1. ' FAISAL ARAB, J.--- In the year 1985, Sterling Products Pakistan Limited, a public limited Company, employed Gulzaman Khan as a helper in its production department. The said Company was converted into private limited company and renamed as Pharmatec Pakistan (Pvt.) Limited. After becoming a private limited company, its management desired to seek ISO 9001 certification. To achieve this all its employees had to be at least matriculate. The case of the company is that in the year 2003 the company in order to find out that all its workers are matriculate, audited the particulars of all its workers and upon verification from Board of Education, it transpired that metric certificate submitted by Gulzaman at the time of his appointment in 1985 was bogus. The company further claimed that upon such disclosure, show-cause notice was issued to Gulzaman in 2004. He was charge-sheeted for furnishing bogus matriculation certificate. Gulzaman was therefore, called upon, to show cause as to why disciplinary action should not be taken against him.
2. ' Gulzaman respondent to the show-cause notice by stating that he is neither a matriculate nor he ever submitted any bogus matric certificate to the company. He further stated in his reply that in the year 1985 he was appointed as a helper and there was no such requirement that a helper has to be matriculate. He further averred that there never existed any employment policy of the company requiring a helper to be a matriculate and therefore, there was no occasion for him to submit matriculation certificate. Gulzaman further submitted that at time of his applying for the job, his signature was obtained on a blank application form, which has been filled in by the company's management in order to use it for his expulsion from service. Gulzaman concluded by stating that furnishing of matric certificate has been falsely attributed to him, which act is tainted with malice.
3. ' The management found the reply to be unsatisfactory and initiated domestic inquiry against Gulzaman. In the inquiry proceedings, Gulzaman cross-examined the representative of the company, who admitted that there were two other non-matriculate workers working in production department but tried to explain it away by stating that both of them are working in production department upon their transfer and were not directly recruited to work in such department.
4. Gulzaman was also cross-examined by the company's representative before the Inquiry Officer. In answer to a question, Gulzaman admitted his signature on the application form. However, he explained this by saying that the same were obtained from him on blank application which has been filled in by the management in order to show that at the time of seeking employment, he represented that he is matriculate.
5. ' Upon completion of the inquiry, the management came to conclusion that Gulzaman committed misconduct by furnishing bogus matric certificate and dismissed him from service.
6. ' Gulzaman Khan then served grievance notice which too was rejected. This led to filing of grievance application under section 46 of IRO, 2002 before the Sindh Labour Court Karachi.
7. Gulzaman reiterated his stand which he took before the Inquiry officer. Gulzaman's grievance application was resisted by the company on the ground that there was in place company's employment policy that required a helper to possess at least minimum educational qualification uptil matriculation and as Gulzaman never possessed such qualification, he got the job by submitting bogus matric certificate. The company further maintained that when this certificate upon its verification turned out to be fictitious, disciplinary action was taken against Gulzaman and he was rightly dismissed from service.
8. ' The Labour Court did not accept the version of the company and ordered Gulzaman's reinstatement in service. However, Gulzaman's prayer for back benefits was denied to him. Both the parties preferred separate appeals. The company in its appeals challenged the order of reinstatement whereas Gulzaman challenged that part of the order of the Labour Court which denied him back benefits. Through this common judgment I shall be disposing of both these appeals.
9. ' The questions which need to be examined are (i) whether at the time of taking Gulzaman into service there existed employment policy that a helper has to be at least matriculate; (ii) whether Gulzaman did furnish fake matric certificate.
10. ' Learned counsel for the appellant Mr. Shahid Anwar Bajwa argued that the application form submitted in the year 1985 shows that Gulzaman is matriculate in science and having admitted his signature on the application form, it clearly establishes the fact that he misrepresented to the company that he was matriculate. Mr. Bajwa further submitted that it was only upon verification of Gulzaman's qualification from the Board of Education that it was found that his matric certificate was bogus and only thereafter disciplinary action was initiated against him. In support of his submissions that there was justification for removal of Gulzaman from service, Mr, Bajwa has relied upon 1994 PLC 373; 1987 PLC 638; 1983 PLC 620; 1972 PLC 83. The first two cases are High Court judgments and I would discuss these two cases.
11. ' In the case of President, Habib Bank Ltd. v. Manzoor Hussain reported in 1994 PLC 373, a person was appointed by the Bank on the condition that his appointment shall stand revoked if any information given by him is found to be fabricated. The employee had submitted fake educational certificate which was sent for verification and was found to be bogus. Consequently, he was dismissed from service and the Court upheld his dismissal. In the case of Muhammad Izharul Ahsan Qureshi v. Pakistan International Airlines Corporation and 2 others reported in 1987 PLC 638, an employee who was originally employed in 1967 as a peon submitted matric certificate and marks sheet to get the post of Librarian. He got the post on such basis but. Subsequently upon verification the matric certificate and mark sheets were found to be forged. Disciplinary action was initiated against him and he was dismissed from service, which action was upheld by the Court.
