' ABDUL AZIZ KUNDI, J.--- This judgment shall also dispose of Labour Appeal No,11 of 2006, both directed against the same Judgment.
2. Facts precisely stated are that Malik Ejaz Khan, respondent in Labour Appeal No,8 of 2006 and appellant in Labour Appeal No,11 of 2006, hereinafter referred to as employee joined Muslim Commercial Bank, hereinafter referred to as Employer Bank as Cashier on 1-5-1979. He was served with "Letter of charge" by the Regional Head, M.C.B Limited vide letter No,RHOM/Gen/ST/91, dated 29-5-2001 on the ground of "unauthorized absence from duty since 12-5-2001." This was followed by yet another letter No,RHOM/Gen/ST/106 dated 18-6-2001 on the same ground of absence for more than 10 days since 12th May, 2001 and also forging/tampering and providing fake Postal Receipt No,763, dated 12-5-2001.
3. The explanations/replies furnished by employee were not found satisfactory and thus an enquiry was ordered to be conducted through Inquiry Officer. Ultimately, vide order dated 21-7-2001 he was dismissed from service with immediate effect.
4. After having served the employer with a grievance notice, he ultimately filed grievance petition, which was accepted by Labour Court on 22-2-2003 and he was ordered to be reinstated on his post but without back-benefits. In Appeals bearing No,4 of 2003 and 6 of 2003, the High Court, however on 8-12-2003 set aside the judgment of Labour Court and remanded the case for fresh inquiry.
5. After holding fresh inquiry, the employer again dismissed him from service vide its Letter No,COP/Gen/5, dated 25-2-2004. His grievance notice, dated 29-3-2004 and Appeal, dated 22-5- 2004 to President of the Bank having not been responded, he ultimately filed his grievance petition under section 46, I.R.O., 2002 before Labour Court, Mardan.
6. Employer-Bank contested the petition and thus on conclusion of trial, the learned Presiding Officer of the Labour Court vide its judgment dated 25-9-2006 accepted the petition as under:-- "Consequently, I accept the instant petition partly and modify the impugned order and direct that instead of dismissal, the petitioner be declared compulsory retired from service from the date of his absence i.e, from 12-5-2001 without any back-benefits."
7. Labour Appeal No,8 of 2006 by the employer bank and Labour Appeal No,11 of 2006 by the employee questions the said judgment, former seeking reversal of the impugned judgment and dismissal of the grievance petition, while the latter praying for acceptance of the grievance petition and his reinstatement in service with back-benefits.
' Arguments heard. Record gone through.
8. Malik Ejaz Khan, employee had joined the employer-Bank as cashier on 1-5-1979. He was charged for absence from duty w.e.f, 12-5-2001 vide employers letter, dated 29-5-2001 Exh.P.W.1/3, which was replied by him on 1-6-2001 Exh.P.W.1/4. This was followed by another "letter of charge" dated 18-6-2001, replied on 21-6-2001 Exh.P .W .1/X-2.
9. His earlier order of dismissal dated 21-7-2001 was set aside by Labour Court and he was ordered to be reinstated on his post. The employer-Bank appeal against same succeeded before Peshawar High Court, Peshawar, vide judgment dated 8-12-2003 passed in Labour Appeal No,4 of 2003, concluding paras-11 and 12 of the same are reproduced hereunder:--- "(11) There is no conflict between the Standing Orders and the M.C.B. 1981 Service Rules. Whereas the former is of general application to all workmen the later are special rules framed for the employees of M.C.B. On the issue involved in the present case regarding the procedure to be followed in disciplinary action there is no inconsistency between the Standing Orders and the Rules. The Standing Order does not specify any particular period to be given to the employee to submit his explanation or written defence whereas the Rules do lay down such a period. Obviously, the later is to be followed as not only that it is of special application to the M.C.B. Employees but it is more beneficial and concrete compared to the Standing Order.
(12) In view of the above discussion the Inquiry Officer had failed to observe Sub-rule 2 of Rule 41 of the M.C.B. (Staff) Service Rules, 1981. These are mandatory provisions and its nonobservance vitiates the entire inquiry. The Labour Court, instead of deciding the case on merits should have remanded it for re-inquiry when it concluded that the employee had been condemned unheard.
Consequently, Labour Appeal. No,4 of 2003 is partially allowed in the terms that the impugned judgment and order of the Labour Court are set aside and the case is remitted to the management of Muslim Commercial Bank Limited to hold a fresh inquiry in accordance with the rules and observations made above. The status of the employee as regards his service shall be the same as it was on 27-6-2001, the date on which the inquiry was ordered against him. However, the employee will not for the present be entitled to back-benefits, the entitlement whereof is to be determined at the conclusion of the inquiry or thereafter by the Labour Court. In this view of the matter Labour Appeal No,6 of 2003 filed by the employee for back-benefits is dismissed but the question of back-benefits is still left open as stated above. Since the employee was dismissed from service about two and a half years ago the fresh inquiry shall be concluded expeditiously but not later than 3 months.
