1. ' MUSHIR ALAM, J.--- Appellant has impugned the judgment, dated 29-7-2002 passed by Vth Sindh Labour Court, Karachi on application under section 25-A of I.R.O., 1969, whereby directing the appellant to reinstate the respondent.
2. ' The appellant at his Karachi Establishment, in June, 1985, employed the respondent. He was posted at Behrain and then to Karachi. On 21-4-1997 he was again transferred to Federal Exchange, Dubai as Marketing Officer. Through transfer order dated 9-9-2000 he was directed to report to respondent's International Division as OG-1 at Karachi.
3. ' Before being officially relieved from Dubai Office, on distress call he came down to Karachi on leave w.e.f. 1-10-2000 to 6-10-2000. Respondent claimed that not only condition of his mother deteriorated but he also fell ill. He also appeared before the Bank's Medical officer, he was directed to resume duties, on 9-12-2000. However, he was not taken on duties but was required to first obtain relieving order from Dubai. He was charge-sheeted, to which he filed the reply followed by an enquiry. He was found guilty of misconduct. Major penalty was imposed and vide dismissal order dated 23-2-2001 he was dismissed. Respondent challenged the dismissal firstly through grievance notice 7-4-2001 followed by grievance petition.
4. ' The appellant/opponent filed written reply and objected the applicability of I.R.O. Not only the relationship was denied but his status as workman, was also challenged.
5. ' On merits, appellant pleaded that respondent after availing 6 days leave, absented himself from his duties without obtaining any prior leave.
6. ' Respondent examined himself and the appellant-Bank examined its vice-President Muhammad Umer being Inquiry Officer and Ghulam Rasool, E.V.P.
7. ' Out of the pleadings issues struck down are as follows:--
(1) Whether the applicant is a workman within meaning of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and Industrial Relations Ordinance, 1969 and this petition is maintainable?
(2) Whether the termination/dismissal of the applicant was illegal?
(3) What should the order be?
8. ' Learned Labour Court decided the issues Nos.1 and 2 in affirmative and consequently the dismissal was set aside and ordered reinstatement of the respondent with all back benefits as prayed.
9. ' Mr. Bajwa, learned counsel for the appellant raised quadruplet contentions firstly, that respondent was not employed as a workman, therefore, the grievance petition was not maintainable. Secondly, Federal Exchange, Dubai, a separate legal entity is employer of the respondent, therefore, respondent cannot maintain claim against the appellant. Thirdly, non-issuance of second show- cause notice and personal hearing was not the requirement of Standing Order, 1968 and lastly, on merits, it was contended that respondent is guilty of ascension from the place of posting, which amounts to misconduct, it was urged that once misconduct is established it is visited by penal consequences and no exceptions could be taken.
10. ' In support of his first contention Mr. Bajwa urged that the respondent an MBA, posted as Marketing Officer was drawing Rs,1,40,000 per month as salary. He was not performing any manual or clerical work. Neither in the grievance petition nor in the affidavit of evidence nature of manual work is specified, therefore, he cannot be said to be a workman. Mr. Bajwa emphasized that it is not necessary to have hire and fire authority, reliance was placed on General Manager, Hotel Intercontinental, Lahore and another v. Bashir A. Malik and others PLD 1986 SC 103 relevant pages 107 and 108, Bashir Ahmed Zia v. The Chairman, Punjab Labour Appellate Tribunal 1982 SCM R 407, M.D. Shamsul Haque and others v. Managing Director Pfizer Laboratories Ltd. And another. PLD 1969 Dacca 386, Mumtaz Hassan Khan v. Sindh Labour Appellate Tribunal 1984 PLC 1353 learned counsel also placed reliance on 2005 PLC 130 to urge that manager of a Foreign Exchange Branch was held not be workman it was affirmed by the Supreme Court in a case reported as Dilshad Khan Lodhi v.
