PRANAB KUMAR CHATTOPADHYAV, J. ( 1 ) THE petitioner bank filed this writ petition challenging the validity and/or legality of the award dated December 20, 1999 passed by the learned Judge of the Central Government Industrial Tribunal at Calcutta. By the said award, the learned Judge of the Tribunal held that the respondent Shri Chhabi Ghosh comes within the definition of workman under Section 2 (s) of the Industrial Disputes Act, 1947 and the action of the management of the petitioner bank in terminating the service of said Shri Chhabi Ghosh was bad, illegal, inoperative and void ab initio. Accordingly, the learned Judge directed the petitioner bank to reinstate said Shri Chhabi Ghosh forthwith in service with full back wages from the date of termination along with all consequential benefits. ( 2 ) BEREFT of all unnecessary details, the facts of the matter are shortly narrated hereinafter. ( 3 ) SHRI Chhabi Ghosh, the respondent No. 3 herein was initially appointed as a clerical staff by the then Mercantile Bank Limited which is now known as the Hongkong and Shanghai Banking Corporation Ltd. Subsequently the said respondent No. 3 was confirmed as a clerical staff by the authorities of the bank by an order dated October 17, 1977. The said respondent No. 3 was promoted as Staff Officer-I with effect from November 1, 1977. An agreement was also executed relating to the terms and service of the said respondent No. 3 as Staff Officer-I on June 16, 1978. ( 4 ) THE said respondent No. 3 after receiving a very shocking news regarding the sudden death of his sister's husband in London requested his superior officer namely Officer-in-Charge, Securities Department, Calcutta Main Office of the bank for granting him leave for a period of two months so that he can rush to London in order to remain by the side of his sister. The Officer-in-Charge, however, advised the respondent No. 3 to report the matter to the Operation Manager and also to the manager of the bank and requested them for granting leave to the respondent No. 3 for the said period of two months and also to accord overdraft facilities for passage money for proceeding to London. The Officer-in-Charge, however, advised the respondent No. 3 to report the matter to the Operation Manager and also to the manager of the bank and requested them for granting leave to the respondent No. 3 for the said period of two months and also to accord overdraft facilities for passage money for proceeding to London. ( 5 ) THE management concerned initially granted the leave to the respondent No. 3 for a period of fortnight from August 16, 1984 and also sanctioned the overdraft facilities for passage money. The workman accordingly left for London on August 17, 1984. The respondent No. 3 thereafter prayed for extension of leave explaining the difficulties till the end of September, 1984. ( 6 ) BY a letter dated September 6, 1984, the authorities of the bank asked the respondent No. 3 to inform the management of the bank as to when he would resume his duties. The respondent No. 3 duly answered to the said letter. The authorities of the bank thereafter by a letter dated October 10, 1984 extended the leave of the respondent No. 3 upto September 16, 1984 but at the same time also mentioned in the said letter that the respondent No. 3 has committed breach of discipline and accordingly asked him to submit an explanation why appropriate action will not be taken against the said respondent No. 3. ( 7 ) AS the legal and financial affairs of his sister were yet to be settled and presence of both the respondent No. 3 and his sister in London were necessary, the respondent No. 3 had to make a further application on October 23, 1984 for extension of leave. In reply, the manager of the bank wrote the letter dated November 14, 1984 directing the respondent No. 3 to report to duty by November 30, 1984 latest failing which there will be termination of his employment with the bank. Finally, by letter dated December 1, 1984 competent authority of the petitioner bank terminated the service of the respondent No. 3 purportedly under Clause 9 of the agreement dated June 16, 1978. ( 8 ) THE respondent No. 3 after his return to India on January 1, 1985 submitted a representation to the then Manager of the petitioner bank praying for reinstatement in service which was however rejected. ( 8 ) THE respondent No. 3 after his return to India on January 1, 1985 submitted a representation to the then Manager of the petitioner bank praying for reinstatement in service which was however rejected. The respondent No. 3 thereafter raised a dispute challenging the said termination of his service by the authorities of the bank by a letter dated January 14, 1985. ( 9 ) AS no reply was received, the respondent No. 3 thereafter raised a formal industrial dispute before the Regional Labour Commissioner (Central), Calcutta. The management of the bank took the plea that the respondent No. 3 herein was not a workman within the meaning of the Industrial Disputes