BHASKAR BHATTACHARYA, J. ( 1 ) BY this writ application, the writ petitioner, an employer, has challenged an award dated June 6,1994 passed by the Presiding Officer, First Industrial tribunal, in Case No. VIII-318 of 1986. ( 2 ) THE private respondent was a driver of the petitioner/company. On June 21, 1976, the petitioner formulated the following charges against the private respondent and issued show cause:1) That on 11. 6. 1976 about 3. 15 p. m. you presented an application for casual leave for a period of five days to the Administrative Adviser with effect from 14. 6. 76, when you were told that your application could not be considered as too many drivers were already away on leave, and your request would be renewed on 22. 6. 76. On hearing this, you behaved in a most indisciplined and insolent manner and shouted back at the Administrative Adviser: "saif Khan is going today. He does not wait for Brooke Bond's permission". So anything you left his office. 2) That at about 2. 45 p. m. on the same day i. e. 11. 6. 76, Dr. R. Dutta, the Transport-in-charge, called you in the presence of other witnesses and advised you that your leave had not been sanctioned and therefore, you should continue to work as assigned and your request for leave would be reconsidered after 22. 6. 76. You were asked to acknowledge this order by your signature which you refused to do. 3) That in defiance to the above instructions you have been staying away from work since Monday the 14th June, 1976, without any valid permission or notice. We draw your attention to Clause 13 of your letter of Appointment dated 5. 2. 56 which reads as: "absence from duty for seven consecutive days without valid permission or proper notice entails dismissal from service. " ( 3 ) THE private respondent answered those charges and ultimately in the disciplinary proceeding he was found guilty of all the three charges framed by the petitioner and was dismissed from service on July 30, 1976. ( 4 ) LONG 10 years thereafter, the appropriate Government referred the following issues for adjudication to the Industrial Tribunal: "is the dismissal of Md. Saif Khan justified? To what relief, if any, is he entitled? ( 4 ) LONG 10 years thereafter, the appropriate Government referred the following issues for adjudication to the Industrial Tribunal: "is the dismissal of Md. Saif Khan justified? To what relief, if any, is he entitled? " ( 5 ) THE Tribunal, by order No. 28 dated 30th January, 1990 disposed of the question of validity of domestic enquiry initiated by the petitioner against the private respondent by holding that charge No. 3 against the private respondent was not substantiated on the basis of evidence and that the finding of the enquiry officer could not be said to be proper. ( 6 ) ULTIMATELY, when the matter came up for final hearing, the Tribunal held that the order of dismissal of the private respondent was not justified in the facts of the present case and the petitioner was directed to reinstate the private respondent with back wages and other benefits accrued to him. It was, however, held that he would not get two annual increments for the year 1977 and 1978 as a punishment for those two proved charges. ( 7 ) BEING dissatisfied with such award, the company/employer has come up with the instant writ application. ( 8 ) DR. Banerjee, the learned Counsel appearing on behalf of the petitioner, has attacked not only the final award but also the interlocutory order by which it was held that the charge No. 3 against the private respondent was not established. Dr. Banerjee contends that in the fact of the present case, the tribunal acted without jurisdiction in reappreciating the evidence on record and in arriving at a conclusion that charge No. 3 was not proved. He further contends that the reason assigned by the Tribunal for setting aside the order of dismissal is based on total misconsideration of the materials on record. ( 9 ) MR. Dasan, the learned Counsel appearing on behalf of the private respondent, on the other hand, has supported the award impugned and has contended thatlsuch award being based on consideration of materials on record, this Court sitting in a jurisdiction under Article 226 of the Constitution of India should not interfere with such award. ( 10 ) IT appears from the material on record that so far charges No. 1 and 2 are concerned, the Tribunal have affirmed such findings being based on evidence; however, according to the Tribunal, charge No. 3 was not proved. ( 10 ) IT appears from the material on record that so far charges No. 1 and 2 are concerned, the Tribunal have affirmed such findings being based on evidence; however, according to the Tribunal, charge No. 3 was not proved. ( 11 ) THEREFORE, the first question that arises for determination in this application is whether the Tribunal was justified in holding that the charge no. 3 was not properly proved. ( 12 ) ACCORDING to charge-sheet, as the petitioner stayed away from the works from June 14, 1976 without valid permission or notice, such fact constituted misconduct. There is no dispute that the workman went home without permission on 14th June, 1976 and absented himself from the duty for more than seven consecutive days. It also appears from the evidence of N. C. De, c. W. 1 before enquiry officer that the concerned workman wrote a letter on 18th june, 1976 which was received by the company on 26th June, 1976 requesting the latter to grant leave from 18th June, 1976 to 25th June, 1976. Such letter was marked by the enquiry officer as Ext. "a/8". Another letter dated June 26, 1976 from the concerned workman was further received by the company on 1st july, 1976 wherein the workman prayed for leave from 26th June, 1976 to 2nd july, 1976. This letter w as marked as Ext. "a/7" by the enquiry officer. However, those two letters were subsequently not traceable in the record of the proceeding. It appears from order No. 15 dated April 16, 1988 and subsequent orders that despite directions by the Tribunal to produce those letters, the company failed to produce those documents. Those two letters could disclose the reason for the absence of the private respondent. Although the enquiry officer mentioned about those two letters in his report, he failed to consider those two letters in the context of the charge