Chandurkar, J.
1. This is a petition against an award made by the Third Labour Court setting aside the dismissal of respondent No. 2 (hereinafter referred to as 'the workman') and directing the petitioner to reinstate the workman from 17th June, 1969 onwards with continuity of service with full back wages from that date till 10th June, 1970.
2. The workman was appointed as a Junior Stenographer with the petitioner-company by an appointment order dated 6th April, 1965. One of the conditions in the appointment order is that the workman shall diligently and faithfully carry out instructions given to him by his spurious in connection with the business and to the best of his power, skill and ability, he shall improve and further the business and interest of the company or the companies he will be required to serve. It was specifically stated in the appointment order that the appointment is liable to be terminated immediately if in the opinion of the company, he is found guilty of breach of any of the clauses of the appointment order, insubordination, insolence, gross negligence of duty, dishonesty or embezzlement or accepting any commission or discount, etc., from any merchants or outsiders by placing personal consideration of any nature above the company's interests in such cases.
3. The company which manufactures vitamins, fine chemicals, etc., has its depot and sales office at Bombay and the workman was employed at Bombay. Admittedly on 30th May, 1969, the Sales Administrative Officer one Mr. Naik asked the workman to type out delivery challans. As he declined to type out the challans a show-cause notice was, therefore, served on the workman by which he was called upon to show cause as to why disciplinary action amounting to dismissal should not be taken against him. The charge-sheet was given by the Sales Administrate Officer who had stated in the show-cause notice that he had instructed the workman at 12-30 p.m. on 30th May, 1969 to type out delivery challans from the draft shown to him, which he had refused to do. It is further stated that the officer had emphasised that it was the duty of the workman to type out anything dictated or from a draft and that refusal to carry out these instructions amounted to gross indiscipline and insubordination.
4. An extremely brief explanation was given by the workman in writing on 31st May, 1969 which reads as follows :
'The question of explanation to the said charge of indiscipline and insubordination does not arise since I have not committed an act of insubordination or indiscipline as charged. I, therefore, trust that the said letter is immediately withdrawn.'
It is apparent from this reply than his case is that he was entitled to refuse to type out the delivery challans.
5. An enquiry was made into the charge of indiscipline and insubordination in the course of which witnesses were examined and cross examined. The workman stated in the course of the enquiry that he did not want to add anything further to what he had stated in his reply.
6. After he had made this statement witnesses were examined by the enquiry officer. Mr. Naik who had asked the workman to type out the delivery challans was examined and he deposed that the workman had told him that 'It is not my work and I will not do it.' Naik also further stated that he had told the workman that this was typing work and he was supposed to do it as per instructions, but the workman once again said 'I will not do it.' Naik stated that no maintain discipline in office, such an act of flagrant violence of orders cannot be tolerated. When the workman refused to type out the delivery challans, the Regional Sales Officer was present and he was also examined in the course of the enquiry. Another stenographer by name P. G. Nayak was also examined and he deposed that in February, 1969 the workman had typed out statements from a draft given by the management. He was cross-examined by the workman and in cross-examination Nayak had stated that he had drawn the attention of the then Depot Manager to the demand for typist's allowance and that he had further told the Depot Manager that 'our not getting typist's allowance was one of the reasons for refusal', but he further stated that in spite of this, he had typed out statements many a time as instructed by the superiors as this would be a part of normal secretarial job. The workman was then called upon to make any statement which he wished to make after hearing the statements of all the witnesses and he stated, 'I am not given Rs. 10 typing allowance which is being given to the typists.' He admitted that he had not mentioned anything about the typist's allowance in his reply to the show-cause notice. He stated that he did not intend to produce any evidence.
7. The enquiry officer made his report and recorded a finding that the typist's allowance of Rs. 10 was being given under a staff settlement at Bombay, but the junior stenographers were started at a higher salary of Rs. 97.50 whereas the typists started on Rs. 75. The enquiry officer, therefore, observed that the stenographers were not given any allowance for typing since they started at a higher basic salary than the typists. On the evidence the enquiry officer came to the conclusion that the real reason for refusal to obey the orders requiring the delivery challans to be typed was the typist's allowance which the workman wanted and that the workman unjustifiably wanted the typist's allowance even though he very well knew that he was not entitled to the same. The enquiry officer reported that the refusal to obey the orders which were reasonable and lawful was an act of insubordination and gross indiscipline.