Act, 1947 and as such provisions of the said Act will not be applicable in the case of the respondent No. 3. The Conciliation Officer rejected the aforesaid contention of the manager of the bank. ( 10 ) THE writ petition was moved by the manager of the bank before the Hon'ble High Court of Calcutta challenging the said decision of the Conciliation Officer and ultimately the writ petition was disposed of with the finding that the Conciliation Officer shall be at liberty to proceed with the conciliation proceeding in accordance with law. Thereafter several proceedings were initiated before this Hon'ble Court challenging the decision of the Conciliation Officer and finally by a judgment dated December 11, 1990, a Division Bench of this Court directed the Central Government to refer this dispute to Tribunal for adjudication and pursuant to the said order of the Division Bench of this Court following issue was referred to the Central Government Industrial Tribunal, Calcutta for adjudication. "whether Shri Chhabi Ghosh, Staff Officer, Hongkong and Shanghai Banking Corpn. , Calcutta, was a workman? If so, whether the action of the management of Hongkong and Shanghai Banking Corpn. , Calcutta, in terminating the services of Shri Chhabi Ghosh w. e. f, December 1, 1984, was legal and justified? "whether Shri Chhabi Ghosh, Staff Officer, Hongkong and Shanghai Banking Corpn. , Calcutta, was a workman? If so, whether the action of the management of Hongkong and Shanghai Banking Corpn. , Calcutta, in terminating the services of Shri Chhabi Ghosh w. e. f, December 1, 1984, was legal and justified? If not, to what relief Shri Chhabi Ghosh is entitled to?" ( 11 ) UPON considering the submissions of both the parties and also considering the materials and evidence on record (both documentary and oral), learned Judge of the Tribunal passed its award on December 20, 1999 holding that the respondent No. 3 was a workman within the meaning of Section 2 (s) of the Industrial Disputes Act, 1947 and furthermore the action of the management in terminating the service of the respondent No. 3 was bad, illegal and void. The learned Judge of the Tribunal directed the management of the bank to reinstate the respondent No. 3 forthwith in service with full back wages from the date of termination of service along with all consequential benefits. ( 12 ) AT the time of hearing of the writ petition following points were urged by the respective parties on the question of validity of the award:i) Whether High Court while exercising certiorari jurisdiction has a limited scope of judicial review or it should act as appellate authority over the decision of Tribunal that respondent No. 3 is a workman and can reappreciate evidence. ii) What are the tests to determine who is a workman. iii) Whether finding of Tribunal that respondent No. 3 is workman is perverse being based on no evidence or whether the same is based on relevant evidence. iv) Whether uncorroborated testimony of respondent No. 3 could be given credence. v) Whether termination of service as per Agreement can be said to be punitive so as to require holding of enquiry. vi) Whether termination of service of respondent No. 3 could be considered as retrenchment requiring compliance of Section 25-F of the Act. vii) Whether Tribunal could hold that it was a case of retrenchment when this question was not specifically referred to it. ( 13 ) CHALLENGING the finding of the Tribunal that the respondent No. 3, Shri Chhabi Ghosh is a workman, Mr. vii) Whether Tribunal could hold that it was a case of retrenchment when this question was not specifically referred to it. ( 13 ) CHALLENGING the finding of the Tribunal that the respondent No. 3, Shri Chhabi Ghosh is a workman, Mr. Partha Sarathi Sengupta, the learned Advocate of the petitioner bank submitted that whether the respondent No. 3 is a workman or not is a jurisdictional fact and as such it is not only open to the High Court to re-appraise the evidence but according to the learned advocate of the petitioner bank it is the duty of the High Court to weigh the evidence for itself in order to come to its own independent conclusion. Mr. Sengupta, learned advocate of the petitioner bank, cited following decisions in support of his submissions: (1) Baldev Singh v. Indian Explosives Ltd. 76 CWN 342. (2) Shalimar Paints v. 3rd Industrial Tribunal 1974 LIC 213. (3) Ramendra v. 8th Industrial Tribunal, W. Bengal 1975 LIC 94. (4) Raza Textiles v. I. T. Officer, Rampur. ( 14 ) THE learned advocate of the respondent No. 3, however, submitted that even if the Tribunal was wrong in appreciation of evidence, the same will not be a ground for interference by this Court under Article 226 of the Constitution of India. The learned advocate of the respondent No. 3 placed reliance on the following decisions: (1) Kaushalya Devi v. Bachittar Singh. (2) Nagendra Nath v. Commr. of Hills Division. (3) Western India Match Co. Ltd. v. Their Workmen. ( 15 ) THE Hon'ble Supreme Court has specifically held in