JUDGMENT : A.S. BOPANNA, J. 1. The appellant management is before this court in this writ appeal assailing the order dated 17.12.2015, passed by the learned Single Judge in WP(C) 4343/2013. 2. The respondent herein, who was working in the appellant tea estate, was proceeded against for misconduct alleged against him. In response to the charge-sheet dated 26.09.2008, reply was furnished and, on an enquiry being held, the respondent being found guilty of the charges, was terminated from the services of the appellant management on 03.07.2010. 3. The respondent herein, claiming to be aggrieved by the same, had raised a dispute, which came to be referred to the Labour court, Assam, Dibrugarh, in Reference Case No. 3/2011. The validity or otherwise of the domestic enquiry held against the respondent was considered as the preliminary issue and, on finding the same to be fair and proper, the Labour court proceeded further to consider as to whether there was any perversity in the finding of the enquiry officer and the action taken by the management. The Labour court, through the award dated 18.09.2012, was of the opinion that the appellant management was justified in its action and had, accordingly, rejected the Reference without interfering with the order of punishment. The respondent herein, claiming to be aggrieved by the award dated 18.09.2012, passed by the Labour court, instituted a writ proceeding in WP(C) 4343/2013. The learned Single Judge, having considered the rival contentions, was of the opinion that the findings of the award passed by the Labour court, in so far as holding the domestic enquiry to be fair and proper as also the finding of the enquiry officer not admitting of any perversity were concerned, were justified. However, the learned Single Judge was of the opinion that the Labour court had not, thereafter, proceeded further to exercise its discretion as available under Section 11A of the Industrial Dispute Act, 1947 (hereinafter referred to as “the Act”) and, in that light, the learned Single Judge, having exercised such discretion, was of the opinion that the punishment of termination from service, as imposed, was disproportionate and, accordingly, set aside the order of termination and directed reinstatement of the respondent with all benefits. It is in that light the appellant management, claiming to be aggrieved by the order passed by the learned Single Judge, dated 17.12.2015, is before this court in this appeal. 4. It is in that light the appellant management, claiming to be aggrieved by the order passed by the learned Single Judge, dated 17.12.2015, is before this court in this appeal. 4. In the above background, we have heard Mr. Y.S. Mannan, learned counsel appearing for the appellant as also Ms. A. Bhattacharyya, learned counsel for the respondent. We have also perused the appeal papers. 5. The contention put forth on behalf of the appellant, essentially, is that in a circumstance where the validity of the domestic enquiry is held to be fair and proper and there is no perversity in the finding recorded by the enquiry officer and, to that effect, when a consideration is made by the Labour court as well as by the learned Single Judge, the learned Single Judge would not be justified in invoking discretion available under Section 11A of the Act. Hence, it is contended that in such circumstance, the learned Single Judge has committed a serious error in setting aside the punishment imposed by the management which was based on a charge, which had been proved in the enquiry and such proving of the charge was after complying with the principles of natural justice since the finding is to the effect that the enquiry held was fair and proper. In that light, it is contended that the order of the learned Single Judge is liable to be set aside. 6. Learned counsel for the respondent has attempted to sustain the order passed by the learned Single Judge. It is contended that the decision as referred to by the learned Single Judge to arrive at the conclusion is justified. In order to consider the contention, as put forth herein, we have also adverted to the decisions on which the learned counsel for the appellant has placed reliance on in support of his contentions. In so far as the exercise of the power under Section 11A of the Act, as made by the learned Single Judge is concerned, and to contend that it was not open to do so, the learned counsel for the appellant has relied on the decision of the Hon’ble Supreme Court in the case of South India Cashew Factories Workers’ Union vs. Kerala State Cashew Development Corporation Ltd. and Others, reported in (2006) 5 SCC 201 . On the very same point, the decision of the Hon’ble Supreme Court in the case of Davalsab Husainsab Mulla vs. North West Karnataka Road Transport Corporation, reported in (2013) 10 SCC 185 is relied upon. 7. A perusal of the said judgments with specific reference to paragraph Nos. 16 and 12, respectively, in the said judgments would indicate that in the said decisions, the Hon’ble Supreme Court had adverted to the power available to be exercised under Section 11A of the Act and the manner in which such power is to be exercised. Though the learned counsel for the appellant would contend that in a circumstance where the validity of the domestic enquiry is upheld and there is no perversity, the power under Section 11A of the Act would not be available to be exercised, a perusal of judgments would reveal that the consideration, as made by the Hon’ble Supreme Court, is not to the said effect. The Hon’ble Supreme Court, in fact, had indicated that the power under Section 11A of the Act is available to be exercised only in a case where the punishment imposed is that of dismissal or discharge. The observation to the effect that the manner in which an interference is to be made when the findings are not perverse and principles of natural justice are complied with is with reference to the power of the Labour court to interfere in a circumstance, which is, in fact, not in the exercise of power under Section 11A of the Act but while considering the correctness or otherwise of the action taken by the management based on the evidence that is available before the Labour court in considering that aspect of the matter. Hence, exercise of power under Section 11A is clearly held by the Hon’ble Supreme Court to be exercised in a circumstance where the consideration with regard to the proportionality of the punishment is to be considered even if the misconduct is proved. In that view, when the learned Single Judge, in that circumstance, exercised the power under Section 11A of the Act, to that extent we find that the power, as exercised by the learned Single Judge, is justified. 