, the demotion and termination are totally different concepts in service law. Termination of service is not a disciplinary action nor a punishment. It brings about a cessation of relationship of master and servant either in terms of the contract between the two or by mutual agreement between them. 13. In our view, the demotion and termination are totally different concepts in service law. Termination of service is not a disciplinary action nor a punishment. It brings about a cessation of relationship of master and servant either in terms of the contract between the two or by mutual agreement between them. Since, it is not a punishment there are no penal consequences. 14. Demotion, however, is a disciplinary action taken by the employer as a punishment for some misconduct since it is a punishment it obviously results in penal consequences. It may be noted also that there is a distinction between termination of service and removal or dismissal from service. Removal and dismissal are punishments but termination is not. Similarly reduction in rank is also a punishment. For example, Article 311(2) of the Constitution refers to the 3 well known punishments namely dismissal, removal and reduction in rank. It does not obviously refer to termination of service. Even if the submission based on the word "termination" is taken as learned Counsel for the appellant referring to "dismissal" or "removal" even then it clear in principle that "dismissal" or "removal'" is different from "reduction in rank' or demotion. 15. This contention of the appellant is fully met by the fact that the Model Standing Orders under Rule 10 of the Bengal Industrial Employment (Standing Orders) Rules, 1946 is applicable to the Newspaper Establishment of the said company. Rule 27 of the Model Standing Order contains list of acts and omissions to be treated as misconduct. Rule 28 provides for disciplinary action for misconduct. Clause (c) of Sub-Rule 5 of Rule 28 states as follows:- "If on the conclusion of the enquiry or, as the case may be, of the criminal proceedings, the workman has been found guilty of charges framed against him and that it is considered, after giving the workman concerned a reasonable opportunity of making representation on the penalty proposed, that an order of dismissal or suspension or fine or stoppage of annual increments or reduction in rank would meet the ends of justice, the employer shall pass an order accordingly." 16. It is beyond dispute that in a newspaper establishment to which Industrial Employment (Standing Orders) Act, 1946 applied every contract of service is supplemented by the Standing Order as a Statutory condition of service which itself makes provision for both reduction in rank and termination of service. Thus, even the Model Standing Orders recognise termination of service and reduction in rank/demotion as totally separate concepts. It may be worth mentioning that the said Company follows the West Bengal Model Standing Orders. 17. We are, therefore, of the view that the demotion and termination cannot be equated. The contention of Mr. Chatterjee, learned Counsel for the appellant, is that in substance the order in the instant case was an order of dismissal in the guise of termination as is evident from: (a) The decision of the Board of Directors dated 22nd January, 1990. (b) The fact that the appellant was placed at the bottom of the scale of staff reporter in implementation of the order of demotion. 18. This contention of the appellant is based on the resolution of the Board of Directors dated 22nd January 1990 and the fact that the appellant was placed at the bottom of the scale of staff reporter. Board Resolution dated 22nd January, 1990. The appellant's contention is based on the second last paragraph of the resolution and the last sentence thereof in particular where the Board says: "We have taken into consideration the gravity of the misconduct and in our opinion it is grave in nature and warrants dismissal from service." 19. The appellant's contention is that the Board was of the opinion that dismissal was called for and, therefore, the punishment of reduction in rank referred to in the final paragraph of the Board resolution is really an order of termination in the guise of reduction in rank. 20. This contention cannot be accepted for more than one reason. Firstly, if accepted it would mean that a disciplinary authority is bound to act mechanically in the matter of awarding punishment and cannot refer to any extenuating circumstances in awarding punishment. This would be wholly contrary to well settled principle of law viz. that in awarding punishment the disciplinary authority has to apply its mind to relevant factors including as to whether there is any extenuating circumstances. This would be wholly contrary to well settled principle of law viz. that in awarding punishment the disciplinary authority has to apply its mind to relevant factors including as to whether there is any extenuating circumstances. Secondly, from the letter of the Indian Journalists' Association dated 21st April, 1990 written on behalf of the workman it is clear that all concerned understood and accepted the decision of the Board as amounting to an order of demotion. Thirdly, this submission is the second after thought. The first after thought was characterising the order of reduction in rank as a termination. This was from the following:- (i) The second and last paragraph of the said letter dated 21st April, 1990 will show that the Indian Jounalists' Association based their disputes on the demotion and transfer of the Appellant to Port Blair. Such a dispute relating to an individual cannot become an Industrial Dispute unless substantial section of the workmen of the employer espouses his cause. (ii) On behalf of the said company, objection was raised regarding the locus standi of the Indian Journalists' Association to espouse the cause of the appellant as Indian Jounalists' Association had no following amongst the employees of Aajkaal and as such it could not raise an Industrial Dispute with regard to any employee of Aajkaal under s. 2(k) of the Industrial Disputes Act. (iii) Realising the fact that Indian Jounalists' Association cannot raise a dispute under s. 2 (k) of the Industrial Disputes Act, 1947 as it had no following in Aajkaal, the appellant by a letter dated 5th June, 1990 being Annexure "N" at page III of the Affidavit-in-Opposition to the stay application, stated that in addition to the grounds taken by the Indian Journalists' Association on behalf of the appellant and submitted on 21st April, 1990 and 7th May, 1990 the appellant was advancing fresh grounds, namely, the dispute came squarely within s. 2A of the Industrial Disputes Act and according to the appellant, his service as Principal Correspondent was terminated and his demotion to the rank of a staff reporter from that of Principal Correspondent was a new appointment. The second after thought is the present submission, namely, the order of demotion is an order of termination in disguise. This was never the case of the appellant in the affidavit nor was the same argued before the learned Trial Judge. The second after thought is the present submission, namely, the order of demotion is an order of termination in disguise. This was never the case of the appellant in the affidavit nor was the same argued before the learned Trial Judge. Lastly, the writ petitioner, has consistently stated that this is a case of demotion and not a case of termination of service. This was so stated in the letter addressed to the Assistant Labour Commissioner dated 5th May, 1990 and also 23rd June, 1990. 