WP(C) 5363/2010 B E F O R E HON’BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA JUDGMENT & ORDER (ORAL) Heard Ms. A Bhattacharjee, learned counsel for the petitioner, workman. Also heard Ms. M Hazarika, learned Senior counsel for respondent No.1, being the Management of Udalguri Tea Estate and Mr. S Bharali, learned State counsel for the respondent No.2, being the Presiding Officer of the learned Labour Court, Di brugarh. 2. The petitioner was engaged as a Hazira Mohurrer in the respondent tea es tate and he has been working as such from the year 1976. The nature of job entru sted to the workman was such that he was not required to handle any cash, but on the other hand, he was required to mark the attendance of the workers who repor t for duty and also to call out the names at the time of payment of wages. 3. It is stated that the workman had a blemishless career throughout his se rvice life except the charges that was brought against him, when he was served w ith the charge sheet dated 27.09.1993 wherein the following two charges were fra med against him: 1. It has been found that you have included fictitious names of workers without any authority in the Pay Book No.05 of the Forthnight commencing from 0 1/09/93 to 14/09/93 with clear intention to misappropriate the Company’s fund by falsification of wages of those workers whose names are attached hereto alongwi th the surplus amount totaling to Rs.2487/-. 2. It is also found that you have entered names of certain Sub-Staffs an d P.F. workers in the Temporary Workers Pay Book No.05 during the above mentione d period i.e., 01/09/93 to 14/09/93 without any permission whatsoever. This act of yours is highly objectionable and irregular as immense loss of money from the Estate fund is recorded. 4. The petitioner by his communication dated 30.09.1993 had submitted his d efence statement by stating that the names of the workers were included in the p ay book as per the verbal order of the Manager and the Zamadar Babu and a stand was also taken that it was the prevailing practice in the garden whereby the nam es of labourers to be included were informed to the workmen by the Management ve rbally and also by providing certain slips. 5. Consequent to such proceeding, the petitioner was dismissed from service by the order dated 19.11.1993. As against such dismissal, a reference was made by the Labour and Employment Department of the Govt. of Assam in its Notificatio n dated 05.12.1996 on the following questions: (i) Whether the Management of the Udalguri Tea Estate, PO: Panitola, Dis t: Dibrugarh is justified in dismissing Sri Sumbeswar Senapaty, Garden Morurrier from service of the company? (ii) If not, is he entitled to reinstatement with full back wages or any other relief in lieu thereof? 6. In the written statement before the learned Labour Court, the petitioner workman had taken a stand that the names included in the pay book were not fict itious and that the same were included as per the verbal instruction of the Mana ger and others, as well as through the method of issuing slips, which according to the petitioner/workman was a prevailing practice in the garden. On the other hand, the Management in their written statement had taken a stand that the petit ioner had indulged in an act of including fictitious names in the pay book which resulted in certain losses being suffered by the Management and also the names were included without there being any permission of the Management. 7. The Labour Court in its award dated 30.12.2009 had arrived at a conclusi on as regards the charge No.1 that the Management had failed to substantially es tablish that the workman had entered fictitious names of the workers in the pay book No.5 on the fortnight mentioned in the charge sheet and, accordingly, it wa s held that the Management had failed to establish the said charge. 8. With regard to the charge No.2, the learned Labour Court while consideri ng the evidence of MW-4 had arrived at a conclusion that the said evidence remai ned unchallenged during cross examination and also the workman had not adduced a ny further evidence to indicate that the charge against him is not proved. Furth er the workman had also failed to establish that the fictitious names were inclu ded in the pay book on the instruction of the Manager and that a method of inclu ding names by slip was also a prevailing practice. Accordingly, the learned Labo ur Court arrives at a conclusion that the charge No.2 against the petitioner wor kman had been proved. It is noticed that the difference between the charge Nos.1 and 2 is that the charge No.1 pertains to inclusion of names in pay book No.5 w hich is related to the permanent workers of the garden whereas the charge No.2 p ertains to inclusion of names pertaining to the temporary workers of the garden. Otherwise, the purport of the charge Nos.1 and 2 are more or less same, inasmuc h as, the names of fictitious persons are included in the pay book. 9. Accordingly, the learned Labour Court arrives at a conclusion that the c onduct of the workman which had been proved in respect of charge No.2 makes the management loose its faith in the petitioner/workman. From the facts on records, what is discernible is that the charges against the workman are that on a given fortnight he had included certain fictitious names in the pay book for the temp orary workers. No further allegations had been proved that the petitioner by doi ng so had also caused an undue financial gain in his favour. 10. In the said premises, when the conclusion of the learned Labour Court is examined, it is noticed that the learned Labour Court firstly was of the view t hat it is a settled position of law that once a charge against a delinquent is e stablished, it is for the Management to decide the quantum of punishment and, or dinarily, a Court/Tribunal would not interfere unless the punishment is unconsci onable or grossly out of proportion and, accordingly, relies upon the decision r endered in 2004 (III) LLJ 600 (AP). 11. Accordingly, the learned Labour Court concludes that in view of the natu re of misconduct committed by the workman, the punishment of dismissal from serv ice is not unconscionable or grossly out of proportion. In this respect, it is n oticed that other than stating that the learned Labour Court was of the view tha t the punishment of dismissal from service is not unconscionable and or grossly out of proportion, no further reason has been given as to why the learned Labour Court had arrived at such a conclusion. The punishment of dismissal from servic e is the ultimate punishment and while justifying the same, it is also the duty of the learned Labour Court to examine the nature of the charges that had been p roved and also arrive at a conclusion as to whether the gravity of the charges i s such that the ultimate punishment of dismissal from service is justified. 12. In the present case as already indicated above, it is noticeable that it has not been proved against the petitioner that he had done an act for any fin ancial gain of his own or that he had continued to do that act over a long perio d of time so as to cause a substantial financial loss to the Management. The cha rges that has been proved against the petitioner workman indicates that he was i nvolved in an act which is fraudulent in nature and also indicative of an elemen t of dishonesty, which may justify for the Management not desiring to retain him in service any further. But punishment other than dismissal are also available in order to achieve the same purpose and the learned Labour Court had not explor ed the option as to whether any such other punishment also could have been impos ed. 13. In such view of the matter, it is deemed appropriate that the matter be remanded back to the learned Labour Court to determine the limited question as t o whether the punishment of dismissal from service should be retained or the des ired purpose can also be achieved by imposing a marginally lesser punishment, wh ich may also justify the requirement of the management that the workman is not t o be retained in service. It is made clear that no interference has been made by this Court as regards the conclusion of the learned Labour Court as regards its finding in respect of charge No.2. 14. The aforesaid exercise of considering the matter afresh be carried out w ithin a period of 6(six) months from the date of receipt of a certified copy of this order and the learned Labour Court shall issue notices to the petitioner/wo rkman as well as the Management for doing the needful. 15. In terms of the above, this writ petition stands disposed of.