the case of Andhra Scientific Co. v. Seshagiri Rao, that what functions were actually being performed by the employees is a question of fact and the High Court would not interfere under Article 226 with the factual finding of the learned Tribunal in this regard. ( 16 ) MR. Laxmi Gupta, the learned counsel of the respondent No. 3 has rightly submitted that the decision of the High Court in the aforesaid case of Andhra Scientific Co. (supra) is squarely on the point over which parties herein are concerned in the present proceeding. The relevant portion from the aforesaid judgment of the Supreme Court is quoted hereunder 1961-II-LLJ-117 at p. 119:"4. (supra) is squarely on the point over which parties herein are concerned in the present proceeding. The relevant portion from the aforesaid judgment of the Supreme Court is quoted hereunder 1961-II-LLJ-117 at p. 119:"4. What functions were actually being performed by the employee is a question of fact and the High Court has rightly pointed out that when the Labour Court has on a consideration of the evidence come to a -conclusion as regards these functions and has on the basis thereof held that the employee comes within the definition of workman in Section 2 (s) of the Act the High Court would not interfere under Article 226 except in cases unless there is clear error on the face of the record. " ( 17 ) IN a recent judgment reported in Indian Overseas Bank v. I. O. B. Staff Canteen Workers' Union, Supreme Court has specifically pointed out the limited scope of judicial review of the High Court while exercising writ jurisdiction. Paragraph 17 of the said judgment is set out hereunder at p. 1628 of LLJ:"17. The learned single Judge seems to have undertaken an exercise, impermissible for him in exercising writ jurisdiction, by liberally re-appreciating the evidence and drawing conclusions of his own on pure questions of fact, unmindful, though aware fully, that he is not exercising any appellate jurisdiction over the awards passed by a Tribunal, presided over by judicial officer. The findings of fact recorded by a fact-finding authority duly constituted for the purpose and which ordinarily should be considered to have become final, cannot be disturbed for the mere reason of having been based on materials or evidence not sufficient or credible in the opinion of the writ Court to warrant those findings, at any rate, as long as they are based upon some material which are relevant for the purpose or even on the ground that there is yet another view which can reasonably and possibly be taken. The Division Bench was not only justified but well merited in its criticism of the order of the learned single Judge and in: ordering restoration of the award of the Tribunal. The Division Bench was not only justified but well merited in its criticism of the order of the learned single Judge and in: ordering restoration of the award of the Tribunal. On being taken through the findings of the Industrial Tribunal as well as the order of the learned single Judge and the judgment of the Division Bench, we are of the view that the Industrial Tribunal had overwhelming materials which constituted ample and sufficient basis for the objectivity of approach adopted and reasonableness of findings recorded seem to be unexceptionable. The only course, therefore, open to the writ Judge was to find out the satisfaction or otherwise of the relevant criteria laid down by this Court, before sustaining the claim of the canteen workmen, on the facts found and recorded by the fact-finding authority and not embark upon an exercise of reassessing the evidence and arriving at findings of one's own, altogether giving a complete go-bye even to the facts specifically found by the Tribunal below. " ( 18 ) THE decisions cited by the learned counsel appearing on behalf of the petitioner bank are not at all applicable in the facts of the present case. The learned Judge of the Tribunal after considering the materials and evidence on record arrived at a factual finding that the respondent No. 3 is a workman and comes within the definition of workman under Section 2 (s) of the Industrial Disputes Act, 1947. ( 19 ) IN view of the decisions of the Supreme Court, the question whether an employee is a workman or not is a question of fact and the High Court in its constitutional writ jurisdiction should not reappraise the evidence in order to arrive at a finding of its own after giving a total go-bye to the facts specifically found by the Tribunal below. The Court, however, does not find that the conclusions reached by the Tribunal are either perverse or based evidence. ( 20 ) WHETHER an employee is a workman or not cannot be decided from the designation. The primary, basic and predominant duty performed by an employee will determine the actual status of the said employee. Accordingly, whether an employee is to be treated as workman or not should be determined on the basis of the primary, basic and predominant duty performed by the said employee and not by