S.N. Phukan, J.

1. This petition under Article 226 of the Constitution of India is directed against the Award dated 24.4.1985 passed by the learned Presiding Officer, Labour Court, Guwahati, in Reference Case No. 42 of 1981.

2. Briefly stated facts are follows:

The petitioner who was an Internal Audtor of M/s. Howrah Motor Company Limited, joined the post of Senior Assistant under Respondent No. 2 on 15.7.71. On 10th May, 1980 a disciplinary proceeding was drawn up against the petitioner by Respondent on the charge that on 17.4.1980 at about 9-45 A.M. the petitioner spoke in rude and impolite manner to the Depot Manager of the Respondent company at Guwahati. A domestic enquiry was held. The charge was proved and the petitioner was discharged from service with effect from 25.11. 1980. As the petitioner was a workman, the Industrial Dispute was referred to the Labour Court by the Government of Assam. on 31.7.1981. The learned Presiding Officer, Labour Court by the order dated 16.5.1984 took up the issue, namely, whether the domestic enquiry was fair and proper as a preliminary one and by the impugned judgment and order the issue was decided in favour of the management. On perusal of the impugned order we find that the learned Tribunal also considered whether the punishment of removal was justified as required under section 11-A of the Industrial Disputes Act, 1947 and held that in order to maintain discipline in future extreme punishment of termination of service was necessary and accordingly did not interfere with the order of removal. Hence the present petition.

3. Mr.Sen, learned counsel for the petitioner relying on decisions of the Apex Court urged before us that the punishment of removal from service of the petitioner was disproportionate to the offence, and as such, the learned Tribunal erred in law in upholding the orders of the management. In support of his contention Mr. Sen has placed reliance in Ratia Kanta Misra vs. State of U.P. and others, (1982) 3 S.C.C. 346 and Ved Prakash Gupta vs. M/S. Delton Cable India (P) Ltd., AIR (1984) S.C. 914. Mr. Sen did not, however, raise any objection before us in respect of the finding of the learned Tribunal that the domestic enquiry conducted by the Respondent No. 2 was fair and proper. So the only question which needs our consideration is whether the punishment was disproportionate to the offence.

4. In Rama Kant Misra (supra), the workman was dismissed from service by the management for disorderly behaviour and conduct, inasmuch as he threatened an employee within the premises of the management. The threatening language alleged to have been used by the workman reads as follows:

"Are other persons your father. I will make you forget your highhandedness either here or somewhere else. An officer of yesterdays making discloses power consciousness."

5. The Apex Court took into consideration that the management did not show that there was any balme-worthy conduct of the workman during the period of his 14 years of service. Their Lordships observed, "when it is said that language discloses a threatening posture it is the subjective conclusion of the person who hears the language because voice modulation of each person in the society differs and indiscreet, improper, abusive language may show lack of culture but merely the use of such language on one occasion unconnected with any subsequent positive action and not preceded by any blameworthy conduct cannot permit an extreme penalty of dismissal from service". Relying on the well recognised principle that penalty to be imposed for misconduct must be commensurate with the gravity of the offence charged, their Lordships interfered with the order by setting aside the dismissal order and directing reinstatement of the workman but withholding two increments with future effect.

6. In Ved Prakash Gupta (supra) the workman was dismissed from service by the management which was set aside by the Labour Court as the punishment of dismissal was disproportionate to the gravity of the charge framed. The charge was that the workman without any rhyme or reason or provocation abused another workman in a filthy manner saying `I fuck the mother of Durga Sing; bring him.`Upholding the decision of the Labour Court, their Lordships observed that there was nothing on record to show any adverse remark against the appellant and held that even if he had in fact abused in filthy language as alleged, the punishment awarded was shockingly disproportionate. Their Lordships further observed that no responsible employer would ever impose in the circumstances of that case the punishment of dismissal of the employes and that victimisation or unfair labour practice can well be inferred from the conduct of the management in awarding the extreme punishment of dismissal for a flimsy charge of abuse of some workers or officer of the management within the factory premises by the workman.

7. Relying on the ratio of the above two decisions of the highest Court of the country, we hold that in absence of any adverse remark against a workman prior to the date of alleged offence of abuse of another workman or officer in filthy language may not warrant the extreme penalty of dismissal or removal from the service as the penalty may not be commensurate with the gravity of the offence charged.

8. Mr. Choudhury, learned counsel for the Respondents Nos. 2 and 3 has urged that use of abusive language may at times warrant the penalty of removal or dismissal from the service as situation may differ from place to place. According to Mr. Choudhury, use of such language may not be a serious misconduct in other parts of the country but may be so here. That apart, Mr. Choudhury has further drawn our attention to the fact that in the case in hand the workman abused his immediate superior without any provocation. 9. Regarding provocation Mr. Sen, has urged that though the petitioner joined the Respondent-Company in 1971 he has been denied any promotion though he is otherwise qualified and this is sufficient to provoke the petitioner to use abusive language against the Respondent No. 3 as according to the petitioner the Respondent No. 3 was responsible for not getting promotion. We find considerable force in the submission of Mr. Sen.

10. Regarding the first contention of Mr. Choudhury that use of abusive language may not warrant the dismissal or removal from service as it may be grave misconduct in some parts of the country, we are unable to accept his contention in view of law laid down by the Apex Court.

11. In the instant case the following words were used by the petitioner, viz, `you shut up, `you keep quiet, `mind your language, `shut up your mouth, `hold your tongue. I warn you not to provoke me and learn to respect me, `mind you, if I am to quit from this office, I will see you go first, `If I am to die, you will die with me. Keeping in view the law laid down by the Apex Court we are of the opinion that removal of the petitioner from service was not justified for using these words.

12. Mr. Choudhury has drawn our attention that the learned Tribunal considered punishment as required U/S. 11-A of the Industrial Disputes Act, 1947, and as such, writ Court may not interfere with the finding of the learned Tribunal that in order to maintain discipline in future extreme punishment of termination of service was necessary. We have perused the award more particularly the reasons of the learned Tribunal for arriving at the above finding and we are constrained to hold that the learned Tribunal did not take into consideration the law laid down by the Apex Court as stated above. From the order dated 3.1.85 passed by the learned Tribunal we find that argument was heard only on the domestic enquiry. We are, therefore, of the opinion that the above law laid down by the Apex Court was not brought to the notice of the learned Tribunal. In our opinion this is a fit case for remanding the reference back to the learned Tribunal for deciding the question of punishment keeping in view the law laid down.

13. We, therefore, set a side award and the finding of the learned Tribunal under Section 11-A of the Industrial Disputes Act, 1947 regarding the quantum of punishment and remand the reference to the learned Tribunal with the direction that after hearing the parties, the learned Tribunal shall pass appropriate orders in accordance with law.

In the result, the petition is allowed to the extent indicated above. Parties are left to bear their own costs.