21. This was also the specific case of the writ petitioner/respondent in the writ petition in paragraph 32 whereof it is stated as follows:- "Your petitioner categorically states that the service of respondent No. 5 has not been terminated by the petitioner and respondent No. 5 is still an employee of the petitioner with all continuity of service and r the respondent No.5 can join his demoted post even today." 22. The other limb of the second contention is that the appellant was placed in the bottom of the scale of staff reporter in implementation of the order of demotion. It would amount to order of dismissal in the guise of termination. 23. Merely because file appellant has been put in the lowest of the basic in the pay scale of a reporter or his Provident Fund number was not mentioned in his salary sheet as a reporter, it cannot be argued that his past services has been totally wiped out. It will be seen from the letter dated nil of the Aajkaal addressed to the Assistant Labour Commissioner, that it was specifically asserted by the said company to the Assistant Labour Commissioner that the service of the appellant for more than 7 years was not wiped out and he was not treated as a new entrant by the organisation. It was also stated that the appellant will have all continuity of service and as the case of the appellant was of demotion by way of disciplinary action and not a case of termination of service, there was no question of treating him as a new entrant. 24. Regarding non-mention of Provident Fund number it is submitted the non-mention was merely a mistake. 24. Regarding non-mention of Provident Fund number it is submitted the non-mention was merely a mistake. An employee even if he is terminated from service by an Organisation, retains his provident fund number, as it is, and carries with him to the next Organisation where he is appointed afresh. Therefore, non-mention of Provident Fund number under no circumstances indicated that the appellants service was terminated and he was treated as a new entrant in the organisation. It is further stated that it will be evident from paragraph 16 of the Affidavit-in-Opposition to the stay application that the petitioner sent a cheque of Rs. 15,794.84 along with a statement of pay and allowance and in the forwarding letter issued by the Assistant Accounts Manager of the said Company it was stated that if the petitioner had any objection about the computation, he should offer his comment in writing but the said cheque sent under registered post came back with the remark: "the appellant was not available at Home." At page 19 of the Affidavit-in-Opposition, it has been stated that the petitioner was considered to be on duty during the period of his suspension and he was allowed the same wages till the date of his demotion which he was earning as a Principal Correspondent before his suspension. 25. Even if some amount has not been paid to the appellant which is payable to him by the said Company, the appellant may have a claim for such payment, but because of such claim, the order of demotion cannot be termed as an order of termination. 26. The last contention of the learned Advocate for the appellant is that whether it is a case of termination or demotion can only be determined by the Tribunal and as such the writ petition is premature and not maintainable. 27. Under s. 10(4) of the Industrial Disputes Act, 1947, the Tribunal cannot go behind the order of reference and has to adjudicate on the point which has been referred to it. Thus, the Tribunal cannot determine as to whether it was a case of demotion or termination but it has to proceed on the basis that it was a case of termination and has to decide whether the said termination was justified or not. Thus, the Tribunal cannot determine as to whether it was a case of demotion or termination but it has to proceed on the basis that it was a case of termination and has to decide whether the said termination was justified or not. Reference is made to the Division Bench Judgment of this Court in Sabitri Motor Service Pvt. Ltd. vs. State of West Bengal & Others., reported in 1976(33) FLR page 14 wherein the Division Bench observed as follows:- "It seems to us that the Tribunal was wrong in posing the question whether the Company had terminated services of the workmen. The issue raised by the order of reference was whether the termination of services of the workman was justified. It was not, therefore, open to the parties or to the Tribuna1 to go behind the order of reference and raise the issue as to whether there was in fact termination of service of the two workmen. The question which was referred to the Tribunal for decision 'was the justifiability of the termination." 28. In our view, the employer has to proceed on the assumption that the action taken by it is an order of termination and has to justify it as such. In other words, the employer cannot urge before the Tribunal that it is not a case of termination but an order of reduction in rank or demotion. Therefore, the issue which is raised in the writ petition cannot by reason of well settled principles of law be an adjudicatable issue before the Tribunal. 29. That apart, any proceedings before the Tribunal pursuant to the impugned order of reference would result in violation of principles of natural justice because the writ petitioner would be precluded from putting forward his case because of the limited jurisdiction of the Tribunal. i.e. the limitation of not being able to go behind the order of reference. 30. For the reasons aforesaid, this appeal is dismissed without any order as to costs. Let a xerox signed copy of this judgment be given to the respective parties on usual undertaking. Appeal dismissed. No order as to costs. Shyamal Kumar Sen, J.: I agree.