the incidental duties performed by him. The primary, basic and predominant duty performed by an employee will determine the actual status of the said employee. Accordingly, whether an employee is to be treated as workman or not should be determined on the basis of the primary, basic and predominant duty performed by the said employee and not by the incidental duties performed by him. ( 21 ) THE learned advocate of the respective parties referred to various portions of the evidence on record to establish the actual status of the respondent No. 3 herein. ( 22 ) FROM the award it appears that the learned Judge of the Tribunal after carefully considering the evidence of the concerned workman came to a specific conclusion that the respondent No. 3 was discharging clerical nature of duties even in spite of his promotion as Staff Officer. The Tribunal has specifically recorded the principal jobs performed by the respondent No. 3 at Para 16 of the said award and thereafter on proper assessment of the evidence on record came to specific conclusion that the respondent No. 3 did not perform managerial functions. ( 23 ) FOR the aforesaid reasons, I do not find any ground to upset the finding of fact arrived at by the Tribunal that the respondent No. 3, Shri Chhabi Ghosh is a workman and comes within the definition of workman under Section 2 (s) of the Industrial Disputes Act, 1947 in the present case. ( 24 ) NOW on the other point whether the termination of service of respondent No. 3 is justified or not, Mr. Sengupta, the learned counsel of the petitioner submitted that the finding of the Tribunal in this regard is perverse. According to the learned advocate of the petitioner, the learned Judge of the Tribunal did not even consider the relevant and vital documents. ( 25 ) ON the issue of termination of service of the concerned workman, the learned Judge of the Tribunal held that the action of the management of the petitioner bank in terminating the service of the workman was bad, illegal, inoperative and void ab initio. The learned Judge of the Tribunal held that there was non-compliance of the provisions of Section 25-F of the Industrial Disputes Act, 1947. ( 26 ) MR. The learned Judge of the Tribunal held that there was non-compliance of the provisions of Section 25-F of the Industrial Disputes Act, 1947. ( 26 ) MR. Sengupta, the learned advocate of the petitioner, however, submits that the aforesaid conclusion of the learned Judge of the Tribunal suffers from the infirmity of non-application of mind. Referring to the letter of termination learned counsel of the petitioner submitted that the concerned workman was terminated from service for misconduct. The learned advocate of the petitioner further submitted that an agreement was executed with the workman concerned after engaging him as a Staff Officer of the bank. Referring to Clause 9 of the said agreement, the learned counsel of the petitioner bank submitted that the service of an employee may be terminated if the said employee refuses to obey the reasonable order or instruction of his superior. ( 27 ) THE authorities of the bank determined the contract of employment by a letter dated December 1, 1984. The said contract was determined in terms of Clause 9 of the Contract of Employment dated June 16, 1978. According to the petitioner bank, the employee concerned failed and neglected to avail of the repeated opportunities given to him by the employer and the said respondent No. 3 in spite of grant of repeated extension of leave did not report for duty. ( 28 ) ACCORDING to Mr. Sengupta, the learned counsel of the petitioner bank, the respondent No. 3 refused to comply with the specific instruction of his superior authorities in this regard. Admittedly, the superior authority of the respondent No. 3 asked him to report for duty within November 30, 1984 but the said respondent No. 3 in spite of receipt of the specific instruction and/or direction from his superior did not report for duty. ( 29 ) MR. Sengupta, the learned counsel of the petitioner accordingly submitted that the respondent No. 3 refused to comply with the reasonable order of the management for reporting to duty which amounts to misconduct and the said Act of the employee concerned is unbecoming of an officer of the petitioner bank. ( 29 ) MR. Sengupta, the learned counsel of the petitioner accordingly submitted that the respondent No. 3 refused to comply with the reasonable order of the management for reporting to duty which amounts to misconduct and the said Act of the employee concerned is unbecoming of an officer of the petitioner bank. It has been specifically provided in Clause 9 of the agreement governing the terms of employment of the respondent No. 3 that if the employee refuses to obey the reasonable order and/or instruction of his superior then in that event his service may be terminated and thus the termination order in the present case should also be treated as one which has been brought about as a result of misconduct