8. These findings were accepted by the management. But before passing the order of dismissal, it is the case of the management that Mr. Naik had asked the workman to apologist and since he declined to apologise, the order of dismissal came to be made. The dismissal became effective with effect from 17th June, 1969 as the charge were held to be proved and the misconduct was grave according to the management.
9. The workman raised a dispute and the dispute came to be referred to the Presiding Officer, Third Labour Court, by the Deputy Commissioner of Labour. Witnesses were again examined before the Labour Court. The Labour Court positively rejected the case of the workman that it was not a part of his duty to do the typing work and typing the delivery challans. The management had brought on record a series of delivery challans at Ext. 42 (collectively) which, the workman was forced to admit, were typed by him in spite of his earlier denial of having typed any delivery challans at all. The Labour Court also took the view that it was not necessary to prepare a duty list for a stenographer. It may be noted that the delivery challans typed by the workman had initials 'VR' on them and the workman had gone to the extent of denying that there was any workman whose initials were 'VR' even though he knew perfectly well that they were his own initials. The Labour Court held that the delivery challans were earlier typed by the workman and that the refusal of the workman to type the delivery challans was on the ground of non-payment of typist's allowance and not because it was not a part of his duty. This finding was recorded by the Labour Court after recording earlier a finding that it was a part of his duty to type the delivery challans as a junior stenographer just as he had typed the leave statements, copies of letters and other materials. Consequently the Labour Court also recorded a finding that the workman had refused to do the work which was a part of his duty and this amounted to disobedience to the orders of the superior officers. The Labour Court further observed in its order that an employee has got to be efficient and loyal to the employer within the limitation of his rights and liabilities, reiterating his finding again that the refusal of the workman to type the delivery challans amounts to disobedience of the orders of the superior officers and breach of his service conditions. However, having thus recorded a finding that the workman had disobeyed the orders of his superior officers, the learned Judge proceeded to consider whether the conduct of the workman amounted to insubordination because that was a charge framed against him. Surprisingly, the Labour Court took a view, which on the face of it is clearly perverse, that a solitary or single incidence of disobedience will not amount to insubordination and that it has to be established by the employer in order to prove the charge of insubordination that it was the practice of the employee to behave towards his superiors in an impertinent manner. He laid down a rather astounding proposition that there should be a 'serious of instance of disobedience so as to form a practice with the employee to behave in a disobedient or impertinent manner towards his superiors.' He seems to have come to this conclusion on the basis of a head-note of a decision of a single Judge of the Madras High Court in K. P. Vadivelu v. Superintendent of Police, Salem (1967) 15 IndFac.& Lab. Rep 286. Having laid down the proposition as stated above, he came to the conclusion that such was not the case with the workman and there was only one single act of disobedience and that too under a mistaken notion that it was not a part of his duty, a finding which in terms is contrary tot he finding earlier recorded by the Labour Court that the workman had declined to do the work not because it was not a part of his duty but because he was not being paid a typist's allowance. The Labour Court held that such an act cannot amount to insubordination and on a parity of reasoning, he observed : 'Similar is the case with the charge of indiscipline.' According to the learned Judge, a solitary act of indiscipline cannot be said to prove the charge of indiscipline on the basis of the principle enunciated by him earlier. Consequently, he held that the solitary act of disobedience or indiscipline did not prove the misconduct alleged against him. In other words, he took the view that the misconduct with which the workman was charged was not at all proved.
10. Having recorded these findings, the learned Judge of the Labour Court did not stop there but proceeded further to alternatively consider whether the punishment was shockingly disproportionate even assuming that the charge of insubordination and indiscipline is held as proved. The learned Judge considered the evidence of Naik who had stated that the workman was given an opportunity to apologise and observed that this evidence showed that the alleged misconduct against the workman was of such a nature that it could be sufficiently met with by an apology. He then observed that the refusal to apologise cannot amount to a severe punishment of dismissal and, according to him, the proper order of punishment fro refusing to apologise would have been a severe warning, payment of some fine, withholding of increment for a particular period or suspension for some days. He came to the view that he award of the punishment of dismissal showed that it amounted to victimisation or unfair labour practice. The learned Judge referred to what he called a number of instances of victimisation against the workman such as refusal of permission to attend the Labour Commissioner's office on other occasions to the workman though he was the Vice-President of the union and so on. But he was not inclined to go into the question of victimisation because he has observed : 'I do not think it necessary now in view of the above discussion to consider whether these instances amount to victimisation.' While summing up the order, he made the following observations :
'The consequence of the above discussion is that the punishment for a solitary act of so-called insubordination is shockingly disproportionate and amounts to victimisation or unfair labour practice.'
