Judgment In the instant writ application the petitioner-company has challenged the legality of the award by the learned Judge, 3rd Industrial Tribunal, Calcutta, so far as the same directs reinstatement of the workman being the respondent No. 4. 2. It is the case of the petitioner that at the relevant point of time the workman who initially was inducted as a Mazdoor in the electrical maintenance section after several promotions were promoted as a Fitter in the electrical maintenance section and NCGS on 1.1.1983 and was confirmed in the said post in July 1st, 1983. It is contended that the maintenance of oil circuit breakers in switch houses is an integral part of the routine work of electrical maintenance since the inception of the Generating Station at. Cossipore and these jobs are carried out by the Fitter of the section as stated by Helper. While on duty on 9th January, 1991 the respondent No. 4 inspite of being instructed by the senior engineer to withdraw six numbers of Test Bushing which had been previously inserted at different test point of No. 4 Generator OCB, refused to carry out the said jobs. Again on January 10, 1991 while he was in duty and was deployed by the senior engineer to remove Test Bushing from 33 KVAOCB of No. 4 Turbo alternator, he refused to carry out such job. On 15th January, 1991while the respondent was in duty again he refused to carry out the job although he was deployed by the senior engineer to check and top up oil level at different points of No. 1 Turbo alternator OCB. The petitioner thereafter issued a show cause notice to which the workman replied which having been found unsatisfactory the workman was issued a charge-sheet and a disciplinary proceeding was initiated. It is the case of the petitioner-company since despite several opportunities the workman declined to appear at such enquiry the enquiry was held ex parte and the Enquiring Officer found the charge against the workman to have been proved beyond doubt and the disciplinary authority having found such charge to be of serious in nature dismissed the petitioner from service. The workman thereafter raised an Industrial Dispute which was referred by the State Government to the said tribunal to decide the issue, namely, whether the dismissal of the workman Sri Ujjal Kr. The workman thereafter raised an Industrial Dispute which was referred by the State Government to the said tribunal to decide the issue, namely, whether the dismissal of the workman Sri Ujjal Kr. Ghosh was justified and to what relief the workman was entitled. 3. The tribunal while considering the issue as to the validity of domestic enquiry has come to a specific finding that the workman deliberately violated the lawful orders of the company and he did not attend the enquiry proceedings willfully and deliberately. But the tribunal ultimately held the punishment of dismissal to be too stringent or harsh and after setting aside the sane has substituted the same by punishment of stoppage of 5 increment. The tribunal has also directed that the petitioner should be given 75 % of the back wages from the date of the order of dismissal till he was reinstated. 4. Mr. Partha Sarathi Sengupta, the learned Counsel appearing for the petitioner-company has assailed such order of reinstatement by contending inter alia, while the tribunal under Section 11A of the Industrial Dispute Act has the power to go into such question as to whether the punishment awarded in the domestic tribunal is commensurate with the gravity of the charges, the order of punishment awarded by the employer cannot be set aside or modified on extraneous grounds but only if it is found after considering all aspects of the matter that the punishment imposed on the workman is not commensurate with the gravity of the charges. 5. It has been submitted that it will appear from the impugned order of the tribunal itself that there has been no proper application of mind of the tribunal to decide such question but the tribunal was really influenced in passing the impugned order by the fact the petitioner had put in 20 years of service and this was his first misconduct, completely overlooking that the same is wholly an irrelevant consideration and the only relevant consideration is whether the punishment is disproportionate to the gravity of the misconduct which in fact, in the instant case it is. 6. Number of decisions have been relied upon by Mr. Sengupta. 6. Number of decisions have been relied upon by Mr. Sengupta. The learned Counsel appearing for the workman on the other hand has supported the award of the tribunal contending, inter alia, the tribunal although, might have found the domestic enquiry to be valid and proper it was perfectly within its rights to examine whether the punishment imposed is commensurate with the gravity of the charge and in the instant case the tribunal having found the punishment of dismissal not commensurate with the gravity of the charge and herein passed a reasoned order, there cannot be any interference by the writ Court with the discretion exercised by the tribunal. He has relied on the decisions reported in (1) AIR 1959 Punjab page 638; (2) AIR 1978 Orissa page 96; (3) 1969 SLR page 560; (4) AIR 1969 Kerala page 288; (5) AIR 1980 Kerala 168; (6) AIR 1975 H.P. 23 and (7) AIR 1970 Madras 145. 7. After considering the respective submission of the parties and the award passed by the tribunal and all the materials on records I am of the view, the impugned award of the tribunal directing the reinstatement of the workman and punishing the workman by stopping 5 increments in lieu of dismissal which was passed by the employer cannot be sustained. 8. It appears to this Court while deciding the question whether punishment imposed upon the workman is commensurate with the gravity of the charge, the tribunal has not considered all the relevant criteria for determining such issue nor the tribunal has come to a specific finding that the punishment is disproportionate to the gravity of the misconduct. 