2017 PLP 5 (PLC N)

ALI SAIN DINO METLO, MEMBER.

The appellant has challenged judgment, dated 22nd January, 2010, of the Sindh Labour Court No.04, Karachi, dismissing his Application No.208 of 2007, for reinstatement in service with all back benefits.

2. Briefly, the facts are that, on 31st October, 2007, the appellant filed application in the labour court contending that, on 01st January, 2005, the respondents appointed him as helper, on son quota, as his father, after serving the respondents for 36 years and five months, had retired as tyre builder. On 07th August, 2007, the respondents dismissed the appellant from service on the charge of remaining absent, without leave, for 15 days from 02nd July, 2007 to 16th July, 2007. His contention, supported by a medical certificate, that he was unwell and had sent them such message through a coworker, was not accepted by them.

3. In their written reply, the respondents challenged maintainability of the application and contended that, on proof of charge of absence from duty in an enquiry, the appellant was rightly dismissed from service.

4. The appellant examined himself; while the respondents examined their notified manager, Syed Najam Ahmed. The labour court, while holding the application as maintainable, dismissed it on the ground that absence of the appellant was deliberate and intentional, as he had failed to prove that he was not in a position to submit application for leave.

5. Finding of the labour court about maintainability of the application is unexceptionable. The argument of learned counsel for the respondents, that a worker can challenge his removal in labour court only when he is removed from employment in connection with or as a consequence of an industrial dispute or his removal has led to that dispute, is not tenable. In the case of Mustehkum Cement Limited v. Abdul Rashid (1998 SCMR 644), it was held that if termination of workman did not arise from an industrial dispute, his remedy was available under the Standing Order 12(3). The precedent is being referred to and constantly followed, for which reference may be made to the cases of Pak Arab Refinery Limited v. Muhammad Rashid (1999 SCMR 373) and Muslim Commercial Bank Limited v. Muhammad Shahid Mumtaz (2011 SCMR 1475 = 2009 PLC 281).

6. The precedents of the cases of Board of Governors Aitchison College, Lahore v. Punjab Labour Appellate Tribunal (2001 SCMR 1928) and Muhammad Nawaz Bhatti v. President, Muslim Commercial Bank Limited (2008 SCMR 1377), cited by the learned counsel for the respondents, are not relevant to the facts of this case. The ratio of the first case was that Aitchison College was not an industrial or commercial establishment and the ratio of the second case was that charge of embezzlement had been proved against the officer of the bank and he had failed to establish that he had been victimized due to his past trade union activities. Moreover, the respondents have also not filed appeal or cross objection against findings of the labour court about maintainability of the application.

7. The findings of the labour court about rightful dismissal of the appellant from service and consequent dismissal of his application are not sustainable. The punishment of dismissal from service awarded to the appellant is not commensurate with his fault. It was his first absence and the respondents have not claimed that they had suffered any loss due to that. In the case of Allied Bank Limited v. Syed Nasir Abbas Naqvi (2007 SCMR 1143), it was held that punishment must be commensurate with gravity of charge and there must be some control on exercise of power of employer in the matter of determining degree of punishment and the labour court, in a proper case, might modify the penalty awarded by the employer and substitute it with any other sort of penalty under the law.

8. In the case of Humayun Zia v. Federation of Pakistan, reported in 2011 PLC (C.S.) 301 Karachi, dismissal of an executive director of an insurance company, for remaining absent for 15 days, was converted into censure and he was directed to be reinstated in service. In the case of Muslim Commercial Bank Limited v. Ghulam Muhammad Memon, reported in 2008 PLC 40 Karachi, a bank employee dismissed from service for absence of more than 10 days was reinstated in service on the ground that punishment of dismissal was too severe for first time absence.

9. There is no force in the argument of learned counsel for the respondents that, besides absence, the appellant was guilty of making false statement and fabricating false medical certificate. No such charge was made or proved against him. Failure to prove a plea or document does not amount to making false statement or document. The medical certificate produced by the appellant was not even sent for verification.

10. In view of the above facts, circumstances and reasons, I am of considered opinion that punishment of dismissal from service awarded to the appellant is too severe and is not commensurate with his misconduct of first time absence of 15 days. The appellant is worker of the lowest grade and, therefore, punishment of reduction to a lower grade cannot be awarded to him. Thus, for substitution, there remains only one punishment i.e. withholding of increment or promotion. Accordingly, punishment of dismissal from service awarded to the appellant is converted into withholding his increment for one year. The appellant, being guilty of misconduct, is not entitled to back benefits. The respondents are, therefore, directed to reinstate the appellant in service without back benefits immediately. The appeal is disposed of accordingly. JK/30/SLT Order accordingly.