He, therefore, found it difficult to sustain the order of dismissal under the circumstances an set it aside on the ground of victimisation or unfair labour practice. He, therefore, ordered reinstatement of the workman.
11. Dealing with the question of back wages, the Labour Court found that the workman had secured another gainful employment on a salary of Rs. 645 per month with effect from 8th June, 1970. Consequently, back wages were awarded from the date of dismissal, that is, 17th June, 1969 up to 10th June, 1970.
12. This award is now challenged by the petitioner-company.
13. Mr. Bhatt appearing on behalf of the petitioner has contended that the Labour Court had exceeded its jurisdiction in interfering with the order of punishment made by the employer and that if the workman knew very well that he was not entitled to claim a typist's allowance and he had deliberately disobeyed the order which required him to type the delivery challans, which was a part of his duty, then it was for the employer to decide the nature of the punishment to be awarded for such a misconduct. According to the learned counsel, even a single act of disobedience or indiscipline was sufficient to sustain a charge of insubordination and indiscipline and such conduct could be dealt with by making an order of dismissal. Mr. Bhatt has placed reliance on the observations of the Supreme Court in Anand Bazar Patrika v. Their Employees, : (1963)IILLJ429SC , where the Supreme Court dealt with the extent of jurisdiction of a Labour Court or an Industrial Tribunal and observed as follows :
'The extent of the jurisdiction which a Labour Court or an Industrial Tribunal can exercise dealing with such disputes is well-settled. If the termination of an industrial employee's service has been preceded by a proper domestic enquiry which has been held in accordance with the rules of natural justice and the conclusions reached at the said enquiry are not perverse, the Tribunal is not entitled to consider the propriety or the correctness of the said conclusions. If, on the other hand, in terminating the services of the employee, the management has acted maliciously or vindictively or has been actuated by a desire to punish the employee for his trade union activities, the Tribunal would be entitled to give adequate protection to the employee by ordering his reinstatement, or directing in his favour the payment of compensation : but if the enquiry has been proper and the conduct of the management in dismissing the employee is not mala fide, then the Tribunal cannot interfere with the conclusions of the enquiry officer, or with the orders passed by the management after accepting the said conclusion.'
Relying on these observations, it is urged that no fault has been found by the Labour Court with the enquiry conducted by the management and that no finding has also been recorded by the Labour Court that the order of dismissal of the workman was mala fide or that it was malicious or made vindictively and, therefore, according to the learned counsel, the award directing reinstatement and payment of back wages was clearly in excess of jurisdiction.
14. It was vehemently contended by Mr. Deshmukh appearing on behalf of the workman that this Court in the exercise of its extraordinary jurisdiction under Art. 226 or 227 of the Constitution of India should not sit as a Court of appeal against the award made by the Labour Court shows that the Labour Court has considered all aspects of the question and has come to the conclusion that the punishment awarded is wholly disproportionate to the nature of his conduct, then this Court should not interfere with the award. It is also contended that for merely refusing to type out certain things, the punishment of dismissal was extremely harsh, especially when a lighter punishment could well have been given by the employer and if that has also been considered by the Labour Court, then the award could not be interfered with by this Court in the exercise of jurisdiction under Art. 226 or Art. 227.