committed by the employee concerned by refusing to obey the specific order and/or instruction of his superior. ( 30 ) MR. Sengupta, the learned advocate of the petitioner bank also submitted that the respondent No. 3 herein even in his representation before the Regional Labour Commissioner on January 14/22, 1985 did not allege that the petitioner bank retrenched him from service. It was further submitted on behalf of the petitioner bank that while raising the dispute the respondent No. 3 alleged about the non-compliance of the principle of natural justice, which cannot be made in case of retrenchment. According to Mr. Sengupta, findings of the respondent Tribunal are totally perverse in this regard. Referring to various documents it was submitted by the learned counsel of the petitioner bank that the termination of the concerned employee in the present case was obviously for misconduct and as such the said termination cannot come within the ambit of Section 2 (oo) of the Industrial Disputes Act, 1947 as in the said provision retrenchment was defined as the termination of service of a workman by the employer for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action. ( 31 ) HOWEVER, it was also contended on behalf of the petitioner bank that provisions of Industrial Disputes Act have no manner of application in respect of the respondent No. 3 herein. ( 31 ) HOWEVER, it was also contended on behalf of the petitioner bank that provisions of Industrial Disputes Act have no manner of application in respect of the respondent No. 3 herein. Referring to the judgment reported in (D. R. A. R. M. E. I. v. Educational Appellate Tribunal), learned Counsel of the petitioner submitted that where it is apparent that inspite of opportunity no worthwhile explanation would be forthcoming then it would not be a fit case to interfere with the termination order. ( 32 ) MR. Sengupta, on behalf of the petitioner bank also submitted that in the present case it cannot be said that the principles of natural justice have not been complied with or the circumstances warranted initiation of departmental enquiry. According to the learned advocate of the petitioner bank, adequate and reasonable opportunity was given to respondent No. 3 to explain his conduct and also to defend himself. Referring to various letters addressed by the authorities of the bank to the respondent No. 3 learned counsel of the petitioner bank submitted that inspite of granting repeated extension of time for resuming duty, the respondent No. 3 failed to avail such opportunity and did not resume his duty within the time limit fixed by his superior authorities. ( 33 ) REFERRING to letter dated October 10, 1984 issued on behalf of the petitioner bank to the respondent No. 3, Mr. Sengupta submitted that the respondent No. 3 was called upon to explain why appropriate action shall not be taken against him. According to Mr. Sengupta, respondent No. 3 never sent any answer to the said letter and thereby admitted the misconduct alleged against him by the petitioner bank for refusing to obey lawful and reasonable order issued by the superior authority as well as indulging in unauthorized absence. Mr. Sengupta also referred to a decision Hindustan Paper Corporation v. Purnendu Chakraborty and Ors. in support of his arguments. ( 34 ) MR. Laxmi Gupta learned Senior counsel appearing on behalf of the respondent No. 3 submitted that the learned Judge of the Tribunal examined the order of termination from two different angles. Mr. Sengupta also referred to a decision Hindustan Paper Corporation v. Purnendu Chakraborty and Ors. in support of his arguments. ( 34 ) MR. Laxmi Gupta learned Senior counsel appearing on behalf of the respondent No. 3 submitted that the learned Judge of the Tribunal examined the order of termination from two different angles. Firstly, the learned Judge of the Tribunal examined the said order of termination on the ground whether the principle of natural justice was required to be complied with and secondly, on the point whether the order of termination could be said to be retrenchment. The learned counsel of the respondent workman submitted that the learned Judge of the Tribunal was competent to examine alternative consideration, as the same is permissible in the eye of law. ( 35 ) MR. Gupta referred to and relied upon a decision of the Supreme Court in this regard reported in M. C. D. v. Praveen Kumar Jain and Ors. According to Mr. Gupta, such alternative consideration was done in the present case by the learned Judge of the Tribunal in view of the aforesaid decision of the Supreme Court. ( 36 ) MR. Gupta, learned senior counsel of the respondent No. 3 submitted that the order of termination issued to the respondent No. 3 did neither satisfy the precondition of retrenchment, namely compliance of the provision of Section 25-F of the Industrial Disputes Act nor the principle of natural justice was complied with by holding an enquiry. Mr. Sengupta, learned senior counsel of the bank further