levelled against the workman. Under such circumstances, the Tribunal had drawn adverse inference against the petitioner and held that charge No. 3 could not be substantiated unless those two letters disclosing the defence of the petitioner were produced. Under such circumstances, the Tribunal had drawn adverse inference against the petitioner and held that charge No. 3 could not be substantiated unless those two letters disclosing the defence of the petitioner were produced. ( 13 ) AFTER hearing the learned Counsel for the parties and after going through the aforesaid materials, I agree with the Tribunal that the workman in those two letters having explained the reasons of his absence and existence of those letters being admitted by the employer, there was no just reason of withholding those letters. Even no explanation has been given why those two letters were not produced before the Tribunal though filed before the disciplinary proceeding. Under such circumstances, the Tribunal rightly held that the petitioner could not be found guilty on charge No. 3 unless those letters were considered. ( 14 ) I, thus, find no reason to interfere with such finding of the Tribunal holding that the charge No. 3 has not been proved. ( 15 ) THE next question is whether on the basis of findings on charges No. 1 and 2 the Tribunal could set aside the order of dismissal imposed against the private respondent by the employer. ( 16 ) THE Tribunal itself has come to the conclusion that the workman concerned shouted at the Administrative Officer and left for his native place just for few days without waiting for the sanction of his leave. The Tribunal has further held that the wife of the workman was lying seriously ill at his native place in Uttar Pradesh and ultimately she died and under such circumstances, the workman could not keep his temper cool when his emergency leave application was refused by the Management. The Tribunal, thus, was of the view that in such a case, the penalty imposed was too harsh. In the order impugned, the Tribunal, however, described the penalty as "grossly inadequate". ( 17 ) DR. Banerjee has pointed out to this Court that in the leave application the employee prayed for leave on the ground of nephew's marriage and subsequently took the plea of his mother's illness in the second leave application but no plea was taken even in the written statement that those leave applications were made for the wife's illness. Therefore, the findings of the Tribunal that due to illness of his wife he lost his temper is without any basis. Dr. Therefore, the findings of the Tribunal that due to illness of his wife he lost his temper is without any basis. Dr. Banerjee further submits out. that even before Tribunal no material was placed showing that his wife was really ill at that point of time. ( 18 ) MR. Dasan, the learned Advocate appearing on behalf of the workman, on the other hand, contended that although in the leave applications there was no mention of his client's wife's illness, the employee really lost his wife during the period of absence, as a result, he could not join in time. ( 19 ) I, find substance in the contention of Dr. Banerjee that even if the aforesaid explanation given by Mr. Dasan is accepted there was no reason of shouting at the employer when his application was rejected on the ground of want of sufficient number of drivers. I, thus find that the Tribunal totally relied upon a new case that due to illness of his wife the private respondent could not keep his temper cool. Such case of illness of wife was not even made in the leave applications. Thus, the reason assigned by the Tribunal for setting aside the order of dismissal was based on a new case made out before the Tribunal. Even before enquiry officer, the employee did not allege that he prayed for leave to see his ailing wife. ( 20 ) ALTHOUGH the reason assigned by the Tribunal is inappropriate, for that reason, the employer cannot claim that this Court should revive the order of dismissal unless it can convince this Court that even on the basis of two charges proved, dismissal is the appropriate punishment. ( 21 ) AFTER hearing the learned Counsel for the parties and after going through the materials on record, I find that in the past the petitioner was cautioned on four different occasions for improper behaviour. Such fact has not been disputed by the private respondent while giving evidence before Tribunal. It is settled position of law that once insubordination is established and if the employer dismisses an employee on such ground a Tribunal should not disturb such finding unless it is shown that the punishment is highly excessive. Such fact has not been disputed by the private respondent while giving evidence before Tribunal. It is settled position of law that once insubordination is established and if the employer dismisses an employee on such ground a Tribunal should not disturb such finding unless it is shown that the punishment is highly excessive. ( 22 ) TAKING into consideration the fact that first two charges have been proved beyond doubt coupled with the fact that in the past on four different occasions the private respondent was cautioned by the employer for misconduct, if the petitioner decides to dismiss such an employee, there was no just reason to interfere with the order of dismissal and that too, on a wrong ground no borne out by the record, [see Calcutta Jute Manufacturing Co. Ltd. vs. Calcutta Jute manufacturing Union, reported in 1961 (2) LLJ 686 ]. ( 23 ) I, thus, set aside the order passed by the Tribunal and hold that on the basis of the two charges proved in addition to the fact that in the past private respondent was cautioned on four different occasions, there was no scope of interference with the order of dismissal by the Tribunal. The reason for setting aside the order of dismissal in this case is based on misappreciation of materials on record when it is not even the case of the private respondent that he prayed for leave for the visiting his ailing wife. ( 24 ) THE writ application, thus, succeeds. Award impugned herein is set aside. The questions referred to the Tribunal are answered in favour of the employer. ( 25 ) IN the facts and circumstances, there will be, however, no order as to costs. Writ application succeeds.