15. Now, there can hardly be any dispute with regard to the principles which have to be considered while determine the validity of the award made by a Labour Court in a case where the dismissal order made by an employer is made the subject-matter of a reference before a Labour Court. As observed in Anand Bazar Partika's case, if the enquiry has been properly made and the order of punishment dismissing the employee is not mala fide, then the Industrial Tribunal cannot interfere with the action of the management, but it is also well established that the action of the management is subject to review and scrutiny where the matter is referred to Labour Court and if the workman succeeds in showing that the order of dismissal is mala fide or that it was made to victimise the workman for his trade union activities, the order of dismissal made by the employer can be interfered with by the Labour Court. In addition to such scrutiny of the action of the employer, there is the further jurisdiction of the Labour Court to go into the question as to whether the punishment awarded by the employer is such that no reasonable employer could have imposed that punishment in like circumstances unless it served some other purpose. The Supreme Court in Hind Construction and Engineering Co. Ltd. v. Their Workmen, : (1965)ILLJ462SC , has put the position of law as follows :
'It is now settled law that the tribunal is not to examine the finding or the quantum of punishment because the whole of the dispute is not really open before the tribunal as it is ordinarily before a Court of appeal. The tribunal's powers have been stated by this Court in a large number of cases and it has been ruled that the tribunal can only interfere if the conduct of the employer shows lack of bona fides or victimization of employee or employees or unfair labour practice. The tribunal may in a storage case interfere with a basic error on a point of fact or a perverse finding, but it cannot substitute its own appraisal of the evidence for that of the officer conducting the domestic enquiry though it may interfere where the principles of natural justice or fair play have not been followed or where the enquiry is so perverted in its procedure as to amount to no enquiry at all. In respect of punishment it has been ruled that the award of punishment for misconduct under the standing orders, if any, is a matter for the management to decide and if there is any justification for the punishment imposed, the tribunal should not interfere. The tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe. But where the punishment is shockingly disproportionate, regard being had to the particular conduct and the past record or is such, as no reasonable employer would ever impose in like circumstances, the tribunal may treat the imposition of such punishment as itself showing victimisation or unfair labour practice.'
16. The validity and the legality of the award made by the Labour Court will have to be tested on the touchstone of the principles enunciated by the Supreme Court in the Hind Construction & Engineering Co.,'s case and the Anand Bazar Patrika's case. Now, before we go to that part of the award which deals with the order of dismissal, we consider it necessary to point out the apparent error into which the Labour Court has fallen when it boldly proceeded to lay down a proposition of law that a single act of insubordination will not amount to misconduct in respect of which disciplinary proceedings could be taken against a workman. In all fairness to the learned counsel for the workman, it must be said that this part of the observations made by the Labour Court was not supported by him. However, since the learned Judge of the Labour Court purported to lay down certain propositions basing them on a reported decision, we consider it necessary to deal with that question. The charge made against the workman was one of insubordination and indiscipline, both based on his conduct of refusing to obey what had been found to be lawful orders of the superior officer. The conduct of the workman consisted of declining to type out delivery challans which was a part of his duty and it has been so found even by the Labour Court. There is, therefore, no difficulty in holding that he had disobeyed a lawful order. If there was no valid reason justifying such conduct, the disobedience would also amount to an act of indiscipline.
17. Now it is difficult to see why such disobedience will not amount to insubordination. The learned counsel appearing on behalf of the workman wanted to draw a distinction between disobedience and insubordination and it was contended before us that unless there is a flagrant disobedience or rebellious disobedience, the conduct of a workman cannot amount to insubordination. In our view, this argument is plainly contrary to the very concept of insubordination. A subordinate officer or employee is duty bound to obey a lawful order of a superior officer. That such is the duty of a subordinate officer is not required to be stated in so many words in any list of duties. The concept of obedience is implicit in the fact that the officer receiving the order is subordinate to the officer giving the order and a lawful order has to be obeyed, unless there is good justification for not complying with such a lawful order. It is this conduct of declining to obey an order which not only results in disobedience, but the conduct of the workman would also amount to insubordination. The Concise Oxford Dictionary gives the meaning of the word 'insubordinate' as 'disobedient, rebellious'. The two meanings given by the dictionary do not mean that only a rebellious conduct would amount to insubordination, but even disobedient conduct would amount to insubordination. The Random House Dictionary gives the meaning of 'insubordinate' as follows : 'Not submitting to authority : disobedient, one who is insubordinate'. These meanings would indicate that any person who is disobedient becomes insubordinate and his conduct amounts to insubordination. Therefore, where a workman disobeys a lawful order, he can be said to be guilty of insubordination and it needs hardly to be stated that a misconduct of disobedience and insubordination would also amount to indiscipline. We have, therefore, no difficulty in holding on the finding recorded by the Labour Court that it was a part of the workman's duty to type the delivery challans and his declining to do so would clearly amount to insubordination and indiscipline.