submitted that the learned Tribunal could not have held that the respondent No. 3 was retrenched from service by the petitioner bank when the said question was not specifically referred to the Tribunal. ( 37 ) THE learned advocate of the: respondent employee, namely, the respondent No. 3 submitted that in the present case order of termination falls within Section 2 (oo) of the Industrial Disputes Act and the petitioner bank did not make out any case before the Tribunal that the order of termination was passed by way of punishment. ( 37 ) THE learned advocate of the: respondent employee, namely, the respondent No. 3 submitted that in the present case order of termination falls within Section 2 (oo) of the Industrial Disputes Act and the petitioner bank did not make out any case before the Tribunal that the order of termination was passed by way of punishment. According to the learned counsel of the respondent No. 3 whether the order of termination issued to the petitioner was virtually an order of retrenchment or the same was a punishment in connection with the alleged misconduct, is a mixed question of law and fact and as such the same should not be allowed to be raised for the first time before this Court during the final hearing of the writ petition particularly when the said point was never mentioned in the writ petition. ( 38 ) THE order of termination was issued by the authorities of the petitioner bank against the respondent No. 3 on the ground of failure to resume duty after the expiry of the sanctioned leave and not on any other ground involving moral turpitude. Unauthorized absence from duty and/or overstaying after the expiry of the sanctioned leave cannot be considered as a serious charge against an employee when a reasonable explanation has been furnished by the said employee. ( 39 ) IN the present case the respondent No. 3 on humanitarian grounds remained by the side of his sister who was in distress on account of the sudden death of her husband. The respondent No. 3 did not leave his sister abroad in her distress. In this context, the order of the management of the bank does not appear to be reasonable. ( 40 ) THE concerned officer of the petitioner bank asked the respondent No. 3 to resume his duty within November 30, 1984 whereas the said respondent No. 3 after discharging his moral obligation for his distressed sister returned to India on January 1, 1985 and made a personal representation to the then Manager of the bank requesting him to reinstate him in service. ( 41 ) THUS, admittedly the respondent No. 3 overstayed after the sanctioned leave for a period of 31 days only and the reason for such overstay was very much known or made known to the authorities of the bank particularly when the said respondent No. 3 explained his difficulties by sending several written communications to his superior officers time to time. The respondent No. 3 all along apprised his superior officer about his genuine difficulties and the said officers of the petitioner bank failed to appreciate that the respondent No. 3 could not resume his duty in compliance with the direction of his superior officers in view of the compelling circumstances. ( 42 ) UNFORTUNATELY, in the present case, the respondent workman responded to the call of humanity and discharged the moral obligation by deciding to remain by the side of his sister in her distress. This is a noble gesture on the part of respondent No. 3. But for that the authorities of the petitioner bank cannot punish him by issuing an order of removal from service. ( 43 ) THIS Court in its Constitutional writ jurisdiction cannot altogether ignore the fact that even today in our society person with rare qualities is available who at the cost of his own vital interests renders help to others. This is one of such rare occasion where a poor employee even at the cost and risk of his service did not leave his sister in her distress in abroad. This Court should not be unmindful of the aforesaid conduct of an employee who is the respondent No. 3 herein. ( 44 ) IN any event, the learned Judge of the Tribunal after considering the materials and evidence on record rightly held that the respondent No. 3 is a workman and the order of termination is illegal. Admittedly, the said order of termination was passed while the respondent No. 3 was at the peak of his service career at the age of 38 years and there being no evidence that the said respondent No. 3 was in any gainful occupation at any point of time after the illegal termination of service and direction for his reinstatement in service and also payment of back wages etc. , are thus justified and proper. , are thus justified and proper. I do not find any illegality and/or irregularity and/or infirmity in the decision of the learned Judge of the Tribunal and thus I do not consider it just and proper to interfere with the award passed by the learned Tribunal. Accordingly, the writ petition fails and the same is dismissed. There will be, however, no order as to costs.