2016 PLP 276 (PLC)

ALI SAIN DINO METLO, MEMBER.

The appellant has challenged order dated 25th October, 2011 of the Sindh Labour Court No.I, Karachi, reinstating the respondent in service with full back benefits.

2. Briefly, the facts are that the respondent, who was working as waiter in the appellant club since 10th November 2006, resigned on 18th April 2007 and his resignation was accepted on the same day. However, on the very same day, the respondent sent, by post, an application to the President of the club for not accepting his resignation contending that he had resigned under pressure. According to him, Staff Assistant Sajjad Haider and Security Supervisor Manzoor asked him to give false evidence in an enquiry against coworker Muhammad Saeed, and on his refusal, they forced him to resign.

3. On receiving the application, the competent authority i.e. the Secretary of the appellant, through letter dated 7th May, 2007, directed the respondent to join duty immediately, failing which it would be presumed that he was misplaying his resignation and it would be treated as final. The respondent, instead of joining duty, informed the appellant, through letter dated 10th May, 2007, that he would not join duty unless his resignation was declared void. However, on receiving charge sheet dated 22nd May, 2007, about his unauthorized absence from 10th May, 2007, the respondent reported for duty on 26th May 2007.

4. After an enquiry in which it was proved that the respondent had remained absent unauthorizedly from duty for more than 10 days, the appellant dismissed him from service on 16th November 2007.

5. On receiving application of the respondent that he had resigned under pressure, the appellant readily revoked acceptance of the resignation and directed him to join duty. However, as it appears, the respondent mistook appellant's grace as weakness and tried to take its undue advantage by putting unnecessary condition. His refusal to join duty was uncalled for. It would have been proper, if the respondent had joined duty before receiving the charge sheet.

6. The Labour Court reinstated the respondent mainly on the ground that the hands of the appellant were not clean. This may be a mitigating circumstance, but not a reason for complete exoneration. The respondent's act of not joining duty after he was directed to do so amounts to misconduct within the meaning of Standing Order 15(3)(e). However, punishment of dismissal is too severe, particularly when on receipt of the charge sheet, he readily reported for duty with thanks giving up the little bit arrogance which had crept in him on receipt of letter for joining duty.

7. The award of punishment provided under Standing Order 15 must fulfill the requirements of old aphorism 'let the punishment fit the crime' and the proportionality which is the other name of retributive justice. It requires that the level of punishment must be scaled relative to the severity of offending behavior. For this reference may be made to the cases of Personnel/Factory Manager, Packages Ltd., Lahore v. Yousuf Masih (1987 PLC 668 Lahore), Muslim Commercial Bank Ltd. v. Ghulam Muhammad Memon (2008 PLC 40 Karachi) and Muhammad Ali S. Bokhari v. Federation of Pakistan through Establishment Secretary, Islamabad (2008 SCMR 214).

8. In the present case, the respondent's allegation that he was forced to resign is not without substance. The appellant itself took it into consideration and revoked acceptance of the resignation. The respondent did not show adamancy in not joining duty for long and reported for duty on 26th May 2007 i.e. on 16th day of receiving the letter for joining the duty. In these peculiar circumstances of the case, extreme action of dismissal was unwarranted. Accordingly, respondent's dismissal from service is converted to withholding his one increment for one year and in this way the appeal is disposed of as partly allowed. HBT/31/SLT Order accordingly.