10. Pursuant to the aforesaid judgment, Employer-Bank proceeded to hold inquiry afresh and on conclusion whereof once again vide its order, dated 25-2-2004 (Exh.P.W.1/9) orders for dismissal of the employee were passed.
11. After serving grievance notice upon the employer, grievance petition was filed before Labour Court, Mardan, which has been accepted through the impugned judgment.
12. In support of his petition, petitioner-employee recorded his solitary detailed statement and besides other tendered in evidence Exh.P.W.1/1 and Exh.P.W.1/2, confirming the fact that as a result of election held on 9-6-2001 he had been elected as President M.C.B. Staff Union of Pakistan, which was the Collective Bargaining Agent union (C.B.A). He proceeded to state as under:--- "All the Zonal Secretaries and Presidents of the Trade Union have been dismissed from service due to Trade Union activities. When the name of Aziz Mukhtiar was listed for General Secretary, M.C.B.
Staff Union Shaheed Usman Ghani Group he was also dismissed from service and after 20 days from my election as President I was dismissed from service. The charge on which I have been dismissed are incorrect. I have been dismissed without any reason just due to my trade union activities. In fact the management was supporting an other group contesting against me."
' Like his examination-in-chief, he has been exhaustively cross-examined by the employer-Bank.
13. As against that Employer-Bank examined Khairullah Khan, Vice-President as R.W.1, who had conducted the inquiry against the employee. This witness produced the entire record against him.
14. Overall appraisal of the record of the case has led me to concur with the findings of the trial court, holding him guilty of misconduct, but I could not persuade myself to agree with the punishment awarded for the following reasons:--- ' Under sub-clause (e) of clause (3) of Standing Order 15 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 "habitual absence without leave or absence without leave for more than 10 days" is a misconduct and under clause (2) of the same Order-15 the following punishments have been provided for commission of such misconduct.
(i) Fine in the manner prescribed under the Payment of Wages Act, 1936 (IV of 1936) up to 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.
15. There is no cavil with the proposition that the Labour Court and the Labour Appellate Tribunal can go behind an order passed by Departmental Authority Employer and see for itself whether on facts and in circumstances of case, the order so passed by employer was or was not justified both on merits as well as law. The legislature has, thus, provided a double check, one in the form of a domestic inquiry to be held by an employer and the other in the form of a judicial determination by the Labour Court and Labour Appellate Tribunal.
16. Cases reported as (1) PLD 1978 SC 207 titled Crescent Jute Products Ltd, Jaranwala v Muhammad Yaqoob and others (2) 2000 SCM R 30 titled Ghulam Muhammad v. Government of Punjab through Secretary, Industrials, Lahore and others and (3) 1992 PLC 110 titled Habib Bank Limited v. Mussadiq Hussain and 2 others have settled the law in this respect.
17. The question, as to whether Labour Court could convert punishment of dismissal from service into one of compulsory retirement requires serious consideration. As reproduced earlier, clause (2) of Standing Order 15 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 provides for four types of punishments i.e, fine, withholding of increment or promotion not exceeding one year, reduction to a lower post or dismissal without payment of any compensation and thus any punishment beyond the above would be illegal, without jurisdiction and unjustified.
Labour Court has, thus without any legal backing converted dismissal into compulsory retirement, which cannot be maintained and accordingly the said part of the judgment is reversed.
18. Next question to be determined is as to what punishment be awarded to the employee for the misconduct proved against him.
19. In a matter, though pertaining to a Civil Servant, the august apex Court in the case of Auditor- General of Pakistan and others v. Muhammad Ali and others 2006 SCM R 60 at page 63 held as under:- "The philosophy of punishment is based on the concept of retribution, which may be either through the method of deterrence or reformation. The purpose of deterrent punishment is not only to maintain balance with the gravity of wrong done by a person but also to make an example for others as a preventive measure for reformation of the society, whereas the concept of minor punishment in the law is to make an attempt to reform the individual wrong doer. In service matters, the extreme penalty for minor acts depriving a person from right of earning would definitely defeat the reformatory concept of punishment in administration of justice. In view thereof, we would not take any exception to the view of the matter taken by the Tribunal."
Thus while seeking guidance from the said law, and keeping in view the long period of more than two decades for which the employee had served the Employer-Bank, I would convert the punishment awarded to him into one of withholding of increment for a period of one year as provided in sub-clause (ii) of clause (2) of Standing Order 15 (ibid). He Employee shall be reinstated in his service but because of having been found guilty of misconduct, he is not entitled to the wages for the period, he has performed no duty, which shall be treated as leave without pay.
' Resultantly, Labour Appeal No,8 of 2006 filed by Employer-Bank is dismissed, while Labour Appeal No,11 of 2006 is partially allowed by converting the punishment into stoppage of increment for a period of one year. He shall be reinstated in service but shall not be entitled to back wages for the period he has performed no duty, which period shall be treated as leave without pay.