12. ' From the facts of these two cases it can be seen that in the first case admittedly it was one of the conditions of appointment that if false information is provided, the appointment shall be revoked.
13. In the second case the worker who was performing as peon got the job of the Librarian by claiming that he is matriculate, which qualification turned out to be false. The very assignment of a Librarian suggests that a person should be educated enough to perform as a Librarian. Obviously, one cannot adequately perform duties as a Librarian if one is not even matric. Therefore, the employee was rightly dismissed from service and the High Court in such circumstances rightly upheld the dismissal order.
14. ' Mr. Shahenshah Hussain, learned counsel for Gulzaman, in response to Mr. Bajwa's argument that Gulzaman furnished fake matriculation certificate, submitted that in the first place there did not exist any employment policy which required a helper to be a matriculate. He elaborated his argument by contending that the fact that no employment policy was produced in evidence by the company is sufficient to establish that no such employment policy existed at all. Mr. Shahenshah Hussain further contended that the very fact that there were two other non-matric workers, working in the production department to the satisfaction of the company belies the plea of the company that a helper has to be a matriculate. Mr. Shahenshah Hussain therefore, submitted that the management in its desire to dismiss Gulzaman from service has come up with the false allegations of submission of bogus matric certificates and the false plea that employment policy required a helper to be matriculate.
15. ' With regard to Mr. Shahenshah's argument that there did not exist any company policy requiring a helper to be at least matriculate, Mr. Bajwa, referred to paragraph No,6 of affidavit of evidence filed by the witness of the company wherein it was asserted that the qualification for a helper was that he should at least be matriculate.
16. ' In order to initiate disciplinary action against Gulzaman on the ground that he ought to have possessed minimum qualification of being a matriculate, it was imperative for the company to have established in evidence that at a time of taking Gulzaman into service there existed an employment policy that a helper has to be a matriculate. Mere plea of existence of such a policy in paragraph 6 of the affidavit-in-evidence of its witness, without any documentary support was not enough. Such policies are always in writing. If there was any, it should have been produced by the company in evidence to discharge its burden of proof. It was all the more necessary to produce such 'policy when admittedly two other non-matric workers were also working as helpers.
17. Admittedly, no such policy was produced in evidence. All this goes to show that no such policy ever existed. Even otherwise had such policy existed, the fact that non-matric were still taken into job as helpers meant that such policy was not strictly enforced. This would have given this Court another reason to reject justification for taking action against company's employment policy.
18. ' Mr. Bajwa, in reply has also argued that job description of Gulzaman is not of a helper but is of a process worker and Gulzaman in his grievance application has himself shown to be a process worker. Mr. Bajwa therefore, maintained that in discharge of his duties as process worker it was all the more necessary that Gulzaman should have been at least matriculate. This argument has no significance as in the application form submitted by Gulzaman, his job description is that of a helper and it is the case of the company that it was company's policy that helper has to be matriculate. Therefore, Gulzaman's present position as process worker is immaterial to the controversy in hand.
19. ' This: brings this Court to the second question i,e, misrepresentation of Gulzaman that he was matriculate. Gulzaman in his cross-examination has admitted that the application form which he submitted at the time of seeking employment was signed by him. As to this admission Mr. Shahenshah Hussain contended that his admission is qualified with the fact that it was obtained on a blank application form and in the entire cross-examination of Gulzaman, no question was put to him to controvert Gulzaman's plea that signatures on a blank application form were obtained from him.
20. ' It is also to be examined that a worker who provides false information about himself whether such false information has become basis for obtaining any undue benefit from his employer. If false information which is attributed to a worker, does not in any manner entitle him to derive any undue benefit then the possibility that such false information has been wrongly attributed to him by the management to seek his removal cannot be ruled out. The employer are custodians of records of workers. It is quite common practice in this part of the world that the workers while taking up job sign blank employment forms. This leaves room for a dishonest employer to attribute any false information to a worker in order to initiate disciplinary action at a time of his own choosing.