18. It is difficult for us to appreciate the view taken by the Labour Court that there must be a series of disobedient conduct for acts of indiscipline before a workman can be charged with insubordination or indiscipline. As already pointed out, the Labour Court has unambiguously stated in the award that one single act of disobedience will not amount to an act of insubordination or an act of indiscipline. If each act of disobedience would result in act of insubordination and indiscipline, then it is difficult to see what warrant there is for the proposition which is being laid down by the learned Judge that a workman cannot be charged for insubordination in respect of one act.
19. Apparently the learned Judge has not cared to read in full the decision of the Madras High Court. If he had done so, he would have found out that the head-note in the report is wholly misleading and it was unfair to the learned Judge who decided the case in Madras to attribute to him a proposition which he has not even laid down in that decision. In view of the fact that the decision is reported in a journal dealing with the labour law and it is likely to be cited before Labour Courts, we would like to deal with that case in a little detail.
20. Now, the petition in that case which the learned single Judge was deciding was under Art. 226 of the Constitution and possibly on the original side of the High Court and dealt with the dismissal of a public servant. The petitioner in that case was a police constable who was challenging an order of compulsory retirement from service on the ground that when he was under suspension, he entered into an agreement with the Block Development Officer to construct a school building in his village and a further charge of insubordination was made against him, namely, that when he was asked to answer some queries put by the Deputy Superintendent of Police, he replied in an insolent and impertinent manner. While the petitioner was under suspension from December 18, 1955 to September 18, 1956, he was in his home town where his mother had undertaken to raise a school building in her native village and an agreement was entered into between the petitioner's mother and the Block Development Officer. In pursuance of this agreement, the construction of the building had begun, but as it was about to be completed. The petitioner's mother passed away and the building remained unfinished. The petitioner being in the village during his period of suspension, the Collector and the Revenue Officers requested him to complete the building. The petitioner had told them that he was a Government servant and he could not, therefore, conduct that work. He was, however, persuaded that no permission of the Government was necessary. The petitioner contributed Rs. 2,000 and the school building was completed. After the period of suspension, the petitioner joined his duty and during that time, the Block Development Officer sent a communication to the District Superintendent of Police complaining that the petitioner, who was working as a Head Constable, did not complete the school building even after the bill was paid to him. In the course of correspondence between the petitioner and the Police authorities, one of the queries made to the petitioner was answered as follows : 'When I said I undertake to supervise and not any contract basis the question of Circle Inspector does not arise at all.' This statement became the basis of the charge for insubordination. Though the petitioner was absolved of the first charge, namely, that he undertook to construct the building without the permission of the officers, the Deputy Superintendent of Police who conducted the enquiry recommended that his answer in reply to the query amounted to insubordination. The Superintendent of Police did not accept the view of the reporting officer on the first charge and on both the charges the petitioner was held guilty and made to retire compulsorily from service. This order was challenged by the petitioner in the writ petition. The petitioner was absolved of the first charge by the High Court. When the High Court dealt with the second charge, the question posed was whether the answer given by the petitioner amounted to insubordination. The learned Judge referred to the following meaning of the word 'insubordination' from American Words and Phrases, Permanent Edition, Volume 21, pages 698-699 :
''Insubordination' in a civil service implies intentional, wilful disobedience.
Insubordination can be rightly charged against a police officer only upon refusal to obey to some order which a superior officer is entitled to give and have obeyed.
'Insubordination' of employee imports wilful disregard of express or implied direction and refusal to obey reasonable orders, and, when established, warrant his discharge.'
The learned Judge referring to the reply given by the petitioner observed :
'If he has uttered these words personally before the officer concerned, which depends upon the tone, pose and the way in which he conducted himself before the superior officer, certainly if his tone was in aggressive nature and his pose was insolent and impertinent manner and if he does not conduct himself according to the status, then certainly 'insubordination' can be assumed.'