11. Allied Bank of Pakistan 2007 PLC 41.
12. ' Mr. Bajwa very fairly pointed out that another learned Bench of this Court took a contrary view in Mujeebur Rehman Qazi v. Allied Bank of Pakistan 2006 PLC 24, but the petition for leave to appeal was dismissed on technical ground as reported in Allied Bank of Pakistan (Limited) v. Mujeebur Rehman Qazi SBLR 2006 SC 33. In a case reported as Khamiso Khan v. The Secretary and another 2007 PLC 400 officer Grad-III was held not be a workman.
13. ' Mr. Bajwa contended that mere assertion that the respondent was doing clerical work was not sufficient, burden of proof is on the person who claims to be the workman in support reliance was made on National Bank of Pakistan v. Punjab Labour Court No,5, Faisalabad 1993 PLC 595 in the last mentioned case Marketing Officer was held not be a workman, this view was also supported in Nasir Jamal Qureshi v. Sindh Labour Appellate Tribunal and another 2005 SCM R 1049.
14. ' As regard second contention that the Federal Exchange Dubai is a separate legal entity it was urged that Dubai Company is not owned by MCB wherein only 11 persons are employed and Standing Order is not applicable, even otherwise, it was urged that S.O. Only applies in Pakistan.
15. ' As regards third contention, it was urged that law does not require second show-cause notice, as noted by the Court below, reliance was placed on Dawood Cotton Mills Ltd. v. Guftar Shah and another PLD 1991 SC 225 (230), Fauzia Ahmed v. First Women Bank Ltd. And others 1999 SCM R 1237.
16. ' On merits, Mr. Bajwa, learned counsel contended that for absenting from duties the respondents was served letter of charge dated 2-11-2000. Inquiry was held, statement recorded, and on the recommendation of Disciplinary Committee respondent was dismissed, to which no exception could be taken, therefore, is no illegality.
17. ' Alternately it was urged that if this Court comet to a conclusion that Standing Order, 1968 applies, then as per Standing Order (XV)(e) absence without leave for more than 10 days is misconduct and visited by penalty, which was imposed, reliance is placed on Intizar Ahmed v. M.C.B. And others 2006 PLC 380.
18. ' Mr. Shabbir Awan learned counsel for the respondent contended that the respondent admittedly is not doing any supervisory work, nor is possessed of hearing and firing power. He is simply a marketing person, it was urged that burden is on person making assertion, and since the appellant raised the issue of workman, burden is on the appellant-Bank to show otherwise, he relies on Warner Lambert (Pakistan) Ltd. v. Sindh Labour Court No,III, Karachi and another 1979 PLC 370, Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another 1979 SCM R 304 and unreported judgment in Labour Appeal No,147 of 2004 Muslim Commercial Bank Ltd. v. Fateh Muhammad Shah.
19. ' He contended that Manager, MCB was held to be a workman in Allied Bank of Pakistan Ltd. v.
20. Muhammad Humayun Khan and 2 others 1983 PLC 498.
21. ' It was contended that disciplinary proceeding were taken against the respondent in Pakistan by the appellant-Bank, which shows that he is a workman and in service of the appellant-Bank and not of Federal Exchange, Dubai.
22. ' Mr. Awan, has drawn my attention to the definition of workman. Contained in section 2(28), I.R.O., 1969 to contended that every person not an employer is a workman.
23. ' I have heard the arguments and perused the record. Admittedly, the respondent was employed by the appellant-Bank, he was posted abroad on number of occasions. He always remained under order and command of the appellant-Bank, even while posted abroad. Very fact he B was charge- sheeted and proceeded against by the appellant-Bank, is sufficient to establish that the relationship of employer and employee existed between the parties. As per definition of the workman contained in section 2(28), I.R.O., 1969, which reads as follows:-- "Workman means any person not falling within the definition of employer who is employed (including employment as a supervisor or an apprentice in an establishment or industry for hire or reward either directly or through contractor whether the terms of employment be express or implied, and for the purpose of any proceedings under this Ordinance in relation to an industrial dispute...."
