' SAIYED SAEED ASHHAD, J.--- These two petitions for leave to appeal have been filed to assail the judgment of Sindh High Court, Circuit Bench, Sukkur, dated 16-4-2007 in Labour Appeals Nos.3 and 4 of 2005.
2. The brief facts of the case requisite for the purpose of disposal of these petitions are that both the petitioners were employees of respondent Muslim Commercial Bank Limited. During the course of their service with the respondent bank they were found to have committed misappropriation/embezzlement of banks/customers monies. They were duly charge-sheeted and domestic inquiries were conducted against them wherein charges of misappropriation/ embezzlement were proved whereafter they were dismissed from service by the competent authority. Both the petitioners challenged their dismissal before the Sindh Labour Court No,VII, Sukkur who vide judgments/orders, dated 29-6-2005 and 30-6-2005 allowed the grievance petition as under:-- C.P. No,339-K of 2007 ' The order of dismissal was set aside and the petitioner was directed to be reinstated in service within thirty days of the order. However, his promotion was postponed for a period of three years from the date when the next promotion would become due.
C.P. No,340-K of 2007 ' The grievance petition was allowed, impugned order of dismissal, dated 31-7-1997 was set aside and the petitioner was ordered to be reinstated in service within thirty days of the order.
3. The judgments/orders of the Sindh Labour Court No,VII, Sukkur were assailed by both the parties.
Respondent Muslim Commercial Bank challenged the setting aside of the orders of dismissal while the petitioners challenged the same for not allowing back-benefits during the period when they made out of job. The High Court vide the impugned judgment disposed of the appeals filed by the parties whereby the judgments/orders of Sindh Labour Court No, VII, Sukkur were set aside and orders of dismissal from service in respect of both the petitioners passed by respondent No,2 were restored. Feeling aggrieved and dissatisfied with the impugned judgment of the High Court of Sindh the petitioners have assailed the same by way of above petitions for leave to appeal.
4. We have heard the arguments of Mr. Ahmadullah Faruqi, learned Advocate Supreme Court/Advocate-on-Record for the petitioners and Mr. Mehmood A. Ghani, learned Advocate Supreme Court on behalf of respondent Muslim Commercial Bank Limited.
5. Both the officers were provided full and fair opportunities during inquiry proceedings conducted by the Enquiry Officer. They were allowed the opportunity of cross-examining each and every witness and had also signed each and every page of the enquiry proceedings. They did not complain to any authority regarding the contention raised by Mr. Ahmadullah Faruqi, learned Advocate Supreme Court/Advocate-onRecord for the petitioners that they were not provided proper and fair opportunity to contest their cases before the Enquiry Officer. The record of the enquiry proceedings proves otherwise.
6. With regard to the case of petitioner Nazir Ahmed Pathan it is observed that even the Labour Court did not disagree with the findings of the Enquiry Officer of holding him guilty of the charge levelled against him but punishment of dismissal from service was held to be too harsh and disproportionate to the guilt of petitioner Nazir Ahmad Pathan. In this connection it is observed that once the charge of misappropriation/ embezzlement levelled against the worker is proved the question of quantum of punishment rests with the employer and neither the Labour Court nor the Appellate Court has any discretion in the matter unless the B sentence awarded is found to be either one which is not provided or warranted by law or which it appears to be excessive or harsh or totally disproportionate to the guilt which no prudent man would have awarded in the circumstances of a particular case. This is not the situation in the present case. Petitioner Nazir Ahmad Pathan was found guilty of misappropriation/embezzlement of banks/customers funds and as observed by the High Court that the working and functioning of the banks depentls on mutual trust between the banker and the customer and requires display of a very high degree of integrity and honesty by its officers in the absence whereof the customer would lose their faith and trust in the banks which would adversely affect their working and business. The punishment of dismissal from service to. Nazir Ahmad Pathan could neither be said to be unwarranted nor too harsh or disproportionate to his guilt. The Labour Court was not justified in modifying the same.
7. With regard to the case of Abdul Razzak Pathan the Labour Court did not agree with the findings of the Enquiry Officer and held that in view of the evidence available on record it would be difficult to hold that the charge of misappropriation/embezzlement against him stood proved. This finding or observation of the Labour Court is not supported by any material on record and appears to be an arbitrary and fanciful finding. The Labour Court completely ignored the fact that the petitioner had caused loss which would be a very strong circumstance pointing to his guilt. The Labour Court seems to have been very much influenced by the fact that Manager Aijaz Ali Kalwar was found to be involved or associated in misappropriation/embezzlement of banks/customers money Nit he was neither charge-sheeted nor any action was taken against him. Inaction on the part of respondent bank to initiate proceedings against Manager Aijaz Ali Kalwar and to take action against him for his alleged involvement in misappropriation/embezzlement of banks/customers money along with petitioner Abdul Razzak Pathan would not be a ground for exonerating or absolving the petitioner from the charge of misappropriation/embezzlement. The Labour Court decided the case of the petitioner. Abdul Razzak Pathan absolutely against the principles of administration of justice and law. It is an arbitrary and fanciful judgment.
8. Mr. Mehmood A. Ghani, learned counsel for the respondents objected to the maintainability of the petitions for leave to appeal and submitted that according to the provisions of Article 185(2)(e) of the Constitution of Islamic Republic of Pakistan, the petitioners were required to file direct appeals as there was variance of judgments/orders of the original/trial Court and the Appellate Court/High Court. His further objection was that these petitions for leave to appeal were admittedly filed after thirty days and since the petitioners were required to file appeals therefore, if the above petitions were to be treated as appeals, the same would be found to be barred by time. However, in view of the fact that both the petitions have been decided on merits, it is not considered necessary to go into these questions.
9. For the foregoing facts, reasons and discussion both the petitions are found to be without any merit and are dismissed. Leave to appeal is refused.