21. However, one cannot loose sight of the fact that a worker too can take a false defence in proceedings initiated against him that employers is attributing false information to him which the worker may have himself provided to his employers. However, in the facts of the present case such wrongdoing can easily be detected by examining the question whether it was really required of a helper to be matriculate. Admittedly, it has not been established by the company that there was in place employment policy requiring even a helper to be a matriculate. There was also no evidence to the effect that Gulzaman's middle pass qualification in any way interfered with his performance as helper. It has not been pleaded that as a helper or process worker Gulzaman was found lacking in performance of his duties. He started working as a helper in 1985 and then over the years he was made process worker. This shows that Gulzaman's education was never an issue so as to interfere with the performance of his duties as helper or process worker. When Gulzaman's ability did not lack in any manner in performance of his duties as helper or process worker then even if he had misrepresented that he was matriculate which in the present case he has not, the extreme action of dismissal from service is not warranted under the law. In this regard it is necessary to examine the provisions of Standing Order 15 of Industrial and Commercial Employment (Standing Orders)
22. Ordinance, 1968, which reads as follows:-- "15. Punishments. --- (1) A workman may be reprimanded or fined in the manner prescribed under the Payment of Wages Act, 1936 (IV of 1936), upto three paisa in the rupee of the wages payable to him in a month, for any of the following acts or omissions, namely:--
(i) in cases where the Payment of Wages Act, 1936 (IV of 1936), is applicable, the list of acts and omissions for which fine may be levied shall be same as approved by the Chief Inspector of Factories or any other officer concerned;
(ii) in other cases, the following shall be list of acts and omissions-
(a) disregard or disobedience of rules or orders;
(b) improper behaviour, such as drunkenness;
(c) making false or misleading statements
(d) inefficient, dilatory, careless or wasteful working;
(e) main lingering,
(2) A workman found guilty of misconduct shall be liable to any of the following punishments:--
(i) fine in the manner prescribed under the Payment of Wages Act, 1936 (IV of 1936), upto three paisa in the rupee of the wages payable to him in a month;
(ii) withholding of increment or promotion for a specified period not exceeding one year;
(iii) reduction to a lower post, or
(iv) dismissal without payment of any compensation in lieu of notice. (3) The following acts and omissions shall be treated as misconduct:
(a) wilful insubordination or disobedience, whether along or in combination with others, to any lawful and reasonable order of a superior;
(b) theft, fraud, or dishonesty in connection with the employer's business or property;
(c) wilful damage to or loss of employer's goods or property;
(d) taking or giving bribes or any illegal gratification;
(e) habitual absence without leave or absence without leave for more than ten days;
(f) habitual late attendance;
(g) habitual breach of any law applicable to the establishment;
(h) riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline;
(i) habitual negligence or neglect of work;
(j) frequent repetition of any act or omission referred to in clause (1);
(k) striking work or inciting others to strike in contravention of the provisions of any law, or rule having the force of law;
(1) go-slow.
23. ' Order 15(1)(ii)(c) provides for reprimanding or imposing fine on a worker on account of his making false or misleading statements. Standing Order 15(2) provides for punishment which could be awarded by an employer to a workman found guilty of misconduct. Standing Order 15(3) defines various acts and omissions of workmen are to be treated as misconduct. Even for misconduct, punishments such as fine, withholding of increment or promotion uptill one year or reduction to a lower post are also provided and the extreme action of dismissal from service is not the only recourse that an employer has to resort to as a punishment. Punishment should always commensurate with the extent of worker's guilt and the harm that it has caused to the employer.
24. The act of worker's misrepresentation, unless it is frequently repeated in terms of Standing Order 15(3)(j) has not been termed as misconduct. In the present case the company failed to establish that there was an employment policy or recruit only matriculate as helpers and has also failed that Gulzaman misrepresented himself to be matriculate. However, even if Gulzaman had misrepresented that he was matriculate, it is to be termed as innocuous as there is no evidence to the effect that Gulzaman's middle pass qualification in any way interfered with his performance as helper or that he was found lacking in performance of his duties in any manner. He started working as a helper and then over the years he was made process worker. This shows that Gulzaman's education was never an issue so as to interfere with the performance of his duties as helper or process worker. In such circumstances if at all the employer wants to punish a person for misrepresentation, the punishments provided in Standing Order 15(1) could be awarded but certainly not under Standing Order 15(2) as one time misrepresentation is not one of the acts or omissions treated as misconduct under Standing Order 15(3). As stated earlier even for misconduct there are other lesser punishments prescribed in Standing Order 15(2)(i) to (iii) other than the extreme punishment of dismissal under Standing Order 15(2)(iv).
25. ' It may be noted that acts and omissions such as insubordination, disobedience, theft, fraud, dishonesty in connection with employer's business or property, wilful damage or loss caused to employer's property, taking or giving bribes or illegal gratification, habitual absence without leave or absence without leave for more than ten days, habitual late coming to work, habitual breach of any law applicable to the establishment, riotous or disorderly behaviours or act of subversion of discipline, habitual negligence or neglect of work, frequent repetition of any act or omission referred in clause (1) of Standing Order 15, going on strike or inciting others to strike in contravention of law or rule having force of law and going slow are all such acts treated as misconduct.