8. In that view, when the learned Single Judge, in that circumstance, exercised the power under Section 11A of the Act, to that extent we find that the power, as exercised by the learned Single Judge, is justified. 8. Having arrived at the above conclusion, the other issue that requires consideration is as to whether in the present facts the learned Single Judge was justified in setting aside the entire punishment while exercising the discretion and not imposing any alternate punishment. 9. Learned counsel for the appellant would contend that in the instant facts the charge alleged against the respondent workman is that he had entered the chamber of the proprietor of the tea estate and had abused him in filthy language. In that light, it is contended that such misconduct, which was proved in the enquiry, is of serious nature which does not call for exercise of the discretion under Section 11A of the Act and the punishment of termination from service cannot be termed as disproportionate. In support of his contention, the learned counsel for the appellant has relied on the decisions of the Hon’ble Supreme Court in the case of Mahindra and Mahindra Ltd. vs. N. B. Naravade and Others, reported in (2005) 3 SCC 134 and in the case of Bharat Heavy Electricals Ltd. vs. M. Chandrasekhar Reddy and Others, reported in (2005) 2 SCC 481 . 10. It is, no doubt, true that in the said decisions the Hon’ble Supreme Court, while taking note of the nature of misconduct that was involved in the cases, had arrived at the conclusion that the punishment, as imposed, was justified and cannot be held to be disproportionate. While saying so, the Hon’ble Supreme Court had also referred to its earlier judgments in the case of Orissa Cement Ltd. vs. V. Adikanda Sahu and New Shorrock Mills vs. Maheshbhai T. Rao to indicate that the punishment of dismissal for using abusive language cannot be held to be disproportionate and such punishment cannot be interfered with exercising the power under Section 11A of the Act. 11. Having taken into consideration the said decisions, we are of the opinion that what is also to be kept in view is the circumstance in which the misconduct would be committed and the nature of consideration that is required in that regard. 11. Having taken into consideration the said decisions, we are of the opinion that what is also to be kept in view is the circumstance in which the misconduct would be committed and the nature of consideration that is required in that regard. In the instant case, the respondent had served for nearly 31 years in the appellant management. There is no material on record to indicate that at any earlier point in time the respondent workman had indulged in any other misconduct, or a similar misconduct, for which a lesser punishment had been imposed upon him and he had been provided with an opportunity to reform himself. In that circumstance, what is also to be kept in view is the status of the person and the nature of employment and the related circumstances wherein such instances would occur. In that regard, we cannot lose sight of the fact that the respondent was working as a outdoor Mohorar in the said tea estate and, in that circumstance, even if certain undesirable language was uttered, that by itself cannot be the basis to pass order of termination which amounts to economic death penalty to a workman who would earn his livelihood by such employment. In that circumstance, even if the charge is held to be proved, a lesser punishment could have been imposed on the respondent and an opportunity to reform himself ought to have been provided. Therefore, if the order, as passed by the learned Single Judge, is taken into consideration, it appears that the learned Single Judge had kept in view this aspect of the matter and it is in that circumstance the learned Single Judge had thought it fit to exercise his discretion under Section 11A of the Act and had set aside the order of termination. 12. Though we have arrived at such conclusion, the ultimate conclusion, as arrived by the learned Single Judge, would not be justified. This is for the reason that even after the learned Single Judge having arrived at the conclusion that the punishment, as imposed, is disproportionate and having concluded that the order of termination was to be set aside and the respondent was to be reinstated, the learned Single Judge ought to have imposed an alternate lighter punishment on the respondent when the charge had been proved. Therefore, to that extent, the order of the learned Single Judge would call for modification. Having said so, while considering the aspect relating to the imposition of alternate punishment, it is brought to our notice by the learned counsel for the respondent that the respondent has attained the age of superannuation during the month of June, 2018. If that be so, the situation of reinstating the respondent in service and imposing another punishment would not arise. 13. Be that as it may, when the benefit of exercise of power under Section 11A of the Act is to be extended to the respondent, an appropriate modification of the order of the learned Single Judge is required to be made and, at the same time, for the charge proved, some penalty is required to be imposed. Hence, the order of the learned Single Judge, in so far as setting aside the order of termination is concerned, is upheld. In that view, the appellant management shall provide the respondent continuity of service from the date of his dismissal till the date of his actual superannuation for working out the terminal benefits including the gratuity payable to the respondent. In that regard, for the purpose of computing gratuity, the wage that would have been earned by the respondent workman as on the date of his actual superannuation, if he had continued in service, shall be reckoned and the gratuity amount shall be calculated and paid to the respondent accordingly. Though the denial of back wages normally would not be construed as a punishment, in the instant case, since the charge against the respondent is proved and upheld and no other punishment could be imposed, the respondent is held not entitled to the back wages. 14. In terms of the above modifications of the order passed by the learned Single Judge, the instant appeal stands disposed of.