But according to the learned Judge, the sentence in the written communication could not be treated as of an aggressive type and, therefore, according to the learned Judge, that communication did not amount to insubordination. Then the following observations were made :
'The petitioner's charge of insubordination can be fitting only when the servant is insulting or insubordinate to such a degree as to be incompatible with the continuance of the relation of master and servant. Can we say that the disputed sentence 'when I said I undertaken to supervise and not any contract basis the question of Circle Inspector, does not arise at all, amounts Co.'s case, the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe. When the Supreme Court has further gone on to observe that in case the punishment is shockingly disproportionate regard being had to the particular conduct of the workman, the test was that no reasonable employer would ever impose such punishment in like circumstances, and then alone the Tribunal would be entitled to treat the punishment as amounting to victimisation or unfair labour practice. Now, it is not the finding of the Labour Court anywhere that for such misconduct, no other employer would have awarded a punishment of dismissal. Indeed why the Labour Court took the view that the punishment is shockingly disproportionate is not to be found in its order. The Labour Court has positively come to the conclusion that it was the duty of the workman to type the delivery challans and he had declined to do what was his duty.
23. Now, the evidence of the workman, if it is carefully gone into, shows that this workman has hardly any regard for truth. Initially at the stage of the show-cause notice, the refusal to type the delivery challans was sought to be justified and, according to him, he had not disobeyed any order at all because, according to him, he had not committed any act of insubordination or indiscipline. His reply shows that he declined to say anything in defence. That at the stage of the enquiry, he came out with the excuse that he was not given Rs. 10 as typing allowance. The excuse which is trotted out at the stage of the enquiry shows that the refusal to carry out the lawful and reasonable order which required him to type out the delivery challans was a deliberate. In other words, the act of disobedience is a deliberate act of disobedience. We have already referred to the fact that this workman had gone to the extent to even denying that he had ever typed delivery challans, though he was later on constrained to admit it because those delivery challans bore his initials 'VR'. In the course of his evidence before the Labour Court, he initially struck to the case that it was not his duty to type the delivery challans and made a positive statement that during four years of service, he had not typed delivery challans at all, a statement which is patently false. A case of victimisation was sought to be made out at the stage of evidence before the Labour Court and he made a statement that Naik had stated harassing him by refusing his leave application and he produced three leave applications. The object of this statement was clearly to bring in an element of victimisation. The workman was, however, forced to admit in paragraph 12 of his evidence that on all the three occasions in the period of two months, when he had applied for leave and when he was working under Mr. J. G. Naik, the leave was granted to him. How, if such is the workman who has hardly any regard for truth and who indulges in a deliberate act of disobedience, could it be said that there was material before the Labour Court to come to the conclusion that no reasonable employer would have awarded the punishment of dismissal in case of insubordination
24. It was contended by Mr. Deshmukh that the circumstances as they transpired in the course of the evidence before the Labour Court could not be taken into consideration because, according to him, though on material disclosed in evidence in respect of the same incident a fresh charge could be made because some evidence has become available in the course of the enquiry, the workman cannot be punished for this new charge which could have been leveled. It is not possible for us to see how this argument is relevant. When we refer to the conduct of the workman, we are considering it for the limited purpose as to whether it was possible for the Labour Court to come to the conclusion that the punishment is so grossly disproportionate that no employer, if he was dealing with a workman like the respondent would have passed an order of dismissal. In our view, the order of the Labour Court does not indicate as to how he has come to that conclusion. As already pointed out, the fact that a lenient view could have been taken by the employer because a lesser punishment was permissible was no ground for holding that the punishment was so outrageous or grossly out of proportion to the guilt that it must be interfered with.
25. A stenographer is an essential part of any commercial or administrative office. If lawful orders are disobeyed by him, it is not necessary to measure in terms of money the loss that may be caused or the inconvenience that may be caused in order to decide whether he should be punished in the course of a departmental enquiry or not. The very fact that a responsible employee like a stenographer indulges in deliberate disobedience of lawful orders, in our view, is sufficient to warrant a punishment of dismissal.
26. Mr. Deshmukh had contended that in the Hind Construction & Construction & Engineering Co.'s case, the misconduct consisted of 11 employees not coming to work on the day on which they were called and which was originally scheduled to be a holiday. It is pointed out that even though 11 people had abstained from work, the Supreme Court had upheld the award which had set aside the orders of dismissal.
27. Now, to say the least, matters relating to disciplinary proceedings cannot be decided on analogy and each case will have to be considered on the facts independently.
28. In the view which we have taken, it is not possible for us to sustain the ward of the Labour Court. It is clearly in excess of jurisdiction inasmuch as it proceeds to interfere with the punishment on grounds which are not permissible in law and is, therefore, quashed.
29. The petition is thus allowed. Rule absolute. However, there will be no order as to costs.