26. Misrepresentation simpliciter which has not caused any harm to the employer and has been committed once has not been termed as misconduct under the provision of clause (3) of Standing Order 15.
27. ' Mr. Bajwa next questioned the maintainability of grievance application on the ground that no grievance notice as required by law was served by Gulzaman prior to the filing of the grievance application before the Labour Court. In support of his argument, he submitted that Gulzaman ought to have addressed his grievance notice dated 10-6-2004 to factory manager but instead he addressed it to manager and therefore, such notice cannot be treated as grievance notice under the law. In support of this contention Mr. Bajwa relied upon 2002 SCM R 943 and 2006 PLC 39.
28. ' In the first case the employee after his dismissal from service filed appeal before the appellate authority but failed to serve any grievance notice as contemplated under section 25-A of repealed I.R.O.
29. 1969. An objection was raised before the Labour Court that as no grievance notice was served upon the employer, his grievance application is incompetent. This objection was controverted by the employee on the ground that the appeal to the appellate authority may be considered as grievance notice. The Supreme Court recognizing the distinction between the appointing authority and the appellate authority came to the conclusion that appeal filed before the appellate authority cannot be considered as grievance notice section 25-A of the repealed I.R.O. 1969 as appellate authority cannot be considered appointing authority. In the second case, grievance notice was considered invalid as it was not addressed to the appointing authority but to Chairman Review Board. In the present case, Mr. Shahenshah Hussain argued that the receipt of grievance notice, dated 10-6-2004 by the Factory manager is not denied. On the contrary he submitted that Factory Manager has responded to the grievance notice vide his letter, dated 20-6-2004 and this by itself establishes that grievance notice was not only received by the Factory Manager but was also responded by him and thus, the legal requirement of serving a grievance notice upon the factory Manager stands satisfied. In view of such an incontrovertible position as to the service of grievance notice and its reply by the competent authority, the two judgments cited by Mr. Bajwa in support of his argument are not applicable to the present case.
30. ' Mr. Shahenshah Hussain then argued that Labour Court in spite of ordering reinstatement of Gulzaman in service and in spite of his plea that he remained jobless, ought to have also awarded him back benefits. As back benefits were not awarded, Gulzaman had to file separate appeal seeking such relief. In support of this argument for grant of back benefits Mr: Shahenshah Hussain has relied upon the case reported in 1993 SCM R 105. As to the claim for back benefits to Mr. Bajwa argued that in order for a claim for back benefits to succeed, it is imperative for a worker to establish through cogent evidence that he remained jobless. He relied upon an old Indian decision of Malik Dairy Farms v. Their Workers' Union wherein it was held that where a worker is reinstated on account of his wrongful dismissal, the Labour Court cannot award full back wages unless the worker proves that he remained unemployed in spite of his efforts to minimize his loss during the period of his dismissal. In the present case Gulzaman in paragraph 17 of his grievance petition and paragraph 16 of his affidavit-in-evidence has clearly stated that on account of his dismissal from service, he has been rendered jobless having left with no means of earnings. No question was put to him in his cross-examination before the Labour Court to suggest that his claim of being jobless or that he was gainfully employed during the period of his dismissal. All this establishes the fact that Gulzaman after his dismissal remained jobless entitling him to get back benefits. In the case of National Bank of Pakistan v. Punjab Labour Appellate Tribunal reported in 1993 SCM R 105, the Supreme Court .Held that where the dismissal order has been set aside unconditionally, then back benefit have to be paid by the employer. This Court is bound by the judgment of the Supreme Court.
31. ' Mr. Shahenshah Hussain lastly argued that in fact the contents of entire affidavit-in-evidence of Gulzaman filed before the Labour Court went unchallenged as no question was put to Gulzaman on, any material point stated by him in his affidavit-in-evidence. Mr. Bajwa in response to Mr. Shahenshah Hussain's argument that the affidavit-in-evidence of Gulzaman went unchallenged stated that Gulzaman in his cross-examination admitted the entire inquiry proceedings produced in Labour Court as Exh.A/1, which included the cross-examination of Gulzaman conducted before Inquiry Officer and therefore, such cross-examination has become part of the evidence adduced before Labour Court. Therefore, it cannot be said that the entire case of Gulzaman went unchallenged.
32. ' From the above discussion it is established that the Company failed to prove that there existed company policy which required a helper to be matriculate. The company also failed to establish that Gulzaman misrepresented the company at the time of seeking employment that he was matriculate. In the circumstances that Labour Court though rightly reinstated Gulzaman Khan in service but denied him back benefits without any justification. Consequently Labour Appeal No,76 of 2005 filed by the company is dismissed and Labour Appeal No,80 of 2005 seeking back benefits is allowed as prayed.