JUDGEMENT : 1. Heard Mr. P. Kataki, the learned counsel appearing for the petitioner. The respondent Brahmaputra Valley Fertilizer Corporation Ltd., Namrup (hereinafter referred to as ‘the Management’) is represented by the learned senior counsel Mr. M. Z. Ahmed. 2. The petitioner after due selection was appointed as Tradesman (Instrumentation) in the Corporation on 15.5.1985 at the Namrup-III Project and his service was confirmed in that post on 21.3.1986. The appointee was promoted as Technician Grade-III (Inst.) w.e.f. 31.7.1987 and subsequently he was promoted on 4.12.1995 to the Technician Grade-II cadre. But while securing promotion to the Technician Grade-II cadre, the petitioner was considered against a ST vacancy because of the ST certificate produced by him and while securing promotion 4.12.1995, the petitioner superseded his senior colleague Mr. B.K. Phukan in the General category. Subsequently the petitioner was again promoted as Technician Grade-I on 12.9.2001. 3. On 1.6.2006 (Annexure-XII), the Management issued a charge memo where it was alleged that at the time of his promotion from Technician Grade-III to Technician Grade-II against a ST quota vacancy, the petitioner furnished a false ST certificate although he does not belong to the tribal community and accordingly he was asked to show cause to the charge of misconduct. In his reply dated 7.6.2006 (Annexure-XIII), the petitioner admitted that he belongs to the Ahom (OBC) community but had mistakenly submitted the ST certificate and accordingly he apologied for his lapses and applied for exoneration, to enable him to continue in service. Unsatisfied with the reply, an Enquiry Officer was then appointed. The petitioner participated and pleaded guilty to the charge before the Enquiry Officer. Consequently the charges were found to have been proved in the report dated 12.10.2006 (page 35). 4. The disciplinary authority accepted the inquiry finding and issued the 2nd show cause notice proposing the penalty of dismissal. In his reply dated 21.11.2006, the petitioner applied for leniency by projecting that he cooperated with the disciplinary proceeding and that he secured his initial appointment with the Corporation on merit after due selection as a general category candidate. However through the order dated 18.12.2006 (Annexure-XVIII), the disciplinary authority ordered for dismissal of service under Clause 39(ii)(d) of the Standing Order for the Namrup Unit of the Fertilizer Corporation of India (re-named now as the Brahmaputra Valley Fertilizer Corporation Ltd.). 5. However through the order dated 18.12.2006 (Annexure-XVIII), the disciplinary authority ordered for dismissal of service under Clause 39(ii)(d) of the Standing Order for the Namrup Unit of the Fertilizer Corporation of India (re-named now as the Brahmaputra Valley Fertilizer Corporation Ltd.). 5. The learned counsel for the petitioner while accepting the charge of misconduct submits that the punishment is disproportionate to the misconduct. Mr. P. Kataki, learned counsel projects that it was the petitioner himself who first informed on 24.8.2001 of being an OBC category person, whereafter the Tribal Employees Association on 11.9.2002 made a complaint to the Management and accordingly it is argued that this factor should have been taken into account by the authorities, while imposing the punishment against the charged employee. 6.1. On the other hand, Mr. M.Z. Ahmed, the learned senior counsel argues that the petitioner secured promotion by furnishing a false ST certificate although he was well aware that he belongs to the Ahom (OBC) community and in this circumstance the Management contends that the punishment is proportionate to the misconduct, as the employee superseded his General category colleagues, while getting undeserved promotion to the Technician Grade-II cadre, in the Corporation. 6.2. The Management’s counsel relies on (2008) 4 SCC 612 (Union of India vs. Dattatray) and (2005) 7 SCC 690 (Bank of India vs. Avinash D. Mandivikar) to argue that when undeserved service benefit is secured by a person with false certificate, he can’t claim equitable relief from Courts in a challenge to a disciplinary proceeding. 7. In the present case, the petitioner by virtue of his misrepresentation secured out of turn promotion to the Technician Grade-II cadre on 4.12.1995 to a post earmarked for ST category persons but what is relevant is that he originally entered service on merit as a General category person on 15.5.1985. Thus the misconduct was committed at the time of promotion. The issue therefore is whether the punishment of dismissal is proportionate to the charged misconduct in the present matter. 8. In both the cases cited by the Management’s lawyer, the concerned persons secured employment on the basis of false caste certificate and therefore the Apex Court opined that their continuation in service secured through misrepresentation cannot be allowed. The issue therefore is whether the punishment of dismissal is proportionate to the charged misconduct in the present matter. 8. In both the cases cited by the Management’s lawyer, the concerned persons secured employment on the basis of false caste certificate and therefore the Apex Court opined that their continuation in service secured through misrepresentation cannot be allowed. But in the instant case, the initial appointment of the petitioner was regular but subsequently he secured out of turn promotion on the basis of misrepresentation which led to the charge of misconduct. 9. One may also consider the fact that the delinquent himself informed the Tribal Employees Association of furnishing the undeserved ST certificate and the falsification came to light at first instance from the delinquent himself. This indicates the dawn of realization of his mistake and the petitioner’s attempt to rectify the same. 10. If the petitioner would not have secured the out of turn promotion against the ST category vacancy by making a false representation, normally he would have continued in service until the age of superannuation but the impugned disciplinary action renders the petitioner jobless. 11. In the context of the above facts and circumstances, I feel that the penalty of dismissal was rather harsh and the ends of justice will be better served by awarding any other major penalty provided under Sub-Clause (a), (b) and (c) of Clause 39(ii) of the Standing Order for the Namrup Unit of the Fertilizer Corporation of India. 12. Following the above conclusion, I interfere with the dismissal order dated 18.12.2006 (Annexure-XVIII), passed by the Manager (HR) of the Brahmaputra Valley Fertilizer Corporation Ltd. The Management is thus permitted to impose any other penalty except that of dismissal and removal from service, provided under Sub-Clause (d) and (e) of Clause 39(ii). But since the Management has not received any service from the petitioner during the interregnum, he shall not be paid any back wages upon reinstatement. It is ordered accordingly. 13. With the above order, this petition stands allowed to the extent indicated. No cost.