The main legal point established in the judgment is the court's reliance on the admission of misconduct, repetition of misconduct, and the nature of the charge to support the proportionality of the penalty imposed.

JUDGMENT & ORDER :

The legality and validity of an Award dated 31.12.2010 passed by the learned Labour Court of Assam at Dibrugarh in Reference Case No. 01/2007 is the subject matter of this writ petition. By the impugned Award, the dismissal order dated 07.01.2022 in respect of the workman concerned has been upheld.

2. Before going to the issue which has arisen for determination, it would be convenient if the facts of the case are narrated in brief.

3. The petitioner – Workman Md. Saffauddin Ali was working as an Office Clerk in the Koomtai Tea Estate, i.e., the respondent no. 1. On 19.07.2001, a Charge Memo was issued to the said respondent which pertains to non deposit of food-staff (ration money) to the labourers. The details of the period and the amount involved have also been given in the said Charge Memo. It has also been reflected that there have been earlier instances of similar nature and accordingly the workman was directed to submit his response. By the said order, the workman was also placed under suspension.

4. The aforesaid Charge Memo was replied to by the workman on 23.07.2001. In the said reply, the workman has admitted his guilt of not depositing the amount. He has however prayed for condoning his default and has cited certain personal reasons for utilizing the money for such purpose.

5. The matter was enquired into and vide the order dated 07.01.2002, the workman was dismissed from service. The dismissal order clearly reflects that there was a domestic enquiry and there has been earlier instance which was also documented in form of communication dated 21.02.2000.

6. The aforesaid order of dismissal was raised as a dispute on behalf of the workman by the Sangha by way of reference before the learned Labour Court of Assam at Dibrugarh and accordingly the aforesaid Reference Case No. 01/2007 was registered.

7. Both the Sangha and the Management had filed written statements. The Management had also filed additional written statement. The learned Labour Court after initiation of the proceedings had recorded the evidence of the workman and two numbers of Management witnesses, namely, one Bodhen Ch. Bora and one Romendra Nath Baruah. After discussion of the materials, the learned Labour Court had passed the Award dated 31.12.2010 whereby the order of dismissal has been upheld. As indicated above, it is the legality and correctness of the order which have been questioned by way of this writ petition.

8. I have heard Ms. A. Bhattacharya, learned counsel for the petitioner whereas the Management is represented by Shri P. Das, learned counsel. The LCR which have been transmitted to this Court have also been carefully perused.

9. Ms. Bhattacharya, the learned counsel has made the following submissions:

(i) The charge is not of misappropriation and the expression of misappropriation has been incorrectly used.

(ii) The amount in question has been returned back and therefore there cannot arise any case of misappropriation at all.

(iii) The penalty of dismissal is not only harsh but disproportionate vis-a-vis the nature of the charge against the petitioner.

10. The learned counsel for the petitioner has submitted that the amount in question having been returned, there was no occasion for taking a decision of imposing the severe penalty of dismissal and this aspect of the matter was not taken into consideration by the learned Labour Court. The provisions of Section 11A of the Industrial Tribunal Act, 1947 (herein after Act) has also been referred to which gives jurisdictional power to the Labour Court/Industrial Tribunal to make necessary change/amendments in the penalty in an appropriate case.

11. The learned counsel has however clarified that long after the order of dismissal, the petitioner has now been engaged as a TET Teacher and therefore would not pray for any reinstatement. She however submits that if the dismissal order is interfered with, appropriate orders for payment of back wages may be passed in accordance with law.

12. In