WRIT PETITION 5363/2010 on 27 September 1993

1. It has been found that you have included fictitious names of workerswithout any authority in the Pay Book No.05 of the Forthnight commencing from 01/09/93 to 14/09/93 with clear intention to misappropriate the Company’s fund byfalsification of wages of those workers whose names are attached hereto alongwith the surplus amount totaling to Rs.2487/-.2. It is also found that you have entered names of certain Sub-Staffs and P.F. workers in the Temporary Workers Pay Book No.05 during the above mentioned 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 theEstate fund is recorded. —

4. The petitioner by his communication dated 30.09.1993 had submitted his defence statement by stating that the names of the workers were included in the pay 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 names of labourers to be included were informed to the workmen by the Management verbally 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 Notification dated 05.12.1996 on the following questions:

(i) Whether the Management of the Udalguri Tea Estate, PO: Panitola, Dist: Dibrugarh is justified in dismissing Sri Sumbeswar Senapaty, Garden Morurrierfrom service of the company?(ii) If not, is he entitled to reinstatement with full back wages or anyother relief in lieu thereof?

6. In the written statement before the learned Labour Court, the petitionerworkman had taken a stand that the names included in the pay book were not fictitious and that the same were included as per the verbal instruction of the Manager 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 petitioner had indulged in an act of including fictitious names in the pay book whichresulted 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 conclusion as regards the charge No.1 that the Management had failed to substantially establish 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 was held that the Management had failed to establish the said charge.

8. With regard to the charge No.2, the learned Labour Court while considering the evidence of MW-4 had arrived at a conclusion that the said evidence remained unchallenged during cross examination and also the workman had not adduced any further evidence to indicate that the charge against him is not proved. Further the workman had also failed to establish that the fictitious names were included in the pay book on the instruction of the Manager and that a method of including names by slip was also a prevailing practice. Accordingly, the learned Labour Court arrives at a conclusion that the charge No.2 against the petitioner workman had been proved. It is noticed that the difference between the charge Nos.1and 2 is that the charge No.1 pertains to inclusion of names in pay book No.5 which is related to the permanent workers of the garden whereas the charge No.2 pertains 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, inasmuch as, the names of fictitious persons are included in the pay book.

9. Accordingly, the learned Labour Court arrives at a conclusion that the conduct 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 givenfortnight he had included certain fictitious names in the pay book for the temporary workers. No further allegations had been proved that the petitioner by doing so had also caused an undue financial gain in his favour.

10. In the said premises, when the conclusion of the learned Labour Court isexamined, it is noticed that the learned Labour Court firstly was of the view that it is a settled position of law that once a charge against a delinquent is established, it is for the Management to decide the quantum of punishment and, ordinarily, a Court/Tribunal would not interfere unless the punishment is unconscionable or grossly out of proportion and, accordingly, relies upon the decision rendered in 2004 (III) LLJ 600 (AP).

11. Accordingly, the learned Labour Court concludes that in view of the nature of misconduct committed by the workman, the punishment of dismissal from service is not unconscionable or grossly out of proportion. In this respect, it is noticed that other than stating that the learned Labour Court was of the view that 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 LabourCourt had arrived at such a conclusion. The punishment of dismissal from service 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 proved and also arrive at a conclusion as to whether the gravity of the charges is such that the ultimate punishment of dismissal from service is justified.

12. In the present case as already indicated above, it is noticeable that ithas not been proved against the petitioner that he had done an act for any financial gain of his own or that he had continued to do that act over a long period of time so as to cause a substantial financial loss to the Management. The charges 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 element of dishonesty, which may justify for the Management not desiring to retain himin 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 explored the option as to whether any such other punishment also could have been imposed.

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 to whether the punishment of dismissal from service should be retained or the desired purpose can also be achieved by imposing a marginally lesser punishment, which may also justify the requirement of the management that the workman is not to be retained in service. It is made clear that no interference has been made bythis Court as regards the conclusion of the learned Labour Court as regards itsfinding in respect of charge No.2.

14. The aforesaid exercise of considering the matter afresh be carried out within 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/workman as well as the Management for doing the needful.

15. In terms of the above, this writ petition stands disposed of.