9. It is true, as submitted by Mr. Banerjee appearing for the workman that there should be no interference normally with the discretion exercised by the tribunal if a reasoned order is passed and the writ Court will not act as a Court of appeal for correcting an order of the tribunal. But it is equally true, as submitted by Mr. Sengupta appearing for the employer that such discretion has to be exercised judicially and not arbitrarily. As held by the Supreme Court in the case of (8) Christian Medical College Hospital Employee, Union & Ors. reported in, 1987 (4) SCC 691 (Paragraph 14). But it is equally true, as submitted by Mr. Sengupta appearing for the employer that such discretion has to be exercised judicially and not arbitrarily. As held by the Supreme Court in the case of (8) Christian Medical College Hospital Employee, Union & Ors. reported in, 1987 (4) SCC 691 (Paragraph 14). “The power under Section 11A of the Act has to be exercised judicially and the industrial Tribunal or the Labour Court is expected to interfere with the decision of a management under Section 11A of the Act only when it is satisfied that the punishment imposed by the management is highly disproportionate to the decree of guilt of the workman concerned. The industrial Tribunal or the Labour Court has to give reasons for its decision. The decision of the Industrial Tribunal or of the Labour Court is again, as Already said, subject to judicial review by the High Court and this Court” ……………(Paragraph 14 last 10 lines). 10. In the instant case the tribunal while exercising its power under Section 11A of the Industrial Dispute Act in reducing the Punishment of dismissal has not really applied its mind to the question whether the punishment of dismissal was disproportionate to the gravity of the misconduct. It overlooked that the question is not whether the punishment is harsh but whether it is disproportionate to the gravity of the misconduct. Without examining whether the punishment is proportionate to the gravity of the charge the tribunal has taken into consideration the fact that the workmen has put in 20 years of service find this is his first misconduct and therefore held the punishment of dismissal to be too harsh. 11. I do not accept the contention of the employer that past conduct of the employee is extraneous consideration for determining the question whether the punishment is proportionate to the gravity of the charge. 12. The question of punishment is really a question of fact and has to be decided under the facts and circumstance of each case taking into consideration several factors, like the gravity of the misconduct, its consequence and also the past conduct of an employee which is also one of the relevant consideration. Even if in a particular case the misconduct may be grave, the unblemished past conduct of the employee may in a particular case may not justify the maximum punishment of dismissal or removal. Even if in a particular case the misconduct may be grave, the unblemished past conduct of the employee may in a particular case may not justify the maximum punishment of dismissal or removal. But the unblemished past record of the employee is not the only the factor to be taken into consideration for deciding whether the punishment is disproportionate to the gravity of the misconduct. The gravity of the misconduct and its consequences are also relevant consideration for determining such question. If the misconduct is grave which may lead to serious and grave consequences such factors in a particular case may overweigh the unblemished past record of an employee. Even if the misconduct of the concerned delinquent may be of the first instance and even though he may have a long unblemished service career, even then if the misconduct is serious in nature entailing so serious consequences it is opened to the employer to award the maximum punishment of dismissal. Therefore, in coming to the decision whether the punishment is disproportionate to the gravity of the misconduct all such factors have to be weighed with each other, which has not been done in the instant case. I am, therefore of the view that the matter should go back to the tribunal for fresh consideration of the question in accordance with law. 13. Mr. Sengupta appearing on behalf of the employer has tried to justify the punishment of dismissal before this Court by contending that the refusal by the workman to do the particular work for which he was punished could have led to serious consequences, namely, disruption of power supply to the consumers. Mr. Benerjee, appearing for the workman on the other hand not only strongly refuted such allegation, he also submitted relying on the decisions of Supreme Court in the case of (9) Kundal Sugar Mills V. Ziyauddin and Ors. reported in 1960 (1) LLJ 226 (SC), dismissal of workman for disobeying an unjustified order, Compliance of which involved risk of his life is unjustified. 14. Since I am of the view that the matter should go back to the tribunal for fresh consideration of the question and such question are really question of fact I am not inclined to go into such questions at this stage. 15. The writ application, therefore succeeds. The impugned award is, therefore, set aside. 16. 14. Since I am of the view that the matter should go back to the tribunal for fresh consideration of the question and such question are really question of fact I am not inclined to go into such questions at this stage. 15. The writ application, therefore succeeds. The impugned award is, therefore, set aside. 16. Since there has been no proper application of mind of the tribunal to such a question, the matter is sent back to the tribunal for fresh consideration of the question whether the punishment of dismissal is disproportionate to the gravity of the misconduct of existing evidence in accordance with law and in the light of the present judgment. 17. It is made clear that the Court has not gone into the matter of the aforesaid question and all other finding of the tribunal, except the finding and the order modifying the punishment, shall remain. Only the order of the tribunal directing reinstatement imposition of punishment of stoppage of 5 increments in lieu of dismissal and directing payment of 75% of arrear has been interfered by this Court and all other findings of the tribunal will remain. There will be no order as to costs. The learned Advocate appearing for the workman prays for stay of the operation of the order. The prayer is considered and rejected.