24. ' It is not disputed that, respondent is not responsible to the appellant-Bank for the supervision and control of its establishment. Contention of Mr. Bajwa that the respondent has neither pleaded in the grievance petition nor in the affidavit that he is doing manual work is not correct. Mr. Awan has drawn my attention to assertion in para.20 of the grievance petition, and para. "U" of affidavit in evidence, respondent has mentioned that he was performing manual and clerical work, having no supervisory duties nor authority to hire and fire. He was not cross-examined on the point by the appellant, no job description was produced not any suggestion to the contrary was given. Once the respondent had asserted that he is a workman and performing manual and clerical work, burden shifted on the appellant-Bank to prove otherwise, which burden the respondent failed to discharge.
25. The question whether the respondent C is a workman or not was dealt with by the Court below, I find no strong reasons to disturb such finding of fact, when no convincing reasons were advanced.
26. Now this brings me to the question of absence and consequential dismissal of the respondent from service.
27. ' In enquiry, respondent admitted that he could not apply for extension in leave because of his health conditions, he also stated that he is Banks star employee and was also awarded cash prize acknowledging his performance. He stated that throughout his sixteen years he has not availed any long leave except once, and he has accumulated leave to his credit. To a question that he did not apply for leave, be replied that in response to Mr. Jaffery's query as to evidence of his ailment and mother's condition, he had sent application and doctors report. Before the Labour Court, appellant witness Ghulam Rasool admitted that "it is correct that applicant submitted Medical Certificate of self and mother for extension of leave". He further admitted "it is correct that applicant submitted joining report on 21-11-2000 in International Division and to Human Resource Division on 9-12-2000, voluntary says applicant could not join without getting charge relinquished report from Fed. Exch. Dubai". The witness further admitted that before dismissal, he was neither given enquiry report nor personal hearing.
28. ' Looking at the past record of the respondent, he had never availed long leave throughout his 16 years long service with the Bank plenty of leaves are still due to his credit. There is nothing on record to suggest that he had left any dues or any matter unattended in Dubai Dubai Office made no complaint as regard his conduct during his service there. Appellant witness admitted that respondent reported for joining on 21-11-2000, at Karachi, but refused merely because he had not obtained relieving order from Dubai, which is merely a trivial excuse.
29. ' At this point, to a query of the Court as to the proportionality of the quantum of punishment inflicted, Mr. Bajwa contended that, the misconduct if proved, than the quantum of punishment is the discretion of the employer.
30. ' Contention of Mr. Bajwa, is not correct, it is cardinal principle of penal law, to inflict penalty or punishment commensurate to the wrong. In Islamic jurisprudence, mercy is a rule and punishment an exception, where the wrong is trivial or committed under compelling circumstance or committed first time. Even in modern jurisprudence, doctrine of proportionality of sentence is now recognized, in labour laws as well. Where the act of omission or commission of petty nature as detailed in S.O. 15(1) is established, the employer could either reprimand or impose fine. However, where misconduct as detailed on S.0.15(3) is established, employer could inflict fine, withhold increment or promotion for a specified period not exceeding one year reduce to a lower position or dismissal without payment of any compensation in lieu of notice. The discretion to inflict punishment comes with concomitant responsibility to act fairly, justly and equitably, it embodies doctrine of proportionality of sentence to the culpability of wrong or mischief. Now the doctrine of proportionality is recognized in our jurisprudence see Zafar v. State 1999 SCM R 2028; Farooq Ahmed Khan Leghari v. Federation PLD 1999 SC 192 and Muhammad Ilyas v. Muhammad Sufian PLD 2001 SC 465 and 474.
31. ' In the instant case, the appellant-Bank had imposed too severe a penalty of dismissal of service, which under facts and circumstances of case is not commensurate or proportionate to the respondent's culpability or gravity of misconduct which was the solitary incident throughout 16 years of unblemished service.
32. ' In view of the foregoing facts and circumstances, I do not see any reason to interfere with the findings recorded by the learned Labour Court. Accordingly, the appeal is dismissed along with the listed application.